United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters, United States Judge.
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.
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.
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).
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).
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
appealed his sentence. It was affirmed. See Mem.
(Doc. 64) at 2, United States v. Morrison, No.
16-30282 (9th Cir. Oct. 27, 2017).
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,
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, 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.
"Gross Negligence" and Reckless Driving
first two claims, see Mot. § 2255 (Doc. 66) at