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United States v. Gardner

United States District Court, D. Montana, Billings Division

November 19, 2018

UNITED STATES OF AMERICA, Plaintiff7Respondent,


          Susan P. Watters Judge

         This 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.

         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 June 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.

         On July 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).

         On 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).

         On 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).

         Sentencing 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.

         Again 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. § 2255(f)(1).

         III. Claims and Analysis

         Gardner 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.

         A. Role ...

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