United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters United States District Court
case comes before the Court on Defendant/Movant Robert
Timothy Swank's motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. Swank is a federal
prisoner represented by counsel Palmer Hoovestal.
23, 2010, Swank was indicted on one count of aggravated
sexual abuse, a violation of 18 U.S.C. § 2241 (c).
Jurisdiction was predicated on the Major Crimes Act, 18
U.S.C. § 1153(a). Indictment (Doc. 8) at 1-2. If
convicted, Swank faced a mandatory minimum penalty of 30
years in prison and a maximum penalty of life. 18 U.S.C.
§ 2241(c). The Federal Defenders of Montana were
appointed to represent Swank. Order (Doc. 5).
charge was based on a report that Swank was discovered by his
wife sitting in his home with a seven-year-old girl on his
lap. Her pants were pulled down. The child told Swank's
wife that Swank had touched her vagina and buttocks with his
penis and that her bottom was wet. The girl repeated similar
information in subsequent examinations and interviews. Crim.
Compl. (Doc. 1) at 2-5 ¶¶ 4-10.
August 16, 2010, the United States filed notice of its intent
to use against Swank prior instances in which he molested
several children. Notice (Doc. 13); Fed.R.Evid. 414(a);
Interview Summaries (Doc. 30-1) (sealed). Swank moved to
exclude that evidence. On November 24, 2010, United States
District Judge Richard F. Cebull deferred ruling until trial.
Order (Doc. 36). Trial was set for December 13, 2010.
Scheduling Order (Doc. 17) at 1.
morning of trial, the parties reached an oral agreement for
disposition of the case. Swank agreed to plead guilty to a
superseding information alleging he committed the lesser
offense of abusive sexual contact, a violation 18 U.S.C.
§ 2244(a)(5). Although the maximum penalty remained life
in prison, conviction for abusive sexual contact carried no
mandatory minimum sentence. 18 U.S.C. § 2244(a)(5), (c).
Swank pled guilty in open court. Minutes (Doc. 52).
sentencing hearing was held on March 17, 2011. While U.S.S.G.
§ 2A3.4(a)(3) set the base offense level at 12 for an
offense under 18 U.S.C. § 2244, U.S.S.G. § 2A3.4(c)
provided that § 2A3.1 should be used if the offense
involved criminal sexual abuse or attempted criminal sexual
abuse. Swank objected to use of the cross-reference.
Sentencing Mem. (Doc. 55) at 11-12. Judge Cebull
viewed a DVD recording of an interview with the victim and
found Swank's act involved criminal sexual abuse,
overruled the objection, and applied the cross-reference.
Sentencing Tr. (Doc. 71) at 9:9-11:22. As a result, the
base offense level was set at 30. U.S.S.G. §
four-level enhancement applied because the victim was under
the age of 12, U.S.S.G. § 2A3.1(b)(2)(A), and a
two-level enhancement applied because the victim was in
Swank's care at the time of the offense, §
2A3.1(b)(3). Swank objected to the two-level enhancement,
Sentencing Mem. at 12-13, but his objection was overruled,
Sentencing Tr. at 11:23-l 5:13. Swank received a two-level
downward adjustment for acceptance of responsibility. His
total offense level was 34. With no criminal history, his
criminal history category was I. His advisory guideline range
was 151 to 188 months. Judge Cebull sentenced Swank to serve
151 months in prison, to be followed by a ten-year term of
supervised release. Minutes (Doc. 58); Judgment (Doc. 59) at
appealed the two-level enhancement under U.S.S.G. §
2A3.1(b)(3). On April 16, 2012, the Court of Appeals affirmed
the sentence. United States v. Swank, 676 F.3d 919,
924 (9th Cir. 2012). Swank filed a petition for writ of
certiorari in the United States Supreme Court. The
writ was denied on October 1, 2012. Swankv. United
States, __ U.S. __, 133 S.Ct. 219 (2012).
timely filed his § 2255 motion on September 23, 2013.
Mot. § 2255 (Doc. 78) at 15; 28 U.S.C. §
2255(f)(1); Gonzalez v. Thaler, __ U.S.__, 132 S.Ct.
641, 653-54 (2012); Houston v. Lack, 487 U.S. 266,
270-71 (1988) (establishing prison mailbox rule).
other claims no longer before the Court, see Mem.
(Doc. 97) at 2, Swank alleged that his defense attorney,
Chief Federal Defender Anthony Gallagher,
"constantly" told him that his right to confront
and present witnesses would be severely limited because of
the child's age, that hearsay evidence would be admitted
against him, and that the United States, prisoners in the
BOP, and the trial judge would all be biased against him.
See Resp. to Order (Doc. 83) at 2-4. Swank also
claimed, without further elaboration, that Gallagher
"failed to provide . .. a meaningful comparison between
outcome of a conviction by trial ...