Farmer v. USA

Filing 16

MEMORANDUM AND ORDER, The Court GRANTS a certificate of appealability as to one specific issue and denies certificate of appealability as to all other issues. The Court DENIES Farmers § 2255 motion and DIRECTS the Clerk of Court to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 2/11/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANCHIE FARMER,
Petitioner,
v.

Civil No. 14-cv-694-JPG

UNITED STATES OF AMERICA,

Criminal No 11-cr-40073-JPG-001

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Franchie Farmer’s motion to vacate, set
aside or correct her sentence pursuant to 28 U.S.C. § 2255 (Docs. 1, 2 & 4). The Government has
responded to the motion (Doc. 14), and Farmer has replied to that response (Doc. 15).1
On June 14, 2012, a jury found Farmer guilty of one count of armed bank robbery in
violation of 18 U.S.C. § 2113(a) and (d) and one count of brandishing a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The robbery had occurred on November 6,
2008, at the Capaha Bank in Tamms, Illinois. The Government presented evidence that Farmer
had participated in the planning of the robbery with accomplices Holli Wrice and Richard
Anderson and that Farmer had driven Wrice and Anderson to the bank in her SUV and had waited
outside while Wrice and Anderson entered the bank, brandished firearms and removed money.
The Government also presented evidence that Farmer had written a note used in the bank robbery
before arriving at the bank, although fingerprints on the note were never identified as Farmer’s. A
1

Farmer advances in her reply brief several arguments she had not raised in her earlier briefing.
The Court disregards these arguments, which she could have and should have made in her original
briefing. It has long been established that arguments in support of a § 2255 motion that are raised
for the first time in a reply brief are waived. Wright v. United States, 139 F.3d 551, 553 (7th Cir.
1998). This rule holds true even if the movant is proceeding pro se. Id. This is because the
opposing party does not have an opportunity to respond to the new arguments in the reply brief.
Id.

substantial part of the Government’s evidence was data from cell phone towers that identified the
general locations of Farmer’s and Wrice’s cell phones around the time of the robbery. Farmer
testified in her own defense and denied that she had any connection to the bank robbery. She
claimed she had loaned Wrice her SUV and her cell phone on the day in question without knowing
they were going to rob a bank. The jury rejected Farmer’s defense and convicted her on both
counts under an aiding and abetting or coconspirator theory.
On September 13, 2012, the Court sentenced the petitioner to serve 141 months in prison.
The petitioner appealed her conviction to the United States Court of Appeals for the Seventh
Circuit, which on May 30, 2013, affirmed the Court’s judgment. See United States v. Farmer,
717 F.3d 559 (7th Cir. 2013). The petitioner did not seek a writ of certiorari from the Supreme
Court.
I.

§ 2255 Motion
In her § 2255 motion and its first supplement, the petitioner argues her counsel, Rodney

Holmes, was constitutionally ineffective in violation of her Sixth Amendment rights because he
failed to:
1.

investigate and call to testify Sharon Bauers, Lana Neal and Entwain
Johnson;

2.

adequately review the Government’s evidence with the petitioner in
preparation for trial;

3.

investigate juror misconduct through premature deliberations, request
alternate jurors be used and request a hearing on the matter;

4.

request a change of venue in light of the gallows near the courthouse and the
reputation of racism in the community in which the Court sits;

5.

object to FBI Special Agent Ron Bratcher’s testifying based on his
unprofessional conduct;
2

6.

maintain attorney-client confidentiality when he discussed the case with
others;

7.

object to prosecutorial misconduct;

8.

object to sentencing guideline offense level enhancements not supported by
a jury finding, see Alleyne v. United States, 133 S. Ct. 2151 (2013);

9.

object to a jury instruction that did not require the jury to find the petitioner
knew in time to withdraw from the conspiracy that her coconspirator would
be using a gun, see Rosemond v. United States, 134 S. Ct. 1240 (2014); and

10.

object to a jury instruction allowing a conviction for aiding and abetting
when the indictment did not include that theory of liability.

The petitioner also makes reference to numerous other alleged errors in a way that is too vague or
confusing to understand or respond to.
In a second supplement, Farmer clarified that Ground 8 was intended to be a direct
challenge to her sentence based on Alleyne, not an alleged instance of ineffective assistance of
counsel. She also added two new claims of ineffective assistance of counsel based on counsel’s
failure to:
11.

convey a plea offer in violation of Missouri v. Frye, 132 S. Ct. 1399 (2012);
and

12.

include a claim on appeal based on the lack of Farmer’s fingerprints on the
demand note used in the bank robbery.

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts, the Court rejected Grounds 3, 4, 8 and 10 as a basis for relief under § 2255
and directed the Government to respond to the remaining counts. In its response, the Government
asks the Court to deny Farmer’s § 2255 petition because it is not adequately supported by
affidavits and to deny it on the merits of her arguments. The Court now considers the remaining
counts.
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II.

Analysis
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in

violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[r]elief
under § 2255 is available ‘only in extraordinary situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has occurred which results in a complete
miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013), cert. denied, 134 S. Ct. 2830 (2014)).
It is proper to deny a § 2255 motion without an evidentiary hearing if “the motion and the files and
records of the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
Farmer’s remaining challenges to her sentence rest on alleged instances of ineffective
assistance of counsel. The Sixth Amendment to the Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to
effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson
v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel
bears the burden of showing (1) that his trial counsel’s performance fell below objective standards
for reasonably effective representation and (2) that this deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Groves v. United States, 755 F.3d 588,
591 (7th Cir.), cert. denied, 135 S. Ct. 501 (2014); United States v. Jones, 635 F.3d 909, 915 (7th
Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to
specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider
4

whether in light of all of the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Id. The Court’s review of counsel’s performance must be
“highly deferential[,] . . . indulg[ing] a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; accord Groves,
755 F.3d at 591; Wyatt, 574 F.3d at 458. Counsel’s performance must be evaluated keeping in
mind that an attorney’s trial strategies are a matter of professional judgment and often turn on facts
not contained in the trial record. Strickland, 466 U.S. at 689. The Court cannot become a
“Monday morning quarterback.” Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong of the Strickland test, the plaintiff must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different, such that the proceedings were fundamentally unfair or unreliable.
Groves, 755 F.3d at 591; Jones, 635 F.3d at 915; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir.
2006). “A reasonable probability is defined as one that is sufficient to undermine confidence in
an outcome.” Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
A.

Ground 1: Failure to Investigate and Call Witnesses

Farmer claims her counsel was deficient because he failed to investigate three witnesses –
Sharon Bauers, Lana Neal and Entwain Johnson – and call them to testify in her trial. The
Government argues that Holmes’ decision not to call these witnesses was a trial strategy Farmer
must accept and that Farmer suffered no prejudice from that strategy.
A defense attorney has “a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S.
668, 691 (1984); accord Wiggins v. Smith, 539 U.S. 510, 521 (2003); Koons v. United States, 639
F.3d 348, 353-54 (7th Cir. 2011); Adams v. Bertrand, 453 F.3d 428, 436 (7th Cir. 2006). An
5

attorney does not have to investigate every conceivable line of mitigating evidence as long as his
decision not to investigate a particular line was reasonable from his perspective at the time he
made the decision to forego the investigation. Wiggins, 539 U.S. at 521-22; Adams, 453 F.3d at
436. Strategic choices to limit an investigation are reasonable if “reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91; accord
Wiggins, 539 U.S. at 521.
When a petitioner accuses her counsel of failing to investigate her case, in order to
establish prejudice she must point to “sufficiently precise information, that is, a comprehensive
showing as to what the investigation would have produced.” Hardamon v. United States, 319
F.3d 943, 951 (7th Cir. 2003) (internal quotations and citation omitted); accord Richardson v.
United States, 379 F.3d 485, 488 (7th Cir. 2004). She cannot rely on vague allegations that the
investigation was insufficient or would have yielded favorable evidence. See Hardamon, 319
F.3d at 951. Similarly, when a § 2255 petitioner faults her attorney for failing to present evidence
at trial, she bears the burden of demonstrating what evidence the attorney should have presented
and that the presentation of such evidence would have had a reasonable probability of changing the
result. Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005); Berkey v. United States, 318
F.3d 768, 774 (7th Cir. 2003). The Court will now examine each of the three witnesses Farmer
says Holmes should have investigated and called as a witness in her trial.
1.

Sharon Bauers

Farmer claims she told Holmes that Sharon Bauers was willing to testify that Farmer’s
accomplice Wrice had told Bauer that she and Anderson, Wrice’s nephew, had “agreed to do what

6

they had to, to get [Anderson] home.” Pl. § 2255 Mot. at 4 (Doc. 1).2 Bauers was Wrice’s
cellmate at the White County Jail prior to Farmer’s trial. Anderson was also housed at that
facility. Farmer claims that at some point when Anderson was suffering some kind of “mental
breakdown,” jail officials called on Wrice, his aunt, to help calm him down. Afterward, Wrice
allegedly told Bauers that she and Anderson had agreed to do whatever they had to do to get
Anderson home. Farmer infers that this included lying about Farmer’s involvement in the armed
bank robbery.
This piece of information from Bauers would not have had any reasonable probability of
changing the outcome of the trial. As it was, Holmes aggressively cross-examined Wrice and
Anderson with their prior convictions, inconsistencies in their statements before and during trial,
and their self-interest in testifying against Farmer. Those substantial efforts did not succeed in
convincing the jury to disbelieve Wrice or Anderson, and it is unreasonable to believe that a vague
agreement to “do what they had to” in order to get Anderson home would have made a difference
in the jury’s credibility assessment. Nor is it reasonable to believe that this one piece of indirect
evidence would have outweighed the substantial evidence of Farmer’s guilt presented at trial and
accepted by the jury. Farmer simply suffered no prejudice from Holmes’ failure to investigate
and call Bauers as a witness.
2.

Lana Neal

Farmer claims Holmes should have called Lana Neal to testify that “Farmer has never rode
around with [her], anywhere,” Pl. § 2255 Mot. at 5 (Doc. 1). At trial, Wrice testified that Neal
was involved in the early planning of the bank robbery with Wrice and Farmer but that Farmer

Wrice and Anderson were charged with the same bank robbery as Farmer, although in a different
case, No. 10-cr-40065-JPG.
7
2

decided not to involve her further because she had “rode over” on her own son. Tr. at 51-52.
The Court presumes this means Neal had at some point given information about her son’s illegal
activities to law enforcement. Wrice testified that Farmer said that since Neal had informed on
her own son, she would also be likely to inform on them if they got caught. Farmer also later
testified that she and Neal never cased out a bank together. Tr. at 355.
It is clear why Holmes would not want to put Neal on the stand: she had no helpful
information, and in cross-examination – if Neal did not invoke her Fifth Amendment right not to
testify – the Government would have been able to ask her about Farmer’s involvement in the early
stages of planning the bank robbery. It appears Holmes believed Neal could have refused to
testify by exercising her Fifth Amendment right against self-incrimination. Had this happened,
even without Neal’s testimony, the jury could have drawn the inference that Neal was involved in
criminal activity involving Farmer about which she did not want to testify. Furthermore, had
Neal testified and denied any knowledge of such involvement, the questioning would have served
to highlight Wrice’s testimony that Farmer was involved. In contrast, any value she could offer to
Farmer’s defense by testifying that she was unaware Farmer was involved in planning the bank
robbery or that Neal never “rode around” with Farmer was minimal compared with the risk she
posed by taking the stand. Holmes’ decision not to call her was a reasonable one, well within the
bounds of competent performance. Additionally, Neal’s testimony on such a minor issue would
have had little chance of changing the result of the trial in light of the other evidence in the trial.
3.

Entwain Johnson

Farmer claims Holmes should have called Entwain Johnson to testify “that Farmer had
never called him,” Pl. § 2255 Mot. at 5 (Doc. 1), and that Farmer “had never talked to him by
telephone,” Pl. Reply at 16 (Doc. 15). At trial, Special Agent Bratcher testified that very shortly
8

after the bank robbery, Farmer’s cell phone received an incoming call from a phone number
registered to Johnson. There was no suggestion Johnson was involved in any way with the bank
robbery. Holmes was not deficient for failing to call Johnson since the testimony Farmer claims
he would have given was not inconsistent with Bratcher’s testimony. Bratcher testified Farmer’s
cell phone received a call from Johnson’s phone, but Johnson would have testified that Farmer
never placed a call to Johnson’s phone. Furthermore, testimony that Farmer’s cell phone
received a call from Johnson does not necessarily mean the call was answered and that Farmer
talked to Johnson. It was not deficient performance not to call a witness with irrelevant
testimony, and Farmer suffered no prejudice from Holmes’ decision in this regard. Furthermore,
even if Johnson’s testimony had been inconsistent with Bratcher’s, it is on such a minor issue that
there was no reasonable probability in light of the other evidence at trial that it would have
convinced the jury not to convict Farmer.
Even taken all together, in light of the other evidence in the case, the presentation of these
three witnesses’ testimony on relatively minor issues would not have had a reasonable probability
of changing the outcome of the trial. Farmer has not identified any other evidence from these
witnesses that would have been uncovered in an investigation such that it could have been
presented at trial. For these reasons, Farmer is not entitled to § 2255 relief because Holmes did
not investigate or call as witnesses Bauers, Neal or Johnson.
B.

Ground 2: Inadequate Time with Farmer in Trial Preparation

Farmer claims her counsel was deficient because he did not spend enough time preparing
and reviewing trial strategy with her before trial, meeting with her only one day. She states that
she told Holmes a detailed account of her movements on the day of the robbery but believes that if
she had spent more time with Holmes, she could have reviewed all of the discovery and pointed
9

him to inconsistencies in the statements of Wrice and Anderson. For example, she could have
pointed out that Wrice’s statement that they discussed getting a gun was patently fabricated
because Wrice had already stolen guns and had them available for use in the robbery. The
Government argues that Farmer has not shown how she was prejudiced by not spending more time
before trial with her counsel.
The Court agrees that Farmer has not shown how spending more time with her counsel in
preparation for trial would have had a reasonable probability of changing the result of the trial.
She was able to give Holmes an account of her activities on the day of the robbery, and he
vigorously argued an alibi defense based on Farmer’s account. Farmer has not identified
anything else she could have added to her alibi defense that could have had a reasonable chance of
causing the jury to believe her version of events.
By the same token, Farmer claims she could have pointed to inconsistencies in
Government witnesses’ statements. The Court is hard-pressed to believe counsel needed such
assistance in identifying inconsistencies in witness statements before trial. Counsel are trained in
such areas, and Holmes ably demonstrated in cross-examining witnesses at trial that he had done
his homework in this regard.
As for the one specific piece of information about which Farmer believes she could have
enlightened Holmes – the absurdity of discussing obtaining guns with Wrice when Wrice already
had guns – that information would not have been helpful to Farmer’s defense. Wrice testified at
trial that she, Farmer and Farmer’s husband had discussed using guns in the robbery, that they
knew they could come up with some guns, and that Wrice already had the guns they used – one
Wrice had purchased and the other she had stolen in a prior robbery. Tr. at 56-57. There was no
evidence that the three accomplices discussed where they might obtain guns, so evidence showing
10

that such a discussion was unlikely to have happened was not useful to impeach Wrice or to
Farmer’s defense.
Because Farmer has not shown how Holmes’ spending more time in trial preparation with
her would have had a reasonable chance of changing the outcome of the trial, she is not entitled to
§ 2255 relief on this basis.
C.

Ground 5: Bratcher’s Conduct

Farmer faults her counsel for failing to object to Special Agent Bratcher’s tampering with
two Government witnessed by telling them not to talk to Holmes. She suggests her Sixth
Amendment right to confront witnesses against her was violated by such instructions. She further
argues Holmes should have objected when Bratcher was not forthcoming with his answers while
testifying, perjured himself, lied in the affidavit to support her arrest, was evasive, hostile and
defensive and became antagonistic to Holmes. She believes Holmes should have requested
Bratcher be declared a “hostile witness” and be excluded as a witness in the case. The
Government argues Bratcher did not behave in an unprofessional way, that, even if he did, the
remedy for “unprofessional conduct” is cross-examination, and that all the evidence he provided at
trial was admissible.
As a preliminary matter, there is nothing magic about declaring a witness “hostile” that
would prevent him from testifying. It simply expands the type of questions counsel may ask an
uncooperative witness on the stand. See Fed. R. Evid. P. 611(c). Bratcher was clearly already an
adverse witness, which allows the expanded mode of questioning, so declaring him “hostile” in
addition would have not changed anything. Furthermore, the right to confront witnesses
contained in the Sixth Amendment is achieved by allowing cross-examination, not guaranteeing a
witness will talk to both sides before trial. Witnesses are not compelled to talk to either side
11

unless subpoenaed, although they often do out of their own self-interest or sense of responsibility.
As for Farmer’s general complaints about Bratcher’s testimony, the Court has carefully
reviewed it and finds that it was not inappropriate in any way. Witnesses often are reluctant to
answer questions on cross-examination and often give statements inconsistent with their pretrial
statements, but attorneys for the opponent are adept at extracting answers and revealing
inconsistencies anyway. Holmes was competent in his questioning of Bratcher, in one instance
forcing Bratcher to admit statements he swore to before trial were inaccurate. The jury heard this
and considered it when deciding whether Bratcher was credible as a witness. There was simply
nothing about Bratcher’s testimony that Holmes could have objected to that, had he done so, would
have created a reasonable probability that the trial would have ended differently.
For these reasons, the Court finds Holmes was not constitutionally ineffective with respect
to his handling of Bratcher.
D.

Ground 6: Attorney-Client Confidentiality

Farmer argues Holmes was constitutionally ineffective because he discussed information
pertaining to this case with others, including Farmer’s family and others in the community. She
specifically points to “negative statements about [her] person” and “negative statements about
information that [she] was giving to him.” Pl. § 2255 Mot. at 11 (Doc. 1). She also faults him
for failing to call two witnesses to testify about the bank robbery note and instead talking to
Farmer’s family members about this strategy. The Government responds that Farmer’s
allegations are not supported by objective evidence and that, even if Holmes had done what
Farmer has alleged, there is no reasonable chance it would have changed the outcome of this case.
The Government is correct in that Farmer has failed to explain how Holmes’ decisions
about discussing Farmer’s case with others – whether it was a violation of the attorney-client
12

privilege or not – rendered her trial unfair or how, had Holmes behaved differently, there was a
reasonable probability of a different result at trial. In the absence of such an explanation, Farmer
cannot show prejudice from Holmes’ behavior, and she is not entitled to § 2255 relief because of
it.
To the extent she references two witnesses with testimony about the bank robbery note that
Holmes did not call as witnesses, she has not adequately supported her claim. As noted above,
when a § 2255 petitioner faults his attorney for failing to present evidence at trial, the petitioner
bears the burden of demonstrating what evidence the attorney should have presented and that the
presentation of such evidence would have had a reasonable probability of changing the result.
Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005); Berkey v. United States, 318 F.3d 768,
774 (7th Cir. 2003). Farmer has not described, much less presented evidence of, the potential
witnesses, their testimony, and how it would have had a reasonable probability of changing the
outcome of her trial. Thus, she is not entitled to § 2255 relief on this basis either.
E.

Ground 7: Prosecutorial Misconduct

Farmer claims her counsel was constitutionally ineffective because he failed to object to
several instances of prosecutorial misconduct, which the Court will address in turn.
1.

Closing Argument

First, Farmer believes Holmes should have objected to the Government’s argument in
closing that Wrice and Anderson were incapable of committing the armed bank robbery charged.
In its closing, the Government actually asked the jury to use its common sense to consider whether,
in light of all Wrice’s and Anderson’s missteps in executing the robbery – for example, they forgot
to wear gloves and to disguise their teeth as planned, allowed a witness to escape from the inside of
the bank during the robbery, and accidentally left the bank robbery note behind – they had the
13

ability to construct an intricate plan to frame Farmer for a crime she did not commit (part of her
defense). There is nothing wrong with this invitation to the jury to apply its common sense, and
Holmes was not deficient for failing to object to it. Nor would it have had a reasonable chance of
changing the outcome of the proceedings if he had objected.
2.

Superseding Indictment

Farmer also believes Holmes should have objected when the Government sought a
superseding indictment after she failed to plead guilty to the original indictment. The superseding
indictment added a charge of brandishing a firearm during a crime of violence to the original
indictment’s charge of armed bank robbery. The new charge carried with it a mandatory
seven-year consecutive sentence if Farmer was convicted.
Pursuing enhanced charges is vindictive and improper when it is motivated by retaliation
for the defendant’s exercise of a legal right or some other improper motive. United States v.
Pittman, 642 F.3d 583, 586 (7th Cir. 2011). This occurs, for example, when the enhanced charges
are motivated by the prosecutor’s resentment for a defendant’s successful appeal or the
prosecutor’s own personal interest. Id. Vindictive prosecution is extraordinarily difficult to
prove because a defendant must “affirmatively show through objective evidence that the
prosecutorial conduct at issue was motivated by some form of prosecutorial animus.” United
States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003). Suspicious timing between the exercise of
a right and enhanced charges alone is not enough to show misconduct. Pittman, 642 F.3d at 587
(citing United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006)). It is the defendant’s burden
to convince the Court she would not have been prosecuted on enhanced charges without the
Government’s animus against her. If she can do this, the Government must then show that its
allegedly vindictive decision was actually properly motivated. Pittman, 642 F.3d at 586.
14

Farmer has made nothing more than naked allegations that the superseding indictment was
an exercise of prosecutorial vindictiveness because she chose not to plead guilty to the original
indictment. She points to the chronology of her decision not to plead guilty to the original
indictment and the return of the superseding indictment, but she points to no objective evidence
Holmes could have or should have raised before the Court to show an improper motive of the
Government for the superseding indictment. In the absence of such objective evidence, Farmer
cannot show Holmes was deficient or that there is a reasonable probability that the proceedings
would have come to a different result had he raised a prosecutorial misconduct charge to the Court.
Indeed, in the Court’s experience, this is run-of-the-mill prosecutorial strategy. See
United States v. Ford, 568 Fed. App’x 477, 480 (7th Cir. 2014) (“But adding charges as a [plea
bargaining] tactic is both common and permissible. . . .”). The Government often exercises its
charging discretion not to charge in an original indictment all of the crimes it reasonably believes it
can prove beyond a reasonable doubt and instead saves the power to seek enhanced charges as a
bargaining tool in plea negotiations. This is done in the Government’s quest to arrive at a just
punishment for defendants who are guilty without expending limited prosecutorial and judicial
resources pursuing charges that are not followed to their conclusion.
3.

Witness Tampering

Farmer again criticizes Holmes for failing to object to Special Agent Bratcher’s advising a
witness not to talk to defense counsel. As noted above, Farmer has no constitutional right to talk
to witnesses before her trial so long as she has an adequate opportunity to question them at trial.
She did so with respect to the witness in question, who actually ended up testifying in Farmer’s
case to the jury. Farmer has not shown how Holmes could have objected to Bratcher’s
instructions to that witness in a way that would have had a reasonable probability of changing the
15

result of the trial. Therefore, Holmes was not constitutionally ineffective in this regard.
4.

Fingerprint Analysis

The Court is hard-pressed to understand Farmer’s objection to Holmes’ conduct on the
basis of a report by a fingerprint analysis lab. The report reflects that law enforcement sent a set
of Farmer’s fingerprints to a laboratory to be compared to latent fingerprints gathered from the
bank robbery note in this case. The report further omits Farmer’s names of identified suspects in
the robbery. The report indicates the analysis “did not reveal an identification” of Farmer’s prints
as those on the bank robbery note. The Court cannot see anything objectionable about the
laboratory report to which Holmes could have objected, much less anything objectionable that, if
corrected or brought to light, would have had a reasonable probability of changing the result of the
trial.
5.

Bratcher as Expert

Farmer faults Holmes for not objecting to Special Agent Bratcher’s testifying as an expert
witness regarding cell phone towers. She notes that he has no training in telephone operations.
Farmer fails to note, however, that Bratcher was not offered as an expert witness on this topic.
The Government called John Hauger, who the Court recognized as an expert witness in
geotracking through cell phone signal tracing, to testify on these matters. Bratcher simply
testified as to how he investigated the information obtained through the processes Hauger
described and where that investigation led him, both topics within his competency as an FBI
investigator. Holmes was not deficient for failing to object to Bratcher’s testimony for this
reason.
For the foregoing reasons, the Court finds Holmes was not deficient for failing to make the
objections Farmer believes he should have made and that Farmer suffered no prejudice from
16

Holmes’ conduct in that regard. She is not entitled to § 2255 relief on this basis.
F.

Ground 9: Jury Instructions

Farmer claims Holmes was deficient for failing to object to the jury instructions regarding
the elements necessary to support a conviction for brandishing of a firearm. There was no
evidence that Farmer herself brandished any firearm; the Government’s theory was that she aided
and abetted Wrice and Anderson to brandish firearms during the bank robbery so she can be held
accountable under 18 U.S.C.§ 2. Farmer believes Holmes should have objected to the
instructions because they did not require the jury to find she knew in time to withdraw from the
criminal scheme that her accomplices would be using guns.
A March 2014 Supreme Court case, Rosemond v. United States, 134 S. Ct. 1240 (2014),
held essentially that a defendant cannot be accountable under § 924(c) for aiding and abetting an
accomplice’s use of a gun unless she fully knew in advance that a gun would be used. See id. at
1248-49. Active participation in a criminal scheme while knowing a gun would be used
evidences the intent required for a conviction for aiding and abetting a § 924(c) offense. Id. at
1249. However, a defendant must have known far enough in advance that she had a realistic
opportunity to change the plan to use the gun or to withdraw from active participation in the crime.
Otherwise, her participation does not equal intent, for she could not intend to participate in a gun
crime when she did not know it was going to be a gun crime. Id. at 1249-50.
Farmer has not shown she suffered prejudice from Holmes’ failure to object to the
instructions. The Court gave the following instructions, among others, in Farmer’s case:
To sustain the charge of brandishing a firearm during or in relation to a
violent crime, the government must prove the following propositions:
First, that the defendant committed the crime of aggravated bank robbery as
charged in Count 1; and
Second, that the defendant knowingly displayed a firearm to another person
17

during and in relation to that crime in order to intimidate that person.
If you find from your consideration of all the evidence that each of these
propositions has been proved beyond a reasonable doubt, then you should find the
defendant guilty.
If, on the other hand, you find from your consideration of all the evidence
that any one of these propositions has not been proved beyond a reasonable doubt,
then you should find the defendant not guilty.
Seventh Circuit Pattern Jury Instruction at 236 (1999) (using/carrying instructions modified to
reflect brandishing as defined in 18 U.S.C. § 924(c)(4)).
Any person who knowingly aids, counsels, commands, induces, or procures
the commission of an offense may be found guilty of that offense. That person must
knowingly associate with the criminal activity, participate in the activity, and try to
make it succeed.
Seventh Circuit Pattern Jury Instruction 5.06 (1999).
A conspirator is a person who knowingly and intentionally agrees with one
or more persons to accomplish an unlawful purpose. A conspirator is responsible
for offenses committed by her fellow conspirators if she was a member of the
conspiracy when the offense was committed and if the offense was committed in
furtherance of and as a foreseeable consequence of the conspiracy.
Therefore, if you find beyond a reasonable doubt that the defendant was a
member of a conspiracy at the time that her fellow conspirators committed the
offense charged in Counts 1 and 2 in furtherance of and as a foreseeable
consequence of that conspiracy, then you should find her guilty of Counts 1 and 2.
Seventh Circuit Pattern Jury Instruction 5.10 (1999).
It is true that after Rosemond the Court’s instructions set forth above may be deemed
inadequate because they did not require the jury to find Farmer knew Wrice or Anderson would
brandish a gun in enough time for her to have had a realistic opportunity to withdraw from the
criminal scheme. Had Farmer’s case been on direct appeal, this might have been sufficient to
reverse her conviction on the § 924(c) count. However, this case is not on direct appeal. On
collateral attack where Farmer is claiming ineffective assistance of counsel, the Court must ask
whether, regardless of the state of the law at the present time, counsel was deficient at the time of
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his performance at the trial. At the time of Farmer’s trial, which predated Rosemond by almost
two years, the jury instructions reflected the state of aiding and abetting law within the Seventh
Circuit; it was not necessary at that time to prove advanced knowledge that a gun would be used in
the felony underlying a § 924(c) conviction and a realistic opportunity for the defendant to
withdraw from the crime. Holmes was not deficient for failing to object to jury instructions based
on a Supreme Court case that had not yet been decided where the jury instructions were consistent
with the law at the time as to the requirement of advanced knowledge.
More importantly, Farmer has not explained how a different instruction would have had a
reasonable probability of changing the result of the trial. Wrice and Anderson testified that
Farmer was an integral part of the planning and execution of the robbery. Wrice testified she had
agreed with Farmer more than a month before the bank robbery that guns would be used and that
they had discussed immediately before the robbery how they should use the guns inside the bank.
Wrice and Anderson also testified that Farmer had written the bank robbery note announcing that
the robbers had guns prior to their arrival at the bank. A handwriting expert testified that the note
was written in handwriting with similarities to Farmer’s handwriting, although the fingerprints on
the note were never matched to Farmer’s. Farmer, on the other hand, testified that she was not
involved in the robbery in any way and had loaned her vehicle and cell phone to Wrice without any
knowledge that Wrice and Anderson were going to use them to commit a robbery. The jury
rejected Farmer’s defense and convicted her of both counts. Having chosen to believe Wrice and
Anderson over Farmer as to the overall crime, it is extremely unlikely that the jury would have
disbelieved their testimony specifically relating to whether and when Farmer knew that guns
would be brandished in the robbery. Thus, the jury would have found Farmer knew guns would
be brandished in the robbery in plenty of time for her to easily withdraw from the armed robbery
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before it even began. There is no reasonable probability that, even if instructed consistent with
Rosemond, the jury would have found Farmer not guilty.
To the extent Farmer makes a direct challenge to her conviction based on Rosemond,
assuming it is retroactively applicable on collateral review – and the Court makes no such finding
– she has still failed to demonstrate her entitlement to relief. For the same reasons the Court
found Farmer suffered no prejudice under the Strickland test from the instructions given, the Court
also finds any error based on Rosemond did not render her trial fundamentally defective or result in
a complete miscarriage of justice.
For these reasons, Farmer is not entitled to § 2255 relief on this basis.
G.

Ground 11: Failure to Convey a Plea Offer

Farmer believes Holmes was constitutionally ineffective because he failed to notify her of
a plea offer from the Government in violation of Missouri v. Frye, 132 S. Ct. 1399 (2012). Frye
held that defense counsel has a duty “to communicate formal offers from the prosecution to accept
a plea on terms and conditions that may be favorable to the accused.” Id. at 1408; accord
Estremera v. United States, 724 F.3d 773, 778 (7th Cir. 2013) (stating “lawyers must tell their
clients about offers of plea bargains”). The Government argues that Farmer has not presented any
detailed affidavit about an uncommunicated formal plea offer and that she cannot show prejudice
because she has not pointed to objective evidence showing she would have taken a plea deal if
offered. The Government supports its position with a copy of an e-mail to Holmes in which the
Government asks what Farmer is going to do – that is, whether she would like to plead guilty or go
to trial – and warns that it would seek a superseding indictment adding the § 924(c) charge if she
decided not to plead guilty.
As a preliminary matter, Farmer provides no support for her assertion that the Government
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even made a formal plea offer that Holmes should have conveyed to her under Frye. Her
unsupported speculation that such a plea offer exists does not satisfy her obligation to provide “a
detailed and specific affidavit which shows that the petitioner has actual proof of the allegations
going beyond mere unsupported assertions.” Barry v. United States, 528 F.2d 1094, 1101 (7th
Cir. 1976) (footnote omitted); accord Galbraith v. United States, 313 F.3d 1001, 1010-11 (7th Cir.
2002); Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996). If no formal plea offer was
made, counsel had nothing to pass on to his client, and his conduct could not be deemed deficient.
Additionally, Farmer has not pointed to any prejudice she suffered as a result of Holmes’
failure to pass along a plea offer, even if a formal offer had been made. Where a petitioner faults
her counsel for failing to convey a plea offer from the Government, to show prejudice under the
Strickland test, she must “demonstrate a reasonable probability[she] would have accepted the
earlier plea offer had [she] been afforded effective assistance of counsel.” Id. at 1409. As with
petitioners who accuse their counsel of ineffectiveness leading to the decision to accept a plea
offer, the petitioner must point to objective evidence to support her contention. Self-serving
statements after an adverse verdict that the defendant would have taken a plea deal had she known
about it are not enough. Here, it is true that Farmer would have faced a lower sentence had she
pled guilty to armed bank robbery before the § 924(c) charge was added in the superseding
indictment. However, the objective evidence shows Farmer was not willing to admit to the armed
bank robbery and wanted to go to trial unless the charges could be reduced, but, again, there is no
indication the Government ever offered such a deal or that Farmer would have accepted it had it
been offered. Furthermore, Farmer’s sworn testimony at trial indicated her adamant stand that
she did not participate in the planning or execution of the bank robbery. It would be tough for her
to say now that she would have admitted under oath to participating in the robbery – in direct
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contradiction of her sworn testimony at trial – had a plea offer been on the table. Because there is
no reasonable probability Farmer would have pled guilty to the bank robbery had she known about
a plea offer, Farmer has not demonstrated she was prejudiced from any failure of Holmes to
convey a plea offer.
For these reasons, Farmer is not entitled to § 2255 relief on this basis.
H.

Ground 12: Failure to Raise Fingerprint Issue on Appeal

Finally, Farmer believes Holmes should have raised on appeal an argument relating to
Special Agent Bratcher’s testimony that the prints on the bank robbery note could have been from
Farmer’s wrist. The Government argues that Holmes was not deficient for failing to raise the
issue because Bratcher’s testimony was not objectionable and because Holmes had stronger issues
to raise on appeal.
Appellate counsel is not deficient for failing to “raise every non-frivolous issue under the
sun.” Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996). Counsel is only deficient if he “fails to
appeal an issue that is both obvious and clearly stronger than one that was raised.” Winters v.
Miller, 274 F.3d 1161, 1167 (7th Cir. 2001); accord Suggs v. United States, 513 F.3d 675, 678 (7th
Cir. 2008). Furthermore, a petitioner can show prejudice from this deficiency only by
demonstrating “that there is a reasonable probability that, but for the deficient performance of his
attorney, the result of the appeal would have been different.” Suggs, 513 F.3d at 678.
At trial, Bratcher testified a number of times about whether Farmer’s fingerprints were
found on the bank robbery note:
[MR. HOLMES]:
Okay. As case agent, do you have any knowledge, has
fingerprints been obtained and positively identified for Franchie Farmer on
that note?
A.
No, sir.
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Tr. at 384.
[GOVERNMENT]:
So the -- I guess and, and once, once you learned that
-- and you also knew that Franchie Farmer’s fingerprints weren’t on that
note, is that -- or that’s probably -- what did you -A.
That’s not correct.
Q.
What did you discover regarding the fingerprints -- well, just tell us
what the finger -- you were asked about the fingerprint evidence yesterday.
Tell us what the fingerprint evidence revealed.
A.
There was additional prints on that note. They -- we took what we
call full case prints of Franchie Farmer. The analysis -- the forensic
scientist could not match the full case prints for Franchie Farmer.
However, he indicated that the prints on the note were most likely
made from the wrist of somebody, so he just could not match them up. I
can't say her prints weren't on it, but I couldn't say they are on it either.
Tr. at 413.
[MR. HOLMES]:
Okay. So each time you asked for the stuff that you needed,
the -- print-wise, she came and gave it to you and the results are still
inconclusive; correct?
A.
Inconclusive, yes.
***
Q.
Okay. And [Wrice’s and Anderson’s] prints are on the note; correct?
A.
Yes, sir.
Q.
Hers isn't.
A.
Yes, sir.
Q.
That’s -A.
That’s not true. That’s not true.
***
A.
There’s other prints on the note that cannot be identified. They may
be hers, they may not be hers.
Tr. at 424-25. Holmes argued to the jury that if Farmer had written the note as Wrice and
Anderson described, her fingerprints would have been on it, and the lack of Farmer’s fingerprints
on the note indicated she could not have written it.
Holmes was not deficient for failing to raise Bratcher’s testimony regarding fingerprints on
appeal. First, it is unclear why Farmer believes Bratcher’s testimony was objectionable. He
consistently testified that the fingerprints on the bank robbery note were not conclusively matched
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to Farmer’s fingerprints but that there were other prints that may or may not have been hers.
Nothing in this testimony suggests grounds for reversal on appeal. To the extent this argument
might have been a component of an insufficiency of the evidence argument, it was a weak
argument considering all the evidence presented at trial and the other, more meritorious arguments
Holmes did raise on appeal.
Additionally, Farmer has not explained how raising this issue on appeal would have had
are reasonable probability of changing the result of the appeal. The fingerprint evidence was
inconclusive, and Holmes made the best of that matter at the trial court level. There was simply
nothing about the fingerprint evidence that had a reasonable probability of resulting in a reversal of
Farmer’s conviction.
For the foregoing reasons, the Court rejects Grounds 1, 2, 5, 6, 7, 9, 11 and 12 as based for
§ 2255 relief.
III.

Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the

Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of
appealability of this final order adverse to the petitioner. A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching,
246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner must “demonstrate
that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have
been resolved in a different manner or that the issue presented was adequate to deserve
encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Tennard, 542 U.S. at 282;
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability should issue if the
24

petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.”).
The Court finds that Farmer has not made such a showing as to Grounds 1-8 and 10-12 and,
accordingly, declines to issue a certificate of appealability on those grounds. However, with
respect to Ground 9, the Court finds that reasonable jurists could debate whether the Court’s
resolution of the issue was correct. Accordingly, the Court GRANTS a certificate of
appealability as to the following issue:


whether, in light of Rosemond v. United States, 134 S. Ct. 1240 (2014), the jury
instructions regarding the elements necessary to prove brandishing a firearm in violation of
18 U.S.C. § 924(c)(1)(A)(ii) deprived Farmer of a fair trial and whether counsel was
constitutionally ineffective for failing to object to the jury instructions on this basis;

and CERTIFIES this issue as APPEALABLE. The Court denies a certificate of appealability as
to all other issues.
IV.

Conclusion
For the foregoing reasons, the Court DENIES Farmer’s § 2255 motion and DIRECTS the

Clerk of Court to enter judgment accordingly.
IT IS SO ORDERED.
DATED: February 11, 2015
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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