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Ronnie Fire Cloud v. United States

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

December 19, 2018




         Petitioner was convicted of abusive sexual contact and attempted aggravated sexual abuse and was sentenced to 120 months imprisonment. He appealed and the United States Court of Appeals for the Eighth Circuit affirmed. United States v. Fire Cloud, 780 F.3d 877 (8th Cir. 2015). He filed a timely motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

         Petitioner contends that he received ineffective assistance of counsel at trial, sentencing, and on appeal. 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).

         I. Transcripts.

         Petitioner makes outlandish allegations that the trial transcript was edited and redacted. For example, he claims the trial transcript did not contain exchanges that occurred in court during the trial, including his claim that I admonished the victim more than once to quit lying, that I stated that there was no evidence to convict the petitioner, and that I stated that I intended to sentence him to time served if convicted. On the contrary, at sentencing I started that the victim was very credible and obviously the jury found her credible. I stated that clearly the evidence was sufficient to convict on both counts and the Eighth Circuit agreed. He claims the trial transcript is inaccurate in many other respects. All such claims are false.

         Petitioner also contends that the transcript of the sentencing hearing is inaccurate. He contends that the prosecutor attempted to introduce a letter written by petitioner at sentencing but that I declined, saying that I knew what it says. That is false. Petitioner goes into detail of alleged statements made by the prosecution, defense counsel, and me at his sentencing hearing discussing what the sentence should be. Petitioner contends that I said at sentencing that "the most [I] could give the defendant was six months time served under simple assault because there was no physical, medical or forensic evidence" whereupon trial counsel "volunteered that Fire Cloud be given a ten-year prison sentence." Petitioner's account is entirely fictional.

         Pursuant to 28 U.S.C. § 753(b), "[t]he transcript in any case certified by the reporter or other individual designated to produce the record shall be deemed prima facie a correct statement of the testimony taken and proceedings had." I presided over the trial and sentencing hearing and can confirm that the transcript is accurate. Petitioner's inherently incredible claims as to the accuracy of the transcripts lack any merit and do not warrant a hearing. Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998).

         II. Ineffective Assistance Prior to Trial.

         Petitioner contends that counsel was ineffective in failing to investigate his claimed alibi witnesses. The Eighth Circuit has "stated that failing to interview witnesses or discover mitigating evidence may be a basis for finding counsel ineffective within the meaning of the Sixth Amendment right to counsel." Kramer v. Kemna, 21 F.3d 305, 309 (8th Cir. 1994). Counsel has "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir. 1990) (quoting Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2066).

         The victim claimed that she and her boyfriend were at the petitioner's home on the evening of November 1, 2010. She claimed that petitioner invited them to spend the night and that they went to sleep at petitioner's home in the early morning hours of November 2, 2010. She claimed that she and her boyfriend woke up the next morning and her boyfriend left. She stayed and took a shower. She claimed that, while she was in the shower, petitioner sexually assaulted her.

         Petitioner contends counsel was ineffective in failing to investigate petitioner's alibi defense that he was at work at the Standing Rock Housing Authority beginning at 8:00 a.m. on the morning of November 2, 2010, and that he was at lunch with friends during the noon lunch hour. Petitioner has identified the witness that he contends should have been interviewed and what evidence should or could have been discovered, as required. He contends that counsel should have interviewed Lona Medicine Crow, Pat Hawk, William Lawrence Sr., Thomas Long Feather, John Gougles from the Housing Authority, his tribal Probation Officer who monitored petitioner's court-ordered community service at the Housing Authority, and Milton Uses Arrow, Barbara Mousseau, Rufus Reeds, Sr., and Charley Chapman, whom he claims would have verified that he was at lunch with them on the day in question, and the victim's boyfriend, M.J. Archambault, who would testify that he and the victim did not spend the night in question at petitioner's residence.

         In addition to identifying what witnesses should have been interviewed, petitioner is required to produce an affidavit from any witness that he contends should have been interviewed, or to make some other substantial showing as to what the witness would have allegedly said had the witness been interviewed or called to testify. See Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989). Petitioner is further required to show that counsel was informed of the existence of any witnesses not called to testify.

         Petitioner has set forth in detail that each of the witnesses he has set forth could have testified that he was either at work on the day of the offense or that when he was not at work, he was with others having lunch and dinner. He claims that community service records from the Standing Rock Housing Authority would corroborate such testimony. Petitioner further set forth in detail that he told counsel how to contact each of the proffered witnesses.

         Petitioner submitted statements, ostensibly signed by Milton Uses Arrow and Barbara Mousseau, that they had lunch and dinner with petitioner on November 1, 2010, the day before the assault. He also submitted statements, ostensibly signed by Rufus Reeds, Sr. and Charley Chapman, that petitioner "came by on his lunch break on November 2, 2010," and that Rufas Reeds, Sr. gave petitioner a ride "back to work" on November 2, 2010. These statements are not specific as to time of day nor are they notorized. Petitioner did not submit the work records he claims would show that he was at work from 8:00 a.m. to noon and 1:00 to 5:00 p.m. on the date of the offense. I realize that he is in prison but he sets forth no explanation as to why one of his friends could not obtain the records.

         Counsel originally did not set forth in his affidavit any response to the petitioner's claim that alibi witnesses were identified to counsel prior to trial. Counsel submitted a supplemental response wherein he states that "the bulk of the investigation" was completed by defendant's prior counsel. The attorney's worksheet submitted in support of her CJA voucher belies that claim. Counsel states in the supplemental response that he was aware of the claimed alibi witnesses but he did not interview them because the "proposed alibi defense did not span the time that the victim alleged that the crime occurred." Of course, at trial it became apparent that the victim had made conflicting statements as to the claimed time of the offense.

         Whether or not a hearing is necessary in this case to resolve petitioner's claim that counsel was ineffective in failing to investigate an alibi defense depends upon whether witness affidavits or other documentation exist to support petitioner's claim. Counsel would normally be appointed to investigate petitioner's ineffective assistance claim in this regard. I decline to do so in this case because of the multitude of false claims made by petitioner. I have not previously seen such obvious lies anywhere close to what exist here. Petitioner has zero credibility as to all ...

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