Jackson v. United States of America

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 6/29/2018: GRANTING 3 Respondent's Motion to Dismiss; DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255; DENYING Certificate of Appealability; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Tytianna M. Jackson at Waseca Federal Correctional Institution) (jm)

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

Case No. 18-CV-646-JPS
Criminal Case No. 16-CR-135-JPS

UNITED STATES OF AMERICA,
Respondent.

ORDER

On April 24, 2018, Petitioner filed a motion to vacate her convictions
and sentence. (Docket #1). The Court screened her motion on May 1, 2018.
(Docket #2). The Court dismissed as meritless Petitioner’s claim that her
firearm conviction pursuant to 18 U.S.C. 924(c) has been rendered
unconstitutional by recent precedent. Id. The Court did permit her,
however, to proceed on a claim of ineffective assistance of counsel. Id.
Respondent filed a motion to dismiss this ground, and thus the action
generally, on May 30, 2018. (Docket #3). Petitioner responded to the motion
on June 18, 2018, (Docket #5), and Respondent replied on June 28, 2018,
(Docket #6).
The Sixth Amendment provides that criminal defendants are
entitled to the assistance of counsel. Strickland v. Washington, 466 U.S. 668,
684–85 (1984). This is a right not just to representation, but to effective
representation. Id. at 686. A claim of ineffective assistance requires proof of
both deficient performance by counsel and resulting prejudice to the
defendant. Perrone v. United States, 889 F.3d 898, 908 (7th Cir. 2018).
Petitioner contends that her counsel provided her ineffective assistance
when he “failed to file a notice of appeal after sentencing” and “failed to

communicate [with Petitioner concerning] the appeal process.” (Docket #1
at 4–6). When counsel does not pursue a direct appeal when asked to do so,
they are per se ineffective. Gant v. United States, 627 F.3d 677, 681 (7th Cir.
2010). To succeed on such a theory, however, the defendant must have
actually requested that an appeal be filed. Id.
Both of Petitioner’s allegations are belied by the factual record before
the Court, including the documents filed and hearings conducted in her
criminal case. First and foremost, Petitioner’s counsel has offered affidavit
testimony that, directly after Petitioner was sentenced, he explained her
appellate rights and she indicated that she did not want to appeal. (Docket
#3-1). Petitioner spoke to her counsel again a week later, but similarly failed
to mention a desire to appeal. Id. These statements demonstrate that
counsel’s performance was not deficient; he did precisely what he was told.
Even absent counsel’s averments, Petitioner cannot show prejudice.
The Court itself notified Plaintiff of her right of appeal during the
sentencing hearing. United States v. Tytianna M. Jackson, 16-CR-135-1-JPS
(E.D. Wis.) (Petitioner’s “Criminal Case”) (Docket #63 at 30:5-31:1)
(transcript of the sentencing hearing). She was informed not only that she
had a right to appeal, but also of the time limitations and her right to
proceed in forma pauperis. Id. Further, Petitioner filed an unconditional
guilty plea to the charges against her and received a reduced sentence based
on her substantial assistance to the government. Id., (Docket #24 and #59).
She thus failed to preserve any nonfrivolous issues for appeal.
Petitioner’s four-page response does not alter either of these
findings. She never asserts that she actually told her attorney to file an
appeal. (Docket #5 at 3). Rather, Petitioner makes vague statements that she
did not need to use the word “appeal” in order to trigger her counsel’s
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obligation to file one. Id. She claims that counsel’s affidavit has turned this
into a “he-said—she-said” dispute. Id. There are three problems with this
position. First, she has not offered any evidence or testimony to contradict
her attorney’s affidavit. Thus, the “she-said” side of the equation is nonexistent. Second, her attorney avers that she did not want to appeal. This
statement does not turn on Petitioner’s failure to invoke “appeal” as a magic
word. Finally, Petitioner suggests that she would have gone to trial had she
known about the mandatory minimum sentence attached to her Section
924(c) charge. Id. This is entirely irrelevant to her asserted ground for relief;
Petitioner complains that her attorney did not file an appeal or describe the
appellate process, not that he gave deficient advice at the plea stage.1

The contention is meritless, in any event. Petitioner was apprised of the
maximum and minimum penalties associated with the Section 924(c) charge at
multiple stages of her criminal case. She was told that about the range of penalties
available on her Section 924(c) charge at her initial appearance, namely a minimum
of seven years’ imprisonment with a maximum of lifetime imprisonment. (Docket
#2). The plea agreement, which Petitioner signed October 13, 2016, outlines the
penalties for the charges to which she promised to plead guilty. Criminal Case,
(Docket #24 at 5). That portion of the agreement further states that “Count Two
[the Section 924(c) charge] also carries a mandatory minimum of 7 years
imprisonment consecutive to any other term of imprisonment imposed on Count
One.” Id. This information was reiterated to Petitioner in person by Magistrate
Judge William E. Duffin at the change of plea hearing on October 27, 2016. (Docket
#29 at 1) (“Penalties . . . Ct 2: IMPRISONMENT: mandatory minimum of 7 years
imprisonment consecutive to any other term of imprisonment imposed in Ct 1
with a maximum term of Life[.]”). Finally, the cover page of the presentence report
states the same information about the range of penalties which had been presented
to Petitioner on every prior occasion. (Docket #44 at 1). During the sentencing
hearing, Petitioner accepted the contents of the presentence report and mentioned
no confusion about the mandatory minimum sentence associated with the Section
924(c) charge. (Docket #54). In sum, Petitioner cannot credibly claim that she was
uninformed about the potential sentence she faced. Indeed, she did not even
receive the mandatory minimum; the Court granted the government’s request to
waive that requirement and sentenced Petitioner to only sixty months on Count
Two. (Docket #54 and #58).
1

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Despite the allegations of her motion and response brief, Petitioner
cannot rewrite history. Petitioner was fully advised of her appeal rights in
multiple ways. She did not ask for her lawyer to file an appeal, and so he
could not have been ineffective for failing to do so. For the reasons stated
above, Respondent’s motion to dismiss must be granted. Still, 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), Petitioner 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). As the Court
discussed above, reasonable jurists would not debate whether Petitioner’s
motion should have been resolved in a different manner. As a consequence,
the Court is further compelled to deny a certificate of appealability as to
Petitioner’s motion.
Finally, the Court closes with some information about the actions
that Petitioner may take if she 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 30 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 Fed. R.
App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
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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 Respondent’s motion to dismiss (Docket #3)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Petitioner’s motion to vacate, set
aside, or correct her sentence (Docket #1) be and the same is hereby
DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s motion be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of June, 2018.
BY THE COURT:

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

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