Tucker v. United States of America

Filing 5

ORDER signed by Judge Rudolph T. Randa on 11/4/2014. Tucker's motions for § 2255 relief, Case Nos. 14-C-1303 and 14-C-1304, are CONSOLIDATED for all further proceedings; all papers to be filed and docketed in lower case number 14-C-1303 onl y. 2 Tucker's MOTION to Appoint Counsel DENIED; 3 Tucker's MOTION for recusal DENIED; Tucker's request for release on bail DENIED. By 1/6/2015 government must file answer to all grounds for relief in the consolidated action. By 2/6 /2015 any attorney who represented Tucker at trial or on appeal may file reponse to Tucker's motion. (cc: all counsel, via US mail to Ivy Tucker at FCI Terre Haute, Attorneys Cheronis, Bernstein, Hicks, Flynn, Kulkoski, Kopec, Mooreshead)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
Case Nos. 14-C-1303, 14-C-1304
(Criminal Case No. 09-Cr-131)

-vsIVY TUCKER,
Movant.

DECISION AND ORDER
Movant Ivy Tucker (“Tucker”) filed a pro se motion for relief
pursuant to 28 U.S.C. § 2255, a supporting memorandum, and motions for
recusal and for the appointment of counsel. (ECF Nos. 1-4.) The action
was assigned Case No. 13-C-1303 (the “1303 action”). The § 2255 motion
raises claims of ineffective assistance of trial counsel (grounds one through
six, and eight through ten);1 denial of due process (ground seven); and
ineffective assistance of appellate counsel (ground eleven).
The same day, an attorney for Tucker filed a motion for relief
pursuant to 28 U.S.C. § 2255 and a supporting memorandum. The action

See Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009) (“Ineffective assistance
of counsel is a single ground for relief no matter how many failings the lawyer may have
displayed” (quoting Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005)).
1

was designated case number 14-C-1304 (the “1304 action”).

He also

requests an immediate evidentiary hearing, appointment of counsel to
represent Tucker in subsequent proceedings, and Tucker’s release on
reasonable bail during the pendency of this proceeding. The § 2255 motion
raises a claim of ineffective assistance of counsel based on failure to
investigate the facts, failure to mount a credible defense, and failure to
object to misleading and prejudicial statements by opposing counsel.
Rule 12 of the Rules Governing Section 2255 Proceedings provides
that the Federal Rules of Civil Procedure (and the Federal Rules of
Criminal Procedure) may be applied to a proceeding under § 2255, to the
extent that they are not inconsistent with the Rules for Section 2255
proceedings. Rule 42(a) of the Federal Rules of Civil Procedure provides
for the consolidation of actions if they have a common question of law or
fact. Both the 1303 and the 1304 actions attack a single conviction —
Tucker’s October 14, 2010, conviction in Case No. 09-Cr-131 for conspiring
to distribute heroin; thus, they relate to common facts. Both actions also
raise ineffective assistance of counsel claims, so they also raise commons
issues of law.

Furthermore, a movant may bring one motion for relief

pursuant to 28 U.S.C. § 2255 — any subsequent or successive motion must
be certified by the court of appeals before it can be filed. See Rule 9 of the
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Rules Governing Section 2255 Proceedings.

Based on the foregoing,

Tucker’s motions for § 2255 relief are consolidated for all further
proceedings. See Fed. R. Civ. P. 42(a). In accordance with Civil Local Rule
42(b), all papers must be filed in and docketed only in the lower case
number, the 1303 action.
Tucker seeks recusal of this Court pursuant to 28 U.S.C. § 455. His
six-page motion cites various rulings made by the Court during the course
of his criminal proceedings.
“[J]udical rulings alone almost never constitute a valid basis for a
bias or partiality motion.”
(1994).

Liteky v. United States, 510 U.S. 540, 555

Allegations of prejudice and bias based solely on prior judicial

rulings are not legally sufficient bases for recusal unless the movant can
show that the judge’s opinions derived from an extrajudicial source. Id.
Prior decisions of the Court are a proper basis for appeal, not for recusal.
Id. Tucker has not established a basis for the Court’s recusal; therefore,
his motion such relief is denied.
Furthermore, examination of the grounds raised by the motions do
not plainly establish Tucker is not entitled to relief; the Government will
be required to file an answer to all grounds for relief presented in the
consolidated action. See Rules 4 and 5 of the Rules Governing Section 2255
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Proceedings. Additionally, because the grounds for relief call into question
the representation provided by trial and appellate counsel, the Clerk of
Court is directed to send each of them a copy of this Decision and Order,
and they will be afforded an opportunity to respond to those grounds for
relief. After the answer and any responses by the former attorneys for
Tucker have been filed, the Court will decide whether to conduct an
evidentiary hearing.

See Rule 8 of the Rules Governing Section 2255

Proceedings. That decision may require appointment of counsel for Tucker,
if he qualifies for appointment of counsel under 18 U.S.C. § 3006A.
However, at this juncture the interest of justice does not require counsel be
appointed.

Therefore, Tucker’s motion for appointment of counsel is

denied.
Tucker’s request for release on bail is also denied. The request is
made in a single sentence without citation to any legal authority for the
request. (See 1304 action, Mem. 12.)
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Tucker’s motions for § 2255 relief, Case Nos. 14-C-1303 and 14-C1304, are CONSOLIDATED FOR ALL FURTHER PROCEEDINGS.
All papers must be filed in and docketed only in the lower
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case number, 14-C-1303.
Tucker’s motion for recusal (ECF No. 3) is DENIED;
On or before January 6, 2015, the Government must file an
answer to all grounds for relief presented in the consolidated action;
Such answer must comply with the requirements of Rule 5 of the
Rules Governing Section 2255 Proceedings;
The Clerk of Court is directed to send each of the attorneys who
represented Tucker in the criminal action and/appeal a copy of this Order;
On or before February 6, 2015, any attorney who represented
Tucker at trial or on appeal may file a response to Tucker’s motion;
Tucker’s motion for appointment of counsel (ECF No. 2) is DENIED;
Tucker’s request for release on bail is DENIED.
Dated at Milwaukee, Wisconsin, this 4th day of November, 2014.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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