# Abdon v. United States

> District Court, S.D. Illinois · May 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10155008

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** May 18, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10155008

## How later opinions describe it (automated extraction)

- explaining that “few petitioners” are expected to be able to pass through the “eye of the needle created by Strickland”
- finding “it would be frivolous for counsel to argue that [defendant] is not a career offender”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

EMMANUEL D. ABDON,

Petitioner,

v. Case No. 3:20-CV-1144-NJR

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on Petitioner Emmanuel D. Abdon’s Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). For the
reasons set forth below, the motion is denied.
BACKGROUND
I. Underlying Criminal Case
On February 21, 2018, Abdon was indicted on two-counts: Enticement of a Minor,
in violation of Title 18, United States Code, § 2422(b); and Travel with Intent to Engage in
Illicit Sexual Conduct, in violation of Title 18, United States Code, § 2423(b). On March 8,
2018, Assistant Federal Public Defender Daniel Cronin entered his appearance on behalf
of Abdon.
In July 2018, Abdon’s first jury trial ended in a mistrial when it was discovered
that the jury had access to Abdon’s videotaped interview—which had not been entered
into evidence—during deliberations. (Docs. 59, 61, 63, 67). At the first trial, Detective
Evans testified before the victim. (Doc. 80, pp. 69-86). Detective Evans testified that he
conducted a detailed analysis of the forensic reports of the victim’s phone and the text

messages between the victim and Abdon. The Government did not go through the text
messages with Detective Evans during the first trial. (Id. at p. 76). Instead, the
Government went through the text messages with the victim. (Id. at pp. 113-151). Abdon’s
counsel did not ask the victim any questions during the first trial. (Id. at p. 151).
In November 2018, at the second trial, the victim testified before Detective Evans.
(Doc. 156, pp. 13-49). Again, Abdon’s counsel did not ask the victim any questions during

the second trial. (Id. at p. 49). Unlike the first trial, the Government went through the text
messages between the victim and Abdon with Detective Evans. (Id. at pp. 118-131). Then
on November 28, 2018, “[a] jury found Emmanuel Abdon guilty of two counts of sex
crimes: attempted enticement of a minor, and travel with intent to engage in illicit sexual
conduct.” United States v. Abdon, 788 F. App’x 399 (7th Cir. 2019).

After the second trial, Probation disclosed the initial Presentence Investigation
Report (“PSR”). (Doc. 124). The initial PSR calculated an adjusted offense level of 32 and
a criminal history category I, thus placing Abdon’s sentencing guideline range at 121-151
months. (Id.). Then Probation revised the PSR to apply the reference in United States
Sentencing Guideline (“U.S.S.G.”) § 2G1.3, increasing the offense level to 43, thus placing

Abdon’s guideline range at life on Count I and 360 months on Count II. (Doc. 125).
Attorney Cronin filed a sentencing memorandum in which he requested a
downward variance from the advisory guideline range calculated by Probation.
(Doc. 130). Cronin conceded that the application of the guidelines was correct, but argued
that the guidelines range was excessive when considering the sentencing factors in
18 U.S.C. § 3553(a). (Id.).

In March 2019, now-retired District Judge Reagan sentenced Abdon to a 240-
month term of imprisonment to be followed by five years of supervised release. Abdon
also was ordered to pay a mandatory Special Assessment of $200 and restitution in the
amount of $43,974. (Docs. 142, 144).
In April 2019, Abdon filed a notice of appeal. Abdon’s trial counsel filed an Anders
brief with the Seventh Circuit requesting leave to withdraw as counsel because he found

no non-frivolous issues for review. The Seventh Circuit granted counsel’s motion.
II. Section 2255 Petition
On October 29, 2020, Abdon timely filed a pro se Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). The Court found that Abdon’s
petition survived preliminary review under Rule 4 of the Rules Governing Section 2255

Proceedings, and the Government filed a timely response on December 29, 2020. (Doc. 4).
In his petition, Abdon asks the Court to vacate, set aside, or correct his sentence
because his defense counsel, Mr. Cronin, was constitutionally ineffective. Abdon
provides three grounds in support of his claim of ineffectiveness of his counsel:
(1) his counsel was ineffective for failing to object to Detective Evans’s
testimony regarding his interview with the victim and exterior text
communication without being allowed to cross-examine the victim in
violation of the Confrontation Clause;

(2) his counsel was ineffective at sentencing for failing to adequately argue
the sentencing enhancement for child pornography when Abdon was
never charged with the offense; and
(3) his counsel was ineffective for filing an Anders brief on direct appeal
when there were several valid issues that were preserved for direct
review.

(Doc. 1).

DISCUSSION

Title 28, Section 2255 of the United States Code requires a court to vacate, set aside,
or correct the sentence of a prisoner in custody if it finds that “the sentence was imposed
in violation of the Constitution or laws of the United States.” Habeas corpus relief under
Section 2255 is reserved for extraordinary situations. Brecht v. Abrahamson, 507 U.S. 619,
633-34 (1993); see also Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). A petitioner
can meet the threshold requirement of an extraordinary situation by demonstrating an
“error of constitutional or jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of justice.” Blake, 723 F.3d at 878-79
(citations omitted). “[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)).
I. Evidentiary Hearing
An evidentiary hearing for a 28 U.S.C. § 2255 motion is only granted when “the
petitioner alleges facts that, if proven, would entitle him to relief.” Kafo, 467 F. 3d at 1067.
But if “the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief,” a hearing is not required. Id. For evidentiary hearing
consideration, the Seventh Circuit requires a petition made pursuant to 28 U.S.C. § 2255
to “include an affidavit setting forth the specific basis for relief.” Id. An affidavit
accompanying the petition is a threshold requirement; “its absence precludes the

necessity of a hearing.” Id. The specific allegations in the petition and accompanying
affidavit must go beyond merely unsupported assertions, as “[m]ere unsupported
allegations cannot sustain a petitioner’s request for a hearing.” Prewitt v. United States, 83
F.3d 812, 819 (7th Cir. 1996).
The Court finds that a hearing is not required here because the files and records of
the case conclusively show that Abdon is entitled to no relief. The evidence and record

do not support a finding that he was unduly prejudiced or that counsel fell below an
objective standard of reasonableness in his representation. Accordingly, no evidentiary
hearing is required.
II. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is properly raised in a Section 2255

motion because it implicates the Sixth Amendment, which provides criminal defendants
the right to counsel. U.S. CONST. amend. VI. Generally speaking, counsel is ineffective
when his or her conduct “so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). The Seventh Circuit has held that ineffective

assistance claims are “best addressed through a motion in collateral proceeding pursuant
to § 2255 because the trial record is not developed precisely for the object of litigating or
preserving the claim.” Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004) (quotation
and citation omitted).
“To demonstrate that the right to counsel was violated by ineffective assistance, a
person challenging a conviction must meet the familiar two-part standard set forth in

Strickland.” McElvaney v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013) (citing Strickland, 466
U.S. at 688). The petitioner must show that counsel’s performance was deficient,
“meaning it fell below an ‘objective standard of reasonableness’ informed by ‘prevailing
professional norms.’” Id. (quoting Strickland, 466 U.S. at 688); see also Sussman v. Jenkins,
636 F.3d 329, 349 (7th Cir. 2011) (“The question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it

deviated from best practices or most common custom.”) (quoting Harrington v. Richter,
562 U.S. 86, 88 (2011)).
A petitioner also must show that “counsel’s deficient performance prejudiced him,
meaning that there is a ‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” McElvaney, 735 F.3d at

532 (quoting Strickland, 466 U.S. at 688). When challenging a sentence, “a petitioner must
show that but for counsel’s errors, there is a reasonable probability that he would have
received a different sentence.” Griffin v. Pierce, 622 F.3d 831, 844 (7th Cir. 2010) (citing
Strickland, 466 U.S. at 695). “A reasonable probability is a probability sufficient to
undermine confidence” in the sentence. Taylor v. Bradley, 448 F.3d 942, 950 (7th Cir. 2006).

It is not enough to show that the errors possibly had “some conceivable effect” on the
sentence. Strickland, 466 U.S. at 694.
“Surmounting Strickland’s high bar is never an easy task.” Harrington, 562 U.S. at
105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)); see also Shell v. United States, 448
F.3d 951, 955 (7th Cir. 2006) (“[A] party bears a heavy burden in making a winning claim
based on ineffective assistance of counsel.”); Sullivan v. Fairman, 819 F.2d 1382, 1391 (7th

Cir. 1987) (explaining that “few petitioners” are expected to be able to pass through the
“eye of the needle created by Strickland”).
The 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); Strickland, 466 U.S. at
697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”) A

petitioner’s “failure to satisfy either prong is fatal to his claim.” Ebbole v. United States,
8 F.3d 530, 533 (7th Cir. 1993) (citing United States v. Slaughter, 900 F.2d 1119, 1124 (7th
Cir. 1990)).
A. Failure to Object to Detective Evans’s Testimony (Ground 1)

Abdon claims his counsel was ineffective by failing to object to Detective Evans’s
testimony regarding his interview with the victim and the exterior text communication
without being allowed to cross-examine the victim in violation of the Confrontation
Clause. (Doc. 1, pp. 5, 13). Abdon notes that his counsel “failed to cross-examine the
alleged victim [ ] during the second trial.” (Id. at p. 15). According to Abdon, at the first
trial, Detective Evans “testified to his participation in the investigation and to the

interview that he had with [the] [victim]” (Id.). “Then [the] [victim] testified extensively
to the events leading up to Mr. Abdon coming to Southern Illinois and to all
communication that she had with him during that time period.” (Id. at pp. 15-16). Abdon
then asserts that the Government changed its trial strategy by “having [the] [victim]
testify first [instead of last] and then only having a very limited testimony that left out
the reenactment of the text messages that went on between her and Mr. Abdon.” (Id. at

p. 16). “Detective Evans this time testified extensively to the interview he had with [the]
[victim] and further summarized the communication between [the] [victim] and Mr.
Abdon that went on through text messages, which did not allow the defense to cross-
examine [the] [victim] to the contents of Detective Evans’s testimony.” (Id.).
The Sixth Amendment provides that “the accused shall enjoy the right ... to be
confronted with the witnesses against him.” U.S. Const. amend. VI. “The Confrontation

Clause guarantees only ‘an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense might
wish.’” United States v. Shaffers, 22 F.4th 655, 660–61 (7th Cir. 2022) (quoting United States
v. Owens, 484 U.S. 554, 559 (1988)). The Confrontation Clause prohibits the “admission of
testimonial statements of a witness who did not appear at trial unless he [or] [she] was

unavailable to testify, and the defendant had [ ] a prior opportunity for cross-
examination.” United States v. Wehrle, 985 F.3d 549, 556 (7th Cir. 2021) (quoting Crawford
v. Washington, 541 U.S. 36, 53–54 (2004)). “This right applies only to testimonial evidence.”
Id. (citing Giles v. California, 554 U.S. 353, 376 (2008)). “Testimonial evidence includes
‘formal statements to government officers, or formalized testimonial materials such as

affidavits, depositions, and the like, that are destined to be used in judicial proceedings.’”
Id. (quoting United States v. Brown, 822 F.3d 966, 974 (7th Cir. 2016)).
Here, Abdon fails to demonstrate how counsel’s failure to confront Detective
Evans or the victim fell below an objective standard of reasonableness. Rather, his
counsel’s failure to confront was reasonable because the text messages were non-
testimonial evidence.1 The text messages were not affidavits, depositions, or formal

statements to government officers. The text messages were not made under
circumstances that would lead Abdon to believe that they would be used at a later trial.
Thus, the Confrontation Clause would not apply to the text messages.
Abdon also claims that Detective Evans testified about an interview he had with
the victim, but there is nothing in the transcript showing that Detective Evans testified
about an interview he had with the victim. (Doc. 156, pp. 108-158). Further, Abdon fails

to demonstrate how counsel’s failure to confront Detective Evans’s nonexistent testimony
fell below an objective standard of reasonableness.
Finally, Abdon fails to demonstrate how counsel’s failure to object to Detective
Evans’s alleged summary of the text messages fell below an objective standard of
reasonableness. Indeed, Abdon fails to cite a single example of Detective Evans’s alleged

summary just like he did when he appealed to the Seventh Circuit:
Abdon presents one possible issue for appeal: that the district court
improperly allowed an officer to testify about messages and emails between
him and the victim. He says that the court allowed the officer to
“summariz[e] evidence, interpret[ ] plain language, and draw[ ] inferences
that the jury needed to make.” But Abdon does not cite any examples of
this or even identify which of the many testifying officers he is referring to.
We have reviewed the trial transcripts to try to identify what Abdon has in
mind, but we were unable to find any testimony that might correspond to
this argument. We therefore conclude that this argument, too, would be
frivolous.

1 Additionally, the text messages are not hearsay statements. As noted by the Government,
“[t]hese are statements by a party-opponent (the defendant), and the statements by the victim in
response to the defendant’s texts are necessary in order to provide context to the defendant’s
texts.” (Doc. 4, p. 11).
United States v. Abdon, 788 F. App’x 399, 400 (7th Cir. 2019). Abdon’s first ground is
insufficient to provide relief under Section 2255.
B. Failure to Argue Against the Sentencing Enhancement for Child
Pornography (Ground 2)

Abdon also alleges his counsel was ineffective by failing to object to the guideline
calculations in the revised Presentence Investigation Report (“PSR”). (Doc. 1, pp. 17-18).
According to Abdon, his counsel was ineffective when he failed to object to the
application of U.S.S.G. § 2G1.3(c)(1). Under U.S.S.G. § 2G1.3(c)(1), “[i]f the offense
involved causing, transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct, apply § 2G2.1 (Sexually Exploiting a Minor

by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting
Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in
Production), if the resulting offense level is greater than that determined above.”
Abdon fails to demonstrate how counsel’s failure to object to the guideline
calculation fell below an objective standard of reasonableness. Abdon does not provide

the Court with any specific actions or omissions by his counsel that were unreasonable.
The Seventh Circuit already noted that Abdon was “asked whether [he] objected to these
calculations and he said that he did not, so Abdon has forfeited or waived appellate
objections to the Guidelines range, see United States v. Flores, 929 F.3d 443, 448 (7th Cir.
2019), and he would lose under plain error review.” Abdon, 788 F. App’x at 400.

Additionally, his counsel’s failure to object was reasonable because there was no legal
basis to argue that U.S.S.G. § 2G1.3(c)(1) was improperly applied. It would be
counterproductive to hold an attorney responsible for making frivolous arguments. See

e.g., United States v. Redden, 875 F.3d 374, 375 (7th Cir. 2018) (finding “it would be frivolous
for counsel to argue that [defendant] is not a career offender”).2
Even if his counsel’s performance fell below an objective standard of
reasonableness, Abdon still fails to show that his counsel’s failure caused actual
prejudice. Abdon fails to explain how objecting to the application of U.S.S.G. § 2G1.3(c)(1)
would have impacted the Court’s sentencing determination. Indeed, the Court imposed

a sentence well below the advisory guideline range of life on Count 1 and 360 months’
imprisonment on Count 2. See United States v. Abdon, Case No. 18-cr-30021-NJR, Doc. 145,
p. 4. Accordingly, Abdon’s second ground is insufficient to provide relief under Section
2255.
C. Filing An Anders Brief (Ground 3)

Next, Abdon claims his counsel was ineffective for filing an Anders brief on direct
appeal when there were several valid issues that were preserved for direct review.
(Doc. 1, pp. 18-19). Abdon indicates that the issues included the two arguments raised
above, and the fact that “the Defense preserved a specific argument where it objected to
the mistrial being dismissed without prejudice when it was clearly the fault of the

Government that [ ] Abdon’s 5-hour interview was placed with the jury as admissible

2 To be clear, the Court knows that Abdon is not arguing that his counsel failed to argue he is not
a career offender. The Court uses Redden, 875 F.3d 374, to show frivolous arguments are
counterproductive.
evidence when it was not admitted into the trial evidence which highly prejudiced the
outcome of the first trial.” (Id. at p. 18).
The Court will not readdress Abdon’s first two arguments.3 As to Abdon’s third

argument, he fails to demonstrate how counsel’s failure to bring this argument on appeal
fell below an objective standard of reasonableness. “A mistrial is appropriate when an
event during trial has a real likelihood of preventing a jury from evaluating the evidence
fairly and accurately, so that the defendant has not been deprived of a fair trial.” United
States v. Hilliard, 851 F.3d 768, 778 (7th Cir. 2017) (internal quotations and citation

omitted). The Seventh Circuit reviews “a court’s decision to declare a mistrial for an abuse
of discretion.” United States v. Taylor, 569 F.3d 742, 746 (7th Cir. 2009) (citing United States
v. Vaiseta, 333 F.3d 815, 818 (7th Cir. 2003)). The Seventh Circuit’s review “becomes even
more deferential in a situation such as this, where the ‘manifest necessity’ prompting the
mistrial is a deadlocked jury.” Id. (citations omitted).

With this in mind, the record simply fails to support Abdon’s assertion that his
counsel should have challenged on appeal now-retired District Judge Reagan’s decision
to declare a mistrial. The jurors had access to extraneous material. This material was a
video that contained inadmissible information. (Doc. 68, p. 3). “[I]n at trial where the
presentation of evidence lasted only about four hours, the Court [found] it impossible to

3 As to his second claim, Abdon appears to bring a new argument. Specifically, Abdon argues
that his counsel should have argued on appeal that the Government failed to present all elements
of the offense in the indictment. (Doc. 1, p. 18). The problem is the application of the cross
reference did not alter the elements of the offenses that had to be proven at trial. As such, Abdon
also fails to demonstrate how counsel’s failure to make this argument fell below an objective
standard of reasonableness.
say that five hours of additional evidence would not be prejudicial to the Defendant.”
(Id.). Thus, Abdon’s third ground is insufficient to provide relief under Section 2255.
CERTIFICATE OF APPEALABILITY

The Court must issue or deny a certificate of appealability when entering a final
order adverse to a petitioner. See FED. R. GOV. §2255 PROC. 11. A petitioner cannot appeal
the denial of a Section 2255 petition unless this Court or the Court of Appeals issues a
certificate of appealability. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to
28 U.S.C. § 2253, a certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That
standard is met when the petitioner demonstrates that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,
and that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.’” Flores-Ramirez v. Foster, 811 F.3d 861, 865 (7th Cir. 2016)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also Welch v. United States, 136 S.
Ct. 1258, 1263 (2016). The Court will not issue a certificate of appealability because
reasonable jurists would not debate that Abdon has not met either prong of the Strickland
test for ineffective assistance of counsel.
NOTICE

If Abdon wishes to contest this Order, he has two options. He can ask the Seventh
Circuit to review the Order, or he can first ask the undersigned to reconsider the Order
before appealing to the Seventh Circuit.
If Abdon chooses to go straight to the Seventh Circuit, he must file a notice of
appeal within 60 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 Abdon 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 (7th Cir. 2011) (explaining the
excusable neglect standard).
Additionally, Abdon will only be allowed to proceed on his appeal if he obtains a

certificate of appealability. Here, the undersigned Chief District Judge has already
declined to issue a certificate of appealability. Thus, Abdon must request a certificate of
appealability from the Court of Appeals pursuant to Federal Rule of Appellate Procedure
22 and 28 U.S.C. § 2253(c), in addition to filing his notice of appeal.
The current cost of filing an appeal with the Seventh Circuit is $505.00. The filing

fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If Abdon 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 Abdon
plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to proceed IFP

on appeal, he 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 Abdon 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 (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 60-
day clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock
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 deadline or “completely devoid of substance,” the motion will not stop the clock for
filing a notice of appeal; it will expire 60 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 Abdon
showing excusable neglect or good cause.

CONCLUSION
For the reasons set forth above, Emmanuel D. Abdon’s Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED. The Court
DECLINES to issue a certificate of appealability.
This action is DISMISSED with prejudice, and the Clerk of Court is DIRECTED
to close the case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: May 18, 2022 Tl Q i.

NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155008. Public record. Not legal advice.