The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT'S
PETITION FOR HABEAS CORPUS
RELIEF UNDER 28 U.S.C. §
Before the Court is the Defendant's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct A Sentence, By A Person In Federal Custody" filed on September 19, 2011. See Docket No. 45. On October 11, 2011, after an initial review of the motion, the Court ordered the Government to file a response within sixty days. See Docket No. 46. On November 30, 2011, the Government filed a response in opposition to the motion. See Docket No. 47. The Petitioner filed a reply brief on December 12, 2011. See Docket No. 48. For the reasons set forth below, the petition is denied.
On January 13, 2009, Randolph Lone Fight was indicted on three counts of involuntary manslaughter. See Docket No. 1. On June 29, 2009, Lone Fight pled guilty to all three counts. See Docket No. 23. On October 27, 2009, the Court sentenced Lone Fight to 77 months imprisonment on each count, to be run consecutive, for a total of 231 months. See Docket No. 33. In imposing that sentence, the Court stated the following:
I firmly believe, sir, that 77 to 96 months is not long enough when three innocent people's lives were taken from them as a result of drunk driving and by an individual that presents the kind of history that you present. It's shocking to me that there haven't been other fatalities, drunk driving incidents before this time.
I've also carefully reviewed the sentencing guidelines and particularly Section 5G1.2. And I've reviewed, as I indicated in my letter, a case from the Eighth Circuit entitled United States versus Kreitinger issued on August 5, 2009, which addresses the subject of when and under what circumstances consecutive sentences may be warranted. Believe me, I don't take these cases lightly, and I have not taken this case lightly.
But in my view, sir, a consecutive sentence in this case is warranted. I think it would account for the seriousness of your criminal conduct. I think it would address your ongoing nature of alcohol offenses. I think it would address the fact that there's, in my view, a very serious likelihood that you will reoffend and continue to drink and commit another senseless crime unless you are placed in a prison environment for longer than 77 to 96 months.
When I look at all the factors that I'm required to consider, I need to do something to protect the public. I need to deter criminal conduct. I need to do something that reflects the seriousness of this offense and promotes respect for the law and provides just punishment.
So I am aware of my discretion and authority to adhere to the guidelines, to depart from the guidelines, but in this case I firmly believe that consecutive sentences are warranted and reasonable and will address each and every one of those 3553(a) factors that I need to address. I want to make sure that another senseless crime does not get committed on the roadways of North Dakota. I want to make sure that there's never another family that has to bear the loss of a child or a daughter or a mother or a wife like what occurred in this case.
See Docket No. 40, pp. 28-30.
Lone Fight appealed the judgment on November 3, 2009. See Docket No. 34. The Eighth Circuit Court of Appeals affirmed the judgment on November 22, 2010. See Docket No. 42; United States v. Lone Fight, 625 F.3d 523 (8th Cir. 2010). Lone Fight argued before the Eighth Circuit that the Court incorrectly applied U.S.S.G. § 5G1.2 in imposing consecutive sentences. The Eighth Circuit agreed with Lone Fight that U.S.S.G. § 5G1.2 did not call for consecutive sentences in this case, but concluded that the Court imposed consecutive sentences based on the factors set forth in
18 U.S.C. § 3553(a). The Eighth Circuit stated, "Applying a deferential abuse-of-discretion standard of review, we conclude that the court's decision to impose consecutive sentences and a term of 231 months' imprisonment was not substantively unreasonable." Lone Fight, 625 F.3d at 526.
On September19, 2011, Lone Fight filed a "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody." See Docket No. 45. Lone Fight contends that he received ineffective assistance of counsel because his attorney did not challenge the indictment or sentence as multiplicitous. He argues further that according to Dillon v. United States, 130 S. Ct. 2683 (2010), U.S.S.G. § 5G1.2 is mandatory and imposing consecutive sentences was error. Lone Fight acknowledges that Dillon was presented to the Eighth Circuit Court of Appeals in a supplemental brief pursuant to Fed. R. App. P. 28(j). See Docket No. 45, p. 10.
On November 30, 2011, the Government filed a brief in opposition to Lone Fight's motion. See Docket No. 47. The Government contends that Lone Fight did not receive ineffective assistance of counsel because it is not reasonably probable that a motion to dismiss the allegedly multiplicitous counts of the indictment would be successful. The Government also contends that his argument based on Dillon is inappropriate for a motion under 28 U.S.C. § 2255.
"28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his 'sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.'" King ...