United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING THE GOVERNMENT'S MOTION TO DISMISS
ROBERTO A. LANGE, District Judge.
Bryan Austin Boneshirt (Boneshirt), an inmate serving a 576-month sentence in the custody of the Federal Bureau of Prisons for second-degree murder, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc. 1. Several months later, attorney Ronald A. Parsons, Jr., filed on behalf of Boneshirt an Amended Motion to Vacate, Set Aside, or Correct Pursuant to 28 U.S.C. § 2255. Doc. 5. The Government responded to Boneshirt's motion and filed a Motion to Dismiss for Failure to State a Claim. Docs. 14, 15. For the reasons set forth below, the Government's Motion to Dismiss is granted.
Boneshirt's asserted grounds for § 2255 relief are based primarily on legal, rather than factual, arguments and issues. Boneshirt did not request an evidentiary hearing and abandoned his one initial claim-ineffective assistance of counsel-that would require additional information in the record. Thus, this case can be decided on the record in Boneshirt's underlying case and the motion and filings in this proceeding. "No hearing is required... where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.'" Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (quoting Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007)). Therefore, an evidentiary hearing is not needed.
Boneshirt was born on May 3, 1992. On November 1, 2009, Boneshirt, at that time a seventeen-year-old member of the Rosebud Sioux Tribe, and Marquita Walking Eagle, a nineteen-year-old member of the Rosebud Sioux Tribe, were at a party in St. Francis, South Dakota, on the Rosebud Indian Reservation, where both consumed alcohol. 10-CR-30008-RAL, Doc. 75 at 1-2. Boneshirt and Walking Eagle walked together to a store in St. Francis on November 1, 2009. Id . Later that day, Walking Eagle's lifeless body was found in an abandoned and dilapidated home in St. Francis. 10-CR-30008-RAL, PSR at ¶¶ 17, 19. Her hands were bound behind her back. She was naked from the waist down with her pants around her ankles and clothes removed from her breast area. 10-CR-30008-RAL, Doc. 75 at 2. There was evidence that she either had been raped or had engaged in sexual intercourse. Her face was battered and badly swollen, particularly on the left side. Id. at 2. Walking Eagle had been strangled to death. Id. at 2-3.
While Tribal Police were learning of the murder, Boneshirt packed a bag and attempted to flee by walking from St. Francis toward his mother's house in Rosebud. 10-CR-30008-RAL, PSR at ¶ 19. Boneshirt had a cell phone with him at the time, which he used to call family members. Id . During those conversations, Boneshirt made incriminating statements about having murdered Walking Eagle. Id . When arrested, however, Boneshirt initially denied having done anything to Walking Eagle. 10-CR-30008-RAL, Doc. 91 at 18; Doc. 107 at 148-49.
After Boneshirt's apprehension, the Government on January 29, 2010, charged Boneshirt in a Juvenile Information with one count of First Degree Murder and one count of Aggravated Sexual Abuse of Walking Eagle. 10-CR-30008-RAL, Doc. 1. On February 9, 2010, the Government filed a Motion to Transfer, Doc. 22, seeking to treat Boneshirt as an adult on the first-degree murder and aggravated sexual assault charges. Boneshirt was represented by counsel from the Federal Public Defender's Office. Eventually Boneshirt, with counsel, negotiated a plea agreement in which he agreed to be proceeded against as an adult and to plead guilty to a Superseding Information charging him with second-degree murder. 10-CR-30008-RAL, Doc. 74 at 2.
As part of entering into a plea agreement, Boneshirt signed a Factual Basis Statement, which provided his story as to what occurred. The Factual Basis Statement, which Boneshirt affirmed under oath during his change of plea hearing to be accurate, stated:
On or about the 1st day of November, 2009, at St. Francis, Todd County, in Indian country, in the District of South Dakota, Bryan Austin Boneshirt, an Indian, did unlawfully and with malice aforethought, murder a human being, Marquita Walking Eagle, by choking Marquita Walking Eagle, in violation of 18 U.S.c. §§ 1153 and 1111.
On November 1, 2009, Bryan Boneshirt was drinking alcohol with Marquita Walking Eagle, date of birth, March 15, 1990, and some other friends in St. Francis, South Dakota. Mid-afternoon, Boneshirt and Walking Eagle left the residence where they were drinking and walked together towards a local convenience store and attempted to buy cigarettes. Unsuccessful in an effort to obtain cigarettes, Boneshirt and Walking Eagle entered an abandoned house near the convenience store.
Around an hour later, Boneshirt arrived at his brother Koty Arcoren's house. Boneshirt told Koty that he had murdered Walking Eagle. Koty and other family members and friends went to go check on the abandoned house and Walking Eagle's condition and the police were notified. The police went to the abandoned house and found Walking Eagle, who was naked from the waist down and her bra and sweater had been moved, exposing her breasts. Her pants were down around her ankles. The left side of her face was swollen and had been beaten.
An autopsy was performed on Walking Eagle's body on November 3, 2009, by Doctor Donald Habbe at the Rapid City Regional Hospital. During the autopsy, Dr. Habbe noted petechia (broken blood vessels which formed red blots on the iris) in both eyes and a subdural hemorrhage (bleeding below the skull) on the brain. Dr. Habbe advised that the injuries would be consistent with asphyxiation secondary to manual strangulation and blunt force trauma. Dr. Habbe found that Walking Eagle suffered a contusion around her left eye, a contusion on her chin area, a bloody nose, and other injuries.
During an interview with law enforcement, Boneshirt said he had consensual sexual intercourse with Walking Eagle. He said he and Walking Eagle got angry with each other and he used his fists to strike Walking Eagle about the head and body, causing her to receive injuries. He choked her to death. Boneshirt intended to act with malice aforethought and did willfully act in callous and wanton disregard of the consequences to human life when he beat Walking Eagle about the face, and choked her to death.
Bryan Austin Boneshirt is an "Indian" under the provisions of 18 U.S.c. § 1153 in that he is an enrolled member of the Rosebud Sioux Tribe, enrollment number 345U032997 and 51/64 degree Indian by blood and the offenses occurred in St. Francis, in Todd County, South Dakota, in Indian country, which is within the exterior boundaries of the Rosebud Indian Reservation. This location is "Indian Country" within the provisions of 18 US.c. §§ 1151, 1153, and 5032.
10-CR-30008-RAL, Doc. 75. Boneshirt pleaded guilty to the Second Degree Murder charge on June 9, 2010. 10-CR-30008-RAL, Doc. 83.
In June of 2010, Boneshirt was in custody at the then-new Hughes County Jail. The Hughes County Jail housed Boneshirt in the men's work-release area along with several other males who faced charges as juveniles but who, like Boneshirt, had turned eighteen while in custody. 10-CR-30008-RAL, Doc. 107 at 25-26. The work-release area was like a dormitory room with bunk beds and living space, to which was attached a bathroom and shower area. 10-CR-30008-RAL, Doc. 107 at 30-31, 34, Ex. 10. On the evening of June 9, 2010, after Boneshirt returned to the Hughes County Jail from pleading guilty as an adult to second-degree murder, guards noticed unusual activity in the area where Boneshirt was housed, including inmates spending excessive time in the bathroom area and one inmate walking a circle and pausing to look out the window as if checking on whether a guard was coming. 10-CR-30008-RAL, Doc. 107 at 18-19, 21-22. The next day, on June 10, 2010, Hughes County Jail officials searched the work-release area and found a shank, cement block beneath a bunk, and other items fashioned into weapons. 10-CR-30008-RAL, Doc. 107 at 63-76, 105, 145-48. Separate interviews of those in the work release area - and testimony at Boneshirt's sentencing hearing - established that Boneshirt was at the center of a plan to break out of the Hughes County Jail. 10-CR-30008-RAL, Doc. 107 at 91-110.
Boneshirt had discovered that he could climb up above a toilet where he was out of view of security cameras, move aside a ceiling tile, and get into an area above the ceiling. 10-CR-30008-RAL, Doc. 107 at 50-55, 94-99. Boneshirt had pried loose and removed a cinder block in the crawl space above the ceiling. 10-CR-30008-RAL, Doc. 107 at 104. Boneshirt had used a blanket wrapped around himself to carry the cinder block undetected to place it beneath a bunk bed out of view of security cameras. 10-CR-30008-RAL, Doc. 107 at 107. Boneshirt and others then used the cinder block to sharpen objects into shanks. 10-CR-30008-RAL, Doc. 107 at 94, 99-105, 128. Boneshirt had explored how far he could move about in the crawl space above the ceiling and could get to a point beyond a security door. 10-CR-30008-RAL, Doc. 107 at 94-96. Boneshirt's plan was to drop down through the ceiling at that point where there might be just one guard between him and escape from the jail. 10-CR-30008-RAL, Doc. 107 at 94, 109-10. Three other young men, none of whom faced charges as serious as did Boneshirt, agreed to join in Boneshirt's escape plan. 10-CR-30008-RAL, Doc. 107 at 108-10, 121-22, 125. None of those other three offenders faced prison sentences anywhere close to as long as Boneshirt's sentence. Boneshirt volunteered to take the lead, explaining that he had killed before and could kill again. 10 CR-30008-RAL, Doc. 107 at 108.
On September 13, 2010, this Court conducted Boneshirt's sentencing hearing. 10-CR-30008-RAL, Doc. 96. Between 1:05 p.m. and 6:55 p.m, this Court heard testimony and received exhibits from many witnesses, heard argument concerning and ruled on objections to the presentence investigation report, considered victim impact statements, listened to statements on behalf of Boneshirt, considered argument of counsel and Boneshirt's allocution, and provided explanation and analysis of the factors under 18 U.S.c. § 3553(a). This Court considered Boneshirt's crime and subsequent conduct. This Court considered Boneshirt's personal history, which revealed a troubled and difficult upbringing. Boneshirt, among other things, had faced charges in Rosebud Sioux Tribal juvenile court on fifteen prior occasions, ...