Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morrison v. United States

United States District Court, W.D. Wisconsin

March 6, 2018

JOHN C. MORRISON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. ANNA F. NOVAK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Nos. 14-cr-121-jdp-1, 14-cr-121-jdp-2

          ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Petitioners 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. 1.[1]

         After 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.

         BACKGROUND

         I draw 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.

         Petitioners 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.

         Novak 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.

         But in 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.

         In late 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.

         In 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.

         On 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).

         On 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.

         ANALYSIS

         Habeas “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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.