United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION UNDER 28 U.S.C.
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
Chad Two Hearts has filed a motion under 28 U.S.C. §
2255 to vacate, set aside, or correct sentence. CIV Doc.
Two Hearts' § 2255 motion raises four arguments of
ineffective assistance of counsel and a claim of
prosecutorial misconduct. CIV Doc. 1. This Court screened the
§ 2255 motion and ordered service and an answer. CIV
Doc. 4. Upon a motion by the United States and after an
attorney-client privilege waiver by Two Hearts, Two
Hearts' prior counsel filed an affidavit addressing the
claims of ineffective assistance of counsel. CIV Docs. 6, 8,
9, 16. The United States then filed a motion to dismiss the
§ 2255 motion. CIV Doc. 20. After Two Hearts had not
responded to the motion to dismiss within the time set by
local rule, this Court sent an order advising Two Hearts of
the need for a response and giving Two Hearts until November
23, 2016, to file any response. CIV Doc. 22. After Two Hearts
filed a motion rather than a response, this Court entered an
order advising Two Hearts that the Civil Local Rules of the
District of South Dakota required a response within 21 days
of any motion, explaining how this Court already had on its
own granted additional time for Two Hearts' response,
declining to grant Two Hearts' motion to delay the case
for him to get help from a soon-to-be law student in custody,
and giving Two Hearts until January 18, 2017, to file any
response to the motion to dismiss. CIV Doc. 24. Two Hearts
has filed no response to the motion to dismiss. Because the
motion and files and records of the case show that Two Hearts
is entitled to no relief, this Court denies the § 2255
motion and dismisses the case.
Facts From Underlying Case
Hearts was indicted on four counts: Aggravated Sexual Abuse
of a Child, Failure to Register as a Sex Offender, Assault
with a Dangerous Weapon, and Assault Resulting in Serious
Bodily Injury. CR Doc. 1. On a motion from Two Hearts'
trial counsel, Jana M. Miner, this Court severed counts for
trial such that the allegation of Aggravated Sexual Abuse of
a Child occurring between March of 2005 and March of 2007,
was severed for trial from the allegation of a Failure to
Register as a Sex Offender between August of 2007 and August
of 2012, and in turn those counts were severed from the
allegation of Assault with a Dangerous Weapon and Assault
Resulting in Serious Bodily Injury occurring on July 25,
2012. CR Doc. 27.
Aggravated Sexual Abuse of a Child charge was tried to a jury
in late August of 2013. The United States called as its first
witness the mother of T.K., the sexual assault victim.
T.K.'s mother testified that T.K. was born in Rapid City,
in March of 1995 and that Two Hearts is T.K.'s biological
father. T.K.'s mother and Two Hearts had a brief
relationship and never lived together. When T.K. was three,
his mother moved back to Eagle Butte, South Dakota, on the
Cheyenne River Indian Reservation. She then shared custody of
T.K. with Verna Meter, who is Two Hearts' mother and in
turn T.K.'s paternal grandmother. Two Hearts entered
T.K.'s life around the time when T.K. was four. T.K.
attended kindergarten and first grade in Eagle Butte.
Hearts moved to Hills, Minnesota, and took T.K. to live with
him there. Two Hearts returned with T.K. in the summer of
2004 to Eagle Butte and they then lived at Verna Meter's
home in Habitat Housing, Eagle Butte. T.K. started fourth
grade in Eagle Butte in 2004. Indeed, the United States later
called a school counselor in the Cheyenne Eagle Butte school
system to confirm that T.K. was in the Hills/Beaver Creek
school system for second and third grade, and returned to
enroll in the Cheyenne Eagle Butte school system as a fourth
grader on August 17, 2004. See trial exhibits 14, 15.
mother testified that T.K. in November of 2004 wanted to stay
exclusively with her. In December of 2004, Two Hearts came to
pick up T.K.; T.K. started crying, said he did not want to go
with his father Two Hearts, and then talked separately with
his mother making a disclosure that prompted her to contact
Cheyenne River Sioux Tribe police and get her son into
himself was the second witness in the prosecution's case.
T.K., who was an 18-year-old senior in high school when he
testified, confirmed that he lived with his father Two Hearts
in a trailer house in Hills, Minnesota, and attended second
grade in the Hills/Beaver Creek school system. It was in
Hills where his father Two Hearts began sexually abusing him.
T.K. recounted that most of the time T.K. would be asleep in
his bedroom before the sexual assaults occurred. T.K. would
hear his bedroom door opening, Two Hearts would come in, and
Two Hearts smelled of alcohol. Two Hearts would get into the
bed with T.K., take off his clothes, and remove T.K.'s
sweats and underwear. Two Hearts then would place his penis
inside T.K.'s butt and go in and out. These sexual
assaults occurred frequently when they were living in Hills
together. Neither T.K. nor Two Hearts said anything, and T.K.
felt confused, not knowing what to think. Two Hearts also
would hit T.K. with his hand open, with his fist, and with
objects such as a spatula, meat tenderizer, and belt.
recalled returning to attend school in Eagle Butte and
staying most of the time at his grandmother Verna Meter's
home. T.K. recalled that, about one month after returning to
Eagle Butte, he was asleep in a back bedroom when Two Hearts
came into the room smelling of alcohol. T.K. was scared and
did not say anything. Two Hearts then sodomized T.K. in the
room. T.K. testified that this happened more than once in
Eagle Butte, recalling a couple such occasions in Eagle
Butte. T.K. told no one of the sexual assaults while living
in his grandmother's home. After moving to his
mother's home in the Chinatown area of Eagle Butte, T.K.
did not at first tell his mother, but later disclosed to her
what occurred. T.K. recalled then talking to a lady in Rapid
City and then to people in Parkston about the sexual
United States then called as a witness Lora Hawkins, a
victims specialist who was working at the child advocacy
center in Rapid City at the time she met and interviewed T.K.
on a referral from the Cheyenne River Sioux Tribal Police.
T.K. disclosed to Hawkins sexual abuse perpetrated by Two
Hearts. Hawkins described how children have confusion when
they are victims of sexual abuse and feel shame,
embarrassment, humiliation and fear that may postpone
disclosure, and that harsh physical discipline or abuse can
make children more hesitant to disclose sexual abuse.
Licensed psychologist Mindy Mitnick testified about why
children tend to delay disclosure of sexual abuse due to
their worries about the effect on the family and the
perpetrator, concerns about whether they would be believed,
and the shame, embarrassment, and fear that may affect their
willingness to disclose.
United States called as a witness DCI Special Agent Chad
Mosteller, whom T.K. had identified as the person to whom he
had disclosed the sexual abuse while in Parkston. Special
Agent Mosteller spoke with T.K. in October of 2011 in
Parkston about what Two Hearts had done. Special Agent
Mosteller was present when an FBI agent and Cheyenne River
Sioux Tribal investigator met with Two Hearts in March of
2012 about T.K.'s disclosures. Two Hearts acknowledged
physically assaulting T.K., but when asked about whether he
sexually assaulted his son, said "I don't think
so." Two Hearts disclosed that he himself had been
sexually abused, although he did not elaborate on the
subject. Two Heart acknowledged living separately with T.K.
in Hills and then living with T.K. in Eagle Butte at Verna
Meter's home. At a second interview, Special Agent
Mosteller heard Two Hearts admit to sexually assaulting T.K.
twice in Minnesota by penetrating T.K.'s anus with his
penis. Two Hearts, however, did not admit to doing so in
Special Agent Mark Sitko, who assisted DCI Special Agent
Mosteller in the investigation, testified that he
participated in a June of 2012 interview of Two Hearts in
Eagle Butte. After giving Two Hearts his Miranda rights and
having Two Hearts sign off on an advice of rights form, Trial
Ex. 8, Sitko questioned Two Hearts about sexually assaulting
T.K. Two Hearts initially denied any sexual acts on T.K., but
acknowledged hitting T.K. Two Hearts later admitted having
placed his penis in T.K.'s anus twice while in Hills,
Minnesota. Two Hearts said that he had awakened with his
penis in his son's butt, and became emotionally upset and
cried. An audio recording of the interview was evidence at
trial. Trial Ex. 10; see Ex. 10-A (transcript of recording).
Hearts did not stipulate to being an "Indian" or
that the place where the alleged offense occurred was
"Indian country." Accordingly, the United States
called as a witness the enrollment specialist for the
Cheyenne River Sioux Tribe to establish that Two Hearts is an
enrolled member of the tribe and is an "Indian" for
federal jurisdictional purposes. Trial Ex. 13. The United
States also had the superintendent for the Bureau of Indian
Affairs Cheyenne River Agency testify that the Verna Meter
home is within "Indian country" on the Cheyenne
River Indian Reservation. Hills, Minnesota, however, is not.
Hearts' trial counsel Miner appropriately cross-examined
the prosecution's witnesses. Miner sought to call into
question whether Two Hearts sexually assaulted T.K. in Eagle
Butte and pointed out inconsistency in T.K.'s prior
statements about whether Two Hearts sexually assaulted him a
couple of times or more or less while in Eagle Butte. Miner
called five witnesses in Two Hearts' case in chief,
several of whom lived in the Verna Meter home with Two Hearts
and T.K. The defense witnesses testified that they neither
noticed anything unusual between T.K. and Two Hearts, nor
heard T.K. disclose any sexual abuse. On cross-examination,
the United States elicited from several of these witnesses
that T.K. was very shy, quiet, and timid; that Two Hearts
occasionally was drinking alcohol while in Eagle Butte; and
that they did not see all of the interactions between T.K.
and Two Hearts.
jury returned a verdict of guilty on the Aggravated Sexual
Abuse of a Child charge on August 28, 2013. CR Doc. 100. This
Court sentenced Two Hearts to 324 months in the custody of
the Bureau of Prisons, followed by five years of supervised
release. CR Doc. 117. The United States chose to dismiss the
remaining counts of the indictment. CR Doc. 116. Two Hearts
appealed to the United States Court of Appeals for the Eighth
Circuit. CR Doc. 125. On December 4, 2014, the Eighth Circuit
issued an opinion affirming the conviction and rejecting Two
Hearts' challenges to the sufficiency of the evidence and
to what Two Hearts characterized as unreliable and
uncorroborated testimony. CR Doc. 126.
evidentiary hearing is not needed to address Two Hearts'
contentions. "A petitioner is entitled to an evidentiary
hearing on a § 2255 motion unless 'the motion and
the files and the records of the case conclusively show that
[he] is entitled to no relief.'" Holder v.
United States, 721 F.3d 979, 993 (8th Cir. 2013)
(alteration in original) (quoting Anjulo-Lopez v. United
States, 541 F.3d 814, 817 (8th Cir. 2008)). Further,
"[n]o hearing is required where the claim 'is
inadequate on its face or if the record affirmatively refutes
the factual assertions upon which it is based.'"
Watson v. United States, 493 F.3d 960, 963 (8th Cir.
2007) (quoting Shaw v. United States, 24 F.3d 1040,
1043 (8th Cir. 1994)). Because the record convincingly
refutes Two Hearts' assertions and shows conclusively
that he is not entitled to relief, an evidentiary hearing ...