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United States v. Parenteau

United States District Court, D. Montana, Billings Division

November 8, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Susan P. Watters United States District Court

         This 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.

         In the 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 Parenteau.

         I. Background

         A. Underlying Criminal Case

         On 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 1-5.

         Counsel 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).

         On 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).

         Sentencing 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).

         On 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.

         B. Proceedings Under 28 U.S.C. § 2255

         Parenteau 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 mailbox rule).

         On 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.

         On 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).

         II. Requests for Counsel and Evidentiary Hearing

         Parenteau 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.

         A. Evidentiary Hearing

         "Although 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)).

         As 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 claims.

         B. Counsel

         A 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) (per curiam).

         Despite 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.

         III. ...

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