United States District Court, D. Montana, Billings Division
ORDER RECHARACTERIZING AND DENYING § 2255 MOTION
AND DENYING CERTIFICATE OF APPEALABILITY
P. Watters United States District Judge.
case comes before the Court on Defendant/Petitioner
Terry's petition for writ of error coram nobis
(Doc. 49). Terry is a federal prisoner proceeding pro se.
March 26, 2018, Terry was advised the Court intended to
recharacterize his petition as a motion under 28 U.S.C.
§ 2255. He was given an opportunity to add any claims he
intended to bring under § 2255 or to withdraw the
petition. See Order (Doc. 42); see also Castro
v. United States, 540 U.S. 375, 377 (2003). On April 18,
2018, he was also asked to clarify some of his allegations.
See Order (Doc. 45). He responded to that order and
submitted some additional claims as well.
states he cannot review his presentence report. The report
and the Court's judgment and statement of reasons can be
reviewed with staff at the prison, such as a unit manager. As
explained below, the Court will also require the United
States to provide transcripts of the change of plea and
asserts that he is entitled to proceed with his petition
instead of a § 2255 motion. See, e.g., Resp. to
Order (Doc. 43) at 1-2. He is mistaken. A coram
nobis petition may be available when a petitioner is no
longer in custody, but it is not available when a petitioner
is in custody, as Terry is, and has a remedy under §
2255. See Matus-Leva v. United States, 287 F.3d 758,
760-61 (9th Cir. 2002).
Court has jurisdiction to hear Terry's claims under 28
U.S.C. § 2255. As he has been advised of impending
recharacterization and had an opportunity to respond and add
claims, see Castro v. United States, 540 U.S. 375,
377 (2003), his petition is recharacterized as a motion under
28 U.S.C. § 2255.
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.
December 22, 2016, Terry was indicted on one count of being a
felon in possession of six firearms, a violation of 18 U.S.C.
§ 922(g)(1). He pled guilty, without a plea agreement,
on February 28, 2017.
presentence report was prepared. The base offense level was
20.Terry received a four-level enhancement
because he possessed nine firearms and a three-level
reduction for acceptance of responsibility. With a total
adjusted offense level of 21 and a criminal history category
of I, the advisory guideline range was 37 to 46 months. Terry
was sentenced to serve 30 months in prison, to be followed by
a three-year term of supervised release. See
Judgment (Doc. 36) at 2-3; Minutes (Doc. 35).
did not appeal. His conviction became final on July 25, 2017.
See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He
timely filed on January 16, 2018. See 28 U.S.C.