Tyson v. United States of America

Filing 2

SCREENING ORDER signed by Judge J.P. Stadtmueller on 10/2/2017. Petitioner PERMITTED to proceed on Ground One of Motion (ineffective assistance of appellate counsel); Ground Two (government breach of plea agreement) DISMISSED. By 11/1/2017, Responde nt to file an answer or other appropriate motion; Petitioner to file a response by 12/1/2017; if Respondent filed a motion in lieu of an answer, Respondent may file a reply brief by 12/18/2017. See Order. (cc: all counsel, via mail to Jason J. Tyson at USP Lee)(jm)

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

v.

UNITED STATES OF AMERICA,

Case No. 17-CV-1274-JPS

ORDER

Respondent.

On September 21, 2017, Jason J. Tyson (“Tyson”), a federal prisoner,
filed this 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 his constitutional rights. (Docket #1). The Court now turns to
screening his motion pursuant to Rule 4 of the Rules Governing Section
2255 Cases in the United States District Courts. That Rule authorizes a
district court to conduct an initial screening of a Section 2255 motion and
to dismiss any grounds summarily where “it plainly appears from the face
of the motion, any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Upon an initial Rule 4
review, the Court will analyze whether the movant has complied with the
statute of limitations, avoided procedural default, and set forth cognizable
claims.
On February 26, 2015, Tyson filed a motion to suppress evidence
against him on the ground that the evidence was obtained as the result of
an illegal arrest and search. Specifically, he claimed that police officers
arrested him without probable cause, placed him in a squad car, and then
illegally searched his vehicle for weapons. The officers did, in fact, find

firearms inside the vehicle. Magistrate Judge Duffin issued a report and
recommendation on Tyson’s motion, recommending that it be denied. He
reasoned that the officers’ initial stop was a permissible Terry
investigatory stop, or, in the alternative, that probable cause existed to
arrest Tyson. Further, Magistrate Duffin found that Tyson had not
cogently argued what evidence should be suppressed, or why, even if the
stop was illegal. After reviewing the recommendation, Judge Rudolph
Randa adopted it in full on June 17, 2015.
A little over a month later, on July 31, 2015, the parties filed a plea
agreement indicating that Tyson agreed to plead guilty to the offense of
being a felon in possession of a firearm. In the plea agreement, the parties
recited the various rights Tyson agreed to waive by entering a plea of
guilty. However, the final paragraph of that section provides that “[t]he
defendant acknowledges and understands that pursuant to Rule 11(a)(2)
of the Federal Rules of Criminal Procedure, Tyson retains the right to raise
an appeal on the issue of (1) whether his initial detention by the police
was actually an arrest that lacked probable cause; and (2) if not an arrest,
whether reasonable suspicion existed to stop him.” Rule 11(a)(2) states
that “[w]ith the consent of the court and the government, a defendant may
enter a conditional plea of guilty or nolo contendere, reserving in writing
the right to have an appellate court review an adverse determination of a
specified pretrial motion. A defendant who prevails on appeal may then
withdraw the plea.” Fed. R. Crim. P. 11(a)(2).
After the case was reassigned to this branch of the Court in January
2016, the Court sentenced Tyson on May 6, 2016. He was sentenced to fifty
months of incarceration, well below the applicable Guidelines range of 92–
115 months. He appealed that sentence based on an alleged error in
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calculating the applicable sentencing Guidelines, but the Court of Appeals
found that because the sentence was well under the applicable Guidelines
range, Tyson had not shown that he suffered a miscarriage of justice
resulting from the Guidelines calculation error. United States v. Tyson, 863
F.3d 597, 600 (7th Cir. 2017). Thus, the Seventh Circuit affirmed the
sentence on August 2, 2017. Id. Tyson did not seek certiorari in the United
States Supreme Court.
Tyson filed the instant motion on September 21, 2017. He argues
that his appellate counsel failed to raise on direct appeal the issue that had
been preserved in his plea agreement—namely, that the officers’ stop was
illegal either as an arrest or a Terry stop. (Docket #1 at 4). Counsel
apparently told him that the argument “would not make any difference
on appeal” and refused to present it to the Court of Appeals. Id. Tyson
contends that the issue was meritorious, and that counsel’s refusal to
abide by his wishes was a violation of his right to effective assistance of
counsel under the Sixth Amendment. Id. He further claims that the
government breached the plea agreement because Tyson was not
permitted to appeal on the ground preserved in the agreement. Id. at 5.
The Court begins its Rule 4 review by examining the timeliness of
Tyson’s petition. Section 2255(f) provides a one-year limitations period for
filing a motion under Section 2255. That limitations period runs from the
date on which the judgment of conviction becomes final. 28 U.S.C. §
2255(f). “[T]he Supreme Court has held that in the context of
postconviction relief, finality attaches when the Supreme Court ‘affirms a
conviction on the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition expires.’”
Robinson v. United States, 416 F.3d 645, 647 (7th Cir. 2005) (quoting Clay v.
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United States, 537 U.S. 522, 527 (2003)). Tyson’s direct appeal ended less
than two months before the instant motion was filed. Accordingly, the
motion appears to be timely.
The Court turns next to procedural default. Section 2255 relief is
appropriate if the Court determines 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). However, this form of action is not a
substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th
Cir. 2007). Therefore, any claims that Tyson did not raise at trial or on
direct appeal are procedurally defaulted and he cannot raise them here.
Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008).
Tyson does not dispute that he failed to raise the instant claims on
direct appeal. However, claims of ineffective assistance of counsel may be
raised for the first time in a Section 2255 motion. Massaro v. United States,
538 U.S. 500, 504 (2003). Further, Tyson may raise claims that he otherwise
procedurally defaulted if he demonstrates that there was cause for his
failure to raise a claim earlier and that the failure has actually prejudiced
him. Torzala, 545 F.3d at 522 (citing Bousley v. United States, 523 U.S. 614,
621, 622 (1998)). As noted above, Tyson seeks relief based fundamentally
on the ineffective assistance of his appellate counsel. Because this issue
could not have been raised during the appeal itself, the Court does not
believe that he has procedurally defaulted on his claims.
Finally, the Court reviews Tyson’s motion in order to excise any
plainly meritless claims. While the claim that his appellate counsel was
ineffective should no doubt be permitted to proceed past screening, the
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Court finds that the other claim—that the government somehow breached
the plea agreement by appellate counsel’s failure to appeal the
suppression ruling—should not. Tyson’s motion is exceedingly vague on
this point; it is not clear why he thinks the government had anything to do
with the decision not to appeal the denial of his motion to suppress. It
seems that Tyson wants to argue that his plea was not knowing,
voluntary, or intelligent because he did not know that his appellate
counsel would refuse to raise the preserved argument on appeal.
But this error, if it indeed was one, cannot be laid at the
government’s feet. Plea agreements are contracts, and they are generally
interpreted in accordance with ordinary principles of contract law. United
States v. Monroe, 580 F.3d 552, 556 (7th Cir. 2009). Courts must “review the
language of the plea agreement objectively and hold the government to
the literal terms of the plea agreement.” United States v. Williams, 102 F.3d
923, 927 (7th Cir. 1996). When a plea agreement is unambiguous on its
face, the court should accord the contract language its plain meaning.
Monroe, 580 F.3d at 556.
In Tyson’s plea agreement, the government agreed not to argue
that, by pleading guilty, Tyson had waived an appeal of the decision
upholding the legality of the stop in this case. The government never
agreed to appeal that issue on his behalf. Nothing in the record suggests
that the government failed to uphold its end of the bargain. There is no
allegation that the government counseled or coerced Tyson’s appellate
lawyer to forgo that preserved argument on appeal, so there is no reason
to think that the government had any input into the decision. In short,
Tyson’s complaint about the strategic choice of his appellate counsel can
only be made against him, not the government. The Court will, therefore,
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dismiss the second ground of Tyson’s motion, as it “plainly appears from
the motion…that [Tyson] is not entitled to relief” on that ground. Rule
4(b), Rules Governing § 2255 Proceedings.
Under Rule 4(b) of the Rules Governing Section 2255 Proceedings,
because the Court has not dismissed the case in its entirety, it “must order
the United States Attorney to file an answer, motion, or other response
within a fixed time[.]” Accordingly, the Court will direct the government
to file an answer to Tyson’s motion or file an appropriate motion not later
than November 1, 2017. If the government files an answer, then Tyson
must file his reply, see Rule 5(d) of the Rules Governing § 2255
Proceedings, not later than December 1, 2017. Likewise, if the government
files a motion in lieu of an answer, Tyson will have until December 1,
2017 to file his response, and the government may reply thereto on or
before December 18, 2017.
Accordingly,
IT IS ORDERED that, on or before November 1, 2017, the
government shall file an answer to Petitioner’s motion to vacate, set aside,
or correct his sentence (Docket #1), or other appropriate motion;
IT IS FURTHER ORDERED that Petitioner shall file a response to
the government’s submission not later than December 1, 2017; and
IT IS FURTHER ORDERED that, if the government files a motion
in lieu of an answer, it may file a reply brief to Petitioner’s response not
later than December 18, 2017.

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Dated at Milwaukee, Wisconsin, this 2nd day of October, 2017.
BY THE COURT:

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

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