United States District Court, N.D. Indiana, South Bend Division
JOHN W. BLOCH, III, Petitioner
UNITED STATES OF AMERICA, Respondent
OPINION AND ORDER
L. Miller, Jr. Judge
April 2012, a jury found John W. Bloch, III guilty of illegal
possession of a firearm. After two appeals, the court
sentenced Mr. Bloch to a total of 105 months imprisonment, to
be followed by three years of supervised release, and the
court of appeals affirmed the sentence. See United States
v. Bloch, 825 F.3d 862 (7th Cir. 2016). Mr. Bloch's
petition to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255, [Doc. No. 78], his motions to amend or
supplement his petition, [Doc. Nos. 109, 114], and his motion
to compel, [Doc. No. 124], are before the
court. For the following reasons, the court
denies his motions and his petition under 28 U.S.C. §
factual background underlying Mr. Bloch's conviction is
set out in detail in the court of appeals' opinion
addressing Mr. Bloch's first direct appeal. See
United States v. Bloch, 718 F.3d 638 (7th Cir. 2013).
The court assumes the reader's familiarity with the
underlying facts of this case, but will briefly summarize the
facts relevant to issue presented in Mr. Bloch's motion
and his petition.
getting two calls reporting gunshots in the vicinity, one of
which specifically identified Kirsten Steven's apartment
as the source of the gunfire, Elkhart police officers
responded to the apartment and knocked on the door. Mr.
Bloch-visibly intoxicated and somewhat combative-opened the
door. The officers told Mr. Bloch to step outside, handcuffed
him, and asked Ms. Steven, Mr. Bloch's girlfriend, to
step outside as well. After the officers were told that a
young child was sleeping in the apartment, they conducted a
sweep of the apartment to see if anyone was injured. The
officers found a loaded Glock handgun sitting on a nightstand
and an SKS assault rifle in an open closet, both in plain
view. Next to the rifle, officers found 54 rounds of
ammunition in a clip and discovered 144 rounds of ammunition
for the handgun nearby. As the officers removed the firearms
from the apartment, Mr. Bloch professed ownership of the guns
and complained that the officers were taking them. Because
Mr. Bloch was a convicted felon who couldn't possess a
firearm lawfully, he was arrested. He continued to protest
the seizure of the weapons even after his arrest. A jury
convicted Mr. Bloch of illegal possession of a firearm.
rules governing petitions filed under 28 U.S.C. § 2255
provide that once a motion is filed, “[i]f it plainly
appears from the face of the motion and any annexed exhibits
and the prior proceedings in the case that the movant is not
entitled to relief in the district court, the judge shall
make an order for its summary dismissal and cause the movant
to be notified.” Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts. After reviewing the record in this case, the court
finds that Mr. Bloch's motion can be resolved without a
hearing. See Bruce v. United States, 256 F.3d 592,
597 (7th Cir. 2001); Daniels v. United States, 54
F.3d 290, 293 (7th Cir. 1995).
Motion to Amend
Bloch moves to amend and/or supplement his § 2255 motion
contending that there have been “some changes” in
his case and “some issues that were not apparent to the
Defendant when the initial . . . Petition was submitted,
” but he didn't identify what those changes and
issues were or what claims he'd like to add or modify, or
provide a copy of the proposed amended petition. The court
deferred ruling on the motion to amend to allow Mr. Bloch to
supplement his motion with a copy of the proposed amended
§ 2255 petition, [Doc. No. 111], which he did. [Doc. No.
Rules Governing Section 2255 Proceedings don't contain a
provision for amending motions for collateral review, so the
court must look to Fed.R.Civ.P. 15(a) to determine whether
leave to amend should be granted in this case. Johnston
v. United States, 196 F.3d 802, 805 (7th Cir. 1999).
Rule 15(a)(2) provides that leave to amend should be freely
granted “when justice so requires.” “Under
Rule 15, a court may deny the amendment due to undue delay,
bad faith, dilatory motive, prejudice or futility.”
Rodriguez v. United States, 286 F.3d 972, 980 (7th
Cir. 2002) (citing Bethany Pharmacal Co. v. QVC,
Inc., 241 F.3d 854, 861 (7th Cir.2001)).
amended petition, Mr. Bloch seeks to add a third claim of
ineffective assistance of counsel against his trial counsel,
arguing that his trial counsel was unconstitutionally
ineffective because he didn't challenge the multiplicity
of the charges in the indictment. Mr. Bloch contends that
being charged with violations of 18 U.S.C. § 922(g)(1)
and 18 U.S.C. § 922(g)(9) violated his Fifth and Sixth
Amendment rights. The court disagrees. As the court of
appeals noted in ruling on Mr. Bloch's first appeal, the
government was free to pursue both counts through trial, so
any pretrial motion to dismiss the indictment or a count of
the indictment would have failed. See United States v.
Bloch, 718 F.3d at 643. And to the extent Mr. Bloch
seeks to challenge his counsel's failure to object to the
court sentencing him on both counts, that issue was addressed
on appeal, see id. at 643-644, and resolved on
remand, [see Doc. Nos. 67, 95], so he can't show
prejudice. See Strickland v. Washington, 466 U.S.
668, 694 (1984) (holding that an ineffective assistance claim
fails if the petitioner can't “show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different”). Because this ineffective
assistance of counsel claim has no merit, it would be futile
for Mr. Bloch to amend his § 2255
petition. Accordingly, the court denies the motion
to amend. See Indep. Tr. Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 943 (7th Cir. 2012) (“it is
well settled that a district court may refuse leave to amend
where amendment would be futile”).
Motion to Compel
Bloch's motion to compel asks the court to order the
government to respond to his petition. The court ordered the
government to respond to his original petition, [Doc. No.
97], and the government responded. [Doc. No. 101]. To the
extent Mr. Bloch seeks an order directing the government to
respond to his amended petition, no response is required
because the court denied his motion to amend.
§ 2255 Petition: First Ineffective Assistance of Counsel
Claim Suppression Motions
first claim in Mr. Bloch's § 2255 petition alleges
that his trial counsel, Brian May, provided ineffective
assistance because he didn't (1) file a motion to
suppress evidence seized during a search of Kristen
Steven's apartment, (2) challenge the seizure of Mr.
Bloch, or (3) contest the validity of an anonymous 911 call.
To prevail on his ineffective assistance of counsel claims,
Mr. Bloch must show both (1) that his attorney's
performance was objectively unreasonable in its deficiency
such that he was denied the counsel guaranteed by the Sixth
Amendment, and (2) that this deficient performance prejudiced
his defense, rendering the outcome of the proceedings against
him unreliable. Strickland v. Washington, 466 U.S.
at 687; Cates v. United States, 882 F.3d 731, 736
(7th Cir. 2018). If Mr. Bloch's can't make a showing
on both prongs, his claims must be dismissed. See Jones
v. Page, 76 F.3d 831, 840 (7th Cir. 1996).
claim of ineffective assistance is premised on an
attorney's failure to file a motion to suppress, the
defendant must prove that the motion would have been
meritorious, and that but for counsel's error, he would
not have been convicted. United States v.
Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). The
defendant bears the burden of establishing that the law
enforcement officer's conduct violated the ...