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 Tomas
Alvarado's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Alvarado is a
federal prisoner proceeding pro se.
pled guilty to one count of conspiring to possess at least
500 grams of a substance containing methamphetamine with
intent to distribute it, a violation of 21 U.S.C. §
841(a)(1). On October 21, 2013, Alvarado was sentenced to
serve 360 months in prison, to be followed by a five-year
term of supervised release. Judgment (Doc. 133) at 1-3.
Alvarado appealed, but the appeal was dismissed as waived by
the plea agreement. See Mem. (Doc. 157) at 2.
April 2015, Alvarado filed a motion to reduce his sentence
under 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788
to the United States Sentencing Guidelines. The motion was
denied. Alvarado again appealed, but the appellate court
affirmed denial of the motion. See Mot. § 3582
(Doc. 167) at 1-2; Am. Judgment (Doc. 177) at 1; Statement of
Reasons (Doc. 178) at 1; Mem. (Doc. 213) at 2.
§ 2255 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) (“Nicolaus")
(Schroeder, C.J., concurring) (referring to Rules Governing
§ 2254 Cases).
filed his motion under 28 U.S.C. § 2255 on May 9, 2017.
The motion is likely untimely, see 28 U.S.C. §
2255(f), but there is no need to give Alvarado an opportunity
to respond on that basis, see Wentzell v. Neven, 674
F.3d 1124, 1126 (9th Cir. 2012). Viewing his allegations in
light of the existing record of the case, he is not entitled
to relief on the merits.
motion under 28 U.S.C. § 2255, Alvarado alleges that
Judge Haddon should have recused himself or defense counsel
should have filed a motion for recusal. See Mot.
§ 2255 (Doc. 255) at 4 ¶¶ 5A,
Alvarado claims the Judge made remarks at his sentencing
hearing to the effect that "he would give the maximum
sentence to anyone who association [sic] with methamphetamine
because of something that happen[ed] to his family member
nearly a decade earlier." Mot. § 2255 (Doc. 255) at
13. The transcript shows that Judge Haddon did not say
anything like that. As for "the comments the Judge made
when ruling" in Alvarado's case, see id.,
they did not demonstrate the kind of bias or prejudice that
would have required or even supported recusal. See
Sentencing Tr. (Doc. 140), passim; see also Change
of Plea Tr. (Doc. 144), passim.
motion points to only one potential factual basis for Judge
Haddon's recusal: "threats against the sentencing
judge, " although Alvarado says he "never
made" them. See Mot. § 2255 (Doc. 255) at
9. Threatening a judge does not necessarily require the
judge's recusal, but a threat might support recusal.
See, e.g., United States v. Spangle, 626 F.3d 488,
495-97 (9th Cir. 2010); United States v. Holland,
519 F.3d 909, 914-15 (9th Cir. 2008); see also Mot.
§ 2255 at 9 (alleging that counsel said the judge
"had to remove himself due to "a conflic[t] of
in[t]erest"); see also U.S. Resp. to §
3582 Mot. (Doc. 171) (under seal); Br. in Supp. of §
3582 Mot. (Doc. 174) (under seal).
there was no evidence that Alvarado took any steps against
Judge Haddon until shortly after Alvarado's sentencing,
in October or November 2013, when a witness gave a statement.
See, e.g., U.S. Resp. to § 3582 Mot. (Doc. 171)
(under seal); Br. in Supp. of § 3582 Mot. (Doc. 174)
(under seal). The § 3582 motion was filed in April 2015,
well after sentencing, but Judge Haddon did not preside. The
case had been reassigned in January 2014 for administrative
reasons. See Order (Doc. 151).
does not identify any basis on which Judge Haddon should have
recused himself. Nor does he identify any basis that should
have prompted counsel to file a motion to recuse.