The opinion of the court was delivered by: Patrick A. Conmy, Senior District Judge United States District Court
Before the Court is the Defendant's motion pursuant to 28 U.S.C. § 2255 and memorandum in support of motion filed on May 24, 2010. See Case No. 1:10-cv-01013, Docket Nos. 1 and 2. The motion is filed pro se. The Government filed an answer and brief in opposition to the Defendant's motion on July 26, 2010. See Case No. 1:10-cv-01013, Docket Nos. 8 and 9. The Defendant did not file a reply. For the reasons explained below, the Defendant's motion is denied.
The following summary of the underlying facts is taken from the direct appeal: On February 19, 2007, Otter Robe left the apartment of Allen Derockbrain's father, Joe Flying Horse, after arguing with and threatening Derockbrain with two knives, taken from Flying Horse's dish rack. Otter Robe went to Myron Oka's home. He went upstairs, spoke briefly with Lyle Oka, Myron's nephew, and used the telephone.
Myron testified that Otter Robe came back downstairs and began yelling at him, so he asked Otter Robe to leave. Otter Robe began swinging at him and hit him in the face a couple of times. Myron jumped backwards, but tripped and fell on his butt and back. Otter Robe fell, but got back up, and as they began fighting again, Myron tripped over a chair. As he was pushing himself up with his hands, Myron felt a hard blow to his head and blood came down. When he looked up, he saw Otter Robe with a knife in his hand. Otter Robe then ran from the house. Lyle testified that Otter Robe came upstairs where he was and took two knives out of a backpack and showed the two knives to him. Otter Robe then slid the knives up his sleeves. After Otter Robe had gone back downstairs, Lyle heard a commotion downstairs. He went downstairs and found Myron holding his head, which was bleeding.
Otter Robe denied having two knives or a backpack. He testified that the fight began when Myron swung a cast iron frying pan at him, hitting him in the finger. Otter Robe stated that he then held Myron down, but left when Myron called for Lyle to bring a gun. Myron testified that he did not have a frying pan or other weapon in his hand, and Lyle testified that Myron never asked him to get a gun and there was not a gun in the house.
Officer Doug Wilkinson arrived at Myron's house shortly after Otter Robe had left and he observed Myron bleeding. Wilkinson spoke with Myron and Lyle about the incident and then went to Flying Horse's apartment to talk to Otter Robe. When Wilkinson arrived at Flying Horse's home, Otter Robe ran out the door, and back to Myron's home. Otter Robe was detained by April Archambault, Myron's daughter, until Wilkinson arrived and arrested him. Wilkinson recovered two knives from Derockbrain, who testified that when Otter Robe came back to Flying Horse's apartment, he threw the knives into the window well outside of the apartment.
William Burkhard, a physician's assistant, testified that Myron's injury was more consistent with a knife than blunt force trauma. Teresa Olsen, a physician's assistant, testified that Otter Robe had an injury on his finger that was not likely caused by a frying pan. United States v. Otter Robe, 333 Fed. Appx. 160 (8th Cir. 2009).
The Defendant was indicted on one count of assault with a dangerous weapon (Count I) and one count of assault resulting in serious bodily injury (Count II) on December 19, 2007. Trial commenced on February 19, 2008. The jury returned a verdict of guilty on both counts on February 21, 2008. The Court vacated the verdict on Count II and reduced the conviction to the lesser included offense of assault by striking beating or wounding on February 27, 2008. The Defendant was sentenced to 77 months imprisonment on Count I and 6 months imprisonment on Count II on May 29, 2008. The Defendant appealed. The conviction was affirmed on June 29, 2009. Otter Robe, 333 Fed. Appx. at 163.
The Defendant filed the § 2255 motion now before the Court on May 24, 2010. He alleges ineffective assistance of counsel. Specifically, he argues (1) counsel failed to investigate and call the proper witnesses to support his claim of self defense, (2) counsel failed to hire an expert witness to challenge the Government's forensic evidence, and (3) counsel failed to require to the Government to prove the jurisdictional elements. The Government filed a response to the motion on July 26, 2010, in which it argued the motion should be denied.
A motion made pursuant to 28 U.S.C. § 2255 requires a showing of either constitutional or jurisdictional error, or a "fundamental defect" resulting in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A section 2255 motion is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A section 2255 movant ...