Cook v. United States of America

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 4/11/2018: DENYING 5 Petitioner's Motion for Default Judgment and DENYING as moot 6 and 7 Petitioner's Motions Related to Screening. Within 30 days, Respondent to file motion to dismiss o r answer petition. IF RESPONDENT FILES ANSWER, Petitioner's brief in support of his Petition due within 30 days of filing of Respondent's answer. IF RESPONDENT FILES MOTION: Petitioner's brief in opposition due within 30 days of filing of Respondent's motion; and Respondent's reply brief due within 30 days of filing of Petitioner's opposition brief. See Order for further details. (cc: all counsel, via mail to Anthony D. Cook at Milan FCI) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTHONY D. COOK,
Petitioner,

Civil Case No. 17-CV-1459-JPS
Criminal Case No. 14-CR-226-1-JPS

v.
UNITED STATES OF AMERICA,

ORDER

Respondent.
Petitioner Anthony D. Cook (“Cook”) pleaded guilty to committing
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and brandishing a
firearm in connection therewith, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
Case No. 14-CR-226-1-JPS (“Criminal Case”), (Docket #35 at 2; Docket #37).
On July 7, 2015, the Court sentenced Cook to 144 months’ imprisonment.
Criminal Case, (Docket #56). Cook appealed the Court’s application of two
sentencing enhancements, but the Court of Appeals disagreed and affirmed
the sentence. United States v. Cook, 850 F.3d 328, (7th Cir. 2017). The Supreme
Court rejected Cook’s petition for a writ of certiorari on October 2, 2017.
Cook v. United States, 138 S.Ct. 135 (Oct. 2, 2017). The instant motion was
filed on October 25, 2017. (Docket #1).
Cook asserts two grounds for relief. First, Cook says he received
ineffective assistance of counsel, in violation of the Sixth Amendment,
during the plea phase of his criminal case. Cook claims that his trial counsel
told him that he would receive no more than a sixty month sentence, while
failing to explain that the brandishing charge would result in a mandatory

consecutive eighty-four month sentence. (Docket #2 at 8).1 The sixty month
representation also failed to account for the disputed sentencing
enhancements. Id. Also during the plea phase, Cook argues that his trial
counsel was ineffective for advising him to plead guilty to the brandishing
charge, of which he maintains his innocence. Id. at 8–11. Cook’s second
ground for relief is related to this last contention. He says that his appellate
counsel was ineffective when he failed to raise Cook’s innocence of the
brandishing charge. Id. at 12–13.
Cook’s motion is now before the Court for screening:
If it plainly appears from the motion, any attached
exhibits, and the record of the prior proceedings that the
moving party is not entitled to relief, the judge must dismiss
the motion and direct the clerk to notify the moving party. If
the motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
order.
Rule 4(b), Rules Governing § 2255 Proceedings.
The Court begins by addressing the timeliness of Cook’s motion. 28
U.S.C. § 2255(f) provides that there is a one-year limitations period in which
to file a motion seeking 28 U.S.C. § 2255 relief. That limitations period runs
from the date on which the judgment of conviction becomes final. “[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

As Cook’s petition states only a single-sentence basis for each ground for
relief, (Docket #1 at 4), the Court has relied on his brief in support of his petition
to assess the claims in further detail, see generally (Docket #2).
1

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645, 647 (7th Cir. 2005) (internal citations omitted). Cook’s motion is timely.
He filed it just over two weeks after the Supreme Court denied certiorari.
The Court turns next to procedural default. Relief under 28 U.S.C.
§ 2255 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 Cook did not raise at trial
or on direct appeal are procedurally defaulted and he cannot raise them.
See Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008).
There are two exceptions to this rule. First, claims of ineffective
assistance of counsel may be raised for the first time on a 28 U.S.C. § 2255
motion. Massaro v. United States, 538 U.S. 500, 504 (2003). Second, Cook 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)). Cook’s claims fall into the former
category. Though Cook did not raise these issues during his direct appeal,
given the fact that he is raising claims related to ineffective assistance, the
Court does not believe that he has procedurally defaulted those claims.
Finally, the Court does not believe that it “plainly appears from the
motion. . .that [Cook] is not entitled to relief.” Rule 4(b), Rules Governing §
2255 Proceedings. While the Court has substantial misgivings about the
propriety of Cook’s claims, particularly with respect to his asserted
innocence of the brandishing charge, the wisest course is to obtain further

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briefing from the parties. The Court therefore declines to dismiss Cook’s
motion at this early stage. Under Rule 4(b) of the Rules Governing § 2255
Proceedings, because the Court has not dismissed the case, 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 parties to
follow the schedule as set forth below.
The Court also will address Cook’s other pending motions. On
December 27, 2017, he filed a motion for “default judgment” against
Respondent. (Docket #5). Prior to the issuance of this Order, and the
briefing scheduling contained herein, Respondent was under no obligation
to respond to Cook’s petition. The motion must, therefore, be denied. Cook
also filed two motions related to the screening process, (Docket #6 and #7),
but this Order renders them moot.
Accordingly,
IT IS ORDERED that the parties shall proceed in accordance with
the following schedule:
1.

Within thirty (30) days of entry of this Order, Respondent

shall file either an appropriate motion seeking dismissal of this action or
answer the petition, complying with Rule 5 of the Rules Governing
Section 2255 Cases, and showing cause, if any, why the writ should not
issue.
2.

If Respondent files an answer, then Petitioner shall have thirty

(30) days after the filing of Respondent’s answer within which to file a brief
in support of his petition, providing reasons why the writ of habeas corpus
should be issued.
3.

If Respondent files a motion in lieu of an answer, then the

parties should abide by the following briefing schedule:

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a.

Petitioner shall have thirty (30) days following the

filing of Respondent’s dispositive motion and accompanying brief
within which to file a brief in opposition to that motion.
b.

Respondent shall have thirty (30) days following the

filing of Petitioner’s opposition brief within which to file a reply
brief, if any;
IT IS FURTHER ORDERED that Petitioner’s motion for default
judgment (Docket #5) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Petitioner’s motions related to
screening (Docket #6 and #7) be and the same are hereby DENIED as moot;
and
IT IS FURTHER ORDERED that Petitioner shall submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S
CHAMBERS. It will only delay the processing of the matter. The parties
must notify the Clerk of Court of any change of address. Failure to do so
could result in orders or other information not being timely delivered, thus
affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 11th day of April, 2018.
BY THE COURT:

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