Wiley v. USA
ORDER granting 2 Motion for Appointment of Counsel by petitioner Antonio Wiley. Once counsel is appointed, a conference will be held to set the date for an evidentiary hearing. Signed by District Judge James D. Peterson on 9/7/2021. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION and ORDER
UNITED STATES OF AMERICA,
Petitioner Antonio Wiley has filed a motion for postconviction relief under 28 U.S.C.
§ 2255, seeking to vacate his conviction and sentence for one count of distributing heroin.
Dkt. 1.1 Wiley contends that he is entitled to relief because (1) the statutes under which he
was convicted and sentenced are unconstitutional; (2) his indictment did not refer to the
amount of heroin he distributed or to his prior sentences; (3) his lawyer provided ineffective
assistance of counsel by failing to challenge these defects, by misleading him about the sentence
he would receive if he pleaded guilty, and by failing to file an appeal after he directed counsel
to do so.
I conclude that Wiley is entitled to an evidentiary hearing on his claim that his lawyer
refused his request to file an appeal, and I will appoint counsel to represent Wiley at the
Docket entries are to No. 20-cv-320-jdp unless otherwise noted.
Between October 2017 and February 2018, Wiley and a co-defendant sold heroin to
an undercover police officer multiple times. A grand jury returned a 14-count indictment,
including charges against Wiley and the co-defendant under 21 U.S.C. § 841(a)(1) for
conspiring to distribute and to possess with intent to distribute more than 100 grams of a
mixture or substance containing a detectable amount of heroin, along with other counts
corresponding to individual sales. Dkt. 1 in 18-cr-70-jdp. The government filed an information
under 21 U.S.C. § 851 alleging that Wiley was subject to enhanced penalties based on his prior
drug convictions. Dkt. 32 in the ’70 case. Wiley agreed to plead guilty to count 3 of the
indictment—that on December 11, 2017, he distributed a detectable amount of heroin.
Dkt. 51 in the ’70 case. The plea agreement stated that because the government had filed a
§ 851 information, Wiley faced a mandatory minimum six-year term of supervised release and
maximum prison term of 30 years and lifetime period of supervised release. Id. The agreement
stated that defense counsel would argue for a 60-month sentence and that the government was
free to argue for whatever sentence it believed was appropriate. Id. I accepted Wiley’s plea and
sentenced him to 87 months of imprisonment and six years of supervised release. Dkt. 104 and
105 in the ’70 case (plea and sentencing transcripts).
Wiley raises a number of challenges to his conviction and sentence, including that he
was convicted under unconstitutional statutes, the indictment did not include information
crucial to his specific sentence, and that his lawyer failed to challenge these defects and misled
him into thinking that he would receive a 60-month prison sentence. But Wiley’s key claim
here is that his counsel provided ineffective assistance refusing to file an appeal on his behalf.
Wiley says that after he was sentenced, he asked counsel to file an appeal, and later when he
called counsel to ask about the appeal, counsel told him that counsel “made the conscious
choice not to appeal.” Dkt. 2, at 8–9.
Under Strickland v. Washington, 466 U.S. 668, 686 (1984), to succeed on an ineffective
assistance of counsel claim, the defendant must prove that counsel’s performance fell below an
objective standard of reasonableness and the defendant must show prejudice. But prejudice is
presumed when a lawyer disregards specific instructions from the defendant to file a notice of
appeal, regardless how likely an appeal would be to change the result, and even if the defendant
has signed an appeal waiver. Garza v. Idaho, 139 S. Ct. 738, 747 (2019); Roe v. Flores-Ortega,
528 U.S. 470, 484 (2000). The government states that an evidentiary hearing is necessary to
determine whether Wiley in fact requested an appeal and that counsel refused to file one. I
agree that a hearing is necessary on this issue.
Wiley requests that he be appointed counsel for the hearing. A federal court may
appoint counsel to represent a financially eligible petitioner in a § 2255 proceeding when the
interests of justice require. 18 U.S.C. § 3006A(a)(2)(B). To be financially eligible for
appointment of counsel, Wiley does not have to be indigent; he must demonstrate only that
he is financially unable to obtain counsel. United States v. Sarsoun, 834 F.2d 1358, 1362 (7th
Cir. 1987) (“The Criminal Justice Act . . . merely requires that a defendant be financially
unable to obtain counsel—a lower standard than indigency.”). Although Wiley bears the
ultimate burden of demonstrating his financial eligibility, “[a]ny doubts as to a person’s
eligibility should be resolved in the person’s favor; erroneous determinations of eligibility may
be corrected at a later time.” Admin. Office of the U.S. Courts, Guide to Judiciary Policies and
Procedures, Vol. 7, pt. A, § 210.40.30(b).2 Wiley qualified for court-appointed counsel in his
underlying criminal case, and he is now in prison, where his financial situation presumably has
not improved. I conclude that Wiley is financially unable to obtain counsel. I also conclude
that it would serve the interest of justice to appoint Wiley counsel for the evidentiary hearing.
The government seeks to dismiss Wiley’s remaining claims for his procedural default
and for substantive reasons. Any procedural default might be cured by the outcome of the
evidentiary hearing: if I conclude that Wiley’s counsel was ineffective by failing to file an
appeal, I would grant Wiley’s § 2255 motion, vacate the conviction, and reimpose it so that he
can pursue a direct appeal. Ryan v. United States, 657 F.3d 604, 606 (7th Cir. 2011); United
States v. Hirsch, 207 F.3d 928, 931 (7th Cir. 2000). And it is premature to address the substance
of his other claims. If I allow Wiley to pursue an appeal, I will dismiss his remaining claims
without prejudice. United States v. Barger, 178 F.3d 844, 848 (7th Cir. 1999) (“Properly, the
court should have dismissed the claims without prejudice giving Barger an opportunity to raise
the issues after the disposition of this appeal.”). If I deny Wiley § 2255 relief on the appeal
issue, I will address his remaining claims.
Available at http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-2ss-210-representation-under-cja.
IT IS ORDERED that:
1. Petitioner Antonio Wiley’s motion for appointment of counsel, Dkt. 2, is
2. Once counsel is appointed, a conference will be held to set the date for an
Entered September 7, 2021.
BY THE COURT:
JAMES D. PETERSON
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