United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS UNITED STATES DISTRICT COURT
case comes before the Court on Defendant/Movant Eugenia Ann
Rowland's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Rowland 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
Claim and Analysis
pled guilty to second-degree murder, a violation of 18 U.S.C.
§ 1111(a). On February 12, 2015, she was sentenced to
serve 264 months in prison, to be followed by a five-year
term of supervised release.
now seeks resentencing on the grounds that the Supreme Court
has found a portion of the definition of "crime of
violence" in 18 U.S.C. § 16(b) unconstitutionally
vague. See Mot. § 2255 (Doc. 141) at 4
(referring to Sessions v. Dimaya, __ U.S. __, 138
S.Ct. 1204 (2018)). Dimaya concerned the legal
definition of a term of art that appears in a number of
federal statutes and also in the version of the United States
Sentencing Guidelines that was in effect at the time of
that definition did not play any role in Rowland's case.
The elements of second-degree murder were set forth at the
time of Rowland's guilty plea. See Change of
Plea Tr. Cont'd. (Doc. 114) at 13:5-14:3; Am. Offer of
Proof (Doc. 86) at 2-3. They did not involve any definition
of a "crime of violence." The statutory penalty
range, "any term of years or life," 18 U.S.C.
§ 1111(b), was set by conviction on the elements, not by
any other factor involving the phrase "crime of
In the advisory guideline calculation, the base offense level
of 38 applies to all persons convicted of second-degree
murder. Rowland received a two-level upward adjustment for
obstruction of justice and a two-level decrease for
acceptance of responsibility. She had zero criminal history
points for a criminal history category of I. The advisory
guideline range was 235 to 293 months. None of those
decisions depended on the definition of a "crime of
violence." See Presentence Report ¶¶
44-59; U.S.S.G. §§ 2A1.2(a), 3C1.1, 4A1.2(e)(3)
(Nov. 1, 2014). Rowland's sentence, imposed under 18
U.S.C. § 3553(a), was in the middle of the guideline
range and, again, involved no interpretation or application
of the phrase "crime of violence." See
Sentencing Tr. (Doc. 115) at 57:17-62:15.
would agree that Rowland committed a violent crime. But the
legal definition of a "crime of violence" as the
phrase is used in federal law had no bearing on her case. Her
motion under § 2255 is denied for lack of merit.
Certificate of Appealability
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a), Rules Governing § 2255
Proceedings. A COA should issue as to those claims on which
the petitioner makes "a substantial showing of the
denial of a constitutional right." 28 U.S.C. §
2253(c)(2). The standard is satisfied if "jurists of
reason could disagree with the district court's
resolution of [the] constitutional claims" or
"conclude the issues presented are adequate to deserve
encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
of reason could find nothing to debate here. The phrase
"crime of violence" played no role in Rowland's
case. The Supreme Court's decision in Sessions v.
Dimaya,138 S.Ct. 1204 ...