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Jason Tolen v. United States of America

January 5, 2011


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:


Before the Court is pro se Petitioner Jason Tolen's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Tolen's Section 2255 motion. Further, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).


On June 17, 2008, a federal grand jury returned an indictment charging Tolen with a single count of murder in the second degree in violation of 18 U.S.C. § 1111(a), (b). The Court conducted a two-day jury trial starting on January 22, 2009. Trial evidence established that while Tolen was an inmate at the Metropolitan Correction Center ("MCC") in Chicago, Illinois, he beat another inmate, Jason Katz, to death during a prerelease class that the two men were attending at the MCC's chapel on March 11, 2008. According to the testimony of Senior Officer Specialist Eric Earwin, earlier that morning inmates directed the insult "snitch bitch" toward Tolen. Prior to and during the class, other inmates teased Tolen about "snitching" to MCC guards about another inmate's access to laundry items. Katz called Tolen a "snitch bitch" and a "snitch ass bitch." Tolen responded to Katz's comments by standing up in the middle of the class, turning toward Katz, and daring him to repeat the words. Tolen specifically stated: "Say it in my face, bitch," and, "I'll f- you up." Katz did not rise from his chair in response to Tolen's words. Instead, Katz told Tolen that he did not want to fight and that it was not worth "going to the hole." The teacher of the class, Dr. Daniel Greenstein, a clinical psychologist, ordered Tolen to sit down, but Tolen failed to do so. Tolen then walked across the classroom to where Katz was seated and proceeded to punch Katz in the head approximately 20 times -- "pummeling" him, according to Dr. Greenstein. Meanwhile, Katz never threw a punch at Tolen, but sat in his chair rising only to escape from Tolen before collapsing outside of the chapel. MCC guards responded immediately and Katz received CPR and medical attention onsite before being transferred to Cook County Hospital where he was pronounced dead the following morning.

Trial evidence also established that the force of Tolen's hits caused multiple blunt force traumas to Katz's brain that ultimately led to massive hemorrhaging. The medical examiner who performed Katz's autopsy testified that Katz suffered a subarachnoid hemorrhage and intraventricular hemorrhaging caused by the displacement of the artery that fed blood to Katz's brain. The examiner concluded that Katz's death was caused by massive blunt force trauma to his head and neck. In determining the cause of death, the medical examiner reviewed the MCC surveillance video taken during the class in slow motion at which time she observed Tolen throw between 15 and 20 punches at Katz.

Immediately after the incident, Tolen was removed from the class and placed in segregation. He told the correctional officer who removed him that he knocked Katz "out cold" and that Katz "should have stopped calling me a bitch." That evening, Tolen received medical treatment at the MCC for his right hand. When asked what caused his injury, Tolen replied, "I assaulted Inmate Katz." Later that evening, Special Agent Dennaris Coleman of the Federal Bureau of Investigation interviewed Tolen. During the interview, Tolen provided a written confession in which he admitted to threatening Katz, crossing the room to get to him, and striking Katz with his fists six times.

At trial, Tolen testified that he hit Katz in response to being called a "bitch," but denied that he intended to hurt Katz. Tolen insisted that he only intended to fight to make Katz shut up. Tolen denied killing Katz and claimed that there was an unofficial prison culture that required him to react violently to Katz's words. According to Tolen, if he had not assaulted Katz: "I would have been picked on. People would have took my commissary. It would have been hell for the last -- my last few days in the building."


On January 22, 2009, a jury acquitted Tolen of murder in the second degree, but convicted him of the lesser-included offense of voluntary manslaughter. On May 27, 2009, the Court sentenced Tolen to serve a term of 180 months' imprisonment, which was within the sentencing guideline range. Tolen then appealed his conviction to the United States Court of Appeals for the Seventh Circuit on two grounds: (1) the Court abused its discretion in declining to instruct the jury as to the additional lesser-included offense of involuntary manslaughter; and (2) the Court erred by imposing a two-level enhancement for obstruction of justice based upon Tolen's testimony that he did not intend to hurt Katz. On March 26, 2010, the Seventh Circuit affirmed the Court's judgment on both issues. See United States v. Tolen, 372 Fed.Appx. 658, 661, 2010 WL 1169941 (7th Cir. 2010). On November 9, 2010, Tolen filed this timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.


"[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). Under Section 2255, relief "is available only when the 'sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal.") (citation omitted). As such, if a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal. See Sandoval v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009); Torzala, 545 F.3d at 522. Because claims of ineffective assistance of counsel usually involve evidence outside of the trial record, such claims may be brought for the first time in a Section 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).


Construing Tolen's pro se Section 2255 motion liberally, McGee v. Bartow, 593 F.3d 556, 566-67 (7th Cir. 2010), he brings the following claims: (1) his appellate counsel was constitutionally ineffective for failing to appeal the Court's ruling allowing the government to cross-examine him concerning false representations made to the police following his 2007 arrest; (2) both trial and appellate counsel were constitutionally ineffective for failing to argue that Tolen's conduct did not cause Katz's death, thus allowing for the lesser-included offense jury instruction of involuntary manslaughter; (3) the Court's restitution order to the victim's family under the Mandatory Victim's Restitution Act ("MVRA") amounted to cruel and unusual punishment in violation of the Eighth Amendment; (4) trial counsel was constitutionally ineffective for admitting that Tolen was responsible for Katz's death; (5) he is entitled to a one-point reduction for his criminal history score under the United States Sentencing Guideline § 4A1.1; and (6) trial counsel was constitutionally ineffective for failing to object to the government's questions during his cross-examination.

Tolen procedurally defaulted his third and fifth claims because he failed to raise these arguments on appeal to the Seventh Circuit. See Torzala, 545 F.3d at 521. Nevertheless, "[b]ecause the government did not assert procedural default as a defense in this action but instead chose to ...

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