Gibbs v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DANIEL GIBBS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
OPINION and ORDER
24-cv-65-jdp
21-cr-122-jdp
Daniel Gibbs was convicted of distribution of 50 grams or more of methamphetamine
and sentenced to 121 months incarceration, to be followed by six years of supervised release.
Dkt. 75 in Case No. 21-cr-122. Gibbs, proceeding without counsel, moves to vacate his
conviction and sentence under 28 U.S.C. § 2255. Dkt. 3 (amended petition). Gibbs alleges
that his defense counsel was ineffective in several ways, primarily by failing to file a notice of
appeal as requested and by failing to recognize that United States v. Taylor, 596 U.S. 845 (2022),
would have limited the government’s ability to use a prior federal conviction to enhance his
sentence. The government opposes, Dkt. 13, and Gibbs has replied, Dkt. 16.
I’m not persuaded by Gibbs’s argument about the impact of Taylor. On the basis of
Gibbs’s prior federal conviction under 18 U.S.C. § 924(c), the government could have charged
him with two counts that, had he been convicted, would have resulted in combined mandatory
minimum sentences totaling 40 years. But I don’t need to fully address that issue yet.
Gibbs’s allegation that he asked defense counsel to file a notice of appeal but counsel
failed to do so will require an evidentiary hearing. The failure to file a notice of appeal after
clear instructions to do so is deficient performance and presumptively prejudicial, regardless of
the merits of the thwarted appeal. Garza v. Idaho, 586 U.S. 232, 242–43 (2019); Roe v. Flores-
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Ortega, 528 U.S. 470, 484 (2000). But whether Gibbs instructed defense counsel to appeal is
contested, so I’ll hold a hearing to resolve that issue. I’ll appoint counsel to represent Gibbs at
the hearing.
BACKGROUND
Gibbs was charged in a superseding indictment with four counts: three counts of
distribution of 50 grams or more of methamphetamine and one count of possession with intent
to distribute one kilogram or more of mixture or substance containing a detectable amount of
heroin, each in violation of 21 U.S.C. § 841(a)(1). Dkt. 25 in the ’122 case. The first three
counts were based on controlled buys made by a confidential source under the direction of law
enforcement officers. The fourth count was based on controlled substances found during a
warranted search of a residence associated with Gibbs. A firearm was also found during the
search, but Gibbs was not charged with any offense involving the firearm. Given the charged
quantity, each of the four counts carried a sentence of 10 years to life imprisonment.
Gibbs pleaded guilty to Count One of the indictment. In the written plea agreement,
Gibbs 	admitted 	to 	negotiating 	and 	conducting 	the 	sale 	of 	a 	purported 	pound 	of
methamphetamine that was confirmed by laboratory testing to be 440.5 grams of pure
methamphetamine. Dkt. 49 (plea agreement) in the ’122 case. After a hearing where Gibbs
testified under oath, the court found that Gibbs’s plea was knowing and voluntary and
supported by a factual basis.
At sentencing, Gibbs was held accountable for six controlled buys and the drugs found
in the residence: 1,323.6 grams of pure meth; 548 grams of a mixture or substance containing
meth; 1,717.8 grams of heroin; and 16.09 grams of fentanyl, for a total converted drug weight
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of 29,328.06 kilograms. Gibbs objected to a proposed two-level enhancement under USSG
§ 2D1.1(b)(1) for possession of the firearm found at the residence; the court sustained the
objection because the evidence of Gibbs’s possession was equivocal. Gibbs received a two-level
enhancement for maintaining a drug premises under USSG § 2D1.1(b)(12). After credit for
acceptance of responsibility, his total offense level was 35. With criminal history category II,
his guideline imprisonment range was 151 to 188 months.
The court, following its usual practice, discounted the impact of the pure meth on the
guideline calculation. If the pure meth had been treated as a mixture containing meth, the
guideline range would have been 121 to 151 months. The court imposed a sentence at the
bottom of the alternative guideline calculation, 121 months.
ANALYSIS
Gibbs enumerates five grounds in his amended petition, although in substance two are
primary: defense counsel Vlisides failed to file an appeal despite Gibbs’s request; and the
magistrate judge overstated the impact that Gibbs’s criminal history could have had on the
maximum potential sentence, and Vlisides failed to recognize or correct the error.
Claims of ineffective assistance of counsel are governed by the two-part test in Strickland
v. Washington, 466 U.S. 668 (1984). To establish that Vlisides provided ineffective assistance,
Gibbs must show that Vlisides’s performance was deficient and that the deficient performance
prejudiced Gibbs’s defense. Id. at 687. To prove deficient performance, Gibbs must show that
Vlisides’s performance “fell below an objective standard of reasonableness” as measured by
prevailing professional norms. Id. at 688. I must “indulge a strong presumption that [Vlisides’s]
conduct [fell] within the wide range of reasonable professional assistance.” Id. at 689. To prove
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prejudice, Gibbs must show “a reasonable probability that, but for [Vlisides’s] unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
Conclusory claims of ineffective assistance are not enough to meet the Strickland
standard. See id. at 690 (“[A] claim of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.”);
United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (“[C]onclusory allegations do not
satisfy Strickland’s prejudice component.”). Likewise, petitions under § 2255 “must meet
heightened pleading requirements.” Shanks v. United States, No. 21-cv-1166, 2022 WL
16552876, at *2 (E.D. Wis. Oct. 31, 2022) (citing McFarland v. Scott, 512 U.S. 849, 856
(1994)); see also Burkhart v. United States, 27 F.4th 1289, 1299 (7th Cir. 2022) (district court
may deny evidentiary hearing if petitioner “makes conclusory or speculative allegations rather
than specific factual allegations”); United States v. Trumblay, 234 F.2d 273, 275 (1956) (In a
petition to vacate, the petitioner “must set forth facts and not merely conclusions.”).
Gibbs contends that he instructed Vlisides that he wanted to appeal. His amended
petition and his reply give the details. Gibbs says that he wanted to appeal all along, which is
why he insisted that the appeal waiver be struck from first proposed plea agreement. Dkt. 3 at
5; Dkt. 16 (Gibbs’s reply) at 2. But Gibbs’s commitment to the appeal is not fully borne out
by the rest of his allegations.
Gibbs says that after his sentencing, he told his wife, Samarly Morel, to tell Vlisides
that he wanted to appeal, and that Morel emailed that request to Vlisides. Id. Morel’s email
specifies a single ground for the potential appeal:
Also daniel is wanting to put in a notice of appeal regarding him
maintaining a drug trafficking property.
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Dkt. 7-1 at 3. Vlisides responded to Morel’s email, expressing his opinion that an appeal of the
premises enhancement would not be successful, and the more general opinion that an appeal
would not be productive. Id. Vlisides arranged a teleconference with Gibbs to discuss the
appeal. At the conclusion of the call, Gibbs said that “he would think about it.” Dkt. 16 at 2.
According to Gibbs, he thought about it and decided he wanted to appeal. So he
instructed Morel to email Vlisides “with express instructions to file an appeal.” Dkt. 16 at 2.
But Gibbs did not submit the second email to the court—he acknowledged that he does not
have it.
The government argues that the court should reject this ground because Gibbs does not
have the second email with instructions to Vlisides or a declaration from Morel. Dkt. 13 at 10–
12. But Gibbs doesn’t have to prove his case to get a hearing. He’s made specific factual
allegations that, if true, would entitle him to relief. 1
A few words about the hearing. I will allow Gibbs to appear at the hearing by
videoconference to avoid the necessity of transporting him to Wisconsin. Because Gibbs
qualified for court-appointed counsel in his underlying criminal case, I will appoint counsel to
represent Gibbs for the hearing and the preparation for it. If the parties are able to resolve the
factual issue on the basis of documentary evidence without a hearing, they should inform the
court.
1 Both Gibbs’s original and amended petitions are signed under penalty of perjury as required
by Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings and Kafo v. United States,
467 F.3d 1063, 1067 (7th Cir. 2006).
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ORDER
IT IS ORDERED that:
1. 	The court will hold an evidentiary hearing on defendant Daniel Gibbs’s allegation
that he asked defense counsel to file a notice of appeal.
2. 	The Federal Defender is to appoint counsel to represent Gibbs at the hearing and
in preparation for it. The clerk of court is directed to send a copy of this order to
the Federal Defender.
3. 	Once counsel is appointed, the clerk of court is directed to set a telephonic
conference with Magistrate Judge Anita Marie Boor to set the date for the hearing.
Entered November 19, 2025.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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