United States District Court, D. Montana
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
DONALD W. MOLLOY, District Judge.
This case comes before the Court on Defendant/Movant Fray's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Fray is a federal prisoner proceeding pro se.
In reviewing the motion, the Court has refreshed its memory by consulting the rough transcript of Fray's sentencing hearing. Pursuant to 28 U.S.C. § 753(f), the United States will be required to order the transcript for the Court's file and for Fray.
I. Preliminary Screening
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 October 18, 2013, Fray was indicted on one count of being a felon in possession of firearms, a violation of 18 U.S.C. § 922(g)(1); one count of possession of stolen firearms, a violation of 18 U.S.C. § 922(j); and a forfeiture count. Indictment (Doc. 8) at 2-4. He retained Bryan Tipp to represent him. Notice of Appearance (Doc. 4).
Pursuant to a plea agreement, Fray pled guilty to Count 1 of the Indictment. He admitted that he was a felon in possession of firearms, that he possessed ten firearms, and that some were stolen. Plea Agreement (Doc. 20) at 3-4 ¶ 4. The United States agreed to recommend a three-point reduction for acceptance of responsibility and to dismiss Count 2 of the Indictment. Id. at 7 ¶ 6. Fray conditionally waived his right to appeal the sentence and waived his right to file a § 2255 motion. Id. at 9 ¶ 10(a) paras. 1-2. Fray pled guilty in open court on December 20, 2013.
On two occasions, one before Fray's change of plea and one before sentencing, the United States moved the Court for leave to use Fray, with his lawyer's consent, as a confidential informant. Both motions were denied. Sealed Mots. (Docs. 16, 28); Sealed Orders (Docs. 17, 29).
Before sentencing, Fray admitted and tested positive for methamphetamine use. A hearing was held on Pretrial Services' petition to revoke Fray's pre-sentencing release. At the hearing, Fray testified that he drank juice with methamphetamine mixed into it without knowing the juice was contaminated. Judge Lynch found Fray's testimony "completely lacking in credibility." His release was revoked, and he was taken into custody. Revocation Hr'g Tr. (Doc. 49) at 27:3-28:20, 44:12-45:10.
Sentencing was held on April 29, 2014. The case agent was called as a witness by the defense and testified to Fray's assistance. Under the advisory guidelines, Fray's base offense level was 20. He received a four-point upward adjustment because he possessed 8 to 24 firearms, a two-point upward adjustment because some firearms were stolen, and a three-point downward adjustment for acceptance of responsibility. The total offense level was 23. The criminal history category was III. The advisory guideline range was 57-71 months. Presentence Report (Doc. 58) ¶¶ 29-40; Mot. to Continue Ex. (Doc. 42-1) at 1; Statement of Reasons (Doc. 57) at 1 ¶ III. Fray was sentenced to serve 57 months in prison, with a recommendation that he be admitted to the Bureau of Prisons' Residential Drug Abuse Prevention Program. When he is discharged from prison, he will serve a three-year term of supervised release. Judgment (Doc. 56) at 2-3.
Fray did not appeal. His conviction became final on May 13, 2014. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54 (2012). Fray timely filed his § 2255 ...