United States of America v. Ballentine

Filing 11

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 8/28/2017: For the foregoing reasons, the Court denies Ballentine's motion to vacate under 28 U.S.C. § 2255 [dkt. no. 1] as well as his motion to appoint counse l [dkt. no. 6]. The Clerk is directed to enter judgment in favor of the United States. The Court issues a certificate of appealability (COA) with regard to the claim of ineffective assistance of counsel but declines to issue a COA with regard to the claim regarding sufficiency of the evidence. Mailed notice. (pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

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Respondent,
vs.
WARREN BALLENTINE,
Movant.

Case No. 17 C 2271

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Warren Ballentine was convicted in 2014 of mail fraud, wire fraud, financial
institution fraud, and making false statements to financial institutions. He has moved
under 28 U.S.C. § 2255 to set aside his conviction and sentence. Ballentine claims that
he received ineffective assistance of counsel because, at some point after trial, one of
his attorneys announced that he had been diagnosed with Alzheimer's disease. He also
claims that the evidence at trial was insufficient to support a guilty verdict. For the
reasons stated below, the Court denies Ballentine's motion.
Background
In January 2013, Ballentine was charged in a six-count indictment with mail
fraud, wire fraud, financial institution fraud, and making false statements to financial
institutions, all based on allegations of involvement in a mortgage fraud scheme. The
indictment alleged that Bobbie Brown and Wanda Rivera-Burton recruited borrowers to
submit fraudulent loan applications in connection with the purchase of property. The

buyers falsely indicated in their applications that they intended to occupy the properties.
The indictment alleged that Ballentine, an attorney, represented these buyers at the
closings knowing that the loan documents contained misrepresentations.
A jury trial on the charges against Ballentine took place in October 2014.
Ballentine was represented by attorneys Charles J. Ogletree, Jr. and Lewis Myers, Jr.
The evidence at trial focused on the purchase of three properties: 1506 S. Spaulding
Avenue, 4822 S. Summerhill Drive, and 912 W. 86th Place. The government's case
relied primarily on testimony from Marilyn Claiborne, who fraudulently purchased the
Spaulding property; Lynn Cox, who originated Claiborne's loan knowing her loan
application contained false information; Wanda Rivera-Burton, the organizer of the
scheme to purchase the Summerhill and 86th Place properties; and Dina Dunn, who
purchased these two properties. Ogletree and Myers split up the cross-examinations of
these and other witnesses. Ballentine was convicted on all counts on October 24, 2014.
In July 2015, the Court sentenced Ballentine to one day imprisonment followed by three
years of supervised release.
Ballentine then filed a notice of appeal. In December 2015, the Seventh Circuit
appointed appellate counsel. Appellate counsel filed an Anders brief in June 2016 in
which she concluded that any challenge to Ballentine's conviction based on the
sufficiency of the evidence at trial would be frivolous. The Seventh Circuit granted
Ballentine until July 15, 2016 to file a response to the brief. Ballentine did not file a
response. On December 22, 2016, the court ruled that counsel had "properly
conclude[d] that it would be frivolous to challenge the sufficiency of the evidence" based
on the testimony at trial and dismissed the appeal. United States v. Ballentine, 673 F.

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App'x 554, 556 (7th Cir. 2016).
In July 2016, Ogletree announced that he had been diagnosed with Alzheimer's
disease.
Discussion
In March 2017, Ballentine filed the current motion under 28 U.S.C. § 2255 to
vacate, correct, or set aside his sentence. After the government filed its response in
April 2017, Ballentine asked the Court to appoint counsel to help him file a reply. The
Court deferred ruling on this motion until briefing was completed. See dkt. no. 9.
Ballentine filed a pro se response in June 2017.
A.

Motion to appoint counsel
The Court denies Ballentine's motion to appoint counsel. As discussed below,

the record is sufficiently developed for the Court to resolve Ballentine's ineffective
assistance claim. And his argument based on sufficiency of the evidence is
procedurally barred and therefore does not require the assistance of counsel. Because
Ballentine's claims are straightforward, the Court declines to appoint counsel. See
Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 1992); Pruitt v. Mote, 503 F.3d
647, 657 (7th Cir. 2007) ("[D]ue process does not require appointment of counsel for
indigent prisoners pursuing . . . federal habeas relief.").
B.

Motion to vacate sentence
Ballentine brings this motion under 28 U.S.C. § 2255, which authorizes a court to

vacate, set aside, or correct a sentence imposed in violation of the laws of the United
States or otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Relief is
appropriate "only for an error of law that is jurisdictional, constitutional, or constitutes a

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fundamental defect which inherently results in a complete miscarriage of justice." Harris
v. United States, 366 F.3d 592, 594 (7th Cir. 2004). Ballentine argues that he is entitled
to relief under section 2255 on two grounds. First, he contends that he received
ineffective assistance of counsel in violation of the Sixth Amendment because Ogletree
was suffering from Alzheimer's disease during the trial and, as a result, failed to
adequately cross-examine the government's witnesses. Mot. to Re-Open Appeal and/or
Grant a New Trial at 1–2. He also argues that the evidence at trial was insufficient to
support his conviction. Id. at 2–3.
1.

Ineffective assistance of counsel

"The Sixth Amendment's right to the effective assistance of counsel provides §
2255 relief when counsel's performance was objectively deficient—in other words, that it
fell outside the wide range of competent representation—and [ ] the defendant was
prejudiced by the subpar representation." Swanson v. United States, 692 F.3d 708, 714
(7th Cir. 2012) (internal quotation marks omitted). There is a presumption that counsel's
conduct falls within the range of reasonable professional assistance. Id. In limited
circumstances, counsel's conduct can give rise to a per se violation of the Sixth
Amendment right to counsel. This occurs when counsel is not present at all or at critical
stages; fails completely to cross-examine or subject the opposing case to the
adversarial process; has an actual conflict of interest; or fails to file a requested appeal.
Cole v. United States, 162 F.3d 957, 958 (7th Cir. 1998) (citing United States v. Cronic,
466 U.S. 648, 658–61 (1984)). Otherwise, the defendant must affirmatively
demonstrate counsel's objectively deficient performance and the resulting prejudice.
See United States ex rel. McCall v. O'Grady, 908 F.2d 170, 172 (7th Cir. 1990) (where

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per se rule does not apply, defendant must show that counsel's performance was
adversely affected).
To the extent that Ballentine contends that Ogletree's Alzheimer's diagnosis
gives rise to a per se violation of the Sixth Amendment, the Court disagrees. The
Seventh Circuit has indicated that the per se rule should be applied "only when it will
achieve the correct result in almost all cases." Jackson v. United States, No. 93-3782,
1994 WL 375427, *2 (7th Cir. July 18, 1994). In Jackson, the Seventh Circuit held that
counsel's alleged drug use during trial did not constitute a per se violation because
defendant failed to show that counsel's performance "was so deficient that he had
constructively no counsel at all." Id. The same is true here. Ballentine has not
established that Ogletree's representation was so deficient as to amount to no
representation at all. Further, he has not offered any direct evidence that Ogletree was
suffering from the effects of Alzheimer's disease during the trial in October 2014, and
the Court is unwilling to make such an inference based on Ogletree's announcement of
his diagnosis twenty-one months later. In his reply, Ballentine lists symptoms from the
Mayo Clinic that he alleges Ogletree would have been suffering at the time of trial.
Def.'s Resp. to the DOJ on the 2255 Mot. at 2–3. But "because of the nature of
Alzheimer's disease and its varied manifestations in different individuals," this does not
establish what effects the disease actually had on Ogletree's cognitive ability at the trial.
Dows v. Wood, 211 F.3d 480, 485 (9th Cir. 2000). Thus Ogletree's Alzheimer's
diagnosis does not give rise to a per se violation of Ballentine's Sixth Amendment right.
Appellate courts in other circuits have similarly determined that an attorney's mental
illness does not qualify as a per se violation. See Dows, 211 F.3d at 485 (finding that

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counsel's Alzheimer's diagnosis was not a per se violation); Burdine v. Johnson, 262
F.3d 336, 395 (5th Cir. 2001) ("Prejudice has not been presumed for claims of denial of
effective-assistance due to counsel's alleged impairment because of alcohol, drug use,
or a mental condition."); Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir. 1992) ("[G]iven
the varying effects health problems can have on an individual's ability to function, claims
of ineffective assistance based on attorney illness are best suited to the fact-specific
prejudice inquiry mandated by Strickland.").
Ballentine also argues that Ogletree filed a motion to withdraw from the case "out
of the blue" on the eve of trial, which caused Myers to also request to withdraw. Def.'s
Resp. to the DOJ on the 2255 Mot. at 3. He contends that Ogletree "was aware that
something was wrong and thus was trying to get out of the case" and that no
"reasonable person suffering from a mental disease could be effective counsel at trial."
Id. But Ballentine's counsel moved to withdraw from the case on the eve of trial
because they contended that Ballentine refused to meet with them to prepare for trial.
The Court held a hearing on the motion to withdraw, at which Ballentine admitted that
he had not been answering phone calls from counsel. The Court ultimately denied the
motion to withdraw and ordered Ballentine to stay in Chicago to help prepare his
defense. There is no basis to believe that the motion to withdraw had anything to do
with Ogletree's eventual Alzheimer's diagnosis.
For these reasons, to succeed on his ineffective assistance claim, Ballentine
must demonstrate that Ogletree's performance was objectively deficient. Ballentine
argues that Ogletree failed to adequately cross-examine "the only government
witnesses who [the Court] said may have" demonstrated that he knew about the

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mortgage fraud scheme. Mot. to Re-Open Appeal and/or Grant a New Trial at 2. But
defense counsel split up the cross-examinations between two attorneys, with Ogletree
questioning three witnesses and Myers questioning five. Myers was responsible for
cross-examining a number of essential witnesses, including Marilyn Claiborne, who
acted as the buyer for the Spaulding property and testified that Ballentine attended the
closing and advised her to sign the owner occupancy affidavit even though he knew she
was not planning to live on the property. The Court never indicated that only the
witnesses cross-examined by Ogletree—Lynn Cox, Lakeisha Jakes, and Dina Dunn—
connected Ballentine to the fraud.
More importantly, Ballentine has failed to show that Ogletree's crossexaminations of these witnesses were constitutionally deficient. To do so, Ballentine
must explain "what [the witnesses'] responses to further cross-examination might have
revealed [and] how those responses might have affected the result" at trial. United
States v. Rodriguez, 53 F.3d 1439, 1449 (7th Cir. 1995). But Ballentine does not offer
any suggestions regarding what information the defense would have gained from more
extensive questioning of these witnesses. Further, the Court disagrees with Ballentine's
contention that during cross-examination "Ogletree appeared flustered and lost and in
fact only asked one witness one question." Mot. to Re-Open Appeal and/or Grant a
New Trial at 2. During Ogletree's cross-examination of Cox, who originated Claiborne's
loan and admitted knowledge of the scheme, he questioned her repeatedly regarding
her own false statements during the scheme. Cox admitted her involvement in the fraud
and that she received substantial kickbacks.
Ogletree used the same tactic in questioning Dunn, who purchased the

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properties on Summerhill Drive and 86th Place. He brought out that she had lied to a
former employer and when making statements to investigators regarding this case. He
also questioned her on Ballentine's involvement and brought out that she had never
directly told Ballentine that she was not going to live in the properties she was
purchasing.
To be sure, Myers's cross-examinations of the witnesses he questioned were
more vigorous and extensive than Ogletree's. But the record reflects that Ogletree
attacked the credibility of the witnesses in a reasonably effective way. "That the jury
ultimately believed the cumulative testimony of multiple government witnesses is not for
this Court to contradict." Hardamon v. United States, 319 F.3d 943, 950 (7th Cir. 2003).
Although Ogletree's questioning of Jakes was considerably shorter than his examination
of the other witnesses, Jakes was not a participant in the scheme and was used by the
government only to establish the materiality of the fraudulent representations on the
loan applications from the standpoint of the lender. Counsel is not ineffective where he
pursues "a clearly defined, strategic approach" that the jury later does not credit. United
States v. Trevino, 60 F.3d 333, 339 (7th Cir. 1995).
Finally, in response to the government's argument that he was not prejudiced by
any deficiencies in Ogletree's performance, Ballentine lists ways in which he asserts he
has been damaged. These include the loss of his career and income, the death of his
mother based on his inability to pay for a life-saving procedure, damage to his
reputation, and disruption of his bankruptcy petition. Def.'s Resp. to the DOJ on the
2255 Mot. at 3–4. Although these consequences of Ballentine's conviction are
unfortunate to say the least, they do not establish that Ballentine was prejudiced in the

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way Strickland requires—i.e., there is a reasonable possibility that the outcome of his
trial would have been different if Ogletree had performed differently at trial.
In sum, Ballentine has failed to demonstrate that Ogletree's performance at trial
constitutes ineffective assistance of counsel.
2.

Sufficiency of the evidence

Ballentine also argues that the evidence at trial was insufficient to support a guilty
verdict. He contends that there is no proof of his guilt because he did not meet or talk
with the buyers other than at closing and he did not handle any of the paperwork. Mot.
to Re-Open Appeal and/or Grant a New Trial at 2–3. Ballentine alleges that the Court
stated at sentencing that it had heard no evidence that he knowingly participated in the
scheme. Id. at 3.
Ballentine's characterization of the Court's statements at sentencing is incorrect.
The Court expressly stated that the government had met the requisite standard for
establishing Ballentine's knowledge of the fraud in connection with each of the three
purchases underlying his convictions. United States v. Ballentine, No. 13 CR 88, dkt.
no. 128 at 15:7–13. The government then asked to introduce evidence of other
fraudulent purchases that had not been proven at trial for use in the Court's
determination of the amount of loss and restitution. In response, the Court stated that
the government had failed to adequately prove Ballentine's knowledge of the fraud on
these other purchases. See id. at 5:21–5, 6:12–20, 9:13–19. This conclusion does not
alter or undermine the Court's determination that Ballentine was aware of and
participated in the fraud in connection with the purchases of property on Spaulding
Avenue, Summerhill Drive, and 86th Place.

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Further, Ballentine is barred from raising an argument based on the sufficiency of
the evidence in his motion under section 2255. The law prohibits raising in a motion
under section 2255 an issue that was "presented in a prior application." White v. United
States, 371 F.3d 900, 901 (7th Cir. 2004) (citing 18 U.S.C. § 2244(b)(1)). The Seventh
Circuit has indicated that the term "prior application" includes not only applications for
collateral relief under section 2255, but also claims presented on direct appeal. See
White, 371 F.3d at 902–03. Here, Ballentine effectively raised the issue of sufficiency of
the evidence on direct appeal. Following his conviction, he filed an appeal with the
Seventh Circuit and was appointed counsel. Counsel eventually filed in Anders brief, in
which she concluded that there was no non-frivolous basis for appeal, and more
specifically that Ballentine's sufficiency of the evidence argument was frivolous. The
Seventh Circuit gave Ballentine time to respond, and he failed to do so. The court then
ruled on the Anders motion, finding that appellate counsel had "properly conclude[d]
that the evidence, viewed in the light most favorable to the government, would enable a
rational jury to find each element of the charged offenses." Ballentine, 673 F. App'x at
556. In doing so, the court reviewed the testimony and evidence presented regarding
each transaction and determined that a challenge based on the sufficiency of the
evidence "would be frivolous." Id. The court granted counsel's motion to withdraw and
dismissed Ballentine's appeal. Id. at 557. This determination is a binding adjudication
that precludes Ballentine from raising the issue again in his section 2255 motion. White,
371 F.3d at 902–03.
Conclusion
For the foregoing reasons, the Court denies Ballentine's motion to vacate under

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28 U.S.C. § 2255 [dkt. no. 1] as well as his motion to appoint counsel [dkt. no. 6]. The
Clerk is directed to enter judgment in favor of the United States. The Court issues a
certificate of appealability (COA) with regard to the claim of ineffective assistance of
counsel but declines to issue a COA with regard to the claim regarding sufficiency of the
evidence.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 28, 2017

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