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Bloch v. United States

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

September 19, 2018

JOHN W. BLOCH, III, Petitioner


          Robert L. Miller, Jr. Judge

         In 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.[1] For the following reasons, the court denies his motions and his petition under 28 U.S.C. § 2255.

         I. Background

         The 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.

         After 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.

         II. Discussion

         The 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).

         A. Motion to Amend

         Mr. 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. 114].

         The 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)).

         In his 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.[2] 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”).

         B. Motion to Compel

         Mr. 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.

         C. § 2255 Petition: First Ineffective Assistance of Counsel Claim Suppression Motions

         The 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).

         When a 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 ...

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