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
Parenteau's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Parenteau is a federal
prisoner proceeding pro se.
course of reviewing Parenteau's motion and the underlying
proceedings, the Court has refreshed its memory by consulting
the court reporter's rough-draft transcripts of three
hearings. The United States will be required to order those
transcripts for the record and to deliver a copy of each to
Underlying Criminal Case
April 18, 2014, a grand jury indicted Parenteau on one count
of stealing firearms, a violation of 18 U.S.C. § 922(u)
(Count 1); one count of being a felon in possession of
firearms, a violation of 18 U.S.C. § 922(g)(1) (Count
2); and one count of possessing stolen firearms, a violation
of 18 U.S.C. § 922(j) (Count 3). Indictment (Doc. 1) at
twice moved for continuances to allow him to assess
Parenteau's mental health situations. See Mots,
to Continue (Docs. 12, 14). On September 26, 2014, counsel
moved for a change of plea hearing, and the United States
filed an offer of proof. See Mot. (Doc. 16); Offer
of Proof (Doc. 17). The hearing convened on September 30,
2014, but it was continued to give Parenteau more time to
consider what he needed to know to proceed and additional
time to review his psychological evaluations. See
Minutes (Doc. 19).
October 6, 2014, the parties filed a fully executed plea
agreement. See Plea Agreement (Doc. 21). On October
7, 2014, another change of plea hearing was convened.
Parenteau was found competent to proceed. He pled guilty to
Count 2 of the Indictment. See Minutes (Doc. 22).
was set for January 15, 2015. On December 19, 2014, counsel
moved to continue it for a month so that he and Parenteau
could have "opportunities to sufficiently explore with
counsel his mental health history and its ramifications for
sentencing." Mot. to Continue (Doc. 24) at 2. The motion
was granted. See Order (Doc. 26).
February 25, 2015, Parenteau was sentenced to serve 84 months
in prison, to be followed by a three-year term of supervised
release. Minutes (Doc. 29); Judgment (Doc. 30) at 2-3.
Parenteau did not appeal.
Proceedings Under 28 U.S.C. § 2255
filed the instant § 2255 motion on June 24, 2016.
See Mot. § 2255 (Doc. 42) at 7; Houston v.
Lack, 487 U.S. 266, 270-71 (1988) (establishing prison
February 26, 2016, Parenteau filed a § 2255 motion.
See Mot. § 2255 (Docs. 34, 38, 39). On May 19,
2016, Parenteau withdrew the motion. See Notice of
Withdrawal (Doc. 40). He now claims he was not the person who
withdrew it. See Notice (Doc. 48). There is no need
to decide whether he withdrew it or not. The outcome here
does not depend on the answer to that question.
March 7, 2017, the Court directed defense counsel to submit,
under seal and ex parte, any materials in his case file
related to Parenteau's potential claim of insanity and
the consequences of prevailing on such a defense. Counsel was
also directed to submit any expert evaluation he had obtained
to assess Parenteau's ability to appreciate the nature
and quality or wrongfulness of his acts at the time of the
offense, as well as any relevant notes or memoranda.
Counsel's response was served on Parenteau. Parenteau had
an opportunity to respond but did not do so. See
Order (Doc. 50) at 2 ¶¶ 2-3; Counsel Resp. (Doc.
52) at 3 (under seal).
Requests for Counsel and Evidentiary Hearing
asks that new counsel be appointed to represent him.
See Second Mot. § 2255 (Doc. 42) at 1. He also
requests an evidentiary hearing. See, e.g., Mot.
§ 2255 (Doc. 38) at 7.
section 2255 imposes a fairly lenient burden on the
petitioner, the petitioner is nonetheless 'required to
allege specific facts which, if true, would entitle him to
relief."' United States v. Rodrigues, 347
F.3d 818, 824 (9th Cir. 2003) (quoting United States v.
McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)).
shown below, Parenteau's allegations of fact are either
contradicted by the record of the case, or they would not
entitle him to relief even if they were proved true. In
addition, he has not alleged facts that introduce entirely
new issues into the case. The record, as supplemented by
counsel's response to the Order of March 7, 2017, is
adequate to support a fair decision of Parenteau's
district court must appoint counsel "when the case is so
complex that due process violations will occur absent the
presence of counsel." Bonin v. Vasquez, 999
F.2d 425, 428-29 (9th Cir. 1993) (discussing Chaney v.
Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (per
curiam)). A district court has discretion to appoint counsel
at any stage of the proceedings if "the interests of
justice so require." 18 U.S.C. § 3006A(a)(2)(B).
The court must consider the likelihood of success on the
merits, the complexity of the legal issues involved, and the
petitioner's ability to articulate his claims pro se.
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)
Parenteau's history of mental health issues, he has
clearly articulated his claims. The issues are not especially
complex. As explained below, the claims lack sufficient merit
to warrant the appointment of counsel.