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Chad Two Hearts v. United States

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

February 22, 2017

CHAD TWO HEARTS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         Plaintiff Chad Two Hearts has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. CIV Doc. I.[1] 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.

         I. Facts From Underlying Case[2]

         Two 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.

         The 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.

         Two 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.

         T.K's 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 counseling.

         T.K. 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.

         T.K. 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 assaults.

         The 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.

         The 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 Eagle Butte.

         FBI 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).

         Two 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.

         Two 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.

         The 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.

         II. Discussion

         A. Evidentiary Hearing

         An 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 ...


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