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United States v. Doney

United States District Court, D. Montana, Great Falls Division

August 9, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
BASIL DONEY, JR., Defendant/Movant.

          ORDER

          Brian Morris United States District Court Judge

         This case comes before the Court on Defendant/Movant Basil Doney's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Doney is a federal prisoner proceeding pro se.

         Doney also seeks discovery and leave to file his motion for discovery under seal. He conscientiously redacted all of his references to the two victims in the case, who were minors at the time of the offenses and were 17 and 18 years old at the time of trial.

         I. Preliminary Review

         Before the United States is required to respond, the Court must 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, C.J., concurring) (referring to Rules Governing § 2254 Cases). The Court should “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.

         II. Background

         On September 18, 2014, a grand jury indicted Doney on two counts of aggravated sexual abuse, both violations of 18 U.S.C. § 2241(a), under the jurisdiction of the Major Crimes Act, 18 U.S.C. § 1153(a). Each count alleged that Doney knowingly engaged in a sexual act by using force and that the incident occurred in 2008 or 2009 at Hays, on the Fort Belknap Indian Reservation. Each count involved a different victim, L.B.G. (Count 1) and O.G. (Count 2). Assistant Federal Defender David Ness was appointed to represent Doney. See Order (Doc. 4).

         The parties agreed to a bench trial. The Court found Doney guilty beyond reasonable doubt on both counts. See Minutes (Docs. 53, 72).

         The Court sentenced Doney on June 11, 2015, to 180 months in prison on each count, concurrently, to be followed by a five-year term of supervised release. See Minutes (Doc. 76); Judgment (Doc. 77) at 2-3.

         Doney appealed. He challenged the denial of his pretrial motion for a bill of particulars as well as the sufficiency of the evidence. The Ninth Circuit rejected Doney's arguments and affirmed his convictions on July 12, 2016. See Mem. (Doc. 93) at 2-3, United States v. Doney, No. 15-30205 (9th Cir. July 12, 2016).

         Doney filed a petition for writ of certiorari. The United States Supreme Court denied the petition on November 28, 2016. See Clerk Letter (Doc. 96) at 1.

         Doney's conviction became final on November 28, 2016. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on November 6, 2017. See 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).

         III. Claims and Analysis

         Doney claims that counsel provided ineffective assistance in various respects. His claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). At this stage of the proceedings, Doney must allege facts sufficient to support an inference (1) that counsel's performance fell outside the wide range of reasonable professional assistance, id. at 687-88, and (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the result of the proceeding would have been different, id. at 694.

         A. ...


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