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 UNITED STATES DISTRICT JUDGE
Petitioner was convicted of two counts of sexual abuse of a minor and two counts of abusive sexual contact. He was sentenced to a total sentence of 71 months custody. He appealed and the United States Court of Appeals for the Eighth Circuit affirmed. United States v. Seibel 712 F.3d 1229 (8th Cir. 2013). Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.§ 2255, contending that (1) he received ineffective assistance of tribal court counsel, (2) received ineffective assistance of federal trial counsel, and (3) the prosecutor committed misconduct.
Petitioner and his wife, Cindy, were foster parents for three very young children beginning in 1997. SS, a girl, was born July 26, 1994, MS, a boy, was born August 19, 1995, and PS, a girl, was born November 23, 1996. In July 1997, when SS was nearly three years old, MS was nearly two years old, and PS was nearly eight months old, the children, along with their older siblings, were removed from their home amid allegations that their older siblings had been sexually abused by their natural father. SS, MS, and PS were eventually placed in the Seibel's foster care and were adopted by the Seibels seven years later in 2003. The adoption contract prepared by the Department of Social Services disclosed that the children had a possible history of fetal alcohol syndrome, fetal alcohol effect, post traumatic syndrome, academic problems, anxiety disorders, and sexual abuse. None of the foregoing were ever diagnosed by a professional and no person was ever charged with having sexually abused the children prior to their placement with the Seibels.
The children began having behavioral problems at home and started seeing Pat Poitra, a counselor at Three Rivers Mental Health Center. They did not report any physical or sexual abuse to Poitra. PS and SS began seeing Elisa Kelley, another counselor at Three Rivers, in August of 2009. Kelley would see the girls at the McLaughlin school during the school year and at the Seibel home during the summer. In the fall of 2010, MS went to live at the Pierre Indian Learning Center.
On December 6, 2010, PS reported to her counselor, Elisa Kelley, that her father, the petitioner, physically abused her and her sister. Kelley reported the abuse to the Standing Rock Sioux Tribe Child Protection Services and the report was referred to the Bureau of Indian Affairs Office of Justice Services.
PS was interviewed on December 8, 2010, in her school principal's office by Donovan Wind and Misty Plenty Holes, special agents with the Bureau of Indian Affairs. The school principal, Lisa Bielawski, and Waylan Bad Hand, a Standing Rock Sioux Tribe child protection worker, were also present. Plenty Holes, Bad Hand, and Bielawski asked questions of PS.
PS reported that her dad had been touching her vagina since she was six years old. She also reported that, on at least eleven occasions, he had tried to have intercourse with her, that when he did so she would cry, scream, and try to run out of the room, and that he would drag her back in and put a pillow on her face. She reported that she was made to touch his penis and that he had tried to force her mouth on his penis. She reported that she told her mother but that her mother did nothing. She reported that, on the most recent Sunday night, he came into her bedroom with a condom and tried to get into bed with her. He told her that if she screamed, she would get slapped. She reported that she hollered for her mother and that he got mad and hit the wall, causing a hole.
On December 8, 2010, the children were removed from the Seibel home by the Standing Rock Sioux Tribe Child Protection Services and placed at the Lake Oahe Group Home in Ft. Yates, North Dakota. The tribal court ordered petitioner to have no contact with the children and Cindy was awarded supervised visitation. SS was soon placed in a foster home in Ft. Yates. She left the foster home in December and was placed at the New Beginnings Center in Aberdeen, South Dakota.
PS was interviewed by Shannon Hilfer, a forensic interviewer at the Dakota Children's Advocacy Center in Bismarck, North Dakota, on December 20, 2010. PS, who was then age 14, reported that petitioner touched her genitals more than five times and forced her to touch his genitals more than five times. She reported that petitioner hit her and once put a pillow over her head when she yelled for her mother.
SS was interviewed by Federal Bureau of Investigation special agent Ten Miller on February 4, 2011, at the New Beginnings Center. She was age 16 at the time of the interview. Lynn McCafferty, a counselor at the center, and Joan Halvorson, a victim specialist with the FBI, were also present. SS reported that her father would repeatedly hit and beat PS and once hit PS with a belt. He would less frequently hit SS. SS claimed to have reported the physical abuse to Cindy. SS reported that PS told Cindy their father sexually abused her. SS also reported that their father had sexually abused her as well, including digital penetration, being forced to touch his penis, him performing oral sex upon her and vaginal sexual intercourse. SS reported that the sexual abuse began when she was age 11 and continued until age 15. She stated that she reported the sexual abuse to Cindy many times.
Jim Cerney testified that he was appointed by the Standing Rock Sioux Tribe as guardian ad litem for S.S. and P.S. on December 20, 2010. Rose Ann Wendell was retained by the Seibels to represent them in conjunction with tribal court abuse and neglect proceedings. Cerney testified that he met with Cindy at least twice prior to March 3, 2011, and that Cindy denied to him that the children ever told her about the abuse. Cindy wanted to regain custody of the children and Wendell corresponded with Cerney and the tribal investigator in an effort to make that happen. Wendell and Cerney arranged for Cindy to be interviewed on March 3, 2011. Cerney had made it clear that Cindy needed to convince him that she was cooperating with authorities and would protect the children if they were returned home. Some time prior to that interview, Wendell claims she told the Seibels that Mike would have to obtain his own attorney but Wendell did not formally withdraw in tribal court until after March 3.
On March 3, 2011, Cindy was interviewed by police officer David Lawrence, F.B.I. Special Agent Ted Miller, Cerney, and Wendell. Wendell participated in that interview by telephone.
On March 18, 2011, P.S., Elena Roberts, who was PS's social worker from Child Protection Services, F.B.I. Special Agent Daniel Orr, B.I.A. officer Dave Lawrence, and Jim Cerney met Cindy at the Seibel home to determine whether or not there was a hole in the wall of PS's bedroom as she had claimed. The hole was in fact present where PS had described it but the hole had been repaired. PS' room had been painted and Lawrence testified that the room was "spotless" compared to the other rooms in the house. Cerney testified at trial that the girls' rooms had been "sanitized." Cindy had previously told Cerney that petitioner never punched a hole in the wall. Cerney testified that he confronted Cindy about her earlier statement and she then admitted to Cerney that petitioner had punched a hole in the wall but not because of any abuse. Cerney told Cindy that it looked like she and petitioner had engaged in a cover up and he was going to do everything he could to have petitioner indicted.
Although Cindy claimed petitioner was not living in the home, an empty pop bottle being used as a spittoon was left in PS's bedroom. Lawrence testified that he viewed that as an indication that petitioner had in fact been in the home because petitioner chews tobacco.
An indictment was filed on April 12, 2011, charging petitioner with 14 counts involving aggravated sexual abuse of a child under the age of 12, sexual abuse of a minor, abusive sexual contact, and child abuse, the victims being SS and PS. The sexual abuse is alleged to have occurred between 2002 and 2010. The abuse of SS was alleged to have begun when she was age eleven and continued until she was age sixteen. The abuse of PS was alleged to have begun when she was age six and continued until she was age fourteen.
A jury trial was conducted in August 2011.
PS testified at trial that her father started touching her in a sexual manner when she as about six years old, that he would touch her under her underwear and that it happened several times. She testified that he would get mad and tell her to shut up if she called out for her mother and that he would threaten to hit her. She testified that he would come into her bedroom at night and touch her and when she would call out for her mother, he would put a pillow over her face. She testified that he tried to remove her underwear and tried to have intercourse with her and tried to put his penis in her mouth. She testified that, when she was home from school ill, he would come home for lunch and try to touch her.
PS testified that, after the abuse started, she would avoid being at home and would ask to stay at "aunt Kayla's" house. She testified she saw her father touch her sister SS and would hear SS screaming in her room.
PS testified that she told her mother, that her parents subsequently argued, and that her father punched a hole in the wall. She testified that the abuse continued after she told her mother.
SS testified that the petitioner began touching her breasts under her clothing when she was eleven years old. She testified that eventually the abuse included petitioner penetrating her vagina with his fingers, forcing her to touch his penis with her hands, petitioner placing his mouth on her vagina, and, when she got older, sexual intercourse. The alleged abuse sometimes took place in her sister's bedroom. She ...