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United States v. Rouillard

United States District Court, D. Montana, Great Falls Division

August 9, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
LESLIE WAYNE ROUILLARD, JR., Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Brian Morris United States District Court Judge

         This case comes before the Court on Defendant/Movant Leslie Wayne Rouillard's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Rouillard 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). 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.

         II. Background

         On March 17, 2017, a grand jury indicted Rouillard on one count of assault resulting in serious bodily injury, a violation of 18 U.S.C. § 113(a)(6) (Count 1), and one count of felony child abuse in violation of Mont. Code Ann. § 45-5-212(1) (Count 2). The Court possessed jurisdiction under the Major Crimes Act, 18 U.S.C. § 1153(a) and (b). The Court appointed Assistant Federal Defender Evangelo Arvanetes to represent Rouillard. See Indictment (Doc. 1); Order (Doc. 10).

         Te parties filed a plea agreement on June 22, 2017. Rouillard agreed to plead guilty to Count 2, felony child abuse, and the United States agreed to dismiss Count 1. See Plea Agreement (Doc. 26) at 2 ¶ 2. The parties agreed to recommend an advisory guideline range of four to ten months in prison. See id. at 6 ¶ 6 para. 2. Rouillard pled guilty in open court on July 11, 2017. See Minutes (Doc. 30).

         At sentencing, the Court adopted the presentence report without change and accepted the plea agreement. Rouillard's advisory guideline range was 33 to 41 months. See Statement of Reasons (Doc. 45) at 1 §§ I, III. Rouillard was sentenced to serve 7 months in prison, to be followed by a three-year term of supervised release. See Judgment (Doc. 44) at 2-3.

         Rouillard did not appeal. His conviction became final on November 3, 2017. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on February 6, 2018. See 28 U.S.C. § 2255(f)(1).

         III. Claims and Analysis A. Claims Waived by Guilty Plea

         1. Counsel's Failure to Meet Rouillard's Demands

         Several of Rouillard's claims allege that was forced to plead guilty because counsel did not defend him properly. Rouillard avers that he asked his trial counsel to obtain all the contracts or compacts and laws he describes in his motion, see Rouillard Aff. (Doc. 47-1) at 1 ¶ 1; Mot. § 2255 (Doc. 47) at 4-5 ¶ A; to retain an expert witness for mitigation purposes, see Rouillard Aff. at 1 ¶ 2; Mot. § 2255 at 4-5 ¶ B; to object to “vague and discriminatory charges” under various laws he identifies, see Rouillard Aff. at 2 ¶ 4; Mot. § 2255 at 7-8 ¶ D; and to object to “shoddy and prejudicial investigations” by law enforcement authorities, see Rouillard Aff. at 3 ¶ 6; Mot. § 2255 at 10-11 ¶ F.

         Rouillard states that he made all these requests in May 2017 and counsel “failed to comply, ” leaving him with “no other option but to plead guilty” in July. He also states that, if counsel had done any of these things, Rouillard “would not have plead guilty and would have elected to proceed to trial.” See, e.g., Rouillard Aff. at 1 ¶ 1; Mot. § 2255 at 10-11 ¶ F.

         Rouillard made remarkably specific requests of counsel, knew they were not fulfilled, and pled guilty anyway. At the change of plea hearing, he was asked whether counsel had investigated the case to Rouillard's satisfaction and whether he was satisfied with counsel's representation. He responded positively to both questions. Either Rouillard was satisfied with counsel's advice despite knowing that counsel had not done what Rouillard asked him to do, or Rouillard wanted to accept the very favorable plea offer, or both. ...


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