United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters United States District Judge.
case comes before the Court on Defendant Van Haele's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Van Haele is a federal prisoner
proceeding pro se.
reviewing the motion, the Court has refreshed its memory by
consulting the rough transcript of Van Haele's change of
plea 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 Van Haele.
motion is subject to preliminary review before the United
States is required to respond. The Court must 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.
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.
December 19, 2013, a grand jury indicted Van Haele on one
count of conspiracy to possess at least 500 grams of a
substance containing methamphetamine with intent to
distribute it, a violation of 21 U.S.C. §§ 846 and
841 (Count 1); one count of possession with intent to
distribute the same, a violation of 21 U.S.C. § 841
(Count 2); and two counts of distribution of at least 5 grams
of pure methamphetamine, a violation of 21 U.S.C. § 841
(Counts 3 and 4). Indictment (Doc. 1) at 2-4. If convicted on
Count 1 or Count 2, Van Haele faced a mandatory minimum
sentence of at least 10 years in prison. See 21
U.S.C. § 841(b)(1)(A) & (viii). If convicted on
Count 3 or Count 4, he faced a mandatory minimum of five
years in prison. Id., § 841(b)(1)(B) &
March 13, 2014, the United States filed an information under
21 U.S.C. § 851, alleging that Van Haele had previously
been convicted in state court of a felony drug offense.
Filing of the Information increased Van Haele's potential
sentence on Counts 1 or 2 to a mandatory minimum of 20 years
in prison and his potential sentence on Counts 3 or 4 to a
mandatory minimum often years in prison. Notice (Doc. 78); 21
U.S.C. §§ 841(b)(1)(A), (B), 851(a).
12, 2014, pursuant to a plea agreement, Van Haele pled guilty
to a superseding information alleging two counts of
distributing a substance containing a detectable quantity of
methamphetamine. These charges arose from two controlled buys
conducted by the DEA, which netted 20.8 grams of pure
methamphetamine. fee Offer of Proof (Doc. 146) at 3.
exchange for Van Haele's guilty plea, the United States
agreed to dismiss all the charges in the original four-count
Indictment as well as the Information it had filed under 21
U.S.C. § 851. See Notice (Doc. 78). The United
States also agreed not to pursue charges that Van Haele
threatened to kill or otherwise harm others in connection
with the prosecution. Finally, the parties agreed that a
sentence of 60 months was appropriate and that Van Haele
could withdraw his guilty plea and proceed to trial if the
Court rejected the parties' agreement. See Plea
Agreement (Doc. 136) at 2 ¶ 2 para. 2, 3-4 ¶ 3
presentence report was prepared. Based on the quantity and
purity of the methamphetamine Van Haele sold, his base
offense level was 28. Anticipating Guideline Amendment 782,
that level was reduced by two levels to 26. See
Sentencing Tr. at 12:23-13:18; see also Plea
Agreement at 8 ¶ 8; First Agreement at 8 ¶ 8 (Doc.
180-1 at 9). Van Haele also received a three-level reduction
for acceptance of responsibility. Presentence Report
¶¶ 115-116. His total adjusted offense level was
23. With a criminal history category of II, the advisory
guideline range was 51 to 63 months. Presentence Report
¶¶l 18-124; Sentencing Tr. at 14:4-8. On October 9,
2014, Van Haele was sentenced, in accordance with the plea
agreement, to a total of 60 months in prison, to be followed
by a five-year term of supervised release. See
Judgment (Doc. 165) at 2-3.
Haele did not appeal. His conviction became final on October
23, 2014. See Gonzalez v. Thaler, ___ U.S. ___, 132
S.Ct. 641, 653-54 (2012); Fed. R. App. P. 4(b)(1)(A)(i). More
than eleven months later, on September 30, 2015, shortly
after the conclusion of a trial in state court, Van
Haele's counsel, Jeffrey Foster, died. Fed. R, Evid.
201(b)(2). Van Haele filed his § 2255 motion on May 5,
2016, 560 days after his conviction became final. Mot. §
2255 (Doc. 177) at 6 ¶ C; 28 U.S.C. § 2255(f)(1).
14, 2016, to facilitate review of Van Haele's motion, the
Court ordered the Federal Defenders of Montana to obtain
Foster's case file and submit it for in camera
inspection. A CD was filed on June 30, 2016 (Doc, 179 &
179-1). Van Haele received a copy of the file and submitted
his response to it on July 21, 2016. On September 22, 2016,
Van Haele filed a "notice" claiming to be eligible
for a "sentence reduction." He supplemented his
notice on October 13, 2016.