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Lutz v. United States

United States District Court, W.D. Wisconsin

September 20, 2019

KYLE LUTZ Petitioner,



         Petitioner Kyle Lutz pleaded guilty to production of child pornography, and I sentenced him to 180 months in prison to run concurrently with any sentence imposed in a pending state case charging him with sexual assault of a child (involving the same victim as the federal case). See Setser v. United States, 566 U.S. 231, 132 S.Ct. 1463 (2012) (holding that the district court may order a federal sentence run concurrent or consecutive to an anticipated state sentence). Petitioner took no appeal from the federal judgment, but he later filed a motion to vacate his sentence pursuant 28 U.S.C. § 2255, complaining that the state court had imposed a consecutive term, contrary to my order for concurrent time. Because his complaint was primarily with the conduct of state officials, I deferred ruling on the motion pending his direct appeal of the state sentence. That appeal is now concluded and, finding no basis for relief on his federal sentence, I deny the § 2255 motion.


         A. The Underlying Criminal Cases

         Police in Jefferson County, Wisconsin arrested petitioner for second degree sexual assault of a child and child enticement after learning that he had been involved in a sexual relationship with D.W., a 14-year-old girl. Petitioner also took nude photos of D.W. during their encounters. The sexual contact ended when D.W.'s mother found petitioner in D.W.'s bedroom one night. Petitioner admitted his conduct to D.W.'s mother and to law enforcement. Law enforcement searched his residence and recovered computer equipment that contained images of child pornography. A forensic analysis revealed that he took sexually explicit photos of D.W., which he distributed via the Internet and Skype. He also possessed and distributed other images of child pornography. The federal government then obtained an indictment charging him with production of child pornography.

         Petitioner pleaded guilty to the federal charges on February 13, 2013, and to the state charges on April 8, 2013. The federal case proceeded to sentencing on May 3, 2013, and, as indicted, I imposed a sentence of 180 months' imprisonment followed by 15 years of supervised release. I ordered this sentence run concurrent with any sentence that may be imposed in the Jefferson County case. Petitioner took no appeal from the federal judgment.

         On July 29, 2013, the state court sentenced petitioner to a total of 15 years (7 years initial confinement followed by 8 years extended supervision) consecutive to the federal sentence. Petitioner appealed the state sentence, but the state judiciary ultimately affirmed it. State v. Lutz, No. 2016AP2405-CR, 2017 Wis. App. LEXIS 1098 (Wis. Ct. App. Dec. 26, 2017).

         B. Section 2255 Action

         On January 9, 2015, petitioner filed the instant § 2255 motion, asking that this court vacate the state court's judgment imposing a consecutive sentence and order the state court to impose a concurrent sentence. In the alternative, he asked this court to vacate the federal judgment and refashion a sentence of 23 years (8 in custody and 15 on supervision) to remedy the state court's decision. He also alleged that his lawyer provided ineffective assistance of counsel by failing to file a notice of appeal as instructed and/or by failing to file a motion in this court to rectify the state court's error. He claimed that his lawyer knew the state court and state prosecutor intended to impose a consecutive sentence, yet failed to take steps to protect his rights. Specifically, he complained that counsel allowed him to sign a plea agreement containing an appeal waiver, [1] failed to file a motion to withdraw his guilty plea, and failed to file a notice of appeal. Finally, petitioner argued that he was entitled to equitable tolling due to his mental incompetence, which prevented him from timely filing his § 2255 motion.

         On February 4, 2015, I issued a Rule 4 Order, noting that § 2255 permits collateral attack on a federal sentence, not a state term. Cf. 28 U.S.C. § 2254. Petitioner argued that this court has the inherent authority to vacate the state court's judgment, which involved an unreasonable application of clearly established federal law, but in support he cited cases arising under § 2254.[2] In any event, I noted that Setser does not hold that a federal court's anticipatory decision on concurrent v. consecutive time binds the state. See 132 S.Ct. at 1471 (“[I]f he serves his federal sentence first, the State will decide whether to give him credit against his state sentences without being bound by what the district court or the Bureau said on the matter.”). Finally, the state court's decision to make its sentence consecutive did not make petitioner's federal sentence unlawful. See id. at 1472-73 (concluding that state court's later decision to make its sentence concurrent, when federal court said consecutive, did not make the federal sentence unreasonable); see also United States v. McIntosh, 753 F.3d 388, 395 (2d Cir. 2014) (finding no clear error in federal sentence where district court declined to make a non-binding recommendation to state authorities).

         I next noted that ineffective assistance claims may be raised for the first time under § 2255, see Massaro v. United States, 538 U.S. 500, 504-05 (2003), and that failure to file a notice of appeal on demand constitutes ineffective assistance regardless of whether an appeal was likely to succeed. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Castellanos v. United States, 26 F.3d 717, 718 (7th Cir.1994). I therefore directed the government to respond to petitioner's ineffective assistance claims.

         On February 26, 2015, the government filed its response, arguing that petitioner's claims were untimely. The amended federal judgment was entered on May 10, 2013, becoming final 14 days later on May 24, 2013, when petitioner filed no appeal. He was sentenced on the state case on July 29, 2013. He placed the § 2255 motion in the prison mail system on December 31, 2014, and it was filed on January 9, 2015, more than one year after his sentence became final. See 28 U.S.C. § 2255(f) (setting a 1 year limitation period). The government argued that, even if he could not have filed his § 2255 motion until after the state court acted, the motion was still untimely, filed 17 months after the state court sentencing.

         Petitioner sought equitable tolling on three grounds: (1) the Setser issue is/was not ripe for adjudication, (2) he assumed his federal lawyer was required to file a § 2255 motion after the state court judge imposed consecutive time, and (3) his mental problems should toll the time. The government noted that equitable tolling is reserved for extraordinary circumstances beyond the litigant's control that prevent timely filing. Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003). The government further noted that Setser was decided on March 28, 2012, and applied by this court at sentencing; the government accordingly saw no basis for petitioner's claim that Setser should affect tolling. Regarding his belief that his federal lawyer was obligated to file a § 2255 motion, the government noted that a prisoner's ignorance of the law does not warrant equitable tolling. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). Finally, the government argued that, while mental incompetence may provide a basis for equitable tolling, petitioner failed to allege that his limitations prevented him from understanding the legal proceedings. See Davis v. Humphreys, 747 F.3d 497, 499-500 (7th Cir. 2014).

         Regarding his allegations of ineffective assistance, the government argued that petitioner failed to present the specific allegations that would warrant an evidentiary hearing. The government further noted there would have been no basis for counsel to file a motion to withdraw petitioner's plea or modify the sentence based on what the state court did.[3] Finally, the government noted that while petitioner alleged that he told his lawyer to file a notice of appeal, he did not provide details of when he did that. The government concluded that, with one exception, all of petitioner's ineffective assistance claims were clearly time barred. On the failure to appeal claim, the ...

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