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 Jeffrey
Michael Leo's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Leo 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). 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.
pled guilty to possessing methamphetamine with intent to
distribute it, a violation of 21 U.S.C. § 841(a)(1). On
December 15, 2016, he was sentenced to serve 84 months in
prison, concurrent with two state sentences, and followed by
a three-year term of supervised release. See
Judgment (Doc. 50) at 1-3.
November 27, 2017, Leo filed a motion asking the Court to
"correct" the sentence under Federal Rule of
Criminal Procedure 36. The motion was denied because
"Leo's sentence is correct." See Mot.
(Doc. 57); Order (Doc. 58) at 2.
again claims that his sentence is incorrect because it should
have been reduced to ensure he received more credit for time
spent in custody before his federal sentencing hearing. The
Court has already found that Leo's sentence was correct.
See Order Denying Mot. to Correct Sentence (Doc.
also contends that his counsel believed "she did not
have to ask for time served in Federal Custody as everyone
gets it automatically." Leo Aff. (Doc. 59-1) at 1 ¶
6. Claims of ineffective assistance of counsel are governed
by Strickland v. Washington, 466 U.S. 668 (1984). At
this stage of the proceedings, Leo 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. "[T]here
is no reason ... to address both components of the inquiry if
the defendant makes an insufficient showing on one."
Id. at 697.
performance was not unreasonable, and there is no reasonable
probability Leo's sentence would be shorter if counsel
had done something differently. Her statement was correct.
Each day a defendant is in federal custody, he receives one
day's credit against his federal sentence. The State of
Montana paroled Leo to his federal detainer in March 2017.
See Board of Pardons & Parole, Final
Dispositions at 15 (Mar. 2017). At some point after that, he
was taken into federal custody. He was not in federal custody
when he appeared in this Court on a writ of habeas corpus
ad prosequendum. See Writ (Doc. 7); see also
Schleining v. Thomas, 642 F.3d 1242, 1243 n.l (9th Cir.
2011); Reynolds v. Thomas, 603 F.3d 1144, 1152 (9th
Cir. 2010), abrogated on other grounds by Setser v.
United States, 566 U.S. 231, 244 (2012)). Assuming he
has received credit against one or both of his state
sentences for that time, he is not entitled to credit against
the federal sentence as well. See 18 U.S.C. §
3585(b); United States v. Wilson, 503 U.S. 329, 333
(1992). Contrary to Leo's allegation, see Leo
Aff. (Doc. 59-1) at 2 ¶ 8, counsel did not cause him to
lose credit for that time.
sought credit for time served in pretrial custody that would
not be credited to Leo's federal sentence. See
Def. Sentencing Mem. (Doc. 40) at 15-16; U.S.S.G. §
5G1.3. But, as the discussion at the sentencing hearing
shows, not all the conduct taken into account at sentencing
was relevant conduct, so the Court was not persuaded to
reduce the sentence under § 5G1.3. As has already been
explained, see Order (Doc. 58) at 1-2, the Court
knew of the factors Leo identifies and imposed the sentence
it meant to impose. Leo's statement that counsel failed
to present an issue to the Court, see Mot. §
2255 at 4, is incorrect.
also contends that his federal sentence would have been
shorter in effect if he had not been arrested before he
completed a state treatment program. See Leo Aff. at
1 ¶ 5. This allegation is speculative and not