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United States v. Delao

United States District Court, D. Montana, Billings Division

June 26, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
TOMAS ALEXANDER DELAO, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Court

         This case comes before the Court on Defendant/Movant Tomas Alexander Delao's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Delao is a federal prisoner proceeding pro se.

         Delao was advised that the allegations in his motion did not support an inference that counsel's performance was unreasonable or that the outcome of the proceeding could have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). He was given an opportunity to supplement some of his claims. He responded on October 23, 2017.

         In reviewing Delao's submissions, the Court has refreshed its memory by consulting the rough transcripts of his change of plea and sentencing hearings. Pursuant to 28 U.S.C. § 753(f), the United States will be required to order the transcripts for the Court's file and for Delao.

         I. 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.

         II. Background

         On April 17, 2015, Delao was indicted on one count of possessing with intent to distribute five grams or more of actual methamphetamine, a violation of 21 U.S.C. § 841(a)(1). The caption of the indictment stated that conviction would carry a mandatory minimum penalty often years and a maximum of life imprisonment. See Indictment (Doc. 1) at 1-2.[1] Delao appeared in this Court on April 30, 2015, on a writ of habeas corpus ad prosequendum. See Order (Doc. 6); Writ (Doc. 7); Minutes (Doc. 8). Assistant Federal Defender David Merchant was appointed to represent Delao. See Order (Doc. 10).

         On August 17, 2015, Delao pled guilty without a plea agreement. He did not dispute the facts set forth in the United States' Offer of Proof. See Minutes (Doc. 23); Offer of Proof (Doc. 20) at 3-4.

         On November 5, 2015, Delao, acting pro se, wrote a letter to the Court. He was dissatisfied with counsel's "lack of contact and communication" with him. See Letter (Doc. 25) at 1. He also referred to a statement by counsel that "they were looking to charge other people and even possibly my Mother if I didn't change my plea." Id. He noted that "my penalty from the day I was charged was 10 to life," and after he agreed to plead guilty "I was informed it was only 5 to 40." Id. at 1-2. He suggested these were "scare tactics" used against him. He also stated there were "a few things I need resolved, so that they cannot be used against me at a later time" and noted that he wanted a "global plea agreement" and a drug evaluation and a mental or emotional evaluation. See Letter at 2. Counsel received a copy of the letter. See Docket Entry (Doc. 25).

         On November 20, 2015, counsel moved to continue the sentencing hearing set for December 3, 2015. He explained that he had been out of the office on a personal matter and needed more time to review objections to the presentence report with Delao. See Mot. to Continue (Doc. 27) at 1-2. The motion was granted. See Order (Doc. 28).

         On December 1, 2015, counsel moved to withdraw from representation, stating that "Mr. Delao has had the benefit of advice from associates that has left no room for this relationship to be reestablished." Mot. to Withdraw (Doc. 29) at 2. The motion was granted and attorney Robert Kelleher was appointed to represent Delao. See Order (Doc. 30).

         Sentencing was held on February 4, 2016. Delao was held responsible for 150 to 500 grams of pure methamphetamine, corresponding to a base offense level of 32. He received a three-level downward adjustment for acceptance of responsibility for a total adjusted offense level of 29. His criminal history category was VI. The advisory guideline range was 151 to 188 months. Delao was sentenced to serve 120 months in prison, concurrent with his state sentences, and followed by a five-year term of supervised release. See Minutes (Doc. 34); Judgment (Doc. 35) at 2-3; Statement of Reasons (Doc. 36) at 4 § VIII.

         Delao did not appeal. His conviction became final fourteen days after judgment was entered, that is, on February 19, 2016. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on January 23, 2017. See 28 U.S.C. § 2255(f)(1).

         III. Claims and Analysis

         Delao contends that counsel were ineffective in several respects. Although the claims raised for the first time in response to the Court's order are not timely, ...


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