United States District Court, D. South Dakota, Northern Division
ORDER DENYING REEQUEST FOR A CERTIFICATE OF
APPEALABILITY and ORDER DENYING REQUEST TO PROCEED ON APPEAL
IN FORMA PAUPERIS
CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE
was convicted of abusive sexual contact and attempted
aggravated sexual abuse and was sentenced on December 30,
2013, 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 motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, contending that
he received ineffective assistance at trial, sentencing, and
petition was denied without a hearing and a judgment of
dismissal entered on December 20, 2018. Petitioner filed a
notice of appeal on May 15, 2019, along with a motion for a
certificate of appealability and a motion to proceed on
appeal in forma pauperis.
to 28 U.S.C. § 2253(c)(1), an appeal from an order
denying a motion to vacate may not be taken unless a judge
issues a certificate of appealability. A certificate of
appealability may issue only if the applicant has made a
"substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). "Where a
district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel. 529 U.S. 473, 484,
120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).
contended and continues to contend that counsel was
ineffective in failing to investigate his claimed alibi. He
contends that counsel should have obtained his tribal court
criminal records and the records from the Housing Authority,
which records he contends would show that he was sentenced to
work community service on the date of the offense. He also
contends counsel should have interviewed his community
service supervisor who could testify that he was at work on
the date of the offense, thus showing he had an alibi.
Finally he contends that counsel should have interviewed
several listed individuals who could testify about the
defendant's movements when he was not at work on the date
of the offense.
for defendant submitted affidavits in response to the motion
to vacate. He stated in one of his responses 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." Petitioner did not, at any time during the
pendency of the motion to vacate, submit sufficient witness
affidavits or other documentation which supported
petitioner's claimed alibi. This Court made specific
findings about the petitioner's veracity in conjunction
with the motion to vacate. For example, petitioner made
outlandish allegations that the trial transcript was edited
and redacted in several respects. I found that his
allegations that he advised counsel of facts that would have
supported a viable alibi defense cannot be accepted as true
because they are inherently incredible.
has now filed a notice of appeal and has attached copies of
his tribal court records showing that, on October 28, 2010,
the defendant was sentenced in tribal court for his ninth
charge of criminal contempt (in this case he was consuming
alcohol while on tribal probation). As shown by the records,
part of the sentence included an order that petitioner
complete nine days of community service at the Housing
Authority by November 11, 2010. The offense of conviction was
alleged to have occurred on November 2, 2010. Defendant has
contended throughout the pendency of his motion to vacate
that Housing Authority records and testimony from his
community service supervisor would show that he was in fact
at work at the Housing Authority on the. date of the offense.
appears that there did exist records showing that the
defendant had been sentenced to serve community service
during the time frame of the offense of conviction. There
still are no records or witness affidavits showing that the
defendant was in fact at his assigned job during the offense.
records or other evidence was available prior to trial to
support an alibi defense is not the issue in evaluating a
motion to vacate. The issue was whether the petitioner
carried his burden to show that counsel was ineffective in
failing to interview witnesses or discover mitigating
evidence. As set forth previously, and as set forth in more
detail in the order dismissing the motion to vacate,
petitioner's allegation in this regard were not accepted
as true because he had made many, many other outlandish and
clearly false allegations in his papers in support of his
motion to vacate. Based upon his complete lack of
credibility, I found, and still find, that the petitioner has
not carried his burden in showing that his Sixth Amendment
right to the effective assistance of counsel was denied.
Petitioner has not made a substantial showing that jurists of
reason would find it debatable whether the petition was
event, petitioner's notice of appeal and request for a
certificate of appealability are untimely. Petitioner
requests "equitable tolling for his delayed second or
successive motion," This request is in error since it is
his notice of appeal that is untimely. He has not filed a
second or successive motion. He has not set forth any cause,
much less good cause, for the delay in filing an appeal. It
appears from the records . attached to the notice of appeal
that the tribal court sent to petitioner a copy of his tribal
court records in January 2017. He did not submit those to
this Court in support of his motion to vacate. Petitioner had
possession of those records long before I denied his motion
to vacate. He therefore cannot rely upon any delayed receipt
of those records as a basis for filing a late appeal.
that this appeal is not taken in good faith. If the
petitioner's request for a certificate of appealability
is granted by the United States Court of Appeals for the
Eighth Circuit, he would be entitled to seek permission from
the Court of Appeals to proceed on appeal in forma pauperis
pursuant to Fed. R. App. P. 24(a)(5).
therefore, IT IS ORDERED that petitioner's motion, Doc.
40, to proceed on appeal ...