United States District Court, D. South Dakota, Western Division
ORDER DENYING § 2255 MOTION, GRANTING MOTION TO DISMISS, DENYING SUMMARY JUDGMENT, DENYING APPOINTMENT OF COUNSEL AND EVIDENTIARY HEARING
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
Petitioner, Leroy Clifford Reddest, an inmate in the Federal Correctional Institution in Sandstone, Minnesota, moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1. The government opposes the motion and moves to dismiss. Along with his § 2255 motion, Reddest moves for summary judgment, an evidentiary hearing, and appointment of counsel. For the following reasons, the court denies Reddest’s motions and grants the government’s motion to dismiss.
On December 14, 2005, a federal grand jury indictment charged Leroy Clifford Reddest with three counts of aggravated sexual abuse in violation of 18 U.S.C. §§ 2241(a) and 1153 and three counts of sexual abuse of a minor in violation of 21 U.S.C. §§ 2243(a) and 1153. United States v. Reddest, CR 5:05-cr-50116-KES-1 (hereinafter “CR”), Docket 2. Reddest proceeded to trial, and a jury found him guilty of counts 1, 2, 4, 5, and 6. CR Docket 87. The court entered judgment and sentenced Reddest to 292 months of imprisonment on counts 1 and 5, and 180 months on counts 2, 4, and 6, with the sentences running concurrent. CR Docket 100.
Reddest appealed this verdict. He argued “that the evidence [was] insufficient to support the jury's determination on count  (that he digitally penetrated the victim's genital opening) and that the district court erred by denying his motion for judgment of acquittal on all five counts.” United States v. Reddest, 512 F.3d 1067, 1068 (8th Cir. 2008); CR Docket 120. The court of appeals upheld Reddest’s convictions under counts 1, 2, 5, and 6, but it reversed and vacated his conviction under count 4. Id. at 1073. Under count 4, the district court had found Reddest guilty of “penetration of the genital opening.” Id. The court of appeals held that the evidence did not support this verdict. During the victim’s testimony at trial, in response to the question “He hadn't actually put any part of his hand in you, had he, ” she answered, “[N]o.” Id. at 1072. The court of appeals concluded that “the Government did not meet its burden of proof as a matter of law; no reasonable jury could find Reddest guilty of penetration of the genital opening beyond a reasonable doubt based on the ambiguous and nonspecific evidence produced by the government.” Id. at 1073. On April 14, 2008, the district court amended the judgment and vacated the conviction as to count 4. CR Docket 125. The amendment did not alter Reddest’s sentence.
On October 23, 2014, Reddest moved to vacate, set aside or correct his sentence pursuant to § 2255. Docket 1. The government responded and asserted that Reddest’s petition should be dismissed. Docket 5. In its memorandum in support of the motion to dismiss, the government identifies five grounds raised in Reddest’s petition. The court agrees that these grounds were raised in Reddest’s petition, but also identifies two additional grounds that were set forth in Reddest’s complaint for a total of seven. These are, briefly:
1. Reddest should be re-sentenced under Paroline v. United States, 134 S.Ct. 1710 (2014) and Burrage v. United States, 134 S.Ct. 881 (2014) because these cases announce new statutory maximums. His sentence is longer than these maximums and is now illegal.
2. Counts 1-5 of his indictment constitute repetitive and malicious charging and violate the Fifth Amendment’s double jeopardy clause.
3. The government did not present sufficient evidence at trial to support a conviction. Specifically, the government did not prove that force or threats of force supported an aggravating sentencing factor, there was no circumstantial evidence of penetration to support conviction, the victim’s psychological illness was inadmissible, the victim’s testimony was coached and constituted perjury, and the important facts in the case are either inherently suspicious or can reasonably be explained in a way that shows Reddest was not guilty.
4. Reddest should not have received a ten-year sentence for count 1 because the evidence was insufficient, and the sentence was not supported by his criminal history.
5. The factors in 18 U.S.C. § 3553(a) were not considered during sentencing, specifically Reddest’s history and characteristics, the need for deterrence, public safety, and his need for drug treatment.
6. The letters Reddest wrote admitting abusing and raping the victim were inadmissible evidence.
7. Reddest’s trial counsel was ...