United States of America v. Kirklin

Filing 15

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 5/10/2016: For the foregoing reasons, the Court directs the Clerk to enter judgment dismissing defendant Tyrone Kirklin's motion under 28 U.S.C. § 2255. The Court issues a certificate of appealability on defendant's ineffective assistance claim regarding trial counsel's failure to raise the Alleyne issue regarding the "brandishing" enhancement. The Court declines to issue a certificate of appealability on defendant's remaining claims, because it can find nothing to suggest that the merits of those claims are debatable, capable of different resolution, or deserving of further consideration. See 28 U.S.C. §2253(c)(2); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); Porter v. Gramley, 121 F.3d 1308, 1312 (7th Cir. 1997). Mailed notice. (pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
vs.
TYRONE KIRKLIN

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)
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Case No. 15 C 9537

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In January 2011, Tyrone Kirklin was charged with aiding and abetting an armed
bank robbery in violation of 18 U.S.C. §§ 2113 and 2 (count one) and aiding and
abetting the use and carrying of a firearm during and in relation to that robbery in
violation of 18 U.S.C. § 924(c)(1)(A) (count two). A jury convicted Kirklin on both counts
after a three-day trial in August 2011, and in July 2012 the Court sentenced him to
consecutive prison terms of eighty-seven months on count one and eighty-four months
on count two.
On appeal, Kirklin challenged his conviction on the ground that the Court
inadequately instructed the jury as to aiding and abetting. He also challenged his
sentence on the ground that the seven-year mandatory minimum under 18 U.S.C.
§ 924(c)(1)(A)(ii) should not have been imposed in the absence of a jury finding that his
accomplices brandished a firearm during the robbery. The court of appeals affirmed the
conviction and sentence. United States v. Kirklin, 727 F.3d 711 (7th Cir. 2013).
Kirklin has filed a pro se motion under 28 U.S.C. § 2255. He contends that his
trial counsel rendered ineffective assistance in three ways: by failing to object to the
sentencing enhancement under section 924(c)(1)(A)(ii), by declining to issue subpoenas

to businesses neighboring the robbed bank requesting video footage from security
cameras they might operate, and by failing to cross-examine a government witness or
call an accomplice to testify. Kirklin also argues that the government's attorneys
committed prosecutorial misconduct by "vouching for" and introducing the testimony of
another accomplice despite knowing that she had previously given contradictory
statements to law enforcement. Finally, Kirklin seeks relief under section 2255 based
on his actual innocence.
For the reasons stated below, the Court overrules Kirklin's claims and denies his
motion under section 2255.
Background
A grand jury indicted Kirklin on charges that he aided and abetted an armed bank
robbery and aided and abetted the use and carrying of a firearm during and in relation
to that robbery. At trial, the government introduced evidence and testimony to show
that on a morning in November 2010, Kirklin approached his friend, Tiffany Jones, to
recruit her to help him rob a bank. Jones testified at trial that she agreed to participate
after Kirklin showed her a TEC-9 semi-automatic firearm and a .38 caliber revolver that
he had stashed in his van. According to Jones, Kirklin drove her in his van to pick up
his cousin, Justice McCallister, and the three of them made their way to the bank.
On the way to the bank, the evidence showed, the trio discussed their plan for
the robbery. Kirklin instructed Jones to stand guard in the lobby and prevent customers
from entering or exiting the bank while McCallister found a way into the bank's vault.
Kirklin also told Jones that one advantage of using his revolver was that it would not
leave shell casings if she fired it.

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The government called as a witness the bank's fraud investigator, James Seidl,
who explained security footage from video cameras inside and outside the bank that
captured scenes from the robbery. The video showed Jones carrying the TEC-9 and
.38 caliber revolver and McCallister carrying his own firearm. Holding both of Kirklin's
firearms, Jones prevented customers from leaving the bank while McCallister forced
tellers to fill a backpack with the cash in their drawers.
The government also introduced testimony from a bank teller and a customer
who were present during the robbery. Both of these witnesses testified that Jones and
McCallister brandished their firearms during the robbery. When one customer
attempted to escape the bank, Jones put a gun to the back of her neck and forced her
back into the bank's lobby. After McCallister had collected the money from the tellers
and ordered the customers into the bank's vault, Jones and McCallister departed.
Police arrested both of them shortly thereafter, near the bank. According to Kirklin,
McCallister gave two statements to police, one denying knowledge of Kirklin's
involvement in the robbery and the other implicating Kirklin. McCallister did not testify at
trial, and the jury did not hear about either of these statements. Jones implicated Kirklin
in a post-arrest statement and testified both before the grand jury and at Kirklin's trial.
At the end of a three-day jury trial, Kirklin was convicted on both counts. The
presentence investigation report recommended a seven-year sentence on count two
due to the mandatory minimum sentence for cases in which a firearm is "brandished."
See 18 U.S.C. § 924(c)(1)(A)(ii). Kirklin did not object to this recommendation or to the
Court (rather than the jury) determining whether brandishing had occurred; indeed,
then-controlling Supreme Court precedent provided that it was not error for a judge to

3

make the necessary finding on the issue of brandishing rather than a jury. See Harris v.
United States, 536 U.S. 545 (1986). The Court determined at sentencing that the
evidence supported a finding of brandishing because Kirklin was willing to have other
people brandish guns on his behalf and guns were in fact brandished. The Court
accordingly sentenced Kirklin to consecutive prison terms of eighty-four months (seven
years) on count two and eighty-seven months on count one.
Kirklin challenged his conviction and his sentence before the Seventh Circuit. He
argued that his conviction should be vacated because the Court gave inadequate
instructions to the jury concerning aiding and abetting the use and carrying of a firearm
during a robbery. He also argued that the appellate court should remand his case for
resentencing because it was improper for this Court to impose a higher mandatory
minimum based on a judicial finding that brandishing had occurred. To apply a higher
mandatory minimum, Kirklin argued, a jury should have been required to find
brandishing beyond a reasonable doubt.
This latter argument mirrored one that had been recently made before the
Supreme Court of the United States. In Alleyne v. United States, 133 S. Ct. 2151
(2013), the defendant was convicted of robbery affecting interstate commerce under 18
U.S.C. § 1951(a) and using or carrying a firearm in relation to a crime of violence under
18 U.S.C. § 924(c)(1)(A). The defendant objected to the presentence report's
recommendation of a seven-year sentence on the section 924(c) count based on the
mandatory minimum for brandishing a firearm under section 924(c)(1)(A)(ii). He argued
that because the jury had not found brandishing beyond a reasonable doubt, he could
be subjected only to the five-year mandatory minimum for "us[ing] or carr[ying] a

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firearm" under section 924(c)(1)(A)(i). After Kirklin's case had been submitted to the
Seventh Circuit but before the court made its decision, the Supreme Court issued its
opinion in Alleyne, overturning Harris and holding that "[a]ny fact that, by law, increases
the penalty for a crime is an 'element' that must be submitted to the jury and found
beyond a reasonable doubt." Alleyne, 133 S. Ct. at 2154. The Supreme Court vacated
the Fourth Circuit's judgment with respect to the defendant's sentence and remanded
the case for resentencing.
Two months later, the Seventh Circuit decided Kirklin's appeal. First, it rejected
Kirklin's challenge to his conviction. Noting that Kirklin affirmatively agreed to the jury
instructions even when asked for comments or objections, the court found that he had
waived the argument that the jury instructions were inadequate. The court also held
that "even if Kirklin's objection was only forfeited instead of waived, we are not
persuaded that the instructions on the § 924(c) charge in Count 2 were vague or
misleading." Kirklin, 727 F.3d at 716.
The Seventh Circuit also found Kirklin's sentencing challenge forfeited due to his
failure to raise the issue in the district court, and it therefore reviewed Kirklin's sentence
for plain error. In light of the Supreme Court's decision in Alleyne, the government
conceded and the Seventh Circuit concluded that this Court committed plain error by
imposing the seven-year mandatory minimum on count two even though the jury was
not asked to find brandishing beyond a reasonable doubt. Observing that correcting an
error not raised at trial requires an appellate court to find both that the error was plain
and that it affected the appellant's substantial rights, the Seventh Circuit affirmed this
Court's sentence. It did so because it concluded that the Court's sentencing error did

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not affect the fairness, integrity, or public reputation of the proceedings "given the
significant amount of evidence of brandishing a firearm in the record." Id. at 719.
Kirklin's timely motion to vacate, set aside, or correct his sentence followed.
Discussion
Section 2255 permits a defendant to move the trial court to vacate, set aside or
correct the sentence if it was "imposed in violation of the Constitution . . . ." 28 U.S.C.
§ 2255(a). Kirklin seeks relief under section 2255 on three grounds. First, he contends
that his counsel rendered ineffective assistance in violation of the Sixth Amendment,
which entitles a defendant to assistance by a "reasonably competent attorney."
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Second, he argues that the
government's attorneys engaged in prosecutorial misconduct that deprived him of his
constitutional right to a fair trial. Third, Kirklin argues that his conviction constitutes a
fundamental miscarriage of justice due to his actual innocence.
A.

Ineffective assistance of counsel
Kirklin contends that he received ineffective assistance from his trial counsel in

three ways. First, he argues that trial counsel failed him by not objecting to the
presentencing report's recommendation of a seven-year mandatory minimum for
brandishing, which led the appellate court to apply a highly deferential standard of
review when he raised the issue on appeal. Kirklin says that had counsel raised the
issue at sentencing, a more demanding standard of review would have led the Seventh
Circuit to remand for resentencing. Second, he argues that trial counsel rendered
ineffective assistance by failing to issue subpoenas to businesses near the robbed bank
requesting security camera footage from any cameras they might have had pointed in

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the bank's direction. Third, Kirklin claims that trial counsel was ineffective because he
should have cross-examined Seidl and should have called McCallister to testify when
the government chose not to do so.
The Seventh Circuit noted in a footnote in its decision in this case that "a claim
must be advanced, if it is to be preserved, even when all precedent is contrary,
otherwise [the appellate court] can only review for plain error." Kirklin, 727 F.3d at 717
n.2 (internal quotation marks omitted). Kirklin points to this footnote as support for his
argument that his attorney rendered ineffective assistance at his sentencing by failing to
argue that a jury needed to find brandishing beyond a reasonable doubt before the
Court could impose a seven-year mandatory minimum sentence. He argues that his
attorney should have known the longstanding, well-known rule about preserving
objections, the failure to abide by which led the Seventh Circuit to review only for plain
error. Kirklin contends that had it been able to apply a less deferential standard of
review, the Seventh Circuit would have remanded for resentencing just as the Supreme
Court instructed the Fourth Circuit to do in Alleyne.
"The Sixth Amendment to the United States Constitution guarantees the accused
in a criminal case the right to the effective assistance of counsel." Vinyard v. United
States, 804 F.3d 1218, 1224 (7th Cir. 2015). Under the rule set forth in Strickland, a
petitioner may prevail on a claim of ineffective assistance of counsel if he shows "that
counsel's representation fell below an objective standard of reasonableness" and "that
the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 688.
The Court questions whether Kirklin can show that he was prejudiced by
counsel's failure to argue this point. Many circuits have recognized that Alleyne is an

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extension of the Apprendi doctrine, under which appellate courts review unpreserved
errors for plain error and preserved errors for harmless error. See, e.g., United States
v. Lewis, 802 F.3d 449, 454 (3d Cir. 2015) (noting that the same standards of review
apply to Alleyne and Apprendi errors); United States v. Harakaly, 734 F.3d 88, 94 (1st
Cir. 2013) (same); cf. Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013)
("Alleyne is an extension of Apprendi . . . ."); Kirklin, 727 F.3d at 717 (applying plain
error review to an unpreserved sentencing error). Thus, to show prejudice, Kirklin must
demonstrate that had he properly preserved his challenge, the Seventh Circuit would
have found that the sentencing error was not harmless.
The government responds that the Seventh Circuit already rejected Kirklin's
prejudice argument when it "found that the failure to submit the § 924(c) enhancement
to the jury was plain error which affected his substantial rights, but which was not a
miscarriage of justice." Gov.'s Resp., dkt. no. 9, at 6. The government's argument is
essentially that the Seventh Circuit finding of no miscarriage of justice signals that the
error below would be deemed harmless if subject to such standard of review.
The Seventh Circuit has not dealt directly with whether there is a difference
between an Alleyne error that was raised in the appropriate way but is harmless and an
Alleyne error that was not raised and thus is reviewed for plain error and is found not to
have resulted in a miscarriage of justice. The court has, however, confronted this issue
in the context of Apprendi errors. In United States v. Mansoori, 480 F.3d 514 (7th Cir.
2007), the court held:
[T]he relevant inquiry on harmlessness review in Apprendi cases is the
same inquiry posed on plain error review. As we observed in [United
States v. Nance, 236 F.3d 820 (7th Cir. 2000)], [w]hether or not we are
applying the stringent plain error screen, the Apprendi error . . . requires
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us to ask whether it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty beyond a reasonable doubt. The
key distinction between the harmless error and plain error analyses lies in
the assignment of the burden of persuasion—in plain error cases, it is the
defendant's burden to prove that the error was prejudicial, whereas in
harmless error cases it is the government's burden to prove that the error
was not prejudicial. In either case, however, an appeals court is looking to
the same record and engaging in the same basic inquiry to determine
whether the error affected the outcome below and in that sense prejudiced
the defendant.
Mansoori, 480 F.3d at 523 (internal citations and quotation marks omitted). It is
reasonable to believe that the Seventh Circuit would take the same approach in
considering Alleyne errors that it has taken in considering Apprendi errors. Under this
approach, Kirklin cannot show prejudice from his lawyer's failure to assert the issue at
trial, because the Seventh Circuit has already "engaged in the same analysis of the
evidence that [it] would have engaged in had [it] determined that [the defendant] . . . had
properly preserved" the argument. Id. at 524.
Other courts of appeal have offered divergent views on whether an Alleyne error
like this one is harmless where, as the appellate court held here, the evidence was so
overwhelming that a jury would certainly have found the relevant fact beyond a
reasonable doubt. In Lewis, the Third Circuit, sitting en banc, confronted a case similar
to Kirklin's. There, as here, a defendant was convicted of knowingly using and carrying,
and aiding and abetting in the use and carrying of, a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c). Like Kirklin, the defendant was not
indicted for brandishing. The jury was not instructed to, and did not, consider whether
the defendant brandished the firearm. Unlike Kirklin, however, the defendant in Lewis
objected at sentencing that imposing a seven-year mandatory minimum under section
924(c)(1)(A)(ii) rather than the five-year mandatory minimum under section
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924(c)(1)(A)(i) violated his rights under the Apprendi doctrine. The judge overruled the
defendant's objection and he lost on appeal, but the Supreme Court granted his petition
for a writ of certiorari and remanded the case when the Court issued its decision in
Alleyne. On remand, a panel of the Third Circuit held that "in light of the overwhelming
and uncontroverted evidence in support of the brandishing element that, had the jury
been properly instructed on that element, it would have found that element beyond a
reasonable doubt. . . . Any resulting error was therefore harmless." United States v.
Lewis, 766 F.3d 255, 271 (3d Cir. 2014) (internal quotation marks omitted).
Sitting en banc, the Third Circuit vacated the panel's opinion in Lewis and
remanded the case for resentencing. Applying the harmless error standard, the court
determined that because the Alleyne error did not involve a faulty indictment or a trial
error but instead was a pure sentencing error, "[l]ooking back to the trial record would
run directly contrary to the essence of Apprendi and Alleyne." Lewis, 802 F.3d at 456.
The court explained: "The motivating principle behind Apprendi and Alleyne is that
judges must not decide facts that change the mandatory maximum or minimum; juries
must do so. If we affirm because the evidence is overwhelming, then we are performing
the very task that Apprendi and Alleyne instruct judges not to perform." Id. Because
there was no indication that the district judge had imposed more than the five-year
mandatory minimum under section 924(c)(1)(A)(i) for any other reason than to meet the
seven-year mandatory minimum under section 924(c)(1)(A)(ii), the court remanded the
case for resentencing. Id. at 457–58.
The First Circuit responded differently in a similar case. In United States v.
McIvery, 806 F.3d 645 (1st Cir. 2015), the defendant pled guilty to one count of

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conspiracy to possess crack cocaine with intent to distribute and two counts of
possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and 846. Id. at 647. The indictment did not specify the precise amounts involved, and
the defendant did not admit to the specific quantities involved, though the government
specified quantities involved during the change-of-plea hearing. Id. at 648. Prior to his
sentencing, the defendant challenged the applicability of a mandatory minimum
sentence based on the quantity of crack cocaine possessed, on the ground that
attributing a particular amount to trigger the statutory mandatory minimum "would entail
the use of a fact not charged in the indictment." Id. The district court rejected the
defendant's argument because it was foreclosed by Harris, and it applied the statutory
mandatory minimum. The Supreme Court decided Alleyne while the case was pending
on appeal.
In contrast to the Third Circuit—and acknowledging that its holding was directly
contradictory to its sister circuit's—the First Circuit affirmed the district court's judgment.
Applying a harmless error standard, the court observed:
The district court accurately described the evidence of the defendant's
guilt as "overwhelming," and the evidence that the offense conduct
involved twenty-eight grams or more of crack cocaine is uncontested. . . .
On this record, a reasonable jury could not have found that the defendant
was responsible for less than the requisite drug quantity.
Id. at 651. Accordingly, the First Circuit found the district court's error harmless beyond
a reasonable doubt.
The Court cannot say with complete certainty whether the Seventh Circuit, had it
applied a harmless error standard rather than a plain error standard, would have
remanded Kirklin's case for resentencing in light of Alleyne. Under the First Circuit's

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approach, as under the Seventh Circuit's approach to Apprendi errors, the court likely
would have come to the same conclusion it reached applying the plain error standard.
After all, the uncontroverted testimonial and video evidence established that Jones and
McCallister brandished firearms during the commission of the robbery, using them to
threaten bank customers. Had it followed the Third Circuit's approach, however, the
Seventh Circuit likely would not have found Kirklin's sentencing error harmless, for the
relevant inquiry would be "whether [defendant's] sentence would have been different
had he been sentenced for using or carrying, rather than brandishing." Lewis, 802 F.3d
at 458.
The Court need not determine definitively whether Kirklin was actually prejudiced
by his counsel's failure to preserve the Alleyne error. If a section 2255 petitioner fails to
show that one component of the Strickland test has been satisfied, a court may reject
the claim without considering the other. Pole v. Randolph, 570 F.3d 922, 940 (7th Cir.
2009) (citing Strickland, 466 U.S. at 697, and Pearson v. Callahan, 555 U.S. 223, 241
(2009)). In light of the well-established rule that "[t]he Sixth Amendment does not
require counsel to forecast changes or advances in the law," Valenzuela v. United
States, 261 F.3d 694, 700 (7th Cir. 2001), counsel's failure to preserve an argument
against the continued vitality of Supreme Court precedent is not considered to be
objectively substandard. See also Walker v. United States, 810 F.3d 568 (8th Cir.
2015) (failure to assert Alleyne-type issue less than a year before Alleyne was decided
did not constitute ineffective assistance).
Kirklin's other ineffective assistance claims also fail to satisfy the Strickland test.
As the Seventh Circuit recently reiterated:

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To satisfy the deficient performance prong, a petitioner must show that the
representation his attorney provided fell below an objective standard of
reasonableness. A court's scrutiny of an attorney's performance is highly
deferential to eliminate as much as possible the distorting effects of
hindsight, and we must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance.
Under these standards, strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.
Vinyard, 804 F.3d at 1226 (internal citations and quotation marks omitted). Kirklin
contends that trial counsel should have subpoenaed businesses neighboring the robbed
bank to request security footage to show that he was not at the scene of the crime,
should have cross-examined Seidl about the bank's security camera footage, and
should have called McCallister to testify to undermine Jones's testimony. The
government responds that these were strategic decisions that were reasonably made
after thorough investigation and that they had no prejudicial impact on Kirklin's defense.
Kirklin's argument regarding the security camera footage seems to be that his
attorney did not thoroughly investigate before determining that he would not subpoena
local businesses. This might also be Kirklin's argument as to his attorney's failure to call
McCallister and cross-examine Seidl, though it is not clear from his submissions
whether he alleges his counsel did not conduct a thorough investigation. An attorney's
"decision to call or not to call a witness is typically not subject to review. The
Constitution does not oblige counsel to present each and every witness that is
suggested to him." United States v. Best, 426 426 F.3d 937, 945–46 (7th Cir. 2005);
see United States v. Berg, 714 F.3d 490 (7th Cir. 2013). But "although [courts] defer to
strategic decisions, [they] must first assure [them]selves that a strategic decision was
made, because the consequences of inattention rather than reasoned strategic

13

decisions are not entitled to the presumption of reasonableness." Carter v. Duncan, No.
13-2243, 2016 WL 1237794, *9 (7th Cir. Mar. 30, 2016).
Even if his counsel made no investigation regarding any of this potential
evidence and testimony, Kirklin was not prejudiced by counsel's decision not to present
it. First, Kirklin has not given the Court any reason to believe that neighboring buildings
had security cameras, let alone footage that would have depicted anything relevant.
Just as importantly, this evidence would have had little probative value; Kirklin argues
not that photographic or video evidence would have placed him elsewhere or otherwise
exonerated him, but rather that video cameras near the scene did not picture him or his
vehicle. Second, cross-examining Seidl to make it clearer to the jury that none of the
bank's security footage showed Kirklin at the scene of the crime would not have
meaningfully benefitted his defense; testimony by Seidl that simply repeated what the
jury had seen or could see on the video would have added nothing of substance. Third,
by Kirklin's own account, McCallister was no less tainted a potential witness than Jones,
having given contradictory statements in the past himself. Cf. Carter, 2016 WL
1237794, at *13 (noting that failing to call a nonbiased witness where his testimony
would potentially contradict a biased witness's testimony might prejudice the defendant);
Montgomery v. Petersen, 846 F.2d 407, 414 (7th Cir. 1988) ("Every one of the[]
witnesses had a reason to be biased. Given the standoff between two factions in this
family, one group supporting [one person] and the other group supporting the petitioner,
independent corroboration by a neutral, disinterested witness would perforce be
extremely significant."). There is no basis in the record to believe that counsel's failure
to call McCallister to testify prejudiced Kirklin's defense.

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To the extent Kirklin argues that his trial counsel reasonably investigated his
possible defenses but made strategic decisions not to present certain evidence, his
ineffective assistance claim fails the first part of the Strickland test. See United States
v. Berg, 714 F.3d 490 (7th Cir. 2013). To the extent he argues trial counsel failed to
reasonably investigate possible defenses, Kirklin has failed to show prejudice because
he has not plausibly alleged that the testimony and evidence he believes should have
been presented would have affected the outcome of his case.
For these reasons, the Court overrules Kirklin's ineffective assistance claims.
B.

Prosecutorial misconduct
In the first statement Jones gave to law enforcement in the wake of the robbery,

she claimed that she and McCallister were responsible for the crime. When she was
interviewed again, this time represented by counsel, she implicated Kirklin. Jones then
testified against Kirklin before the grand jury and again at his trial. Kirklin now contends
that his conviction should be vacated because the government's attorneys engaged in
prosecutorial misconduct by suborning perjury when they called Jones to testify and
elicited testimony that contradicted the statement she initially gave to law enforcement.
Relief under section 2255 is available only if the trial court has committed "an
error which is [either] jurisdictional [or] constitutional. It [must be] a fundamental defect
which inherently results in a complete miscarriage of justice . . . ." Hill v. United States,
368 U.S. 424, 427 (1962). A motion under section 2255 is not a substitute for direct
appeal, and "[a] claim cannot be raised for the first time in a § 2255 motion if it could
have been raised at trial or on direct appeal." McCoy v. United States, 815 F.3d 292,
295 (7th Cir. 2016). Claims not raised at trial or on direct appeal are procedurally

15

defaulted and may be brought only if the prisoner "shows both cause and prejudice for
the default." Id.; Hale v. United States, 710 F.3d 711, 713 (7th Cir. 2013). "Absent a
showing of both cause and prejudice, procedural default will only be excused if the
prisoner can demonstrate that he is actually innocent of the crimes of which he was
convicted." McCoy, 815 F.3d at 295; Torzala v. United States, 545 F.3d 517, 522 (7th
Cir. 2008).
Kirklin did not argue on direct appeal that the government's attorneys engaged in
prosecutorial misconduct, and he has not shown cause or prejudice for defaulting on
this issue. In his reply memorandum, Kirklin argues that his procedural default should
be excused because he is actually innocent of the crime for which he has been
convicted. "In federal habeas law, the actual innocence exception is one application of
the broader 'fundamental miscarriage of justice' exception to procedural default
intended to ensure that 'federal constitutional errors do not result in the incarceration of
innocent persons.'" Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015). Because
"[t]he actual innocence gateway is narrow," however, procedural default can be excused
on actual innocence grounds only if the defendant "presents evidence not previously
considered." Id. at 896. He must "present[] evidence of innocence so strong that a
court cannot have confidence in the outcome of the trial unless the court is also satisfied
that the trial was free of nonharmless error." Schlup v. Delo, 513 U.S. 298, 316 (1995).
The type of evidence a petitioner can present to advance an actual innocence
claim can take the form of any "new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Id.
at 324. When such evidence is presented, a court considers "the total record—'all the

16

evidence, old and new, incriminatory and exculpatory'—and makes 'a probabilistic
determination about what reasonable, properly instructed jurors would do." Gladney,
799 F.3d at 896 (quoting House v. Bell, 547 U.S. 518, 538 (2006)); Coleman v. Lemke,
739 F.3d 342, 349 (7th Cir. 2014). But Kirklin has offered no new evidence whatsoever.
Instead, he argues that he is innocent and that it was improper for the government to
offer the testimony of a witness (Jones) who had made prior inconsistent statements.
These are propositions that were available to Kirklin at trial, and the latter point, at least,
was made clear to the jury when Kirklin's counsel cross-examined Jones. "Without any
new evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not itself sufficient to establish a miscarriage of justice that
would allow a habeas court to reach the merits of a barred claim." Schlup, 513 U.S. at
316. Kirklin has procedurally defaulted on his claim of prosecutorial misconduct, and he
has not shown any reason his default should be excused. The Court therefore
dismisses this claim.
C.

Actual innocence
Finally, Kirklin asserts his actual innocence as a separate claim for relief. As

explained above, Kirklin's failure to point to any new evidence is fatal to any actual
innocence claim. Id. Read closely, however, Kirklin's stand-alone actual innocence
claim is in fact an insufficiency of the evidence claim. Kirklin argues that his conviction
should be vacated because the government did not present witnesses who
corroborated Jones's testimony, Kirklin's fingerprints were not found on any of the items
used in the robbery, and no testimony definitively placed him at the scene of the crime.
Without such evidence and testimony, he appears to argue, a reasonable jury could not

17

convict him.
Even construed this way, this claim must be dismissed. Like his prosecutorial
misconduct claim, an insufficiency of the evidence claim was available to Kirklin on
direct appeal, and he did not make it. He has not shown cause or prejudice for his
failure to raise this argument on appeal, so he has procedurally defaulted on this claim.
And because he has not offered any new evidence to show he is actually innocent of
the crimes for which he was convicted, the Court cannot excuse his default. Whether
construed as a challenge based on actual innocence or on insufficiency of the evidence,
Kirklin's last claim must be dismissed.
Conclusion
For the foregoing reasons, the Court directs the Clerk to enter judgment
dismissing defendant Tyrone Kirklin's motion under 28 U.S.C. § 2255. The Court issues
a certificate of appealability on defendant's ineffective assistance claim regarding trial
counsel's failure to raise the Alleyne issue regarding the "brandishing" enhancement.
The Court declines to issue a certificate of appealability on defendant's remaining
claims, because it can find nothing to suggest that the merits of those claims are
debatable, capable of different resolution, or deserving of further consideration. See 28
U.S.C. §2253(c)(2); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); Porter v.
Gramley, 121 F.3d 1308, 1312 (7th Cir. 1997).

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: May 10, 2016

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