United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters United States Judge.
17, 2017, the Ninth Circuit Court of Appeals granted
Defendant Daniel Octavio Ulloa leave to file in this Court a
second motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. Appointed counsel Wendy Holton
appeared for Ulloa on July 25, 2017, and filed an amended
§ 2255 motion on July 20, 2018.
was initially charged on May 24, 1999, in a second
superseding indictment along with 12 codefendants.
See Second Superseding Indictment (Doc. 78). He was
arrested on May 9, 2001, in California. See Warrant
Return (Doc. 493). On November 15, 2001, the grand jury
handed down a third superseding indictment charging only
Ulloa, as other defendants' cases had already been
resolved. Ulloa was charged with one count of conspiring to
possess more than 1000 grams of methamphetamine with intent
to distribute it, a violation of 21 U.S.C. § 846 (Count
1); eleven counts of possessing specified quantities of
methamphetamine with intent to distribute it, a violation of
21 U.S.C. § 841(a)(1) (Counts 2-10, 13, and 14); and two
counts of using or carrying firearms during and in relation
to drug trafficking crimes, a violation of 18 U.S.C. §
924(c)(1) (Counts 11 and 12). See [Third]
Superseding Indictment (Doc. 519) at 2-13. Ulloa was
represented by pro hac vice counsel David Arredondo
and Tom Stanley. See, e.g., Minutes Apr. 8 and 9,
a seven-day jury trial in April 2002, the jury convicted
Ulloa on . all counts submitted to it, but the jury did not
find the United States proved the quantities it alleged in
Counts 4 and 5. See Verdict (Doc. 556) at 1-10.
Count 3 was dismissed before trial. See Minutes Apr.
8, 2002. The jury did not enter a verdict on it. See
Verdict (Doc. 556) at 2-3. Nonetheless, Ulloa stands
convicted and sentenced on Count 3. See Judgment
(Doc. 587) at 1; Am. Judgment (Doc. 636) at 1.
sentencing hearing was held on September 4, 2002. Ulloa faced
a mandatory minimum ten-year term on Counts 1, 2, 7, 8, 9,
10, 13, and 14; a five-year minimum on Counts 3, 4, and 6 as
well as Count 11, the first of the two § 924(c) counts;
and a minimum 25-year term on Count 12, the second §
924(c) count. See Presentence Report ¶¶
time, the Sentencing Guidelines were mandatory rather than
advisory. Ulloa was held responsible for 15 kilograms or more
of methamphetamine, representing "all the
methamphetamine charged by weight in Counts One through Ten,
Thirteen and Fourteen which totals 15.759 kilograms."
See Presentence Report ¶ 21. (Count 3 charged
only an ounce and a half.) On Counts 1-10 and 13 and 14,
Ulloa's base offense level was 38. He received a
four-point role enhancement. The total offense level was 42.
He had zero criminal history points, for a criminal history
category of I. Ulloa's guideline range on the drug counts
was 360 months to life in prison. On September 4, 2002, Ulloa
was sentenced to serve 360 months on those counts plus
consecutive terms of 60 months on Count 11 and 300 months on
Count 12. See Judgment (Doc. 587) at 2.
appealed. The appellate court rejected the prosecution's
aiding-and-abetting theory of liability on the § 924(c)
counts because it failed to prove Ulloa knew the
co-conspirators were bartering drugs for guns. The §
924(c) convictions were affirmed solely on a
Pinkerton theory, because "[i]t was reasonably
foreseeable that weapons would be used" in light of the
quantity and value of the drugs trafficked and
conspirators' familiarity with each other. See United
States v. Ulloa, 77 Fed.Appx. 965, 966-67, No. 02-30285
(9th Cir. 2003) (unpublished mem. disp.). Ulloa's appeal
of the sentence on the § 924(c) counts succeeded.
See Id. at 967. On remand, he was sentenced to 360
months on the drug counts plus a consecutive 60-month term on
Counts 11 and 12. The total prison term was 420 months.
See Am. Judgment (Doc. 636) at 2.
August 3, 2015, pursuant to 18 U.S.C. § 3582(c)(2) and
Amendments 782 and 788 to the United States Sentencing
Guidelines, Ulloa's sentence on the drug counts was
reduced from 360 months to 292 months. See [Second]
Am. Judgment (Doc. 738) at 1. With the remaining 60-month
consecutive term on Counts 11 and 12, Ulloa is now serving a
total prison sentence of 352 months.
Ulloa's Second § 2255 Motion
Court of Appeals granted Ulloa leave to file a second motion
in this Court. See Order (Doc. 747-2). But obtaining
leave to file is only the first of two restrictions Congress
imposes on second or successive motions under 28 U.S.C.
§ 2255. A district court must "dismiss any claim
presented in a second or successive application that the
court of appeals has authorized to be filed unless the
applicant shows that the claim satisfies the
requirements" for relief specially applied to second or
successive motions. 28 U.S.C. § 2255(h) requires Ulloa
to show that his "newly discovered evidence, if proven
and viewed in light of the evidence as a whole, would be
sufficient to show by clear and convincing evidence that no
reasonable factfinder would have found [him] guilty of the
offense." 28 U.S.C. § 2255(h)(1); see also
Id. § 2244(b)(2)(B); Brown v. Muniz, 889
F.3d 661, 674 (9th Cir. 2018). "Clear and convincing
evidence that no reasonable factfinder would have found
[Ulloa] guilty" is a far higher standard than a
"reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been
different," see Turner v. United States, __
U.S. __, 137 S.Ct. 1885, 1893 (2017) (quoting Cone v.
Bell, 556 U.S. 449, 470 (2009)), the standard normally
applied to a Brady or Giglio claim.
motion asserts that AUSA James Seykora, who has, in other
cases, withheld information he was required to disclose,
failed to disclose in this case payments of "several
thousand dollars for rent, moving and child care."
See Am. § 2255 Mot. (Doc. 764) at 25-26;
Exhibit I (Doc. 764-9) at 2-20. Ulloa also contends that his
trial counsel violated his Sixth Amendment right to effective
assistance because counsel did not use the impeachment
evidence the government provided, did not plea bargain, did
not develop a reasonable theory of the case, and did not
respond to Ulloa's request that he appeal. See
Am. § 2255 Mot. (Doc. 764) at 7-8 ¶ 22.
Ineffective Assistance Claims
ineffective-assistance claims are linked to claims he made in
his first § 2255 motion. On March 13, 2008, the Court
received a letter from Ulloa. The letter stated that trial
counsel failed to follow through with his promise to appeal
Ulloa's resentencing. After giving Ulloa notice and an
opportunity to respond, and after reviewing Ulloa's
additional claims against counsel, the Court recharacterized
the letter and other submissions as a motion under 28 U.S.C.