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United States v. Romo

United States District Court, D. Montana, Billings Division

August 7, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
FELIS LUSIANO ROMO, 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 Romo's motion to vacate, set aside, or correct the sentence, pursuant to 28 U.S.C. § 2255. Romo is a federal prisoner proceeding pro se.

         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 "it is the duty of the court to screen out frivolous applications and 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

         Romo initially appeared in this Court on a complaint charging that he was a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). See Compl. (Doc. 1) at 3; Minutes (Doc. 3). On December 5, 2013, he was indicted on that charge. See Indictment (Doc. 9) at 1-2. Attorney Lance Lundvall was appointed to represent him. See Order (Doc. 8).

         On January 16, 2014, Romo was indicted on one count of conspiracy to possess 50 grams or more of a substance containing methamphetamine, with intent to distribute it, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); one count of the substantive offense, a violation of 21 U.S.C. § 841(a)(1) (Count 2); and one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 3). See Superseding Indictment (Doc. 14) at 2-4.

         Counsel filed a motion to suppress a firearm and other evidence obtained when police entered a camper occupied by Romo. The motion was denied. See Mot. and Br. in Supp. (Docs. 20, 21); Resp. Br. (Doc. 23); Reply (Doc. 26); Order (Doc. 30).

         Trial commenced on April 23, 2014. After hearing about four hours of testimony, the jury found Romo guilty on all three counts of the Superseding Indictment. See Minutes (Docs. 49, 51); Verdict (Doc. 52) at 1-3.

         On October 17, 2014, Romo was sentenced to serve a total of 188 months in prison, to be followed by a five-year term of supervised release. See Minutes (Doc. 76); Judgment (Doc. 77) at 2-3. His sentence was later reduced to 162 months under Amendments 782 and 788 to the Sentencing Guidelines. See Am. Judgment (Doc. 111) at 1.

         Romo appealed. He challenged the denial of his motion to suppress and his criminal history category under the advisory sentencing guidelines. The Court of Appeals affirmed his conviction and sentence on June 14, 2016. See Mem. (Doc. 100) at 4. Romo filed a petition for writ of certiorari. It was denied on October 17, 2016. See Clerk Letter (Doc. 105).

         Romo's conviction became final on October 17, 2016. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on June 19, 2017. See 28 U.S.C. § 2255(f)(1).

         III. ...


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