Jackson v. United States of America

Filing 2

SCREENING ORDER signed by Judge J.P. Stadtmueller on 5/1/2018. Petitioner's claim for ineffective assistance of trial counsel regarding her appellate rights is PERMITTED to proceed; Petitioner's claim of a due process violation in her 18 U.S.C. § 924(c) conviction is DISMISSED. Within 30 days, Respondent to FILE a motion to dismiss or answer to Petitioner's motion. IF RESPONDENT FILES ANSWER, briefing to proceed as follows: Petitioner's brief in support of her motion d ue within 30 days of filing of Respondent's answer; Respondent's opposition brief due within 30 days of service of Petitioner's brief or 60 days of this Order if Petitioner does not file a brief; Petitioner's reply due within 15 d ays of filing of Respondent's brief. IF RESPONDENT FILES MOTION, briefing to proceed as follows: Petitioner's brief in opposition due within 30 days of filing of Respondent's motion; Respondent's reply due within 15 days of filing of Petitioner's brief. Civil L. R. 7(f) governs page limitations. See Order for further details. (cc: all counsel, via mail to Tytianna M. Jackson at Waseca FCI)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TYTIANNA M. JACKSON,
Petitioner,
v.

Case No. 18-CV-646-JPS
Crim. Case No. 16-CR-135-1-JPS

UNITED STATES OF AMERICA,

ORDER

Respondent.
Petitioner Tytianna M. Jackson (“Jackson”) pleaded guilty to one
count of Hobbs Act Robbery, in violation of 18 U.S.C. §§ 1951(a) and 2, and
one count of brandishing a firearm in connection with a crime of violence,
in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2. United States v. Tytianna M.
Jackson, 16-CR-135-1-JPS (E.D. Wis.) (Jackson’s “Criminal Case”), (Docket
#24). On April 20, 2017, the Court sentenced her to seventy-five months’
imprisonment for those crimes. Id., (Docket #58). Jackson did not appeal her
convictions or sentence. Jackson filed a motion pursuant to 28 U.S.C. § 2255
to vacate her convictions on April 24, 2018. (Docket #1). That 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 Section 2255 Proceedings.

The Court begins by addressing the timeliness of Jackson’s motion.
Section 2255(f) provides that there is a one-year limitations period in which
to file a motion seeking Section 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
645, 647 (7th Cir. 2005) (internal citations omitted). Because Jackson did not
appeal, her conviction became final once the deadline for filing a notice of
appeal expired. Clarke v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013).
The deadline expired on May 4, 2017, fourteen days after judgment was
entered. Thus, Jackson’s motion appears 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 Jackson did not raise at trial or on
direct appeal are procedurally defaulted and she 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 in a Section 2255
motion. Massaro v. United States, 538 U.S. 500, 504 (2003). Second, Jackson
may raise claims on which she otherwise procedurally defaulted if she
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demonstrates that there was cause for her failure to raise a claim earlier and
that the failure has actually prejudiced her. Torzala, 545 F.3d at 522 (citing
Bousley v. United States, 523 U.S. 614, 621 (1998)).
Jackson raises three grounds for relief, which the Court will
consolidate into two. The first and second grounds for relief assert that her
trial counsel provided ineffective assistance of counsel to her with respect
to her appellate rights. (Docket #1 at 4-5). She claims that her counsel both
failed to file a notice of appeal and did not “communicate to defendant the
appeal process.” Id. There is no reason to treat these as separate grounds for
relief as they both concern the same topic. Because the claim is for
ineffective assistance of counsel, it is not procedurally defaulted.
Jackson’s third claim is for a “due process” violation. Id. at 7. Jackson
argues that Hobbs Act robbery does not qualify as a “crime of violence,”
which is a necessary predicate for her Section 924(c) conviction. Id. She
asserts that “[t]he residual clause has now been declared unconstitutionally
vague,” and so her Section 924(c) conviction is “a violation of her due
process right.” Id.
The Court need not address whether Jackson’s third claim is
procedurally defaulted, or suffers any procedural infirmity for that matter,
as it is plainly meritless. Section 924(c) imposes additional penalties on
individuals who carry or use firearms in connection with certain crimes. 18
U.S.C. § 924(c). In Jackson’s case, she was convicted of brandishing a
firearm during a “crime of violence,” which the statute defines as
an offense that is a felony and—
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or

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(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
Id. § 924(c)(3). The first clause is referred to as the “elements” clause, while
the second is known as the “residual” clause.
The Supreme Court in Johnson v. United States, 135 S. Ct. 2551, 2560
(2015), found that an identical residual clause in the Armed Career Criminal
Act was unconstitutionally vague. The Court later determined that the rule
announced in Johnson was substantive and should therefore be retroactively
applicable to collateral attacks like Jackson’s. Welch v. United States, 136 S.
Ct. 1257, 1265 (2016). Jackson seems to contend that her Hobbs Act robbery
offense only qualifies as a “crime of violence” under the residual clause of
Section 924(c)(3). Because the Supreme Court declared an identical residual
clause unconstitutionally vague, she infers that the same reasoning should
invalidate Section 924(c)(3)(B). Id.
The problem with Jackson’s claim is not her legal reasoning; that
much is sound, since the Seventh Circuit has held that the residual clause
of Section 924(c)(3) is indeed unconstitutionally vague. United States v.
Cardena, 842 F.3d 959, 995–96 (7th Cir. 2016). But that holding does not help
Jackson here, because the Seventh Circuit has also held that Hobbs Act
robbery constitutes a crime of violence under the elements clause of Section
924(c)(3), since it “[has] as an element the use, attempted use, or threatened
use of physical force against the person or property of another.” United
States v. Anglin, 846 F.3d 854, 964–65 (7th Cir. 2017); United States v. Rivera,
847 F.3d 847, 848 (7th Cir. 2017). Thus, Jackson’s Hobbs Act robbery
conviction serves as a valid predicate for her Section 924(c) conviction by
way of the elements clause of Section 924(c)(3), not the residual clause.
Accordingly, Jackson’s third claim must be dismissed.
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For the first claim, however, the Court does not believe that it
“plainly appears from the motion . . . that [Jackson] is not entitled to relief.”
Rule 4(b), Rules Governing § 2255 Proceedings. It therefore declines to
dismiss her motion at this early stage. Under Rule 4(b) of the Rules
Governing § 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[.]” The Court will
direct the parties to brief Jackson’s motion as provided below. The Court
further notes that a response to Jackson’s claim will require testimony of
her trial counsel in the criminal case. The government’s opening submission
should therefore include an affidavit from her counsel on the matters raised
by her motion.
Accordingly,
IT IS ORDERED that Petitioner’s claim of a due process violation in
her 18 U.S.C. § 924(c) conviction (Docket #1 at 7) be and the same is hereby
DISMISSED; and
IT IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
1.

Within 30 days of entry of this order, Respondent shall file

either an appropriate motion seeking dismissal of this action or answer to
Petitioner’s motion, complying with Rule 5 of the Rules Governing § 2255
Cases; and
2.

If Respondent files an answer, then the parties should abide

by the following briefing schedule:
a.

Petitioner shall have 30 days after the filing of Respondent’s
answer within which to file a brief in support of her motion,
providing reasons why her conviction should be vacated.
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b.

Respondent shall file an opposition brief, with reasons why
Petitioner’s conviction should not be vacated, within 30 days
of service of Petitioner’s brief, or within 60 days from the date
of this order if no brief is filed by Petitioner.

c.

Petitioner may then file a reply brief, if she wishes to do so,
within 15 days after Respondent has filed a response brief.

3.

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

parties should abide by the following briefing schedule:
a.

Petitioner shall have 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 15 days following the filing of
Petitioner’s opposition brief within which to file a reply brief,
if any.

Pursuant to Civil L. R. 7(f), the following page limitations apply:
briefs in support of or in opposition to the motion to vacate or a dispositive
motion filed by Respondent must not exceed thirty pages and reply briefs
must not exceed fifteen pages, not counting any caption, cover page, table
of contents, table of authorities, and/or signature block.
Dated at Milwaukee, Wisconsin, this 1st day of May, 2018.
BY THE COURT:

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

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