United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS UNITED STATES DISTRICT COURT
case is before the Court on motion by Defendant/Movant
Cristobal Sanchez-Chavez ("Sanchez") to vacate, set
aside, or correct the sentence under 28 U.S.C. § 2255.
filed his motion pro se, alleging in part that a Title III
wiretap application was defective and that it was
unreasonable for counsel to fail to challenge it. Because he,
as a prisoner, would likely be unable to review the
application, the Court appointed new counsel to represent
him. Counsel was ordered to file an amended motion and was
permitted to file an Anders brief if appropriate.
See Orders (Docs. 152, 154, 164); see also
Anders v. California, 386 U.S. 728 (1967); Graves v.
McEwen, 731 F.3d 879, 879-80 (9th Cir. 2013).
31, 2018, counsel filed an amended § 2255 motion and
an Anders brief (Doc. 168). Sanchez had an
opportunity to respond, see Order (Doc. 164) at 3
¶ 3, but did not do so.
Court has reviewed the amended motion in light of the record
of the case. See Rule 4(b), Rules Governing §
2255 Proceedings. 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;
see also United States v. Rodriguez-Vega, 797 F.3d
781, 791-92 (9th Cir. 2015).
into account habeas counsel's investigation and his
statement that he was not able to support Sanchez's
allegations, the § 2255 motion will be denied.
October 3, 2013, a grand jury indicted Sanchez and
co-defendant Hector Magallon-Lopez ("Magallon") on
one count of conspiring to possess with intent to distribute
50 grams or more of actual methamphetamine and 500 grams or
more of a substance containing methamphetamine, a violation
of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1).
Magallon was also charged with one count of possessing the
same, a violation of 21 U.S.C. § 841(a)(1). See
Indictment (Doc. 1).
defendants stood trial before a jury. Both were convicted.
See Verdicts (Docs. 93, 94).
November 20, 2014, Sanchez was sentenced to serve 151 months
in prison, to be followed by a five-year term of supervised
release. See Minutes (Doc. 104); Judgment (Doc. 106)
appealed, challenging the sufficiency of the evidence and the
denial of a minor-role reduction at sentencing. On December
23, 2015, the Court of Appeals affirmed his conviction and
sentence. See Order (Doc. 151) at 3, United
States v. Sanchez-Chavez, No. 14-30251 (9th Cir. Dec.
conviction became final on March 22, 2016. See Gonzalez
v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his
§ 2255 motion on December 5, 2016. See 28
U.S.C. § 2255(f)(1).