United States District Court, D. South Dakota, Northern Division
CHARLES B. KORNMANN, United States District Judge.
filed this request to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 on May 15, 2017. Petitioner
challenges his conviction by jury of four counts of sexual
abuse of a minor and assault resulting in serious bodily
injury in this Court in September 2014, stating that he
received ineffective assistance of counsel and that the court
lacked jurisdiction to try his claims. He requests an
evidentiary hearing. Petitioner previously appealed his
conviction to the Eighth Circuit on May 28, 2015, challenging
the sufficiency of evidence as to the sexual abuse and
assault convictions, and arguing that the court should not
have admitted hearsay evidence as to the assault conviction.
Petitioner did not raise the issues stated here at his
that the petitioner's claim was timely filed and that it
was not plain from the face of the complaint that petitioner
was not entitled to relief, this Court ordered service of
petitioner's complaint on August 31, 2017. Doc. 4. The
United States Attorney for the District of South Dakota filed
an answer and motion to dismiss on January 26, 2018. Doc. 21.
For the reasons stated below, petitioner's claims should
be dismissed and his request for an evidentiary hearing
Standard of Review
survive a motion to dismiss, a complaint "must show that
the plaintiff 'is entitled to relief,' ... by
alleging 'sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its
face.'" Torti v. Hoag, 868 F.3d 666, 671
(8th Cir. 2017) (quoting In re Pre-Filled Propane Tank
Antitrust Litis., 860 F.3d 1059, 1063 (8th Cir. 2017)
(en banc), Fed. R. Civ. P. 8(a)(2), and Ashcroft
v. Iqbal. 556 U.S. 662, 678 (2009)). Factual allegations
are construed in favor of the plaintiff, "even if it
strikes a savvy judge that actual proof of those facts is
improbable." Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007). However, to determine whether a
claim is plausible on its face is a "context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Ashcroft v.
Iqbal, 556 U.S. at 679 (2009). To avoid dismissal, a
"plausible claim must plead 'factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."'
Torti v. Hoag, 868 F.3d at 671 (internal citations
omitted). A complaint must allege "more than labels and
conclusions." Id. (citing Twombly, 550 U.S. at
complaints must be liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); see also Native Am.
Council of Tribes v. Solem, 691 F.2d 382 (8th Cir.
1982). A pro se complaint "however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers." Id. (internal
citations omitted). However, although the courts are
"properly solicitous of unrepresented persons that their
constitutional rights have been impaired," nonetheless
"this concern does not have to be carried so far as to
require the acceptance of every unexpressed possibility as
justifying a hearing on the theory that an insufficient
petition might be amended to constitute a sufficient
one." Hilliard v. U.S.. 345 F.2d 252, 255-56
(10th Cir. 1965).
Motion to Vacate, Set Aside or Correct Federal Sentence
Pursuant to 28 USC § 2255
federal prisoner may move to "vacate, set aside or
correct" a federal sentence under § 2255 on the
grounds that "the sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). For an error which is neither
jurisdictional nor constitutional, however, § 2255
relief is available only if the error constitutes "a
fundamental defect which inherently results in the complete
miscarriage of justice," or "an omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S.
424, 428 (1962). That is, § 2255 "is not designed
for collateral review of errors of law committed by the trial
court such as questions relating to the sufficiency of the
evidence to support the conviction, irregularities in the
grand jury procedure, or other errors in trial procedure
which do not cross the jurisdictional line." Jackson
v. U.S., 495 F.2d 349, 351 (8th Cir. 1974) (per
curiam). Further, "§ 2255 cannot be made to do
service for an appeal," and as such a petitioner
"may not obtain § 2255 relief for unappealed errors
to which no contemporaneous objection was made unless he can
show both cause and prejudice." U.S. v. Ward,
55 F.3d 412, 413 (8th Cir. 1995): U.S. v. Wilson,
997 F.2d 429, 431 (8th Cir, 1993) (internal
citations omitted). The burden of proof is on the petitioner
to demonstrate that the sentence must be vacated. Cassidy
v. U.S., 428 F.2d 585, 587 (8th Cir. 1970).
Ineffective Assistance of Counsel
prevail on a claim of ineffective assistance of counsel,
petitioner must demonstrate that "(1) his counsel so
grievously erred as to not function as the counsel guaranteed
by the Sixth Amendment; and (2) his counsel's deficient
performance prejudiced his defense." Auman v.
U.S., 67 F.3d 157, 162 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish
prejudice, petitioner must demonstrate "a reasonable
probability that the proceeding would have ended in a
different result without counsel's errors."
Id. (internal citations omitted). The reasonableness
of counsel's conduct is judged "on the facts of the
particular case, viewed as of the time of counsel's
conduct." Id. (citing Strickland at 690).
Ineffective assistance of counsel claims are properly raised
by way of a § 2255 proceeding. U.S. v.
Jennings, 662 F.3d 988, 991 (8th Cir. 2011).
specifically states that he has a valid ineffective
assistance of counsel claim for the following reasons: (1)
counsel failed to object to the coroner's qualifications
as an expert witness or to object to the coroner's
failure to perform an autopsy; (2) counsel failed to conduct
pre-trial investigation of the sex abuse charges and failed
to dismiss the sex abuse charges for lack of evidence or DNA;
(3) counsel failed to call character witnesses on
petitioner's behalf; (4) counsel failed to impeach the
victim, who served as a witness, of sex abuse charges; (5)
counsel failed to prepare diminished capacity, actual
innocence, lack of premeditation, or intoxication defenses;
(6) counsel failed to challenge the selection of jurors on
the basis of race; (7) counsel failed to move for the lesser
included offense of assault; and (8) counsel otherwise failed
to obtain expert witnesses to testify on petitioner's
behalf. These claims are addressed in turn.
respondent correctly argues, petitioner cannot show that
counsel's performance in any way prejudiced his defense
with regard to the charge of second degree murder. This Court
dismissed the second degree murder charge on the basis of
precedent that the charge required proof that the death of
the victim had occurred within a year and a day of the
assault. There can be no prejudice as a result of
counsel's conduct with regard to this dismissed ...