United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
Morris, United States District Court Judge
Court received from Defendant Laird, a federal prisoner
proceeding pro se, a brief statement on March 14, 2019, that
he was “trying to file a 2255” because he
believes his attorney “was working against me”
and “use[d]” Laird's disability “to his
advantage.” Laird said counsel “would contradict
about every thing he told me” and asked for
“help.” Mot. § 2255 (Doc. 36) at 1.
Court advised Laird that it would consider his letter as a
motion under 28 U.S.C. § 2255. See Order (Doc.
38) at 1-2. The Court gave Laird an opportunity to amend his
allegations and add any more claims that he wanted to make.
Id. Laird responded by submitting several more
documents explaining how he believes that his counsel
provided ineffective assistance.
of the change of plea hearing, held August 23, 2018, and the
sentencing hearing, held November 28, 2018, are needed to
decide the issues that Laird presents. The United States will
be required to order these transcripts for the record and to
deliver a copy to Laird. See 28 U.S.C. §
Court must determine whether “the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief” before the United States must
respond. 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).
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
legal troubles in Montana began on April 24, 2018, when he
was arrested on the Rocky Boy's Reservation and charged
with assault with a dangerous weapon in violation of 18
U.S.C. § 113(a)(3). See Compl. (Doc. 1); Return
on Warrant (Doc. 9), United States v. Laird, No. CR
18-39-GF-BMM (D. Mont. Apr. 20 and 25, 2018). A grand jury
indicted Laird on May 17, 2018, on the assault charge.
See Indictment (CR 18-39-GF Doc. 14) at 1-2. Laird
faced up to ten years in prison if convicted. See 18
U.S.C. § 113(a)(3). The Court set trial for July 23,
2018, and then continued the trial to October 1, 2018.
See Orders (CR 18-39-GF Docs. 17, 19).
grand jury indicted Laird in this case, No. CR 18-48-GF-BMM,
on June 21, 2018, on one count of conspiring to possess 50
grams or more of actual methamphetamine with intent to
distribute it in violation of 21 U.S.C. § 846 (Count 1);
and one count of possessing the same with intent to
distribute it, or aiding and abetting the same in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count
2). Both counts allegedly occurred from February 2018 to
April 2018. See Indictment (Doc. 1) at 2-3. Laird
faced a mandatory minimum sentence of ten years, or a maximum
sentence of life in prison, if convicted on either Count 1 or
Count 2. See 21 U.S.C. § 841(b)(1)(A)(viii).
parties reached a plea agreement. Laird agreed to plead
guilty to a superseding information that charged him with
possessing 50 grams or more of actual methamphetamine with
intent to distribute it, or aiding and abetting the same in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §
2. The United States agreed to dismiss the indictments in
this case and the assault case, No. CR 18-39-GF. See
Plea Agreement (Doc. 13) at 2 ¶ 2, 6-7 ¶ 6. Laird
pled guilty in open court on August 23, 2018. See
Minutes (Doc. 19).
on all the information available to investigating officers
concerning Laird's drug trafficking with co-conspirators
Centeno, Ramirez, Denny, and others, between February and
April 2018, Laird was held responsible for 1, 000 to 3, 000
kilograms of converted drug weight. This drug weight resulted in
a base offense level of 30. The Court imposed a two-level
upward adjustment for possession of firearms and ammunition
in connection with the offense and a three-level downward
adjustment for acceptance of responsibility and timely
notification of plea. With a total offense level of 29 and a
criminal history category of III, Laird's advisory
guideline range sat at 120 to 135 months. See
Presentence Report ¶¶ 38-47, 48-55; Am. Statement
of Reasons (Doc. 34) §§ I(A), III; U.S.S.G. ch. 5
Part A (Sentencing Table). The Court sentenced Laird on
November 28, 2018, to serve the statutory mandatory minimum
sentence of 120 months to be followed by a five-year term of
supervised release. See Am. Judgment (Doc. 33) at
did not appeal. His conviction became final on December 8,
2018. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). He timely filed his § 2255 motion on March 14,
2019. See 28 U.S.C. § 2255(f)(1).
Claims and Analysis
claims that counsel provided ineffective assistance in
various respects. The Supreme Court's decision in
Strickland v. Washington, 466 U.S. 668 (1984),
governs claims for ineffective assistance of counsel. At this
stage of the proceedings, Laird 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 no
reasonable probability ...