United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters, United States District Court.
case comes before the Court on Defendant/Movant William
Krisstofer Wolfs motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Wolf is a
federal prisoner proceeding pro se.
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.
April 17, 2015, a grand jury indicted Wolf on one count of
possessing a machine gun, a violation of 18 U.S.C. §
922(o) (Count 1), and one count of possessing an unregistered
firearm, a violation of 26 U.S.C. §§ 5841, 5845(a),
5861(d), and 5871 (Count 2). Both counts were based on the
same weapon, an Izhmash Model Saiga-12 12-gauge shotgun
modified to fire automatically and "sawed off, "
that is, having a barrel length under 18 inches. See
Indictment (Doc. 7) at 2. Assistant Federal Defender Mark
Werner was appointed to represent Wolf. See Order (Doc. 4).
commenced on November 2, 2015. See Minutes (Doc. 53). The
jury found Wolf guilty on both counts. See Verdict (Doc. 58).
presentence report was prepared. At sentencing, an upward
adjustment for obstruction of justice was rejected, but the
Court adopted the remainder of the report without change.
Based on a total offense level of 22 and a criminal history
category of I, Wolfs advisory guideline range was 41 to 51
months. To fulfill the sentencing objectives of 18 U.S.C.
§ 3553(a), the Court varied upward to a sentence of 72
months in prison, to be followed by a three-year term of
supervised release. See Minutes (Doc. 84); Judgment (Doc. 85)
appealed. He challenged the denial of his pretrial motion in
limine as untimely and, based on the First Amendment and
Federal Rule of Evidence 403, denial of his motion to exclude
statements he made in a webcast that were admitted to show
his state of mind and to negate his defense of entrapment. He
also challenged the sufficiency of the evidence negating
entrapment and the reasonableness of his sentence. On May 24,
2017, Wolfs arguments were rejected and his conviction and
sentence were affirmed. See Mem. (Doc. 101) at 2-4,
United States v. Wolf, No. 16-30065 (9th Cir. May
filed a petition for writ of certiorari. The United States
Supreme Court denied the petition on October 2, 2017. See
Clerk Letter (Doc. 104) at 1.
conviction became final on October 2, 2017. See Gonzalez
v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his
§ 2255 motion on January 2, 2018. See 28 U.S.C. §
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, Wolf 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.
claims that counsel should have moved to suppress recordings
of statements Wolf made in webcasts "that had nothing to
do with a purchase of a shotgun." Mot. § 2255 (Doc.
105) at 5; Mem. (Doc. 106) at 3.
prove the crimes alleged, the United States had to prove,
among other things, that Wolf "knew" the firearm
"was a machine gun" or "a shot gun with a
barrel of less than 18 inches in length." Jury Instr.
Nos. 40, 43 (Doc. 59 at 44, 47). Wolf also presented a
defense of entrapment, so the United States had to prove,
beyond reasonable doubt, see Jacobson v. United
States,503 U.S. 540, 549 (1992), either that Wolf was
predisposed to commit the crime, or that government agents
did not induce Wolf to commit the crime, see, e.g.,
United States v. Gurolla,333 F.3d 944, 956 (9th
Cir. 2003); ...