United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
MORRIS UNITED STATES DISTRICT COURT JUDGE.
case comes before the Court on Defendant/Movant Brandon Ray
Buckles' motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Buckles is a
federal prisoner proceeding pro se.
Court first 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
§ 2255 Proceedings (citing Advisory Committee
Note (1976), Rule 4, Rules Governing § 2254 Cases).
jury indicted Buckles on January 7, 2015, on one count of
sexual abuse in violation of 18 U.S.C. § 2242(2)(B)
(Count 1), and two counts of making a false statement to a
federal officer in violation of 18 U.S.C. § 1001 (Counts
2 and 3). Jurisdiction arose under the Major Crimes Act, 18
U.S.C. § 1153(a). All three counts involved one victim,
B. Count 1 alleged that Buckles engaged in a sexual act with
B. on or about June 26, 2010, when she was physically
incapable of consent. Counts 2 and 3 alleged that Buckles
lied to FBI Agent Golob on July 16, 2010, and to Agent Burns
on October 7, 2014, by saying he did not have sexual contact
with B. on or about June 26, 2010. (Doc. 1 at 2-3.) Attorney
Paul Gallardo represented Buckles. (Doc. 15.)
commenced on June 1, 2015. (Doc. 69.) The jury found Buckles
guilty on all three counts. (Doc. 81.) Before sentencing, the
Court granted Buckles's Rule 29 motion, in part, and,
acquitted him of Count 2. (Doc. 93.)
Court sentenced Buckles to serve 125 months in prison on
Count 1 and 96 months on Count 3, concurrently, followed by a
five-year term of supervised release. (Doc. 98); (Doc. 99 at
appealed. He challenged the materiality of the false
statement underlying Count 3 and an evidentiary ruling
excluding evidence of his prior sexual relationship with B.
On December 12, 2016, The Ninth Circuit rejected his claims
and affirmed his convictions on December 12, 2016. (Doc. 118
at 2-3); United States v. Buckles, No. 15-30257 (9th
conviction became final on March 12, 2017. See Gonzalez
v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his
§ 2255 motion on March 7, 2018. (Doc. 120 at 12); 28
U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S.
266, 276 (1988).
Claims and Analysis
claims that his counsel provided ineffective in various
respects. Strickland v. Washington, 466 U.S. 668
(1984) governs these claims. At this stage of the
proceedings, Buckles must allege facts sufficient to support
an inference (1) that counsel's performance fell outside
the wide range of reasonable professional assistance, and (2)
that a reasonable probability exists that, but for
counsel's unprofessional performance, the result of the
proceeding would have been different. Id. at 687-88,
indictment invoked jurisdiction under the Indian Major Crimes
Act, 18 U.S.C. § 1153(a). Section 1153 confers federal
jurisdiction over certain offenses, including first- and
second-degree murder, committed in “Indian country,
” see Id. § 1151, by “[a]ny Indian,
” id. § 1153(a). The United States had to
prove, beyond reasonable doubt, that Buckles was an Indian.
See United States v. Cruz, 554 F.3d 840, 845 (9th
Cir. 2009). No. statute defines who counts as an