West v. United States of America

Filing 25

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 1/31/2020. 1 Petitioner's motion to vacate, set aside, or correct sentence under 28 USC §2255 DENIED. 3 Petitioner's motion for evidentiary hearing DENIED. 20 23 Petitioner's motions for prompt disposition DENIED as moot. The court DECLINES TO ISSUE certificate of appealability. Case DISMISSED. (cc: all counsel, via mail to Edward West at FCI Florence)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

EDWARD WAYNE WEST,
Petitioner,
v.

Case No. 14-cv-1163-pp

UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE UNDER 28 U.S.C. §2255 (DKT. NO. 1), DENYING MOTION FOR
EVIDENTIARY HEARING (DKT. NO. 3); DENYING AS MOOT MOTIONS FOR
PROMPT DISPOSITION (DKT. NOS. 20, 23); DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

I.

Background
A.

Criminal Charges and Pretrial Proceedings

On June 10, 2008, a grand jury indicted the petitioner on multiple
charges relating to an armed bank robbery. United States v. West, Case No. 08cr-157 (E.D. Wis.), at dkt. no. 4. The petitioner filed two pretrial motions—a
motion to suppress testimony from witnesses that they identified the petitioner
out of a lineup, id. at dkt. no.10, and a motion to suppress the physical
evidence seized incident to his arrest and his post-arrest statement, id. at dkt.
no. 11. The assigned magistrate judge recommended that Judge Charles N.
Clevert, Jr., the judge to whom the case was assigned, grant the motion to
suppress testimony that witnesses had identified the petitioner from a lineup,
concluding that the lineup was conducted in violation of the petitioner’s right
1

to counsel. Dkt. No. 31. Judge Clevert adopted that recommendation and
granted the motion to suppress the witness identifications that resulted from
the lineup. Id. at Dkt. No. 51. The magistrate judge recommended that Judge
Clevert deny the motion to suppress evidence and his post-arrest statement. Id.
at Dkt. Nos. 31, 42. Judge Clevert adopted that recommendation as well, and
denied the motion to suppress evidence and statements. Dkt. No. 53.
About a month later, and just shy of three weeks before the scheduled
trial date, the petitioner signed a conditional plea agreement, pleading guilty to
one count of bank robbery, one count of armed bank robbery and one count of
carrying a firearm in furtherance of a crime of violence. Id. at Dkt. No. 59. The
agreement allowed the petitioner to appeal Judge Clevert’s denial of his
motions to suppress evidence and his post-arrest statement. Id. at 1.
B.

Sentencing

Judge Clevert held a sentencing hearing on January 28, 2010. Id. at Dkt.
No. 71 (transcript at Dkt. No. 84). The government recommended a twenty-year
sentence. Id., Dkt. No. 84 at 8. Defense counsel recommended a sentence
between ten and fifteen years. Id. at 18. Judge Clevert imposed a sentence of
230 months—nineteen years and two months; 146 months each on the two
robbery counts, to run concurrently with each other, and eighty-four months
on the charge of using and carrying a firearm during and in relation to a crime
of violence. Id. at 29.

2

C.

Post-Sentencing

The petitioner filed a notice of appeal on February 4, 2010. Id. at Dkt.
No. 73. He argued that the district court erred “when it agreed to allow
witnesses to make in-court identifications without first determining whether an
in-court identification would have an independent basis and would be free from
the taint of an improper lineup[,]” United States v. West, 628 F.3d 425, 427
(7th Cir. 2010) and that the district court erred by relying on an impermissible
factor—the petitioner’s socioeconomic status—when determining the
appropriate sentence, United States v. West, Case 10-1292, Dkt. No. 12-1 at 2
(7th Cir. June 2, 2010).
The Seventh Circuit vacated the petitioner’s convictions, finding that
under United States v. Wade, 388 U.S. 218, 240 (1967), the government
needed to show (and the district court needed to find) clear and convincing
evidence that there was an independent basis for a witness’ in-court
identification. West, 628 F.3d at 430. It remanded the case, instructing Judge
Clevert to make findings of fact under Wade and noting that “depending on the
outcome of that determination, the district court may reinstate the convictions
or order a trial.” Id. at 430-31.
Because of the possibility that the convictions could be reinstated, the
Seventh Circuit also addressed the petitioner’s sentencing arguments. Id. at
431. The Seventh Circuit observed that Judge Clevert had calculated the
guideline sentencing range at 272 to 319 months and had sentenced the
petitioner to 230 months. Id. It remarked that
3

in reviewing a sentence, we first look to whether the district court
committed any procedural error, ‘such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [section] 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.
Id. (quoting United States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009)). The
Seventh Circuit concluded that the district court “did not rely on an
impermissible factor in sentencing or err procedurally in any other way.” Id.
As for the petitioner’s socioeconomic status argument, the Seventh
Circuit said that
[t]he district court’s discussion of West’s access to health care
came in the context of a broader discussion of both the defense
arguments for a lower sentence and other relevant § 3553(a) factors,
including the history and characteristics of the defendant, the
nature of the offense, and the need to protect the community from
future crimes. Section 3553(a)(2) required the court to address
West’s medical needs: “The court, in determining the particular
sentence to be imposed, shall consider—(2) the need for the
sentenced imposed—(D) to provide the defendant with needed . . .
medical care . . . in the most effective manner.” The transcript
indicates only that the district court was addressing the effect that
a sentence might have on the defendant’s access to medical care,
which was an issue the defense had raised. When the defense raises
such an issue, the district court is entitled to consider the
counterfactual: what kind of medical care would be available to the
defendant with a different sentence? To the extent those
circumstances might be affected by wealth, income, or
socioeconomic status, consideration of the defense argument cannot
be turned in a Catch-22 for the district court, where it would be
error not to consider and address the issue, but also error to
consider the factors affecting access to medical case. We see here
only proper consideration of a relevant but unpersuasive defense
argument for a lighter sentence. We find no improper consideration
of West’s socioeconomic status. Moreover, the district court
sentenced West well below the guidelines range. We find no error.
Id. at 431-32.
4

On remand, Judge Clevert held a Wade hearing. West, Case No. 08-cr157 at Dkt. No. 101. At the end of the hearing, the petitioner made an oral
request to withdraw his guilty plea. Id. Five days later, Judge Clevert issued
written findings of fact, concluding that “the government has shown by clear
and convincing evidence that its three lineup witnesses may be asked at trial
whether they can identify the defendant.” Id. at Dkt. No. 102. Judge Clevert
then recused himself from presiding over the motion to withdraw the plea. Id.
at Dkt. No. 106. In March of 2012, Judge Rudolph T. Randa issued an order
denying the petitioner’s motion to withdraw his guilty plea; he later issued an
order reinstating the petitioner’s conviction. Id. at Dkt. No. 111.
The petitioner appealed Judge Randa’s order. Id. at Dkt. No. 112. He
made one argument on appeal: that the government did not prove by clear and
convincing evidence that there was a basis for a bank employee’s identification
of the petitioner independent of her lineup identification. United States v. West,
Case No. 12-1858, Dkt. No. 11 (7th Cir. Aug. 17, 2012). The Seventh Circuit
affirmed on June 25, 2013, United States v. West, 528 F. App’x 602 (7th Cir.
2013), and the mandate issued on July 17, 2013. West, Case No. 08-cr-157 at
Dkt. No. 119.
II.

The Parties’ Arguments
A.

The Petitioner’s Arguments (Dkt. No. 2)

On September 22, 2014, the petitioner, representing himself, filed a
motion to vacate, correct or set aside his sentence under 28 U.S.C. §2255.
West v. United States, Case No. 14-cv-1163, at Dkt. No. 1. The motion listed
5

four grounds for relief: (1) the sentencing court committed a due process
violation by failing to compute the applicable guidelines range at sentencing; (2)
the sentencing court committed a due process violation by lengthening the
petitioner’s sentence due to health care concerns, in violation of Tapia v. United
States, 564 U.S. 319 (2011); (3) the district court violated his due process
rights because the court intended for the petitioner to serve less than twenty
years, but did not consider the petitioner’s parole violation, which lengthened
the cumulative total of the petitioner’s sentence to twenty-six and one-half
years; and (4) ineffective assistance of trial and appellate counsel for failing to
raise the issue of the additional sentence for parole violation, failing to argue
the applicable guidelines, and failing to raise the Tapia issue. Id. Judge Clevert
issued a screening order in December 2014 and allowed the petitioner to
proceed on all grounds. Dkt. No. 6.
The petitioner asserts that Judge Clevert imposed a sentence that was
“over double” the applicable guidelines range. Dkt. No. 2 at 3. He argues that
“[t]he Court rejected the career criminal enhancement, see TR 1/28/2010, pg
20, ln 5-14” and that both the government and his defense counsel agreed. Id.
at 4. The petitioner contends that once the court decided the career offender
guideline should not apply, the proper guideline range was 57-71 months—a
range which he contends the court did not consider. Id. at 4. The petitioner
says that the court erroneously used the government’s twenty-year
recommendation as a benchmark and tailored a sentence to fit that request. Id.

6

He asks the court to re-sentence him to a sentence within the 57-to-71-month
guideline range. Id.
The petitioner’s second ground asserts that Judge Clevert imposed a
longer sentence so that the petitioner could obtain healthcare provided by the
Bureau of Prisons. Id. at 6. He argues that the Tapia Court held that
imprisonment wasn’t the appropriate way to achieve drug treatment and
argued that the same was true for health care. Id. He notes that Tapia was
decided after his first direct appeal became final but before he filed his second
appeal, and that Tapia applies to him “even if counsel failed to raise it in the
second direct appeal.” Id. at 7. The petitioner also contends that other laws
passed since his sentencing (such as the Affordable Care Act of 2010) would
make it easier for him to obtain healthcare without needing the Bureau of
Prisons to provide it. Id.
Third, the petitioner argues that his understanding of the plea agreement
was that when the government agreed to recommend a sentence of twenty
years, it meant that it would recommend a sentence of twenty years minus the
seven and a half years he had left to serve on a parole violation. Id. at 9. He
asks the court to “enforce[ ] the plea promises.” Id.
Finally, the petitioner argues that he received ineffective assistance from
both his trial and appellate counsel. Id. at 10-11. He says that his counsel
missed the Tapia change in the law in the time between his first and second
direct appeals and should have raised it on the second appeal. Id. at 10. He
states that this court must order an evidentiary hearing to determine why his
7

counsel did not challenge the sentence calculations, did not argue the
petitioner’s understanding of the government’s promise in the plea agreement
and did not argue the Tapia issue. Id. at 11.
B.

The Government’s Response (Dkt. No. 7)

The government first questions the timeliness of the §2255 motion,
noting that while the Seventh Circuit affirmed his convictions on June 25,
2013, the petitioner did not file the motion until September 22, 2014. Dkt. No.
7 at 3. It argues that the motion is time-barred under the one-year statute of
limitations deadline imposed by §2255(f). Id.
Next, the government asserts that the petitioner did not raise these
claims before the trial court or on direct appeal and that they are procedurally
defaulted. Id. at 3-4 (citing United States v. Frady, 456 U.S. 152, 162-66
(1982)). As for the petitioner’s ineffective assistance of counsel claims, the
government argues that the petitioner cannot show deficient performance from
his attorney. Id. at 5. It observes that the sentencing transcript contradicts the
petitioner’s claim that Judge Clevert failed to calculate, or incorrectly
calculated, the sentencing guideline range because both the PSR and the court
calculated the range at 272 to 319 months. Id. at 5 (citing West, Case No. 08cr-157, dkt. no. 84 at 12, 28). It observes that Judge Clevert did not commit a
Tapia error because all he did was “not[e] the availability of health care in the
federal prison system in response to [the petitioner’s] argument that his need
for blood pressure treatment and other health concerns warranted imposing a

8

shorter sentence.” Id. at 6 (citing United States v. Consago, 520 F. App’x 465,
468 (7th Cir. Apr. 8, 2013)).
Last, the government argues that the petitioner’s claim about Judge
Clevert only intending for him to serve twenty years in prison (and failing to
consider the then-impending parole violation adding seven and a half years to
the term) is a conclusory assertion unsupported by any details or evidence. Id.
at 7. It points out that “according to the Bureau of Prisons website, [the
petitioner’s] anticipated release date is February 2025, which is consistent with
the 230-month sentence (after taking into consideration time spent in custody
and good time).” Id. at 8.
C.

The Petitioner’s Reply (Dkt. No. 12)

The petitioner argues that under Clay v. United States, 537 U.S. 522
(2003), he had one year and ninety days to file his §2255 motion; he says that
he filed the motion on September 22, 2014, before the September 25, 2014
deadline. Dkt. No. 12 at 2. He reiterates his belief that the career offender
provision of the guidelines did not apply to him. Id. at 2-3. He reiterates his
belief that Tapia prohibits district courts from considering health care needs
when imposing punishment. Id. at 3-4. As for his parole violation argument,
the petitioner says that the person who originally prepared his §2255 motion
did not thoroughly research the issue. Id. at 4 n.2. He states that “upon further
research . . . the government is correct and this issue at this time appears to be
without merit but may ripen at a later date.” Id. at 4. He asks the court to stay

9

and abey its decision on his parole claim until he can secure a ruling from the
parole commission. Id. at 5.
D.

Other Filings

The petition was fully briefed in April 2015—over four and a half years
ago. Between that date and March 2017, the petitioner filed a notice of change
of address, dkt. no. 13, a letter motion for a report on the status of the case,
dkt. no. 14, and a motion requesting a response, dkt. no. 16. Judge Clevert did
not rule on either of the two motions.
At the end of March 2017, Judge Clevert wrote to the petitioner,
informing him that the case would be re-assigned upon Judge Clevert’s
impending retirement. Dkt. No. 17. The letter also told the petitioner,
“[r]egarding your request that the court stay any ruling on the ‘parole
violation/sentence issue,’ the court will need to rule on the issue to resolve
your motion. Please clarify whether you wish to withdraw that issue from
consideration or wish the court to rule on it.” Id.
The case was reassigned to this court on March 31, 2017; since then, the
petitioner has written the court seven times. None of those letters or pleadings
answered the question Judge Clevert had asked. The petitioner wrote on June
26, 2017, but did not provide the clarification Judge Clevert requested; he only
asked for information about the status of his case. Dkt. No. 18. He wrote
another letter on October 6, 2017, again requesting an update. Dkt. No. 19. In
March of 2018, the petitioner filed a motion for prompt disposition. Dkt. No.
20. Three months later, the petitioner filed a “request for disposition on 2255
10

petition.” Dkt. No. 21. In July and August of 2018, the petitioner filed two final
documents, a “request for disposition” and a “motion for prompt disposition.”
Dkt. Nos. 22-23. Finally, in October of 2019, the petitioner informed the court
that he had filed a petition for writ of mandamus with the Seventh Circuit
Court of Appeals. Id. at 24.
The court will address the motions for prompt decision, and its delay, at
the end of this order.
III.

Analysis
A.

Standard

Section 28 U.S.C. §2255 allows a federal prisoner to ask the court that
imposed sentence to vacate, set aside, or correct it “upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]” 28 U.S.C. §2255(a). “‘[N]ot every error
is corrigible in a post-conviction proceeding, even if the error is not harmless.’”
Hanson v. United States, 941 F.3d 874, 876 (7th Cir. 2019) (quoting Hawkins
v. United States, 706 F.3d 820, 823 (7th Cir. 2013)). Put another way, “‘relief
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.”’” Id. (quoting
United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014)).

11

B.

Timeliness

Under 28 U.S.C. §2255(f), a petitioner has one year to file a motion
challenging his conviction or sentence under this section. The one-year period
begins to run from the latest of one of four events; in this case, from “(1) the
date on which the judgment of conviction becomes final[.]” 28 U.S.C.
§2255(f)(1). As the petitioner correctly notes, in Clay, the Supreme Court
recognized that “for federal criminal defendants who do not file a petition for
certiorari with this Court on direct review, § 2255’s one-year limitation period
starts to run when the time for seeking such review expires.” Clay, 537 U.S. at
532; see also Hanson, 941 F.3d at 876. Supreme Court Rule 13 afforded the
petitioner ninety days from the date the Seventh Circuit affirmed the district
court’s judgment to file for a writ of certiorari; in other words, he had ninety
days from June 25, 2013—until September 23, 2013—to petition for certiorari.
Supreme Court. S. Ct. R. 13(1) & (3). He did not petition for certiorari, so his
one-year time clock began to run on September 23, 2013 and expired on
September 23, 2014. He filed this motion on September 22, 2014; it is timely.
C.

Exhaustion

For a claim to be cognizable on §2255 review, the petitioner must have
raised it on direct appeal. “Any claim that could have been raised originally in
the trial court and then on direct appeal that is raised for the first time on
collateral review is procedurally defaulted.” Delatorre v. United States, 847
F.3d 837, 843 (7th Cir. 2017) (citing Hale v. United States, 710 F.3d 711, 71312

14 (7th Cir. 2013)). “Procedurally defaulted constitutional claims are not
considered on collateral review unless the petitioner shows either (1) actual
innocence or (2) cause and prejudice.” Id. (citing Bousley v. United States, 523
U.S. 614, 622 (1998)). However, because “claims of ineffective assistance, by
their very nature, are almost ‘invariably doom[ed]’ on direct appeal,” “we thus
permit these claims, in most instances, to be raised for the first time on
collateral review.” Id. (quoting United States v. Gilliam, 255 F.3d 428, 437 (7th
Cir. 2001)); see also Massaro v. United States, 538 U.S. 500, 505 (2003).
It does not appear that the petitioner argued on appeal that Judge
Clevert inappropriately calculated the sentencing guidelines, or that Judge
Clevert inappropriately lengthened the petitioner’s sentence based on the
petitioner’s medical needs, or that Judge Clevert imposed a sentence that
violated what the petitioner understood the plea agreement to promise. The
petitioner does, however, argue that his trial and appellate counsel were
deficient because he failed to raise these issues in the trial and appellate
courts. And ineffective assistance of appellate counsel can constitute “cause” to
excuse a petitioner’s procedural default. Trevino v. Thaler, 569 U.S. 413, 422
(2013) (“ineffective assistance of counsel on direct appellate review could
amount to ‘cause,’ excusing a defendant’s failure to raise (and thus
procedurally defaulting a constitutional claim.”)). Further, the petitioner points
out that the Supreme Court did not issue the Tapia decision until after the
petitioner’s first direct appeal was final.

13

The government’s opposition brief contains a cursory argument on
exhaustion; it does not address the timing of the Tapia decision and admits
that the petitioner’s claims for ineffective assistance of counsel are not
procedurally defaulted. The court doesn’t need to resolve these potentially
thorny procedural questions because even if the court found the claims
properly exhausted, they are meritless. See Carrion v. Butler, 835 F.3d 764,
772 (7th Cir. 2016) (“we need not address these potentially difficult procedural
questions, however, because even it we were to decide each of them in [the
petitioner’s] favor, his claims clearly fail on the merits.”); see also Estremera v.
United States, 724 F.3d 773, 775 (7th Cir. 2013) (“It makes sense (and is
permissible) to reject a collateral attack on the merits while other procedural
defenses, such as [statutes of limitations,] waiver, default, or lack of
exhaustion, remain in the background.”)
D.

Additional Facts

Additional facts from the record are helpful in considering the petitioner’s
arguments.
As noted, the indictment charged the defendant with armed bank
robbery on May 12, 2008 (Count One); using and carrying a firearm during and
in relation to that violent crime, in violation of 18 U.S.C. §924(c) (Count Two);
armed bank robbery on May 23, 2008 (Count Three); and using and carrying a
firearm during and in relation to that violent offense, in violation of 18 U.S.C.
§924(c) (Count Four). United States v. West, 08-cr-157 at Dkt. No. 4. At the
time the petitioner entered his guilty plea, the government issued a one-count
14

information, re-charging the May 12, 2008 robbery as a bank robbery only, not
an armed bank robbery. Id. at Dkt. No. 61. The plea agreement provided that
the petitioner would plead guilty to the bank robbery charged in the
information, the second bank robbery charged in the indictment (the May 23,
2008 robbery charged in Count Three of the indictment), and the §924(c)
charge associated with the May 23, 2008 bank robbery (Count Four). Id. at
Dkt. No. 59, ¶¶5-6. As part of the plea agreement, the government agreed to
ask Judge Clevert to dismiss Counts One (the May 12, 2008 armed bank
robbery charge) and Two (the May 12, 2008 §924(c) charge) of the indictment at
the time of sentencing. Id. at ¶10.
Section 924(c) mandates that if a person uses or carries a gun during
and in relation to a violent crime (like a bank robbery), the court must impose a
mandatory minimum sentence of five years, “in addition to [consecutive to] the
punishment provided for such crime of violence.” If the person “brandishes” the
firearm during the crime of violence, the mandatory minimum sentence
increases to seven years consecutive to the sentence the court imposes for the
crime of violence. The law says that “brandish” means “to display all or part of
the firearm, or otherwise make the presence of the firearm known to another
person, in order to intimidate that person, regardless of whether the firearm is
directly visible to that person.” 18 U.S.C. §924(c)(4).
The facts in the presentence report indicate that on May 23, 2008, the
petitioner went to the teller’s window of the Landmark Credit Union on North
124th Street in Wauwatosa, put a silver and black semi-automatic handgun on
15

the counter, and demanded money. PSR, ¶13. Because he “brandished,” or
displayed, that firearm during the robbery, the fact that he pled guilty to the
§924(c) charge meant that at sentencing, Judge Clevert was required by law to
sentence the petitioner to serve seven years—eighty-four months—in prison on
the §924(c) charge alone, consecutive to any sentence he might impose on the
bank robbery charges.
In the plea agreement, the government laid out what it would recommend
to the court in terms of the sentencing guidelines for the two robbery counts.
United States v. West, 08-cr-157 at Dkt. No. 59. The government agreed to
recommend the following:
¶18

Base offense level for robbery

§2B3.1(a)

20

¶19

Enhancement--property taken from
a financial institution

§2B3.1(b)(1)

+2

¶20

Enhancement—loss of over $10,000

§2B3.1(b)(7)(A)

+1

¶21

Enhancement—multiple offenses

§3D1.4(a)

+1

¶22

Decrease—acceptance of responsibility

§§3E1.1(a) and (b)

Adjusted offense level:

-3
_________
21

The agreement also stated, however, that the parties understood,
acknowledged and agreed “that the defendant may qualify as a Career Offender
under the sentencing guidelines,” and agreed that he could not withdraw his
guilty plea if the court determined that he did qualify as a career offender. Id.
at ¶23.
The government promised at ¶26 of the plea agreement to “recommend
that the defendant be sentenced to a term of twenty (20) years’ imprisonment.”
16

It did not explain that recommendation. It did not state whether it would
recommend that that sentence run consecutively or concurrently to any other
sentences imposed by any other courts. It did not explain how much of that
twenty-year sentence was for the two robbery counts and how much was for
the §924(c) counts. It simply stated that it would recommend a sentence of
twenty years.
The presentence writer also calculated the guidelines for the armed
robbery charges. For the charge in the information—the May 12, 2008 robbery
of the U.S. Bank on Capital drive (where the petitioner used a toy gun)—the
PSR calculated the following:
¶24

Base offense level for robbery

§2B1.3(a)

20

¶25

Enhancement—property taken from
a financial institution

§2B3.1(b)(1)

+2
______
22

For the May 23, 2018 robbery of the Landmark Credit Union, the PSR
calculated the following:
¶31

Base offense level for robbery

§2B3.1(a)

20

¶32

Enhancement—property taken from
a financial institution

§2B3.1(b)(1)

+2

¶34

Enhancement—loss of over $10,000

§2B3.1(b)(7)(B)

Adjusted offense level:

+1
_______
23

As for the multiple count calculation under §3D1.4, however, the PSR
calculated a +2 enhancement, using the table in that guideline. Adding those

17

two levels to the highest offense level of 23 (for the Landmark robbery) resulted
in an adjusted offense level, before acceptance, of 25. ¶¶40-47.
Paragraph 48 of the PSR concluded that the petitioner did qualify as a
career offender under Guideline §4B1.1. The petitioner was at least 18 when he
committed the robberies (he was forty-one years old); the two robberies to
which he pled guilty were crimes of violence; and the petitioner had at least two
prior felony convictions for crimes of violence, including a 1985 federal
conviction in the Eastern District of Wisconsin for which he received a twentyyear sentence (¶57) and a 1995 federal conviction in the Eastern District of
Wisconsin for bank robbery for which he received a forty-six-month sentence
(¶58). Because the petitioner qualified as a career offender, §4B1.1 increased
his offense level to 34. ¶48. The PSR reduced that offense level by 3 for
acceptance of responsibility under §§3E1.1(a) and (b), resulting in an adjusted
offense level of 31. ¶¶49-51.
The petitioner had eight (8) criminal history points, which normally
would have placed him in criminal history category IV. ¶61. Because he
qualified as a career offender, however, his criminal history category increased
to VI. Id. Under the 2009 version of the Sentencing Guidelines, offense level 31
in criminal history category VI carried an advisory sentencing range of 188-235
months, or fifteen years eight months to nineteen years seven months. U.S.
SENTENCING GUIDELINES MANUAL §5A (2009).
Because the petitioner also had been convicted of the §924(c) charge,
however, the presentence writer was required to look to Guideline §4B1.1(c)(2)
18

to determine his advisory sentencing range. ¶52. That provision of the
guidelines states that the applicable guideline range for a career offender
convicted of a §924(c) charge is subject to either the range that results when
one adds the mandatory minimum consecutive sentence (eighty-four months)
to the low and high ends of the career offender range, or the sentencing range
in the table in §4B1.1(c)(3), whichever was greater. Id.
Adding the eighty-four-month mandatory minimum sentence to the low
and high ends of the guideline range resulted in an advisory sentencing range
of 272 (188 +84) to 319 (235 + 84) months. ¶53. The table in §4B1.1(c)(3)
resulted in an advisory guideline range of 262 to 327 months (because the
petitioner had received a 3-level reduction for acceptance of responsibility). U.S.
SENTENCING GUIDELINES MANUAL §4B1.1(C)(3) (2009); ¶53. Application note 3(B)
to §4B1.1 indicated that the “greater” range was the guideline range with the
“highest minimum term of imprisonment.” U.S. SENTENCING GUIDELINES MANUAL
§4B1.1, APPLICATION NOTE 3(B) (2009). Accordingly, the presentence report
concluded that the applicable advisory sentencing range for the petitioner was
272 to 319 months. ¶¶53, 104.
The petitioner’s attorney made two objections to the presentence report.
United States v. West, 08-cr-157 at Dkt. Nos. 66, 70. He objected to ¶12 (which
indicated that he’d pointed the toy gun during the May 12, 2008 robbery),
asserting that the petitioner didn’t point the gun at anyone, and he objected to
¶58 (which reflected the sentencing date in the petitioner’s 1995 federal case as
August 20, 1985), asserting that he was sentenced in that case on May 30,
19

1996. Id. at Dkt. No. 70. He did not object to the career offender classification,
or the presentence writer’s calculation of the advisory guideline range. So when
the petitioner arrived in the courtroom for his sentencing on January 28, 2010,
all of the parties—Judge Clevert, the prosecutor and defense counsel—were
using a presentence report that calculated an advisory sentencing range, to
which no party had objected, of 272 to 319 months, or twenty-two years eight
months to twenty-six years four months. Each bank robbery count carried a
statutory maximum penalty of twenty years, and the sentence mandated by
§924(c) for Count Four was seven years.
At the beginning of the sentencing hearing, Judge Clevert asked defense
counsel whether he had any “ongoing objections to the facts in the presentence
report.” Id. at Dkt. No. 84, page 4. Counsel responded that he did not. Id. When
Judge Clevert asked the government the same question, the prosecutor noted
that the defendant had maintained that the toy gun wasn’t pointed at anyone,
and she told Judge Clevert that she didn’t disagree. Id. The parties also agreed
that the date the petitioner was sentenced in the 1995 case was May 30, 1996.
Id. at page 6.
Judge Clevert then turned to the government and asked for the
prosecutor’s “position respecting the guidelines.” Id. at 8. The prosecutor
responded by making the recommendation she’d agreed to make in the plea
agreement and asking for a sentence of twenty years. Id. During her argument
in support of that sentence, the prosecutor stated, “The sentencing
recommendation by the government is clearly lower than that recommended by
20

the guidelines which starts at 262 months.” Id. at 10. This appears to have
been a misstatement, given that the presentence report reflected a low end of
272 months. Regardless, the prosecutor opined that “a 20-year sentence for
him would put him at quite an advanced age and I think protect the public
from further crimes.” Id. at 11. At that point, Judge Clevert said, “In other
words, you are asking the court not to impose a guideline sentence.” Id. The
prosecutor responded, “That’s correct, Judge.” Id.
At the end of her argument, the prosecutor asked Judge Clevert to
impose a sentence of twenty years, to dismiss Count Two of the indictment and
to impose a special assessment of $300. Id. Judge Clevert responded, “And I
also assume you’re asking the court to take into account three points for
acceptance of responsibility and are moving that the third count be allowed in
this particular case so that the defendant’s offense level will go down to 31.” Id.
This court suspects that Judge Clevert meant third “point,” not third “count.”
And the court suspects that he asked that question because in the plea
agreement, the government had agreed to recommend only the 2-level decrease
under §3E1.1(a), stating that “if the court determines at the time of sentencing
that the defendant is entitled to the [two]-level reduction under § 3E1.1(a), the
government agrees to make a motion regarding an additional one-level decrease
as authorized by Sentencing Guidelines Manual § 3E1.1(b) because the
defendant timely notified authorities of his intention to enter a plea of guilty.”
United States v. West, 08-cv-157, Dkt. No. 59 at ¶22. Judge Clevert was
making certain that the government was making a motion for that third point.
21

The prosecutor responded, “Yes, Judge, I think that would be appropriate in
this case, so I move for that at this time.” Id. at Dkt. No. 84, page 12.
Judge Clevert granted the government’s motion for the third point,
which, he said, “tak[ing] into account the defendant’s career offender status,
would result in a criminal history score of VI, a guideline range of from 272
months to 319 months as to counts one and three. And it would call for a
sentence of 84 months as to count four.” Id. He asked whether either party
disagreed with those calculations; defense counsel said he did not, as did the
prosecutor. Id. at 12-13.
Judge Clevert then noted that the eighty-four-month sentence on Count
Four “appears to be the required consecutive sentence.” Id. at 13. He asked
defense counsel whether he agreed or disagreed “as to how that is to be
calculated in light of the advisory guideline range of 272 and 319 months and
the government’s recommendation that a total of 240 months be imposed?” Id.
Defense counsel responded:
Would I disagree or agree with how that is calculated? We
didn’t—we don’t disagree with the guideline calculation and how
that—how the guidelines incorporate the mandatory minimum
sentence with the base offense level. I think that was correct how
that was interpreted by the Probation Office.
As far as how the—you know, how the judgment would look,
I don’t think we feel real strongly. Obviously, there has to be an 84month sentence at least, and there more than likely will be
considerably more than that. I don’t feel real strongly on how that is
actually worded.
Id. Judge Clevert explained that he was asking because he either could find
that the eighty-four months “would be on top of the advisory guideline range,”
22

or he could find that it is “built into the guideline range and would then be
subtracted.” Id. at 13-14. He opined that the government appeared to have
acknowledged in its recommendation that he could exercise the latter option.
Id. at 14. Defense counsel indicated that he had no objection “to the
government’s method.” Id. The prosecutor then chimed in, stating:
And, Judge, to clarify, I tried to do quick math while I was
sitting here, so if anyone wants to correct me that would be great.
But if we did it that way, it would be for 240 months inclusive of the
84? It would be 84 months with respect to count four and it would
be 156 months with respect to count one and three which would run
consecutive.
Id.
This exchange, admittedly, is confusing. As the presentence report
calculations reveal, the eighty-four-month mandatory minimum sentence was
built into the advisory range of 272 to 319 months. If Judge Clevert had
somehow added eighty-for months to the high and low ends of that range, and
then imposed a sentence within the resulting range, that sentence would have
been unlawful—it would have resulted from adding in the eighty-four-month
§924(c) sentence twice. But the government clarified the issue, explaining that
in asking for a twenty-year (240-month) sentence, it was asking for a sentence
of 146 months on each of the robbery counts, to run concurrently, and a
sentence of eighty-four months on the §924(c) count to run consecutively, for a
total sentence of 240 months, or twenty years.
Defense counsel began his arguments by asking to discuss the
psychological evaluation prepared by Dr. Levin off the record. United States v.
West, 08-cr-157, Dkt. No.84 at 15-16. In particular, counsel stated that he
23

wanted to discuss the petitioner’s health status. Id. at 16. Judge Clevert took a
short recess and met with counsel in his chambers. Id. When the lawyers
returned to the courtroom, defense counsel began his presentation with the
following:
As has been discussed, Mr. West is 52 years old. According to
a study by the—I think it was an August 2009 study by the Center
for Disease Control, the average lifespan for an African-American
male right now is 70 years old. So I think the government’s
suggested sentence of 20 years might very well result in Mr. West
dying in prison.
And I think, given Mr. West’s health concerns that were raised
in the evaluation of Dr. Levin, in addition to his high blood pressure
that has been discussed in the presentence report, he is certainly
someone who has health problems and might get sick down the
road.
Id. at 17. Counsel cited a case in which the Seventh Circuit indicated that
sentencing courts should be cautious in imposing sentences that could turn
out to be death sentences, and argued that Judge Clevert should “study very
carefully here whether a 20-year sentence is absolutely sufficient and not
greater than necessary to comply with the purpose of sentencing.” Id. at 18.
Counsel argued that twenty years was greater than necessary, and
recommended a sentence “in the neighborhood of 10 to 15 years, coupled with
a significant term of supervised release of five years . . . .” Id.
In making this recommendation, counsel argued that the petitioner’s age
was a significant factor, because recidivism rates decline as age increases. Id.
Counsel argued that if Judge Clevert sentenced the defendant to fifteen years,
he would be “approximately 65 when good-time is calculated when he is

24

released.” Id. at 20. Counsel discussed the petitioner’s positive work history,
and his history of being abused. Id.
The petitioner himself spoke to Judge Clevert, admitting that he
shouldn’t have gotten involved in the bank robberies and that he didn’t have
anyone to blame but himself. Id. at 23. He asked the court to be lenient. Id.
Defense counsel followed up by pointed out that Dr. Levin found that the
petitioner did not have antisocial personality disorder, which, along with the
petitioner’s remorse, should show that he was less likely to commit crimes in
the future. Id. at 23-24.
Judge Clevert began his remarks by stating, “Well, Mr. West, when I look
at your criminal history it is certainly clear that you are indeed considered and
have been found a career criminal. Your criminal history includes crimes of
violence.” Id. at 24. The judge reviewed the prior bank robbery convictions, and
found that the petitioner’s history suggested that it was more likely than not
that he would “not successfully complete a term of supervision.” Id. at 25.
Judge Clevert said he had “reservations” about imposing a sentence that would
put the petitioner “back on the streets sooner rather than later.” Id.
On the other hand, the judge said, the petitioner didn’t seem to have
been arrested or charged between completing his parole on the 1995 case and
committing the robberies in 2008. Id. at 26. Judge Clevert opined that that
meant the petitioner had showed that he could “live in the community.” Id.
That said, Judge Clevert pointed out that the petitioner had followed up a
relatively successful period of release with bank robberies, where employees
25

were put in fear of their lives and where someone could have been hurt. Id.
Judge Clevert felt that the petitioner’s remarks showed that he was aware of
the bad judgment that he’d shown, and found that the petitioner was “older
than the average criminal;” he pointed out that statistics suggested that people
over fifty committed fewer crimes and were less likely to reoffend. Id. at 26-27.
Judge Clevert then turned to the petitioner’s health. Id. at 27. He stated:
There are health issues which the court has been alerted to,
and those too have to be taken into account by the court. 18 U.S.C.
Section 3553(a)(2) requires nothing less. I say that in part because
when folks get older they tend to see doctors more often. And if you
are incarcerated, that means that the public will ultimately be
paying the price. And if a person is older in prison, there probably
is a likelihood that they will call upon the system to take care of
whatever ills may crop up.
Now, that’s a plus and a minus. It’s a plus in the sense that it
provides—a prison setting provides a person with the opportunity to
get regular medical care and attention. Considering your
employment history and your current circumstances, it is certainly
questionable whether or not you would get the same level of care in
the community, especially in light of what’s going on in Washington
today. A healthcare bill has not been passed by the Congress, and
there is no guarantee that any person without healthcare will have
anything other than perhaps the likes of BadgerCare if he or she
stays in the community. There’s certainly no indication that you
have independent means that you can use to obtain good and
regular healthcare outside of a prison setting.
Id.
Judge Clevert moved on to talk about the impact of the bank robberies
on the victims, and the fact that the petitioner had accepted responsibility and
been cooperative (which he found to be a factor in the petitioner’s favor). Id. at
28.
At this point, Judge Clevert pronounced the sentence.
26

As mentioned previously, the sentencing guidelines in this
case, which are advisory, suggest a sentence between 272 and 319
months, with 84 of those months applying to count four, which is to
be a consecutive sentence in your case.
The government has recommended a 240-monoth sentence
which it calculates based upon its view that you have indeed been
of assistance to the government and you have accepted
responsibility for your crime.
Your attorney has asked for less and has noted the Seventh
Circuit’s comments to the effect that a sentence which is
tantamount to a life sentence is one that the court should not
entertain without thorough deliberation and consideration.
So with all of that having been said, this court believes that a
20-year sentence in this case is a little greater than is necessary
under the circumstances with due regard for all of the factors that I
have just articulated.
The court is therefore imposing the following sentence in your
case:
As to counts one and three, the court imposes a sentence of
146 months.
As to count four, the court imposes a sentence of 84 months
to run consecutive to counts one and three which are to run
concurrently.
This sentence is no greater than necessary under the
circumstance and, in the court’s view, is reasonable in light of all
the considerations which have been set forth on the record. It is
below the advisory guideline range, but I believe it’s sufficiently long
so as to promote respect for the law, so as to deter adequately those
who might be inclined to commit crimes. I certainly believe because
of your age at the time you are likely to be released, even after you
are—even after you receive good-time, that the public will be
protected. The sentence will also ensure that you receive healthcare
that may not likely be available to you outside of a prison setting. It
will also provide you with psychological counseling which I believe
is necessary and appropriate in order for you to be readjusted and
for you to deal with all the circumstances which have been
addressed in the presentence report and the accompanying
documents.
27

Id. at 28-30.

E.

Application of Law to the Facts
1.

Ground One—Calculation of the Guidelines

In Ground One of his petition, the petitioner asserts that Judge Clevert
did not rely on or compute the applicable guideline range. As the above facts
show, that is incorrect. Judge Clevert observed that granting the petitioner
three acceptance of responsibility points “would result in a criminal history
score of VI, a guideline range of from 272 months to 319 months as to counts
one and three. And it would call for a sentence of 84 months as to count four.”
Id. at 12. Later, when rendering his sentence, Judge Clevert said, “[a]s
mentioned previously, the sentencing guidelines in this case, which are
advisory, suggest a sentence between 272 and 319 months, with 84 of those
months applying to count four, which is to be a consecutive sentence in your
case.” Id. at 28. And, on the petitioner’s first direct appellate review, the
Seventh Circuit explained that it had considered whether Judge Clevert
properly calculated the guidelines and concluded that the district court “did
not rely on an impermissible factor in sentencing or err procedurally in any
other way.” West, 628 F.3d at 425. Judge Clevert calculated the guideline
range and relied on it, and the petitioner’s trial lawyer was not ineffective for
failing to argue otherwise.

28

The petitioner appears to acknowledge this at page 3 of his brief in
support of the motion, because he recounts the guidelines calculations as
provided above. Dkt. No. 2 at 3. He asserts, however, that
[a]t the sentencing hearing, the Court opined the career offender
guideline range was too harsh for West, especially since West had
not committed a series of crimes, and that West had committed no
crime since 2000. The Court held that West did not qualify under
the intent of the career offender guideline, and the Court decided
not to rely upon that range as the starting point for West’s sentence
computation. This rejection of the career offender guideline is
countenanced by Seventh Circuit precedent. US V. CORNER 598
F.3d 411, 445 (7th Cir. 2010). The Court rejected the career criminal
enhancement, see TR 1/28/2010, pg 20, ln 51-4. The Government
and West agreed.
Id. Later in his brief, he says, “[t]he Court, and the parties, out of hand
dismissed the career offender guideline range as inappropriate as potentially
applied.” Id. at 4. In his petition, he stated that “[t]he Court, the Defendant,
and the Government agreed that although West had the predicate two prior
convictions to be considered a career offender pursuant to U.S.S.G. § 4B1.1,
the applicable sentence range and his criminal history precluded application.”
Dkt. No. 1 at 6-7.
The petitioner’s assertions are flatly contradicted by the sentencing
transcript, and the plea agreement. Nowhere in the sentencing transcript did
Judge Clevert reject the career offender classification; in fact, he expressly
found that the defendant was a career offender. Nowhere in the transcript did
defense counsel or the government argue that petition was not a career
offender. The petitioner cited “TR 1/28/2010, pg 20, ln 5-14” in support of this

29

argument; those lines are from defense counsel’s argument in favor of a lower
sentence. They read:
[The petitioner] has proven an ability to conform himself to the
law. He was on supervised release from 2000 to 2003, and that
seemed to go pretty well. He worked consistently for about five to six
years at Imperial Parking. He had no run-ins with the law from 2000
until this offense in 2008. So I think [the petitioner] has shown an
ability to conform with the law, to comply with conditions on
supervised release. And certainly at age 65, with high blood pressure
and perhaps other medical issues, [the petitioner] is just not going
to be in a condition to think about violating the law.
West, Case No. 08-cr-157, Dkt. No. 84 at 20. There is no mention of the career
offender guideline in these lines. Elsewhere in the hearing, defense counsel
admitted that the petitioner qualified as a career offender. Id. at p. 19 (“And
also I think Mr. West, he is in criminal history category VI based on the career
offender classification, but based on the actual points he has accrued he would
be in criminal history category IV[.]”). Judge Clevert considered the petitioner a
career offender. Id. at p. 24 (“Well, Mr. West, when I look at your criminal
history it is certainly clear that you are indeed considered and have been found
a career criminal. Your criminal history includes crimes of violence.”). The
petitioner acknowledged in his plea agreement that he might qualify as a career
offender; he did qualify, and the guidelines Judge Clevert relied upon were the
guidelines applicable to a career offender who had been convicted of a §924(c)
charge.
The court cannot imagine any argument the petitioner’s trial counsel
could have made to challenge the career offender classification. As noted, the
petitioner met all of the qualifications under §4B1.1(a)—he was at least
30

eighteen at the time he committed the robberies, the robberies were crimes of
violence (certainly the May 23 armed robbery was) and the defendant had two
prior felony convictions for crimes of violence. The petitioner’s counsel would
have had no legal argument that the petitioner did not qualify. The only
argument defense counsel could have made was the one he did make—that
Judge Clevert should impose a sentence below the career offender guidelines
(and below the government’s recommended sentence). That is what he did; he
did not provide ineffective assistance.
Next, the petitioner argues that the government had agreed to
recommend a sentence “not to exceed twenty years,” (brief, dkt. no. 2 at 4), or
“less than 20 years,” (petition, dkt. no. 1 at 7). He argues that Judge Clevert
erroneously used twenty years as a starting point, rather than using the
guidelines, and “worked backward to craft the sentence imposed.” Dkt. No. 2 at
4. He alleges that Judge Clevert “presumed 240 months imprisonment,
subtracted 84 months for the gun charge, which left 156 months. A term of
146 months was imposed for the robberies, resulting in a 230 month
sentence.” Id.
The petitioner is incorrect about the government’s agreed
recommendation—it did not agree to recommend a sentence “not to exceed”
twenty years, or a sentence of “less than” twenty years. The government agreed
to recommend a sentence of twenty years—period. West, 08-cr-157 at Dkt. No.
59, ¶26. Regardless, even if the petitioner is correct that Judge Clevert did start
with the government’s 240-month recommendation rather than the guidelines,
31

that was a benefit to the petitioner. The low end of the guideline range was 272
months—almost three years more than the government’s twenty-year
recommendation. If Judge Clevert did work backward from twenty years, he
worked backward from a below-guidelines sentence. The petitioner’s trial
counsel was not ineffective for refusing to challenge Judge Clevert’s sentence
on that ground.
The petitioner also asserts that “since his applicable guideline range of
Offense Level 21, Criminal History Category IV results in an advisory range of
57 to 71 months,” dkt. no. 1 at 7, the 146-month sentence Judge Clevert
imposed was “nearly two and one-half times the applicable range average,” dkt.
no. 2 at 5. The petitioner would be almost right if he had not qualified as a
career offender. If he hadn’t qualified as a career offender, he would have had
an adjusted offense level of 22 in criminal history category IV and a sentencing
range—on the robberies alone—of sixty-three to seventy-eight months. But he
was a career offender, as the court has explained. He met all the
requirements—he was over eighteen when he committed the offenses, the
offenses were crimes of violence and he had two or more felony convictions for
crimes of violence. His lawyer conceded that he was a career offender and did
not object. The government argued that he was a career offender. Judge Clevert
found that he was a career offender. What the petitioner’s sentence might have
been if he hadn’t been a career offender is irrelevant. The petitioner’s lawyer
was not ineffective in not raising this argument.

32

Finally, even if the petitioner could show that Judge Clevert erred in
concluding that he was a career offender, the Seventh Circuit has held that an
“erroneous determination that the petitioner was a career offender in
calculating his sentence was not a cognizable error under § 2255 post-Booker.”
Coleman, 763 F.3d at 708 (citing Hawkins, 706 F.3d 820).
The petitioner is not entitled to §2255 relief on Ground One.
2.

Ground Two—Tapia v. United States

The petitioner’s second ground for relief is that Judge Clevert gave him a
longer sentence so that he could receive health care, and he argues that under
Tapia, this was impermissible. Dkt. No. 1 at 7. The petitioner concedes that the
Supreme Court decided Tapia after his first appeal became final but argues
that his lawyer was ineffective for failing to raise Tapia in the second appeal. Id.
In support of this argument, the petitioner also asserts that the 2010
Affordable Care Act would have made it easier for him to get health care and
that as a veteran, he is eligible for medical care through the Veteran’s
Administration. Dkt. No. 2 at 7. He asserts that “[i]n the first direct appeal, the
Seventh Circuit affirmed the sentence due to West’s need for healthcare, even
without determining how much the sentencing court had departed from the
computed guidelines,” and argue that “[i]n light of TAPIA, that decision is no
longer valid.” Id.
In Tapia, the petitioner had been convicted of, among other things,
smuggling unauthorized aliens into the United States. Tapia v. United States,
564 U.S. at 321. The district court had calculated her guidelines range at forty33

one to fifty-one months and imposed a fifty-one-month sentence (the high end
of the applicable range) followed by three years of supervised release. Id. “In
explaining its reasons, the [district] court referred several times to Tapia’s need
for drug treatment, citing in particular the Bureau of Prison’s Residential Drug
Abuse Program (known as RDAP or the 500 Hour Drug Program).” Id. The
district court twice indicated that Tapia’s prison term should be long enough
for her to complete that program, saying that
[t]he sentence has to be sufficient to provide needed correctional
treatment, and here I think the needed correctional treatment is the
500 Hour Drug Program.
* * * *
Here I have to say that one of the factors that—I am going to impose
a 51-month sentence, . . . and one of the factors that affects this is
the need to provide treatment. In other words, so she is in long
enough to get the 500 Hour Drug Program, number one.
Id. On appeal, Tapia argued that the court erred in lengthening her sentence to
make her eligible for RDAP. Id. at 322.
The Supreme Court reviewed the history of the Sentencing Reform Act of
1984; in particular, it looked at 28 U.S.C. § 994(k), which directed the U.S.
Sentencing Commission to “ensure that the Guidelines ‘reflect the
inappropriateness of imposing a sentence to a term of imprisonment for the
purpose of rehabilitating the defendant or providing the defendant with needed
educational or vocational training, medical care, or other correctional
treatment.’” Id. at 329-330. The Court held that §3582(a) “prohibit[ed] a court
from considering those needs to impose or lengthen a period of confinement
when selecting a sentence from within, or choosing to depart from, the
34

Guidelines range.” Id. at 330. It concluded that the sentencing judge’s
comments “suggest[ed] that the court may have calculated the length of Tapia’s
sentence to ensure that she receive certain rehabilitative services,” id. at 334,
and remanded for further proceedings, id. at 335.
The Court explained, however, that it did not disapprove of the
sentencing court’s discussion of the need for rehabilitation. Id. at 334. The
Court explained that
[a] court commits no error by discussing the opportunities for
rehabilitation within prison or the benefits of specific treatment or
training programs. To the contrary, a court properly may address a
person who is about to begin a prison term about these important
matters. And as noted earlier, a court may urge the BOP to place an
offender in a prison treatment program. . . . Section 3582(a) itself
provides, just after the clause at issue here, that a court may “make
a recommendation concerning the type of prison facility appropriate
for the defendant”; and in this calculus, the presence of a
rehabilitation program may make one facility more appropriate than
another. So the sentencing court here did nothing wrong—and
probably something very right—in trying to get Tapia into an
effective drug treatment program.
Id. at 334.
Tapia is distinguishable from the petitioner’s case, and the petitioner’s
lawyer was not ineffective in failing to raise the Tapia issue in the second
appeal. The court in Tapia not only sentenced the defendant within the
guideline range, but chose the high end of the range for the stated purpose of
making sure Tapia qualified for the RDAP program. In contrast, Judge Clevert
not only did not impose a sentence at the high end of the guideline range, but
imposed a sentence below the low end of the range—forty-two months, or three
and a half years, below the low end of the range. Far from electing to give the
35

petitioner the highest sentence the guidelines allowed in order to provide him
with health care, Judge Clevert imposed a below-guidelines sentence (and a
sentence below the government’s recommendation) despite acknowledging that
the petitioner needed health care and speculating that he might find it hard to
obtain outside prison.
Judge Clevert analyzed the petitioner’s medical needs, and noted that as
people get older, they tended to need more medical care. West, Case No. 08-cr157, dkt. no. 84 at 27. He observed that for an older incarcerated person, the
public paid the price for the inmate’s increased medical needs, because the
older inmate likely would need to see prison medical staff for “whatever ills crop
up.” Id. Judge Clevert then said, “Now, that’s a plus and a minus.” Id. He
apparently meant that it was a “plus” for the petitioner, because he went on to
discuss that the petitioner, given his financial circumstances, might find it
hard to obtain medical care outside of prison. Id. Judge Clevert did not explain
what he believed the “minus” was. But he did not go on to say, “so I am going
to give you a higher sentence, to give you the opportunity to obtain free prison
medical care for a longer time.” While Judge Clevert did state at page 29 of the
transcript that he believed the sentence he imposed would allow the petitioner
to receive both health and psychological care, he did not state that he was
imposing a longer sentence to make sure the petitioner received that care.
The petitioner’s Tapia argument assumes that the 230-month sentence
Judge Clevert imposed was an above-guidelines sentence. As the court has
discussed, it was not. It was a below-guidelines sentence, and a sentence below
36

the government’s recommendation. Only if Judge Clevert miscalculated the
guidelines, or imposed a sentence at the high end of the guideline range to
make sure the petitioner received medical care, would he possibly have
committed a Tapia violation, and he did not. Judge Clevert did what 18 U.S.C.
§3553(a)(2)(D) requires sentencing judges to do—“consider . . . the need for the
sentence imposed . . . to provide the defendant with needed . . . medical care,
or other correctional treatment in the most effective manner.” He considered
that as one of the numerous §3553(a) factors, and came to the conclusion that
all of those factors warranted a below-guidelines sentence of 230 months. The
petitioner’s counsel was not ineffective in failing to make a Tapia argument in
the second appeal.
The petitioner’s arguments that the passage of the Affordable Care Act in
2010, after his sentencing date, or the fact that as a veteran he can obtain
medical care at the VA, do not demonstrate that his counsel was ineffective. At
the time Judge Clevert imposed sentence, the Affordable Care Act didn’t exist;
counsel could not argue that Judge Clevert erred in failing to consider a factor
that did not exist as of the sentencing date. The court also notes that it was the
petitioner, through his counsel, who urged Judge Clevert to consider the
petitioner’s health needs when considering the appropriate sentence. Counsel
made that request as part of his argument that Judge Clevert should impose a
lower sentence than the 240 months the government recommended. While
Judge Clevert did not end up imposing the 120- to 180-month sentence
defense counsel suggested (a sentence seven and a half to twelve and a half
37

years below the low end of the guideline range), Judge Clevert did impose a
below-guidelines sentence, as defense counsel asked. The petitioner cannot
prevail on Ground Two of the petition.
3.

Ground Three—The Government Violated the Plea
Agreement by Recommending a Twenty-Year Sentence
without Reducing that Recommendation by the Time
the Petitioner Would Have to Serve for Violating Parole

The court has noted that the petitioner had a 1985 federal conviction for
bank robbery, reflected at ¶57 of the PSR. That case, United States v. West,
Case No. 85-cr-70, is so old that it is not reflected on the court’s electronic
docketing system. It also pre-dates the creation of the sentencing guidelines
and the statutory scheme that abolished parole in the federal system.
Paragraph 57 of the PSR, however, indicates that on August 20, 1985, the
court sentenced the petitioner to twenty years of imprisonment on each of
Counts 1 and 2, to run concurrently, and ten years on Count 3, to run
concurrently, for a total sentence of imprisonment of twenty years. The
petitioner was paroled on June 26, 1995, spent some time in Parsons House (a
halfway house in Milwaukee), then went to live with his mother and began
working. When he was convicted of the 1995 bank robbery in United States v.
West, Case No. 95-cr-207-RTR, the Parole Commission was notified, and the
petitioner’s parole was revoked on August 4, 1999. He was paroled again on
November 13, 2000, again spend some time at Parsons House, and was serving
his parole term when he was arrested on the instant bank robberies on May
24, 2009. The PSR indicated that “[t]he Parole Commission was notified of the

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instant offense and a warrant was issued, however, no hearings have been
scheduled.”
Ground Three of the §2255 petition stated that the petitioner “will serve
7½ years “for the “pending parole violation.” Dkt. No. 1 at 8. The petitioner
calculated that, adding the 230-month sentence Judge Clevert imposed to the
seven-and-a-half-year sentence he said he would receive on the parole violation
would result in his serving “26½ years,” which meant that he would “not exit
prison at 68 years old as contemplated by the Court.” Id. He asserted that this
he would not serve the term “envisioned by the Court which violates his Fifth
Amendment due process guarantee.” Id. He characterized this argument as an
argument that Judge Clevert accepted the government’s recommendation of a
sentence of “less than 20 years,” but “wrongly computed the sentence whereby
the term imposed will result in 26 ½ years imprisonment.” Id.
The petitioner phrased the argument differently in his brief. There, he
first implied that the government had violated the plea agreement by
recommending that he be sentenced to twenty years “without regard for the 90
month parole violation already anticipated.” Dkt. No. 2 at 8. He said that he
“[sought] enforcement of the plea promises.” Id. He claimed that the
government’s promise in the plea agreement to recommend a twenty-year
sentence “included the 7½ year term left to serve as a parole violation on the
prior charge,” and asserted that “[a]ll parties were aware of this outstanding
term.” Id. at 9.

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The petitioner also argued that the twenty-year sentence that he had
anticipated “is compiled by adding the guideline sentence for bank robbery
(Offense Level of 21, Criminal History Category IV, 57-71 months, 64 month
median sentence) of 64 months, plus 84 months brandishing of firearm, plus
90 months parole violation for Case Number 85 CR 070, see US V. WEST 7
F.3d 238 (7th cir 1993).” Id. at 8. Using this calculation, the petitioner asserts
that “[t]he total term in prison is 238 months, and is the sentence West was
presented when he agreed to enter the guilty plea.” Id. He asserts that his “age
at the time of release was pivotal in the Government’s recommendation,” noting
that the prosecutor had commented that a twenty-year sentence would result
in the petitioner being released at an advanced age. Id. at 8-9. He also asserted
that Judge Clevert had stated that he wanted to impose a sentence “which
would not be tantamount to a life sentence,” and that he had imposed the 230month sentence with that concern in mind. Id. at 9.
The petitioner concluded:
West committed the crime at 52 years old, and he has several
health concerns. Leaving prison at 70 years old (which good time
credits) would put him on the street at his life expectancy. This is
what he signed for, and what he expected. West seeks enforcement
of the plea agreement and sentencing, including all imprisonment
based on this charge, to be compiled within the 20 year promise.
Id.
The government has responded that there is nothing in the record to
support the petitioner’s arguments. Dkt. No. 7 at 7-8. It adds that the Bureau
of Prisons’ web site shows that the petitioner’s anticipated release date is
February 2025—fifteen years from his sentencing date, and fifteen and a half
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years or so from the date he was arrested for the bank robberies and detained.
Given that Judge Clevert sentenced the petitioner to 230 months—nineteen
years and two months—the government deduces that the petitioner must not
have received any additional time for the parole violation. Id. at 8.
Faced with this information, the petitioner asked in his reply brief that
the court “stay and abey this issue pending future adjudication of West’s parole
violation by the Parole Commission.” Dkt. No. 12 at 4. He also asserted in a
footnote that the person who prepared his §2255 petition didn’t thoroughly
research the issue, and that “[u]pon further research by this writer the
government is correct and this issue at this time appears to be without merit
but may ripen at a later date.” Id. at 4 n.2. The petitioner never has responded
to Judge Clevert’s March 31, 2017 letter asking him to clarify whether he
wanted to withdraw the issue. Dkt. No. 17.
The court will not “stay” a ruling on this issue, because the petitioner’s
claim has no merit. There is no evidence anywhere in the record to support the
petitioner’s claim that the government promised to recommend a “global”
sentence of twenty years for this case and any parole revocation in the 1985
case. The plea agreement says nothing about the 1985 case or about a parole
violation sentence. There was no mention of a parole violation sentence at the
sentencing before Judge Clevert. According to the PSR, the Parole Commission
had not even scheduled any hearings on the violation as of the time of the PSR.
The petitioner insists that he is facing a seven-and-a-half-year sentence
for the parole violation. The court has no idea where the petitioner gets that
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from. He cited a Seventh Circuit case, United States v. West, Case No. 90-2768,
1993 WL 394822 (7th Cir. Oct. 7, 1993). That four-paragraph, unpublished
decision is an order affirming the district court’s denial of the petitioner’s
motion to amend his sentence. Id. at 1. It says that the petitioner had asserted
“that the imposition of special assessments on Counts 1 and 2 was illegal
because the terms of imprisonment on those Counts run concurrently.” Id. The
Seventh Circuit rejected the petitioner’s argument in two paragraphs,
concluding that “the special assessments ordered by the court were required
pursuant to 18 U.S.C. § 3013(a)(2)(A) and do not invalidate the sentence.” Id.
This case has nothing to do with the petitioner’s parole, nothing to do with
violation of the parole.
There is nothing in this record to support the petitioner’s claims that the
government promised him that the twenty-year sentence would include any
parole violation term. There is nothing in this record to support the petitioner’s
claim that the government’s recommendation of a twenty-year sentence
violated the plea agreement; exactly the opposite is true. There is nothing in
this record to support the petitioner’s claim that Judge Clevert miscalculated
his sentence. There is nothing in this record to support the petitioner’s
calculations. There is nothing to indicate that the petitioner’s counsel was
ineffective in any way relating to this issue, and the petitioner is not entitled to
relief on this claim.

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4.

Ground Four—Ineffective Assistance of Counsel

The petitioner’s final ground for relief asserted that his counsel, Brian
Mullins, provided ineffective assistance of counsel by “fail[ing] to alert the
Court to the seven and one-half years West would serve on the parole violation,
which resulted in the Court computing a sentence longer than the Court stated
it was attempting to do,” by “fail[ing] to advocate, or even compute, the
applicable guideline without the career offender enhancement, thereby denying
the Court a starting point for the sentence,” and by “fail[ing] to raise a TAPIA
issue within the second direct appeal.” Dkt. No. 1 at 8-9. The petition asserted
that “[i]f not for Counsel’s failures, West had a reasonable probability of
receiving a shorter prison term.” Id. at 9.
To prevail on a claim for ineffective assistance of counsel, the petitioner
must make a two-fold showing: first, that his counsel’s actions fell below an
objective standard of reasonableness and second, that his counsel’s deficient
performance prejudiced the petitioner. Delatorre, 847 F.3d at 845 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). In order to show that his
counsel’s performance fell below an objective standard of reasonableness, the
question “is not whether counsel’s conduct ‘deviated from best practices or
most common custom,’ but instead, ‘whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms.’” Id. (quoting
Sussman v. Jenkins, 636 F.3d 329, 349-50 (7th Cir. 2011)).
The court has analyzed each of the grounds/arguments the petitioner
says Mullins should have raised and has concluded that none of them have
43

merit. And because “an attorney is not ineffective for failing to raise a meritless
argument,” Washington v. Boughton, 884 F.3d 692, 701 (7th Cir. 2018), the
petitioner cannot demonstrate that his counsel was ineffective.
The court cannot leave this argument, however, without expressing a
grave concern about one facet of the petitioner’s ineffective assistance
argument. In his brief, the petitioner asserted that in an attached affidavit from
Attorney Mullins, Mullins admitted that he “inadvertently did not raise the
TAPIA issue in the direct appeal,” and confirmed that he and the petitioner had
contemplated that “a sentence of 7 years less than imposed.” Dkt. No. 2 at 11.
The petitioner relies on these admissions to argue that Mullins erred by failing
to raise these arguments at his sentencing, and that the petitioner received a
longer sentence “than he was led to anticipate.” Id.
The petitioner did attach a document to his brief, at Dkt. No. 2-1. It
purports to be an affidavit from Brian P. Mullins. The court believes, however,
that the document is fraudulent. Instead of being notarized, as most affidavits
prepared by lawyers are, it purports to be a verified affidavit under 28 U.S.C.
§1746. People who don’t have access to notaries—such as incarcerated
persons—used verified affidavits. It does not contain Attorney Mullins’s
Wisconsin State Bar number; members of the Wisconsin bar are required to
include their bar numbers on documents they prepare and file. It is in the
same font and format as the petitioner’s other filings—it appears to have been
typed on a typewriter, in contrast to the documents Attorney Mullins filed in
the underlying case, which were full-justified and prepared on a word
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processor. It contains misspelled words and unofficial citations to cases.
Perhaps most troubling is the use of the first-person in paragraph seven,
which reads:
Before the Supreme Court pronounced the decision in TAPIA V. US
563 US ___, 180 L.ed 2d 357 (2011), which proscribed a district
court from tailoring a sentence to accommodate healthcare or drug
rehabilitation, I was sentenced in this case wherein the sentence
was lengthened due to the Court’s concern that I would receive
better healthcare in the Bureau of Prisons.
Dkt. No. 2-1 at ¶7 (emphasis added).
If, as the court suspects, the petitioner created the affidavit and forged
Attorney Mullins’s signature, or had someone else create the affidavit and forge
Mullins’s signature, the false, forged affidavit constitutes criminal perjury
under 18 U.S.C. §1621(2). Whoever signed Mullins’s name may have committed
forgery under Wisconsin law, in violation of Wis. Stat. §943.39. Whoever
prepared and caused the affidavit to be filed arguably attempted to commit a
fraud on the court.
It is clear to the court that the petitioner does not agree with the
sentence Judge Clevert imposed and does not want to serve the entirety of that
sentence. He has every right to try to challenge the sentence lawfully. But it is
not lawful to present falsified evidence to the court. The court cautions the
petitioner that if he files other fraudulent documents with this court or the
Seventh Circuit, he could face sanctions or the government could consider
filing criminal charges.

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IV.

Motion for Evidentiary Hearing (Dkt. No. 3)
Under Rule 8 of the Rules Governing Section §2255 proceedings, the

court has the discretion to determine whether to order an evidentiary hearing.
“Such a hearing is not required if ‘the motion and the files and the records of
the case conclusively show that the prisoner is entitled to no relief.’”
Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (quoting 28 U.S.C.
§2255(b)). The court has concluded that the petitioner is not entitled to relief,
and the court will deny the motion for an evidentiary hearing.
V.

Motions For Prompt Disposition (Dkt. Nos. 20, 23)
As the court noted earlier, this case has been fully briefed for four and a

half years; for almost three of those years, it was assigned to this judge. The
court deeply regrets its delay in issuing this order. Judge Randa, who presided
over one of the petitioner’s other cases, passed away in September 2016, and
Judge Clevert retired in March 2017, leaving this district with only three of its
four assigned Milwaukee judges. To date, Judge Randa’s successor has not
been appointed. The court’s case load has increased, and this court is severely
behind in issuing decisions, as evidenced by its delay in issuing this ruling.
The petitioner—and every other litigant in this district—deserves better, and
the court regrets that he did not get his answer as promptly as he deserves.
The court will deny the motions for prompt decision as moot.
VI.

Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2255 Cases, the court

must consider whether to issue a certificate of appealability. A court may issue
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a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Peterson v. Douma, 751 F.3d 524, 528 (7th
Cir. 2014) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The court
declines to issue a certificate of appealability, because no reasonable jurist
could debate that the petitioner’s claims do not warrant relief under 28 U.S.C.
§2255.
VII.

Conclusion
The court DENIES the petitioner’s motion to vacate, set aside or correct

sentence under 28 U.S.C. §2255. Dkt. No. 1.
The court DENIES the petitioner’s motion for an evidentiary hearing.
Dkt. No. 3.
The court DENIES AS MOOT the petitioner’s motions for prompt
disposition. Dkt. Nos. 20, 23.
The court DECLINES TO ISSUE a certificate of appealability.
The court ORDERS that this case is DISMISSED.
Dated in Milwaukee, Wisconsin this 31st day of January, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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