United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY MOTION AND GRANTING
Morris United States District Judge.
matter comes before the Court on Defendant/Movant
Fourhorns' motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Fourhorns filed an
amended motion on April 19, 2017. The United States has filed
an answer and Fourhorns has filed a reply.
faced trial on one count of bank robbery in violation of 18
U.S.C. § 2113(a) (Count 1); one count of theft in
violation of 18 U.S.C. § 661 (Count 2); and one count of
conspiracy to commit witness tampering and one count of
witness tampering in violation of 18 U.S.C. §§
1512(b)(3) and (k) (Count 3 and 4). See Superseding
Indictment (Doc. 11) at 2-4. Assistant Federal Defender Hank
Branom represented Fourhorns. See Order (Doc. 5).
trial was scheduled to begin at 9:00 a.m. on November 3,
2014. It was delayed because the parties reached a plea
agreement. The United States filed an offer of proof at 11:09
a.m. (Doc. 38). The Court convened a change of plea hearing
at 11:32 a.m. In exchange for dismissal of Counts 2, 3, and
4, Fourhorns pled guilty to Count 1. The parties agreed that
a sentence of 210 months represented the appropriate
disposition of the case. See Plea Agreement (Doc. 40) at 2-3
¶¶ 2-4; Fed. R. Crim. P. 11(c)(1)(C); Minutes (Doc.
United States Probation Office prepared a presentence report.
The advisory guideline range was 168 to 210 months. At
sentencing, Fourhorns stated that he thought the advisory
guideline range would be “210 to 260-something”
and decided to plead guilty to obtain a sentence at the low
end of the range. See Sentencing Tr. (Doc. 51) at
7:12-18. He explained, “I know whatever I say
you're going to give me the 210, but I just wanted to
point that out.” Id. at 7:18-19.
Court accepted the plea agreement and sentenced Fourhorns to
serve 210 months in prison, to be followed by a three-year
term of supervised release. See id. at 4:18-19,
11:18-23; Judgment (Doc. 44) at 2-3; Minutes (Doc. 43).
Ninth Circuit dismissed the appeal as waived by the plea
agreement. See Mem. (Doc. 52) at 2, United
States v. Fourhorns, No. 15-30021 (9th Cir. Sept. 18,
2015). Fourhorns' conviction became final on December 17,
2015. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012); S.Ct. R. 13(1), (3). He had at least one year from
that date-that is, until December 17, 2016-to file a motion
under 28 U.S.C. § 2255 motion. See 28 U.S.C.
Federal Defender David Ness represented Fourhorns. Fourhorns
filed a timely § 2255 motion on June 22, 2016, in which
he alleged that the Court wrongly designated him as a career
offender under the United States Sentencing Guidelines.
See Mot. § 2255 (Doc. 54). The Court stayed
consideration of the § 2255 motion pending the Supreme
Court's decision in Beckles v. United States,
No. 15-8544 (U.S. cert. granted June 27, 2016). See
Text Order (Doc. 56).
acting pro se, filed a timely supplement on
September 2, 2016. Fourhorns repeated the claim in the
original § 2255 motion and added several claims of
ineffective assistance of counsel. See Supp. §
2255 Mot. (Doc. 57). Ness withdrew due to a conflict of
interest. Attorney Daniel V. Donovan filed an amended motion
after the Beckles stay had been terminated.
Claims and Analysis
United States asserts the amended motion faces time-bars and
procedurally bars. The Court nevertheless deems it more
efficient to address the claims on their merits. See,
e.g., Lambrix v. Singletary, 520 U.S. 518, 525
(1997) (noting that judicial economy may counsel giving
constitutional issue priority over procedural issue).
alleges, in part, that his counsel provided ineffective
assistance of counsel. At this stage of the proceeding, to
support a claim of ineffective assistance of counsel,
Fourhorns must allege facts sufficient to support an
inference (1) that counsel's performance fell below an
objective standard of reasonableness, id. at 687-88,
and (2) that there is “a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different, ”
id. at 694. “[T]here is no reason . . . to
address both components of the inquiry if the defendant makes
an insufficient showing on one.” Id. at 697.
must at least allege “facts that point to a real
possibility of constitutional error” to warrant further
proceedings. Aubut v. Maine, 431 F.2d 688, 689 (1st
Cir. 1970), quoted in Calderon v. United States Dist.
Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (Schroeder,
Competence at Time of Trial
claims that his schizophrenia rendered him incompetent to
plead guilty. See Am. § 2255 Mot. (Doc. 63) at
5-11, 13-14 ¶ 9(a); see also Reply (Doc. 68) at
4-5 ¶¶ 9-11 & Ex. 1 (Doc. 68-1) at 1.
postconviction claim of incompetency generally may allege two
types of claims. The claim may allege either that evidence
known to the Court at the time of the plea colloquy should
have triggered a more searching inquiry of the
defendant's competence, or it may allege that, despite
having appeared competent, the defendant was incompetent in
fact at the time that he entered his guilty plea. As to the
first type of claim, the United States bears the burden of
proving that the defendant was competent at the time of his
plea. As to the second, the defendant bears the burden of
proving, by a preponderance of the evidence, that he was not
competent. See, e.g., James v. Singletary,
957 F.2d 1562, 1570-72 (11th Cir. ...