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/Petitioner
Stewart's petition for writ of habeas corpus under 28
U.S.C. § 2241. Stewart is a federal prisoner proceeding
January 17, 2017, Stewart was advised that the Court intended
to recharacterize his habeas petition under 28 U.S.C. §
2241 as a motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Stewart was given an
opportunity to withdraw the petition or to allege any
additional claims for relief he wanted the Court to consider.
See Order (Doc. 155) at 1-2; Castro v. United
States, 540 U.S. 375, 377 (2003). On January 26, 2017,
Stewart responded by agreeing to recharacterization and
asking the Court to consider the claim in his § 2241
petition. See Resp. to Order (Doc. 156).
point, the Court realized Stewart's appeal of the
revocation of his supervised release was still pending in the
Court of Appeals. Thereafter, Stewart filed a motion for the
appointment of counsel and another motion under 28 U.S.C.
September 20, 2012, Stewart was indicted on two counts of
abusive sexual contact, violations of 18 U.S.C. §
2244(a)(3), involving two different victims. Due to the
victims' ages, the maximum penalty for each count was
four years in prison. See 18 U.S.C. § 2244(a)(3), (c).
Jurisdiction was predicated on the Major Crimes Act, 18
U.S.C. § 1153(a). Stewart's first lawyer, Assistant
Federal Defender David Merchant, withdrew due to a conflict
of interest. Replacement counsel Vernon Woodward withdrew due
to "a substantial and irremediable disagreement on
strategy and tactics." Mot. to Withdraw (Doc. 35) at 1.
Counsel Matthew J. Wald was appointed on January 3, 2013
January 17, 2013, the United States filed a superseding
indictment alleging the same two counts as the original
indictment and adding one count of failure to register as a
sex offender with the enhancement for commission of a crime
of violence, a violation of 18 U.S.C. § 2250(a) and
(c)(1) (now (d)(1)) ("Count 3"); and one count of
committing a felony sex offense against a minor while
required to register as a sex offender, a violation of 18
U.S.C. § 2260A ("Count 4"). See Superseding
Indictment (Doc. 43) at 3-4. If convicted on Count 3 and also
Count 1 or Count 2, Stewart faced a mandatory minimum
sentence of five years and a maximum of 30 years, consecutive
to the sentence imposed on Counts 1 or 2. If convicted on
Count 4 and also Count 1 or Count 2, Stewart faced a
mandatory prison term often years consecutive to the sentence
imposed on Counts 1 or 2. See 18 U.S.C. §§ 2250(c)
(now (d)), 226OA. Thus, if convicted on all four counts,
Stewart faced a minimum penalty of 15 years in prison and
could have been sentenced to as much as 48 years in prison.
parties reached a plea agreement. On May 24, 2013, the United
States filed a superseding information charging Stewart with
failure to register as a sex offender, a violation of 18
U.S.C. § 2250(a). See Superseding Information (Doc. 57)
at 1-2. The charge of failure to register carried a ten-year
maximum and no minimum penalty. See 18 U.S.C. § 2250(a).
On May 28, 2013, the parties filed a plea agreement and an
offer of proof (Docs. 59, 60).
6, 2013, the parties appeared in open court for a change of
plea hearing. United States Magistrate Judge Carolyn S. Ostby
noted discrepancies in the elements of the offenses as listed
in the plea agreement, the superseding information, and the
offer of proof. A recess was taken to correct the errors, and
the change of plea hearing proceeded on an amended
superseding information, an amended plea agreement, and the
original offer of proof. See Change of Plea Tr. (Doc. 73) at
2:15-7:15. Under oath, Stewart admitted he was required to
register as a sex offender because he had been convicted of
abusive sexual contact in federal court in 1995. He also
admitted he had changed his address in March of 2012 without
updating his registration. Id. at 31:4-15. He pled
guilty and a sentencing date was set. Id. at
days later, acting pro se, Stewart submitted a
motion to withdraw his guilty plea (Doc. 69). On June 17,
2013, counsel notified the Court that he had met with
Stewart, they discussed the matter, and Stewart did not wish
to withdraw his guilty plea (Doc. 71). On June 19, 2013,
Stewart, again acting pro se, moved the Court for
new counsel (Doc. 74). A hearing was held. On June 20, 2013,
Stewart withdrew his guilty plea, his motion for new counsel
was denied, and trial was set for July 23, 2013. Order (Doc.
3, 2013, however, Stewart again moved to change his plea from
not guilty to guilty (Doc. 79). A second change of plea
hearing was held on July 10, 2013, based on the amended plea
agreement and amended superseding information filed on June 6
(Docs. 63, 64). Stewart again admitted, under oath, that he
was required to register as a sex offender and had changed
his address in March of 2012 without updating his
registration. See Change of Plea Tr. (Doc. 96) at
46:14-47:20. He pled guilty and a sentencing date was set.
Id. at 49:22, 53:16-18.
was held on October 23, 2013. Stewart's base offense
level under the Sentencing Guidelines was 16. He received a
three-level reduction for acceptance of responsibility. With
a total offense level of 13 and a criminal history category
of V, his advisory guideline range was 30 to 37 months.
See Presentence Report ¶¶ 37-46, 58;
U.S.S.G. ch. 5 Part A (Sentencing Table). Stewart was
sentenced to serve 36 months in prison, to be followed by ten
years' supervised release. Minutes (Doc. 88); Judgment
(Doc. 89) at 2-3.
appealed. New counsel, Assistant Federal Defender David Ness,
was appointed to represent him. The case was remanded for
reconsideration of a special condition of supervised release.
See Mem. (Doc. 112) at 2-3, United States v.
Stewart, No. 13-30319 (9th Cir. Jan. 8, 2015). After a
hearing on March 24, 2015, the condition was amended and
reimposed, and an amended judgment was entered. See
Minutes (Doc. 116); Am. Judgment (Doc. 122).
again appealed. See Notice of Appeal (Doc. 119). On
December 19, 2016, the Court of Appeals affirmed
Stewart's original sentence. Mem. (Doc. 151) at 2,
United States v. Stewart, No. 15-30086 (9th Cir.