United States District Court, E.D. Wisconsin
JASON J. TYSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE.
September 21, 2017, Jason J. Tyson (“Tyson”), a
federal prisoner, filed this motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255,
asserting that his conviction and sentence were imposed in
violation of his constitutional rights. (Docket #1). The
Court screened his motion on October 2, 2017. (Docket #2).
The Court permitted Tyson to proceed on the following claim:
that his appellate counsel failed to raise on direct appeal
an issue that had been preserved in his plea agreement-
namely, that the stop by police officers that resulted in the
evidence used against him was illegal either as an arrest or
a Terry stop. (Docket #1 at 4).Appellate counsel
allegedly told him that the argument lacked merit and refused
to present it to the Court of Appeals. Id. Tyson
contends that the issue was meritorious, and that
counsel's conduct constituted ineffective assistance of
counsel under the Sixth Amendment. Id.
identified the claims on which Tyson could proceed, the Court
set a briefing schedule for his motion. Id. at 6.
The government's answer or other appropriate responsive
motion was due on November 1, 2017. Id. On that
date, the government filed a letter requesting an additional
two weeks to file its response. (Docket #3). In the letter,
government counsel indicates that it reached out to
Tyson's appellate lawyer in order to obtain evidence from
her regarding Tyson's claim. Id. at 1. While she
initially seemed open to participating in this proceeding,
she has since indicated that she will not do so because
“it is the policy of her office that attorneys do not
litigate against their clients.” Id. As a
result, she declined to participate in a conversation
regarding her representation of Tyson. Id.
apply the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), to evaluate the
effectiveness of appellate counsel. See Makiel v.
Butler, 782 F.3d 882, 897 (7th Cir. 2015). First, the
movant must show that his counsel's performance was
deficient because it “fell below an objective standard
of reasonableness.” Id. at 687-88. Second, he
must show that the deficient performance prejudiced the
defense, which means that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694.
the Strickland performance prong, appellate
counsel's performance is constitutionally deficient if
counsel fails to appeal an issue that is obviously and
clearly stronger than the claims counsel did raise on appeal.
See Makiel, 782 F.3d at 898; Blake v. United
States, 723 F.3d 870, 888 (7th Cir. 2013). Appellate
counsel need not raise every non-frivolous claim, but should
select among claims to maximize the likelihood of success on
appeal. See Smith v. Robbins, 528 U.S. 259, 288
(2000); Makiel, 782 F.3d at 897. To satisfy the
Strickland prejudice prong, the movant must show
that there is a reasonable probability that the issues
appellate counsel did not raise would have changed the
outcome of the appeal. See Johnson v. Thurmer, 624
F.3d 786, 793 (7th Cir. 2010).
habeas cases involving claims of ineffective assistance of
counsel, government counsel reaches out to the lawyer in
question and facilitates their participation. However,
government counsel has tried in good faith to do so here and
failed. Without appellate counsel's testimony, it is all
but impossible to evaluate her performance against the
Strickland standard, and ultimately to find that her
assistance was ineffective. Because it is Tyson's burden
to make out this claim, if he cannot convince his lawyer to
participate in these proceedings, the Court will be obliged
to find that Tyson's claim of ineffective assistance of
appellate counsel lacks merit.
Tyson is able to secure his attorney's participation in
this case is a matter left to him. For present purposes, the
Court finds that the government has shown good cause for its
requested extension of time. The Court will grant it a
two-week extension, or until November 15, 2017, to answer or
otherwise respond to the motion. The other deadlines for
later briefs will also be pushed back accordingly.
IT IS ORDERED the government's request
for an extension of time (Docket #3) be and the same is
IS FURTHER ORDERED that, on or before
November 15, 2017, the government shall file
an answer to Petitioner's motion to vacate, set aside, or
correct his sentence (Docket #1), or other appropriate
IS FURTHER ORDERED that Petitioner shall file a
response to the government's submission not later than
December 15, 2017; and
IS FURTHER ORDERED that, if the government files a
motion in lieu of an answer, it may file a reply brief to
Petitioner's response not later than December 29,
The Court did not allow Tyson to
proceed on his other claim, that the government somehow
breached the plea agreement by appellate counsel's
failure to appeal the ...