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United States v. Stork

United States District Court, N.D. Indiana, South Bend Division

May 1, 2014

FRANK E. STORK Civil No. 3:12-CV-398 JD


JON E. DeGUILIO, District Judge.

Now before the Court are Frank E. Stork's petition to vacate his conviction under 28 U.S.C. § 2255 [DE 114] and his objections [DE 130] to the magistrate judge's report and recommendation [DE 129] denying the petition. The petition is fully briefed [DE 114, 127, 128], as are Mr. Stork's objections to the magistrate judge's report and recommendation [DE 130, 133, 134]. For the reasons that follow, having reviewed each of Mr. Stork's claims without deference to the conclusions in the report and recommendation, the magistrate judge's report and recommendation is ADOPTED insofar as it recommends that the Court deny the petition, and Mr. Stork's petition to vacate his conviction is DENIED.


The factual and procedural background of this case was set out extensively in the report and recommendation, so the Court provides only a summary of the pertinent facts here. Mr. Stork was indicted by a federal grand jury on October 14, 2010. The two-count indictment charged that on August 26, 2010, Mr. Stork knowingly possessed a firearm (Count I) and ammunition (Count II) in and affecting interstate commerce, having previously been convicted of one or more crimes punishable by imprisonment for a term exceeding one year. [DE 1]. Attorney Mark Lenyo was appointed to represent Mr. Stork pursuant to the Criminal Justice Act. Mr. Stork pled not guilty and went to trial, where a jury found him guilty of both counts. At sentencing, the Court merged the two counts and vacated the conviction on Count II, and sentenced Mr. Stork to 82 months of imprisonment on Count I. Mr. Stork appealed his conviction, proceeding pro se, but his conviction and sentence were affirmed. Following his direct appeal, Mr. Stork filed the present motion to vacate his conviction under 28 U.S.C. § 2255.

The facts of the case, as presented at trial, are as follows. On August 26, 2010, Mr. Stork was traveling as a passenger in a 1997 Plymouth Voyager van in South Bend, Indiana. South Bend Police Officer Nicholas McKinley pulled the vehicle over when he observed the driver not wearing a seatbelt. As he approached the vehicle, he heard banging noises coming from the center console inside the vehicle, and when he got to the window, he saw the cup holder pulled out of the console and hanging down. Officer McKinley observed Mr. Stork's hands moving around in the area of the cup holder. The cup holder had been converted to an ashtray, and the ash spilled out and had created a cloud. Moments later, as Officer McKinley was speaking with Mr. Stork and the driver, Mr. Stork reached his hand over the edge of his open window, and Officer McKinley then heard the sound of a metallic object hitting the ground. He walked around the vehicle and saw a firearm magazine on the road directly outside Mr. Stork's window.

When backup arrived at the scene, officers removed Mr. Stork from the vehicle. As they did, Officer McKinley saw two rounds of ammunition fall off of Mr. Stork's lap, along with a set of keys. Photographs of the scene show the ammunition and magazine on the road next to the vehicle. In addition, officers found a third bullet on the floor of the vehicle between Mr. Stork's seat and the door. Officer McKinley then searched the vehicle, and found a.22 caliber semiautomatic Jennings pistol in the center console where the cup holder had been removed. The firearm did not have a magazine in it, but one round was chambered. The bullets recovered at the scene were each.22 caliber, and matched the bullet found in the chamber of the pistol. The magazine also matched the pistol that was found.

Mr. Stork was arrested and read his Miranda warnings. He briefly spoke to Officer McKinley at the scene, and was then transported to the St. Joseph County Jail for booking. Officer Alan Weigand, who had provided backup at the scene, processed Mr. Stork at the jail. According to Officer Weigand, Mr. Stork stated to him that he had been shooting off the gun earlier in the day. Officer Weigand did not include this statement in the report he wrote that night, but on December 18, 2010, after meeting with the prosecutor, Officer Weigand prepared a supplemental report detailing the statement. Mr. Stork was also interviewed by Officer Bayne Bennett several days later, on August 30, 2010. In the recorded interview, Mr. Stork denied having possessed either the firearm or the ammunition, but suggested that someone else could have thrown the magazine out the window or could have thrown the ammunition onto his lap.


A. Relief under 28 U.S.C. § 2255

Section 2255(a) of Title 28 provides that a federal prisoner may claim "the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, [and] may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is appropriate only for "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (citation omitted). Further, "a Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Relief under § 2255 is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Consequently, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4, Rules Governing Section 2255 Proceedings for the United States District Courts. A court may also deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).

B. Review of the Magistrate Judge's Report and Recommendation

The district court has discretion to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1). Under Federal Rule of Civil Procedure 72(b)(3), the district court must undertake a de novo review "of those portions of the magistrate judge's disposition to which specific written objection is made." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). Here, given Mr. Stork's comprehensive objections to the magistrate judge's report and recommendation, the Court reviews the entirety of the report and recommendation de novo. Further, because Mr. Stork objected to "every finding and legal conclusion by the Magistrate Judge, " as noted by the government, and because the standard of review is de novo, the Court relies primarily on the parties' original submissions in order to analyze the merits of Mr. Stork's petition, rather than separately addressing each of Mr. Stork's twenty-two objections to the report and recommendation.[1]


Mr. Stork seeks to vacate his conviction under 28 U.S.C. § 2255, which permits a court to vacate a judgment where "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). Specifically, Mr. Stork argues that he was denied his right to the assistance of counsel, as guaranteed by the Sixth Amendment. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To satisfy this right, an attorney must not only be present with a criminal defendant at his trial, but must assist the defendant in a way that ensures the trial is fair. Strickland v. Washington, 466 U.S. 668, 685 (1984). A fair trial is one in which the adversarial process functions properly to produce a just result. Id. at 686.

To prevail on a claim for ineffective assistance of counsel, Mr. Stork must first demonstrate that counsel's performance was deficient-"that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To show deficient performance, the defendant must show "that counsel's representation fell below an objective standard of reasonableness." Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (quoting Strickland, 466 U.S. at 688). "This means identifying acts or omissions of counsel that could not be the result of professional judgment. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Id. (citing Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011)). Further, "there is a strong presumption that [the defendant's] attorney performed effectively, " Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003), and that the challenged conduct "might be considered a sound trial strategy." Strickland, 466 U.S. at 689 (citation and quotation omitted). The reasonableness of counsel's performance must be evaluated "from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). So long as an attorney articulates a strategic reason for a decision that was sound at the time it was made, the decision generally cannot support a claim of ineffective assistance of counsel. Yu Tian Li v. United States, 648 F.3d 524, 528 (7th Cir. 2011) (citing United States v. Lathrop, 634 F.3d 931, 937-38 (7th Cir. 2011) (provided counsel's reasons for not questioning further were not "so far off the wall that we can refuse the usual deference that we give tactical decisions by counsel, his performance will not qualify as deficient")); United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005).

Even if counsel's performance was deficient, Mr. Stork must also demonstrate that counsel's deficient performance prejudiced his defense-"that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To establish prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Strickland, 466 U.S. at 694); United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (same). "In weighing the effect of counsel's errors, the court must consider the totality of the evidence.... A verdict or conclusion that is overwhelmingly supported by the record is less likely to have been affected by errors than one that is only weakly supported by the record." Eckstein, 460 F.3d at 848 (quoting Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001)). Failure to satisfy either the performance or the prejudice prong of the Strickland test is fatal to a defendant's ineffectiveness claim. Velarde v. United States, 972 F.2d 826, 828 (7th Cir. 1992); see Strickland, 466 U.S. at 687 (reasoning that "[u]nless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable").

Here, Mr. Stork's petition raises six separate alleged failures by his trial counsel that he asserts deprived him of his right to the assistance of counsel as guaranteed by the Sixth Amendment: (1) failing to object to the Indictment as multiplicitous prior to trial; (2) failing to provide Mr. Stork with a supplemental police report prior to trial; (3) failing to object to certain of the government's statements during closing arguments; (4) failing to object to the admission of an audio recording for lack of clarity; (5) failing to challenge the interstate commerce element of the ...

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