Tyson v. United States of America

Filing 16

ORDER signed by Judge J.P. Stadtmueller on 1/30/2018: DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255; DISMISSING CASE with prejudice; and DENYING certificate of appealability. (cc: all counsel, via mail to Jason J. Tyson at Allenwood FCI) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON J. TYSON,
Petitioner,

v.

Case No. 17-CV-1274-JPS

UNITED STATES OF AMERICA,

ORDER

Respondent.

On September 21, 2017, Jason J. Tyson (“Tyson”), a federal prisoner,
filed a motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, asserting that his conviction and sentence were imposed in
violation of the Constitution. (Docket #1). The motion has been fully
briefed and, for the reasons stated below, it will be denied.
1.

BACKGROUND
Tyson is in federal custody serving a prison sentence for possessing

a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). During pretrial proceedings, Tyson filed a motion to suppress
the firearm, his statements, and other evidence obtained by law
enforcement. In the motion, Tyson argued that the stop by police officers
wherein they obtained this evidence was illegal either as an arrest or a
Terry stop. After conducting an evidentiary hearing, the assigned
magistrate judge, Judge William E. Duffin, recommended denial of
Tyson’s motion. That recommendation was later adopted by the district
court without objection from Tyson.
Thereafter, pursuant to a written plea agreement with the
government, Tyson entered a plea of guilty to the indictment. The plea

agreement allowed Tyson to preserve the suppression issues for appeal.
Subsequently, the court sentenced Tyson to a term of imprisonment of
sixty-two months—fifty for the instant offense and twelve more for a
related revocation proceeding disposed of in the same sentencing hearing.
Tyson appealed, but his appellate counsel raised only an issue related to
the Sentencing Guidelines, not the suppression issues. See United States v.
Tyson, 863 F.3d 597, 599 (7th Cir. 2017). The Seventh Circuit affirmed
Tyson’s sentence. Id.
2.

ANALYSIS
In the present case, the Court permitted Tyson to proceed on the

following two claims, both for ineffective assistance of counsel, in
violation of the Sixth Amendment.1 First, Tyson contends that he had
meritorious

objections

to

lodge

against

Magistrate

Duffin’s

recommendation on his suppression motion, yet his trial counsel failed to
object. Second, Tyson alleges that his appellate counsel refused his request
to raise the preserved suppression issues on direct appeal because she
believed the arguments lacked merit.
Courts apply the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), to evaluate the effectiveness of counsel
both at trial and on appeal. See Makiel v. Butler, 782 F.3d 882, 897 (7th Cir.
2015). First, the movant must show that his counsel’s performance was
deficient because it “fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687–88. Second, he must show that the deficient
performance prejudiced his defense, which means that “there is a
The Court did not allow Tyson to proceed on his other claim, that the
government somehow breached the plea agreement by appellate counsel’s
failure to appeal the suppression ruling. (Docket #2 at 4–6).
1

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reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
The Strickland standard is “highly deferential to counsel, presuming
reasonable judgment and declining to second guess strategic choices.”
United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (citation and
internal quotations omitted). There is a “strong presumption” that
counsel’s decisions constitute reasonable litigation strategy. Strickland, 466
U.S. at 696; United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 2005)
(“[B]ecause counsel is presumed effective, a party bears a heavy burden in
making out a winning claim based on ineffective assistance of counsel.”).
The Court will address the allegations Tyson makes against his trial
attorney, then those lodged against his appellate counsel.
2.1

Tyson’s Trial Counsel Was Not Ineffective

To establish ineffective assistance of trial counsel in the context of a
complete failure to file a suppression motion, a petitioner must prove that
the motion would have been meritorious. United States v. Cieslowski, 410
F.3d 353, 360 (7th Cir. 2005); Kimmelman v. Morrison, 477 U.S. 365, 384
(1986). Here, of course, Tyson’s counsel did in fact file a motion to
suppress. The problem is that she did not file objections to the magistrate
judge’s report and recommendation that the motion be denied. Yet
counsel is not required to engage in futile litigation. See Carter v. Douma,
796 F.3d 726, 735 (7th Cir. 2015); United States v. Hernandez-Rivas, 348 F.3d
595, 599 (7th Cir. 2003). Tyson must establish a reasonable probability that
filing such objections would have produced a different outcome. As
explained below, the objections Tyson says he wanted to make would not
have sufficed.

Page 3 of 18

2.1.1

The Magistrate’s Decision

Before evaluating Tyson’s desired objections to the magistrate’s
decision, the Court must briefly review that decision, issued by Magistrate
Judge William E. Duffin. Magistrate Duffin, who presided over an
evidentiary hearing and heard testimony from several witnesses, found
the facts as follows:
At around 1:37 a.m. on September 13, 2014, Police
Officer Michael Destefanis, who testified at the evidentiary
hearing, and his partner heard six gun shots while
performing a traffic stop on the 900 block of North 26th
Street in Milwaukee, Wisconsin. The gun shots appeared to
come from approximately 100 feet away to the northwest
and around the corner of a local tavern, Rickey’s on State.
Both officers “metered the corner,” a term meaning to
tactically view around a building.
Twenty-five to thirty seconds after hearing the gun
shots, the officers turned the corner and saw one only one
person: a man, later identified as Tyson, wearing a black
hooded sweatshirt and black pants, walking eastbound in
front of Rickey’s toward the officers. Officer Destefanis
commanded Tyson at gunpoint to put his hands up and
commence the surrender position; Tyson complied. The
officers handcuffed Tyson, searched him for weapons and
found none, and placed him in a squad car. Officer
Destefanis then noticed “several shell casings[,] one unspent
round, and also a slug from one of the shots that w[as]
fired.”
Sergeant Richard Hoffman (“Hoffman”), who also
testified at the evidentiary hearing, arrived on the scene four
or five minutes after the gun shots were fired. He was
informed by other officers of the incident and that a person
of interest had been detained. Sergeant Hoffman proceeded
to search for additional casings, blood, and bullet holes,
among other evidence.

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He came upon a parked blue minivan and inspected
the interior of the vehicle with his flashlight. Protruding
from beneath the front passenger’s seat was a black t-shirt
and a black 1911-style pistol. The gun was consistent with
the caliber of the casings found on the ground. The pistol
was in the locked-back position—a position that is executed
either manually or by the user expending all of its rounds.
Based on Sergeant Hoffman’s experience, the latter is more
likely when a firearm is in a vehicle. Sergeant Hoffman
pointed out the firearm to Officer Miles Kowalik
(“Kowalik”) and told him that he thought the gun was the
one from which the shots were fired. He then opened the
minivan’s unlocked door to search the rest of the vehicle.
Officer Kowalik was the third witness to testify at the
evidentiary hearing. After Sergeant Hoffman called him over
to observe the firearm, Officer Kowalik contacted the
dispatcher to learn the vehicle’s owner and registration. He
was told that the minivan was registered to Tyson’s
residence. Ten minutes after arriving on the scene, Officer
Kowalik and another officer entered Rickey’s to question
potential witnesses and to view video footage from an
outside security camera. Within twenty minutes after
arriving on the scene, Officer Kowalik viewed the security
footage. Officer Kowalik informed Sergeant Hoffman that
the video, although of poor quality, showed Tyson wearing
a black hooded sweatshirt, black jeans, and black shoes and
wielding a black cloth and firearm in one hand. Tyson
walked from the minivan eastbound to the front of Rickey’s
and fired several rounds. Tyson briefly returned to the
minivan, and then began walking eastbound a second time
when the officers arrived and commanded him to execute
the surrender position.
Sergeant Hoffman instructed Officer Kowalik to
arrest Tyson for the crime of endangering safety by use of a
dangerous weapon. The decision to arrest Tyson was based
on the following facts: Tyson’s close proximity to the shots
fired; the fact that he was coming from the direction where
the firearm was found; the firearm’s locked-back position

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indicated that all of its rounds had been expended; Tyson
appeared to match the description of the man in the video;
and the minivan was registered to Tyson’s residence. The
computer assisted dispatcher (“CAD”) report indicates that
Tyson was taken into custody at 2:12 a.m. Tyson was
transported to the district police station at 2:42 a.m.
United States v. Tyson, 14-CR-231-RTR (E.D. Wis.), (Docket #23 at 2–4).2
Tyson offered three grounds for suppression. First, he argued that
his initial detention by Officer Destefanis was actually an arrest, and that
no probable cause for an arrest existed at that point in time. Second, he
asserted that even if the initial detention was not an arrest, Officer
Destefanis did not have reasonable suspicion to stop him. Finally, he
contended that there was no probable cause to arrest him for being a felon
in possession of a firearm.
Ordinarily, an individual may not be detained without a warrant
unless police have probable cause to believe the person committed a
crime. Bailey v. United States, 568 U.S. 186, 192 (2013). One exception is
when police conduct a brief investigatory stop, known as a Terry stop. See
Terry v. Ohio, 392 U.S. 1 (1968). To conduct a Terry stop, police must have a
“reasonable suspicion that criminal activity is afoot.” Matz v. Klotka, 769
F.3d 517, 522 (7th Cir. 2014). Reasonable suspicion is more than an
“inchoate and unparticularized suspicion or hunch” but less than
“probable cause and. . .considerably less than preponderance of the
evidence.” Illinois v. Wardlow, 528 U.S. 119, 123–24 (2000). It requires
“‘some minimal level of objective justification’ for making a stop,” based
on the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7
Magistrate Duffin’s citations to the record were omitted from the Court’s
quotation, as they are unnecessary. Several other typographical alterations were
made to enhance readability.
2

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(1989) (quoting INS v. Delgado, 466 U.S. 210, 217 (1984)). “There is no
bright-line that separates a Terry stop from a formal arrest. The distinction
hinges on the intrusiveness of the detention, which is a ‘highly flexible
and highly fact-intensive’ inquiry.” Jewett v. Anders, 521 F.3d 818, 823 (7th
Cir. 2008) (internal citation omitted) (quoting United States v. Stewart, 388
F.3d 1079, 1084 (7th Cir. 2004)).
Applying these principles, Magistrate Duffin concluded that
Destefanis and his partner engaged in a lawful Terry stop when they
detained Tyson. First, the gun shots gave them reason to believe that a
crime had just occurred. Tyson was the only person in the vicinity,
providing a reason to stop him even though he did not exhibit any
suspicious behavior at that moment. See Leaf v. Shelnutt, 400 F.3d 1070,
1091 (7th Cir. 2005) (“[T]here could. . .be circumstances in which wholly
lawful conduct might justify the suspicion that criminal activity was
afoot.”).
Second, although a close call, the magistrate concluded that the
manner of the officers’ stop was reasonably related to the circumstances
giving rise to it. Terry, 392 U.S. at 20. In other words, the officers’ stop did
not transform into an arrest simply because they pointed their weapons at
him, handcuffed him, searched him, and put him in the squad car. These
actions brought the stop close to the line between a Terry stop and an
arrest, but Magistrate Duffin found that in light of the danger of recent
gunshots by an unidentified person just around the corner from the
officers, at night and in a high-crime area, their actions did not cross that
line. Matz, 769 F.3d at 524–25; Jewett, 521 F.3d at 824 (in differentiating
between an investigatory stop and an arrest, “the touchstone is
reasonableness: Were the officer’s actions reasonable in light of all the
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circumstances?”). Thus, Destefanis, who acted upon his fifteen years of
experience as an officer, had sufficient grounds to temporarily detain
Tyson in the manner he did to ensure that the officers could preserve the
integrity of the evidence, control the movement of the only person on the
scene, and protect Tyson from any additional gun fire. Nor was the
magistrate convinced that Tyson’s 35-minute detention transformed into a
de facto arrest by virtue of its length, as the Seventh Circuit has found far
longer detentions to not violate that rule, and there was no evidence that
the officers were not conducting their investigation diligently during that
time. United States v. Bullock, 632 F.3d 1004, 1015 (7th Cir. 2011); Jewett, 521
F.3d at 827 n.8.
Next, Magistrate Duffin found that Hoffman had probable cause to
order Tyson’s arrest. “Probable cause exists if at the time of the arrest, the
facts and circumstances within the officer’s knowledge are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in
the circumstances shown, that the suspect has committed. . .an offense.”
Ramos v. City of Chicago, 716 F.3d 1013, 1018 (7th Cir. 2013) (internal
quotations and ellipses omitted). Probable cause does not require
“demonstrating that it is more likely than not that the suspect committed a
crime.” Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). “So long as the
totality of the circumstances, viewed in a common sense manner, reveals a
probability or substantial chance of criminal activity on the suspect’s part,
probable cause exists.” United States v. Parra, 402 F.3d 752, 764 (7th Cir.
2005). The court reviews the evidence known by the officer ordering
Tyson’s arrest at the time he ordered the arrest. Tangwall v. Stuckey, 135
F.3d 510, 517 (7th Cir. 1998) (An “arrest is proper so long as the

Page 8 of 18

knowledge of the officer directing the arrest, or the collective knowledge
of the agency he works for, is sufficient to constitute probable cause.”).
The magistrate noted that at the time of the arrest, Hoffman knew
that Tyson was in the same vicinity from which the shots appeared to
come, that Tyson was apprehended while walking from the direction
where the firearm was found, that the minivan, containing a 1911-style
pistol and black cloth, was registered to Tyson’s mother, that the firearm’s
locked-back position indicated that that the firearm had likely expended
all of its rounds, and that Tyson matched the description of the man in
Rickey’s security camera footage. Given the facts and circumstances
within Sergeant Hoffman’s knowledge, said Magistrate Duffin, a prudent
person could reasonably conclude that Tyson committed the crime for
which he was arrested. Moreover, it does not matter that Tyson was
arrested for endangering safety by use of a dangerous weapon, in
violation of Wis. Stat. § 941.20(1)(a), but was ultimately charged with
being a felon in possession of a firearm, in violation of federal law. Ramos,
716 F.3d at 1018 (“[W]e have repeatedly held that the offense for which
probable cause exists need not be the subjective offense for which the
officer was conducting the arrest.”).
Finally, the magistrate observed that even if Tyson was right about
the unlawful search and arrest, he had not sufficiently identified what
evidence he wanted to have suppressed. Once a seizure is deemed
“illegal, it must then be determined ‘whether, granting establishment of
the primary illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.’” United
States v. Fields, 371 F.3d 910, 915 (7th Cir. 2004) (quoting Wong Sun v.
Page 9 of 18

United States, 371 U.S. 471, 483 (1963)). Tyson stated that he wanted “to
suppress all physical evidence obtained by the officers as the fruits of an
unlawful seizure.” This left the magistrate confused—did Tyson want the
bullet casings suppressed, or the video footage, or the gun? Not only did
he not make this request sufficiently clear, neither did he explain how any
of that evidence flowed from the allegedly unlawful seizure.
2.1.2

Tyson’s Sought-After Objections

Tyson assigns several errors to the magistrate judge’s ruling which
he believes should have been addressed in an objection lodged with the
district court. All are without merit.3
First, Tyson asserts that Magistrate Duffin erroneously concluded
that he had failed to identify what evidence he thought should be
suppressed. Tyson says that his amended motion to suppress clearly
identified such evidence as his statements to the police and the “physical
evidence, gathered as fruits of both a warrantless search. . .and unlawful
arrest.” (Docket #5 at 3). Tyson argues that in an objection he could have
linked the statements and the physical evidence by showing that the
officers used his statements that he lived at the same address that was

In his petition, Tyson also alleges that trial court counsel suffered from a
conflict of interest, citing Christeson v. Roper, 135 S. Ct. 891 (2015). In Christeson, a
capital case, the Supreme Court found a conflict of interest where an indigent
defendant’s counsel’s interest in avoiding damage to his own reputation was at
odds with his client’s strongest argument—that the same counsel had abandoned
him. Id. at 894. Here, Tyson’s counsel was not faced with a situation in which
objecting to the magistrate’s suppression ruling would require her to impugn her
own performance. Thus, Christeson has nothing helpful to say about this case. It
appears Tyson cited it for the proposition that attorneys can abandon their
clients, but this does not meaningfully advance his claim, nor is it the holding of
Christeson.
3

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listed on the van’s registration to make a connection to the shooting,
which then led the officers to search the van and discover the firearm. Id.
Tyson’s broad view of the evidence that flowed from the allegedly
unlawful conduct is not supported by the record. The testimony at the
evidentiary hearing before Magistrate Duffin established that the officers
matched the registration of the van to Tyson’s identification card.
Moreover, inside the van officers observed a black T-shirt consistent with
the black cloth held by Tyson in the surveillance video obtained from the
tavern, and a pistol in a lock back position signifying that rounds had
been spent. Ultimately, officers possessed multiple pieces of evidence
connecting Tyson to the van containing the firearm which, in turn, they
believed was Tyson’s. Thus, his contention that only his statements linked
him to the van is incorrect, and there could be no downhill stream of
suppression starting from those statements.
Tyson’s second assertion of error is that during the period for
briefing an objection to the report and recommendation the Seventh
Circuit’s decision in United States v. Smith, 794 F.3d 681 (7th Cir. 2015),
came down. Tyson claims that the case is factually analogous to his and, if
considered by the district court during its de novo review of Magistrate
Duffin’s report, would have required suppression of the evidence against
him. (Docket #5 at 4).
Yet Smith offers Tyson no relief. There, two bicycle patrolmen were
investigating gunshots they had heard. 794 F.3d at 683. Upon arriving in
the area from which they believed the shots had occurred—one block
from where they heard the shots—the officers observed a man exit an
alley on one side of the street (but not from the direction which the
gunshots had reportedly been fired), and cross towards an alley on the
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other side of the street. Id. Officers stopped him, and the Court of Appeals
found that this encounter was a seizure for which the police admittedly
had no reasonable suspicion or probable cause. Id. at 684.
Tyson’s case is nothing like Smith. First, the question here is not
whether Tyson consented to be stopped. He clearly did not. The question
is whether the officers in this case, faced with the particular circumstances
confronting them, had reasonable suspicion of criminal activity sufficient
to support a Terry stop. Magistrate Duffin concluded that they did. As a
result, whether Tyson consented to the stop is irrelevant.
Further, while the government in Smith conceded that there existed
no reasonable suspicion to support the stop in that case, here Magistrate
Duffin correctly found that the Terry stop was proper. Tyson was the only
person in the vicinity after a series of gun shots just around the corner
from the officers’ position a few seconds prior. Shell casings were found
around the corner from whence he and the gun shots came. Ultimately,
officers located a minivan on the street near Rickey’s registered to Tyson’s
address. The van contained a firearm which appeared to have been
recently discharged, and a black T-shirt much like the cloth depicted in
the surveillance video obtained from Rickey’s. Although of poor quality,
the video obtained from Rickey’s also depicted Tyson wearing a black
hooded sweatshirt, black jeans, and black shoes and wielding a black cloth
and firearm in one hand. Tyson was attired in this outfit. After
approximately thirty-five minutes of investigation, Tyson was placed
under arrest. Thus, considering the legal and factual dissimilarities
between his case and Smith, Tyson’s claim that Smith would have
provided relief is without merit.

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Finally, Tyson believes an objection to the magistrate’s decision
would have permitted him to raise the claim that Hoffman violated his
Fourth Amendment rights by peering into the van without probable cause
for a search. (Docket #14 at 2). Moreover, according to Tyson, even if
Hoffman had seen the gun in plain view, he could not assume it was
unlawfully possessed, as Wisconsin allows for concealed-carry of
firearms. Id. at 2–3.
This claim has been waived, however, as Tyson did not raise it until
his reply in support of his petition. Although this Court must construe pro
se filings liberally, including in the context of habeas petitions, Coulter v.
Gramley, 93 F.3d 394, 397 (7th Cir. 1996), in this instance he never
mentioned Hoffman’s search of the van as an issue of concern until it was
too late for the government to offer a response. Under these
circumstances, the Court need not consider an additional argument raised
for the first time in a reply brief. See Wilson v. Giesen, 956 F.2d 738, 741 (7th
Cir. 1992) (pro se prisoner waived argument on appeal by failing to raise it
until the reply brief); Zambrana v. United States, 790 F. Supp. 838, 843 (N.D.
Ind. 1992) (“Reply briefs are an improper vehicle for presenting new
arguments” in a habeas proceeding). Moreover, the claim is frivolous,
since “[t]here is no legitimate expectation of privacy. . .shielding that
portion of the interior of an automobile which may be viewed from
outside the vehicle by either inquisitive passersby or diligent police
officers.” Texas v. Brown, 460 U.S. 730, 740 (1983); United States v. Williams,
495 F.3d 810, 815 (7th Cir. 2007). There was nothing improper about
Hoffman’s peering into the van and seeing what was in the readily visible
areas of the passenger compartment.

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None of the objections Tyson wishes his counsel had raised in the
district would have had any reasonable possibility of success in
overturning the magistrate’s recommendation. Consequently, his trial
counsel was not ineffective for failing to raise such objections.
2.2

Tyson’s Appellate Counsel Was Not Ineffective

Tyson’s other claim in this proceeding is that his appellate counsel
ignored his request to appeal the preserved suppression issues. Tyson
reports that appellate counsel told him the issues would not make any
difference in the appeal. (Docket #1 at 4).
Under the Strickland performance prong, appellate counsel’s
performance is constitutionally deficient if counsel fails to appeal an issue
that is obviously and clearly stronger than the claims counsel did raise on
appeal. See Makiel, 782 F.3d at 898; Blake v. United States, 723 F.3d 870, 888
(7th Cir. 2013). Appellate counsel need not raise every non-frivolous
claim, but should select among claims to maximize the likelihood of
success on appeal. See Smith v. Robbins, 528 U.S. 259, 288 (2000); Makiel, 782
F.3d at 897. To satisfy the Strickland prejudice prong, the movant must
show that there is a reasonable probability that the issues appellate
counsel did not raise would have changed the outcome of the appeal. See
Johnson v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010).
As explained at length above, appellate counsel was right in
refusing to raise the preserved suppression issues. They were without
merit and there is no reasonable probability that Tyson would have
obtained relief from the Seventh Circuit had he raised them. And Tyson
makes no attempt to argue that the suppression issues were obviously
stronger than the other issues appealed; he simply assumes as much. As

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such, the Court cannot conclude that Tyson’s appellate representation was
constitutionally deficient.
Additionally, while the government seems to think there is a
problem here under Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court
detects none. That case involved the complete forfeiture of an appeal by
counsel’s failure to file a notice of appeal. Prejudice was presumed where
no appellate proceeding was had, regardless of whether the proceeding
would have been fair or inured to the defendant’s benefit. Bednarski v.
United States, 481 F.3d 530, 535 n.3 (7th Cir. 2007). In Tyson’s case, because
appellate counsel did not raise the suppression issue, the government
believes an evidentiary hearing is needed to determine whether counsel’s
reasons for her decision were defensible. (Docket #12 at 9–10).
The Court need not convene a hearing in this case, because no
presumption of prejudice arises. Here, unlike Flores-Ortega, Tyson did
have an appeal. His counsel simply refused to raise the unmeritorious
suppression issues.
Moreover, the fact that they were preserved in the plea agreement
says nothing of their merit. That was merely part of the deal Tyson
wanted. Tyson seems to think that this provision of the plea agreement
mandated that the suppression issues be appealed, see (Docket #1 at 6), but
this is not true. Counsel are always able, and indeed expected, to exercise
their professional judgment in presenting arguments to the appellate
courts. See Vinyard v. United States, 804 F.3d 1218, 1228 (7th Cir. 2015)
(Flores-Ortega only applies to cases where the attorney’s errors “denied
[the defendant] access to the appeal process altogether”); Franks v.
Lindamood, 401 F. App’x 1, 6 (6th Cir. 2010) (although Flores-Ortega
requires an attorney to file a notice of appeal when requested, “a
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defendant has no right to have his attorney carry out every other request
he makes, without regard to whether the request is meritless or
frivolous”). Thus, the Court can dispose of Tyson’s claim against appellate
counsel without the need for a hearing.4
3.

CONCLUSION
For the reasons stated above, the Court finds each of Tyson’s claims

to be without merit, and his motion to vacate his sentence must be denied.
Under Rule 11(a) of the Rules Governing Section 2255 Cases, “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Tyson must make a “substantial
showing of the denial of a constitutional right” by establishing that
“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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). In light of the well-settled principles governing the disposition
of Tyson’s claims, as outlined above, the Court cannot fairly conclude that
reasonable jurists would debate whether his motion should be decided

The Court notes that the rule in Flores-Ortega also has no effect on trial
counsel’s failure to file objections to Magistrate Duffin’s report and
recommendation. Unlike Flores-Ortega, Tyson had an adjudication of his
suppression theories. His counsel simply refused to object to the magistrate
judge’s determinations thereon. Indeed, if prejudice is not presumed even in
cases of a complete failure to file a suppression motion, Kimmelman, 477 U.S. at
384, then “it is difficult to fathom how a failure to object to a report and
recommendation could constitute per se ineffective assistance,” Mathis v. United
States, No. 2:05-CV-149, 2007 WL 4290543, at *4 (E.D. Tenn. Dec. 4, 2007). Thus,
the matter turns on whether Tyson’s objections would have succeeded, and the
above discussion shows this is not so.
4

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differently; as a consequence, the Court must deny a certificate of
appealability to him.
Finally, the Court closes with some information about the actions
that Tyson may take if he wishes to challenge the Court’s resolution of this
case. This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty days of the
entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See id.
4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure
59(e) must be filed within 28 days of the entry of judgment. The Court
cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable
time, generally no more than one year after the entry of the judgment. The
Court cannot extend this deadline. Id. A party is expected to closely
review all applicable rules and determine what, if any, further action is
appropriate in a case.
Accordingly,
IT IS ORDERED that Tyson’s motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255 (Docket #1) be and the same is
hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
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IT IS FURTHER ORDERED that a certificate of appealability be
and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of January, 2018.
BY THE COURT:

____________________________________
J.P. Stadtmueller
U.S. District Judge

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