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Hawk v. United States

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

March 8, 2017

CRYSTAL RED HAWK, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
CRYSTAL RED HAWK, Defendant.

          OPINION AND ORDER SCREENING AND DISMISSING § 2255 MOTION BUT GRANTING IFP STATUS ON APPEAL

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         Crystal Red Hawk, together with her co-defendants BillyRay McCloskey and Riley McCloskey, were indicted for two counts of second degree murder for the December of 2013 killings of Benjamin Clifford and Calvin Kills In Water, Jr. on the Rosebud Indian Reservation. CR Doc. 29.[1] This Court appointed attorney Christina L. Klinger to represent Red Hawk. CR Doc. 49. A superseding indictment changed the charges against Red Hawk and her co-defendants to two counts of first degree murder, two counts of kidnapping, tampering with evidence, interstate transportation of a stolen automobile, and larceny. CR Doc. 67.

         Around Christmas of 2013, Benjamin Clifford and Calvin Kills in Water, Jr. went missing. While Clifford's family was looking for him, Red Hawk was driving Clifford's car on the Rosebud Indian Reservation. When questioned about Clifford's whereabouts, Red Hawk initially claimed that Clifford was alive and staying at various residences, but later admitted having a role in the murders of Clifford and Kills In Water.

         When arrested, Red Hawk's co-defendants BillyRay McCloskey (BillyRay) and Riley McCloskey (Riley) were more cooperative and candid with law enforcement. In brief, on December 23, 2013, Clifford, a grandfather substantially older than Red Hawk and her co-defendants, gave Red Hawk, BillyRay, Kills In Water, and Orville Good Voice a ride to a residence in St. Francis, South Dakota, on the Rosebud Indian Reservation. Red Hawk, BillyRay, and Kills in Water stayed up drinking alcohol. Clifford and Good Voice went to sleep in the residence. BillyRay became angry with Kills In Water and beat him with his hands, feet, knees and elbows to the point where Kills In Water was bloodied and unconscious. Red Hawk witnessed the assault. Riley, who was BillyRay's younger brother, arrived at the home shortly after the assault (or before the assault if Red Hawk is believed). Red Hawk, BillyRay, and Riley decided to remove Kills In Water from the home using Clifford's car. Red Hawk awoke Clifford to get his keys, but Clifford did not want to give his keys to Red Hawk. Rather, Clifford insisted on driving. Meanwhile, BillyRay and Riley walked Kills In Water, who was at best semi-conscious and may have been partially wrapped in a shower curtain or blanket, to Clifford's car. BillyRay and Riley loaded Kills In Water in the backseat of the car and sat in the back seat with him.

         Clifford upon seeing Kills In Water's condition wanted to take him to a hospital, but Red Hawk, BillyRay, and Riley did not want him to do that. Red Hawk was sitting in the front passenger seat and directed Clifford to drive to a residence in St. Francis, ostensibly to drop Kills In Water off so he could get care. There is no hospital in the community of St. Francis. When Clifford arrived at the residence, he honked the horn. BillyRay then reached over the seat and put Clifford in a chokehold. Clifford laid on the horn and Red Hawk hit Clifford in the groin and leg as BillyRay choked Clifford to unconsciousness and pulled him partially into the backseat. It does not appear that Clifford ever regained consciousness.

         Red Hawk then moved to the driver's seat and drove Clifford's car away from the residence and just south of St. Francis.[2]

         Kills In Water began stirring in the backseat. BillyRay found a Phillips screwdriver in the car and stabbed Kills In Water multiple times in the chest in the backseat of the car. Red Hawk drove Clifford's car south toward the South Dakota-Nebraska state line. Red Hawk turned onto a rural road and drove toward a gated pasture in Cherry County, Nebraska. BillyRay opened the gate, and Red Hawk drove several hundred feet toward a tree grove. According to both BillyRay and Riley, BillyRay asked Riley for help removing the bodies from the car, but Riley refused so Red Hawk helped BillyRay move the bodies. Red Hawk maintains that she did not assist in moving the bodies, other than moving the front seat forward to allow more room. According to Red Hawk, she stayed in the car when first Clifford and then Kills In Water were removed from the car. In the nearby grove of trees, BillyRay stabbed Clifford multiple times with the screwdriver to assure his death and then did the same to Kills In Water.

         Red Hawk then drove with BillyRay and Riley to Valentine, Nebraska. Riley was to steal a vehicle and transport Red Hawk and BillyRay back to the Rosebud Indian Reservation, thereby abandoning Clifford's vehicle in Nebraska. Instead, Riley stole a vehicle and ditched BillyRay and Red Hawk. Red Hawk and BillyRay used Clifford's vehicle to return home, where they cleaned the residence where BillyRay had assaulted Kills In Water. They cleaned Clifford's car in White River, South Dakota. Red Hawk was to ditch Clifford's car, but instead chose to continue using it.

         Upon his arrest, BillyRay showed police where the bodies were and admitted to being the one who assaulted and stabbed Kills In Water, and the one who choked and stabbed Clifford. Upon his arrest, Riley assisted police in locating the Phillips screwdriver his brother used as the murder weapon in a rural ditch where either BillyRay or Red Hawk had pitched it, and admitted to his involvement and the car theft in Nebraska. BillyRay[3] received two life sentences. CR Doc. 141. Riley[4] received two 210-month sentences to serve concurrently, CR Doc. 143, but committed suicide while in Bureau of Prisons custody.

         Red Hawk entered into a plea agreement under which she agreed to plead guilty to two counts of second degree murder in a superseding information and in exchange the United States would dismiss the charges in the superseding indictment against her, and would remain silent at sentencing as to whether her prison terms on the two murders should be served concurrently or consecutively. CR Doc. 129. The plea agreement contained a Waiver of Defenses and Appeal Rights provision stating:

The Defendant hereby waives all defenses and her right to appeal any non-jurisdictional issues. The parties agree that excluded from this waiver is the Defendant's right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of her sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).

CR Doc. 129 At ¶ O.

         Red Hawk appeared at a change of plea hearing on October 27, 2014, represented by counsel Klinger. Red Hawk gave answers to questions from this Court under oath. CR Doc. 196 at 2-3. Red Hawk expressed satisfaction with the counsel, advice, and representation by attorney Klinger early, CR Doc. 196 at 4, and late during the hearing, CR Doc. 196 at 17. As concerns the waiver of appeal provision, Red Hawk's testimony was:

THE COURT: Do you realize that paragraph O of your Plea Agreement contains a waiver of defenses and a waiver of certain appeal rights? Do you have a copy of your ...

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