United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS UNITED STATES DISTRICT JUDGE
case comes before the Court on Defendant/Movant Harry
Allen's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Allen is a
federal prisoner proceeding pro se.
12, 2017, Allen pled guilty to a superseding information
charging that he conspired with others between January 2012
and August 2013 to possess a substance containing a
detectable amount of methamphetamine with the intent to
distribute it. Based on a total offense level of 31 and a
criminal history category of IV, the advisory guideline range
was 151 to 188 months. Allen was sentenced to serve 151
months in prison, to be followed by a three-year term of
supervised release. Judgment was entered on February 16,
2018. See Superseding Information (Doc. 81) at 1-2; Minutes
(Doc. 124); Judgment (Doc. 125) at 2-3; Statement of Reasons
(Doc. 126) at 1 § III. Allen did not appeal.
now contends that prior convictions that counted against him
at sentencing should not have been considered felonies
because they were reduced to misdemeanors. See Mot. §
2255 (Doc. 135) at 4-5 ¶¶ A-C.
issue was litigated at sentencing. Pursuant to
California's Proposition 47, three felony convictions
Allen incurred in California in 2007 and 2010 were downgraded
to misdemeanors on March 22, 2017. See Presentence Report
¶¶ 36, 39, 40. In this Court, Allen's counsel
argued that California's reassessment of the seriousness
of Allen's conduct should reduce the impact his prior
sentences would have on his federal sentence under the United
States Sentencing Guidelines. See Def. Sentencing Mem. (Doc.
100) at 5 & Exs. 2, 3 (Doc. 100-1 at 4-5); Def. Supp.
Sentencing Mem. (Doc. 119) at 7-8. Following United
States v. Diaz, 838 F.3d 968, 971 (9th Cir. 2016), the
Court decided that California's reclassification of the
offenses did not govern scoring of Allen's prior
sentences under U.S.S.G. §§ 4A1.1 and 4A 1.2.
now points to a decision issued after his sentencing hearing
that distinguishes Diaz. He asserts that Clay v. United
States, No. LA CR 05-948-VBF, 2018 WL 6333671 (CD. Cal.
May 14, 2018), cited in Mot. § 2255 at 4 ¶¶
A-B, is "newly discovered evidence" that his
sentence is "longer than one authorized by law" and
that it was based on "assumptions concerning [his]
criminal record which were materially untrue." He
asserts violations of due process and the Eighth Amendment.
See Mot. § 2255 at 4 ¶ A, 5 ¶ C. He also
asserts that he should be resentenced under Johnson v.
United States, 544 U.S. 295 (2005). Id. at 4
or Clay might have applied to Allen's case if his
California convictions had been reduced to misdemeanors after
he was sentenced in this Court. That is what happened in
Johnson and Clay. Johnson was sentenced in federal court in
1994. In 1998, he petitioned a Georgia court to invalidate
state convictions that had enhanced his federal sentence, and
after the Georgia court vacated his state convictions, he
filed his § 2255 motion in federal court, seeking
resentencing. See Johnson, 544 U.S. at 298, 300-01. Clay was
sentenced in federal court in October 2006. Proposition 47
was passed in 2014. Clay filed his § 2255 motion in
federal court after a California court downgraded his 1999
California conviction. See Clay, No. LA CR 05-948-VBF, 2018
WL 6333671 at *l-2. But Allen's California convictions
were reduced to misdemeanors before he was sentenced in this
Court and even before he pled guilty.
Allen's claim that the Court relied on "assumptions
concerning his criminal record which were materially
untrue," Townsend v. Burke, 334 U.S. 736, 741
(1948), quoted in Mot. § 2255 (Doc. 135) at 4, is
inaccurate. The presentence report noted that three of
Allen's prior convictions had been downgraded from
felonies to misdemeanors on March 22, 2017. See Presentence
Report ¶¶ 36, 39, 40. Allen's counsel argued
the very issue Allen now raises and also argued that his
criminal history score substantially overrepresented the
seriousness of that history. See, e.g., Def. Supp. Sentencing
Mem. (Doc. 119) at 4-6. A Townsendclaim is not sustainable
under these circumstances. And Allen does not point to any
facts indicating an Eighth Amendment violation. His sentence
of 151 months was well within the 20-year maximum.
Allen actually asserts is that his sentence was based in part
on an erroneously calculated advisory guideline range. Even
if the Court erred in calculating that range, "an error
of law [or fact] does not provide a basis for collateral
attack unless the claimed error constituted a fundamental
defect which inherently results in a complete miscarriage of
justice." United States v. Addonizio, 442 U.S.
178, 185 (1979), quoted in United States v.
Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008)
(alterations in original). A difference in opinion between
one court that follows Diaz and another court that
distinguishes it is not "a fundamental defect"
causing "a complete miscarriage of justice."
Moreover, a difference of opinion between courts is why the
remedy of appeal is available.
of error in guideline calculations must be raised on direct
review and are not cognizable in § 2255 proceedings.
See United States v. Schlesinger, 49 F.3d 483, 484
(9th Cir. 1995). Nor may the Court consider whether Allen can
excuse his failure to raise the guideline error by direct
appeal because a defendant may excuse a procedural default
only when he raises a claim of constitutional dimension, not
a guidelines claim. See Id. at 485 (citing
Evenstad v. United States, 978 F.2d 1154, 1158 (9th
Cir. 1992)). Moreover, the error Allen alleges was not
"hidden." See Id. at 486. The proposed
Guideline calculations were set forth in the Presentence
Report and discussed at the sentencing hearing. Thus,
"[a]ny exception to waiver for hidden errors is
inapplicable in this case." Id.
the record at sentencing showed the facts Allen now asserts.
His remedy for any mistaken guideline calculation lays in
appeal. He may not proceed under § 2255 with his current
claim of guideline error. The Court notes that Allen's
plea agreement also waived his right to appeal the sentence
and his right to attack the sentence under § 2255. See
Plea Agreement (Doc. 78) at 7 ¶ 8; Change of Plea Tr.
(Doc. 88) at 5:17-24, 6:13-7:4, 21:14-22:2, 24:19-24.
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)).
claim that his sentence was based on materially untrue
assumptions, in violation of Townsend, is not
substantial, and his Eighth Amendment claim is equally
insubstantial. The presentence report reflected the
reclassification of his California felonies under Proposition
47, counsel objected to Allen's criminal history score on
that basis, and the objection was overruled at sentencing.
These matters cannot be raised in a § 2255 proceeding.
There is no reason to encourage further proceedings. A COA is
not warranted. Accordingly, IT IS HEREBY
Allen's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. ...