United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters Judge
case comes before the Court on Defendant/Movant Merrill Clark
Gardner's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Gardner 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.
17, 2015, law enforcement officers monitored a transaction in
which Gardner sold one and a quarter pounds of
methamphetamine to a confidential source. The following day,
while executing a search warrant at his residence, officers
found another pound and a quarter and $102, 000 in cash. In a
consent search of a neighbor's property, they found three
more packages of a pound and a quarter each. Gardner's
neighbor said Gardner paid him to store Gardner's meth on
the neighbor's property. See Aff. in Supp. of Compl.
(Doc. 1-1) at 1-3 ¶¶ 1-6; Sentencing Tr. (Doc. 88)
at 9:2-4. This methamphetamine, totaling over 2.8 kilograms,
was 97% pure. See Presentence Report ¶ 21.
1, 2015, a grand jury indicted Gardner on one count of
conspiring to possess with intent to distribute 500 grams or
more of a substance containing methamphetamine, a violation
of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); and
one count of possessing with intent to distribute the same, a
violation of 21 U.S.C. § 841(a)(1) (Count 2).
See Indictment (Doc. 4) at 2. The conspiracy was
alleged to have endured from January 2013 to June 2015.
Gardner retained attorneys Sandy Selvey and Paula Saye.
See Notice of Appearance (Doc. 14).
October 19, 2015, the parties filed a fully executed plea
agreement. Gardner agreed to plead guilty to Count 1. The
United States agreed to dismiss Count 2 and to recommend a
three-level reduction for acceptance of responsibility. Both
parties conditionally agreed to waive appeal of the sentence.
See Plea Agreement (Doc. 30) at 2-3 ¶¶
2-4, 5-6 ¶ 6, 6-7 ¶ 8. Gardner asked for
more time to consider and was given a two-week continuance.
See Minutes (Doc. 33); Change of Plea Tr. (Doc. 86)
at 4:17-21. On November 20, 2015, Gardner pled guilty in open
court. See Minutes (Doc. 36).
February 10, 2016, Selvey and Saye withdrew. A Criminal
Justice Act attorney, Brian Fay, was appointed in their
stead. See Order (Doc. 48). On April 18, 2016,
attorneys Larry Jent and Herman "Chuck" Watson
appeared for Gardner. See Notices of Appearance
(Docs. 57, 59).
was held on July 28, 2016. Gardner's base offense level
was 38. He received a four-level enhancement as a
leader/organizer and a three-level reduction for acceptance
of responsibility. His total offense level was 39. With a
criminal history category of I, his advisory guideline range
was 262 to 327 months. See Statement of Reasons
(Doc. 75) at 1 § III; Presentence Report ¶¶
26-36, 41-42, 67-68; U.S.S.G. ch. 5 Part A (Sentencing
Table). On the United States' motion, the offense level
was reduced by four levels, or about 30%. Gardner was
sentenced to serve 183 months in prison, to be followed by a
five-year term of supervised release. See Sentencing
Tr. (Doc. 88) at 43:6-13; Judgment (Doc. 74) at 2-3.
represented by new counsel, Gardner appealed the
leader/organizer enhancement. The sentence was affirmed.
See Mem. (Doc. 92) at 2, United States v.
Gardner, No. 16-30183 (9th Cir. Aug. 14, 2017).
Gardner's conviction became final on November 12, 2017.
See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He
timely filed his § 2255 motion on July 29, 2018.
See Mot. § 2255 (Doc. 95) at 12; 28 U.S.C.
Claims and Analysis
alleges his counsel were ineffective in various respects.
These claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984). At this stage of the
proceedings, Gardner must allege facts sufficient to support
an inference (1) that counsel's performance fell below an
objective standard of reasonableness, id. at 687-88,
and (2) that there is "a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different," id.
at 694. "[T]here is no reason ... to address both
components of the inquiry if the defendant makes an
insufficient showing on one." Id. at 697.