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United States v. Richter

United States District Court, D. Montana, Missoula Division

June 5, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PAUL JOSEPH RICHTER, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY.

          Donald W. Molloy Judge

         This matter is before the Court on Defendant/Movant Richter's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255.

         I. Background

         Richter was convicted at bench trial of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). On January 8, 2014, he was sentenced to serve 41 months in prison, to be followed by a three-year term of supervised release. Minutes (Docs. 31, 44); Judgment (Doc. 45) at 2-3.

         Following an unsuccessful appeal, Richter timely filed his § 2255 motion on December 16, 2015. 28 U.S.C. § 2255(f)(1); Gonzalez v. Thaler, __ U.S. __, 132 S.Ct. 641, 653-54 (2012). On April 15, 2016, some of his claims were denied for lack of merit. Others could not be decided on the record as it existed at that time. Richter's motion for counsel was granted, and counsel Palmer Hoovestal was appointed to represent him. See Orders (Docs. 61, 63).

         On May 20, 2016, Richter filed an amended motion alleging two claims of ineffective assistance of counsel. On September 28, 2016, he submitted a third claim under the rule announced in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015).

         The United States has filed an answer on these three claims. In addition, the parties have deposed Richter's trial counsel, Michael Donahoe. The matter is ready for decision.

         II. Claims of Ineffective Assistance of Counsel

         Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Richter must show (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.

         A. Plea Negotiations

         First, Richter claims he considered pleading guilty and asked counsel to pursue a plea agreement, but counsel did not diligently negotiate with the United States and did not present all proposed plea agreements to him. See Second Am. § 2255 Mot. (Doc. 73-2) at 5.

         The United States introduced competent evidence negating Richter's claims. In deposition, trial counsel testified that "this was definitely ... a case that Mr. Richter wanted tried." Donahoe Dep. (Doc. 87) at 13:16-18. Richter was not interested in pleading guilty. As a result, discussions between Richter and counsel did not go into detail with respect to advantages or specific guideline applications of pleading guilty. They focused instead on the United States' case against Richter. See, e.g., 11:11-20, 13:13-20, 17:514, 21:13-16, 23:15-24:20.

         Donahoe also testified that he relayed the proposed plea agreement to Richter when he received it. Donahoe Dep. at 14:23-15:10.

         There is no competent evidence before the Court that Richter would have considered pleading guilty. There is no evidence that counsel received more than one proposed plea agreement or ...


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