United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
SAM E. HADDON, District Judge.
On October 25, 2013, Defendant/Movant Jackson ("Jackson") moved to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Jackson is a federal prisoner proceeding pro se.
I. Preliminary Review
The motion is subject to preliminary review to determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review?' Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cit. 1996) ("Nicolas") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). "[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings. Review has been undertaken and completed.
On March 7, 2012, Jackson was indicted on two counts of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Count 1 alleged possession of a Taurus.357 revolver on or about October 2, 2011. Count 2 alleged possession of a Beretta 9 mm handgun on or about January 25, 2012. There was a forfeiture count as well. Indictment (Doc. 1) at 2-3. Counts 1 and 2 carried a ten-year maximum penalty. 18 U.S.C. § 924(a)(2). Assistant Federal Defender Evangelo Arvanetes was appointed to represent Jackson. Order (Doc. 7).
On March 23, 2012, a fully executed plea agreement was filed. On March 29, 2012, a change of plea hearing was held. Jackson pled guilty in open court to Count 1 of the Indictment. Minutes (Doc. 23).
A presentence report was prepared. Because Jackson had previously been convicted of a felony crime of violence, the base offense level was 20. U.S.S.G. § 2K2.1(a)(4). A four-level enhancement applied because Jackson possessed the revolver in connection with another felony offense, namely, assault, id. § 2K2.1(b)(6)(B). A three-level reduction for acceptance of responsibility was granted, id. § 3E1.1(a), (b). The total offense level was 21. The criminal history category was IV. The advisory guideline range was 57-71 months. The Court found "the guidelines simply aren't adequate to address the severity of the crime... and to fully address" Jackson's "extensive history of violence.. this four-time-repeated possession of guns in connection with criminal activity, the danger that [Jackson] presents to the community, and the strong likelihood" of recidivism. A sentence of 96 months in prison, to be followed by a three-year term of supervised release, was imposed. Sentencing Tr. (Doc. 45) at 18:3-19:10; Judgment (Doc. 37) at 2-3.
Jackson appealed, challenging the sentence. In his reply brief, counsel asserted the United States breached the plea agreement. The Court of Appeals declined to hear that argument because it had not been presented in the opening brief. Jackson's sentence was affirmed. United States v. Jackson, No. 12-30232 (9th Cir. May 20, 2013) (Doc. 47) (unpublished mem. disp.). Jackson filed a petition for writ of certiorari in the United States Supreme Court. It was denied on October 7, 2013. See Letter (Doc. 54). Jackson timely filed this § 2255 motion on October 21, 2013. Mot. § 2255 (Doc. 55) at 13; 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266, 270-71 (1988).
III. Jackson's Claims and Analysis
Jackson's claims are reorganized here. All are addressed.
A. Breach of the Plea Agreement
Jackson contends the United States breached the plea agreement. Mem. in Supp. of § 2255 Mot. (Doc. 57) ("Mem.") at 4-7. At sentencing, after the United States stated its position on the sentence, defense counsel represented that "pursuant to the plea agreement, both parties agreed to recommend the guideline." Sentencing Tr. (Doc. 45) at 14:1-2. On appeal, too, defense counsel represented to the Court of Appeals that the United States made a "plea agreement with Jackson to advocate for a guideline range sentence." Reply Br. at 3, United States v. Jackson, No. 12-30232 (9th Cir. Dec. 10, 2012); see also id. at 7, 10. The plea agreement in fact contained no such requirement. Plea Agreement (Doc. 18), passim. Nor, for that matter, did the United States recommend a sentence outside the guidelines. (Sentencing Tr. at 14:1-10.) At the change of plea hearing, the United States' obligations under the agreement were accurately described. Change of Plea Tr. (Doc. 34) at 13:3-16:12.
Apparently influenced by counsel's incorrect statements, Jackson now contends that "after signing the Plea Agreement, the Government disregarded the plea agreement terms and recommended a four-point enhancement under Section 2K2.I for Petitioner allegedly possessing a gun in connection with another felony.'" Mem. at 5. The parties agreed only that the United States would move to dismiss Count 2, would not pursue other charges, and would recommend the full three-level departure under U.S.S.G. § 3E1.1 unless Jackson's sentence was enhanced under U.S.S.G. § 3C1.1 for obstruction of justice. Plea Agreement (Doc. 18) at 2-3 ¶ 3, 7 ¶ 6, 9 ¶ 9, 10 ¶ 12. The plea agreement did not require the United States to refrain from recommending application of U.S.S.G. § ...