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United States v. Tichenor

United States District Court, D. Montana, Missoula Division

August 14, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
CURTIS KEITH TICHENOR, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Dana L. Christensen, Chief Judge

         This case comes before the Court on Defendant/Movant Curtis Keith Tichenor's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Tichenor is a federal prisoner proceeding pro se.

         On October 20, 2016, the Court found it was in the interests of justice to appoint new counsel to represent Tichenor on his § 2255 motion. Counsel was required to investigate to determine whether good-faith allegations of fact could be made to support any claims for relief. She was also required to file an amended motion setting forth all claims Tichenor intended to pursue. See Orders (Docs. 119, 122).

         On June 15, 2017, counsel notified the Court that she had completed her investigation and was not able to allege in good faith facts in support of relief. On June 23, 2017, she was required to serve a record or summary of her interviews with a fact witness and with trial counsel on Tichenor so that he could respond if he wished. She did so. Tichenor responded on August 7, 2017. See Notice (Doc. 125); Order (Doc. 126); Notice (Doc. 127) (under seal); Resp. to Order (Doc. 128).

         I. Preliminary Review

         The motion is subject to preliminary review before the United States is required to respond. The Court must 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). But "it 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. Background

         On December 12, 2012, Tichenor was indicted on one count of robbery affecting interstate commerce, a violation of the Hobbs Act, 18 U.S.C. § 1951(a) (Count 1); one count of brandishing a firearm during and in relation to a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2); one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 3); one count of possessing a detectable amount of methamphetamine with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1) (Count 4); and one count of possessing a firearm in furtherance of a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A) (Count 5).

         Counts 1 and 2 were based on a robbery at the Silver Dollar Bar in Missoula on July 14, 2012. Count 3 was based on the same firearm allegedly brandished in that robbery. But the offense in Count 3 was alleged to have continued from January 2012 to July 23, 2012, and to have occurred in both Missoula and Helena. Indictment (Doc. 1) at 3-5.

         Counts 4 and 5 were based an incident resulting in Tichenor's arrest on July 23, 2012, in Helena. See Indictment at 5.

         On Tichenor's motion, Counts 1, 2, and 3 were severed from Counts 4 and 5. Separate trials were scheduled on each set of counts. See Order (Doc. 27).

         On May 2, 2013, a jury found Tichenor guilty on Counts 1, 2, and 3 and specifically found that he brandished the firearm, as alleged in Count 2, and that he possessed a gun on both July 14, 2012, and July 23, 2012. Verdict (Doc. 71) at 1-2. After trial, Counts 4 and 5 of the Indictment were dismissed without prejudice. Order (Doc. 76).

         Tichenor moved for a mistrial and for a judgment of acquittal under Fed. R. Crim. P. 29. Both motions were denied on July 9, 2013. Order (Doc. 91).

         On August 9, 2013, Tichenor was sentenced to serve 162 months on Count 1, 84 months on Count 2, and 120 months on Count 3.[1] Counts 1 and 3 were ordered to run concurrently, but the sentence on Count 2 had to be consecutive to any other sentence. See 18 U.S.C. ยง 924(c)(1)(D)(ii). The entire federal sentence was also imposed to run consecutive to two sentences imposed in state court. As a result, Tichenor will serve a total of 246 months in federal ...


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