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United States v. Alvarado

United States District Court, D. Montana, Billings Division

May 16, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
TOMAS ALVARADO, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Court

         This 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.

         Background

         Alvarado 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.

         In 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.

         Rule 4 Review

         A § 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).

         Alvarado 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.

         Recusal

         In his 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, 5B.[1] 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.

         Alvarado's 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).

         But 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).

         Alvarado 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.

         Five- to ...


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