United States District Court, D. South Dakota, Northern Division
CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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
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
Ineffective Assistance Prior to Trial.
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).
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.
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
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.
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.
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
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.
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 ...