Free Order to Show Cause - District Court of Colorado - Colorado

Case 1:00-cr-00482-EWN

Document 621

Filed 03/12/2008

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Edward W. Nottingham Criminal Case No. 00­cr­00482­EWN UNITED STATES OF AMERICA, Plaintiff/Respondent, v. DALE CHALLONER Defendant/Movant.

ORDER TO SHOW CAUSE

Defendant Dale Challoner was convicted of seven counts arising from an elaborate scheme pursuant to which he and several companions planned to rob a bank in La Junta, Colorado, by invading the home of the bank president and having one conspirator hold the president's wife hostage while another conspirator drove the president to the bank and forced him at gunpoint to open the bank safe. To divert the attention of law enforcers, the conspirators fire-bombed an elementary school. The details of the scheme have already been recited by the Tenth Circuit in an unpublished disposition affirming the convictions, and it would serve no purpose to reiterate them here. Because the scheme engendered convictions on charges that Defendant used firearms and explosives to commit the other crimes -- convictions requiring three consecutive sentences -- the court sentenced Defendant to a 1,080-month prison term. The convictions became final on October 6, 2003, when the Supreme Court declined to review the Tenth Circuit's affirmance thereof. Defendant asserts three claims in this collateral attack on his convictions. The first two claims assert that Defendant did not receive effective assistance of counsel during his proceedings

Case 1:00-cr-00482-EWN

Document 621

Filed 03/12/2008

Page 2 of 2

before this court. The third asserts for the first time that this court erred in imposing consecutive sentences for the use of multiple firearms during a single conspiracy. Under the law of the Tenth Circuit, further proceedings are required with respect to this third claim. As noted, the third claim is being asserted for the first time in this collateral proceeding. It was available both during the trial and on direct appeal. and therefore should have been raised on direct appeal. Ordinarily, "[s]ection 2255 is not available to test the legality of matters that should have been raised on direct appeal." United States v. Walling 982 F.2d 447, 448 (10th Cir. 1992), citing United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987). Defendant's failure to raise these claims in his direct appeal bars review unless he can show cause and resulting prejudice. Id. See also United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 1594- 95 (1982) (defendant must show cause and prejudice to obtain collateral review where there was no objection at trial). Under controlling law, however, Defendant must be given an opportunity to do so. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). Accordingly, it is ORDERED that Defendant, on or before April15, 2008, show cause and prejudice, if any he has, why the third claim was not raised in direct appeal proceedings. Dated this 12th day of March, 2008.

BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM Chief United States District Judge

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