United States District Court, D. Montana. Billings Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
DONALD W. MOLLOY, District Judge.
On August 26, 2013, Defendant/Movant Leslie Jon Claassen filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Claassen is a federal prisoner proceeding pro se.
On December 16, 2013, Claassen filed a motion for the appointment of counsel. The motion was denied and some deficiencies in Claassen's motion were called to his attention. He was given the opportunity to file a supplement. He did so on March 28, 2014.
United States District Judge Richard F. Cebull presided over Claassen's case. As he has since retired, the matter was assigned to this Court. In reviewing the record of the case, the Court has consulted the rough transcript of Claassen's change of plea hearing, which has not yet been filed. The United States will be required to order it, file it in the record of the case, and deliver a copy to Claassen.
On January 20, 2011, a federal grand jury indicted Claassen on one count of receipt of child pornography, a violation of 18 U.S.C. § 2252A(a)(2). Indictment (Doc. 11) at 2. Assistant Federal Defender David Merchant was appointed to represent Claassen. Order (Doc. 9).
On September 1, 2011, Claassen moved to change his plea to guilty. There was no written plea agreement. Mot. to Change Plea (Doc. 23). On September 14, 2011, Claassen pled guilty in open court. Minutes (Doc. 26).
Sentencing was held on December 14, 2011. Under the advisory sentencing guidelines, Claassen's base offense level was 22. He received enhancements because the images he possessed 35 images of child pornography, because the images included children under the age of 12 and portrayed sadistic conduct, and because he engaged in a pattern of sexual abuse of exploitation by taking sexually explicit pictures of his six-year-old daughter. He received decreases in the offense level based on the lack of evidence he intended to traffic in or distribute the images and based on his acceptance of responsibility. His total offense level was 30. Sentencing Tr. (Doc. 41) at 4:22-7:2. His criminal history category was III. His advisory guideline range was 121-151 months, id at 7:3-13, but, because Claassen had a previous conviction for sexual abuse of children, see Presentence Report ¶ 58, he was subject to a 15-year statutory mandatory minimum sentence, 18 U.S.C. § 2252A(b)(1). Claassen was sentenced to serve 240 months in prison, consecutive to a pending state revocation sentence, and followed by a life term of supervised release. Sentencing Tr. at 25:25-26:22.
Claassen appealed the reasonableness of the sentence. On August 15, 2012, the Court of Appeals affirmed the sentence "[i]n light of Claassen's history of sexual abuse of minors and his repeated failure in sexual offender treatment programs." Order at 2, United States v. Claassen, No. 11-30359 (9th Cir. Aug. 15, 2012) (Doc. 42).
Claassen's conviction became final 90 days later, on November 13, 2012. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54 (2012). He timely filed his § 2255 motion on August 20, 2012. Houston v. Lack, 487 U.S. 266, 270-71 (1988).
Although it is questionable whether the original motion was sufficiently detailed to make the supplement timely as well, see Mayle v. Felix, 545 U.S. 644, 664 (2005), the Court will assume, for present purposes, that all claims were timely.
II. Claims and Analysis
A. Ineffective Assistance of Counsel
To support a claim of ineffective assistance, Claassen must allege facts sufficient to support an inference (1) that counsel's performance fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and (2) that there is "a reasonable probability that, but for counsel's ...