Opinion
23-1808
09-18-2023
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERNEST F. CLARK, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted September 14, 2023
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 11-CR-30-2-JPS J.P. Stadtmueller, Judge.
Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge THOMAS L. KIRSCH II, Circuit Judge
ORDER
Ernest Clark has filed multiple applications for compassionate relief under 18 U.S.C. §3581(c)(1)(A). The district court has denied all of them, and two years ago we affirmed one such order. United States v. Clark, 21-1200 (7th Cir. July 19, 2021) (nonprecedential disposition).
Clark's current sentences add up to 162 years in prison, a consequence of his multiple armed bank robberies committed while on supervised release from a 188-month sentence for an earlier armed bank robbery. He contended in 2021 that this sentence is absurdly long and should be reduced. He also contended that he is at risk of COVID-19 while in prison, a risk that could be mitigated by his release. The district judge rejected both contentions, and we held that in doing so the judge did not abuse his discretion.
Clark's most recent application for release repeats these arguments, which the district judge rejected again. We need not repeat what we said in 2021-though we add that, even now, Clark has not produced any evidence that his risk from COVID-19 would be less outside of prison than inside. (Given vaccines, institutional settings are no longer centers of uncontrolled infection. That Clark has refused to be vaccinated does not strengthen his argument for release.)
The current application for compassionate release adds a contention that the prosecutor at his trial engaged in misconduct. The district court found this assertion unsubstantiated (opinion at 9) and added that it is not a good reason for release under §3581(c)(1)(A). As we explained in United States v. Von Vader, 58 F.4th 369, 371 (7th Cir. 2023), "the sort of 'extraordinary and compelling' circumstance that §3582(c)(1) addresses is some new fact about an inmate's health or family status, or an equivalent post-conviction development, not a purely legal contention for which statutes specify other avenues of relief-avenues with distinct requirements, such as the time limits in §2255(f)". Prosecutorial misconduct could be a reason for reversal on appeal or collateral relief under 28 U.S.C. §2255, but it is not a subject that can be raised for the first time, more than a decade after trial, through a motion under §3581(c)(1)(A). Von Vader cites many similar decisions in this circuit. No more need be said.
AFFIRMED.
After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).