United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS UNITED STATES DISTRICT COURT
case comes before the Court on Defendant/Movant
Dauenhauer's motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. All but one of
Dauenhauer's claims have been denied or withdrawn. This
order addresses the merits of the sole remaining claim and
considers whether a certificate of appealability is
appropriate on any of the claims the Court has decided in the
§ 2255 proceedings.
remaining claim alleges that counsel was ineffective because
he failed to advised Dauenhauer that sharing methamphetamine,
without expecting payment for it, would constitute a
violation of 21 U.S.C. § 841(a)(1). Dauenhauer claimed
he would have pled guilty rather than proceeding to trial if
he had understood that fact. The parties deposed trial
counsel and filed the deposition in the record of the case.
Dauenhauer testified at an evidentiary hearing on April 7,
of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668 (1984).
Dauenhauer must prove (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.
was charged with three crimes: conspiring to distribute and
to possess with intent to distribute more than 500 grams of a
mixture containing methamphetamine, a violation of 21 U.S.C.
§§ 846 and 841 (a)(1) (Count 1); possession of the
same with intent to distribute it, a violation of 21 U.S.C.
§ 841(a)(1) (Count 2); and possession of a firearm in
furtherance of a drug trafficking crime, a violation of 18
U.S.C. § 924(c) (Count 3). The crimes were alleged to
have occurred over a period of about four years. See
Indictment (Doc. 1) at 2-4.
stood trial before a jury and testified in his own defense.
He admitted that he personally used methamphetamine. He also
admitted that he shared methamphetamine at times with
friends. He said that sometimes he provided it, and sometimes
they did. See, e.g., 3 Trial Tr. (Doc. 164) at
730:10-731:24, 732:23-735:16, 745:1-7.
deliberations, the jury asked, "Is the possessing with
the intent to distribute the same as sharing the drug with
others socially?" Jury Note (Doc. 99) at 2. In response,
the jury was directed back to the jury instructions.
Id. at 3. Among other things, the instructions
advised both that possession with intent to distribute could
be proved "with or without any financial interest in the
transaction" and that "[i]ntent to distribute may
be inferred from the purity, price, and quantity of the drug
possessed." Jury Instrs. Nos. 10, 12 (Doc. 98 at 21,
24). The jury acquitted Dauenhauer of Counts 1 and 3 and
convicted him of Count 2, possessing more than 500 grams of
methamphetamine, or 50 grams of pure methamphetamine, with
intent to distribute it.
now alleges that he would have pled guilty if he had properly
understood the elements of possession of methamphetamine with
intent to distribute it. To prevail, he must show that
counsel gave him incorrect legal advice or at least that
counsel had reason to believe Dauenhauer did not understand
what conduct would violate the statute. He must also show
that "but for the ineffective advice of counsel there is
a reasonable probability that [a] plea offer would have been
presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed." Lqfler v.
Cooper, 566 U.S. 156, 164 (2012).
has not met either prong of the Strickland/Lafler
test. First, at the evidentiary hearing, Dauenhauer did not
testify that counsel told him sharing methamphetamine was not
a federal crime. He testified that counsel told him the
strategy at trial would be to persuade the jury that
Dauenhauer had relatively small quantities of methamphetamine
for his personal use and shared occasionally with friends.
The charge was possession with intent to distribute, not
distribution. Personal use plus occasional sharing did not
prove Dauenhauer obtained and held methamphetamine with the
intention of distributing it to others. Therefore,
counsel's trial strategy was a reasonable one.
at the evidentiary hearing, Dauenhauer testified simply that
counsel did not tell him that sharing
methamphetamine was distribution. There is no
evidence that counsel himself believed that sharing
methamphetamine was not distribution. Nor is there
any evidence that counsel knew or had reason to know that
Dauenhauer decided to go to trial because he mistakenly
believed that sharing methamphetamine was not
there is no evidence that counsel gave Dauenhauer erroneous
advice or even that counsel perceived yet failed to correct a
misunderstanding on Dauenhauer's part. Dauenhauer has
failed to prove that counsel's performance was deficient.
prejudice prong of the Strickland test also is not
met. If Dauenhauer was convicted of Count 3 and either Count
1 or Count 2, the mandatory minimum sentence was 15 years. At
the evidentiary hearing, Dauenhauer testified that, as a
65-year-old man, he decided to go to trial in the hope of
obtaining an acquittal on all charges or, presumably, a
verdict reflecting a lower drug amount, so that his sentence
would be less than 15 years. Fifteen years, in effect, meant
the rest of his life. And there is no evidence the United
States was willing to entertain a plea bargain entailing a
lesser drug charge or dismissal of the § 924(c) charge.
Counsel testified in deposition that the prosecutor was
intent on obtaining the longest sentence he could get and
would not dismiss charges or reduce the drug quantity.
See Counsel Dep. (Doc. 257) at 9:12-23, 10:18-11:24,
15:8-20, 17:8-20, 18:22-19:2. There is no evidence to the
contrary. Although Dauenhauer may well have pled guilty to a
drug crime charging a lesser quantity, with or without a
§ 924(c) charge in addition to that, there is no
reasonable probability that he was or would have been given
sole remaining claim of ineffective assistance of counsel is
Dauenhauer's claims makes a substantial showing that he
was deprived of a constitutional right. See 28
U.S.C. 2253(c)(2). As explained above, after full development
of the factual record, the evidence does not support either
Dauenhauer's claim that his decision to go to trial was
based on incorrect legal advice or that he would have pled
guilty had he been correctly advised. Dauenhauer's claims
regarding the sufficiency of the indictment and the drug
quantity attributed to him, see Order (Doc. 197) at
3-5, were addressed on appeal and found to lack merit. His
claim that the prosecutor vouched for his witnesses'
credibility referred to fair closing argument. See
Id. at 5-7. The petit jury's verdict obviated any
challenge to the sufficiency of the evidence to support the
grand jury's decision. See Id. at 7-8. The
sentence, while harsh, was within the guideline range that
was found to apply, was substantively reasonable, ...