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United States v. Terry

United States District Court, D. Montana, Billings Division

June 13, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOHN EDWARD TERRY, Defendant/Petitioner.

          ORDER RECHARACTERIZING AND DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Judge.

         This 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.

         On 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.

         Terry 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 sentencing hearings.

         I. Recharacterization

         Terry 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).

         The 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.

         II. Preliminary Review

         Before 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.

         III. Background

         On 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.

         A presentence report was prepared. The base offense level was 20.[1]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).

         Terry 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. § 2255(f)(1).

         IV. ...


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