United States District Court, D. South Dakota, Central Division
OPINION AND ORDER FOR DISMISSAL
ROBERTO A. LANGE, District Judge.
Plaintiff Ina Crow Dog ("Crow Dog") pleaded guilty to one count of sexual abuse and received a sentence of 72 months in prison, five years of supervised release thereafter, and a $100 special assessment. United States v. Crow Dog, 12-CR-30034-02-RA.L, Docs. 180, 228, 230, 291. Crow Dog did not appeal this Court's judgment. Meanwhile, Crow Dog's co-defendant Anthony Fast Horse ("Fast Horse") went to trial, was found guilty on the same count of sexual abuse, and received a sentence of 192 months in prison. CR Docs. 202, 236. Fast Horse appealed, had his conviction vacated, was retried, and was found not guilty by a second jury. Docs. 249, 250, 305.
After Fast Horse's acquittal, on April 7, 2015, more than two years after Crow Dog's sentencing from which she did not appeal, Crow Dog wrote a letter to this Court, which this Court directed to be filed as a 28 U.S.C. § 2255 motion, thereby opening this case. CIV Docs. 1, 2. This Court further directed the Clerk of Court to send to Crow Dog the form for filing a § 2255 motion, which Crow Dog completed and returned on June 29, 2015. CIV Doc. 4. Because Crow Dog's§ 2255 motion was filed beyond the one-year time limitation set by 28 U.S.C. § 2255(t), Crow Dog's motion must be denied.
I. Factual Summary
Crow Dog and her spouse Fast Horse were indicted on five counts of sexual abuse involving two separate women. CR Doc. 3. Crow Dog entered into a Plea Agreement whereby she agreed to plead guilty to Count IV of the Indictment in exchange for the Government's agreement to dismiss all remaining counts, to refrain from filing other charges such as for witness tampering, and to recommend a sentence at the low end of the advisory guideline range. CR Doc. 180. Crow Dog signed an amended Factual Basis Statement, by which she admitted:
On or between the 1st day of December, 2010, and the 31st day of December, 2010, at Rosebud, in Todd County, in Indian country, in the District of South Dakota, Anthony Fast Horse and Ina Crow Dog, Indians, did knowingly engage in and attempt to engage in a sexual act, that is, the contact between Anthony Fast Horse's penis and Quintina Little Elk's vulva, when at the time Quintina Little Elk was incapable of appraising the nature of the conduct and was physically incapable of declining participation in and communicating an unwillingness to engage in the sexual act, and did aid and abet each other in committing the offense in violation of 18 U.S.C. §§ 1153, 2242(2), 2246(2)(A) and 2.
On or between the 1st day of December, 2010, and the 31st day of December, 2010, the victim was with the Defendants at their home. The victim was drinking with the Defendant and others, and fell asleep/passed out on a bed in the bedroom wearing pants, panties, and shoes. She awoke face up with her pants, panties and shoes removed, and with Defendant Fast Horse on top of her. Defendant Fast Horse was engaged in a sexual act with victim, that is the penetration of the victim's vulva by the Defendant Fast Horse's penis. Defendant Crow Dog was lying next to the victim, telling the victim to "let it happen;" Defendant Crow Dog was also petting the victim's hair.
That the Defendant is an "Indian" under the provisions of 18 U.S.C. § 1153 in that she is an enrolled member of the Rosebud Sioux Tribe, enrollment number 345U0021769, and is 4/4 degree Indian by blood, and that the offense occurred in Rosebud, in Todd County, South Dakota, in Indian country, which is within the exterior boundaries of the Rosebud Sioux Tribe Indian Reservation. This location is "Indian country" within the provisions of 18 U.S.C. §§ 1151 and 1153.
CR Doc. 181.
Crow Dog appeared at a change of plea hearing on November 5, 2012, during which she was placed under oath and questioned by this Court to determine if she was competent and was voluntarily and knowingly changing her plea. CR Doc. 291. Among other things, Crow Dog acknowledged reading, understanding, and signing her plea agreement. CR Doc. 291 at 15. Crow Dog had made a date correction on an earlier factual basis statement, CR Doc. 181, so this Court asked her about the factual basis statement containing the date change made at Crow Dog's request. CR Doc. 291 at 16-17; compare CR Doc. 181, with CR Doc. 167. The colloquy included the following:
THE COURT: All right. The Court would like to give you, Ms. Crow Dog, the opportunity to read over the factual basis statement before the Court asks questions concerning it. The Court is aware that you've signed it, but with there being two different factual basis statements you've signed, the Court wants you to read this one, the one Mr. Arendt has in front of you, the more recent one. Would you please take the time to go ahead and read that.
(Short pause in proceedings.)
THE COURT: Did you read through that?
THE DEFENDANT: Yes, I did, Your Honor.
THE COURT: Did you sign that factual basis statement on page three of the document?
THE DEFENDANT: Yes, I did.
THE COURT: Did you carefully read and understand the factual basis statement and go over it with Mr. ...