Novak v. USA
ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255, 2 Motion for Briefing Schedule, and 3 Motion for Evidentiary Hearing as to Petitioner Anna F. Novak. Signed by District Judge James D. Peterson on 3/6/2018. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOHN C. MORRISON,
UNITED STATES OF AMERICA,
ANNA F. NOVAK,
UNITED STATES OF AMERICA,
Petitioners John C. Morrison and Anna F. Novak were co-defendants in criminal case
in this court in which they were represented by separate retained counsel. They each pleaded
guilty to distribution of a controlled substance analogs and income tax fraud. I sentenced
Morrison to four years of prison and Novak to eight years. Morrison and Novak appealed, and
their sentences and convictions were affirmed. United States v. Novak, 841 F.3d 721 (7th Cir.
2016). Petitioners, now represented jointly, contend that their pleas were induced by
ineffective trial counsel, and they seek to vacate their convictions and sentences under 28
U.S.C. § 2255. Dkt. 1.1
The filings in Morrison’s and Novak’s cases are nearly identical, so docket citations are to
both cases unless otherwise indicated.
After conducting a preliminary review of the petitions under Rule 4 of the Rules
Governing Section 2255 Cases in the United States District Courts, I conclude that it plainly
appears that petitioners are not entitled to relief. The heart of petitioners’ argument is that
they would not have pleaded guilty if they knew that they would receive substantial prison
sentences. But counsel’s error in predicting the sentence ultimately imposed by the court does
not constitute ineffective assistance of counsel. I will deny their motion for a briefing schedule
and evidentiary hearing, and I will dismiss their petitions.
I draw the facts from the record of the underlying criminal case and the submissions in
support of the petitions. I will assume that petitioners’ factual allegations are true, except where
they are contradicted by the record.
Petitioners sold products labelled as “herbal incense” from their retail store, JC Moon,
in Ashland, Wisconsin. Customers bought the so-called incense and smoked it to get high;
some customers got sick from consuming the incense, and some became dependent on it. A
grand jury returned a thirty-five-count indictment charging petitioners with the knowing sale
of controlled substance analogs and with tax fraud. See United States v. Morrison, No. 14-cr-121
(W.D. Wis. filed Dec. 10, 2014), Dkt. 1.
Novak retained Joseph Patituce to represent her; Morrison retained Nicholas Schepis.
Patituce “led [petitioners] to believe he had experience defending federal analogue
prosecutions.” Dkt. 9, at 1. Schepis’s defense strategy was to “raise [Morrison’s] Alzheimer’s
and medical issues to explain that [Morrison] had no involvement in any sales of incense or
filing the taxes.” Dkt. 10, ¶ 5.
But in a February 2015 meeting without Schepis present, Patituce told petitioners that
Schepis’s strategy was “inconsistent with” and “prejudicial to” Novak’s defense. Id. Patituce
convinced Morrison to fire Schepis and hire another lawyer, Mark Wieczorek. Morrison says
that even though he had Wieczorek as his own counsel, Patituce directed the defense for both
In late June 2015, Patituce and Wieczorek began discussing with petitioners the
possibility of entering into a plea agreement. Patituce said his goal was to resolve the charges
against petitioners “without prison.” Dkt. 9, at 3. He encouraged Novak to consider any plea
agreement that “involved probation, house arrest, or a minimal amount of time in local jail.”
Id. He “scared” petitioners by mentioning that a defendant in a Minnesota controlledsubstance-analog case was sentenced to 17 years’ imprisonment after trial. Id. He explained
“that there were no guarantees regarding sentencing and the ultimate sentence was up to the
judge,” but “repeatedly” referred to “a sentence of probation or, at most, house arrest or
minimal local jail time.” Id. at 4. He told petitioners that they “should appeal if they received
a prison sentence in excess of three years.” Id. at 6–7.
In early July, petitioners entered into plea agreements. See No. 14-cr-121, Dkt. 52 and
Dkt. 53. On August 27, 2015, petitioners pleaded guilty to distributing a controlled substance
analog and to tax fraud. Novak and Morrison stated under oath at the plea hearing that they
entered pleas knowingly and voluntarily, and that they understood that the sentencing decision
was up to the court. On November 6, 2015, I sentenced Morrison to a below-guideline term of
four years in prison and Novak to a below-guideline term of eight years. The remaining counts
in the indictment were dismissed.
On direct appeal, petitioners challenged my acceptance of their guilty pleas, the
sentences I imposed, and the constitutionality of the Controlled Substances Analogue Act, 21
U.S.C. § 813. On November 9, 2016, the Seventh Circuit affirmed their convictions and
sentences. United States v. Novak, 841 F.3d 721 (7th Cir. 2016).
On November 9, 2017, petitioners filed these motions to vacate their convictions and
sentences under 28 U.S.C. § 2255. Petitioners now allege that, as a result of the ineffective
assistance of trial counsel, they didn’t understand the plea agreements and that they believed
“that they would receive nothing more than a probationary sentence.” Dkt. 9, at 4.
Habeas “relief under § 2255 is an extraordinary remedy because it asks the district court
to essentially reopen the criminal process to a person who already has had an opportunity for
full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). To prevail, each
petitioner must show 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.” § 2255(a). Relief under § 2255 is appropriate only for “an error of law that
is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in
a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004)
(quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). An evidentiary hearing is
not required if “the motion and files and records of the case conclusively show that the
petitioner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Menzer v. United States, 200 F.3d
1000, 1006 (7th Cir. 2000).
I conclude that no hearing is necessary because the record makes clear that petitioners’
grounds for relief—three claims of ineffective assistance of counsel—are without merit. Claims
for ineffective assistance of counsel are analyzed under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). To prevail under the Strickland standard, a petitioner must
demonstrate both constitutionally deficient performance by counsel and actual prejudice as a
result of the alleged deficiency. See Williams v. Taylor, 529 U.S. 390, 39091 (2000). In the
context of a guilty plea, the prejudice prong requires a showing that there is a reasonable
probability that but for counsel’s deficient performance, the petitioner would not have pleaded
guilty but would have insisted on going to trial. Lafler v. Cooper, 566 U.S. 156, 163 (2012);
Moore v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003).
Here, petitioners claim three deficiencies in their counsels’ performance:
Patituce “led Ms. Novak to believe he had previous
experience defending federal analogue drug cases.”
No. 17-cv-849, Dkt. 9, at 8.
Patituce told both petitioners “that going to trial would
result in a lengthy prison sentence, but pleading guilty
would result in probation or, at worst, house arrest or
minimal local jail time.” No. 17-cv-848, Dkt. 9, at 9; see
also No. 17-cv-849, Dkt. 9, at 8–9.
Wieczorek was a “straw man” hired by Patituce, who really
directed Morrison’s defense. No. 17-cv-848, Dkt. 9, at 9.
The first alleged deficiency is a nonstarter. Petitioners do not allege that Patituce
actually lacked experience defending federal analogue drug cases. Nor do they allege that they
would not have pleaded guilty if they had known that he lacked experience defending this
particular type of case. And, in any case, showing that counsel lacked experience is not enough;
a petitioner must show that counsel’s performance was actually deficient. “The character of a
particular lawyer’s experience . . . does not justify a presumption of ineffectiveness” without
more. United States v. Cronic, 466 U.S. 648, 665 (1984). Petitioners are not entitled to relief
on this ground.
The second alleged deficiency, based on counsel’s predictions about sentencing, fares
no better. “A plea is not rendered involuntary merely because a prediction that a guilty plea
will result in a light sentence does not come true.” Chicahakly v. United States, 926 F.2d 624,
630 (7th Cir. 1991) (quoting Stout v. United States, 508 F.2d 951, 953 (6th Cir. 1975)). “An
attorney obviously is not able nor is he expected to predict with precision the sentence a judge
will impose in order to render effective assistance of counsel . . . .” Id. Apparently, Patituce
predicted that petitioners would receive probation or at most a short period of incarceration.
He was wrong. But petitioners concede that he also explained “that there were no guarantees
regarding sentencing and the ultimate sentence was up to the judge.” Dkt. 9, at 4. And the plea
process in the underlying criminal proceeding ensured that petitioners understood their plea
agreements and that those agreements were entered voluntarily. Their written, signed plea
agreements listed the maximum penalties for the crimes to which they pleaded guilty. No. 14cr-121, Dkt. 52 and Dkt. 53. Those maximum penalties were reviewed during petitioners’ plea
hearings, and petitioners testified under oath that they understood the penalties and had
discussed them with their counsel. See No. 14-cr-121, Dkt. 104 and Dkt. 108. Petitioners
testified under oath that they knew that sentencing decisions were up to the judge, and that
they had not been told that they would get a particular sentence and had no reason to believe
that they would get a particular sentence. See No. 14-cr-121, Dkt. 104, at 6–7, 20, and
Dkt. 108, at 8–9, 24. Patituce’s prediction that I was likely to impose a below-guideline
sentence proved correct, so petitioners cannot establish that his sentencing analysis was
completely baseless. Under these circumstances, Patituce’s incorrect sentencing prediction was
not deficient performance. Petitioners are not entitled to relief on this ground.
This ends that analysis for Novak; she is plainly not entitled to relief.
The third alleged deficiency, which pertains only to Morrison, is more complex.
Morrison makes three allegations against Wieczorek: that Wieczorek was merely a straw man
for Patituce; that Wieczorek failed to put in enough effort into defending Morrison; and that
Wieczorek uncritically adopted Patituce’s incorrect sentencing prediction. Dkt. 9, at 9.
Morrison contends that these deficiencies constitute “objectively unreasonable performance,”
and that he was prejudiced because he entered a plea agreement that he would have rejected,
had he gotten an accurate prediction of his sentence.
Morrison’s third argument about Wieczorek is essentially a repackaging of Novak’s
argument about Patituce, and it fails for the same reason: Morrison testified under oath that
he knew that sentencing was up to the judge, that I could impose any sentence up to the
statutory maximum, and that he had not been told he would get a particular sentence. The
inability of Morrison’s counsel to predict correctly his ultimate sentence is not ineffective
Morrison’s first argument that Wieczorek was Patituce’s straw man might raise the
question about whether either Wieczorek or Patituce had a conflict of interest related to the
representation of co-defendants in this case. But this is an issue that Morrison’s counsel has
not actually raised, and thus it is forfeited. See United States v. Kirkland, 567 F.3d 316, 321 (7th
Even if I gave Morrison the benefit of the doubt, he does not show any actual conflict
of interest here. The argument would be that because Wieczorek was uncritically following
Patituce’s litigation strategy, Patituce was actually functioning as counsel to both Novak and
Morrison. But that’s not a per se conflict. Sometimes “a common defense gives strength against
a common attack.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (quoting Holloway v. Arkansas,
435 U.S. 475, 482–83 (1978)). This is a case in which a coordinated defense, or even joint
representation, might make sense. Co-defendants are husband and wife, so it would seem
unlikely that one co-defendant would be naturally inclined to shift responsibility to the other
to gain advantage for herself.
Morrison suggests, though, that Patituce advised that Morrison’s Alzheimer’s defense
was inconsistent and prejudicial to Novak’s defense. So, the argument might go, Patituce got
Morrison to give up a viable defense with a false prediction of a lenient sentence, solely to
advantage Novak. If Wieczorek completely abrogated his duty to advise Morrison, Patituce
might have an actual conflict of interest that would support an ineffective assistance claim
under Cuyler. In Cuyler, two defense attorneys represented three co-defendants. 446 U.S. at
338. In the trial of the first defendant, the attorneys declined to put on a defense case, possibly
so that they could avoid exposing certain witnesses to cross examination, so that they could
save those witnesses for the trial of the other defendants. Id. at 338–39. Because the interests
of the co-defendants may have been adverse, the Supreme Court remanded the case so that the
lower court could determine whether the defense attorneys had an actual conflict of interest
that adversely affected their performance—anything less would not implicate the defendant’s
Sixth Amendment rights. Id. at 350.
But the main gap in the argument here, which Morrison makes no effort to fill, is how
Morrison’s interests and Novak’s are actually adverse. Morrison does not explain how his
Alzheimer’s defense would actually work any disadvantage to Novak. For the most part, both
defendants mounted the same defenses: that the herbal incense was not a controlled substance
analog and that they did not knowingly sell anything illegal. At no point did Novak contend
that her culpability was diminished by Morrison’s. She did not contend, for example, that
Morrison was the brains of the operation, and that she was an unwitting participant. As it turns
out, Morrison used his Alzheimer’s as a mitigating factor at sentencing. I substantially credited
this argument, which is why Morrison got a shorter sentence than Novak. Nothing about
Morrison’s health problems worked any disadvantage to Novak. On the contrary, Novak
argued that Morrison needed her assistance, and that this militated in favor of a shorter
sentence for her, too. See No. 14-cr-121, Dkt. 71, at 13. I conclude that even if I accept the
truth of Morrison’s allegation that Wieczorek was largely directed by Patituce, Morrison has
failed to show any actual conflict of interest that adversely affected his counsel’s performance.
A second problem with Morrison’s petition is that the record belies his contention that
Wieczorek relied exclusively on Patituce so that Wieczorek was “nothing more than a warm
body.” No. 17-cv-848, Dkt. 9, at 9. The cases Morrison cites in support of his argument
concern the complete denial of counsel during certain stages of the criminal proceeding. See
United States v. Ash, 413 U.S. 300 (1973) (holding that the complete denial of counsel at a
postindictment photo array identification procedure did not violate the Sixth Amendment);
Von Moltke v. Gillies, 332 U.S. 708 (1948) (plurality opinion) (recognizing the Sixth
Amendment right to counsel when entering a plea). Morrison was actually represented by
counsel throughout the underlying criminal case. Morrison’s argument seems to be that he was
constructively denied counsel because Wieczorek failed to function as Morrison’s advocate. A
complete failure “to subject the prosecution’s case to meaningful adversarial testing” would be
the type deficient performance from which prejudice may be presumed. Cronic, 466 U.S. at
659. But the record shows that Wieczorek did function as Morrison’s advocate: he filed
objections to the presentence report and a sentencing memorandum with supporting evidence,
see No. 14-cr-121, Dkt. 62 and Dkt. 69, and he questioned witnesses and argued on Morrison’s
behalf at sentencing, see No. 14-cr-121, Dkt. 114. So we aren’t in Cronic territory.
Sometimes Wieczorek did piggy-back on Patituce’s work. Morrison joined Novak’s
Daubert motion attacking the drug analog evidence. See No. 14-cr-121, Dkt. 34 (Morrison’s
motion to join Novak’s motion). Patituce conducted the hearing for the defense, although
Wieczorek appeared so he could have participated if Morrison’s separate interests were
somehow implicated. See No. 14-cr-121, Dkt. 54 (transcript of Daubert hearing). Wieczorek
lodged objections to his presentence report that were similar to Novak’s. Compare, e.g., No. 14cr-121, Dkt. 61 (Novak’s objections to the presentence report) with No. 14-cr-121, Dkt. 62
(Morrison’s substantially similar objections). But this kind of piggy-backing does not even
suggest deficient performance in a case in which the co-defendants mount substantially the
same defenses against the same criminal conduct. Morrison’s conclusory statements that
Wieczorek was just a warm body do not entitle him to a hearing.
I conclude that Morrison has not shown any actual conflict of interest that affected the
counsel provided by either Wieczorek or Patituce, nor has Morrison shown that Wieczorek
simply failed to function as counsel. The record in this case shows that Morrison is plainly not
entitled to relief.
Under Rule 11 of the Rules Governing Section 2255 Cases, I must issue or deny a
certificate of appealability when entering a final order adverse to a petitioner. I cannot issue
certificates of appealability unless petitioners make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), which requires them to demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,
529 U.S. 473, 483–84 (2000)). Although Rule 11 allows me to ask the parties to submit
arguments about whether a certificate should issue, it is not necessary to do so in this case. For
the reasons explained above, I conclude that petitioners have not made a showing, substantial
or otherwise, that they meet the requirements for a certificate of appealability. Thus, I will not
issue petitioners a certificate of appealability.
IT IS ORDERED that:
1. Petitioner John C. Morrison’s motions to vacate his conviction and sentence and for
a briefing schedule and evidentiary hearing, No. 17-cv-848, Dkts. 1–3, are DENIED.
2. Petitioner Anna F. Novak’s motions to vacate her conviction and sentence and for
a briefing schedule and evidentiary hearing, No. 17-cv-849, Dkts. 1–3, are DENIED.
3. A certificate of appealability for each petitioner is DENIED. Either petitioner may
seek a certificate from the court of appeals under Federal Rule of Appellate
Entered March 6, 2018.
BY THE COURT:
JAMES D. PETERSON
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?