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United States v. Two Two

United States District Court, D. Montana, Billings Division

August 29, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
LENRAY JESS TWO TWO, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          SUSAN P. WATTERS JUDGE

         This 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.

         In 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.

         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). 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.

         II. Background

         On 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.

         If 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).

         On June 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).

         At 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 2-3.

         Two Two 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).

         III. Claims and Analysis

         Two Two 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.

         A. Indian Status and Jurisdiction

         A 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 true.

         1. Racial ...


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