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Byron Blake v. United States of America

September 26, 2011


The opinion of the court was delivered by: Murphy, District Judge:


This matter is before the Court on Petitioner Byron Blake's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Mr. Blake's motion is based on claims of ineffective assistance of trial and appellate counsel. Generally, Mr. Blake contends that he was denied effective assistance of counsel due to a conflict of interest and that he was denied a speedy trial. The Government responded to Mr. Blake's motion as ordered by this Court, and Mr. Blake filed a reply and supplemental reply. For the reasons set forth below, Mr. Blake's § 2255 motion is denied.


In October 2006, Mr. Blake and co-defendant Ryan C. Ivory were indicted for conspiracy to distribute and possess with intent to distribute in excess of 50 grams of crack cocaine; they were arraigned on October 30, 2006, and a jury trial was set for January 9, 2007. At that time, the Court appointed the federal public defender to represent Mr. Blake for the arraignment only because Mr. Blake advised the Court that private counsel would be retained. The federal public defender was appointed to represent Ryan Ivory for all purposes. That same day, attorneys Frank R. Fabbri III and Nick A. Zotos entered their appearances on behalf of Mr. Blake.

Temporary custody transfer orders entered as to each defendant reflect that Ryan Ivory proffered on November 2, 2006, and Mr. Blake proffered on November 8, 2006. On December 15, 2006, Mr. Blake, through Attorney Fabbri, filed a motion to continue the trial date because he needed additional time to conference with Mr. Blake and investigate the alleged offenses. During the December 18, 2006, final pretrial conference, Mr. Blake addressed the Court directly to express his desire to go to trial on January 9, the original trial date -- effectively withdrawing the motion to continue.

On December 19, 2006, the Government filed an enhancement under 21 U.S.C. § 851(a) charging a prior controlled substance offense for which Mr. Blake had been convicted.

On December 20, 2006, the Government filed a motion to substitute Government counsel and a sealed motion asking the Court to conduct a hearing to determine whether an actual or potential conflict of interest existed in Attorney Fabbri's representation of Mr. Blake because Attorney Fabbri was under federal investigation for conduct unrelated to Mr. Blake's case. The next day, the Court granted the Government's motion to substitute counsel and set the sealed motion for hearing on December 28. The Court then appointed attorney Steven V. Stenger to represent Mr. Blake for the sealed motion hearing only.*fn1 During the sealed motion hearing on December 28, Attorney Fabbri moved to withdraw as counsel, and the law firm of Fabbri & Zotos was granted leave to withdraw. On Mr. Blake's request, the Court appointed Attorney Stenger to represent Mr. Blake for all purposes. Attorney Stenger advised the Court that he would be filing a written motion for bond pending trial, and a hearing on the anticipated motion was set for January 9, 2007 -- the original trial date -- and the trial date was removed from the calendar.

Also on December 28, Ryan Ivory entered a plea of guilty before the magistrate judge. Mr. Blake, through Attorney Stenger, filed his motion to reconsider the detention order and request for bond on January 8, 2007; the hearing was held on January 9 as scheduled. The Court granted Attorney Stenger's request for additional time to investigate new information that modified the earlier pretrial services report relating to a prior conviction and, consequently, took the motion for bond under advisement. During the hearing, Attorney Stenger read a letter authored by Mr. Blake complaining of the conflict of interest that existed between the original Government attorney assigned to the case, Ranley Killian, and his prior attorney, Frank Fabbri. The letter addressed the fact that Attorney Killian likely would be a witness in any criminal prosecution against Frank Fabbri and that none of these matters was disclosed to Mr. Blake until after the final pretrial conference and well after Mr. Blake proffered, on Attorney Fabbri's advice. Also during the hearing, the Court set Mr. Blake's jury trial to begin April 17, 2007. The Government inquired whether the Court's continuance of the trial date after allowing Attorney Fabbri to withdraw was based upon a finding that the ends of justice in granting the continuance outweighed Mr. Blake's and the public's interest in a speedy trial, such that the resulting delay would be excluded from the Speedy Trial Act calculation. The Court responded:

I'm not stating anything that everyone doesn't fully realize: There is a problem in this case. I don't know how it ultimately is resolved, but there is a problem. And I just don't know how the Court of Appeals will look at it, and I don't think there is anything that I could say now that would change that. . .

You saw the whole thing. And Fabbri said he wanted a continuance. His client jumped up and said he does not want a continuance and go to trial, and the next day I get a motion for the government to disqualify Mr. Fabbri because he had a conflict of interest.

So I'm not being -- I'm not at this time taking a position on what the legal ramifications of all that are. But this just isn't a simple matter where the judge comes in and makes the usual findings at the request of one party that it's in the interest of justice that the case be continued. I had gone -- as a matter of fact, I made some effort to accommodate the defendant's request for a trial. And once Fabbri, once he was disqualified, I mean, he didn't even contest the government's position. There is no way that I could ask another lawyer then to come in and do the case.

Now I'll say no more than this, which I have already said before: Apparently everyone was aware of this situation, but it was only when the defendant jumped up and said he wanted to go to trial in ten days that the motion comes. And the problem I have, there was another case I went through the same thing ten months ago and I just assumed that the matter had resolved itself one way or the other.

But it is what it is and I'll -- as the case develops and the motions are made I'll take it up. But I'm not going to try at this time to back up and change anything. .

I think the interesting thing about this case is that it was the government that moved to disqualify Fabbri. . How all that shakes out we'll just have to see. And I'm not prejudging anything. I really don't know the answer to these questions. (Crim. Case No. 06-30146-GPM, Doc. 57 at 46:2 through 48:15). Attorney Stenger filed supplemental papers pertaining to the updated pretrial services report on January 10, 2007, and the Government filed a response on January 11. On January 23, the Court denied Mr. ...

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