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 Christopher
Michael Emter's motion to vacate, set aside, or correct
his sentence, pursuant to 28 U.S.C. § 2255. Emter is a
federal prisoner proceeding pro se.
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. A 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 the
Court should "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.
September 4, 2014, a grand jury indicted Emter on one count
of being a felon in possession of a firearm, a violation of
18 U.S.C. § 922(g)(1) (Count 1); and one count of
possessing a stolen firearm, a violation of 18 U.S.C. §
922(j) (Count 2). Emter was writted out of state custody for
purposes of the federal prosecution, to be returned to state
custody when the prosecution concluded. See Writ (Doc.
federal indictment was based on the fruits of a search
warrant executed at Emter's residence on February 14,
2013. On the same day, Emter was arrested for violating the
terms of his state probation. A week after the search, a
petition to revoke Emter's state probation was filed in
Yellowstone County, and new charges were filed in Stillwater
County. Under a deferred prosecution agreement, the
Stillwater County charges were dismissed on August 29, 2014,
562 days after the search. The petition to revoke remained
pending in Yellowstone County throughout the proceedings in
Stillwater County and in this Court.
chose to stand trial on the federal indictment. The Court
dismissed Count 2 before the case went to the jury. The jury
convicted Emter on Count 1.
was held on November 30, 2015, 452 days after the indictment
was returned. Emter asked the Court to consider the total
time he had already spent in custody. Acknowledging that the
revocation petition remained pending in Yellowstone County,
see Sentencing Tr. (Doc. 166) at 14:11-13; see also
Presentence Report ¶ 49, the Court declined Emter's
request for a downward variance, see Sentencing Tr. at
24:22-25:6. The Court also declined to require that the
federal sentence run concurrent with any revocation sentence
yet to be imposed. Emter was sentenced to serve 48 months in
prison, to be followed by a three-year term of supervised
release. See Judgment (Doc. 136) at 2-3.
four months after the federal sentence was imposed, the state
court revoked Emter's probation and ordered a sentence of
72 months to run consecutive to the federal prison term but
concurrent with the federal term of supervised release.
See Mot. § 2255 (Doc. 198) at 6. Emter also
says the judge gave him credit against the state revocation
sentence for time served in custody from February 14, 2013,
which was the date of the search and Emter's arrest,
until March 29, 2016, the date of the revocation sentencing,
about 1, 139 days. See id.; see also CONWeb,
https://app.mt.gov/conweb (accessed Jan. 18, 2018).
Emter appealed his federal conviction and sentence. Among
other things, he argued that the Court mistakenly believed
the Bureau of Prisons would give him credit for time spent in
custody after indictment and that it did not realize it could
reduce the total sentence to account for credit not likely to
be given. See Appellant Br. at 22-32,
Emter, No. 15-30346 (9th Cir. filed July 5, 2016).
The Ninth Circuit rejected his arguments and affirmed his
conviction and sentence. See Mem. (Doc. 192) at 3,
United States v. Emter, No. 15-30364 (9th Cir. Apr.
19, 2017) (unpublished mem. disp.).
conviction became final on October 2, 2017, when the Supreme
Court denied his petition for writ of certiorari.
See Clerk Letter (Doc. 195) at 1; Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012). He timely filed his
§ 2255 motion on October 30, 2017. See 28
U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S.