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Tyson v. United States

United States District Court, E.D. Wisconsin

January 30, 2018

JASON J. TYSON, Petitioner,


          J.P. Stadtmueller U.S. District Judge.

         On September 21, 2017, Jason J. Tyson (“Tyson”), a federal prisoner, filed a 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 the Constitution. (Docket #1). The motion has been fully briefed and, for the reasons stated below, it will be denied.

         1. BACKGROUND

         Tyson is in federal custody serving a prison sentence for possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). During pretrial proceedings, Tyson filed a motion to suppress the firearm, his statements, and other evidence obtained by law enforcement. In the motion, Tyson argued that the stop by police officers wherein they obtained this evidence was illegal either as an arrest or a Terry stop. After conducting an evidentiary hearing, the assigned magistrate judge, Judge William E. Duffin, recommended denial of Tyson's motion. That recommendation was later adopted by the district court without objection from Tyson.

         Thereafter, pursuant to a written plea agreement with the government, Tyson entered a plea of guilty to the indictment. The plea agreement allowed Tyson to preserve the suppression issues for appeal. Subsequently, the court sentenced Tyson to a term of imprisonment of sixty-two months-fifty for the instant offense and twelve more for a related revocation proceeding disposed of in the same sentencing hearing. Tyson appealed, but his appellate counsel raised only an issue related to the Sentencing Guidelines, not the suppression issues. See United States v. Tyson, 863 F.3d 597, 599 (7th Cir. 2017). The Seventh Circuit affirmed Tyson's sentence. Id.

         2. ANALYSIS

         In the present case, the Court permitted Tyson to proceed on the following two claims, both for ineffective assistance of counsel, in violation of the Sixth Amendment.[1] First, Tyson contends that he had meritorious objections to lodge against Magistrate Duffin's recommendation on his suppression motion, yet his trial counsel failed to object. Second, Tyson alleges that his appellate counsel refused his request to raise the preserved suppression issues on direct appeal because she believed the arguments lacked merit.

         Courts apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), to evaluate the effectiveness of counsel both at trial and on appeal. 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.” Strickland, 466 U.S. at 687-88. Second, he must show that the deficient performance prejudiced his 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 standard is “highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices.” United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (citation and internal quotations omitted). There is a “strong presumption” that counsel's decisions constitute reasonable litigation strategy. Strickland, 466 U.S. at 696; United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 2005) (“[B]ecause counsel is presumed effective, a party bears a heavy burden in making out a winning claim based on ineffective assistance of counsel.”). The Court will address the allegations Tyson makes against his trial attorney, then those lodged against his appellate counsel.

         2.1 Tyson's Trial Counsel Was Not Ineffective

         To establish ineffective assistance of trial counsel in the context of a complete failure to file a suppression motion, a petitioner must prove that the motion would have been meritorious. United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005); Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Here, of course, Tyson's counsel did in fact file a motion to suppress. The problem is that she did not file objections to the magistrate judge's report and recommendation that the motion be denied. Yet counsel is not required to engage in futile litigation. See Carter v. Douma, 796 F.3d 726, 735 (7th Cir. 2015); United States v. Hernandez-Rivas, 348 F.3d 595, 599 (7th Cir. 2003). Tyson must establish a reasonable probability that filing such objections would have produced a different outcome. As explained below, the objections Tyson says he wanted to make would not have sufficed.

         2.1.1 The Magistrate's Decision

         Before evaluating Tyson's desired objections to the magistrate's decision, the Court must briefly review that decision, issued by Magistrate Judge William E. Duffin. Magistrate Duffin, who presided over an evidentiary hearing and heard testimony from several witnesses, found the facts as follows:

At around 1:37 a.m. on September 13, 2014, Police Officer Michael Destefanis, who testified at the evidentiary hearing, and his partner heard six gun shots while performing a traffic stop on the 900 block of North 26th Street in Milwaukee, Wisconsin. The gun shots appeared to come from approximately 100 feet away to the northwest and around the corner of a local tavern, Rickey's on State. Both officers “metered the corner, ” a term meaning to tactically view around a building.
Twenty-five to thirty seconds after hearing the gun shots, the officers turned the corner and saw one only one person: a man, later identified as Tyson, wearing a black hooded sweatshirt and black pants, walking eastbound in front of Rickey's toward the officers. Officer Destefanis commanded Tyson at gunpoint to put his hands up and commence the surrender position; Tyson complied. The officers handcuffed Tyson, searched him for weapons and found none, and placed him in a squad car. Officer Destefanis then noticed “several shell casings[, ] one unspent round, and also a slug from one of the shots that w[as] fired.”
Sergeant Richard Hoffman (“Hoffman”), who also testified at the evidentiary hearing, arrived on the scene four or five minutes after the gun shots were fired. He was informed by other officers of the incident and that a person of interest had been detained. Sergeant Hoffman proceeded to search for additional casings, blood, and bullet holes, among other evidence.
He came upon a parked blue minivan and inspected the interior of the vehicle with his flashlight. Protruding from beneath the front passenger's seat was a black t-shirt and a black 1911-style pistol. The gun was consistent with the caliber of the casings found on the ground. The pistol was in the locked-back position-a position that is executed either manually or by the user expending all of its rounds. Based on Sergeant Hoffman's experience, the latter is more likely when a firearm is in a vehicle. Sergeant Hoffman pointed out the firearm to Officer Miles Kowalik (“Kowalik”) and told ...

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