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United States v. Well

United States District Court, D. Montana, Billings Division

December 21, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ANTHONY MARCOS CHAD WELL, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          DONALD W. MOLLOY UNITED STATES DISTRICT COURT.

         This 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.

         On May 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.

         On 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.

         I. Preliminary Review

         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.

         II. Chadwell's Claims and Analysis

         Following 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).

         Chadwell 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.

         Claims 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.

         Chadwell's claims are reorganized here, but all are addressed.

         A. Advice re: Firearm Prohibition

         Chadwell 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.

         The 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 ...


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