United States District Court, W.D. Wisconsin
JOHN C. MORRISON, Petitioner,
UNITED STATES OF AMERICA, Respondent. ANNA F. NOVAK, Petitioner,
UNITED STATES OF AMERICA, Respondent. Nos. 14-cr-121-jdp-1, 14-cr-121-jdp-2
D. PETERSON DISTRICT JUDGE
John C. Morrison and Anna F. Novak were co-defendants in
criminal case in this court in which they were represented by
separate retained counsel. They each pleaded guilty to
distribution of a controlled substance analogs and income tax
fraud. I sentenced Morrison to four years of prison and Novak
to eight years. Morrison and Novak appealed, and their
sentences and convictions were affirmed. United States v.
Novak, 841 F.3d 721 (7th Cir. 2016). Petitioners, now
represented jointly, contend that their pleas were induced by
ineffective trial counsel, and they seek to vacate their
convictions and sentences under 28 U.S.C. § 2255. Dkt.
conducting a preliminary review of the petitions under Rule 4
of the Rules Governing Section 2255 Cases in the United
States District Courts, I conclude that it plainly appears
that petitioners are not entitled to relief. The heart of
petitioners' argument is that they would not have pleaded
guilty if they knew that they would receive substantial
prison sentences. But counsel's error in predicting the
sentence ultimately imposed by the court does not constitute
ineffective assistance of counsel. I will deny their motion
for a briefing schedule and evidentiary hearing, and I will
dismiss their petitions.
the facts from the record of the underlying criminal case and
the submissions in support of the petitions. I will assume
that petitioners' factual allegations are true, except
where they are contradicted by the record.
sold products labelled as “herbal incense” from
their retail store, JC Moon, in Ashland, Wisconsin. Customers
bought the so-called incense and smoked it to get high; some
customers got sick from consuming the incense, and some
became dependent on it. A grand jury returned a
thirty-five-count indictment charging petitioners with the
knowing sale of controlled substance analogs and with tax
fraud. See United States v. Morrison, No. 14-cr-121
(W.D. Wis. filed Dec. 10, 2014), Dkt. 1.
retained Joseph Patituce to represent her; Morrison retained
Nicholas Schepis. Patituce “led [petitioners] to
believe he had experience defending federal analogue
prosecutions.” Dkt. 9, at 1. Schepis's defense
strategy was to “raise [Morrison's] Alzheimer's
and medical issues to explain that [Morrison] had no
involvement in any sales of incense or filing the
taxes.” Dkt. 10, ¶ 5.
a February 2015 meeting without Schepis present, Patituce
told petitioners that Schepis's strategy was
“inconsistent with” and “prejudicial
to” Novak's defense. Id. Patituce
convinced Morrison to fire Schepis and hire another lawyer,
Mark Wieczorek. Morrison says that even though he had
Wieczorek as his own counsel, Patituce directed the defense
for both defendants.
June 2015, Patituce and Wieczorek began discussing with
petitioners the possibility of entering into a plea
agreement. Patituce said his goal was to resolve the charges
against petitioners “without prison.” Dkt. 9, at
3. He encouraged Novak to consider any plea agreement that
“involved probation, house arrest, or a minimal amount
of time in local jail.” Id. He
“scared” petitioners by mentioning that a
defendant in a Minnesota controlled-substance-analog case was
sentenced to 17 years' imprisonment after trial.
Id. He explained “that there were no
guarantees regarding sentencing and the ultimate sentence was
up to the judge, ” but “repeatedly”
referred to “a sentence of probation or, at most, house
arrest or minimal local jail time.” Id. at 4.
He told petitioners that they “should appeal if they
received a prison sentence in excess of three years.”
Id. at 6-7.
early July, petitioners entered into plea agreements.
See No. 14-cr-121, Dkt. 52 and Dkt. 53. On August
27, 2015, petitioners pleaded guilty to distributing a
controlled substance analog and to tax fraud. Novak and
Morrison stated under oath at the plea hearing that they
entered pleas knowingly and voluntarily, and that they
understood that the sentencing decision was up to the court.
On November 6, 2015, I sentenced Morrison to a
below-guideline term of four years in prison and Novak to a
below-guideline term of eight years. The remaining counts in
the indictment were dismissed.
direct appeal, petitioners challenged my acceptance of their
guilty pleas, the sentences I imposed, and the
constitutionality of the Controlled Substances Analogue Act,
21 U.S.C. § 813. On November 9, 2016, the Seventh
Circuit affirmed their convictions and sentences. United
States v. Novak, 841 F.3d 721 (7th Cir. 2016).
November 9, 2017, petitioners filed these motions to vacate
their convictions and sentences under 28 U.S.C. § 2255.
Petitioners now allege that, as a result of the ineffective
assistance of trial counsel, they didn't understand the
plea agreements and that they believed “that they would
receive nothing more than a probationary sentence.”
Dkt. 9, at 4.
“relief under § 2255 is an extraordinary remedy
because it asks the district court to essentially reopen the
criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). To prevail,
each petitioner must show that the “sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” § 2255(a). Relief under §
2255 is appropriate only for “an error of law that is
jurisdictional, constitutional, or constitutes a fundamental
defect which inherently results in a complete miscarriage of
justice.” Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004) (quoting Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991)). An