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United States v. Bierwiler

United States District Court, D. Montana, Billings Division

February 22, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
LEVI MICHAEL BIERWILER, Defendant/Movant.

          ORDER DENYING§ 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND REQUIRING UNITED STATES TO ORDER TRANSCRIPT

          Susan P. Watters, United States District Court.

         This 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.

         On July 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 motion.

         In 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.

         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

         Bierwiler 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).

         At 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).

         Bierwiler 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).

         III. Claims and Analysis

         Bierwiler 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.

         A. Contents of Presentence Report

         Bierwiler 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 ...


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