United States District Court, E.D. Wisconsin
TYTIANNA M. JACKSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Stadtmueller U.S. District Judge.
Tytianna M. Jackson (“Jackson”) pleaded guilty to
one count of Hobbs Act Robbery, in violation of 18 U.S.C.
§§ 1951(a) and 2, and one count of brandishing a
firearm in connection with a crime of violence, in violation
of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2.
United States v. Tytianna M. Jackson,
16-CR-135-1-JPS (E.D. Wis.) (Jackson's “Criminal
Case”), (Docket #24). On April 20, 2017, the Court
sentenced her to seventy-five months' imprisonment for
those crimes. Id., (Docket #58). Jackson did not
appeal her convictions or sentence. Jackson filed a motion
pursuant to 28 U.S.C. § 2255 to vacate her convictions
on April 24, 2018. (Docket #1). That 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 Section 2255 Proceedings.
Court begins by addressing the timeliness of Jackson's
motion. Section 2255(f) provides that there is a one-year
limitations period in which to file a motion seeking Section
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). Because Jackson did
not appeal, her conviction became final once the deadline for
filing a notice of appeal expired. Clarke v. United
States, 703 F.3d 1098, 1100 (7th Cir. 2013). The
deadline expired on May 4, 2017, fourteen days after judgment
was entered. Thus, Jackson's motion appears timely.
Court turns next to procedural default. Section 2255 relief
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 Jackson did not raise at trial or on direct
appeal are procedurally defaulted and she 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 in a
Section 2255 motion. Massaro v. United States, 538
U.S. 500, 504 (2003). Second, Jackson may raise claims on
which she otherwise procedurally defaulted if she
demonstrates that there was cause for her failure to raise a
claim earlier and that the failure has actually prejudiced
her. Torzala, 545 F.3d at 522 (citing Bousley v.
United States, 523 U.S. 614, 621 (1998)).
raises three grounds for relief, which the Court will
consolidate into two. The first and second grounds for relief
assert that her trial counsel provided ineffective assistance
of counsel to her with respect to her appellate rights.
(Docket #1 at 4-5). She claims that her counsel both failed
to file a notice of appeal and did not “communicate to
defendant the appeal process.” Id. There is no
reason to treat these as separate grounds for relief as they
both concern the same topic. Because the claim is for
ineffective assistance of counsel, it is not procedurally
third claim is for a “due process” violation.
Id. at 7. Jackson argues that Hobbs Act robbery does
not qualify as a “crime of violence, ” which is a
necessary predicate for her Section 924(c) conviction.
Id. She asserts that “[t]he residual clause
has now been declared unconstitutionally vague, ” and
so her Section 924(c) conviction is “a violation of her
due process right.” Id.
Court need not address whether Jackson's third claim is
procedurally defaulted, or suffers any procedural infirmity
for that matter, as it is plainly meritless. Section 924(c)
imposes additional penalties on individuals who carry or use
firearms in connection with certain crimes. 18 U.S.C. §
924(c). In Jackson's case, she was convicted of
brandishing a firearm during a “crime of violence,
” which the statute defines as an offense that is a
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
Id. § 924(c)(3). The first clause is referred
to as the “elements” clause, while the second is
known as the “residual” clause.
Supreme Court in Johnson v. United States, 135 S.Ct.
2551, 2560 (2015), found that an identical residual clause in
the Armed Career Criminal Act was unconstitutionally vague.
The Court later determined that the rule announced in
Johnson was substantive and should therefore be
retroactively applicable to collateral attacks like
Jackson's. Welch v. United States, 136 S.Ct.
1257, 1265 (2016). Jackson seems to contend that her Hobbs
Act robbery offense only qualifies as a “crime of
violence” under the residual clause of Section
924(c)(3). Because the ...