United States District Court, E.D. Wisconsin
TYTIANNA M. JACKSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Stadtmueller U.S. District Judge.
April 24, 2018, Petitioner filed a motion to vacate her
convictions and sentence. (Docket #1). The Court screened her
motion on May 1, 2018. (Docket #2). The Court dismissed as
meritless Petitioner's claim that her firearm conviction
pursuant to 18 U.S.C. 924(c) has been rendered
unconstitutional by recent precedent. Id. The Court
did permit her, however, to proceed on a claim of ineffective
assistance of counsel. Id. Respondent filed a motion
to dismiss this ground, and thus the action generally, on May
30, 2018. (Docket #3). Petitioner responded to the motion on
June 18, 2018, (Docket #5), and Respondent replied on June
28, 2018, (Docket #6).
Sixth Amendment provides that criminal defendants are
entitled to the assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 684-85 (1984). This is a right
not just to representation, but to effective representation.
Id. at 686. A claim of ineffective assistance
requires proof of both deficient performance by counsel and
resulting prejudice to the defendant. Perrone v. United
States, 889 F.3d 898, 908 (7th Cir. 2018). Petitioner
contends that her counsel provided her ineffective assistance
when he “failed to file a notice of appeal after
sentencing” and “failed to communicate [with
Petitioner concerning] the appeal process.” (Docket #1
at 4-6). When counsel does not pursue a direct appeal when
asked to do so, they are per se ineffective.
Gant v. United States, 627 F.3d 677, 681 (7th Cir.
2010). To succeed on such a theory, however, the defendant
must have actually requested that an appeal be filed.
Petitioner's allegations are belied by the factual record
before the Court, including the documents filed and hearings
conducted in her criminal case. First and foremost,
Petitioner's counsel has offered affidavit testimony
that, directly after Petitioner was sentenced, he explained
her appellate rights and she indicated that she did not want
to appeal. (Docket #3-1). Petitioner spoke to her counsel
again a week later, but similarly failed to mention a desire
to appeal. Id. These statements demonstrate that
counsel's performance was not deficient; he did precisely
what he was told.
absent counsel's averments, Petitioner cannot show
prejudice. The Court itself notified Plaintiff of her right
of appeal during the sentencing hearing. United States v.
Tytianna M. Jackson, 16-CR-135-1-JPS (E.D. Wis.)
(Petitioner's “Criminal Case”) (Docket #63 at
30:5-31:1) (transcript of the sentencing hearing). She was
informed not only that she had a right to appeal, but also of
the time limitations and her right to proceed in forma
pauperis. Id. Further, Petitioner filed an
unconditional guilty plea to the charges against her and
received a reduced sentence based on her substantial
assistance to the government. Id., (Docket #24 and
#59). She thus failed to preserve any nonfrivolous issues for
four-page response does not alter either of these findings.
She never asserts that she actually told her attorney to file
an appeal. (Docket #5 at 3). Rather, Petitioner makes vague
statements that she did not need to use the word
“appeal” in order to trigger her counsel's
obligation to file one. Id. She claims that
counsel's affidavit has turned this into a
“he-said-she-said” dispute. Id. There
are three problems with this position. First, she has not
offered any evidence or testimony to contradict her
attorney's affidavit. Thus, the “she-said”
side of the equation is nonexistent. Second, her attorney
avers that she did not want to appeal. This statement does
not turn on Petitioner's failure to invoke
“appeal” as a magic word. Finally, Petitioner
suggests that she would have gone to trial had she known
about the mandatory minimum sentence attached to her Section
924(c) charge. Id. This is entirely irrelevant to
her asserted ground for relief; Petitioner complains that her
attorney did not file an appeal or describe the appellate
process, not that he gave deficient advice at the plea
the allegations of her motion and response brief, Petitioner
cannot rewrite history. Petitioner was fully advised of her
appeal rights in multiple ways. She did not ask for her
lawyer to file an appeal, and so he could not have been
ineffective for failing to do so. For the reasons stated
above, Respondent's motion to dismiss must be granted.
Still, under Rule 11(a) of the Rules Governing Section 2255
Cases, “the district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Petitioner
must make a “substantial showing of the denial of a
constitutional right” by establishing that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal citations omitted). As the Court discussed above,
reasonable jurists would not debate whether Petitioner's
motion should have been resolved in a different manner. As a
consequence, the Court is further compelled to deny a
certificate of appealability as to Petitioner's motion.
the Court closes with some information about the actions that
Petitioner may take if she wishes to challenge the
Court's resolution of this case. This order and the
judgment to follow are final. A dissatisfied party may appeal
this Court's decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal
within 30 days of the entry of judgment. See Fed. R.
App. P. 3, 4. This Court may extend this deadline if a party
timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover,
under certain circumstances, a party may ask this Court to
alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal
Rule of Civil Procedure 60(b). Any motion under Federal Rule
of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. The Court cannot extend this deadline.
See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline.
Id. A party is expected to closely review all
applicable rules and determine what, if any, further action
is appropriate in a case.
IT IS ORDERED that Respondent's motion
to dismiss (Docket #3) be and the same is hereby
IS FURTHER ORDERED that Petitioner's motion to
vacate, set aside, or correct her sentence (Docket #1) be and
the same is hereby DENIED;
IS FURTHER ORDERED that a certificate of
appealability as to Petitioner's motion be and the same
is hereby DENIED; and
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED with prejudice.
Clerk of Court is directed to enter ...