United States District Court, D. Montana, Great Falls Division
Morris United States District Court Judge
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.
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.
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.
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).
parties agreed to a bench trial. The Court found Doney guilty
beyond reasonable doubt on both counts. See Minutes
(Docs. 53, 72).
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.
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).
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.
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).
Claims and Analysis
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.