United States District Court, D. Montana, Billings Division
ORDER RECHARACTERIZING AND DENYING § 2255 MOTION
AND DENYING CERTIFICATE OF APPEALABILITY
P. WATTERS, JUDGE
4, 2018, Defendant Edwards filed a motion to dismiss the
superseding information underlying his guilty plea of March
30, 2017. See Mot. (Doc. 60). Edwards, a federal
prisoner proceeding pro se, was notified that the Court
intended to recharacterize his motion as a motion under 28
U.S.C. § 2255. He was also given an opportunity to
withdraw it or to add claims. See Order (Doc. 61) at
1-2. Edwards responded on June 29, 2018, agreeing to
recharacterization. See Resp. to Order (Doc. 62) at
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.
was indicted on one count of conspiring to possess with
intent to distribute 500 or more grams of a substance
containing methamphetamine, a violation of 21 U.S.C.
§§ 846 and 841(a)(1) (Count 1); possession, between
December 2015 and June 2016, of 500 grams or more of the same
with intent to distribute it, a violation of 21 U.S.C. §
841(a)(1) (Count 2); distribution, in June 2016, of a
substance containing a detectable amount of methamphetamine,
a violation of 21 U.S.C. § 841(a)(1) (Count 3); and
possessing a firearm in furtherance of the drug trafficking
crimes alleged in Counts 1 and 2, a violation of 18 U.S.C.
§ 924(c)(1)(A) (Count 4). There was also a forfeiture
allegation. See Indictment (Doc. 1) at 1-5. If
convicted of all counts, Edwards faced a total mandatory
minimum sentence of 15 years in prison and a maximum of life.
See 21 U.S.C. § 841(b)(1)(A)(viii); 18 U.S.C.
§ 924(c)(1)(A)(i), (D)(ii).
to a plea agreement, Edwards pled guilty to a superseding
information charging him with one count of conspiring to
possess with intent to distribute 50 grams or more of a
substance containing methamphetamine. Conviction of that
charge subjected him to a mandatory minimum sentence of five
years and a maximum of 40 years. See Superseding
Information (Doc. 40) at 1-2; 21 U.S.C. §§ 846,
was sentenced to serve 135 months in prison, to be followed
by a five-year term of supervised release. See
Minutes (Doc. 53); Judgment (Doc. 54) at 2-3.
did not appeal. His conviction became final on August 16,
2017. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). He timely filed his (recharacterized) motion under 28
U.S.C. § 2255 on June 4, 2018. See 28 U.S.C.
Claims and Analysis
claims the Court lacked jurisdiction because the charging
documents were not properly signed and because 21 U.S.C.
§ 841 prohibits only the single act of manufacturing and
then distributing a controlled substance, not separate acts
of manufacturing and distributing. He also claims he
"never personally was presented with a charging
document." Mot. (Doc. 60) at 11.
18 U.S.C. § 3231, this Court has subject-matter
jurisdiction over alleged violations of federal drug
trafficking and firearms laws. No. argument against
jurisdiction is available here.