United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY.
W. Molloy Judge
matter is before the Court on Defendant/Movant Richter's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. Â§ 2255.
was convicted at bench trial of being a felon in possession
of a firearm, a violation of 18 U.S.C. Â§ 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.
an unsuccessful appeal, Richter timely filed his Â§ 2255
motion on December 16, 2015. 28 U.S.C. Â§ 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,
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
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.
Claims of Ineffective Assistance of Counsel
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.
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. Â§ 2255 Mot. (Doc. 73-2) at 5.
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.
also testified that he relayed the proposed plea agreement to
Richter when he received it. Donahoe Dep. at 14:23-15:10.
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