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 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.
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.
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).
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).
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.
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).
Claims and Analysis A. Claims Waived by Guilty Plea
Counsel's Failure to Meet Rouillard's
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.
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
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. ...