United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
SUSAN P. WATTERS, District Judge.
On July 25, 2014, Defendant/Movant Christopher Kyle Sherrod filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Sherrod is a federal prisoner proceeding pro se.
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 Cir. 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.
On July 18, 2013, a grand jury handed down an Indictment charging Sherrod with one count of possessing, with intent to distribute, 50 grams or more of methamphetamine, a violation of 21 U.S.C. § 841(a)(1) (Count I); one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count II); and one count of carrying a firearm during and in relation to a drug trafficking crime, a violation of 18 U.S.C. § 924(c) (Count III). If convicted on Count I, Sherrod faced a mandatory minimum prison term of ten years and a maximum of life in prison. 21 U.S.C. § 841(b)(1)(A)(viii). If convicted on Count II, he faced a maximum of ten years in prison. 18 U.S.C. § 924(a)(2). If convicted on Count III, he faced a mandatory prison term of five years consecutive to any other sentence imposed. Id. § 924(c)(1)(A)(i), (D)(ii).
On September 11, 2013, the parties filed a fully executed plea agreement. Sherrod agreed to plead guilty to Count I of the Indictment "because defendant is in fact guilty of the charge." Plea Agreement (Doc. 19) at 3 ¶ 4. The United States agreed to dismiss Counts 2 and 3 and to recommend a three-point reduction for acceptance of responsibility. Id. at 2-3 ¶ 3, 7 ¶ 6.
At the change of plea hearing, Sherrod said he understood he would not "have any capacity to challenge conviction" at the point when Judge Haddon accepted his plea. Change of Plea Tr. at 20:6-12. He said no one had "tried to force [him] somehow" or "threatened" him or "applied any other kind of pressure to get [him] to enter a guilty plea." Id. at 20:13-21. When Judge Haddon asked, "Has anyone made any promises to you to get you to do that? That is, to enter a guilty plea?" Sherrod responded, "Nothing beyond what's already in the agreement, just to drop Counts II and III." Id. at 20:22-25.
As to the facts of the case, Sherrod agreed that each statement in the United States' Offer of Proof was true, except the statement, "in fact, while outside Trooper Fetterhoff's vehicle, Sherrod became so nervous that he fainted and passed out beside the car; aid was rendered to Sherrod." Change of Plea Tr. at 29:3-30:7; Offer of Proof (Doc. 17) at 5 ¶ 5. As a result, Sherrod admitted that he was stopped on I-94 in Wibaux County, Montana, on May 1, 2013. He admitted he told Trooper Fetterhoff that his name was on the rental agreement for the car he was driving, and he admitted the officer did not see it there. He admitted that the rental agreement showed the vehicle had been rented on April 15, 2013, in Portland, Oregon, and was supposed to be returned by April 19, 2013. He admitted the car was supposed to be driven only in Oregon and Washington. He admitted the officer contacted his post-prison supervision officer in Oregon and she asked that Sherrod be taken into custody because his presence in Montana violated the terms of his supervision. He admitted the owner of the rental car, Enterprise, asked that personal property be removed from the vehicle. He admitted a search warrant was obtained for the black gym bag that was removed from the car. He admitted the gym bag was his. He admitted it contained 334.1 grams of pure methamphetamine and a Hi Point.40-caliber handgun. Offer of Proof at 3-5 ¶¶ 2-4, 5-6 ¶¶ 6-9. Under oath at the change of plea hearing, Sherrod said "the container of methamphetamine was discovered in my bag" and "1 was headed to Minnesota" with "the dope." Change of Plea Tr. at 27:17-28:23. He pled guilty. Id. at 30:21-23.
Before sentencing, however, Sherrod moved to withdraw his guilty plea. He claimed counsel should have challenged the legality of the traffic stop and all the ensuing events that led to discovery of the methamphetamine. But Sherrod knew, before he entered his guilty plea, that he could contest the search and on what grounds. He knew his counsel had never contacted his Oregon supervision officer and had not obtained the warrant she reportedly said she would fill out. He knew counsel was not able to fulfill his additional requests to "get certain things." Sherrod said:
I understood I was giving up some rights, the plea colloquy shows that. But I did not understand how my rights applied under the law. Even though there was some discussion about it. It was not discussion in case - within law. It was simply me saying: "This police officer is lying. This took place." And the result is: But can you prove it? And now I feel that I can prove some of this.
Plea colloquy doesn't tell you what rights you're actually waiving, except for rights to a trial and rights to appeal. It doesn't tell you - it doesn't describe to you how your rights are violated by an unscrupulous police officer.
Hr'g Tr. (Doc. 47) at 25:13-19, 27:6-9. Sherrod also said of counsel, "he can't be expected to go over everything with a fine-tooth comb. There's not enough hours in the day for him to be able to do that." Id. at 21:19-21. He added that counsel spotted, after the change of plea hearing, "an additional [issue] that's not completely obvious on the face by reading the police reports." Id. at 24:7-15
Sherrod also said:
I did not want to take the deal. I did not want to take the plea agreement. 1 signed it on one condition. He [counsel] told me that if I chose to change my plea agreement, that he would help me do so. And that is why I agreed to take the deal. Because I did not know my rights. I had to rely upon what was being explained to me. And once I was able to actually see what the law says, I realized what I'd waived.
Hr'g Tr. at 26:24-27:5.
Sherrod admitted that on the day before he changed his plea, while he was speaking with counsel in the jail, he fainted and required medical attention. Id. at 25:20-26:3. He followed up by stating that he knew his plea would not be accepted by Judge Haddon if he disagreed with the facts in the Offer of Proof. Id. at 26:3-7. He also said, "I'm not guilty of the charge I pled guilty to." Id. at 27:13-14. This Court found Sherrod failed to show a fair and just reason to withdraw his guilty plea. Hr'g Tr. at 33:9-15.
Sentencing was held the next day. Based on a total offense level of 33 and a criminal history category of IV, the advisory guideline range was 188-235 months. On February 13, 2014, Sherrod was sentenced to serve 200 months in prison, to be followed by a ...