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 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.
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.
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.
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).
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.
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.
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.
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.
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).
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.