United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
DONALD W. MOLLOY JUDGE.
This case comes before the Court on Defendant/Movant Little Coyote's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Little Coyote is a federal prisoner proceeding pro se.
To refresh its recollection of the case, the Court has consulted the court reporter's rough transcripts of the change of plea and sentencing hearings in this matter. The United States will be required to order those transcripts for the Court's record and to ensure that Little Coyote receives a copy of each.
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 September 20, 2013, a grand jury indicted Little Coyote on one count of aggravated sexual abuse, a violation of 18 U.S.C. § 2241(a)(1) ("Count 1"). The grand jury found probable cause to believe that, in October 2012, Little Coyote used force to cause J.P. to engage in a sexual act. As the incident was alleged to have occurred on the Northern Cheyenne Indian Reservation, jurisdiction was predicated on the Major Crimes Act, 18 U.S.C. § 1153(a). Indictment (Doc. 1) at 1-2. Assistant Federal Defender Steven C. Babcock was appointed to represent Little Coyote. Order (Doc. 7).
On February 7, 2014, pursuant to a plea agreement, Little Coyote pled guilty in open court. He admitted that he physically held J.P. down on his brother's bed and raped her. See generally Minutes (Doc. 16); Offer of Proof (Doc. 15); Plea Agreement (Doc. 12).
A presentence report was prepared. The United States recommended a sentence of 150 months, U.S. Sentencing Mem. (Doc. 24) at 5, and the defense sought a sentence of 135 months, Def. Resp. Mem. (Doc. 25) at 5. Under the advisory sentencing guidelines, the base offense level was 30. Little Coyote received a four-level upward adjustment for use of force and a three-level downward adjustment for acceptance of responsibility. The total offense level was 31. The criminal history category was III. The advisory guideline range was 135-168 months. Presentence Report
¶¶ 20-29, 32-39, 90. On July 2, 2014, Little Coyote was sentenced to serve 135 months in prison, concurrent to any other undischarged terms, followed by a ten-year term of supervised release. Minutes (Doc. 28); Judgment (Doc. 29) at 2-3.
Little Coyote timely filed his § 2255 motion on July 2, 2015. 28 U.S.C. § 2255(f)(1); Mot. § 2255 (Doc. 33) at 13; Houston v. Lack, 487 U.S. 266, 270-71 (1988).
III. Claims and Analysis
Little Coyote is a thoughtful and articulate man who served his country well in the armed forces. He accepted responsibility for his criminal conduct at both his change of plea and his sentencing hearings. He is capable of being a significant asset to his community and to his family, including his two little girls and his son, when he discharges his federal sentence. As he said in his written statement before sentencing, "[Although I ...