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 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
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.
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.
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. 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.
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
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.
Tyson's Trial Counsel Was Not Ineffective
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.
The Magistrate's Decision
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
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]
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
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 ...