United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
SUSAN P. WATTERS, District Judge.
On December 31, 2014, Defendant/Movant Perry Nation moved to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Nation is a federal prisoner proceeding pro se.
On May 14, 2015, the Court advised Nation that his allegations were vague and gave him an opportunity to explain them. Order (Doc. 85) at 1-2. Nation responded on June 26, 2015. Resp. to Order (Doc. 88).
I. Preliminary Screening
The motion is subject to preliminary review to determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.
A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) ("Nicolas") (Schroeder, CJ., concurring) (referring to Rules Governing§ 2254 Cases). "[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing§ 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing§ 2255 Proceedings.
A grand jury indicted Nation on September 23, 2011, on one count of aggravated sexual abuse against J.R.S.N., a person under the age of 12, in violation of 18 U.S.C. § 2241 (c) (Count 1), and one count of sexual abuse against J.R.S.N., who was incapable of appraising the nature of the conduct, in violation of 18 U.S.C. § 2242(2)(A) (Count 2). The offenses were alleged to have occurred seven years earlier, in September 2004. Jurisdiction was predicated on the Major Crimes Act, 18 U.S.C. § 1153(a). Indictment (Doc. 1) at 2. Assistant Federal Defender Steven C. Babcock was appointed to represent Nation. Order (Doc. 7).
On October 20, 2011, the grand jury handed down a superseding indictment. Counts 1 and 2 remained the same. Counts 3 and 4 alleged identical offenses and the same time frame, but the victim involved was E.R.W. The time frame was again alleged to be September 2004, when J.R.S.N. was 11 years old and E.R.W. was seven years old. Superseding Indictment (Doc. 12) at 2-3.
Counsel moved before trial to exclude evidence of previous incidents of sexually abusive behavior by Nation. One incident occurring on or about February 4, 1990, was excluded, but another, reportedly occurring in 2004, was not. Mot. in Limine Br. (Doc. 38) at 2; Resp. (Doc. 40) at 2; Minutes (Doc. 41); 1 Trial Tr. (Doc. 70) at 15:23-16:20.
Trial commenced on May 14, 2012, and concluded on May 15, 2012. At the time of trial, J.R.S.N. was 19 and E.R.W. was 14 years old. Counts 2 and 4 were dismissed on counsel's motion under Fed. R. Crim. P. 29. Minutes (Doc. 44); 2 Trial Tr. (Doc. 71) at 376: 12-377:8. The jury found Nation guilty of aggravated sexual abuse as alleged in Counts 1 and 3 of the Superseding Indictment. Verdict (Doc. 51) at 1-2.
A presentence report was prepared. Nation's total offense level was 35. With a criminal history category of II, the advisory guideline range was 188-235 months. He was sentenced to serve 235 months in prison, to be followed by a life term of supervised release. Am. Judgment (Doc. 65) at 2-3.
Nation appealed. On October 23, 2013, the Ninth Circuit Court of Appeals affirmed his convictions and sentence. Mem. at 1-5, United States v. Nation, No. 12-30288 (9th Cir. Oct. 23, 2013) (Doc. 81). His conviction became final 90 days later, on January 21, ...