Tyson v. United States of America

Filing 7

ORDER signed by Judge J.P. Stadtmueller on 11/15/2017: GRANTING 5 Petitioner's Motion to Amend Motion to Vacate, Set Aside or Correct Sentence and GRANTING 6 Respondent's Request for Extension of Time. Respondent to file an answer or other appropriate motion, including as to Petitioner's new ground, by 12/12/2017; Petitioner to file a response by 1/12/2017; if Respondent filed a motion in lieu of an answer, Respondent may file a reply brief by 1/26/2017. 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,

v.

Petitioner,

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 screened his
motion on October 2, 2017. (Docket #2). The Court permitted Tyson to
proceed on a claim of ineffective assistance of appellate counsel. Id.
Tyson filed a motion on November 2, 2017, seeking to amend his
petition to add one additional claim. (Docket #5). This claim is directed at
his trial counsel, Jane Christopherson. Id. at 3–4. He alleges that she had a
“significant conflict of interest” and “abandoned him” with respect to his
suppression motion filed in the trial court. Id. Specifically, she failed to
object to the report and recommendation of the magistrate judge on
Tyson’s motion to suppress. Id. This deprived him of the ability to obtain
the district court’s de novo review of the findings in the report. Id. Further,
Tyson contends that he had meritorious objections to assert, including that
the magistrate judge misconstrued the facts. Id. Thus, says Tyson,
Christopherson provided constitutionally defective assistance. Id.; see also
Strickland v. Washington, 466 U.S. 668 (1984).

The Supreme Court has held that “[t]he Civil Rule governing
pleading amendments, Federal Rule of Civil Procedure 15 [is] made
applicable to habeas proceedings by § 2242, Federal Rule of Civil
Procedure 81(a)(2), and Habeas Corpus Rule 11.” Mayle v. Felix, 545 U.S.
644, 655 (2005). Federal Rule of Civil Procedure 15(a) provides that a party
has the right to amend its “pleading once as a matter of course at any time
before a responsive pleading is served. . . . Otherwise a party may amend
the party’s pleading only by leave of court or by written consent of the
adverse party.” Fed. R. Civ. P. 15(a). Moreover, “leave [to amend] shall be
freely given when justice so requires.” Id.
A brief screening of Tyson’s new claim, coupled with the liberal
standards of Rule 15, shows that the Court must allow his proposed
additional claim. First, as noted in the screening order, Tyson’s petition
was timely filed. See 28 U.S.C. § 2255(f). This is true even if one counted
the new claim as a separate petition, since Tyson’s direct appeal ended
recently, in August 2017. Second, the claim, though not raised on direct
appeal, is not procedurally defaulted. The Supreme Court has instructed
that even if appellate counsel is different from trial counsel, as was the
case for Tyson, claims of ineffective assistance of trial counsel need not be
raised on direct appeal to avoid procedural default. Massaro v. United
States, 538 U.S. 500, 504 (2003). Finally, while the Court makes no findings
as to the ultimate merit of Tyson’s claim under the applicable standards, it
cannot say that this new claim is plainly without merit, and so dismissal
under Rule 4 of the Rules Governing Section 2255 Proceedings would be
inappropriate. Consequently, the claim will be permitted to proceed along
with Tyson’s existing ineffective-assistance claim against his appellate

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counsel. Further, the government’s recent request for an extension of time
in light of the newly added claim will be granted. (Docket #6).
Accordingly,
IT IS ORDERED that Petitioner’s motion to amend his motion to
vacate, set aside, or correct his sentence (Docket #5) be and the same is
hereby GRANTED;
IT IS FURTHER ORDERED that the government’s request for an
extension of time (Docket #6) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that, on or before December 12, 2017,
the government shall file an answer to Petitioner’s motion to vacate, set
aside, or correct his sentence (Docket #1), including the new ground stated
in his motion to amend (Docket #5), or other appropriate motion;
IT IS FURTHER ORDERED that Petitioner shall file a response to
the government’s submission not later than January 12, 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 January 26, 2017.
Dated at Milwaukee, Wisconsin, this 15th day of November, 2017.
BY THE COURT:

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

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