United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
Morris, United States District Court Judge.
case comes before the Court on Defendant/Movant Sundown
William Nelson's motion to vacate, set aside, or correct
his sentence, pursuant to 28 U.S.C. § 2255. Nelson is a
federal prisoner proceeding pro se.
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). 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.
pled guilty to one count of conspiracy to distribute and
possess with intent to distribute a substance containing 50
or more grams of actual methamphetamine, a violation of 21
U.S.C. §§ 846 and 841(a)(1). The advisory guideline
range was 188 to 235 months. The Court sentenced Nelson to
serve 120 months in prison, concurrent with a state sentence
and followed by a five-year term of supervised release.
See Plea Agreement (Doc. 85) at 2 ¶ 2; Judgment
(Doc. 102) at 1-3; Statement of Reasons (Doc. 103) at 1
now contends counsel provided ineffective assistance of
counsel because he failed to move to reduce the federal
sentence to account for time in custody before the federal
sentence hearing. See Mot. § 2255 (Doc. 108) at
4. Claims of ineffective assistance of counsel are governed
by Strickland v. Washington, 466 U.S. 668 (1984). At
this stage of the proceedings, Nelson must allege facts
sufficient to support an inference (1) that counsel's
performance fell below an objective standard of
reasonableness, id. at 687-88, and (2) that there is
“a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different, ” id. at 694.
claims counsel promised he would receive credit for all time
served in custody before his federal sentencing hearing. Even
if true, counsel's performance was not unreasonable.
Nelson admitted trafficking in a substance containing a total
of at least 50 grams of actual methamphetamine. See
Id. at 4 ¶ 5 para. 4. The statutory mandatory
minimum sentence was 120 months. See 21 U.S.C.
§ 841(b)(1)(A)(viii). Nelson also entered into a plea
agreement calling for a sentence of 120 months. See
Plea Agreement at 6 ¶ 7. Had counsel asked for a lesser
sentence, he would have breached the plea agreement. Nelson
has not identified a good reason (or even a bad reason) to
breach the plea agreement. See also Plea Agreement
at 3 ¶ 4, 8 ¶ 13. Nelson's allegations do not
meet the first prong of the Strickland test.
statutory mandatory minimum term also precluded a sentence
less than 120 months. Nor do the circumstances suggest a
reasonable probability that Nelson would have been acquitted
or obtained a lesser sentence if he had not entered into the
plea agreement. Had Nelson been convicted at trial, the
advisory guideline range likely would have been 262 to 327
months. See Presentence Report ¶¶ 48-49;
U.S.S.G. § 3E1.1 & ch. 5 Part A (Sentencing Table).
Nelson's allegations also fail to meet the second prong
of the Strickland test.
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11(a), Rules Governing § 2255
Proceedings. Nelson's allegations do not make a showing
of any substance that he was deprived of a constitutional
right. See 28 U.S.C. § 2253(c)(2). Reasonable
jurists would find no basis to encourage further proceedings.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). A COA is not warranted.
IT IS HEREBY ORDERED as follows:
Nelson's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255 (Doc. 108) is DENIED.
certificate of appealability is DENIED. The Clerk of Court
shall immediately process the appeal if ...