United States District Court, D. South Dakota, Northern Division
ORDER DENYING MOTION TO VACATE AND ORDER DENYING
CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN United States District Judge.
was convicted of assault resulting in serious bodily injury
to a 9 month old child and was sentenced on January 5, 2015,
to the statutory maximum sentence of 120 months custody. He
appealed his conviction and sentence and the United States
Court of Appeals for the Eighth Circuit affirmed. United
States v. Roach, 615 Fed.Appx. 391 (8th Cir. September
25, 2015). Petitioner filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 contending
that (1) there was insufficient evidence that the victim
suffered serious bodily injury as a result of his actions,
(2) counsel was ineffective for failing to obtain an expert
witness to testify that the victim's injuries could have
been consistent with his testimony as to the cause of the
child's injuries, and (3) this court lacked jurisdiction
to sentence him.
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2255 Proceedings for
the United States District Courts.
raised on appeal his claim that there was insufficient
evidence of his guilt and the Eighth Circuit rejected that
claim. "It is well settled that claims which were raised
and decided on direct appeal cannot be relitigated on a
motion to vacate pursuant to 28 U.S.C. § 2255."
Bear Stops v. United States, 339 F.3d 777, 780 (8th
Cir. 2003) (quoting United States v. Shabazz, 657
F.2d 189, 190 (8th Cir. 1981)).
Ineffective Assistance of Counsel.
contends counsel was ineffective in failing to obtain the
services of an expert witness to testify that the
victim's injuries could be consistent with his version of
events. To support a claim of ineffective assistance of
counsel, a two prong test must be met. "To succeed on
this claim, [petitioner] must show ineffective
assistance-that counsel's representation fell below an
objective standard of reasonableness." Wilcox v.
Hopkins, 249 F.3d 720, 722 (8th Cir. 2001) (quoting
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985)). Petitioner "must also prove
prejudice by demonstrating that absent counsel's errors
there is a reasonable probability that the result of the
proceeding would have been different." Delgado v.
United States, 162 F.3d 981, 982 (8th Cir. 1998),
(citing Strickland v. Washington, 466 U.S. 668, 694,
104 S.Ct. 2052, 2068, 80 L.Ed.2d (1984)). The burden of
establishing ineffective assistance of counsel is on the
petitioner. Delgado v. United States, 162 F.3d at
982. Petitioner '"faces a heavy burden' to
establish ineffective assistance of counsel pursuant to
section 2255." DeRoo v. United States, 223 F.3d
919, 925 (8th Cir. 2000) (quoting United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). "The
Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight."
Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 6,
157 L.Ed.2d 1 (2003).
claim may be summarily dismissed because petitioner cannot
meet his burden of showing that counsel could have found such
an expert witness or that the result of his trial would have
been different had an expert testified on petitioner's
behalf Petitioner does not deny and there was no doubt that
the victim's injuries occurred while the victim was in
the petitioner's care. Petitioner told the victim's
mother shortly after the victim was injured that the victim
was lying on a bed (raised only off the floor by a box
spring) and either fell off or was pushed off onto the carpet
by her sibling. He told the victim's mother that the
victim was barely moving when he found her and he called 911.
Later, petitioner told an agent from the Federal Bureau of
Investigation the same story. When confronted with statements
from the doctors that the victim's injuries were not
consistent with having fallen off a mattress onto carpet,
petitioner told the agent that he threw the victim forcefully
from the bed and she landed on the carpeted floor. He stated
that the victim was unconscious when he picked her up.
Petitioner testified at trial that he was holding the victim
and trying to adjust the highchair tray when she fell out of
his hands, hit the table, and fell to the floor.
victim was presented to the emergency room of a local
hospital suffering from three skull fractures and bleeding on
her brain, and multiple bruises over multiple body areas. She
was flown to a larger children's hospital where she was
admitted for life-threatening injuries. She suffered seizure
activity while hospitalized. She was released 19 days after
admission, having achieved an "amazing survival and
Travis Henderson, the physician who treated the victim in the
emergency room, testified that, in his opinion, the injuries
suffered by the child could not have been caused by a fall.
Geoffrey Thomas Tufty, an ophthalmologist, testified that the
victim suffered hemorrhages of one of her eyes which raised
suspicions of non-accidental trauma. Dr. Tufty opined that
the injuries observed could not have been caused by a fall
from a bed or a fall from three feet off the floor. He
testified that it would "take a significant amount of
force to cause injury to the eye" as was present in the
victim. He testified that such injury would require a violent
acceleration-deceleration injury" such as a "head
thrust" or "forceful hard-surface contact" but
that a fall from three feet onto a hard surface would not be
enough to cause the victim's injuries. On
cross-examination, Dr. Tufty testified that a mere fall would
not cause the hemorrhages to the victim's retina that
occurred. Dr. Tufty testified that there was no evidence that
the victim's eye struck any surface which could have been
the cause of the injuries.
Nancy Free, a pediatric physician who treated the victim,
testified that the victim suffered from bruising to the back
of the ear and the skin behind the ear, which "is highly
concerning for non-accidental trauma." Dr. Free
testified that a mere fall would rarely cause one skull
fracture but would not explain three separate fractures. Dr.
Free testified that, in children with similar accidental
injuries, the injuries were caused by a television or dresser
crushing the skull or a fall from a second-story window.
to petitioner's claim, defense counsel did retain an
expert witness in anatomic, clinical, and forensic pathology
to assist in determining whether the victim's injuries
were consistent with a fall from a high chair. That witness
was not called at trial.
evidence was overwhelming that the victim's injuries were
not caused by accident as claimed by the petitioner. Even if
defense counsel could have found an expert willing to testify
to the contrary, there is not a probability that the outcome
of the trial would have been different, given the fact that