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United States v. McChesney

United States District Court, D. Montana, Billings Division

February 28, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
BENJAMIN QUINN McCHESNEY, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters, Judge

         This case comes before the Court on Defendant/Movant Benjamin Quinn McChesney's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. McChesney is a federal prisoner proceeding pro se.

         I. Background

         A jury convicted McChesney of stealing firearms from a licensed dealer, a violation of 18 U.S.C. § 924(m) (Count 2); stealing firearms that had been transported in interstate and foreign commerce, a violation of 18 U.S.C. § 924(1) (Count 3); and possessing stolen firearms, a violation of 18 U.S.C. § 922(j) (Count 4). See Indictment (Doc. 1) at 4-5;[1] Verdict (Doc. 127) at 1.

         At sentencing* McChesney's advisory guideline range was 87 to 108 months. See Statement of Reasons (Doc. 164) at 1 § III. The statutory maximum for each count of conviction was ten years. See 18 U.S.C. § 924(a)(2), (1), (m). On October 30, 2013, McChesney was sentenced to serve 120 months in prison on each count, all concurrently, to be followed by a three-year term of supervised release. See Judgment (Doc. 163) at 2-3.

         McChesney appealed. The Court of Appeals affirmed his conviction on September 11, 2017. See United States v. McChesney, 871 F.3d 801, 810 (9th Cir. 2017).

         McChesney's conviction became final on December 10, 2017. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on September 6, 2018. See Mot. § 2255 (Doc. 277) at 6 Decl. ¶ C; Houston v. Lack, 487 U.S. 266, 270 (1985).

         II. 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.

         III. Claims and Analysis

         McChesney raises three claims related to his sentence. In some respects he alleges the sentencing judge erred, and in others he alleges counsel was ineffective.

         Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). At this stage of the proceedings, McChesney 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. Placement in High Security Prison

         The Federal Bureau of Prisons ("BOP") decides where to place a defendant serving a prison term. See 18 U.S.C. ยง 3621(b). McChesney asserts that Judge Nielsen, who presided at trial and sentencing, "directed/recommended to the B.O.P. that he be placed in high security due to his criminal history and the fact that he had released firearms in the community." McChesney claims he discovered this recommendation "[u]pon reviewing his S.O.R.," ...


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