United States v. Basil Doney, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2019
• Docket: 18-35810
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-35810

Plaintiff-Appellee, D.C. Nos. 4:17-cv-00124-BMM 4:14-cr-00082-BMM-1 v.

BASIL DONEY, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Federal prisoner Basil Doney, Jr., appeals pro se from the district court’s

order denying his 28 U.S.C. § 2255 motion challenging his convictions for

aggravated sexual assault, in violation of 18 U.S.C. § 2241(a). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellant’s requests for oral argument and for appointment of counsel for the purpose of oral argument are denied. jurisdiction under 28 U.S.C. § 2253. We review the district court’s denial of a

section 2255 motion de novo and the district court’s failure to hold an evidentiary

hearing for abuse of discretion. See United States v. Rodrigues, 347 F.3d 818, 823

(9th Cir. 2003). We affirm.

Doney contends that his counsel rendered ineffective assistance at trial and

on appeal because he failed to argue that the government did not introduce

sufficient evidence to show that Doney was an Indian within the meaning of 18

U.S.C. § 1153(a) during the timeframe alleged in the indictment.

The government’s evidence of Doney’s Indian status included a 2014 tribal

enrollment certificate from the Fort Belknap Indian Community; excerpts from the

Federal Register listing Fort Belknap as a federally recognized tribe; testimony by

Doney’s cousin that Doney stayed on the Fort Belknap reservation at his father’s

house around the pertinent timeframe; and testimony by a tribal investigator that

Doney had “appeared as a litigant in tribal court” and a litigant must be an enrolled

member of the tribe to appear in tribal court. Counsel’s failure to challenge the

sufficiency of the government’s evidence on the basis that it did not show tribal

enrollment specifically at the time of the charged assaults does not amount to

constitutionally deficient performance under the circumstances. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); see also United States v. Ratigan, 351

F.3d 957, 965 (9th Cir. 2003) (counsel did not render ineffective assistance by

2 18-35810 failing to object to sufficiency of proof where government’s evidence showed bank

was federally insured on dates before and after the robbery but not specifically on

the date of the robbery).

Doney further contends that the district court erred by failing to hold an

evidentiary hearing. However, Doney does not point to any evidence that could

have been gathered through an evidentiary hearing that was necessary for the

court’s adjudication of his section 2255 motion. Accordingly, the court did not

abuse its discretion by failing to hold a hearing. See Watts v. United States, 841

F.2d 275, 277 (9th Cir. 1988) (“Section 2255 requires only that the judge give the

prisoner’s claim ‘careful consideration and plenary processing, including full

opportunity for presentation of the relevant facts.’”) (quoting Blackledge v. Allison,

431 U.S. 63, 82-83 (1977)).

The government’s motion for judicial notice is denied.

AFFIRMED.

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