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 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.
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,
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.
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, 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
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).
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.
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).
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).
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
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 §
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).
Claims and Analysis
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, ...