United States District Court, D. South Dakota, Central Division
OPINION AND ORDER SCREENING AND DISMISSING §
2255 MOTION BUT GRANTING IFP STATUS ON APPEAL
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
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
Hawk then moved to the driver's seat and drove
Clifford's car away from the residence and just south of
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.
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.
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 received two life sentences. CR Doc. 141.
Riley received two 210-month sentences to serve
concurrently, CR Doc. 143, but committed suicide while in
Bureau of Prisons custody.
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
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.
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 ...