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 Montano's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Montano is a federal prisoner proceeding
challenges the revocation of his supervised release.
Following a hearing on February 24, 2017, he was found to
have consumed alcohol and committed additional offenses. He
was returned to prison for a term of 18 months, to be
followed by 18 months' supervised release. See
Revocation Judgment (Doc. 85) at 1-3. He contends that his
attorney was ineffective, in violation of the Sixth
Amendment, because she failed to present evidence, including
testimony from a mental health expert, to mitigate his
violations of the conditions of release. See Br. In
Supp. (Doc. 103) at 1, 5-12.
of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668 (1984). At
this stage of the proceedings, Montano must allege facts
sufficient to support an inference (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.
reviewing Montano's motion, the Court has refreshed its
memory by consulting the rough transcript of his revocation
hearing. The United States will be required to order the
transcript for the Court's file and for Montano.
See 28 U.S.C. § 753(f).
to Montano's assertion, see, e.g., Br. in Supp.
at 9, the Court was aware of his personal history.
See Presentence Report (Doc. 44) ¶¶
53-100. The Court also knew of his mental health issues and
knew that his behavior appeared to have improved with the
administration of lithium, because counsel and Montano both
said so at the revocation hearing. Montano received mental
health diagnosis and treatment while he resided at a halfway
house. Thanks to his federal probation officer, he had
one-on-one treatment lined up for both his substance abuse
issues and his mental health issues. He received a
recommendation for placement at FCI Sheridan so he can
continue that treatment. See Revocation Judgment
(Doc. 85) at 2.
ensured the Court knew all these things. Likely, her decision
not to call a witness was grounded in a realistic assessment
of the gravity of Montano's violations, but there is no
need to ascertain whether that was the case. She did not fail
to investigate and did not fail to present either information
or argument. She asked the Court to take a chance on
Montano's ability to comply with the imperative to
control his behavior. Her performance was well within the
wide range of competence required of criminal defense counsel
at a revocation hearing. The first prong of the
Strickland test is not met.
second prong of the Strickland test also is not met.
Montano's supervised release was revoked because he drank
beer and tequila, crashed a car into a building, and had a
bindle of methamphetamine in his pocket, which he tossed out
before he was apprehended in the hope of avoiding
responsibility for it. Whatever causes that behavior, it is
not acceptable. Montano posed a serious danger to everyone
around him. Worse, this was the same kind of behavior that
landed Montano in federal prison for 78 months and the same
kind of behavior involved in the dozens of offenses Montano
committed before that. See Presentence Report
¶¶ 33-48. Nothing less than revocation and an
18-month prison sentence was an appropriate response. And, as
counsel requested, Montano will have another opportunity to
demonstrate that he can control himself. It will occur when
he is discharged to his new 18-month term of supervised
certificate of appealability is not appropriate. Montano has
not made a substantial showing that he was deprived of a
constitutional right. See 28 U.S.C. §
2253(c)(2). Reasonable jurists would not encourage further
proceedings. See, e.g., Miller-El v. Cockrell, 537
U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
IT IS HEREBY ORDERED:
Pursuant to 28 U.S.C. § 753(f), the Court CERTIFIES that
the transcript of the revocation hearing, held on February
24, 2017, is required to decide the issue presented by
United States shall immediately order the transcript of the
hearing for the Court's file and shall deliver a copy to
Nicholas John Montano, BOP # 11260-046, FCI Sandstone,
Federal Correctional Institution, P.O. Box 1000, Sandstone,
Montano's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255 (Docs. 102, 103, 105,
106) is DENIED;
certificate of appealability is DENIED. The Clerk of Court
shall immediately process the appeal if ...