United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS JUDGE
case comes before the Court on Defendant/Movant Lenray Jess
Two Two's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Two Two is a
federal prisoner proceeding pro se.
reviewing the motion, the Court has refreshed its memory by
consulting the rough transcript of Two Two's change of
plea and sentencing hearings. Pursuant to 28 U.S.C. §
753(f), the United States will be required to order the
transcripts for the Court's file and for Two Two.
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.
April 20, 2017, a grand jury indicted Two Two on one count of
aggravated sexual abuse, a violation of 18 U.S.C. §
2241(c) (Count 1), and one count of abusive sexual contact, a
violation of 18 U.S.C. § 2244(a)(5) (Count 2). Both
counts were based on a course of conduct from the fall of
2016 until January 23, 2017. The crimes were alleged to have
occurred on the Northern Cheyenne Indian Reservation.
Jurisdiction was predicated on the Indian Major Crimes Act,
18 U.S.C. § 1153(a). Assistant Federal Defender Gillian
Gosch was appointed to represent Two Two. See
Indictment (Doc. 1) at 2; Order (Doc. 7) at 1.
convicted on Count 1, Two Two faced a mandatory minimum
penalty of 30 years in prison and a maximum of life.
See 18 U.S.C. § 2241(c). If convicted on Count
2, Two Two faced no mandatory minimum and a maximum of life.
See id. § 2244(a)(5).
14, 2017, the parties filed a fully executed plea agreement.
Two Two agreed to plead guilty to Count 2, abusive sexual
contact, and the United States agreed to dismiss Count 1.
See Plea Agreement (Doc. 15) at 2 ¶ 2. The
parties agreed to a sentence of 180 months in prison under
Federal Rule of Criminal Procedure 11(c)(1)(C), meaning that
Two Two could withdraw his guilty plea and proceed to trial
if the Court rejected the plea agreement. See Id. at
2-3 ¶ 3. Two Two agreed to obtain a sex offender
evaluation and to share the results with the United States,
the Probation Office, and the Court. See Id. at 8
¶ 11. He also acknowledged that his conviction would
require him to register as a sex offender. See Id.
at 8-9 ¶ 12. Two Two pled guilty in open court on June
27, 2017. See Minutes (Doc. 18).
sentencing, the Court adopted the presentence report without
change and accepted the plea agreement. Two Two's
advisory guideline range was 235 to 293 months. See
Statement of Reasons (Doc. 34) at 1 §§ I, III.
Pursuant to the plea agreement, Two Two was sentenced to
serve 180 months in prison, to be followed by a ten-year term
of supervised release. See Judgment (Doc. 33) at
did not appeal. His conviction became final on November 23,
2017. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). He timely filed his § 2255 motion on January 19,
2018. See 28 U.S.C. § 2255(f)(1).
Claims and Analysis
claims that counsel was ineffective in various respects.
These claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984). At this stage of the
proceedings, Two Two must allege facts sufficient to support
an inference (1) that counsel's performance fell outside
the wide range of reasonable professional assistance,
id at 687-88, and (2) that there is a reasonable
probability that, but for counsel's unprofessional
performance, the result of the proceeding would have been
different, id. at 694.
Indian Status and Jurisdiction
common theme among all of Two Two's allegations is the
proposition that criminal penalties are "targeted"
at Indian persons and constitute discrimination on the basis
of "race and class." If these allegations were
true, "the very initiation of the proceedings"
against Two Two would "operatef] to deprive him of due
process of law." See Class v. United States,
U.S., 138 S.Ct. 798, 803 (2018) (quoting Blackledge v.
Perry, 417 U.S. 21, 30-31 (1974)). Regardless of his
guilty plea, he would be entitled to relief. But they are not