United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING
ROBERTO A. LANGE, District Judge.
Petitioner Jeffrey Betone was convicted of two counts of sexual abuse in violation of 18 U.S.C. § 2242 in this Court. United States v. Betone, CR 09-30011-RAL, Doc. 97, Doc. 120. Betone has filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Doc. 1. Betone also filed a supplemental motion to vacate, set aside or correct sentence, which provided additional information on his claims, Doc. 4, and a Memorandum of Law, Doc. 9. The Government filed a response, Doc. 19, and Betone filed a reply, Doc. 20. Through a previous Opinion and Order, Doc. 22, this Court denied the § 2255 motion in part and appointed counsel for Betone. After allowing certain discovery, this Court scheduled and held an evidentiary hearing on some of Betone's claims. So that all of this Court's reasoning and ruling is together, this Court incorporates part of the previous opinion and order in this decision.
A. Underlying Criminal Case and Conviction
1. Pretrial Proceedings
Betone was indicted on February 11, 2009, on three counts of sexual abuse in violation of 18 U.S.C. §§ 1153, 2242(1)-(2) and 2246(2)(A)-(B). CR 09-30011-RAL, Doc. 1. Count I charged Betone with sexual abuse by oral copulation of Tate Jensen on the night of March 9, 2005, while Jensen was passed out and had not provided consent. Id . Counts II and III charged Betone with sexual abuse through oral copulation and anal-penile penetration of Valance Blue Arm on May 5, 2008, while Blue Arm was threatened and placed in fear. Id . Betone was charged in federal court under 18 U.S.C. § 1153, and stipulated at trial that he was an "Indian" and that the places where the alleged offenses took place were in "Indian country." CR 09-30011-RAL, Docs. 1, 82.
Edward Albright was the attorney initially assigned to represent Betone when the Federal Public Defender was appointed as counsel on February 17, 2009. Doc. 19-1 at ¶ 1. Jana Miner, the Senior Litigator of the Federal Public Defender's Office for North and South Dakota, filed a Notice of Appearance and became primary counsel for Betone on May 12, 2009, and represented Betone during his jury trial. Doc. 19-1 at ¶ 1. Betone's defense and testimony at trial was that he had engaged in consensual sex acts with both victims on the nights in question. Both Jensen and Blue Arm testified at trial that the sexual acts were not consensual.
2. Facts From Trial
a. Count I - Sexual Abuse of Tate Jensen
During the jury trial, several witnesses testified concerning the charge in Count I of Betone's sexual abuse of Tate Jensen at Sherry Turning Heart's apartment. Those witnesses were Jensen, CR 09-30011-RAL, Doc. 101 at 35-68; Sherry Turning Heart, id. at 135-74; Turning Heart's juvenile son, id. at 69-97; Officer Justin Webb, id. at 185-220; special agent of the Federal Bureau of Investigation (FBI) Oscar Ramirez, id. at 237-332; and Betone himself, id. at 457-549. The testimony was consistent in explaining what led up to the time when Jensen and Betone were together at Turning Heart's apartment. In short, Jensen had driven to Eagle Butte and went to the Golden Rule Saloon in Eagle Butte where he met up with Turning Heart. The two of them drank alcohol together until the bar was closing. Id. at 37-39, 140-42. Turning Heart invited others at the bar to continue drinking at her apartment three blocks from the bar. Id. at 39, 142. Jensen, who lived in Lantry and not in Eagle Butte, asked Turning Heart whether he could stay overnight at her apartment because he was too intoxicated to drive. Id. at 43, 145. Turning Heart agreed. Id.
Betone, though only nineteen as of March 9, 2005, also was drinking at the Golden Rule Saloon that night. Id. at 460-61. Betone and others went from the bar to Turning Heart's apartment for an "after party." Id. at 462. Betone, like Jensen and Turning Heart, was intoxicated. Id. at 462. Jensen flirted with Turning Heart at her apartment and spoke with Betone, id. at 40-42, 464; Betone at trial told the jury that it was not ordinary for a straight man to talk with a gay guy, id. at 464. As of March of 2005, Betone knew that he was homosexual, but was not yet open publicly about his sexual orientation. Id. at 464.
Around 3:00 a.m., Jensen asked where to sleep, and Turning Heart directed Jensen to sleep on a couch on the main level of the apartment. Id. at 43-46, 144-45. Turning Heart asked all others including Betone to leave, but Betone did not do so at that time. Turning Heart's two bedrooms were upstairs in the two-level apartment. Id. at 145. Turning Heart then went upstairs to a bedroom to go to sleep with her son, who at the time was nine or ten years of age. Id . Jensen, as he put it, "passed out" on the couch. Id. at 46-47.
Jensen described at trial that he was sleeping and then felt something touching his penis area. Id. at 47. He awoke to find his pants unzipped, his penis out, and the sensation of a mouth touching it. Id . Jensen was not sure initially what was going on, heard something beside him, and jumped up to go to the nearby bathroom, where he splashed water on his face. Id. at 47-48. Jensen then saw Betone crawling on the floor by the couch. Id. at 48. Jensen testified at trial that he was not homosexual and did not give consent for Betone to perform fellatio on him. Id . Jensen then decided "to defend" himself and punched Betone in the face. Id. at 49. Betone told Jensen "it wasn't me." Id . By this time, Turning Heart had awakened and had come downstairs. Turning Heart split Betone and Jensen apart and kicked Betone out. Id. at 50-51. Jensen did not call the police, was clearly embarrassed as he testified at trial, and came across at trial as a credible witness.
Turning Heart's trial testimony differed somewhat from the testimony of her nine- or ten-year-old son. Turning Heart's son testified that, after his mother came to bed and went to sleep, he went downstairs to get a drink of water; he saw Jensen laying on the couch with his pants down and with Betone beside him on the floor. Id. at 76, 79-81. According to the boy, Jensen got up, pulled his pants up, went to the bathroom, and called for Turning Heart, so the boy went to get his mother up. Id. at 81-83. The boy followed Turning Heart downstairs and saw Jensen hit Betone and Betone leave thereafter. Id. at 83, 86.
Turning Heart recalled being awakened by her son and going downstairs. Id. at 146-47. She testified that she observed a person on his knees moving about and flipped on the light. Id. at 147. Turning Heart recalled seeing Jensen motionless on the couch with his pants down. Id. at 147-48. Betone was next to the couch near Jensen. Id. at 148. Jensen awakened and was upset with Betone, pushed Betone, and then was crying. Id. at 149, 174. After Betone left Turning Heart's apartment, Turning Heart called the police and, without identifying herself, gave them a description of Betone and told them that they needed to look for him. Id. at 150-52.
Cheyenne River Sioux Tribe police officer Justin Webb was dispatched at 3:38 a.m. on March 9, 2005, to Turning Heart's apartment complex based on a call from an unidentified female. Id. at 187-88. Officer Webb located Betone moving at a staggered run without shoes and with blood on his face from an apparent broken nose. Id. at 189-92. Betone responded to Officer Webb rationally, but with slurred speech, saying that he had fallen. Id . Officer Webb believed Betone's injuries were more consistent with a fight and questioned Betone further. Betone became irritated with the questioning. Id . Under tribal law, Officer Webb took Betone into protective custody and transported Betone to the Bureau of Indian Affairs Indian Health Service (IHS) emergency room in Eagle Butte. Id. at 192. Officer Webb then responded to another call, leaving Betone at the IHS emergency room. Id. at 193. Once Officer Webb left, Betone likewise left the IHS emergency room. Id. at 193-94. Officer Webb contacted Betone the next day, and Betone said that he was too embarrassed to tell how his injury occurred. Id. at 194-95. Officer Webb later talked with Turning Heart who supplied Jensen's name to Officer Webb. Id. at 196-98. No charges were pursued against Betone at that time. Id. at 207, 212. Officer Webb relayed his information to the FBI three years later when the FBI was investigating Betone for conduct involving Valance Blue Arm. Id. at 215-16.
After the FBI received a report that Betone had sexually assaulted Blue Arm and learned about the earlier incident involving Jensen, FBI special agent Oscar Ramirez interviewed Betone. Id. at 236-37, 242-69. A portion of that interview was recorded and played to the jury. Id. at 272, 274. As concerns his encounter with Jensen, Betone initially denied having any physical or sexual contact with Jensen. Id. at 256-57. FBI Agent Ramirez challenged Betone and as the questioning continued Betone changed his story to say that he had sexual contact with Jensen. Id. at 260-64. The recorded portion ofthe interview included Betone acknowledging having told FBI Agent Ramirez that Betone thought his sexual contact with Jensen was consensual, "but I guess it wasn't." CR 09-30011-RAL, Trial Exhibit 8 at 4. Betone continued that he was not sure if Jensen was passed out, that he had oral sexual contact using his mouth on Jensen's penis, that the contact lasted for less than one minute, and that Jensen was not making any movement before the sexual contact began. Id. at 5-6. Betone said that he realized what he had done was wrong and embarrassing on his part and for Jensen. rd. at 8. Betone confirmed his understanding that he had admitted to a crime. Id.
Betone's testimony at trial was different than what he had said on tape to FBI Agent Ramirez. At trial, Betone said that Jensen undid his own belt and pushed his own pants down after Betone had been rubbing Jensen's crotch through the clothing. CR 09-30011-RAL, Doc. 101 at 469-70. Betone said that Jensen was alert and did not object to Betone performing fellatio on him, until a stair light came on and footsteps were heard. Id . Betone said Jensen then pushed him away, buckled up his pants, and later punched Betone in the face. Id. at 470-72. Betone acknowledged lying to Officer Webb about how he sustained the injury to his nose and fleeing from the IHS emergency room after Officer Webb had left him there. Id. at 473-74. The jury believed Jensen (bolstered by Betone's recorded admissions to Agent Ramirez), chose not to believe Betone's trial testimony, and thereby convicted Betone of sexual abuse ofJensen.
There was no mention by name either before or during the trial of a prospective witness named DeAnne Lebeau-West. This Court and counsel became aware only after Betone filed his § 2255 motion that Lebeau-West apparently was in the apartment as well when Betone fellated Jensen.
b. Counts II and III - Sexual Abuse of Valance Blue Arm
Valance Blue Arm is a lower functioning adult. At the time of his encounter with Betone on May 5, 2008, Blue Arm was twenty-nine years old. He kept his things and sometimes stayed overnight in a trailer house in Eagle Butte where there was no water, electricity, or heating, but also lived in part with his sister. CR 09-30011-RAL, Doc. 101 at 345. Blue Arm functioned somewhat like a child, enjoying watching cartoons and the Disney channel, and tended to dress in an unusual manner. Id. at 350, 356. Blue Arm and Betone did not know one another before their encounter in May of 2008. Id. at 482.
On the evening of May 4, 2008, Betone had been drinking alcohol at the Golden Rule Saloon. He left the bar around 12:45 a.m. or 1:00 a.m. on the early morning of May 5, 2008. Id. at 480. He was driving his father's two-door Dodge truck and went to buy cigarettes. Id. at 481. Betone then drove side streets in Eagle Butte to avoid the police. Id. at 482. When pressed on cross-examination, Betone admitted that he also took the side streets to look for somebody to have sex with. Id. at 527. Betone found Blue Arm, who was taking out the garbage, and engaged Blue Arm in a conversation. Id. at 369, 482-83. Blue Arm was interested in whether Betone had beer or cigarettes. Id. at 409, 483. Betone gave Blue Arm a cigarette and told Blue Arm ...