McCreery v. USA
Filing
6
ORDER denying 3 Motion for Summary Judgment; granting 4 Motion for Extension of Time to File Response/Reply. The response shall be due within 45 days from the date of this Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT McCREERY, JR.,
Case No. 4:12-cv-00248-BLW
4:08-cr-00091-BLW
Movant,
v.
ORDER
UNITED STATES OF AMERICA,
Respondent.
Pending before the Court is Robert McCreery, Jr.’s (“McCreery”) Motion for
Summary Judgment (Dkt. 3) and the Government’s Motion for Extension of Time to File
Response (Dkt. 4). For the reasons set forth below, the Court denies the Motion for
Summary Judgment and grants the Motion for Extension of Time.
BACKGROUND
On May 21, 2012, McCreery filed a Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”) (Dkt. 1) alleging three
grounds of ineffective assistance of counsel. The alleged grounds relate to the 21 U.S.C.
§ 851 sentencing enhancement filed by the Government raising the statutory minimum to
twenty (20) years on the drug charge and counsel’s advice prior to the change of plea
hearing based on his alleged erroneous understanding of the effect of the § 851
ORDER - 1
enhancement. The Court entered an Order (Dkt. 2) directing the Government to file a
response to the § 2255 Motion within thirty (30) days which would have been June 20,
2012. On July 9, 2012, given the Government’s failure to file a response, McCreery
moved for summary judgment on the grounds that the facts alleged were undisputed and
entitled him to judgment as a matter of law.
Apparently prompted by the summary judgment motion, on July 13, 2012, the
Government filed the pending Motion for Extension of Time requesting a response date
of August 24, 2012. The Government contends that a clerical error resulted in the
deadline not being properly calendared on the assigned AUSA’s calendar, that the
assigned AUSA was in trial in Boise, and that the motion was the first request for an
extension. On August 2, 2012, the Government responded to the summary judgment
motion stating those same grounds and additionally arguing that the Government’s
motion for an extension to respond prevented the Court from finding on the record that
there are no genuine issues in dispute.
DISCUSSION
Title 28 U.S.C. § 2255(a) provides four grounds under which a federal court may
grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was without jurisdiction to impose such
sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and
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(4) that the sentence is otherwise “subject to collateral attack.” The Federal Rules of
Civil Procedure are applicable to § 2255 proceedings “to the extent that they are not
inconsistent with any statutory provisions or these rules. . . .” Rule 12 of the Rules
Governing Section 2255 Proceedings.
Under Rule 56 of the Federal Rules of Civil Procedure, “[s]ummary judgment is to
be granted only if the pleadings and supporting documents, viewed in the light most
favorable to the non-moving party, show that there is no genuine issue as to a material
fact, and the moving party is entitled to judgment as a matter of law.” Legal Aid Services
of Oregon v. Legal Services Corp., 608 F.3d 1084, 1093 (9th Cir. 2010) (emphasis
added).
McCreery’s summary judgment motion is premised on Rule 56(e)(2) which
provides that “the court may . . . consider [a] fact undisputed for purposes of the motion”
where a party “fails to properly address another party’s assertion of fact as required by
Rule 56(c).” See Fed. R. Civ. P. 56(e)(2). However, this is only one option provided by
Rule 56(e) and is discretionary by its terms.
Other options available to the Court under Rule 56(e) include giving the opposing
party “an opportunity to properly support or address the fact,” “grant summary judgment
if the motion and supporting materials . . . show that the movant is entitled to it,” or
“issu[ing] any other appropriate order.” See Fed. R. Civ. P. 56(e)(1), (3), and (4).
Furthermore, the commentary to the 2010 amendments to Rule 56(e) states that
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“summary judgment cannot be granted by default even if there is a complete failure to
respond to the motion, much less when an attempted response fails to comply with Rule
56(c) requirements.” See Fed. R. Civ. P. 56 Advisory Committee’s 2010 note. The
commentary further provides specifically with respect to subsection (e)(2) that “the court
may choose not to consider [a] fact as undisputed, particularly if the court knows of
record materials that show grounds for genuine dispute.” Id.
A government’s failure to respond to a § 2255 motion does not in itself establish
the right to summary judgment relief. See, e.g., United States v. Bopp, No. 09-20532,
2012 WL 2711395 at *2 (E.D. Mich. Jul. 9, 2012). Nor does it entitle a prisoner to entry
of default judgment. See id. (citation omitted). See also Cook v. Ducharme, 162 F.3d
1168 at *2 (9th Cir. 1998); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (citations
omitted); Quinones-Torres v. United States, 240 Fed. Appx. 876, 878 (1st Cir. 2007)
(applying Gordon to a § 2255 proceeding).
McCreery’s claim that counsel was ineffective by providing advice based on an
erroneous understanding of the effect of a § 851 enhancement is based on his
unsupported, albeit sworn, statement regarding the advice counsel gave him. His claim
that counsel was ineffective for failing to object to the allegedly late-filing of the § 851
enhancement is based on the conclusory assertion that it was indeed late and was indeed a
breach of the plea agreement. His claim that counsel was ineffective for failing to contest
the predicate state court conviction for the § 851 enhancement is based on his
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unsupported assertion that the sentence was reduced to probation and thus did not qualify
as a felony.
The Court finds that McCreery has not established his entitlement to § 2255 relief
as a matter of law at this time. It further finds that allowing the Government an
opportunity to address McCreery’s assertions of fact pursuant to Rule 56(e)(1) is
warranted. Nevertheless, rather than having the Government address the issues raised in
the context of the summary judgment motion, the Court finds that the Government’s
response to the allegations of the § 2255 Motion itself would be more useful in clarifying
the issues and the record for the Court. See Fed. R. Civ. P. 56(e)(4) (providing for the
issuance of “any other appropriate order”).
The Government has asked for an extension of time until August 24, 2012 from
the date its motion was filed on July 13, 2012, a period of approximately six weeks. The
Court routinely grants a § 2255 litigant a first request for an extension of time. Here, the
Court finds that the clerical error and the assigned AUSA’s then-involvement in a jury
trial in Boise justifies the requested extension. After the Government has filed its
response, McCreery may file a reply if he so chooses. See Order, Dkt. 2. The Court will
then determine whether an evidentiary hearing is warranted pursuant to Rule 8 of the
Rules Governing § 2255 Proceedings.
ORDER - 5
ORDER
IT IS ORDERED:
1.
McCreery’s Motion for Summary Judgment (Dkt. 3) is DENIED.
2.
The Government’s Motion for Extension of Time (Dkt. 4) is GRANTED.
The response shall be due within forty-five (45) days from the date of this
Order.
DATED: September 13, 2012
Honorable B. Lynn Winmill
Chief U. S. District Judge
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