United States v. Quigg
| Decision Date | 27 January 2021 |
| Docket Number | Cause No. CV 19-001-BLG-SPW,Cause No. CR 15-147-BLG-SPW |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. GARY LEE QUIGG, Defendant/Movant. |
| Court | U.S. District Court — District of Montana |
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
This case comes before the Court on Defendant/Movant Gary Lee Quigg's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Quigg is a federal prisoner proceeding pro se.
On August 17, 2015, Quigg and his co-defendant wife Dusty Whitehouse sold 3.7 grams of methamphetamine to a friend of theirs, Crystal Lopez. Lopez was wearing a wire. An undercover agent, Agent Ivers, waited in the living room. Drugs in hand, Lopez returned to the living room and soon departed with Ivers. But the agent had paid $900. Ivers testified that he expected to receive an ounce, and Lopez testified that the price for a gram was $100. At any rate, everyone agreed that $900 should have bought more than 3.7 grams.
Two days later, on August 19, Ivers called Quigg. Quigg acknowledged that Ivers had overpaid and invited him to come to the house again. That evening, Ivers spoke with Whitehouse about getting his money back or getting more product. She asked Quigg for more methamphetamine, but he did not have any. Whitehouse refunded Ivers $300.
On August 25, Ivers again called Quigg and asked to "swing by and visit." After talking about the weather and what day it was, Quigg said he was "between paychecks" and would "find out when I get home." He talked about how busy he was as a paralegal for the State Public Defenders, because so many people were getting charged, and he said he "keep[s] my eyes open." Quigg said he would "check out the situation" and "find out what's going on." Ivers said he had "seven bills." Quigg said "Ok, I'll let them know." U.S. Trial Ex. 8. Quigg did not call Ivers back and did not take any more calls from him.
All of these transactions were recorded and played for the jury at trial.
Quigg was on parole from a 1969 first-degree murder conviction in state court. Whitehouse was on state probation. On September 15, 2015, both were arrested on suspicion of violating their conditions of release. A probation officer retrieved a phone from their vehicle and looked at text messages on it. Agents obtained and executed a search warrant at their home. But Quigg and Whitehouse were not charged in federal court at that point.
On October 1, 2015, Charity Mendonsa met a man in Billings at about 11:00 p.m., intending to sell him about eight ounces of methamphetamine. She did sell him the meth, but he too turned out to be an undercover agent, Agent Papke. She was arrested. Agents obtained a search warrant for her pickup truck. Witness Bailey had already told them that Mendonsa brought methamphetamine from California to Montana in a hidden compartment in the tailgate. Agents found the compartment and, in it, two pounds of methamphetamine.
On December 3, 2015, a grand jury indicted Mendonsa, Quigg, and Whitehouse. After Mendonsa pled guilty, a grand jury returned a superseding indictment against Quigg and Whitehouse, charging the following offenses and drug quantities:
See Superseding Indictment (Doc. 91) at 2-3.
Jury trial commenced on January 30, 2017. Mendonsa, Lopez, Bailey, Papke, and Ivers all testified. The jury heard the August 2015 recordings and saw surveillance photographs, photographs from the home search, and text messagesretrieved from the phone.
According to Bailey and Agent Martian, in July 2015, Bailey tipped off agents that Mendonsa was going to give Whitehouse whatever methamphetamine she had left on that trip. Agents went to Whitehouse's neighborhood and photographed Mendonsa meeting with her. Mendonsa testified that she and Whitehouse only "used a little" methamphetamine and "went shopping" together on that occasion. See 3 Trial Tr. at 364:10-15. But she also testified that, after her husband Kevin died in April 2015, she sold Whitehouse one ounce, and then four ounces—a total of 141.75 grams. In addition, Mendonsa said Quigg called her shortly after Kevin's death to find out whether she was going to deliver $1,800 of methamphetamine Kevin had promised to Quigg. Later, Quigg asked Mendonsa not to front drugs to Whitehouse, because he would end up having to pay for it. See id. at 356:5-362:18.
Mendonsa testified that Kevin dealt in large quantities and had about $400,000 in the house when he passed away. The text messages from Quigg and Whitehouse's phone included a query on September 11, 2015, asking Mendonsa when she would be in Billings "so I can get my ducks in a row." Mendonsa responded, "Not sure but ill keep u posted." Trial Ex. 10(B) at 2. This testimony was essential to the drug quantities charged in Counts 1 and 2. In closing, the United States argued that this text was Quigg's way of saying he "wanted a pieceof that action" the next time Mendonsa came to Montana. The prosecution urged the jury to hold Quigg and Whitehouse responsible for the methamphetamine found in Mendonsa's tailgate. See 5 Trial Tr. (Doc. 206) at 788:11-25.
On February 2, 2017, the jury convicted Quigg on all three counts, but it did not find the drug quantities the United States had charged. It found:
See Verdict (Doc. 122) at 1-3.1
On May 26, 2017, the Court granted trial counsels' motion to withdraw and appointed new counsel for Quigg. See Order (Doc. 161).
At sentencing, Quigg was held responsible for at least 50 but less than 150 grams of actual methamphetamine—that is, "the weight of the controlledsubstance, itself, contained in the mixture or substance." U.S.S.G. § 2D1.1(c)(5) & Drug Quantity Table Note B (Nov. 1, 2016). With a total adjusted offense level of 30 and a criminal history category of III, Quigg's advisory guideline range was 121 to 151 months. See Statement of Reasons (Doc. 183) § III. He was sentenced to serve 121 months in prison, consecutive to his state sentence, to be followed by a five-year term of supervised release. See Judgment (Doc. 182) at 2-3.
Quigg appealed. He challenged the sufficiency of the evidence, claimed he played a minimal or minor role in the offense, and argued that his sentence should not have been based on actual methamphetamine. The Court of Appeals affirmed his conviction and his sentence. See Mem. (Doc. 216) at 1-3, United States v. Quigg, No. 17-30138 (9th Cir. Sept. 5, 2018).
Quigg timely filed his § 2255 motion on December 31, 2018. See Mot. § 2255 (Doc. 221) at 34 Decl. ¶ C; Houston v. Lack, 487 U.S. 266, 276 (1988).
The Court required trial counsel to submit affidavits concerning one of Quigg's claims. See Order (Doc. 245). Counsel complied on November 20, 2019 (Doc. 249). The Court also ordered the United States to file the pretrial discovery concerning seizure and search of the cell phone. See Order (Doc. 252); U.S. Resps. (Docs. 258-1, 263-1). Finally, on August 10, 2020, the United States filed the audio recordings that were played for the jury at trial. See Order (Doc. 266); U.S. Notice (Doc. 267); see also U.S. Exhibit List with Admitted Exhibits (Doc.131).
A § 2255 motion Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970), quoted in Calderon v. United States Dist. Court, 98 F.3d 1102, 1106 (9th Cir. 1996); see also Rule 4, Rules Governing § 2254 Cases, Advisory Committee Note para. 3 (1976). A court is not required to assume the truth of conclusory allegations. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). An evidentiary hearing or further development of the record is necessary only when a § 2255 movant alleges facts that would, if proved true, entitle him to relief. See, e.g., United States v. Rodriguez-Vega, 797 F.3d 781, 791-92 (9th Cir. 2015).
Generally, a claim is defaulted if it arises from a matter that is in the record at the time of direct appeal but is not raised on direct appeal. See, e.g., Bousley v. United States, 523 U.S. 614, 622-24 (1998); United States v. Frady, 456 U.S. 152, 165 (1982). Quigg's Claims B through J, below, are defaulted. Rather than extending Quigg an opportunity to excuse his default, see, e.g., Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998), the Court will proceed as if the default were excused and will address all the claims on their merits.
Quigg's claims are reorganized here, but all are addressed.
Claims that subject-matter jurisdiction was absent ab initio cannot be waived or defaulted. See, e.g., 28 U.S.C. § 2255(a); United States v. Cotton, 535 U.S. 625, 630 (2002); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003).
Quigg alleges the United States never had authority to charge or try him because the State of Montana has not authorized its agents to involve federal authorities in the investigation or prosecution of crime. See Mot. § 2255 (Doc. 221) at 2-3; Br. in Supp. (Doc. 222) at 1-3.
The Commerce Clause of the United States...
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