United States District Court, D. Montana, Great Falls Division
ORDER DENYING AND DISMISSING § 2255 MOTION AND
DENYING CERTIFICATE OF APPEALABILITY
L. CHRISTENSEN, CHIEF JUDGE
October 17, 2018, the Court revoked Defendant Fourstar's
term of supervised release and sentenced him to serve ten
months in prison, to be followed by 39 months' supervised
release. The following day, Fourstar, acting pro se despite
being represented by counsel, filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
was convicted in this Court in 2003 of one count of
aggravated sexual abuse, a violation of 18 U.S.C. §
2241(a). He was sentenced to serve 188 months in prison, to
be followed by a five-year term of supervised release.
See Judgment (Doc. 110) at 2-3. He discharged his
prison term on December 9, 2016. Since that time, his
supervised release has been revoked three times.
prior proceedings are relevant to the varying procedural
postures of the claims he now brings.
Claims to Be Raised on Direct Review
§ 2255 motion is the equivalent of a petition for writ
of habeas corpus. See, e.g., United States v.
Hayman, 342 U.S. 205, 210-19 (1952). "Habeas review
is an extraordinary remedy and will not be allowed to do
service for an appeal." Bousley v. United
States, 523 U.S. 614, 621 (1998) (quoting Reed v.
Farley, 512 U.S. 339, 354 (1994), and Sunal v.
Large, 332 U.S. 174, 178 (1947)). Consequently, district
courts do not consider § 2255 motions before a judgment
becomes final. See, e.g., Feldman v. Henman, 815
F.2d 1318, 1320 (9th Cir. 1987) (as amended); United
States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991); Rule
5, Rules Governing § 2255 Proceedings for the United
States District Courts, advisory committee's note
(quoting Womackv. United States, 395 F.2d 630, 631
(D.C. Cir. 1968)).
revocation judgment against Fourstar is not yet final.
Several of his claims must be raised on appeal if he intends
to pursue them. See Mot. § 2255 (Doc. 262) at 4
¶¶ A(1), B(1), (3); 5 ¶¶ B(3), C(1)-(2);
Fourstar Aff. at 10 ¶ 2 (in part), ¶ 3. These
claims are dismissed.
Second or Successive Claims
of Fourstar's claims challenge the legitimacy of his
original conviction and sentence. See Mot. §
2255 at 6 ¶ D(2); Fourstar Aff. (Doc. 262) at
Court lacks jurisdiction to consider these claims because
they could have been presented in one or the other of
Fourstar's previous § 2255 motions. See,
e.g., Mot. § 2255 (Doc. 130); Order (Doc. 131)
(June-December 2005); Mot. § 2255 (Doc. 138); Order
(Doc. 140) (October-November 2009); see also, e.g.,
Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
curiam); Hill v. Alaska, 297 F.3d 895, 899 (9th Cir.
Court of Appeals would have jurisdiction to decide whether to
authorize Fourstar to proceed with a successive motion under
§ 2255, and this Court may transfer a case to that court
to cure a want of jurisdiction. See 28 U.S.C. §
1631. Fourstar alleges one claim that might arguably be based
on a new constitutional rule. See 28 U.S.C. §
2255(h)(2). But his case had nothing to do with a definition
of "crime of violence" (or, for that matter,
"controlled substance offense"), see 18
U.S.C. § 2241(a); Presentence Report ¶¶ 19-36,
so the rule of Johnson v. United States, __
U.S. __, 135 S.Ct. 2551 (2015), could not apply. (Any such
claim would also be barred by United States v.
Blackstone, 903 F.3d 1020, 1028-29 (9th Cir. 2018).)
Fourstar does not suggest he has newly discovered evidence of
his innocence. See 28 U.S.C. § 2255(h)(1).
Because there is no reason to suppose Fourstar might meet
either of the two criteria of 28 U.S.C. § 2255(h),
transfer is not in the interest of justice.
claims are dismissed for lack of jurisdiction.
Rule 60(b) and Collateral Challenge to State
Fourstar claims the Court did not adequately address his
original § 2255 motion in 2005 because counsel refused
to assist him in challenging the validity of a prior state
sex offense conviction. See Mot. ...