United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
DANA L. CHRISTENSEN, Chief District Judge.
On November 24, 2014, Defendant Jason Charles Shouse filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Shouse is a federal prisoner proceeding prose.
On December 1, 2014, the Court ordered Shouse to file an amended motion. Because the original motion did not set forth any claims for relief, Shouse was ordered either to file an amended motion or to state that he did not intend to proceed at this time. Order (Doc. 59) at 2. On December 29, 2014, Shouse filed an amended motion.
A motion under 28 U.S.C. § 2255 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 Cir. 1996) ("Nicolas") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). But "it 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.
In 1997, Shouse was convicted and sentenced in state court of one count of sexual intercourse without consent. The offense involved a three-year-old girl. See Presentence Report ¶ 37.
On July 17, 2012, Shouse's girlfriend moved out of his house. She took the S.D. card from one of Shouse's old cell phones to the Cascade County Sheriffs Office and told them it contained video footage of Shouse performing oral sex on a two-year-old girl. The girl was identified as someone Shouse was babysitting at the time he made the videos.
On September 20, 2012, Shouse was indicted on two counts of sexual exploitation of children, violations of 18 U.S.C. § 2251(a) (Counts 1 and 2); two counts of being a registered sex offender at the time he committed the conduct alleged in Counts 1 and 2, respectively, violations of 18 U.S.C. § 2260A (Counts 3 and 4); and one count of possession of child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 5). Counts 1 and 3 were alleged to have occurred on May 24, 2008. Counts 2 and 4 were alleged to have occurred on June 8, 2009. Count 5 was alleged to have occurred on July 17, 2012. See Indictment (Doc. 1) at 2-4. Chief Federal Defender Anthony R. Gallagher was appointed to represent Shouse. Order (Doc. 10).
On January 29, 2013, Shouse pled guilty to Counts 1 and 3 of the Indictment. Minutes (Doc. 36); Plea Agreement (Doc. 32). Conviction on Count 1 carried a mandatory minimum penalty of 15 years in prison and a maximum of 30 years. But, as noted, Shouse had a prior conviction under Montana law. The Montana offense was equivalent to the federal offense of aggravated sexual abuse. Presentence Report ¶ 37; Mont. Code Ann. §§ 45-2-101(66), -5-503(1), (3)(a) (1995); 18 U.S.C. §§ 2241(c), 2246(2)(B)-(D). Consequently, Shouse faced an elevated mandatory minimum penalty of 25 years in prison and a maximum of 50 years. 18 U.S.C. § 2251(e). Conviction on Count 3 carried a mandatory sentence of ten years in prison, consecutive to the sentence on Count 1. 18 U.S.C. § 2260A.
A sentencing hearing was held on May 10, 2013. Minutes (Doc. 42). On Count 1, the base offense level was 32. Shouse received upward adjustments for offending against a child under the age of 12, for his personal participation in the act he recorded, for sadistic conduct, and for having the child in his care at the time he committed the offense. The adjusted offense level was 44. He received a three-point downward adjustment for acceptance of responsibility. The total offense level was 41. Presentence Report ¶¶ 21-29. Because he was a repeat offender, his criminal history category was V. U.S.S.G. § 4Bl.5; Presentence Report ¶¶ 30, 39. The advisory guideline range on Count 1 was 360 months to life in prison, but the statutory maximum was 50 years, or 600 months. With the ten-year consecutive term on Count 3, the effective sentencing range was 360-600 months on Count 1 plus 120 months on Count 3.
Shouse was sentenced to serve the lowest possible within-Guidelines sentence, 480 months on Count 1, followed by ten years on Count 3, for a total sentence of 50 years in prison, to be followed by a life term of supervised release. The federal sentence was imposed to run consecutive to the sentence imposed on revocation of Shouse's probation on the 1997 state conviction. Judgment (Doc. 44) at 2-3.
Shouse appealed the advisory guideline calculation underlying the sentence and the reasonableness of the sentence. On June 24, 2014, the Court of Appeals affirmed the sentence. United States v. Shouse, No. 13-30134 (9th Cir. June 24, 2014) (Doc. 55).
Shouse timely filed his § 2255 motion. 28 U.S.C. § 2255(f)(l); Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54 (2012).
II. Claims and Analysis
Shouse contends that counsel's assistance was ineffective in several respects. Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). Shouse must allege facts sufficient to support an inference (1) that counsel's performance fell below an objective standard of reasonableness, id. at 687-88, and (2) that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, " id. at 694. ...