Patterson v. USA

Filing 9

Findings of Fact. Signed by District Judge James D. Peterson on 2/13/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LEON PATTERSON,
Petitioner,

FINDINGS OF FACT

v.
UNITED STATES OF AMERICA,

15-cr-71-jdp
16-cv-571-jdp

Respondent.
Petitioner Leon Patterson seeks post-conviction relief under 28 U.S.C. § 2255. His
initial petition, filed pro se, presented two grounds for relief: (1) the court miscalculated his
criminal history points and sentenced him incorrectly as a result; and (2) his counsel failed to
appeal from the sentence even though he asked her to do so. Judge Crabb denied the petition
on the first ground. Dkt. 3. The second ground raised a factual issue, so Judge Crabb ordered
an evidentiary hearing, and counsel was appointed for Patterson. With the assistance of
counsel, Patterson filed an amended petition, Dkt. 5, which raised the additional issue of
whether Patterson’s trial counsel had adequately consulted with him about the appeal. I held
the evidentiary hearing on February 1, 2017. After the transcript of the hearing is finished
and released, both sides will file post-hearing briefs on all the issues raised at the hearing.
In light of the hearing testimony and evidence, there is no need for the parties to brief
purely factual questions. Resolving those factual issues here should make the post-hearing
briefing easier.

FINDINGS OF FACT
The court finds the following facts:
1. Patterson did not ask Attorney Welsh to file an appeal. Attorney Welsh discussed
the prospects for an appeal with Patterson immediately after the sentencing in the
Marshal’s lockup. Both Attorney Welsh and Patterson were disappointed with the
sentence because Attorney Welsh has asked for a below-guideline sentence.
Attorney Welsh advised Patterson that his appeal prospects were limited because
the guideline sentence that he received was presumptively valid under Seventh
Circuit law. Attorney Welsh also pointed out that a cross-appeal was possible: the
government could challenge the court’s determination that the Indiana battery
conviction was not a crime of violence under the guidelines. If the government
were successful on appeal, Patterson could receive a longer sentence as a result. At
the end of the conversation, Patterson said that he did not want to appeal.
2. Attorney Welsch confirmed the substance of her conversation with Patterson in a
letter sent to Patterson on October 7, 2015.
3. Patterson called Attorney Welsh from jail a few days later. At the beginning of the
call, he said that he wanted to appeal. During the call, Attorney Welsh again
reviewed her reasoning and again pointed out the potential disadvantage that
could arise from a cross-appeal by the government. At the end of the conversation
Patterson said again that he did not want to appeal the case.
4. Attorney Welsh consulted with Patterson concerning the appeal. She reviewed the
potential grounds for appeal as she saw them at the time, and she also discussed

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the potential disadvantage that might result from a successful cross-appeal by the
government.
5. Attorney Welsh did not discuss the treatment of Patterson’s Texas conviction as a
crime of violence with Patterson. Attorney Welsh and her colleagues at the Federal
Defender’s Office considered the Texas conviction, but they had determined that
it qualified as a crime of violence under the so-called Force Clause. The Texas
conviction did not implicate the residual clause that was at issue in the second
Johnson decision, and Attorney Welsh did not discuss it with Patterson either
during sentencing or after.

DISCUSSION
I find that Attorney Welsh’s version of the events is more credible than Patterson’s
because her version is supported by contemporaneous documentation. Hearing Exhibit 1 is
Attorney Welsh’s letter, dated October 7, 2015, confirming the substance of her conversation
about the appeal and Patterson’s decision not to appeal. Patterson denies receiving this letter.
But Attorney Welsh testified that her files do not reflect that she had received the letter back
as undeliverable. Having mail returned from a jail is a common occurrence, so the absence of
the returned mail supports the finding that Patterson received the letter. But even if he did
not, the important point is that Attorney Welsh wrote the letter, recording, at the time, her
advice and her recollection of the conversation in the Marshal’s lock up. Attorney Welsh’s
recollection is also confirmed by an entry in her time records. The time records also
corroborate the topics discussed in the telephone call from the jail. Although the time records
were not presented at the hearing, Attorney Welsh testified that she had reviewed those

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records prior to testifying. The bottom line is that Attorney Welsh has contemporaneous
corroboration of her testimony.
Patterson’s account of the events is less credible because he lacks corroborating
documentation and his testimony was foggy on dates and details. For example, Patterson
testified that at the time that he filed his own notice of appeal (later deemed untimely), he
knew that he had as grounds for an appeal both the calculation of his criminal history points
and the treatment of the Texas conviction as a crime of violence. But Patterson did not
mention the Texas conviction as a ground in his original § 2255 petition. The fogginess of
Patterson’s recollection is understandable, but it undermines his credibility.
Entered February 13, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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