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United States v. Fourhorns

United States District Court, D. Montana, Great Falls Division

March 6, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Brian Morris United States District Judge.

         This 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.

         I. Background

         Fourhorns 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).

         Bench 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. 39).

         The 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.

         The 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). Fourhorns appealed.

         The 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. § 2255(f)(1).

         Assistant 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).

         Fourhorns, 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.

         II. Claims and Analysis

         The 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).

         Fourhorns 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.

         Fourhorns 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, C.J., concurring).

         A. Competence at Time of Trial

         Fourhorns 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.

         A 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. ...

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