United States District Court, D. Montana, Great Falls Division
CHARLES C. LOVELL UNITED STATE DISTRICT JUDGE.
the Court is Defendant Doney's “Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
By a Person in Federal Custody” (ECF No. 127.)
Defendant Doney asserts three grounds in support of his
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. When this standard is met, a
hearing is not necessary. Marrow v. United States,
772 F.2d 525, 526 (9th Cir. 1985). Moreover,
section 2255 relief provides an extraordinary remedy, see
United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct.
2235, 60 L.Ed.2d 805 (1979), and it is the petitioner's
duty to prove entitlement to it by a preponderance of the
evidence, see Farrow v. United States, 580 F.2d
1339, 1355 (9th Cir. 1978).
Doney was convicted by jury trial on November 4, 2004, of
eight counts of drug trafficking (three counts of conspiracy
to distribute marijuana, methamphetamine, and cocaine, and
three counts of possession with intent to distribute) and two
counts of related weapons-possession crimes. The jury also
convicted Defendant of a forfeiture count relating to $31,
680 in U.S. currency and three firearms. Prior to the trial,
on October 29, 2004, the government filed a section 851
Information (21 U.S.C. § 851) for the purpose of
notifying the Defendant that upon conviction he would be
subject to increased penalties based upon his two prior
felony drug convictions. (ECF Nso. 67.)
Defendant's conviction on November 5, 2004, the Court
notified Defendant Doney that he had 10 days to affirm or
deny his prior felony drug convictions as alleged in the
government's section 851 Information. (ECF No. 80.) In
response, on November 19, 2004, defense counsel filed a
Notice that Defendant “by and through his counsel, ...
affirms the prior felony drug convictions referenced in the
information which gives notice of the United States'
intention to seek an enhanced sentence.” (ECF No. 93.)
months later, and just prior to sentencing, defense counsel
filed a “Notice of Intent to Contest Enhanced Sentence,
” that simply asserted that “Defendant is not
subject to a mandatory life sentence as a matter of
law.” (ECF No. 95.) At his sentencing hearing,
Defendant did not object to the government's allegation
that he had the two prior felony drug convictions, but rather
Defendant asserted that application of section 851 was
unconstitutional because a life sentence was disproportionate
to his crimes.
was sentenced on March 3, 2005, to an aggregate sentence of
life imprisonment followed by 180 consecutive months on the
firearms counts. (ECF No. 107 at 2-3.) At the sentencing,
Defendant pointed out that a life sentence was applicable to
persons convicted of at least two violent felonies under the
Three-Strikes Law of the Violent Crime Control and Law
Enforcement Act of 1994, 18 U.S.C. § 3559(c); Defendant
argued that a life sentence should not be imposed upon him
because he had no violent felonies in his criminal history.
The Court rejected this argument because it was plain that
section 851 was applicable to the Defendant, and he could
cite no authority to support his due process argument.
appealed his conviction and sentence to the Ninth Circuit,
which affirmed on June 23, 2006. United States v.
Doney, 190 Fed.Appx. 532 (9th Cir. 2006)
(unpublished), cert. denied, 127 S.Ct. 418 (Oct. 10,
2006). The Circuit panel specifically rejected
Defendant's due process argument, “finding [the
§ 841(b)] sentencing scheme to have a rational basis
because Congress can choose to treat drug crimes as seriously
as violent crimes.” United States v. Doney,
190 Fed.Appx. at 534.
his appeal was concluded, Defendant did not file a section
2255 motion within the one-year limitations period. Instead,
ten years later Defendant filed a petition for writ of
audita querela. (ECF No. 120.) In his petition,
Defendant denied that his prior drug convictions were serious
drug felonies. This Court held that two prior drug
convictions adequately supported Defendant's enhanced
sentence under 21 U.S.C. § 841(b)(1)(A):
Defendant's prior conviction relating to the distribution
of 1.65 grams of marijuana was for “Criminal Sale of
Dangerous Drugs (felony).” Presentence Report (PSR) at
9, § 46. The PSR states that “[t]he defendant sold
1.65 grams of marijuana to a confidential informant for
$30.” PSR, § 46. Thus, Defendant's assertion
that this prior conviction was for anything other than a
serious drug felony is incorrect.
(ECF No. 121 at 4.) Defendant's other felony drug
conviction was for “Criminal Possession of Dangerous
Drugs [methamphetamine and marijuana] (Felony).” (PSR
¶ 50; ECF No. 67, Information Pursuant to 21 U.S.C.
there is no question that Defendant's life sentence was
imposed pursuant to a properly filed Section 851 Information
and based upon two prior felony drug ...