Clinton v. USA
Filing
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OPINION AND ORDER: The court DENIES Mr. Clinton's motion to file supplemental briefing, [Doc. No. 155], and DENIES his petition, [Doc. No. 98]. Signed by Judge Robert L Miller, Jr on 9/19/2022. (Copy mailed to pro se party)(rmc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES of AMERICA,
Plaintiff
Cause No. 3:18-CR-136-RLM-MGG
v.
KEVIN CLINTON,
Defendant.
OPINION AND ORDER
Kevin Clinton was found guilty of four counts of mail fraud in violation of
18 U.S.C. § 1341 after a jury trial and sentenced to 71 months imprisonment, a
$400 assessment, and $2,271,720.25 in restitution. [Doc. No. 55.]
Mr. Clinton filed a petition for relief under 28 U.S.C. § 2255 alleging
ineffective assistance of counsel. After briefing was complete, Mr. Clinton asked
to file supplemental briefing, a request this court denied because Mr. Clinton
didn’t explain what the evidence was or what it would show and didn’t provide
any other information. Mr. Clinton renewed his request less than two weeks
later, but that request was just as lacking in detail as the first one. For the
reasons stated in Doc. No. 154, the court denies Mr. Clinton’s request to file
supplemental briefing.
“Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary
situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). “To prevail
on an ineffective assistance claim, a petitioner must establish that [(1)] his
‘counsel’s performance was deficient’ and [(2)] that ‘the deficient performance
prejudiced the defense.’” Koons v. United States, 639 F.3d 348, 351 (7th Cir.
2011) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A court’s “review of the attorney’s performance is ‘highly deferential’ and
reflects ‘a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance . . . .’” Davis v. Lambert, 388 F.3d 1052,
1059 (7th Cir. 2004) (quoting Strickland v. Washington, 466 U.S. at 689). The
“question is whether an attorney’s representation amounted to incompetence
under prevailing professional norms, not whether it deviated from best practices
or most common custom.” Koons v. United States, 639 F.3d at 351 (internal
quotation omitted).
Mr. Clinton claims that his attorney didn’t understand technology or
business; didn’t gather documents from his former employer; didn’t issue
subpoenas and take depositions; didn’t challenge testimony relating to the name
of his former employer’s parent company and its sales or how a witness knew
certain invoices were fraudulent; didn’t explain Mr. Clinton’s job and
responsibilities; and didn’t respond to facts presented by witness Weinhaus. An
attorney is not required to be a subject-matter expert, and Mr. Clinton didn’t
provide details as to how these allegations amount to incompetence under
prevailing professional norms.
Even if Mr. Clinton could establish that his attorney’s representation was
deficient, for habeas relief he would have to establish that his defense was
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prejudiced because of it, which means that the result would have been different.
Strickland v. Washington, 466 U.S. at 694. Mr. Clinton doesn’t dispute the
essential evidence against him: he started and presided over Innovation Services;
opened a bank account and registered a mailbox in its name; generated, signed,
submitted, and approved its invoices; his employer issued almost $2.3 million in
check payments and mailed them to the registered mailbox; he gathered the
checks from that mailbox and deposited them in Innovation Services’ account;
and the funds were transferred to his and his family’s accounts.
Mr. Clinton discusses at length how much profit his employer or
employer’s parent company made and his job responsibilities within his CIO role,
but these aren’t relevant to the charges, and his petition doesn’t specify how his
outcome might have been different but for the performance of his attorney. He
also claims that his attorney should have argued that some of the work he
approved on invoices from his company, Innovation Services, was completed; but
as was made clear during trial, it was fraudulent for him to bill his own employer
for work he was paid to perform as a salaried CIO. It’s immaterial whether he
actually did some of the work.
Accordingly, the court DENIES Mr. Clinton’s motion to file supplemental
briefing, [Doc. No. 155], and DENIES his petition, [Doc. No. 98].
SO ORDERED
ENTERED:
September 19, 2022
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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