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United States v. Morrison

United States District Court, D. Montana, Billings Division

October 22, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOSEPH CURTIS MORRISON, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters, United States Judge.

         This case comes before the Court on Defendant/Movant Morrison's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Morrison 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). 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 January 21, 2016, a grand jury indicted Morrison on one count of involuntary manslaughter, a violation of 18 U.S.C. § 1112(a). Jurisdiction arose under the Major Crimes Act, 18U.S.C. § 1153(a). See Indictment (Doc. l)at 1-2. Attorney Robert Kelleher was appointed to represent Morrison. See Order (Doc. 17).

         A jury was summoned and appeared for trial on August 1, 2016. At the final pretrial conference, however, Morrison said he had decided to plead guilty. He pled guilty in open court without a plea agreement. See Minutes (Doc. 33).

         A presentence report was prepared. The total offense level was 20, and the criminal history category was IV. The advisory guideline range was 51 to 63 months. See Statement of Reasons (Doc. 50) at 1 §§ 1(A), III; Presentence Report ¶¶ 17-25, 40, 112. Due to the egregious nature of the offense, Morrison was sentenced to serve 96 months in prison, the statutory maximum for involuntary manslaughter. See 18 U.S.C. § 1112(b) para. 2. When he is released from prison, Morrison will begin serving a three-year term of supervised release. See 18 U.S.C. § 3553(a); see also Minutes (Doc. 48); Judgment (Doc. 85) at 2-3; Sentencing Tr. (Doc. 61) at 31:21-37:25.

         Morrison appealed his sentence. It was affirmed. See Mem. (Doc. 64) at 2, United States v. Morrison, No. 16-30282 (9th Cir. Oct. 27, 2017).

         Morrison's conviction became final on January 25, 2018. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on June 19, 2018. See 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).

         III. Claims and Analysis

         Morrison 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, Morrison 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. "Gross Negligence" and Reckless Driving

         Morrison's first two claims, see Mot. ยง 2255 (Doc. 66) at ...


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