United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
L. Christensen, Chief Judge
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.
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).
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.
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.
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.
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
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.
4 and 5 were based an incident resulting in Tichenor's
arrest on July 23, 2012, in Helena. See Indictment
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).
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).
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).
August 9, 2013, Tichenor was sentenced to serve 162 months on
Count 1, 84 months on Count 2, and 120 months on Count
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. § 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 ...