United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER DENYING MOTION TO VACATE AND ORDER DENYING CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN, District Judge.
Petitioner was convicted of aggravated sexual abuse of a child and was sentenced to 210 months custody. He appealed his conviction and sentence and the United States Court of Appeals for the Eighth Circuit affirmed. United States v. Rivera, 554 Fed.Appx. 535 (May 16, 2014) (per curiam). Petitioner has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. I have conducted an initial consideration of the motion, as required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
I. Fifth Amendment Due Process Claim.
Petitioner contends that he was denied due process when I denied his suggestion that I recuse myself prior to trial. Petitioner had, prior to trial, signed a plea agreement wherein he agreed to plead guilty to a superseding information charging abusive sexual contact. The matter was set down for a change of plea hearing. At that hearing, counsel for petitioner announced that the petitioner did not wish to enter a plea but instead wished to exercise his right to a jury trial. Counsel moved to withdraw and the petitioner indicated he wished to be represented by a different attorney. The motion was granted and new counsel was appointed. Because counsel immediately notified the Court that petitioner wished to go to trial, no change of plea hearing was held.
Petitioner subsequently filed an affidavit, pursuant to 28 U.S.C. § 144, claiming that, at the previously described hearing, I had stated that I would sentence him to the maximum penalty allowed if he were found guilty and I therefore had a personal bias against him. I listened to the recording of the previously described hearing, confirmed that I made no such statement, and denied his request for recusal. The matter eventually proceeded to trial and the petitioner was convicted.
A transcript of the hearing at issue has been filed. The transcript is consistent with my previous order declining to recuse. There was no basis for recusal prior to trial and there is no basis for a motion to vacate based upon failure to recuse.
II. Sixth Amendment Ineffective Assistance of Counsel Claims.
To support a claim of ineffective assistance of counsel, a two prong test must be met. "To succeed on this claim, [petitioner] must show ineffective assistance-that counsel's representation fell below an objective standard of reasonableness." Wilcox v. Hopkins, 249 F.3d 720, 722 (8th Cir. 2001) ( quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Petitioner "must also prove prejudice by demonstrating that absent counsel's errors there is a reasonable probability that the result of the proceeding would have been different." Delgado v. United States, 162 F.3d 981, 982 (8th Cir. 1998), ( citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d (1984)). The burden of establishing ineffective assistance of counsel is on the petitioner. Delgado v. United States, 162 F.3d at 982. Petitioner "faces a heavy burden' to establish ineffective assistance of counsel pursuant to section 2255." DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000) ( quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).
Petitioner contends that he was denied the effective assistance of counsel when trial counsel failed to obtain a copy of the transcript of the hearing discussed supra, and in failing to more vigorously pursue recusal. As set forth previously, no basis for recusal existed and therefore petitioner was not prejudiced by any claimed failure to more vigorously pursue recusal. There is no basis for a motion to vacate based upon counsel's alleged failure to pursue recusal.
Petitioner contends counsel was ineffective in failing to file any pretrial motion to limit prejudicial statements petitioner allegedly made to Federal Bureau of Investigation ("F.B.I.") agents who interviewed petitioner over seven years after the offense. Petitioner was charged with having sexually abused a child under the age of 12 between October 2002 and October 2004. The victim claimed that the petitioner had sexual intercourse with her at her home in Long Hollow, South Dakota, during the time period that the petitioner was dating the victim's older sister. Petitioner was first interviewed about the allegations by F.B.I. agents in November 2011, when he was living in Georgia. He was indicted on the charge in April 2012.
During trial, F.B.I. Special Agent Tom Clark, who was in the Valdosta, Georgia, office, testified that he received an electronic request to interview petitioner who was then living in Georgia. Agent Clark testified that the he made contact with the petitioner in November 2011, and petitioner agreed to be interviewed at his home. Agent Clark testified that, during that interview, petitioner admitted to having intercourse with the victim at her mother's house in Long Hollow, South Dakota.
Petitioner's counsel cross-examined Agent Clark at length about the circumstances of the interview, that no Miranda warnings were given, that no Griffin rights were read to the petitioner prior to the interview, and that the interview, which counsel described as an interrogation, lasted approximately one and 1/2 hours. Counsel elicited from Agent Clark that, during the interview, Agent Clark asked petitioner about consensual sexual activities with at least two adult women, in addition to his relationship with the victim's sister in 2002. Counsel implied that inquiry into petitioner's activities with those women was intended to confuse petitioner into admitting to sexual activities with the victim. Counsel also inquired why the interview was not tape recorded and why no written statement was taken from the petitioner. The implication of the ...