United States District Court, D. Montana, Butte Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
L. CHRISTENSEN, CHIEF JUDGE
case comes before the Court on Defendant/Movant Jennifer Lynn
Marshall's motion to vacate, set aside, or correct her
sentence, pursuant to 28 U.S.C. § 2255. Marshall is a
federal prisoner proceeding pro se.
transcript of the change of plea hearing, held August 2,
2018, is needed to decide the issues Marshall presents. The
United States will be required to order the transcript for
the record and to deliver a copy to Marshall. See 28
U.S.C. § 753(f).
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) ("Mcoto") (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
pled guilty to one count of conspiracy to distribute and
possess with intent to distribute 500 or more grams of
methamphetamine, a violation of 21 U.S.C. § 841(a)(1)
("Count 1"), and one count of possessing a firearm
in furtherance of the drug trafficking crime alleged in Count
1, a violation of 18 U.S.C. § 924(c)(1)(A) ("Count
5"). See Plea Agreement (Doc. 61) at 3 ¶
Count 1, the mandatory minimum sentence was 120 months,
see 21 U.S.C. § 841(b)(1)(A)(viii), and the
advisory guideline range was 87 to 108 months, see
Statement of Reasons (Doc. 114) § III. In addition,
Count 5 carried a mandatory minimum consecutive sentence of
60 months. See 18 U.S.C. § 924(c)(1)(A)(i),
United States requested a sentence of 96 months on Count 1,
plus a 60- month consecutive sentence on Count 5, for a total
prison sentence of 156 months. See U.S. Sentencing
Mem. (Doc. 110) at 6-7.
requested a sentence of 72 months. See Def.
Sentencing Mem. (Doc. 109) at 3, 18. She acknowledged the
sentence on Count 5 must be at least five years and must be
consecutive to any other sentence. See Id. at 7. She
also acknowledged that her conviction on Count 5 would likely
disqualify her from participating in the Residential Drug
Abuse Prevention ("RDAP") program. See Id.
at 3. To preserve any eligibility she might have, she asked
the Court to recommend RDAP enrollment. See Id. at
sentencing hearing, pursuant to 18 U.S.C. § 3553(a),
Marshall was sentenced on Count 1 to serve not 120 months,
not 96 months, and not 87 to 108 months, but 36 months, plus
60 months on Count 5, consecutive. Her total prison sentence
is 96 months, to be followed by a five-year term of
supervised release. The Court recommended that she
"participate in the Bureau of Prisons' 500-hour
Residential Drug Treatment Program if eligible."
See Am. Judgment (Doc. 117) at 2-3.
now states that she "did not know or understand the
law" and so believed she would serve Counts 1 and 5
concurrently. See Mot. § 2255 (Doc. 160) at 5,
6. She asks to have the two counts run concurrently. She also
asks that the gun charge, Count 5, be "dropped" so
that she will be eligible for RDAP. See id.dXA, 12.
Marshall pled guilty, she was told the sentence on Count 5
would be consecutive to the sentence imposed on any other
count. See Indictment (Doc. 2) at 2 (caption); Plea
Agreement (Doc. 61) at 2 ¶ 2. She was specifically
advised of this fact-twice-at the change of plea hearing.
conviction on Count 5 may well prevent her from benefiting
from the RDAP program. She will have other opportunities to
obtain substance abuse treatment, perhaps in prison, but
certainly on supervised release. See Am. Judgment
(Doc. 117) at 5 ¶¶ 4-8. Her motion to make Counts 1
and 5 concurrent and to "drop" Count 5 is denied.
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)).
makes no showing that she was denied a constitutional right.
She knew conviction on Count 5 under 18 U.S.C. § 924(c)
would result in a sentence consecutive to the sentence on any
other count, and she received a very significant reduction in
her sentence on Count 1. Her serious drug treatment needs are
addressed by the conditions of her supervised release and may
also be addressed by other programs available to her in
prison. She is not entitled to participate in the Residential
Drug Abuse Prevention program, and she is ...