United States of America v. Matthew Evans Dowd

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Sharon L. Gleason, United States District Judge for**
the District of Alaska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW EVANS DOWD,
Defendant - Appellant.
No. 10-35956
D.C. Nos. 9:09-cv-00048-DWM
9:03-cr-00007-DWM-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted December 5, 2012
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**
Federal prisoner Matthew Evans Dowd appeals the district court’s denial of
his 28 U.S.C. § 2255 motion challenging his jury conviction and 127-month
FILED
DEC 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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sentence for interstate domestic violence and willful failure to appear for
sentencing. Dowd claims that trial counsel rendered ineffective assistance by
failing to interview and subpoena five witnesses. He also claims that the
prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose
that the victim’s sister had told an FBI agent that the victim was not credible. We
have jurisdiction under 28 U.S.C. § 2255, and we affirm.
Analyzing Dowd’s ineffective assistance claim under Strickland v.
Washington, 466 U.S. 668 (1984), we agree with the district court’s decision
following an evidentiary hearing that Dowd has failed to demonstrate that his Sixth
Amendment right to counsel was violated. Dowd has shown neither that trial
counsel was deficient for failing to interview and subpoena five defense witnesses,
nor that Dowd suffered any prejudice as a result.
Dowd’s Brady claim was insufficiently presented in his § 2255 habeas
petition before the district court. In any event, Dowd would not be entitled to relief
even if the claim had been properly raised, because the sister’s affidavit, even if
credited, regarding what she told the FBI agent is not sufficient to “undermine
confidence in the outcome” of the trial. United States v. Bagley, 473 U.S. 667, 682
(1985).
AFFIRMED.

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