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Stoney End of Horn v. United States

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

December 19, 2018

STONEY END OF HORN Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          CHARLES B. KORNMANN, United States District Judge.

         BACKGROUND

         Petitioner 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 appeal.

         Finding 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 denied.

         DECISION

         I. Standard of Review

         To 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 555).

         Pro se 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).

         II. Motion to Vacate, Set Aside or Correct Federal Sentence Pursuant to 28 USC § 2255

         A 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).

         III. Ineffective Assistance of Counsel

         To 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).

         Petitioner 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.

         As 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 ...


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