United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
ROBERTO A. LANGE, District Judge.
Following a trial on July 7, 8, and 9, 2010, a jury returned a verdict finding Shana Schmidt guilty of assault with a dangerous weapon and assault resulting in serious bodily injury. CR 09-30079-RAL, Doc. 74. This Court sentenced Schmidt to fifty-one months in prison on each count, with the sentences to run concurrently. CR Doc. 123; CR Doc. 124. This Court also ordered Schmidt to pay restitution of $64, 088.06 to the South Dakota Medicaid Office of Recovery and $193.50 to the South Dakota Crime Victims' Compensation Program because these entities had covered medical costs and expenses incurred by Brittany Shaw, the victim of Schmidt's assault. CR Doc. 124. Schmidt filed a Notice of Appeal to the United States Court of Appeals for the Eighth Circuit, which affirmed the restitution award. United States v. Schmidt , 675 F.3d 1164, 1166 (8th Cir. 2012).
Schmidt now has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in this case. CIV Doc. 1; CIV Doc. 4. Schmidt contends that her court-appointed counsel did not provide effective assistance of counsel allegedly by not introducing medical information about the defendant, not presenting information on alleged witness tampering or false or perjured testimony, misleading or misinforming the defendant, and failing to appropriately argue against restitution. CIV Doc. 4. This Court screened the case and ordered the Government to file a response. CIV Doc. 5. The Government resisted the motion and sought an order regarding attorney-client privilege waiver, which this Court granted. CIV Doc. 9. Schmidt opted to sign the attorney-client privilege waiver form. CIV Doc. 10. Her trial counsel Jana M. Miner, the senior litigator for the Federal Public Defender's Office for North and South Dakota, filed an affidavit providing the Court with additional information. CIV Doc. 11. The Government then answered resisting Schmidt's § 2255 motion and filed its own motion to dismiss. CIV Doc. 15; CIV Doc. 16.
After Schmidt failed to file a reply within her time to do so, this Court entered an Order Directing Petitioner to Reply. CIV Doc. 17. This Court then entered a second Order Directing Petitioner to Reply, after it appeared that Petitioner had not received the first order. CIV Doc. 19. Schmidt then submitted a letter requesting an additional 30 days within which to reply. CIV Doc. 20. This Court granted Schmidt's letter request and enlarged the time for her to reply to January 6, 2014. CIV Doc. 21. Even so, Schmidt still did not file a reply. For the reasons explained herein, this Court denies Schmidt's § 2255 motion.
I. Facts from the underlying criminal case
Shana Schmidt was indicted on one count of assault with a dangerous weapon and one count of assault resulting in serious bodily injury. CR Doc. 1. The Indictment alleged that, on or about July 11, 2009, in Todd County, in Indian country, in the District of south Dakota, Shana Schmidt, an Indian, unlawfully assaulted Brittany Shaw with a dangerous weapon and caused serious bodily injury in violation of 18 U.S.c. § 113(a)(3) and (6) and 18 U.S.C. § 1153. Schmidt was appointed Miner as her attorney. Schmidt pleaded not guilty and the case went to trial in July of 201O.
Schmidt's assault of Shaw occurred during the early morning hours of July 11, 2009, in South Antelope where Schmidt had been hanging out with her friend Melanie Old Lodge. There was no question that Schmidt is an "Indian" for purposes of federal criminal jurisdiction and that the community of south Antelope is in Indian country, being on the Rosebud Indian Reservation in South Dakota. Schmidt and Old Lodge had been drinking alcohol in the hours leading up to the assault.
Shaw likewise had been drinking in the hours before the assault with a group of fellow young women, including Sonny Prue, Shakira Rattling Leaf, Vanessa Black Bear, and Angeline Andrews. Shaw drove her group to the South Antelope community in the early morning hours of July 11, 2009, to a location near to where Schmidt and Old Lodge were drinking. Prue, who is Shaw's cousin, got out of the vehicle and talked with her aunt outside a home where others were gathered. Prue supplied her aunt with a beer. Prue got back into the front passenger seat of Shaw's car, and Shaw planned to drive away. At that point, Schmidt's friend Melanie Old Lodge threw a beer bottle at the car. Prue and Shaw got out of the car and confronted Old Lodge. Prue and Old Lodge shoved each other and a fight ensued. During this first fight, Prue and Old Lodge were scuffling, and Old Lodge's brother pushed Prue away and broke up the fight. As this initial scuffle was occurring, Schmidt grabbed Shaw by the hair and hit her, and Shaw appeared to be fighting back against Schmidt. This initial confrontation between Schmidt and Shaw then broke apart.
After Shaw and Schmidt were separated, Schmidt went to a nearby vehicle. She reached into the vehicle and came back toward Shaw with her hand lowered and something in her hand. Schmidt then attacked Shaw. Shaw immediately went down and began bleeding profusely from her neck. No witness saw exactly what Schmidt had in her hand when she struck Shaw. However, multiple witnesses-Sonny Prue, Angeline Andrews, Julie Sitting Bear, who was in a vehicle behind Shaw's car, Shakira Rattling Leaf, and Vanessa Black Bear-all saw Schmidt strike Shaw and Shaw thereafter bleeding from her neck. Prue saw Schmidt jumping around and yelling profanities after striking Shaw and further saw something shiny in Schmidt's hand.
Shaw suffered a life-threatening injury. Shaw was transported to Avera McKennan Hospital in Sioux Falls, where she arrived intubated and on a respirator. Shaw was given six units of blood, as she sustained extensive blood loss and had very low blood pressure. The general surgeon who performed the initial surgery on Shaw found a penetrating injury to the right side of her neck that was three centimeters in width and six inches in depth. Shaw's jugular vein had been wounded and she had an injury to her innominate artery. Shaw underwent three surgeries during the course of her twenty-one-day hospitalization in recovering from the injury.
Schmidt presented a defense case consisting of a number of witnesses who had been present in the area and did not see what had happened. Among other witnesses, Schmidt called Melanie Old Lodge who testified that she was very intoxicated and got "ganged." Schmidt also called Dusty Old Lodge who testified that he intervened to protect his sister Melanie when Prue and Shaw were attacking her. Neither of those two, like other defense witnesses, saw what happened between Schmidt and Shaw in the second confrontation nor knew how Shaw got hurt. That is, only the prosecution witnesses testified about what occurred between Schmidt and Shaw and how Shaw got stabbed.
Schmidt took the stand and testified that she remembered Prue bringing her aunt beer and thereby confirmed her presence at the scene. Schmidt recalled Melanie Old Lodge getting into a fight with Prue, Shaw, and Shakira Rattling Leaf. According to Schmidt's testimony, despite Old Lodge being her friend, Schmidt just stood there. According to Schmidt, Prue and Shaw then confronted Schmidt and beat her up even though Schmidt had done nothing. Schmidt denied attacking Shaw and denied stabbing Shaw. Schmidt said she left the scene of the fight because she herself was injured. There was no testimony, however, from any witness that anyone fought with Shaw that night other than Schmidt.
Schmidt was found guilty by the jury of both assault with a dangerous weapon and assault resulting in serious bodily injury. Schmidt filed a motion for a new trial, which this Court denied. CR Doc. 92; ...