United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
Morris, United States District Court Judge
case comes before the Court on Defendant/Movant Dallas
Lawrence's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Lawrence 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). 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.
jury indicted Lawrence on September 4, 2014, charging him
with one count of strangulation, a violation of 18 U.S.C.
§ 113(a)(8) (Count 1), and one count of assault with
intent to commit murder, a violation of 18 U.S.C. §
113(a)(1) (Count 2), both committed “on or about May
2014.” The grand jury handed down a superseding
indictment on October 20, 2014. Counts 1 and 2 remained the
same. The grand jury charged another count of strangulation
and another count of assault with intent to commit murder,
this time “on or about March 2014, ” Superseding
Indictment (Doc. 23) at 3 (Counts 3 and 4). The grand jury
added a count of assault with a dangerous weapon and with
intent to do bodily harm in violation of 18 U.S.C. §
113(a)(3) (Count 5). Id. at 4. The grand jury also
added two counts of aggravated sexual abuse in violation of
18 U.S.C. § 2241(a)(1) (Counts 6 and 7), both committed
“on or about early summer 2014.” Id. The
Major Crimes Act, 18 U.S.C. § 1153(a), provided
jurisdiction for all counts. See Id. at 1-2
trial commenced on January 26, 2015. After deliberating for
about two and a half hours on January 28, 2015, the jury
returned guilty verdicts on each count. See Minutes
(Docs. 73, 76, 77); Verdict (Doc. 84).
U.S. Probation Office prepared a presentence report. Under
the rules pertinent to grouping of counts, see U.S.S.G.
§ 3D1.1(a), the total offense level was 40. Lawrence
previously had been convicted of two crimes of violence and
qualified as a career offender. Even without career offender
designation, however, the advisory guideline range would have
remained 360 months to life in prison. See Presentence Report
¶¶ 68, 77-78, 138; U.S.S.G. ch. 5 Part A
(Sentencing Table). The United States sought a sentence of
life in prison. See U.S. Sent. Mem. (Doc. 93) at 2, 7.
Counsel for Lawrence disputed the career offender designation
and also sought a downward variance to 240 months. See Def.
Resp. (Doc. 98) at 11.
Court determined that Lawrence qualified as a career offender
under the guidelines, see Sentencing Tr. (Doc. 120) at
7:9-14. The Court also determined, however, that the career
offender designation overstated Lawrence's criminal
history. The Court varied downward from the advisory
guideline range to achieve the objectives of 18 U.S.C. §
3553(a). The Court sentenced Lawrence to a total term of 240
months in prison to be followed by a five-year term of
supervised release. See Minutes (Doc. 100); Judgment (Doc.
102) at 2-3; Statement of Reasons (Doc. 103) at 3.
appealed. He challenged the sufficiency of the evidence to
support conviction on each count. He also challenged the
sufficiency of the superseding indictment. The Ninth Circuit
affirmed on May 11, 2016. See Mem. (Doc. 115) at
1-4, United States v. Lawrence, No. 15-30122 (9th
Cir. May 11, 2016).
filed a petition for writ of certiorari in the
Supreme Court. The Supreme Court denied the petition on
October 3, 2016. See Clerk Letter (Doc. 118) at 1.
conviction became final on October 3, 2016. See Gonzalez
v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his
§ 2255 motion on September 18, 2017. See 28
U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S.
266, 276 (1988); Br. in Supp. (Doc. 122) at 42.
Claims and Analysis
claims that counsel provided ineffective assistance in
various respects at trial and on appeal. Strickland v.
Washington, 466 U.S. 668 (1984), governs claims of
ineffective assistance of counsel. See also Smith v.
Robbins, 528 U.S. 259, 285 (2000).
mistakenly states that he is “required to make an offer
of proof and facts to support” his allegations.
See, e.g., Mot. for Discovery (Doc. 121-2) at 3
¶ 5, 4 ¶ 13 (Lawrence Decl.). At this stage of the
proceedings, the Court assumes as true the facts that
Lawrence alleges. His allegations simply must 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 exists a
reasonable probability that, but for counsel's
unprofessional performance, the result of the proceeding
would have been different. Id. at 694.
also moved for leave to exceed the word limit imposed on
motions. Word limits do not apply to § 2255 motions.
See D. Mont. L.R. 7.1(a) (Mar. 1, 2016). The Court
has reviewed everything Lawrence filed.