United States District Court, E.D. Wisconsin
ANTHONY D. COOK, Petitioner,
UNITED STATES OF AMERICA, Respondent.
STADTMUELLER, U.S. DISTRICT JUDGE.
Anthony D. Cook (“Cook”) pleaded guilty to
committing Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a), and brandishing a firearm in connection
therewith, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
No. 14-CR-226-1-JPS (“Criminal Case”), (Docket
#35 at 2; Docket #37). On July 7, 2015, the Court sentenced
Cook to 144 months' imprisonment. Criminal Case, (Docket
#56). Cook appealed the Court's application of two
sentencing enhancements, but the Court of Appeals disagreed
and affirmed the sentence. United States v. Cook,
850 F.3d 328, (7th Cir. 2017). The Supreme Court rejected
Cook's petition for a writ of certiorari on October 2,
2017. Cook v. United States, 138 S.Ct. 135 (Oct. 2,
2017). The instant motion was filed on October 25, 2017.
asserts two grounds for relief. First, Cook says he received
ineffective assistance of counsel, in violation of the Sixth
Amendment, during the plea phase of his criminal case. Cook
claims that his trial counsel told him that he would receive
no more than a sixty month sentence, while failing to explain
that the brandishing charge would result in a mandatory
consecutive eighty-four month sentence. (Docket #2 at
The sixty month representation also failed to account for the
disputed sentencing enhancements. Id. Also during
the plea phase, Cook argues that his trial counsel was
ineffective for advising him to plead guilty to the
brandishing charge, of which he maintains his innocence.
Id. at 8-11. Cook's second ground for relief is
related to this last contention. He says that his appellate
counsel was ineffective when he failed to raise Cook's
innocence of the brandishing charge. Id. at 12-13.
motion is now before the Court for screening:
If it plainly appears from the motion, any attached exhibits,
and the record of the prior proceedings that the moving party
is not entitled to relief, the judge must dismiss the motion
and direct the clerk to notify the moving party. If the
motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
4(b), Rules Governing § 2255 Proceedings.
Court begins by addressing the timeliness of Cook's
motion. 28 U.S.C. § 2255(f) provides that there is a
one-year limitations period in which to file a motion seeking
28 U.S.C. § 2255 relief. That limitations period runs
from the date on which the judgment of conviction becomes
final. “[T]he Supreme Court has held that in the
context of postconviction relief, finality attaches when the
Supreme Court ‘affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari,
or when the time for filing a certiorari petition
expires.'” Robinson v. United States, 416
F.3d 645, 647 (7th Cir. 2005) (internal citations omitted).
Cook's motion is timely. He filed it just over two weeks
after the Supreme Court denied certiorari.
Court turns next to procedural default. Relief under 28
U.S.C. § 2255 is appropriate if the Court determines
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.” 28 U.S.C.
§ 2255(a). However, this form of action is not a
substitute for a direct appeal. Varela v. United
States, 481 F.3d 932, 935 (7th Cir. 2007). Therefore,
any claims that Cook did not raise at trial or on direct
appeal are procedurally defaulted and he cannot raise them.
See Torzala v. United States, 545 F.3d 517, 522 (7th
are two exceptions to this rule. First, claims of ineffective
assistance of counsel may be raised for the first time on a
28 U.S.C. § 2255 motion. Massaro v. United
States, 538 U.S. 500, 504 (2003). Second, Cook may raise
claims that he otherwise procedurally defaulted if he
demonstrates that there was cause for his failure to raise a
claim earlier and that the failure has actually prejudiced
him. Torzala, 545 F.3d at 522 (citing Bousley v.
United States, 523 U.S. 614, 621, 622 (1998)).
Cook's claims fall into the former category. Though Cook
did not raise these issues during his direct appeal, given
the fact that he is raising claims related to ineffective
assistance, the Court does not believe that he has
procedurally defaulted those claims.
the Court does not believe that it “plainly appears
from the motion. . .that [Cook] is not entitled to
relief.” Rule 4(b), Rules Governing § 2255
Proceedings. While the Court has substantial misgivings about
the propriety of Cook's claims, particularly with respect
to his asserted innocence of the brandishing charge, the
wisest course is to obtain further briefing from the parties.
The Court therefore declines to dismiss Cook's motion at
this early stage. Under Rule 4(b) of the Rules Governing
§ 2255 Proceedings, because the Court has not dismissed
the case, it “must order the United States Attorney to
file an answer, motion, or other response within a fixed
time[.]” Accordingly, the Court will direct the parties
to follow the schedule as set forth below.
Court also will address Cook's other pending motions. On
December 27, 2017, he filed a motion for “default
judgment” against Respondent. (Docket #5). Prior to the
issuance of this Order, and the briefing scheduling contained
herein, Respondent was under no obligation to respond to
Cook's petition. The motion must, therefore, be denied.
Cook also filed two motions related to the screening process,
(Docket #6 and #7), but this Order renders them moot.
IT IS ORDERED that the parties shall proceed
in accordance with the following schedule:
Within thirty (30) days of entry of this Order, Respondent
shall file either an appropriate motion seeking dismissal of
this action or answer the petition, complying with Rule 5 of
the Rules Governing Section 2255 Cases, and showing cause, if
any, why the writ should not issue.
Respondent files an answer, then Petitioner shall have thirty
(30) days after the filing of Respondent's answer within
which to file a brief in support of his petition, ...