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 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.
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; Verdict (Doc. 127) at 1.
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.
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).
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).
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.
Claims and Analysis
raises three claims related to his sentence. In some respects
he alleges the sentencing judge erred, and in others he
alleges counsel was ineffective.
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.
Placement in High Security Prison
Federal Bureau of Prisons ("BOP") decides where to
place a defendant serving a prison term. See 18
U.S.C. § 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.," ...