Ryan, Trevor K. v. USA

Filing 62

ORDER that evidentiary hearing to be held; parties to contact clerk's office to schedule hearing. Signed by District Judge Barbara B. Crabb on 2/22/12. (krj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
ORDER
Plaintiff,
10-cv-295-bbc
v.
TREVOR K. RYAN,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This motion for post conviction relief is before the court on one question: is it
necessary to hold an evidentiary hearing to determine whether defendant is entitled to take
an untimely appeal from the sentence imposed on him on March 10, 2009. Defendant is
alleging in his post conviction motion that he asked his retained counsel to appeal his
sentence, that his counsel never took an appeal on his behalf and that defendant did not
know that counsel had failed to file an appeal until sometime in June 2009, after he had
arrived at Taft Correctional Institution, where he had access to a law library and to his legal
materials.
I conclude that enough matters are in dispute that an evidentiary hearing is necessary.

1

BACKGROUND
Defendant was charged in this court with one count of possession with intent to
distribute 50 kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1). He
retained William Kroger from California as his counsel; in turn, Kroger hired Madison
lawyer Michele Tjader as local counsel. Plaintiff entered a plea of guilty to the charge on
December 28, 2008; he was sentenced on March 10, 2009. He did not take an appeal from
his sentence within the 10-day deadline in effect at the time. (The deadline has since been
increased to 14 days. Fed. R. App. P. 4(b)).
On February 17, 2010, defendant filed a notice of appeal from his sentence, arguing
that the court had relied on the wrong guidelines in sentencing him. On or around April 8,
2010, the court of appeals allowed Tjader to withdraw as counsel for defendant and
appointed the Public Defender for the Central District of Illinois to take her place. On June
1, 2010, the court of appeals allowed counsel to withdraw as appointed counsel and
dismissed defendant’s appeal as untimely. Also on June 1, 2010, purely by coincidence,
defendant filed a motion to vacate in this court, setting forth a number of reasons why he
believed that he had been deprived of his constitutional rights in connection with his
conviction, one of which was that his counsel had failed to take an appeal on defendant’s
behalf from the sentence and another was that counsel had failed to inform him of the 10day deadline for filing an appeal. I denied this motion as untimely, even though defendant

2

argued that he had lost three months of his one-year period for filing a post conviction
motion because he was in transit until early June 2009. He also argued that his “defective”
notice of appeal stopped the time for filing a motion to vacate from running. I rejected this
argument as well.
Defendant appealed the denial, arguing that this court should have given him an
evidentiary hearing on his claim that one or both of his lawyers deprived him of the right to
counsel by not filing the notice of appeal that he had requested. He argued that the court
made a second error when it found his motion untimely. The court of appeals held that if
defendant could show that he had asked counsel to file a notice of appeal and counsel failed
to do so, he would be entitled to take a late appeal. (The court would vacate defendant’s
sentence and conviction and reimpose it to allow him to take a direct appeal.) It found also
that defendant had made a plausible claim that his motion was not untimely: if he could
show that a reasonably diligent prisoner in his situation would need at least two months to
learn that his lawyer had not filed an appeal on his behalf, then the limitations period would
not start to run before that time. Alternatively, the period might not have started to run
until defendant arrived at an institution in which he had access to a law library.
The court of appeals pointed out that § 2255(f) gives federal prisoners a one-year
period in which to file a motion for post conviction relief and then spells out the starting
points for the year. The usual one is the date on which the conviction became final, §

3

2255(f)(1), but the statute provides for two others relevant to defendant’s motion: the date
on which government-created impediment has been removed “if the movant was prevented
from making a motion by such governmental action,” § 2255(f)(2); or the date “on which
the facts supporting the claim or claims presented could have been discovered through the
exercise of due diligence.” § 2255(f)(4).
The court declined to decide how much time a diligent prisoner in defendant’s shoes
would have needed to discover that no appeal had been filed on his behalf. After considering
what other courts had said on the subject, it suggested that two months might be reasonable
but it emphasized that the determination was a fact-intensive one. United States v. Ryan,
657 F.3d 604, 608 (7th Cir. 2011). In defendant’s case, the district court would not need
to “decide precisely how long is too long if it can safely say that, wherever the line is,
[defendant] lies on one side or the other.” Id
After the court of appeals’ decision issued, this court appointed counsel to represent
defendant and the magistrate judge held a scheduling conference with the parties, setting
deadlines for submitting briefs on the need for an evidentiary hearing.

OPINION
Defendant contends that, because the government has not opposed two of the three
grounds on which he relies, the court need not hold an evidentiary hearing to determine that

4

he is entitled to an order reversing his conviction and sentence. I am not persuaded that this
is a fair reading of the government’s brief. I did not understand the government to be
conceding any issues, only saying that the determination of defendant’s right to an appeal
rises or falls on the question whether defendant asked counsel to take an appeal.
Defendant contends that even if he never asked his counsel to take an appeal on
appeal, the court could find that his counsel was constitutionally ineffective under Roe v.
Flores-Ortega, 528 U.S. 470, 479 (2000), in which the Court held that counsel must consult
with their clients about appealing “where there is reason to think either (1) that a rational
defendant would want to appeal (for example, because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” He argues that a minimally effective lawyer would have known that
a rational person in defendant’s position wanted to appeal. Therefore, defendant believes
that the issue can be decided without taking evidence about whether he asked Kroger
explicitly to take an appeal. After all, he says, the government has not denied that the
circumstances were such that any “rational defendant would have wanted to appeal.” The
flaw in this argument is that if defendant did not make a specific request to appeal, he would
have no grounds for arguing that he is entitled to a delay in the running of his one-year
opportunity to appeal. If he never asked his lawyer to take an appeal, what reason would
he have for thinking that counsel had done so?

5

On the other hand, if defendant did not ask his counsel to take an appeal, he can
argue that he should have had the full year to which he is entitled to research the law and
learn that counsel had a duty to consult with him about an appeal. In that circumstance, it
will be necessary to determine exactly when defendant was first housed in an institution in
which he was able to use the law library.
In short, I am persuaded that an evidentiary hearing should be held at which
defendant can testify about what he did and what he knew or did not know about the filing
of an appeal and Kroger and Tjader can testify about any conversations they had with
defendant and their reasons, if any, for thinking he did not want to appeal. As for evidence
of any government-created impediment to appealing, defendant can testify to what he
experienced between his sentencing and his arrival at the institution where he first had access
to a law library. It will not be necessary for government officials to testify on this issue; the
government can rely on affidavits from knowledgeable sources about defendant’s transfer
and his access or lack of access to law libraries and to his legal materials. If in fact the
government meant to concede in its brief either that the year that defendant had for filing
did not begin until he reached an institution where he had access to a law library or that the
year did not begin until defendant had reason to know that his counsel had not filed an
appeal in his behalf, or both, then it will not be necessary to take any evidence on either of
these two points. The government should advise defendant’s counsel and the court of

6

exactly what its position is on these issues.

ORDER
IT IS ORDERED that an evidentiary hearing will be held in this case. The parties are
to confer with each other and the clerk’s office about a date and time for the hearing. The
government is to advise defendant’s counsel promptly of its position relating to defendant’s
time for filing his post conviction brief.
Entered this 22d day of February, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

7