United States District Court, D. South Dakota, Central Division
JEFFREY W. PROVANCIAL, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS AND DENYING § 2255 MOTION
ROBERTO A. LANGE, District Judge.
Petitioner Jeffrey W. Provancial ("Provancial") filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. CIV Doc. 1. Provancial is in federal custody having pleaded guilty to a sexual abuse count and having been sentenced to 108 months in the custody of the Bureau of Prisons on that conviction. CR Doc. 34. Provancial appealed his sentence to the United States Court of Appeals for the Eighth Circuit, which affirmed this Court's sentence. United States vs. Provancial, 438 F.Appx. 529 (8th Cir. 2011) (per curiam). Provancial's § 2255 motion raised two grounds: (1) ineffective assistance of counsel based on the contention that Provancial's guilty plea was "tendered in an unknowing and involuntary manner, because his attorney failed to fully investigate the case before advising him to plead guilty"; and (2) insufficient factual basis for his plea in that allegedly no finding was made that Provancial knew that the victim of his offense was incapacitated at the time of the sexual abuse. CIV Doc. 1 at 4-5. This Court screened Provancial's petition and ordered that the United States attorney file an answer. CIV Doc. 5.
The United States filed a motion for an order directing an affidavit response, CIV Doc. 6, which this Court granted. CIV Doc. 8. Provancial executed an attorney-client privilege waiver. CIV Doc. 9. The Government then filed its motion to dismiss. CIV Doc. 13. After a month had elapsed without Provancial responding, this Court entered an order directing petitioner to reply giving him an additional month to submit his reply. CIV Doc. 14. Provancial filed his reply a few days beyond the deadline to do so, CIV Doc. 15, but this Court has considered Provancial's reply as if timely filed in evaluating whether Provancial is entitled to relief and whether the Government is entitled to dismissal.
I. Summary of Facts
On July 13, 2010, Provancial was indicted on one count of aggravated sexual abuse by force and one count of sexual abuse. CR Doc. 3. Provancial originally pleaded not guilty and was appointed counsel Randall Briggs Turner from the Federal Public Defender's Office. CR Doc. 9; CR Doc. 10.
On November 16, 2010, Provancial entered into a plea agreement with the Government under which he was to plead guilty to the second count for sexual abuse with the greater offense contained in Count I of aggravated sexual abuse being dismissed. CR Doc. 23. Provancial signed a factual basis statement setting forth the following:
On or about April 11, 2010, in Todd County, in Indian country, in the District of South Dakota, Jeffrey W. Provancial, an Indian, did knowingly engage in and attempt to engage in a sexual act, that is, contact between his penis and the vulva of [the victim], who at the time was incapable of appraising the nature of the conduct and was physically incapable of declining participation in and communicating unwillingness to engage in the sexual act.
On April 10, 2010, 17-year-old [victim] was drinking with friends. The next morning she went to Jeffrey W. Provancial's residence to drink with Provancial and Brent Good Shield. She drank with them for most of the night, going to bed "after daylight." [The victim] started to wake later on April 11, and noticed someone had taken her clothes off. She noticed that the defendant had gotten on top of her and told her to be quiet. At that time, the defendant had his penis inside her vagina.
When interviewed, the defendant stated that Good Shield and [the victim] arrived at his residence to drink. Good Shield later left the residence. The defendant went to his room and saw [the victim] passed out and naked on his bed. He tried to wake her, but he could not. He informed the interviewing agent that then "something just happened." The defendant stated that he pulled down his pants, got on top of [the victim] while she was passed out, and put his penis in her vagina. He said that when he did that, she woke up. He stated that [the victim] did not tell him to stop, and he only stopped because his condom broke. The defendant provided a handwritten statement, admitting that he had sex with [the victim], without her consent, while she was passed out. The defendant stated he was sorry for what he did and wishes he had never done a thing.
CR Doc. 25. The factual basis statement also acknowledged that Provancial is an "Indian" and that the offense took place in "Indian country." CR Doc. 25.
On November 24, 2010, this Court conducted a change of plea hearing in Provancial's case. CR Doc. 29; CR Doc. 46. Provancial took an oath to tell the truth at that hearing before this Court asked any questions of him and confirmed that he understood his obligation to answer questions of the Court truthfully. CR Doc. 46 at 3. After initial questioning, this Court determined that Provancial was competent to go forward with the proposed change of plea. CR Doc. 46 at 5. During those initial questions, the following exchange occurred:
THE COURT: Are you fully satisfied with the counsel, representation and advice given to you by Mr. Turner? THE DEFENDANT: Yes, I am.
CR Doc. 46 at 4-5.
The Court advised Provancial about the offense to which he was proposing to plead guilty, including advising Provancial of the possible penalties he faced, rights that he had to a jury trial which he would be giving up, and the sentencing process. CR Doc. 46. After determining that Provancial had voluntarily signed the plea agreement, the Court asked Provancial the following questions:
THE COURT: Next, the Court wants to ask you about the factual basis statement. Do you have that in front of you?
THE DEFENDANT: Yes, sir.
THE COURT: Did you carefully read and understand the factual ...