United States District Court, D. South Dakota, Western Division
ORDER GRANTING MOTION TO DISMISS
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Gillman Roddy Long, 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. Docket 9.
For the following reasons, the court grants the
government's motion and dismisses Long's § 2255
was indicted in the United States District Court for the
District of South Dakota, Western Division, on July 21, 2009.
USA v. Long, 09-CR-50051 ("CR Docket") 4.
The case was tried to a jury, and Long was found guilty of
two counts of Aggravated Sexual Abuse. CR Docket 212. Long
was represented at trial by Monica Colbath.
victim, AP, testified at trial that Long sexually abused her
while she was living with her aunt Brenda, Long's
girlfriend, and Long. Docket 1 at 4. AP testified that Long
abused her approximately 40 to 45 times. CR Docket 287 at 17.
She testified that she told numerous people about Long's
abuse, many before she reported the abuse to law enforcement.
CR Docket 269 at 3-4. TE, Long's stepdaughter, also
testified that Long abused her over many years. Id.
at 10. The jury saw all the witnesses testify at trial and
determined they were credible.
government called FBI agent Sherry Rice to testify during its
case-in-chief. Docket 1 at 12. She interviewed Long during
her investigation into the abuse of AP. Id. Agent
Rice testified that Long described an incident to her where
AP rubbed her breasts on Long's back, and Long pushed her
away from him. Id. at 12-13. She also testified that
when she told Long that she wanted to "concentrate on
the sexual contact between" Long and AP, he responded,
"I do not want to incriminate myself. I would like to
stop talking." Id. at 13. Colbath did not
object to this testimony. Id.
the cross-examination of Agent Rice, Colbath asked her
several questions about the meaning of Long's statement.
Id. at 13-14. Agent Rice responded that the meaning
of Long's statement was clear to her, i.e., that Long
meant that he had sexually abused AP. Id. at 14. On
re-direct examination, the government again asked Agent Rice
about Long's response to her question about what happened
between AP and him, and Agent Rice agreed that Long said he
did not want to incriminate himself. Id. at 15.
government also referenced Long's statement in its
closing argument. The government stated, " 'I
don't want to incriminate myself.'That was what
Gillman Long said to Agent Sherry Rice when she asked him
about sexual contact between him and [AP] ... What was his
response? 'I don't want to incriminate
myself.'" Id. Colbath did not object to
this. Id. at 16. After again pointing out that Long
ended the interview with Agent Rice by saying he did not want
to incriminate himself, the government stated, "We are
asking you not to leave your common sense at the door. If
somebody doesn't want to incriminate themselves, it means
any sort of statement as to that topic that they are being
asked for would get them in trouble." Id.
Colbath did not object.
did not testify at trial. Id. at 1. Colbath did
object to the government stating in its closing argument that
Long did not say "I didn't do it." Id.
at 15. The government clarified during its closing argument
that the jury could not hold Long's decision not to
testify against him. Id.
Long was found guilty, he moved to vacate the judgment and
requested a new trial. CR Docket 273. The court held that the
government's use of Long's statement did not violate
his Fifth Amendment rights because he had not been arrested
and was under no compulsion to speak. CR Docket 287 at 15.
Therefore, Colbath could not be ineffective in her failure to
object to the government's use of the statement.
Id. The court also found that Long could not show
prejudice because overwhelming evidence supported his guilt,
and he could not prove Colbath's actions were not sound
trial strategy. Id. at 23. The court denied
Long's motion. Long was sentenced to life imprisonment.
CR Docket 290.
appealed his conviction. On appeal, he argued:
(1) the use of his 'incriminate myself statement by the
government in its case-in-chief as a confession to the crime
violated the Fifth Amendment because the statement was made
in an effort to invoke his Fifth Amendment right to remain
silent after he had agreed to answer Agent Rice's
questions, (2) the district court plainly erred in not
finding prosecutorial misconduct when the government
referenced Long's decision not to testify at trial, and
(3) the district court abused its discretion when it
determined by denying the motion for a new trial, that Long
had not received ineffective assistance of counsel.
United States v. Long, 721 F.3d 920, 924 (8th Cir.
Colbath did not object to the government's use of his
"incriminate myself statement, the Eighth Circuit Court
of Appeals applied a plain error standard of review.
Id. To obtain relief, Long was obliged to show that
" 'there was an error, the error is clear or obvious
under current law, the error affected the party's
substantial rights, and the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.' " Id. (quoting United
States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011)).
The Court upheld Long's conviction, a decision that was
"based largely on the plain error standard of
review." Id. at 926.
Court of Appeals first discussed Long's argument
concerning the government's use of his statement as a
confession. This was a question of first impression for the
Court. Id. at 924. The Court stated that it had
previously found that use of a defendant's silence in the
same situation was constitutional. Id. at 924-25;
see United States v. Frazier, 408 F.3d 1102 (8th
Cir. 2005). The Court also cited with approval United
States v. Davenport, 929 F.2d 1169 (7th Cir. 1991), in
which the Seventh Circuit held that once defendants agreed to
answer questions, "any statement they made-including
'I won't tell you'-was fair game."
Id. at 1174.
issue was "determined by application of the elements of
plain error review, " and the Court held that "even
if it was error for the government to admit Long's
pre-arrest, pre-Miranda 'incriminate myself statement as
part of the government's case-in-chief-a question we do
not reach-it was certainly not an error that is 'clear or
obvious under current law.' " Long, 721
F.3d at 925 (quoting United States v. Poitra, 648
F.3d 884, 887 (8th Cir. 2011)). The Court of Appeals found
that the district court did not plainly err by failing to
sua sponte strike Agent Rice's testimony or the
reference to Long's statement in the government's
closing argument. Id.
Court of Appeals next discussed Long's claim that during
its closing argument, the government improperly commented
that Long did not testify at trial. Id. This claim
was reviewed for plain error because Colbath did not object
to the comment on constitutional grounds. Id. The
Court discussed the subsequent history of the rule, announced
in Griffin v. California, 380 U.S. 609 (1965), that
"the Fifth Amendment 'forbids either comment by the
prosecution on the accused's silence or instructions by
the court that such silence is evidence of guilt.'"
Long, 721 F.3d at 925-26 (quoting Griffin,
380 U.S. at 615).
the Court found that the government "merely rephrased
the instruction the court presented to the jury moments
before closing arguments" and that the comment "was
not presented in a context to suggest that the jury construe
Long's decision not to testify against him."
Id. at 926. Instead, the Court found that the
government "made the comment to contrast the prohibition
on considering Long's decision not to testify with the
consideration of his statement to Agent Rice."
Id. Therefore, the Court of Appeals found that the
district court did not clearly err by failing to sua
sponte strike the comment. Id.
the Court of Appeals did not decide Long's argument that
he received ineffective assistance of counsel. First, the
Court stated that ineffective assitance claims are generally
" 'better left for post-conviction proceedings'
under 28 U.S.C. § 2255." Id. (quoting
United States v. Cook, 356 F.3d 913, 919 (8th Cir.
2004)). Second, the Court of Appeals' decision to uphold
Long's conviction was "based largely on the plain
error standard of review." Id. Therefore, it
was necessary to develop facts outside of the record such as