United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
W. MOLLOY UNITED STATES DISTRICT COURT.
case comes before the Court on Defendant/Movant Anthony
Chadwell's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Chadwell is a
federal prisoner proceeding pro se.
20, 2016, the United States was ordered to file certain
documents relevant to Chadwell's claims, and Chadwell was
given an opportunity to respond. See Order (Doc. 97)
at 1-2. The United States complied on May 25, 2016. Chadwell
did not respond.
October 24, 2016, the United States was ordered to file any
and all plea offers it made to Chadwell. Defense counsel was
ordered to file all of his correspondence with Chadwell and
with the United States prior to trial. Defense counsel's
correspondence was to be filed ex parte but provided
to Chadwell. The United States and defense counsel complied.
Chadwell, though given an opportunity to respond, again did
not do so.
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.
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.
Chadwell's Claims and Analysis
a jury trial, Chadwell was convicted of one count of
possessing a firearm while under a court order prohibiting
such possession, a violation of 18 U.S.C. § 922(g)(8).
contends that counsel was ineffective because he failed to
move to suppress the fruits of a traffic stop, failed to
subpoena a material witness (the passenger, Brandon
Robinson), failed to object to the criminal history
calculation and a sentence enhancement that was not proved to
a jury beyond reasonable doubt, and failed to argue that
Chadwell was not fairly advised he could not possess a
firearm. He also contends that appellate counsel was
ineffective because she did not raise any of these claims.
Finally, in one paragraph of a supporting affidavit, Chadwell
avers that he rejected a plea offer and went to trial because
counsel promised he would be sentenced to only 27 months if
convicted at trial.
of ineffective assistance of trial or appellate counsel are
governed by Strickland v. Washington, 466 U.S. 668
(1984); Smith v. Robbins, 528 U.S. 259, 285 (2000).
At this stage of the proceeding, Chadwell must allege facts
sufficient to support an inference (1) that counsel's
performance fell below an objective standard of
reasonableness, id. at 687-88, and (2) that there is
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different, " id. at 694.
"[T]here is no reason ... to address both components of
the inquiry if the defendant makes an insufficient showing on
one." Id. at 697.
claims are reorganized here, but all are addressed.
Advice re: Firearm Prohibition
contends that he was not adequately advised of the federal
legal consequences of his subjection to an order of
protection issued by a municipal court. Mot. § 2255
(Doc. 93) at 5; Br. in Supp. (Doc. 96) at 4; Chadwell Aff.
(Doc. 96-1) at 2.
protective order indicated on its face that Chadwell met
"Federal Firearm Disqualification Criteria."
See Order of Protection (Doc. 98-1) at 1 (showing
every box checked). This information alone was adequate to
put Chadwell on notice, at the least, that he should find out
whether federal law disqualified him from possessing a
firearm and what "possession" meant. Cf.
Lambert v. California,355 U.S. 225, 229 (1957) (stating
that "circumstances which might move one to
inquire" may demonstrate that a defendant had adequate
notice of prohibited or required conduct); see also
Order of Protection at 3 (stating "Respondent shall not
possess firearms"); id. at 4 (stating that
Respondent was present at a hearing extending the temporary
order of protection and providing warning that violation of
the order "may ...