Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Stewart

United States District Court, D. Montana, Billings Division

February 21, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
WALTER MITCHELL STEWART, JR., Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Court

         This 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 pro se.

         On 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).

         At that 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. § 2255.

         I. Background

         On 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 (Doc. 38).

         On 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.

         The 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).

         On June 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 34:12-35:12.

         Six 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. 77).

         On July 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.

         Sentencing 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.

         Stewart 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).

         Stewart 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. Dec. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.