United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
L. CHRISTENSEN CHIEF DISTRICT JUDGE UNITED STATES DISTRICT
case comes before the Court on Defendant/Movant Green's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. On February 15, 2017, the Court of
Appeals granted Green leave to file a second or successive
motion in this Court. Green, represented by Assistant Federal
Defender David Ness, filed an amended motion shortly
thereafter. The United States has filed an answer and Green a
24, 2004, Green was indicted on drug and gun charges along
with twelve co-defendants. One of his co-defendants was
August 19, 2004, the grand jury handed down a Superseding
Indictment. Along with Garcia and others, Green was charged
with one count of conspiracy to distribute more than 50 grams
of actual methamphetamine between April and December 2003, a
violation of 21 U.S.C. § 846 (Count 1); one count of
distributing methamphetamine or possessing it with intent to
distribute in April 2003, a violation of 21 U.S.C. §
841(a)(1) (Count 2); three counts of possessing various
quantities of methamphetamine with intent to distribute,
violations of 21 U.S.C. § 841(a)(1) (Counts 3, 20, and
25); one count of possessing a firearm in furtherance of a
drug trafficking crime, violations of 18 U.S.C. §
924(c)(1) (Count 21); and one count of distributing more than
5 grams of actual methamphetamine on December 9, 2003, a
violation of 21 U.S.C. § 841(a)(1) (Count 24).
and Garcia were tried together before a jury in August 2005.
Twenty-seven witnesses testified, including five
co-defendants as well as other cooperating witnesses. The
jury deliberated for a day. Green was convicted of Counts 1,
3, 20, 21, 24, and 25.
sentencing, Green was held responsible for 2.638 kilograms of
methamphetamine. His total offense level was 34. With a
criminal history category of IV, his advisory guideline range
was 210 to 262 months. He was sentenced to serve 220 months
on Counts 1, 3, 20, 24, and 25, all to run concurrently, and
60 months on Count 21, consecutive to the other counts, for a
total term of 280 months. See Minutes (Docs. 514, 519);
Judgment (Doc. 521) at 2-3.
appealed. He argued that the evidence was not sufficient to
support his conviction on Count 21 and that his motion for
new trial, based on evidence of his below-average
intelligence, should have been granted. On August 10, 2007,
the Ninth Circuit Court of Appeals rejected his arguments and
affirmed his conviction. See United States v. Green, No.
06-30332 (9th Cir. Aug. 10, 2007) (unpublished mem. disp.)
petitioned the United States Supreme Court for a writ of
certiorari. The petition was denied on January 7, 2008. See
Green v. United States, No. 07-7695 (U.S. Jan. 7, 2008).
September 2, 2008, Green, acting pro se9 moved to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The motion and a certificate of appealability
were denied on October 31, 2008. The Court of Appeals denied
a certificate of appealability on December 21, 2009. See Mot.
§ 2255 (Doc. 598); Orders (Docs. 604, 674).
27, 2015, pursuant to 18 U.S.C. § 3582(c)(2) and
Amendments 782 and 788 to the United States Sentencing
Guidelines, Green's sentence on the drug counts was
reduced from 220 months to 176 months. With the remaining
60-month consecutive term on Counts 11 and 12, Green is now
serving a total prison sentence of 236 months. See [Second]
Am. Judgment (Doc. 863) at 1.
February 3, 2016, then-United States Attorney Michael W.
Cotter wrote a letter to many defendants, including Green,
who were prosecuted by Assistant United States Attorney James
Seykora and found guilty at trial. See Letter (Doc. 883-1 at
7-8). At the time the letter was sent, the United States was
aware of three cases in which Seykora failed to disclose
exculpatory or impeaching information or failed to correct
false testimony. The first of these cases was filed by
Green's co-defendant, Martin Garcia.
Co-Defendant Garcia's § 2255 Motion
August 14, 2009-about ten months after Green's §
2255 motion had been denied in this Court and while his
appeal was pending-Green's co-defendant Garcia,
represented by counsel Wendy Holton, filed a motion under 28
U.S.C. § 2255. Among other claims, Garcia asserted that
his trial counsel was ineffective because he failed to
impeach an important witness, Gwynne Black, by showing that
she received immunity for her testimony and by demonstrating
discrepancies among her grand jury testimony, her debriefing
with case agents, and her trial testimony. He made similar
allegations with respect to witness Prem, Black's mother,
and he alleged the United States violated his right to due
process by failing to correct the record regarding
Black's immunity, contrary to Napue v. Illinois, 360 U.S.
264 (1959). See Order (Doc. 746) at 1-2, 26.
trial testimony at issue came at the end of Black's
testimony on ...