United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
On February 18, 2014, petitioner Leo Villarreal, appearing pro se, filed a motion (Docket 1) pursuant to 28 U.S.C. § 2255 (“2255 Motion”) to vacate or set aside his criminal conviction in United States v. Leo Villarreal, CR-10-50082-JLV (D.S.D. 2012). On June 6, 2014, the government filed a response seeking dismissal of Mr. Villarreal’s 2255 Motion. (Docket 11).
Pursuant to a standing order of October 16, 2014, the matter was referred to United States Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). On August 21, 2015, Judge Duffy issued a report recommending the court grant Mr. Villarreal an evidentiary hearing on his claim of ineffective assistance of counsel and deny his claim of actual innocence. (Docket 15 at p. 19). Mr. Villarreal filed no objections to the report and recommendation. The government timely filed its objections. (Docket 22). For the reasons stated below, Mr. Villarreal’s 2255 motion is granted in part and denied in part.
The government’s objections center around the recommendation that Mr. Villarreal is entitled to an evidentiary hearing on the issue of whether his counsel was ineffective on the basis of United States v. Rouillard, 701 F.3d 861 (8th Cir. 2012) (“Rouillard I”) and United States v. Bruguier, 735 F.3d 754 (8th Cir. 2013) (en banc) (“Bruguier II”). In order to put the report and recommendation in context and provide a foundation against which to evaluate the government’s objections, the court must summarize the procedural posture of this case.
On August 17, 2010, Mr. Villarreal was charged by a three-count indictment. (Docket 15 at p. 1; see also CR-10-50082, Docket 1). Count III, the count material to this analysis, charged Mr. Villarreal as follows:
On or about March, 10, 2010, at Manderson, in Indian country, in the District of South Dakota, the defendant, Leo Villarreal,  an Indian, did knowingly engage and attempt to engage in a sexual act with [M.T.L.],  to-wit, penetration, however slight, of the genital opening by the finger, with the intent to abuse, humiliate, harass, degrade, arouse and gratify the sexual desire of Leo Villarreal, at a time when [M.T.L.], was incapable of appraising the nature of the conduct and physically incapable of declining participation in, and communicating an unwillingness to engage in the sexual act, all in violation of 18 U.S.C. §§ 2242(2), 2246(2)(C) and 1153.
(CR-10-50082, Docket 1 at p. 2). Mr. Villarreal was represented by the same Assistant Federal Public Defender from the beginning of the case through the conclusion of the direct appeal. (Docket 15 at p. 2).
During the settlement of jury instructions, the court proposed an instruction relating to count III and relevant to the analysis in this 2255 Motion.
That instruction stated:
For you to find the defendant guilty of the offense of sexual abuse as charged in Count III of the indictment, the government must prove the following four essential elements beyond a reasonable doubt:
One, that on or about March 10, 2010, Leo Villarreal knowingly engaged in or attempted to engage in a sexual act with [M.T.L.];
An act is done “knowingly” if the defendant realized what he was doing and did not act through ignorance, mistake, or accident. You may consider the evidence of defendant’s acts and words, along with all the evidence, in deciding whether defendant acted knowingly. . . . .
Two, that at the time of the offense, [M.T.L.] was incapable of appraising the nature of the conduct or was physically incapable of declining participation in or communicating unwillingness to engage in the sexual act;
Three, that Leo Villarreal is an Indian person as defined in Final Instruction No. 7; and Four, that the offense took place at or near Manderson, South Dakota, in Indian country as defined in Final Instruction No. 8.
See CR-10-50082, Docket 94 at pp. 10-11 (bold omitted). Defense counsel proposed no alternative jury instruction and lodged no objection to the court’s instruction which is pertinent to the analysis of the 2255 Motion. See id., Docket 113 at pp. 106:11-111:4. A unanimous jury found Mr. Villarreal guilty of counts II and III of the indictment. Id., Docket 92. Mr. Villarreal was sentenced to a term of imprisonment on count II of 120 months and 96 months on count III, with the sentences to run concurrently. Id., Docket 129 at p. 2.
Mr. Villarreal timely appealed his conviction to the United States Court of Appeals for the Eighth Circuit. Id., Docket 132. After the completion of briefing, oral argument was held on October 18, 2012, before a panel of the Eighth Circuit. (Docket 15 at p. 4). While Mr. Villarreal’s case was pending, on December 13, 2012, two diametrically opposite opinions were issued by separate panels of the Eighth Circuit. Those decisions were Rouillard I, 701 F.3d 861, and United States v. Bruguier, 703 F.3d 393 (8th Cir. 2012) (“Bruguier I).
In Bruguier I, as in Mr. Villarreal’s case, the district court instructed the jury that the word “knowingly” modified only the phrase “engages in a sexual act” when stating the elements of an offense under § 2242(2). Compare CR-10-50082, Docket 94 at pp. 10-11 and Bruguier I, 703 F.3d at 399. In Bruguier I, the Eighth Circuit rejected the defendant’s argument that the instruction should have included a requirement he knew the alleged victim was incapable of declining or communicating her unwillingness to participate in the sexual act. Bruguier I, 703 F.3d at 399.
In Rouillard I, the district court refused the defendant’s proposed instruction which would have required the government to prove the defendant knew he was engaging in a sexual act and he knew his alleged victim was incapacitated. Rouillard I, 701 F.3d at 863. The Eighth Circuit concluded “the word ‘knowingly’ extends to the element in section 2242(2) that the victim be ‘incapable of appraising the nature of the conduct . . . or physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.’ ” Id. at 865 (citing 18 U.S.C. § 2242(2)(A) & (B)). Based on that ruling, the court “conclude[d] that the district court’s failure to give Rouillard’s instruction deprived Rouillard of his defense that he did not know that [the alleged victim] was incapacitated or otherwise unable to deny consent.” Id.
While Mr. Villarreal’s appeal was pending in the Eighth Circuit, counsel did not raise the issue as to whether in light of Rouillard I the district court had improperly instructed the jury as to the elements of count III. (Docket 15 at pp. 4-5). Mr. Villarreal’s appeal was decided on February 22, 2013. United States v. Villarreal, 707 F.3d 942 (8th Cir. 2013). Mr. Villarreal’s counsel received an extension until March 22, 2013, to file a request seeking rehearing, either by the panel which decided the case or by the Eighth Circuit en banc. (Docket 15 at p. 6). On March 4, 2013, Rouillard I and Bruguier I were both vacated and rehearings en banc were granted. Rouillard I, 701 F.3d at 861; Bruguier I, 703 F.3d at 393.
On March 22, 2013, Mr. Villarreal’s counsel decided not to seek rehearing, declared there were no nonfrivilous issues which could be raised and withdrew from the case. Id. Mr. Villarreal did not personally seek rehearing and did not file a petition ...