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September 9, 1998


The opinion of the court was delivered by: SHADUR


 Following a 1990 jury trial on charges stemming from three bank robberies (more precisely, one bank robbery and two robberies of savings and loan institutions), Eddie Lee Fryer ("Fryer") was convicted on five of the seven counts in the indictment (three counts charging armed bank robberies and two of three counts charging the use of a weapon during commission of a violent felony) and was acquitted on the other two counts (the third count charging such use of a weapon and one count charging possession of a firearm by a previously-convicted felon). Those convictions produced a guideline-dictated and statute-dictated sentence aggregating 562 months in the custody of the Bureau of Prisons.

 Next Fryer's conviction and sentence were affirmed by our Court of Appeals (974 F.2d 813 (7th Cir. 1992)). Nearly four years later, following some unsuccessful pro se efforts to attack his conviction, and after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("Act"), Fryer filed a lengthy self-prepared 28 U.S.C. § 2255 ("Section 2255") motion challenging his conviction (and hence the ensuing sentence) by specifying four respects in which the representation by his trial counsel Martin Agran, Esq. *fn1" was assertedly constitutionally deficient. This Court then appointed pro bono counsel to represent Fryer in the Section 2255 proceeding and requested both the appointed counsel and the Assistant United States Attorney to file memoranda addressing the then-undecided question whether the Act's recent amendment to Section 2255 would bar Fryer's motion under the newly-enacted one-year limitation period (it was only later that our Court of Appeals resolved that issue by negating such a bar in Lindh v. Murphy, 96 F.3d 856, 865-66 (7th Cir. 1996)(en banc), rev'd on other grounds, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997)).

 Fryer's appointed counsel responded in part by pointing to the decision in Lindh, which had by then been decided by the Court of Appeals and was pending before the Supreme Court. In addition, after reviewing the entire trial transcript and the appellate proceedings, and after conferring with Fryer a number of times, appointed counsel (with Fryer's authorization) withdrew the first of Fryer's four Section 2255 assertions. That has left for consideration three of Fryer's original arguments, plus one that has been newly added by appointed counsel.

 As the premise for the first of those arguments, Fryer and his counsel point to the fact of his having been found guilty on Count Three (armed robbery of Citicorp Savings) but not guilty on Count Four (use of a weapon during the commission of a violent felony--the same Citicorp robbery), urging that by so deciding the jury had rendered an inconsistent verdict. Originally Fryer had simply challenged that as "plain error" and had urged that Fryer's trial counsel was deficient in not having objected to the Count Three conviction. Section 2255 counsel has amplified that by arguing that the trial counsel should have tendered a lesser-included-offense instruction of bank robbery (not armed bank robbery) on that incident.

 This Court has no quarrel with characterizing the jury verdicts on the two counts as inconsistent, but any attempt to convert that inconsistency into a Sixth Amendment violation by trial counsel is deeply flawed. In light of the evidence, it was not the armed bank robbery conviction on Count Three but the Count Four acquittal that was astonishing--as the Court of Appeals accurately reported the Citicorp teller's testimony (974 F.2d at 815-16 (emphasis added)):

Teller Corey James noticed a black man [whom a second teller who was standing just a few feet away at the time of the robbery later identified as Fryer during a lineup] waiting in the customer line, an occurrence he considered unusual because there were not many black people in the bank's neighborhood. When it was the man's turn, he approached James's window and asked for change for two one-dollar bills. James looked down to open his cash drawer to get the change, and when he looked up he was looking at the barrel of a shotgun. The man also held a grocery store plastic bag. The man said "fill up the bag and hurry up and don't make me use this."

 That testimony, obviously credited by the jury in convicting Fryer on the Count Three armed robbery charge, should by all rights have produced a like conviction on the Count Four use of a weapon charge. That it did not speaks volumes for attorney Agran's skill in pulling a rabbit out of a hat, not for his inadequacy (let alone any asserted constitutional inadequacy) as a defense lawyer.

 Any such inconsistency within the verdict would not of course have been a ground for relief for Fryer (see, e.g., United States v. Sims, 144 F.3d 1082, 1083-84 (7th Cir. 1998), adhering to the definitive pronouncement in United States v. Powell, 469 U.S. 57, 64-65, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984)). Those and all other cases on the topic stress the impossibility of learning whether or why a jury may have overdone the exercise of lenity or may otherwise have strayed from logic or from the evidence (or both) by acquitting a defendant. And it would be impermissible to tag trial attorney Agran with insufficient representation for his not having foreseen a result that could not reasonably have been anticipated, as was true here.

 Fryer's next pro se argument was that his conviction on Counts Five and Six was obtained by the government's use of knowingly false testimony. That contention from Fryer's original Petition was not argued by Section 2255 appointed counsel in his initial submission at all, though counsel's Reply at 2 n.1 does seek to disclaim his having withdrawn the issue from consideration. Little wonder, however, that the able appointed counsel has provided no argument in support of the contention--it is simply bogus. There is no legitimate predicate for labeling the testimony to which Fryer refers as having been known to the prosecutor as false. And that being the case, there is also no predicate for urging that trial counsel was deficient at all--let alone constitutionally deficient--for failing to advance the same groundless argument.

 As their next issue, both Fryer and the Section 2255 appointed counsel advance (albeit in slightly different terms) technical challenges to the sufficiency of the Count Three and Count Five charges because each of Citicorp Savings and Pathway Financial (the respective victims of Fryer's depredations charged in those counts) was alleged to be "a savings and loan association acting under the laws of the United States." As appointed counsel correctly points out, the corresponding language of 18 U.S.C. § 2113 (the offense charged in each of those counts) is "organized or operating under the laws of the United States."

 At trial both of the institutions were identified by proper evidence as having their deposits federally insured. Current counsel's attempted nit-picks are wholly unpersuasive in urging (1) that such a distinction exists between "acting under the laws of the United States" and "operating under the laws of the United States" as to demonstrate that trial counsel's failure to challenge the language of the "acting under" allegations on pretrial motion or at trial demonstrated constitutional inadequacy and (2) that trial counsel's failure to raise the difference in the insuring institutions showed a like inadequacy of representation.

 Finally, Section 2255 counsel advances a new argument based on the decision in Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997)(which came down after Fryer had filed his Section 2255 motion). Although counsel recognizes that Old Chief presents a retroactivity issue as a potential subject of collateral review (of course the case was decided several years after Fryer had exhausted his right to direct review), counsel argues that the issue comes within the limited exceptions announced in Teague v. Lane, 489 U.S. 288, 311, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) to the general rule of nonretroactivity.

 What happened in this instance is that an essential element of the Count Seven charge of being a convicted felon in possession of a firearm (that was one of the two counts, it will be remembered, on which Fryer was acquitted) was the existence of a prior conviction. In that respect this Court followed firmly established Seventh Circuit precedent in communicating to the jury the nature of his prior conviction--one for robbery. This Court coupled that disclosure with a cautionary instruction. Because Old Chief has now changed the law in that respect, holding that it would be error for a trial court to refuse a defense-proffered stipulation to the fact of defendant's being a convicted felon so that the jury would not be exposed to the specific nature of that earlier conviction, Fryer's current counsel urges that the situation in this case--despite Fryer's having been acquitted on Count Seven itself--involved constitutionally inadequate representation by trial counsel Agran because the jury's having gained knowledge of the nature of Fryer's prior conviction assertedly tainted its consideration of the other counts. It should ...

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