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United States v. Emter

United States District Court, D. Montana, Billings Division

January 24, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Susan P. Watters United States District Court

         This 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.

         I. Preliminary Review

         Before 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.

         II. Background

         On 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. 12)atl.

         The 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.

         Emter 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.

         Sentencing 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.


         About 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, (accessed Jan. 18, 2018).

         Meanwhile, 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.).

         Emter's 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. 266, 276(1988).

         III. ...

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