Ryan v. USA

Filing 3

ORDER setting briefing on 1 Motion to Vacate Sentence per 28 USC 2255. Brief in Opposition due 7/8/2014. Brief in Reply due 7/31/2014. Signed by District Judge Barbara B. Crabb on 6/16/14. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
OPINION AND ORDER
Plaintiff,
08-cr-164-bbc
14-cv-430-bbc

v.
TREVOR K. RYAN,
Defendant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant Trevor K. Ryan has filed a motion for post conviction relief under 28
U.S.C. § 2255, alleging that his conviction was based on an illegal search that violated his
rights under the Fourth Amendment and that he was denied the effective assistance of
counsel at the time of his arrest and in the proceedings in this court. Defendant was
convicted on March 12, 2009 on a charge of possessing marijuana with the intent to
distribute it, 21 U.S.C. § 841(a)(1) and sentenced to a term of imprisonment of 65 months.
He filed an appeal that was dismissed by the Court of Appeals for the Seventh Circuit as
untimely. Dkt. #63, 08-cr-164-bbc. He then filed a motion for post conviction relief, dkt.
#1, 10-cv-295-bbc, that was denied by this court as untimely. The court of appeals reversed
this court’s denial of the motion and remanded the case for additional factfinding. Ryan v.
United States, 657 F.3d 604 (7th Cir. 2011).
On remand, the parties stipulated to the entry of an order finding that defendant’s
motion for post conviction relief under § 2255 had been timely filed under § 2255(f) and

allowing the court to vacate the original judgment of conviction and reimpose it to permit
defendant to take a direct appeal of his conviction and sentence. Dkt. #64, 08-cr-164-bbc.
Defendant took an appeal, contesting only this court’s determination of his relevant
conduct. The appeal was denied on July 8, 2013. Dkt. #71-1, 08-cr-164-bbc. His § 2255
motion is timely; it was filed well within the one year after his conviction (on his renewed
sentence) became final.
Defendant may proceed on his claim that his trial counsel was ineffective but he
cannot go forward on his Fourth Amendment claims because he could have raised these
claims in his direct appeal. Having forgone that opportunity, he cannot bring them in a post
conviction motion unless he can show both cause and prejudice for not having raised them
earlier. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Theodorou v.
United States, 887 F.2d 1336, 1339 (7th Cir. 1989)). “An issue not raised on direct appeal
is barred from collateral review absent a showing of both good cause for failure to raise claims
on direct appeal and actual prejudice from the failure to raise those claims or if a refusal to
consider the issue would lead to a fundamental miscarriage of justice.” Id. (emphasis in
original) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)).
By contrast, defendant’s claims of ineffective assistance of counsel may go forward.
In fact, these claims are best developed in a post conviction motion because their resolution
almost always requires consideration of facts that are outside the trial record. I will direct
the government to respond to these claims.

ORDER
IT IS ORDERED that the United States may have until July 8, 2014 in which to
respond to defendant Trevor K. Ryan’s motion for post conviction relief, as to only his
claims of ineffective assistance of counsel in connection with his 2009 conviction; defendant
may have until July 31, 2014 in which to file a reply brief. If defendant thinks he can show
that he has both good cause for failing to raise his Fourth Amendment claims on appeal and
actual prejudice resulting from the failure, he may file a brief on the subject no later than
July 8, 2014; the government may have until July 31, 2014 in which to respond.
Entered this 16th day of June, 2014.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge