United States District Court, E.D. Wisconsin
ORDER CONSTRUING THE DEFENDANT'S MOTION TO
WITHDRAW GUILTY PLEA AS A PETITION TO VACATE, SET ASIDE OR
CORRECT SENTENCE UNDER 28 U.S.C. §2255 (DKT. NO. 57),
DIRECTING CLERK'S OFFICE TO OPEN A CIVIL CASE, AND
DISMISSING THAT CASE ONCE IT HAS BEEN OPENED
PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE
4, 2017, the government charged the defendant with six counts
of carjacking and four counts of using, carrying and
brandishing a firearm during and in relation to those crimes
of violence. Dkt. No. 1. The information alleged that the
defendant was a juvenile at the time he allegedly committed
the crimes. Id. The defendant's lawyer asked the
court for a competency evaluation. Dkt. No. 14. The court
issued the order, dkt. no. 16, and on December 14, 2017,
concluded that the defendant had recovered sufficiently that
he could understand the nature and consequences of the
charges and could assist in his own defense, dkt. no. 29. The
grand jury indicted the defendant on March 6, 2018, dkt. no.
33, and the government filed a superseding information a
little over a month later, charging the defendant with
another count of carjacking, dkt. no. 38. The next day, the
parties filed a plea agreement, signed by the defendant. Dkt.
No. 40. The plea agreement indicated that the defendant was
pleading to three carjacking counts-two from the indictment
and the one in the information-and to one charge of using,
carrying and brandishing a firearm during a carjacking.
Id. at 2-3. The agreement indicated that the
defendant acknowledged and admitted that he was guilty of
those offenses. Id. at 3. The agreement indicated
that the government had agreed to recommend a sentence of no
more than ten years in prison, given the defendant's
youth and intellectual capacity. Id. at 7, ¶25.
court conducted a change-of-plea hearing on May 21, 2018; the
defendant was present with his lawyer. Dkt. No. 41. The
hearing lasted over an hour, from 11:00 a.m. to 12:06 p.m.
Id. at 1. During the hearing, the defendant asked
the court how his case had ended up in federal court. The
court explained that because the cars involved in the
carjacking had traveled in interstate commerce (between
states), the carjacking was a federal crime. The defendant
told the court during the hearing that he understood the
court's explanation, and that he understood the charges
against him, including the gun charge. The court explained to
the defendant that the gun charge carried a mandatory minimum
sentence of eighty-four months (seven years), which the court
would have to impose consecutively to any other sentence; the
defendant indicated that he understood. The court explained
that the defendant could not withdraw his guilty plea solely
because he did not agree with information in the presentence
report or because he did not agree with the sentence the
court imposed. The defendant stated that he understood. The
court also explained to the defendant that the
government's promised sentencing recommendation applied
only to the charges in federal court and did not affect the
case pending in Waukesha County Circuit Court. The court
explained that the Waukesha County case was a separate case
and would be decided by another judge, because this court
does not have power over Waukesha County. The court clarified
that the Waukesha County case could have an impact on the
defendant's criminal history score under the U.S.
Sentencing Guidelines, but that it could not know what that
impact might be at that point. The defendant responded that
he understood that the Waukesha County case was separate from
this federal case.
September 27, 2018, the court sentenced the defendant to
serve twenty-four months on each of the carjacking counts, to
run concurrently with each other. It sentenced the defendant
to serve eighty-seven months on the gun charge, to run
consecutively to the twenty-four-month sentences on the
carjacking counts, for a total sentence of 108 months (or
nine years)-a year less than the government's
recommendation, and two years more than the defense
recommendation. Dkt. Nos. 46, 47.
December 27, 2019, however-fifteen months after the court
entered the original judgment, over thirteen months after it
entered the first amended judgment (dkt. no. 52) and over ten
months after it entered the second amended judgment (dkt. no.
56)-the defendant filed this document, titled “Motion
for Ineffective Counsel and Reiteration of Plea.” Dkt.
No. 57. The defendant says that he was not fully informed of
the charges he was facing. Id. at 1. He indicates
that he didn't have a gun at the time he was arrested,
and that his prints weren't taken from a gun.
Id. He says that his appointed lawyer did not tell
him the extent of the charges against him, and that he was
allowed to plead guilty without his ever possessing a gun or
ammunition. Id. He states that “being a
teenager accused of such a crime and being in juvenile
detention really scared” him, that he didn't fully
understand the law and the nature of the charges against him
and that he trusted his appointed lawyer. Id. He
says that he's since re-analyzed his life and the mess he
finds himself in, and that he wants an opportunity to show
his innocence. Id.
appears that the defendant filed the motion to withdraw his
guilty plea. If that is the case, the motion is untimely. A
defendant may withdraw a plea prior to sentencing
only for a “fair and just reason.” Fed. R. Crim.
P. 11(d)(2). But once the court has sentenced the defendant
and entered the final judgment, the entry of the final
judgment terminates a district court's jurisdiction.
United States v. Wahi, 850 F.3d 296, 300 (7th Cir.
the court has entered the final judgment, a defendant has
several options for challenging his conviction or sentence,
each of which is governed by a different deadline.
the defendant may ask the court to vacate the judgment and
grant him a new trial “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). If the defendant
wants a new trial based on newly discovered evidence, he has
three years after court found him guilty to file the motion
for a new trial. Fed. R. Crim. P. 33(b)(1). If the defendant
wants a new trial for any other reason, he must file the
motion within fourteen days after the court finds him guilty.
Fed. R. Crim. P. 33(b)(2). Here, the defendant has not asked
the court to vacate the judgment and give him a new trial
based on newly-discovered evidence, so the fourteen-day
deadline applies. That deadline passed long ago.
the defendant may ask the court to “correct a sentence
that resulted from arithmetical, technical, or other clear
error, ” if he files that motion within fourteen days
after sentencing. Fed. R. Crim. P. 35(a). That deadline, like
the deadline for filing a motion for a new trial under Rule
33(b)(2), passed long ago.
a defendant may appeal his conviction and sentence to a
higher court. Federal Rule of Appellate Procedure 4(b)(1)
requires the defendant to file a notice of appeal in the
district court within fourteen days of the entry of judgment.
Again, that deadline passed long ago.
a defendant may file a motion to vacate, set aside or correct
his conviction and sentence under 28 U.S.C. §2255. The
deadline for a convicted person to file such a motion expires
within one year of the date the conviction becomes final or
the date on which the defendant could have discovered the
facts supporting his claims “through the exercise of
due diligence.” 28 U.S.C. §§2255(f)(1) and
(f)(4). A judgment becomes “final” once the
deadline for filing a notice of appeal has expired.
Clarke v. United States, 703 F.3d 1098, 1100 (7th
court sentenced the defendant on September 27, 2018, and
entered judgment on September 28, 2018. Dkt. Nos. 46, 47. The
time for the defendant to appeal expired fourteen days later,
on October 12, 2018. He thus had one year from October 12,
2018-that is, until October 12, 2019-to file a petition under
§2255. By that calculation, even if the court construes
the defendant's motion as a §2255 petition, he filed
it over two months after the one-year limitations period
court amended the judgment twice-once on November 19, 2018,
to add the restitution amount that had been deferred (dkt.
no. 52) and once on February 7, 2019 to add restitution to
the insurance company (dkt. no. 56). The court has not deeply
researched the question of whether these amendments-which did
not affect the incarceration portion of the sentence- would
impact the calculation of the one-year limitations period for
filing a §2255 petition; it is possible that they would.
It is also possible that there is some reason for the court
to equitably toll the one-year period (although the court
can't discern one from what the defendant filed.
abundance of caution, however, the court will construe the
defendant's motion as a §2255 petition and will