United States District Court, D. Montana, Billings Division
ORDER DENYING§ 2255 MOTION, DENYING CERTIFICATE
OF APPEALABILITY, AND REQUIRING UNITED STATES TO ORDER
P. Watters, United States District Court.
case comes before the Court on Defendant/Movant
Bierwiler's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Bierwiler is a
federal prisoner proceeding pro se.
6, 2017, Bierwiler was advised that most of his allegations
were conclusory or speculative in nature. He was permitted to
supplement his § 2255 motion to explain what facts or
arguments he believes counsel should have made. Order (Doc.
797) at 2. Bierwiler responded briefly on July 17, 2017. The
Court will review the supplement along with the original
reviewing the motion, the Court has refreshed its memory by
consulting the rough transcript of Bierwiler's sentencing
hearing. Pursuant to 28 U.S.C. § 753(f), the United
States will be required to order the transcript for the
Court's file and for Bierwiler.
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.
pled guilty to one count of conspiracy to distribute a
substance containing a detectable amount of methamphetamine,
a violation of 21 U.S.C. §§ 846 and 841(a)(1).
See Superseding Information (Doc. 58) at 1-2; Plea
Agreement (Doc. 57) at 2 ¶ 2; Minutes (Doc. 60).
sentencing, Bierwiler was held responsible for 49 grams of
actual methamphetamine, corresponding to a base offense level
of 28. See Presentence Report ¶ 19; Statement
of Reasons (Doc. 81) at 5. He received a three-level downward
adjustment for acceptance of responsibility for a total
offense level of 25. His criminal history category was III.
See Presentence Report ¶ 46. The advisory
guideline range was 70 to 87 months. See Id. ¶
100. Bierwiler was sentenced to serve 84 months in prison, to
be followed by a three-year term of supervised release.
See Judgment (Doc. 80) at 2-3; Minutes (Doc. 79).
did not appeal. His conviction became final on March 10,
2017. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). He timely filed his § 2255 motion on July 27,
2017. See 28 U.S.C. § 2255(f)(1); Houston
v. Lack, 487 U.S. 266, 276(1988).
Claims and Analysis
claims that counsel was ineffective in various respects.
These claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984). At this stage of the
proceedings, Bierwiler must allege facts sufficient to
support an inference (1) that counsel's performance fell
outside the wide range of reasonable professional assistance,
id. at 687-88, and (2) that there is a reasonable
probability that, but for counsel's unprofessional
performance, the result of the proceeding would have been
different, id. at 694.
Contents of Presentence Report
asserts that counsel "failed to get stricken from my PSI
all that the Judge removed at sentencing." Mot. §
2255 (Doc. 87) at 4; Supp. (Doc. 90) at 1 ¶ 2. The
Statement of Reasons (Doc. 81) is attached to the presentence
report. It states that certain paragraphs are edited or
redacted. A local rule requires the probation office to
provide to the Bureau of Prisons "both the
pre-sentencing version of the presentence report and any