United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
August 15, 2016, the petitioner, Thomas Phillip Vitrano,
filed yet another motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. (Docket #1). In
this most recent motion, Mr. Vitrano challenges his
conviction in United States of America v. Vitrano,
Case No. 02-CR-199 (E.D. Wis. filed Aug. 30, 2002) (J.
Randa), by claiming that: (1) his post-conviction counsel-who
represented him in connection with a previous Section 2255
motion-was ineffective under the standard announced in
Strickland v. Washington, 466 U.S. 668 (1984)); and
(2) District Judge Rudolph T. Randa erred in re-calculating
in Mr. Vitrano's sentence following the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). (See Docket #1 at 2-9). Mr.
Vitrano's Section 2255 motion is now fully briefed and
ripe for adjudication. (Docket #1, #2, #12, #16). Since
filing his petition, Mr. Vitrano has additionally moved for
default judgment (Docket #9) on October 24, 2016 and for an
evidentiary hearing on November 10, 2016 (Docket #16). As
discussed in detail below, the Court will deny Mr.
Vitrano's motion to vacate on its merits and will deny
the remaining motions as moot.
Mr. Vitrano's long and storied litigation history in this
District, for the purpose of this petition, it is important
to note that Mr. Vitrano has been charged-and convicted-in
the context of two, separate criminal proceedings. First, in
Criminal Case No. 02-CR-199, Mr. Vitrano was convicted of:
(1) being a felon in possession of ammunition and a firearm
in violation of 18 U.S.C. § 922(g)(1); and (2) and
possessing the same while subject to a domestic abuse
injunction in violation of 18 U.S.C. § 922(g)(8).
See Vitrano, Case No. 02-CR-199, Docket #77. Second,
in Criminal Case No. 09-CR-140, Mr. Vitrano was convicted of:
(1) making a false declaration to a court, 18 U.S.C. §
1623(a); (2) attempting to corruptly influence a court
proceeding, 18 U.S.C. § 1512(c)(2); and (3) threatening
a witness, 18 U.S.C. § 1512(b)(1). See United
States of America v. Vitrano, 09-CR-140, Docket #72
(E.D. Wis. filed Aug. 30, 2002) (J. Adelman). Though Judge
Randa initially sentenced Mr. Vitrano to thirty (30) years of
imprisonment for the counts of convictions in Case No.
02-CR-199, on October 28, 2015, he reduced that sentence to
ten (10) years of imprisonment under the reasoning announced
in Johnson. See Vitrano, Case No.
15-CV-1252, Docket #6; see also Vitrano, Case No.
02-CR-199, Docket #102.
to Mr. Vitrano's current motion, the Court concludes that
the Section 2255 petition is without merit. First, with
respect to grounds one and three-Mr. Vitrano's
ineffective assistance of counsel claims-“a petitioner
under § 2255 does not have a constitutional right to
counsel.” Rauter v. United States, 871 F.2d
693, 695 (7th Cir. 1989); United States v. Berger,
375 F.3d 1223, 1226 (11th Cir. 2004) (“[D]efendants
have a Sixth Amendment right to counsel on direct appeal, but
not when they collaterally attack their sentences.”);
see also Coleman v. Thompson, 501 U.S. 722, 752
(1991) (“where there is no constitutional right to
counsel there can be no deprivation of effective
assistance.”); Walker v. United States, 810
F.3d 568, 576 (8th Cir.), cert. denied, 136 S.Ct.
2042 (2016) (same). Accordingly, the Court cannot grant Mr.
Vitrano relief for his post-conviction counsel's alleged
with respect to Judge Randa's re-sentencing calculation,
Mr. Vitrano does not present any viable theory as to how his
reduced sentence in Criminal Case No. 02-CR-199 violated the
“Constitution or laws of the United States.” 28
U.S.C. § 2255(a). Though his position is difficult to
understand, Mr. Vitrano appears to argue that Judge Randa
ought to have given him a credit-in Criminal Case No.
09-CR-140-based on time he “over-served” in
Criminal Case No. 02-CR-199. (Docket #1, #2). However, Mr.
Vitrano cites no authority that would have permitted (much
less required) Judge Randa to grant such relief in a case
that was presided over by Judge Adelman. In this
sense, Mr. Vitrano's argument sounds very much like the
“sentence calculation” argument that the Seventh
Circuit rejected less than a year ago in separate mandamus
petitions that Mr. Vitrano directed at Judge Randa and Judge
Adelman. See In re: Thomas P. Vitrano, Case No.
15-3716 (7th Cir. Dec. 14, 2015) (“The calculation of a
sentence may be challenged by filing a petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in the district of
confinement after exhausting any administrative
remedies.”) (citing Clemente v. Allen, 120
F.3d 703, 705 (7th Cir. 1997); Carnine v. United
States, 974 F.2d 924, 927 (7th Cir. 1992)); In re:
Thomas P. Vitrano, Case No 15-3715 (7th Cir. Dec. 14,
2015) (same). Therefore, the Court cannot conclude that Mr.
Vitrano is entitled to relief under ground two of his
therefore, the Court concludes that Mr. Vitrano's Section
2255 motion presents no viable basis for this Court to
vacate, set aside, or correct his sentence with respect to
Criminal Case No. 02-CR-199. Accordingly, the Court must deny
his petition for relief (Docket #1) and will likewise deny
his motion for default judgment (Docket #6) and motion for an
evidentiary hearing (Docket #16) as moot. Although Mr.
Vitrano takes great issue with the government's late
response in this case, the government has provided a sound
explanation for its untimely filing, and, regardless, the
filing of a late brief is insufficient justification to
vacate a prison sentence.
under Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Mr. Vitrano must make a
“substantial showing of the denial of a constitutional
right” by establishing that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). Further, when the Court has denied relief on
procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition
states valid claim of the denial of a constitutional
right” and that “the district court was correct
in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). As the Court discussed above,
reasonable jurists would not debate whether the petition
should have been resolved in a different manner. As a
consequence, the Court is compelled to deny a certificate of
appealability as to Mr. Vitrano's motion.
the Court closes with some information about the actions that
Mr. Vitrano may take if he wishes to challenge the
Court's resolution of this case. This order and the
judgment to follow are final. A dissatisfied party may appeal
this Court's decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal
within 30 days of the entry of judgment. See Fed. R.
App. P. 3, 4. This Court may extend this deadline if a party
timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover,
under certain circumstances, a party may ask this Court to
alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal
Rule of Civil Procedure 60(b). Any motion under Federal Rule
of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. The Court cannot extend this deadline.
See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline.
See Federal Rule of Civil Procedure 6(b)(2). A party is
expected to closely review all applicable rules and determine
what, if any, further action is appropriate in a case.
IT IS ORDERED that Mr. Vitrano's motion to vacate,
modify, or correct his sentence (Docket #1) be and the same
is hereby DENIED;
FURTHER ORDERED that Mr. Vitrano's motion for default
judgment (Docket #9) and motion for an evidentiary hearing
(Docket #16) be and the same are hereby DENIED as moot;
FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice; and IT IS FURTHER ORDERED that a
certificate of appealability be and the same is hereby
Clerk of Court is directed to enter judgment accordingly.