Dyer v. United States
| Docket Number | 19-cv-752-pp |
| Decision Date | 31 January 2022 |
| Parties | TODD A. DYER, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (DKT. NO. 30), DENYING PETITIONER'S AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C §2255 (DKT. NO. 19), DENYING OTHER MOTIONS (DKT. NOS 41, 42, 43, 45, 46, 47, 48), DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND DISMISSING CASE
On November 18, 2019, the petitioner filed an amended motion to vacate, set aside or correct his sentence under 28 U.S.C §2255; the motion challenges his 2017 fraud conviction in Case No. 16-cr-100. Dkt. No. 19. The court screened the amended motion under Rule 4 of the Rules Governing Section 2255 Proceedings and allowed the petitioner to proceed on his ineffective assistance of counsel claim. Dkt. No. 26. The respondent filed a motion to dismiss the petitioner's §2255 motion. Dkt. No. 30. The petitioner filed a brief in opposition to the respondent's motion to dismiss. Dkt No. 33. Since then, the defendant has filed a series of other motions.
This order grants the respondent's motion to dismiss, denies the petitioner's motion to vacate, set aside or correct the sentence under §2255, declines to issue a certificate of appealability and dismisses the case. It also denies the motions the petitioner filed subsequent to the full briefing of his habeas motion.
In 2015 and 2016, the grand jury in the Eastern District of Wisconsin charged the petitioner with three distinct fraud schemes. See United States of America v. Todd Dyer, Case No. 15-cr-115; United States of America v. Todd Dyer, Case No. 15-cr-137; United States of America v. Todd Dyer, Case No. 16-cr-100.
On June 9, 2015, the grand jury indicted the petitioner on thirty-one counts of wire fraud and unlawful financial. Dyer, Case No. 15-cr-115, Dkt. No. 1. Three different attorneys represented the petitioner throughout the pre-trial proceedings, each eventually moving to withdraw. Id. at Dkt. Nos. 35, 86, 108. The petitioner filed many motions on his own, even when he was represented by counsel. See, e.g., Id. at Dkt. Nos. 100, 106. The grand jury returned a superseding indictment on October 12, 2016, removing a codefendant and some of the counts from the original indictment. Id. at Dkt. No. 137; see also Id., Dkt. No. 140 at 1. On November 10, 2016 Magistrate Judge David Jones authorized the Federal Defender Services of Wisconsin to appoint stand-by counsel and an investigator to assist the petitioner. Id. at Dkt. No. 158.
On July 7, 2015, the grand jury returned an indictment charging the petitioner with wire fraud and unlawful financial transaction. Case No. 15-cr-137 at Dkt. No. 1. Soon after that case began, the petitioner's counsel moved to withdraw, id. at dkt. no. 13, and the petitioner moved to appear pro se, id. at dkt. no. 21. Judge Jones held a hearing on October 13, 2015, found the petitioner's waiver of his right to counsel to be knowing and voluntary and allowed the petitioner to represent himself. Id. at Dkt. No. 23. Judge Jones re-appointed counsel a month later, when the petitioner indicated that he no longer wished to represent himself. Id. at Dkt. Nos. 31, 34. That attorney-and a subsequently-appointed attorney-later moved to withdraw. Id. at Dkt. Nos. 49, 59. The petitioner filed and litigated multiple pro se motions, including a motion to dismiss the indictment, id. at dkt. no. 61, a motion requesting bond, id. at dkt. no. 65, and a motion to supplement his motion to dismiss, id. at dkt. no. 66.
On June 28, 2016, the grand jury returned a thirteen-count indictment charging the petitioner with a third fraud scheme. Case No. 16-cr-100 at Dkt. No. 1. Judge Jones conducted an arraignment and plea hearing on July 13, 2016. Id. at Dkt. No. 6. At the hearing, the petitioner asked to proceed pro se, as he was doing in his other cases. Id. at 1. Without objection, Judge Jones granted the request. Id.; see also, e.g., id. at dkt. no. 17. The petitioner subsequently litigated multiple pro se motions; he filed a speedy trial motion, id. at dkt. no. 10, and a motion to dismiss the indictment, id. at dkt. no. 25, along with seventy-two attachments, id. at dkt. nos. 26-1 through 26-72.
Two days into the jury trial in Case No. 15-cr-115, the petitioner informed the government that he wanted to enter a guilty plea. See United States v. Dyer, 892 F.3d 910, 912 (7th Cir. 2018). On December 7, 2016, the parties signed and filed plea agreements that resolved all three of the criminal cases. Case No. 15-cr-115 at Dkt. No. 198; Case No. 16-cr-100 at Dkt. No. 30. Under the agreements, the petitioner pled guilty to one count of wire fraud and one count of unlawful financial transactions in Case No. 15-cr-115, and one count of wire fraud (Count One) and one count of unlawful financial transactions (Count Nine) in Case No. 16-cr-100. Case No. 15-cr-115, Dkt. No. 198 at 20-21; Case No. 16-cr-100, Dkt. No. 30 at 17-18. In exchange, the agreement called for dismissal of the remaining charges in 15-cr-115 and 16-cr-100, and all charges in 15-cr-137. Dyer, 892 F.3d at 912.
The plea agreement filed in Case No. 16-cr-100 reflected the petitioner's knowledge and voluntariness of his decision to plead guilty; it stated that (1) the petitioner had “read and fully underst[ood] the charges contained in the indictment, ” Case No. 16-cr-100, Dkt. No. 30 at 1; (2) the petitioner “fully unders[tood] the nature and elements of the crimes with which he ha[d] been charged, ” id.; (3) the petitioner's standby counsel had “fully explained” to the petitioner the “charges and the terms and conditions of the plea agreement, ” id.; (4) the petitioner “voluntarily agree[d] to plead guilty, ” id. at 2; (5) the petitioner acknowledged, understood, and agreed that he was guilty of the offenses described in the agreement, id.; (6) “[t]he parties acknowledge[d] and underst[ood] that if this case were to proceed to trial, the government would be able to prove” the true and correct factual basis for the charges beyond a reasonable doubt, id.; (7) the parties understood and agreed with the maximum penalties associated with the charges, including special assessments, potential supervised release and restitution orders, id. at 3; (8) the petitioner understood that “the government's agreement to dismiss any charge [was] conditional upon final resolution of this matter, ” and if the “plea agreement [was] revoked or if the defendant's conviction ultimately [was] overturned, then the government retain[ed] the right to reinstate any and all dismissed charges and to file any and all charges which were not filed because of the agreement, ” id. at 14; (10) the petitioner agreed that “no threats, promises, representations, or other inducements ha[d] been made, nor agreements reached, other than those set forth in this agreement, to induce the [petitioner] to plead guilty, ” id.; (11) the petitioner was not “on or under the influence of any drug, medication, alcohol, or other intoxicant or depressant, whether or not prescribed by a physician, which would impair [his] ability to understand the terms or conditions of this agreement, ” id. at 15; and (12) the petitioner “reviewed every part of this agreement and ha[d] discussed all aspects of this case with [his] standby counsel and [was] satisfied that [his] standby counsel ha[d] provided effective assistance of counsel, ” id.
The government agreed that at the time of sentencing, it would move to dismiss the remaining counts of the indictment as to the defendant. Id. at ¶8. The plea agreement indicated that the government would be asking the sentencing court for a series of enhancements under the sentencing guidelines, but provided that the defendant would not necessarily be joining those recommendations. Id. at ¶¶17-18. The government agreed to “recommend a two-level decrease for acceptance of responsibility” under U.S.S.G. §3E1.1(a). Id. at ¶19. The government also agreed that if the court found that 2-level reduction appropriate, it would recommend an additional one-level decrease under U.S.S.G. §3E1.1(b). Id. Finally, the government agreed “to recommend a sentencing within the applicable sentencing guideline range as determined by the court, and that the sentence run concurrent to any sentence imposed in Case No. 15-CR-115 also pending in this district.” Id. at ¶22.
The same day that the parties signed and filed the agreements- December 7, 2016-Judge Jones conducted a change-of-plea hearing for Case Nos. 15-cr-115 and 16-cr-100. Case No. 16-cr-100, Dkt. No. 31. Both parties orally consented to Judge Jones taking the pleas. Id. at 1. After the court put the petitioner under oath, it questioned him, found him competent to enter a plea and discussed the plea agreements with the parties. Id. Judge Jones stated that he would recommend that Judge Stadtmueller and this court accept the guilty pleas. Id. at 2. The same day, Judge Jones made that recommendation to Judge Stadtmueller and to this court. Dkt. No. 32; see also Dyer, Case No. 15-cr-115, Dkt. No. 202. Judge Jones noted that at the plea hearing, he had “explained that it would be for the United States District Judge alone, not me, to enter the plea and that my role was to conduct the plea colloquy and then to prepare a report and recommendation for ultimate disposition by Judge Pepper.” Id. at 1.
In his report, Judge Jones described the change-of-plea hearing including (1) putting the petitioner under oath, (2) questioning the petitioner regarding...
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