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Long v. United States

United States District Court, D. South Dakota, Western Division

May 19, 2016

GILLMAN RODDY LONG, a/k/a Dave Gillman Long, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING MOTION TO DISMISS

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

         Petitioner, 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 motion.

         BACKGROUND

         Long 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.

         The 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.

         The 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.

         During 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.

         The 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.

         Long 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.

         After 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.

         Long 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. 2013).

         Because 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.

         The 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.

         The 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.

         The 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).

         Here, 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.

         Finally, 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 ...


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