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United States v. Van Haele

United States District Court, D. Montana, Billings Division

December 2, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
THOMAS EDMOND VAN HAELE, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Judge.

         This 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.

         In 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.

         I. Preliminary Review

         The 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.

         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.

         II. Background

         On 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) & (viii).

         On 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).

         On June 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.

         In 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 paras. 3-4.

         A 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.

         Van 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).

         On June 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.

         III. ...


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