United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEAL ABILITY
P. Watters United States District Court Judge
case comes before the Court on Defendant/Movant Rocky Rollin
Bettin's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Bettin is a
federal prisoner proceeding pro se.
transcripts of Bettin's change of plea hearing, held on
September 21, 2017, and sentencing hearing, held on February
14, 2018, are needed to decide the issues presented in the
motion. The United States will be directed to order the
transcripts for the record and copies for Bettin.
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.
28, 2017, a grand jury indicted Bettin on one count of
conspiracy to distribute and possess with intent to
distribute at least 500 grams of a substance containing
methamphetamine between December 2016 and June 2017, a
violation of 21 U.S.C. § 846 (Count 1); and one count of
possessing 500 or more grams of a substance containing
methamphetamine with intent to distribute it, a violation of
21 U.S.C. § 841(a)(1) (Count 2). Both counts were based
on a highway patrol officer's traffic stop in Missoula,
which resulted in seizure of 1, 502 grams of a crystalline
substance that proved to be methamphetamine. See
Indictment (Doc. 11) at 2-3. Assistant Federal Defender
Gillian Gosch was appointed to represent Bettin. See
Order (Doc. 7).
parties reached a plea agreement. On August 28, 2017, the
United States filed a superseding information charging Bettin
with a single count of conspiracy to distribute or possess
with intent to distribute 50 or more grams of a substance
containing methamphetamine between December 2016 and June
2017, a violation of 21 U.S.C. § 846. See
Superseding Information (Doc. 25) at 1-2. Bettin agreed to
plead guilty to the superseding information, and the United
States conditionally agreed to recommend a three-level
reduction in the offense level for acceptance of
responsibility. The parties agreed to recommend a base
offense level of 36 based on the amount of methamphetamine
Bettin and others involved in the conspiracy distributed or
possessed with intent to distribute. See Plea
Agreement (Doc. 26) at 2 ¶ 2, 6-7 ¶ 6. On September
21, 2017, Bettin pled guilty in open court.
presentence report was prepared. The report noted that two
other persons had been arrested in January and February 2017
and identified Bettin as their supplier. See
Presentence Report ¶¶ 14-15. While Bettin disputed
their estimates of the amount of methamphetamine he provided
them, he did not dispute that he dealt with them. See,
e.g., Offer of Proof (Doc. 24) at 3-4.
sentencing, consistent with the plea agreement, the base
offense level was 36, corresponding to 1.5 to 4.5 kilograms
of actual methamphetamine. With a three-level downward
adjustment for acceptance of responsibility, the total
offense level was 33. Bettin's criminal history category
was V. See Presentence Report ¶¶ 27-37,
38-55. The advisory guideline range was 210 to 262 months.
See U.S.S.G. ch. 5 Part A (Sentencing Table). Due
principally to his serious lack of guidance as a youth and
his addiction, Bettin was sentenced to serve 180 months in
prison, to be followed by a five-year term of supervised
release. See Statement of Reasons (Doc. 41) at 1
§ III, 3 § VI(C), 4 § VIII; Am. Judgment (Doc.
42) at 2-3.
did not appeal. His conviction became final on March 1, 2018.
See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He
timely filed his § 2255 motion on or before December 28,
2018. See 28 U.S.C. § 2255(f)(1).
Claim and Analysis
contends trial counsel provided ineffective assistance during
plea negotiations. This claim is governed by Strickland
v. Washington, 466 U.S. 668 (1984). At this stage of the
proceedings, Bettin must allege facts sufficient to support
an inference (1) that counsel's performance fell outside
the wide range of reasonable professional assistance,
id. at 687-88, and (2) that there is a reasonable
probability that, but for counsel's unprofessional
performance, the result of the proceeding would have been
different, id. at 694.
alleges "there were multiple instances of contradiction
when it came to the weight and the purity of the
methamphetamine involved" in the case. Mot. § 2255
(Doc. 44) at 8. He also asserts his case was litigated at the
time when a laboratory technician at the Montana State Crime
Lab in Missoula was ...