Dixon v. USA

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH DIXON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Case No. 21-1437-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on Petitioner Joseph Dixon’s motion to vacate his
conviction and sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). Dixon contends that he
received ineffective assistance from his trial counsel in violation of his Sixth Amendment
rights, principally because his attorney did not appeal his judgment despite his express
instruction to do so. The Court appointed counsel for Dixon and held an evidentiary
hearing on July 17, 2024. For the reasons set forth below, Dixon’s section 2255 motion is
denied.
B ACKGROUND
On an evening in late-July 2017, three individuals named Romello Bland, Trevion
McClendon, and Mark Richardson carjacked a 2011 Jeep Grand Cherokee in Maryville,
Illinois. A short time later, in August 2017, those three individuals recruited a fourth,
Joseph Dixon, to drive with them in the stolen vehicle from St. Louis, Missouri, across the
Mississippi River into southern Illinois, to commit another carjacking. Their first victim,
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K.T., was parked at a gas pump in Swansea, Illinois, around 11:23 p.m. Dixon’s group
parked the Jeep in front of K.T.’s Nissan Altima. Richardson pointed a black handgun
with an extended magazine at K.T. and told her to get out of the car. When K.T. complied,
Richardson drove off in her car, and Dixon, Bland, and McClendon left the gas station
driving the 2011 Jeep Grand Cherokee.
The four identified their next victim, D.M., about five minutes later. Dixon blocked
D.M.’s car, a 2009 Pontiac G8, by parking the 2011 Jeep Grand Cherokee in front of it as
she was attempting to turn. At the same time, Richardson pulled in behind D.M. in the
Altima they had just taken from K.T. Richardson was armed with the same black firearm
with an extended magazine. Bland, who had been in the Jeep, opened the driver’s side
door of D.M.’s Pontiac and ordered her to get out of the car. Fortunately, they allowed
D.M. to get her small children out of the car too. The four then drove away in the Jeep,
the Altima, and D.M’s Pontiac. 1 At the time of these carjackings, Bland had just turned
22, McClendon and Richardson were 19, and Dixon was 20 years old.
Bland, McClendon, and Richardson were indicted in the Southern District of
Illinois on January 17, 2018. 2 (Case No. 18-30014-NJR (S.D. Ill.) (hereinafter “Criminal
1 These facts are summarized from the Statement of Facts that Dixon signed with the Government.
(Criminal Case, Doc. 205). On August 11, 2020, he acknowledged under oath to the undersigned that the
Government could prove everything in the Stipulation of Facts beyond a reasonable doubt. (Criminal Case,
Doc. 275 pp. 19-20).
2 All three later pleaded guilty to the charges. Bland was sentenced to a total term of 252 months’
imprisonment (the statutory mandatory minimum for three counts of Carry and Use of a Firearm During
a Crime of Violence); McClendon was sentenced to a total term of 192 months’ imprisonment (the statutory
mandatory minimum of 168 months on two counts of Carry and Use of a Firearm During a Crime of
Violence, with 24 months on four other counts); and Richardson was sentenced to a total term of
252 months’ imprisonment (the statutory mandatory minimum for three counts of Carry and Use of a
Firearm During a Crime of Violence).
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Case”), Doc. 1). On June 19, 2018, Dixon was charged in Count 1 and Counts 4 through 7
in a seven-count Superseding Indictment with Conspiracy to Commit Carjacking, in
violation of Title 18, United States Code, Section 2119; Carjacking (2 counts), in violation
of Title 18, United States Code, Section 2119; and Carry and Use of a Firearm During a
Crime of Violence, in violation of Title 18, United States Code, Section 924(c)(1)(A).
(Criminal Case, Doc. 63). Dixon was arraigned on July 17, 2018, and Attorney Bobby
Bailey was appointed to represent him that same day. (Id. at Docs. 75, 78).
Dixon pleaded guilty to all five counts. He was sentenced by the undersigned to a
total term of 168 months’ imprisonment. That term consists of 84 months each as to
Counts 5 and 7 of the Superseding Indictment (the § 924(c) counts), to run consecutively
with each other. In light of the term imposed on Counts 5 and 7, no term of imprisonment
was imposed as to Counts 1, 4, and 6 of the Superseding Indictment. The total term was
imposed to run consecutively with Dixon’s sentence on similar charges imposed in the
Eastern District of Missouri (“EDMO”), case number 4:18-CR-00481-01. As Dixon will
serve a five-year term of supervised release in the EDMO case, the undersigned did not
impose a term of supervised release. The judgment was signed and entered on November
18, 2020. Dixon did not file a Notice of Appeal within 14 days of the entry of judgment.
He is currently housed at FTC-Oklahoma City with a projected release date of February
21, 2038. See Bureau of Prisons Inmate Locator, www.bop.gov/inmateloc (last visited Jan.
7, 2026).
PETITION U NDER § 2255
On November 17, 2021, Dixon filed this civil action under 28 U.S.C. § 2255 to vacate
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his sentence. (Doc. 1). Dixon’s claims include the following: (1) “during the time after I
was sentenced I asked my lawyer to file for a direct appeal within the 14 day period, but
he never put in the motion for appeal” and (2) “I also asked my attorney was it any law
where they could stack multiple 924(c)’s against me.” (Doc. 1 pp. 4-5).
Liberally construed, the petition raises two ineffective assistance claims based on
his trial counsel’s failure to file an appeal and failure to research the issue regarding the
§ 924(c) charges. The Government points out that Dixon’s petition does not indicate how
he told Attorney Bailey to file the appeal, when he told him to do so, or include other
corroborating details to support his claim. (Doc. 6 p. 7). The Government also noted that
Bailey provided the AUSA with a letter stating the following: “Counsel for defendant
provides this written notice certifying that counsel has explained to defendant his right
to appeal, defendant declined to file a Notice of Appeal, and did not instruct counsel to
file a Notice of Appeal.’” (Id. at p. 8).
EVIDENTIARY HEARING
The Court held an evidentiary hearing on July 16, 2024, where it heard testimony
from Dixon and attorney Bobby Bailey.
a. Dixon’s Testimony
Dixon testified that he notified attorney Bailey — through text messages sent by
Dixon’s father to Bailey after the sentencing hearing — that he wanted to appeal. (Hr’g
Tr., Doc. 47-3 p. 12). Dixon asserted that Bailey never responded to his father’s text
messages. (Id. at pp. 12, 15). He further testified that he never had a conversation with
Bailey about appealing his sentence. (Id. at p. 13). Dixon does not have a record of the text
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messages and never tried to contact Bailey on a subsequent occasion. (Id. at pp. 40-41).
Dixon claimed that he wrote a letter to the Court on his own requesting an
extension of time to appeal, but it was denied. (Id. at p. 14.) The Court notes that there is
no such request for an extension in the record (although Dixon did file a motion seeking
an extension of time to file a § 2255 motion on October 4, 2021 (Criminal Case, Doc. 266)),
and that motion was denied for lack of jurisdiction (Criminal Case, Doc. 269).
As to the § 924(c) charges, Dixon testified that he “was confused” about the charges
when he pleaded guilty, but acknowledged that he committed the crimes. (Hr’g Tr.,
Doc. 47-3 pp. 18-19). He claimed he told Bailey that he was confused about the sentences
on the two charges running consecutively. (Id. at p. 18). He further testified that he didn’t
know that he would get two 84-month sentences on the charges pending in this district,
and that he didn’t know that Judge Autrey in his EDMO case had ordered that his
sentence in that case would run consecutive to any sentence imposed in this district. (Id.
at pp. 22-23, see also EDMO Judgment, Gov’t Ex. 3). Dixon also testified that neither Bailey
nor his attorney across the river, Len Kagan, told him that the sentences would run
consecutively. (Hr’g Tr., Doc. 47-3 p. 23).
On cross-examination, the Government took Dixon through the plea colloquy and
the written plea agreement, in which he acknowledged that he would receive a sentence
on the two § 924(c) counts charging Use/Carry of a Firearm During a Crime of Violence
of “NLT [not less than] 7 years’ (imposed consecutive to any sentence imposed on Counts
1, 4 and 6, and consecutive to any other 924(c) conviction” (Criminal Case, Plea
Agreement, Doc. 206 p. 2; Change of Plea hearing held August 11, 2020, Doc. 275 pp. 11-
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12). Indeed, during the plea hearing, the undersigned ensured that Dixon understood this
in the following exchange:
THE COURT: 	So, as to Counts 5 and 7, again, Mr. Dixon, there are
four things the Government would have to prove
beyond a reasonable doubt. Do you have any question
about that?
DEFT. DIXON: 	No, ma’am.
THE COURT: 	And then that one [referring to Count 5 and Count 7]
calls for a mandatory seven years on each count, which
must run consecutive to any other count, as well as to
each other and any other 924(c) conviction. Do you
understand that?
DEFT. DIXON: 	Yes, ma’am.
(Criminal Case, Doc. 275 p. 12).
Dixon further acknowledged that page 5 of the plea agreement states:
Counts 5 and 7: Use/Carry of Firearm in Relation to Crime of Violence
Pursuant to 18 § 924(c)(1)(A)(ii), the sentence to be imposed
on Counts 5 and 7 is a minimum of 7 years (84 months)
imprisonment consecutive to each other and consecutive to the
sentence imposed for the underlying crimes of violence, being
Carjacking as charged in Counts 4 and 6 of this indictment
and consecutive to any other 924(c) conviction.
(Doc. 206 p. 5 (emphasis in original); see also Hr’g Tr., Doc. 47-3 pp. 25-26). Dixon
acknowledged that the plea agreement contemplated a total advisory guideline range of
209 to 219 months’ imprisonment. (See Doc. 206 p. 5 (emphasis in original); Hr’g Tr.,
Doc. 47-3 p. 26). And Dixon acknowledged that the parties agreed to recommend a
sentence of 168 months (14 years), a “lot less” than the advisory guideline range, and that
he 	ultimately 	received 	that 	sentence. 	(Hr’g 	Tr., 	Doc. 	47-3 	p. 26). 	Dixon 	further
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acknowledged that as part of his plea agreement he waived most of his appellate rights
(everything but the right to challenge the substantive reasonableness of the sentence and
to claim that he received ineffective assistance of counsel), as well as his rights to
collateral review. (Id. at p. 27). Again, of course, the undersigned reviewed this waiver
with Dixon at the time he entered his guilty plea:
THE COURT: 	Section 5 [of the plea agreement] is called Defendant’s
Waiver of Rights, Consequences of Plea of Guilty and
Appeal Waiver. Again, it’s going over a number of
rights you are giving up by pleading guilty here today.
Then, 	also, 	importantly 	in 	paragraph 	5 	it 	says,
‘Defendant knowingly and voluntarily waives the
right to seek modification of or contest any aspect of
the conviction or sentence in any type of proceeding.’
So 	you 	understand 	by 	entering 	into 	this 	plea
agreement, you will have given up most of your
appellate rights?
DEFT DIXON: 	Yes, ma’am.
***
THE COURT: 	Now, 	under 	some 	circumstances 	you 	or 	the
Government may have the right to appeal any sentence
that I impose, but as part of your plea agreement you
have waived most of your appellate rights. Do you
understand that?
DEFT. DIXON: 	Yes.
(Plea Hr’g Tr., Doc. 275 pp. 16, 19).
As to his Pre-Sentence Report (Criminal Case, Doc. 230), Dixon admitted that he
went over the document with Bailey but could not recall if he went over the portion that
set forth the minimum sentence required on Counts 5 and 7. (Hr’g Tr., Doc 47-3 p. 33).
Notably, the PSR mentions the mandatory 84-month sentence on Counts 5 and 7 must be
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served consecutively with one another and to all other counts multiple times. (PSR ¶¶ 8,
93-94). Dixon likewise could not recall if he went over the Sentencing Options portion of
the report, which sets out the Statutory and Guideline Provisions for imprisonment,
supervised 	release, 	and 	fines 	— 	mentioning 	not 	only 	the 	mandatory 	84-month
consecutive 	sentences 	but 	also 	a 	total 	guideline 	range 	of 	209 	to 	219-months’
imprisonment. (Id. at ¶ 95; Hr’g Tr., Doc 47-3 p. 34). Although Dixon couldn’t recall
reviewing the PSR during the hearing on his 2255 motion, he very clearly told the
undersigned at the sentencing hearing that he had read and discussed the PSR with his
attorney, that he had had enough time to review it and discuss it with him, and that
everything in the report was true and accurate. (Sentencing Tr., Doc. 277 p. 7).
b. Attorney Bailey’s Testimony
Attorney Bailey has been a member of the Missouri bar since early 2002 or 2003.
(Hr’g Tr., Doc. 47-3 p. 51). In that time, he has had two fee disputes filed against him with
the Missouri bar, but he has never been disciplined for any reason. (Id.) Bailey testified
that his law license was in good standing, and no court had ever found him to have
provided ineffective assistance of counsel. (Id. at pp. 51-52). At the time of the evidentiary
hearing, he had been a criminal defense attorney approximately 15 years and handled
“[a] lot” of federal criminal defense cases over the last 10 years with “[a] lot” of those
involving § 924(c) counts. (Id. at p. 52). As such, he testified that he is aware that § 924(c)
counts must run consecutively by statute. (Id. at pp. 52-53). He acknowledged that this
means that a § 924(c) imposed in one jurisdiction must run consecutive to a § 924(c)
imposed in another jurisdiction based on his “prior experiences with cases, research.”
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(Id. at p. 53).
Through his experience, Bailey testified that he is also familiar with a defendant’s
appeal rights, including the fact that a defendant has 14 days from the date of judgment
to file a notice of appeal. (Id.). He testified that he understood he is required to file a
notice of appeal if a defendant asks him to do so, even if that defendant has a plea
agreement with an appeal waiver. (Id.).
Attorney Bailey indicated that Dixon could read and write and that he was able to
communicate effectively with him. (Id. at pp. 53-54). He testified that Dixon was
cooperative, appeared competent to understand the proceedings, and never appeared
impaired or mentally unstable. (Id. at p. 54). According to Bailey, Dixon seemed generally
satisfied with his representation, and he was never aware that Dixon expressed any
displeasure regarding his representation. (Id.). Moreover, Dixon was actively involved in
his case. (Id.).
Attorney Bailey testified that he was familiar with the details of Dixon’s case in the
Eastern District of Missouri, including the details of the judgment. (Id. at pp. 55-56). He
further testified that he discussed with Dixon the fact that the EDMO sentence was
ordered to run consecutive to whatever sentence was imposed here. (Id. at p. 56). In fact,
Attorney Bailey acknowledged that he filed a motion to continue the trial setting in
Dixon’s case here on March 11, 2019, asserting that he required additional “and necessary
time to review and advise [defendant] on how the conviction in the Eastern District of
Missouri on January 16, 2019, could affect a plea or conviction at trial.” (Id. at p. 56; see
also Criminal Case, Doc. 106). Attorney Bailey also testified about a third motion to
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continue he filed on August 14, 2019 (Criminal Case, Doc. 153) that sought “additional
and necessary time to consider an offer and finalize a plea agreement.” (Hr’g. Tr. Doc. 47-
3 p. 57). Bailey explained that there were two issues he was discussing with Dixon at that
time: the § 924(c) counts running consecutive and whether Dixon should cooperate with
the Government. (Id. at pp. 57-58). Specifically, the issue was that “[Dixon] didn’t want
to get more than what the co-Defendants was getting, and their case was only in the
Southern District. They didn’t have no case in the Eastern District.” (Id. at p. 58). In
other words, Attorney Bailey and Dixon were “trying to figure out how could we make
this plea equal to theirs, even though they did not have the EDMO case.” (Id.). Bailey
testified that Dixon never specifically asked him to research whether the § 924(c) counts
had to run consecutive. (Id. at pp. 58-59). Bailey testified, however, that “I did research
to answer any questions that he would have with regards to the case in Missouri versus
the case in Illinois.” (Id. at p. 59).
Attorney Bailey next testified about a letter Dixon sent him dated May 16, 2020, in
which Dixon asked about how the time in the two cases would run (Gov’t Ex. 8). Attorney
Bailey testified that he went to visit Dixon after he received the letter. (Id. at p. 60).
According to Bailey, he and Dixon “went over every point of that letter.” (Id.). This
included the fact that his EDMO sentence was to run consecutively to any sentence
imposed in this district — not only because the statute mandated it but because the
EDMO Court just had ordered it. Bailey avers that he told Dixon that “the only thing that
probably could run concurrent was the substantive case itself, not the 924(c)s.” (Id. at
pp. 60-61).
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Attorney Bailey believed that Dixon’s decision to plead guilty was a result of his
decision to cooperate with the government. (Id. at p. 61). And, at the time Dixon decided
to plead guilty, Bailey believed that Dixon understood that his two § 924(c) convictions
would have to run consecutive to one another. (Id. at p. 62). He testified that he went over
the plea agreement thoroughly with Dixon, including the section that talks about the
statutory penalties for § 924(c) offenses and that “they have to run consecutive to each
other and consecutive to the sentence imposed on the underlying crimes of violence, as
well as any other 924(c) convictions.” (Id. at pp. 62-63). He also testified that he never
promised Dixon any particular sentence. (Id. at p. 63). Bailey also said that he explained
to Dixon that the parties agreed to recommend a sentence of 14 years, but that the Court
was not bound by the parties’ recommendations. (Id. at pp. 62-63).
Attorney Bailey also testified that he thoroughly reviewed with Dixon the
provision governing the waiver of his appeal and collateral review rights. (Id. at pp. 63-
64). Regarding the appeal waiver’s exception for sentences exceeding 132 months, Bailey
indicated that he believed the figure was a typographical error because the parties had
agreed to recommend 168 months, and the sentence could not have been that low because
of the consecutive nature of the two § 924(c) counts. (Id. at p. 64). He also indicated that
he reviewed with Dixon how an appeal for a reason other than a right that was reserved
could amount to a breach of the plea agreement. (Id.). Attorney Bailey testified that he
believed Dixon understood the plea agreement before he signed it. (Id. at p. 65).
Attorney Bailey testified that he never had any doubts about Dixon’s competency,
and that Dixon appeared to understand everything he said to him. (Id. at pp. 65-66). He
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also testified that, at the time of the change of plea hearing, he believed that Dixon
understood that the two § 924(c) counts would have to run consecutively. (Id. at p. 66).
Of course, this meant that Dixon was facing a 14-year sentence, which is what the parties
had agreed to recommend. (Id.). Bailey testified that he went over the case and the charges
thoroughly with Dixon before the change of plea hearing. (Id.).
Attorney Bailey further acknowledged that during the change of plea hearing, the
Government’s recitation of the statutory penalties — that the two § 924(c) counts would
have to run consecutive to each other and to any other § 924(c) conviction — was
consistent with the advice he had given Dixon throughout the case. (Id. at pp. 66-67). He
noted that Dixon told the Court that no one “has made any prediction or promise [to him]
with certainty as to what [his] sentence will be,” and confirmed that he never promised
Dixon that he would receive any particular sentence. (Id. at p. 67).
Attorney Bailey then testified that he went over the PSR thoroughly with Dixon.
(Id.). This included the section stating that Counts 5 and 7 require an 84-month sentence
to be served “consecutively with one another and all other counts.” (Id. at p. 68). He also
went over the section titled “sentencing options” with Dixon. (Id.). That section stated
that the EDMO sentence was ordered to run consecutive to the instant offense. (Id.).
Attorney Bailey testified that at no time between the change of plea hearing and the
sentencing did Dixon contact him to express confusion about the § 924(c) charges. (Id.
at pp. 68-69). In fact, it was his understanding that Dixon pleaded guilty because he was
guilty, and that he did so knowingly and voluntarily. 	(Id. at p. 69). 	Attorney Bailey
indicated that he spoke with Dixon about objections to the PSR before he filed the
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“Statement of the Defendant Regarding the Presentence Report” (Criminal Case,
Doc. 240), and Dixon had no objections to it. (Id.).
Attorney Bailey testified that Dixon never asked to speak to him in private about
the consecutive nature of the § 924(c) counts at the sentencing hearing after the
undersigned emphasized that the sentences would be consecutive. (Id. at pp. 69-70). He
also acknowledged that the Government followed the plea agreement by recommending
a 252-month total sentence between this case and the Eastern District of Missouri case
(and Bailey recommended the same sentence pursuant to the plea agreement). (Id. at
p. 70).
Attorney Bailey agreed that this Court adopted the parties’ recommendation to
impose no sentence on Counts 1, 4 and 6 and impose a 168-month sentence on Counts 5
and 7, to run consecutive to each other as well as consecutive to the sentence imposed in
the Eastern District of Missouri. (Id. at p. 71). Bailey also recalled the Court discussing
with Dixon his appeal rights and the effect of his waiver on those rights. (Id. at pp. 71-
72).
Attorney Bailey testified that he did not specifically recall whether he and Dixon
discussed whether Dixon wanted to appeal, but that it was his normal practice to have
this discussion with a defendant after sentencing. (Id. at p. 72). The Government next
inquired about a document titled “Defendant’s Obligation re: Notice of Appeal” (Gov’t
Ex. 16) that he had located in his case file. The document certifies that “counsel has
explained to defendant his right to appeal, defendant declined to file a Notice of Appeal,
and did not instruct counsel to file a Notice of Appeal.” Attorney Bailey explained that
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he prepared the document but did not file it with the Court:
Well, in the Eastern District of Missouri, that is one of their
requirements after a sentencing, is to file a document indicating
whether or not a person wanted to appeal, so normally I would
do whatever in the Southern District here. That particular one I did
not do it. And, honestly, I haven’t been doing it since COVID. Prior
to COVID I was doing it a lot, but after COVID I wasn’t filing that
docket in the Southern District. So, it was in the file when I found out
about the PCR—about this hearing a while back, when I had to go
get the file out of the basement in the firm. And when I got it out,
that was the document on top. And I looked at it and, “Oh, I didn’t
even file this.”
(Id. at pp. 72-73). 3 He recalled that Dixon did not want to file a notice of appeal. (Id. at
p. 73). Bailey also testified that, as of the date of the evidentiary hearing, he could not
think of any nonfrivolous ground that Dixon could have raised on appeal if he had asked
Attorney Bailey to file a notice of appeal. (Id.). In addition, Bailey recognized that an
appeal on the substantive reasonableness of the sentence likely would have been
frivolous because Dixon received a below-guidelines sentence, indeed the lowest
sentence allowed by statute. (Id. at pp. 73-74).
On cross-examination by Dixon’s counsel, Bailey acknowledged that he did not
explain to Dixon that the reference to a 132-month sentence on page 10 of the plea
agreement (Gov’t Ex. 11) was a typo. (Id. at pp. 74-75). Attorney Bailey testified that he
did not recall whether Dixon had cooperated (id. at p. 76), and he likewise did not recall
there ever being an offer of 11 years [132 months] if Dixon cooperated. (Id. at pp. 76-77).
3 At the time of these events, the Southern District of Illinois did not require defense counsel in a criminal
case to file anything certifying that counsel had discussed the defendant’s appeal rights with him and
advising the Court whether the defendant had instructed counsel to file a notice of appeal. The Court has
since adopted a new Local Rule imposing this requirement; it took effect on September 22, 2025. See SDIL-
LR App’x A Cr. 44.1.
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Dixon’s counsel pointed out that Dixon received a total sentence of 276 months, which
equaled the 168 months imposed in this district plus the 108 months imposed in EDMO
(24 months on Count 1 and 84 months on Count 2, consecutive to one another). (Id. at
p. 78). Dixon’s counsel also pointed out, however, that the parties’ recommendation from
the sentencing transcript was for a total sentence of 252 months, which would equal the
168 months imposed here consecutive to the 84-month sentence imposed in the EDMO
but concurrent to the 24-month sentence imposed in the EDMO. (Id. at pp. 79-80).
Attorney Bailey testified that he did not visit Dixon while he was in the Clinton
County Jail after sentencing but that he did speak with him on the Zoom meeting after
the sentencing hearing ended. (Id. at p. 82). Although he could not recall exactly what the
two discussed, he recalled that he did discuss the sentencing with Dixon. (Id. at pp. 82-
83). Attorney Bailey also acknowledged that he did not object to the sentence imposed
even though it did not effectively follow the plea agreement. (Id. at p. 83). When asked
about the additional 24-month sentence from the Eastern District of Missouri that the
parties had agreed to recommend would run concurrent to the sentence imposed in this
district, Bailey explained that his “train of thought, was the 924(c)s, by statute, had to run
consecutive.” (Id. at p. 84). And Bailey again acknowledged that he did not object when
the sentence imposed here was ordered to run consecutive to the entire 108-month EDMO
sentence. (Id. at p. 85).
As to Dixon’s appeal rights, Bailey testified that he could not recall specifically
what he advised Dixon about but recalled that he “did advise him about his rights if he
would have took [sic] it to trial, and if he didn’t take it to trial these are the rights you
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have got for appeal.” (Id.). Attorney Bailey did not believe that he advised Dixon that
he could appeal the substantive reasonableness of his sentence because it contradicted
the plea agreement. ( Id.). Dixon’s counsel again pointed out that the parties had
negotiated for a plea of a total sentence of 252 months’ imprisonment, although she
acknowledged that this Court was not a party to the plea agreement. (Id. at pp. 86-87).
Dixon’s counsel also pointed out the portion of the plea agreement that set out this
recommendation. (Id. at p. 87). Dixon’s counsel also observed out that, based on the 132-
month typo in the plea agreement, Dixon had the right to appeal his 168-month sentence.
(Id. at p. 88). When specifically asked if he provided Dixon with information about the
24-month consecutive sentence when discussing his appeal rights, and whether Dixon
had adequate information to determine whether or not he should appeal, Bailey
responded:
Well, Mr. Dixon would have known, because we discussed the
Eastern District case and we were — he was aware that Judge Autrey
gave him the 24 months to run consecutive. Yeah, we did discuss
that.
(Id. at p. 90).
As to the document titled “Defendant’s Obligation re: Notice of Appeal” (Gov’t
Ex. 16), Bailey indicated that he prepared this document “right after sentencing, right
around that time.” (Id. at p. 90). He did not know specifically when he prepared the
document but said “it would have been done right around that time.” (Id.). Bailey
indicated that Dixon’s parents reached out to him a couple of times during the case, but
they called to get updates on the case, never to say that Dixon wanted to talk to him. (Id.
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at pp. 91-92). Bailey stated that Dixon was free to call him from the jail, and if he had,
Bailey would have gone to visit him. (Id. at p. 92). Bailey testified that after receiving the
letter Dixon sent him (Gov’t Ex. 8), he went to talk to Dixon and they “talked about . . .
the 924(c)s running consecutive.” (Id. at p. 94). Attorney Bailey indicated that he was
aware that he could file a notice of appeal even if a defendant had waived his appellate
rights. (Id. at pp. 94-95).
In response to this Court’s questions, Bailey indicated that he “probably would
have” communicated with Dixon’s father by text messages at the time and confirmed that
he did not have a specific recollection of speaking with Dixon after the sentencing hearing
about his appellate rights. (Id. at p. 95). He also did not recall getting text messages from
Dixon’s father after the sentencing hearing. (Id. at p. 96).
When asked on re-direct about the question from Dixon’s counsel that everybody,
including the Court, wanted Dixon to have a 21-year sentence, Attorney Bailey noted that
the Court was not bound by the plea agreement, as it made clear during the change of
plea hearing and as was set out in the plea agreement. (Id. at p. 97). In fact, it was noted
that in the sentencing transcript, this Court stated that the “entire” EDMO sentence was
to run consecutive to whatever sentence it imposed, implying that the Court knew that
there were two individual counts in the EDMO but that both counts had to run
consecutive to the two § 924(c) sentences imposed in the Southern District of Illinois by
statute. 	(Id. 	at 	pp. 	97-98). 	And, 	because 	the 	judgment 	was 	consistent 	with 	the
undersigned’s oral pronouncement of sentence, there would have been no error to appeal
in that respect. (Id. at p. 98). And of course, Dixon could not have appealed anything
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about the 24-month EDMO sentence in this district. (Id. at p. 99). Bailey also testified that,
if Dixon would have wanted to appeal the substantive reasonableness of his sentence
given the 132-month “typo” in the plea agreement, Bailey would have had to file an
Anders brief because Dixon received the lowest possible sentence — 168 months. (Id. at
p. 99).
On re-cross examination, Attorney Bailey recognized that, according to the plea
agreement, it appeared that Dixon could appeal anything above a 132-month sentence.
(Id. at pp. 99-100). He also acknowledged that it was the parties’ goal that Dixon’s total
sentence be 252 months. (Id. at p. 100). He insisted, however, that he told Dixon that the
24-month sentence imposed in the EDMO would have to run consecutive to the 168-
month sentence imposed here, stating “[y]es, we talked about it, but it may not be in that
plea agreement.” (Id. at pp. 100-01). And, again, when asked if his advice was contrary
to the plea agreement, Attorney Bailey testified:
No. What I told him may be contradictory, yes. What I told him is
that, yes, Missouri sentence will be consecutive. Now, my statements
may be inconsistent with the plea agreement and if you are saying
that he read the plea agreement, he doesn’t have an understanding,
that is definitely possible. But the question is did he have an
understanding what I was talking to him about, and I believe he did,
because he never gave me no indication that he didn’t understand.
(Id. at p. 102). Bailey acknowledged, however, that he did not correct the plea agreement
with the Assistant United States Attorney. (Id. at pp. 102-03).
c. Post Evidentiary Hearing Briefing
The Court directed the parties to file supplemental briefs after the hearing. (Id. at
pp. 103-04). Dixon’s counsel filed a two-page memorandum on August 20, 2024.
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(Doc. 46). That document states:
Mr. Dixon believes and submits that he has brought forth viable
claims 	and 	presented 	competent 	evidence 	of 	his 	attorney’s
unreasonable performance, however Mr. Dixon is aware that this
Court sentenced Defendant to the statutory minimum sentence.
Thus, Mr. Dixon asks this Court for any relief it deems possible and
reasonable under the circumstances.
(Id. at p. 2). The Government filed its post-evidentiary hearing brief two weeks later. (Doc. 47).
LEGAL STANDARD
28 U.S.C. § 2255 provides a federal prisoner with a post-conviction remedy to test
the legality of their detention “upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). “[R]elief
under § 2255 is an extraordinary remedy because it asks the district court essentially to
reopen the criminal process to a person who already has had an opportunity for full
process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United
States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Thus, it “is available only in extraordinary
situations, such as an error of constitutional or jurisdictional magnitude or where a
fundamental defect has occurred which results in a complete miscarriage of justice.” Blake
v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citations omitted).
DISCUSSION
Under 28 U.S.C. § 2255(f), a one-year limitation for filing a motion under 28 U.S.C.
§ 2255 shall begin running on the date the criminal judgment becomes final. An
unappealed judgment becomes final 14 days after its entry. Here, the Court signed the
judgment effective November 18, 2020, and a notice of appeal was not filed. Dixon filed
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this action on November 17, 2021, within one year of his judgment becoming final. Thus,
his motion is timely.
Before considering the merits of Dixon’s motion, the Court briefly pauses to assess
whether he waived his right to seek relief. “It is well-settled in [the Seventh Circuit], as
well as in virtually every circuit that has considered the question, that defendants may
waive their right to appeal as part of a written plea agreement, and [the Seventh Circuit
has] consistently upheld valid appeal waivers and dismissed the appeals taken in
contravention.” United States v. Woolley, 123 F.3d 627, 631 (7th Cir. 1997). “[A] plea
agreement 	is 	a 	contract 	and 	generally 	[is] 	governed 	by 	ordinary 	contract 	law
principles. . . .” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013). A waiver of
appeal rights is enforceable “if its terms are clear and unambiguous and the record shows
that the defendant knowingly and voluntarily entered into the agreement.” United States
v. Blinn, 490 F.3d 586, 588 (7th Cir. 2007). A district court is not required to have any
specific dialogue about the waiver to determine that the defendant knowingly and
voluntarily waived his rights; the defendant’s signature on the plea agreement and his
statements during the plea colloquy are evidence of his knowing and voluntary waiver.
Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999); United States v. Jemison, 237 F.3d
911, 917 (7th Cir. 2001); United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002). The content
and language of the plea agreement itself, as well as the colloquy where necessary,
governs the determination as to the validity of the waiver. Woolley, 123 F.3d at 632.
Here, it is easy to conclude that the waiver provisions in Dixon’s plea agreement
do not bar his § 2255 motion. Although Dixon’s plea agreement provided that he “waives
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the right to seek modification of, or contest any aspect of, the conviction or sentence in
any type of proceeding,” he did not waive his right to appeal or bring a collateral attack
based on a claim that he received ineffective assistance of counsel. (Criminal Case,
Doc. 206 pp. 9-10). Indeed, the Government does not contend that Dixon waived his right
to bring this action. The waiver therefore presents no bar to considering Dixon’s
ineffective assistance claims here.
Another 	issue 	merits 	some 	brief 	discussion. 	During 	his 	testimony 	at 	the
evidentiary hearing, Dixon asserted that he did not consent to hold the sentencing
hearing by video conference. (Hr’g Tr., Doc. 47-3 pp. 18, 35). He did not raise this as a
ground for relief in his § 2255 motion, but the Court wishes to emphasize that any such
claim would be unavailing. The undersigned engaged in a detailed colloquy with Dixon
before 	commencing 	the 	sentencing 	hearing. 	(Criminal 	Case, 	Doc. 	277 	pp. 	3-6).
Specifically, it was noted that there was limited access to the East St. Louis courthouse
because of the ongoing pandemic and rising numbers of COVID cases in the district.
Dixon acknowledged under oath that he understood that he had a right to have the
hearing in person — as opposed to proceeding by video — and that he was willing to
waive his personal appearance, even though he had initially requested an in-person
hearing. (Id. at pp. 2-4). The undersigned also made the required findings under the
CARES Act. 4 See United States v. Coffin, 23 F.4th 778, 781 (7th Cir. 2022) (holding that a
4 The Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281, §15002(b)(2)
(2020), authorized a district judge to conduct a sentencing hearing by videoconference if the defendant
consented, § 15002(b)(4), and the judge found “for specific reasons” that the sentencing could not “be
further delayed without serious harm to the interests of justice.” § 15002(b)(2)(A).
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defendant waives the right to challenge his appearance by videoconference at a
sentencing when he fails to object to a judge’s findings under the Act). As in Coffin, if
Dixon had an objection to proceeding by video, he should have brought it to the
undersigned’s attention at the time of the hearing. Id. (citing United Staes v. Gabriel,
831 F.3d 811, 814 (7th Cir. 2016)). Indeed, Dixon affirmatively consented to proceeding
via video. (Criminal Case, Doc. 277 p. 5). To the extent he now claims that he did not
consent to a virtual hearing, he is mistaken.
a. Ineffective assistance regarding failure to file appeal
With those matters out of the way, the Court turns to the merits of Dixon’s motion.
His principal claim is that he was denied his right to counsel when his trial attorney failed
to file a notice of appeal.
The Sixth Amendment guarantees criminal defendants the right to counsel.
U.S. Const. amend. VI. And “the right to counsel is the right to the effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Ordinarily, to prevail on
an ineffective assistance claim, a petitioner is required to “meet the familiar two-part
standard set forth in Strickland.” McElvaney v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013)
(citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The petitioner must show that
his counsel’s performance was deficient, “meaning it fell below an ‘objective standard of
reasonableness’” and his counsel’s deficient performance prejudiced him. Id. at 532
(quoting Strickland, 466 U.S. at 688).
However, it is well-settled that the failure of a lawyer to comply with a defendant’s
request to file a direct appeal “is per se ineffective assistance of counsel,” and a petitioner
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need not show prejudice in order to prevail on the ineffectiveness claim. Gant v. United
States, 627 F.3d 677, 681 (7th Cir. 2010). “When a defendant in a criminal case specifically
instructs a lawyer to file a notice of appeal, the lawyer’s failure to do so deprives the
defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was
likely to succeed.” Ryan v. United States, 657 F.3d 604, 606 (7th Cir. 2011); see also Roe v.
Flores–Ortega, 528 U.S. 470, 484 (2000); Castellanos v. United States, 26 F.3d 717, 719 (7th
Cir. 1994) (“[F]ailure to take an appeal, despite the defendant’s request, is ineffective
assistance without regard to the probability of success on appeal.”). If a court concludes
that an attorney disregarded a criminal defendant’s wishes, it must enter a new judgment
in the underlying criminal case to permit the defendant to take an appeal. United States v.
Bell, 826 F.3d 378, 380 (7th Cir. 2016).
The Government rightly concedes these principles but argues that Dixon failed to
meet his burden of demonstrating that “but for counsel’s deficient conduct, he would
have appealed.” Flores-Ortega, 528 U.S. at 486; see also Castellanos, 26 F.3d at 719
(emphasizing that a defendant’s request for an appeal “is an important ingredient in this
formula”). For his part, Dixon asserts that the evidence at the hearing amounted to
“competent evidence of his attorney’s unreasonable performance,” but his post-hearing
brief does not cite any specific evidence. (Doc. 46 p. 2).
After considering the parties’ arguments and the evidence adduced at the hearing,
the Court concludes that Dixon failed to meet his burden of demonstrating deficient
performance on the part of attorney Bailey. To be sure, it would be a mistake to
characterize the evidence as beyond question, but far more substantial evidence supports
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Bailey’s version of events than Dixon’s.
Start with the ledger of Dixon’s evidence. At the conclusion of his sentencing, the
Court informed Dixon of his right to appeal his conviction and sentence. (Criminal Case,
Doc. 277 pp. 20-21). Dixon says he contacted Bailey in a text message through his father
to direct him to file an appeal, but the two never had any other conversation about an
appeal. (Hr’g Tr., Doc. 47-3 pp. 11-12). Dixon claims his father sent these messages while
he was incarcerated at the Clinton County Jail shortly after his sentencing. However,
Dixon does not have a record of the text messages, no such records were presented as
evidence at the hearing, nor did Dixon’s father testify.
Compare that with Bailey’s account. Bailey says he stayed on the Zoom meeting
with Dixon after he was sentenced to discuss the proceeding; both he and Dixon agree
that he did not visit him in the Clinton County Jail after the sentencing. (Id. at p. 82).
Bailey did not specifically recall whether he and Dixon discussed on the Zoom meeting
whether Dixon wanted to appeal but that having that conversation was his normal
practice with clients. (Id. at p. 72, 95). However, Bailey also testified that Dixon told him
not to file a notice of appeal. (Id. at p. 73). This recollection was buttressed by a document
titled “Defendant’s Obligation re: Notice of Appeal” (Gov’t Ex. 16) that Bailey located in
his case file. (Id. at p. 91). Bailey explained that in his practice in the Eastern District of
Missouri, such an attestation is required to memorialize whether a defendant wished to
appeal. At the time, the Southern District of Illinois did not require counsel to make a
similar filing, but Bailey typically did. (Id. at pp. 72-73). Although Bailey did not file the
document in this case, the Court views its existence as some evidence that he did discuss
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an appeal with Dixon, and Dixon declined to appeal. Bailey also did not recall ever being
contacted by Dixon’s father regarding an appeal. (Id. at p. 96).
As mentioned above, the evidence is hardly conclusive in either direction. On one
hand, Dixon’s story is sparse on detail and lacks corroborating evidence. On the other,
Bailey’s 	account 	is 	largely 	grounded 	in 	his 	typical 	practice 	rather 	than 	specific
recollections of Dixon’s case and is supported by a document that never was filed with
the Court. Based on the entirety of the evidence and testimony, however, the Court finds
it most probable that Bailey did, in fact, discuss an appeal with Dixon after sentencing,
that Dixon elected to decline to appeal, and Bailey never was directed by Dixon’s father
to file an appeal.
The Court credits Bailey’s testimony that his typical practice is to discuss with his
clients whether or not they wish to appeal. There is no reason to think that he failed to
follow his normal practice on this occasion. Additionally, the document purportedly
memorializing that conversation (Gov’t Ex. 16) further supports that version of events.
The Court also observes that neither Dixon nor his appointed counsel located the
purported text messages from Dixon’s father to Bailey that would have documented an
instruction from Dixon to appeal. Because Dixon bears the burden here, the absence of
these text messages — much less a corroborating account from his father at all — is
notable.
Several other factors persuade the Court that Dixon’s story is less plausible. First,
his story is generally light on specifics. More important, however, is the question of what
Dixon possibly could have appealed. Although his prospect of success on appeal is
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irrelevant to the question of whether he was prejudiced by his attorney’s failure to file a
notice of appeal, see Flores–Ortega, 528 U.S. at 486, it is relevant to the likelihood that Dixon,
in fact, would have directed his attorney to file an appeal.
As the Government points out, any appeal of Dixon’s sentence likely would be
frivolous, as he received the lowest sentence within the Court’s power to impose. Bailey
himself testified that he would have had to file an Anders brief if he represented Dixon on
appeal. (Hr’g Tr., Doc. 47-3 p. 99).
Perhaps Dixon could develop an argument that the waiver provisions of his plea
agreement should not apply because his total sentence between the Eastern District of
Missouri case and his case in this district was greater than anticipated by the parties, who
had recommended that the sentence run concurrent to the 24-month sentence imposed
on Count 1 in the other court. (Criminal Case, Doc. 206 pp. 6-7). Of course, such a claim
would face difficulties because it would effectively require Dixon to assert an ineffective
assistance of counsel claim on direct appeal, since the Court warned him during the plea
colloquy that it was not bound by the parties’ sentencing recommendations. (Criminal
Case, Doc. 275 p. 15). The Seventh Circuit has warned that “[r]aising an ineffective
assistance claim on direct appeal . . . ‘is almost always imprudent.’” United States v.
Onamuti, 983 F.3d 892, 895 (7th Cir. 895) (quoting United States v. Cates, 950 F.3d 453, 456
(7th Cir. 2020)). In any event, during the evidentiary hearing Dixon testified that he was
not seeking to withdraw his plea. (Hr’g Tr., Doc. 47-3 p. 41). And he later testified that he
only wished to appeal the ineffectiveness of his trial counsel (id.), a ground that almost
assuredly he would be better off bringing in this collateral proceeding in the first instance.
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See Onamuti, 983 F.3d at 895. In sum, the lack of a viable ground for an appeal is further
evidence that Dixon likely did not direct Bailey to file an appeal.
Finally, Dixon’s conduct in other aspects of his case leads one to question the
veracity of his testimony here. Dixon’s testimony at the hearing made clear that he was
actively involved in managing his case. He was a high school graduate and apparently
spent time conducting legal research from inside the jail to discuss with Bailey. (Hr’g Tr.,
Doc. 47-3 pp. 13, 20). Dixon testified that Bailey would come speak with him in the
Clinton County Jail to review his case when he reached out through his father. (Id. at
p. 13). He claims that he reached out to Bailey after sentencing in the same manner to
direct him to file an appeal. All agree that Bailey never came to meet with him in person
or communicated with him after the date of the sentencing hearing. Yet Dixon admits
that he did not make further inquiries of Bailey about the appeal (or any subject) despite
not receiving further contact from him. (Id. at p. 41).
Dixon claims the sole ground he intended to present on appeal was Bailey’s
alleged ineffectiveness. It defies logic to think that a defendant concerned with his
attorney’s conduct — particularly a defendant who actively participated in his case —
would sit idly, as Dixon did, if he did not promptly hear from his attorney regarding the
appeal in their normal manner of communication. For all of these reasons, the Court finds
that Dixon has not carried his burden of demonstrating deficient performance on the part
of his counsel.
b. Ineffective Assistance Regarding the § 924(c) Issue
That leaves the second ground Dixon raises in his petition: his claim that he asked
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Bailey “was it any law where they could stack multiple 924(c)’s against me.” (Doc. 1 pp. 4-
5).The nature of this claim is not perfectly clear. During the hearing, Dixon seemed to
suggest that his sentences on the two § 924(c) charges should have run concurrent to each
other. (Hr’g Tr., Doc. 47-3 p. 15). His counsel later clarified, however, that this was “not a
stacking issue” and stated she had raised the point to address why Dixon may have
wanted to file an appeal. (Id. at p. 18). Dixon also later admitted that he was not
challenging the sufficiency of the evidence supporting his convictions and not attempting
to withdraw his plea. (Id. at p. 41).
Even if he wished to broach one or more of those theories, Dixon likely
procedurally defaulted such a claim in light of the Court’s conclusion that he did not
direct his attorney to file a direct appeal where he could have raised those issues. The
Court therefore will construe Dixon’s petition as alleging an ineffective assistance of
counsel claim regarding Bailey’s alleged failure to communicate with Dixon about his
question regarding the “stacking” of multiple § 924(c) counts. 5
A court may address the elements of the Strickland test “in whichever order is most
expedient.” Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). Moreover, where a claim
of ineffective assistance fails on one prong, the court need not address the other prong
insofar as the failure to satisfy either prong is fatal to the claim. See Ebbole v. United States,
8 F.3d 530, 533 (7th Cir. 1993). Here, the Court concludes Dixon’s claim fails for want of
prejudice, even assuming attorney Bailey somehow performed deficiently by neglecting
5 The Court understands Dixon’s concern with “stacking” to be whether his § 924(c) charges could run
consecutively. (Hr’g Tr., Doc. 47-3 p. 15).
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to research and advise him on whether the § 924(c) counts would run consecutively
(a scenario the Court finds dubious but need not address).
The penalty provision of § 924(c) is clear: “no term of imprisonment imposed on a
person under this subsection shall run concurrently with any other term of imprisonment
imposed on the person, including any term of imprisonment imposed for the crime of
violence or drug trafficking crime during which the firearm was used, carried, or
possessed.” 18 U.S.C. § 924(c)(1)(D)(ii). The Court reviewed how this applied to Dixon
during his change of plea hearing, noting that the statute provided for “mandatory seven
years on each count, which must run consecutive to any other count, as well as to each
other and any other 924(c) conviction.” (Criminal Case, Doc. 275 p. 12). Dixon confirmed
he understood this. (Id.). The plea agreement, which Dixon confirmed under oath that he
reviewed with counsel, included similar information, as well as a sentencing
recommendation that included consecutive sentences on the § 924(c) charges. (Criminal
Case, Doc. 206 p. 2). In that agreement, and while under oath at the plea hearing, Dixon
confirmed that he was satisfied Bailey’s representation. (Id. at p. 206; Criminal Case,
Doc. 275 p. 9). Dixon also did not speak up when, at his sentencing, the Court explained
that the § 924(c) counts “call for a mandatory seven years consecutive to all other
counts.” (Criminal Case, Doc. 277 p. 8).
The Court does not understand how Dixon can now claim to have been dissatisfied
with Bailey’s research and advice on the consecutive nature of multiple § 924(c) penalties
when he confirmed under oath that he was satisfied with Bailey’s services, and he has
offered no basis “to override the verity that presumptively attaches to a defendant’s
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statements when entering a guilty plea.” Hutchings v. United States, 618 F.3d 693, 699 (7th
Cir. 2010) (citing United States v. Loutos, 383 F.3d 615, 619 (7th Cir. 2010)). His claimed
confusion is even more incredible considering his failure to object or express any concern
when the Court itself explained the possible penalties. See Thompson v. United States, 732
F.3d 826, 830 (7th Cir. 2013) (holding that a district court’s explanation of the sentencing
process addressed any possible prejudice attributable to bad advice from counsel).
But the prejudice inquiry here boils down to one simple reality: Dixon testified at
the hearing that he does not wish to withdraw from his plea agreement. If he truly
believed some sort of bad advice from Bailey led to his plea, that would be the logical
step. Resentencing, of course, would change nothing, since he received the minimum
possible sentence. (Hr’g Tr., Doc. 47-3 at p. 41). Absent a clearer indication of prejudice
caused by Bailey’s alleged bad advice, Dixon is not entitled to relief on this claim.
Conclusion
None of Dixon’s claims have merit. For the reasons stated above, his motion to
vacate, set aside, or correct his sentence (Doc. 1) pursuant to 28 U.S.C. § 2255 is DENIED.
This civil action is DISMISSED with prejudice, and the Clerk of Court is DIRECTED to
enter judgment accordingly.
CERTIFICATE OF A PPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases requires district courts to
consider whether to issue or deny a certificate of appealability when entering a final order
adverse to a petitioner. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may be
issued “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” To meet this standard, a petitioner “must have a constitutional
claim (or an underlying procedural argument on which a constitutional claim depends),
and he must ‘demonstrate that reasonable jurists would find the district court’s
assessment of his constitutional claims debatable or wrong.’” United States v. Fleming,
676 F.3d 621, 625 (7th Cir. 2012) (quoting Tennard v. Dretke, 542 U.S. 274, 282 (2004))
(emphasis omitted).
Here, reasonable jurists would not debate that Dixon failed to present a valid claim
of the denial of a constitutional right. Accordingly, a certificate of appealability is denied.
NOTICE OF A PPELLATE RIGHTS
If Dixon wishes to contest this Order, he has two options. He may seek review of
the Order by the Seventh Circuit or request the undersigned to reconsider the Order
before going to the Seventh Circuit. If Dixon chooses to go straight to the Seventh Circuit,
he will only be allowed to proceed on his appeal if he first obtains a certificate of
appealability. The undersigned District Judge has already declined to issue a certificate
of appealability. So, Dixon must request a certificate of appealability from the Court of
Appeals pursuant to Rule 22 of the Federal Rules of Appellate Procedure and 28 U.S.C.
§ 2253(c). He must also file a notice of appeal within 30 days from the entry of judgment
or order appealed from. Fed. R. App. P. 4(a)(1)(A). The deadline can be extended for a
short time only if Dixon files a motion showing excusable neglect or good cause for
missing the deadline and asking for an extension of time. Fed. R. App. P. 4(a)(5)(A), (C);
see also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (explaining the good cause and
excusable neglect standards); Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807-08 (7th
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Cir. 2011) (explaining the excusable neglect standard).
The current cost of filing an appeal with the Seventh Circuit is $605.00. The filing
fee is due at the time the notice of appeal is filed. Fed. R. App. P. 3(e). If Dixon cannot
afford to pay the entire filing fee up front, he must file a motion for leave to appeal in
forma pauperis (“IFP motion”) along with a recent statement for his prison trust fund
account. See Fed. R. App. P. 24(a)(1)(C). The IFP motion must set forth the issues Dixon
plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If he is allowed to proceed IFP
on appeal, Dixon will be assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He
will then be required to make monthly payments until the entire filing fee is paid.
28 U.S.C. § 1915(b)(2).
On the other hand, if Dixon wants to start with the undersigned, he should file a
motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The
motion must be filed within 28 days of the entry of judgment, and the deadline cannot be
extended. Fed. R. Civ. P. 59(e); 6(b)(2). The motion must also comply with Rule 7(b)(1)
and state with sufficient particularity the reason(s) that the Court should reconsider the
judgment. Elustra v. Mineo, 595 F.3d 699, 707-08 (7th Cir. 2010); see also Blue v. Hartford Life
& Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to
amend judgment, a party must clearly establish (1) that the court committed a manifest
error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.”)
(citation and internal quotation marks omitted).
So long as the Rule 59(e) motion is in proper form and timely submitted, the 30-
day clock for filing a notice of appeal will be stopped. Fed. R. App. P. 4(a)(4). The clock
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will start anew once the undersigned rules on the Rule 59(e) motion. Fed. R. App. P.
4(a)(1)(A), (a)(4), & (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the
28-day window or “completely devoid of substance,” the motion will not stop the clock
for filing a notice of appeal; it will expire 30 days from the entry of judgment. Carlson v.
CSX Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Martinez v. Trainor, 556 F.2d 818, 819–
20 (7th Cir. 1977). Again, this deadline can be extended only on a written motion by Dixon
showing excusable neglect or good cause.
IT IS SO ORDERED.
DATED: 	January 8, 2026
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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