David Hieb v. Chad Pringle

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Diana E. Murphy and Jane Kelly (UNPUBLISHED); Granting [4597129-2] motion to withdraw as counsel filed by Mr. Steven R. Morrison.; Denying [4594999-2] motion for appointment of new counsel as moot, filed by Appellant Mr. David Lynn Hieb. [4649720] [17-2903]

United States Court of Appeals
For the Eighth Circuit
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No. 17-2903
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David Lynn Hieb
lllllllllllllllllllllPetitioner - Appellant
v.
Chad Pringle, Warden
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: April 4, 2018
Filed: April 13, 2018
[Unpublished]
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Before BENTON, MURPHY, and KELLY, Circuit Judges.
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PER CURIAM.

Appellate Case: 17-2903

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Date Filed: 04/13/2018 Entry ID: 4649720

David Hieb appeals the district court’s1 order dismissing his 28 U.S.C. § 2254
petition. For the reasons that follow, we affirm.
In 2005, Hieb pleaded guilty to conspiracy to commit murder, in violation of
North Dakota Century Code §§ 12.1-06-04 and 12.1-16-01. At the sentencing
hearing, the State’s attorney described evidence that Hieb had been one of three
individuals who robbed and beat the victim to death, and described conflicting
accounts as to whether the participants had planned to kill the victim, or had planned
merely to rob and beat him. Hieb did not deny his participation in carrying out a plan
to rob and beat the victim, or that the victim died as a result the beating, but denied
there had been an agreement to kill him. The trial court accepted Hieb’s guilty plea
and sentenced him to 25 years in prison.
About seven years later, the North Dakota Supreme Court held that conspiracy
to commit extreme-indifference murder under North Dakota Century Code
§§ 12.1-06-04 and 12.1-16-01(1)(b) was not a cognizable offense because the intent
requirement for conspiracy was inconsistent with intent requirement for unintentional
murder. See State v. Borner, 836 N.W.2d 383, 386 (N.D. 2013); see also Dominguez
v. State, 840 N.W.2d 596, 598 (N.D. 2013) (holding that defendant cannot be
convicted for attempted murder on theory of extreme indifference); Coppage v. State,
843N.W.2d 291, 303 (N.D. 2014) (applying Dominguez on postconviction review).
In October 2015, Hieb filed in state court an application for postconviction relief, the
dismissal of which was affirmed by the North Dakota Supreme Court. In part, the
North Dakota Supreme Court held that, assuming Borner applied to Hieb’s case, his
application was untimely because it was filed more than two years after that decision

1

The Honorable Ralph R. Erickson, then United States District Judge for the
District of North Dakota, now United States Circuit Judge, adopting the report and
recommendations of the Honorable Alice R. Senechal, United States Magistrate
Judge for the District of North Dakota.
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Appellate Case: 17-2903

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Date Filed: 04/13/2018 Entry ID: 4649720

was published on August 29, 2013. See Hieb v. State, 882 N.W.2d 724, 726 (N.D.
July 2016).
In February 2017, Hieb filed the present section 2254 petition, claiming that
his conviction and sentence violated his federal constitutional rights in light of
Borner. The district court granted the State’s motion to dismiss Hieb’s petition as
time-barred under 28 U.S.C. § 2244(d)(1), but granted Hieb a certificate of
appealability. Following de novo review, we agree with the district court that Hieb’s
petition was barred by the one-year limitations period, and that he failed to establish
he was entitled to equitable tolling. See Keller v. Pringle, 867 F.3d 1072, 1074-76
(8th Cir. 2017), cert. denied, 138 S. Ct. 1016 (2018). The judgment of the district
court is affirmed, Hieb’s counsel’s motion to withdraw is granted, and Hieb’s motion
for new appointment of counsel is denied as moot.
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Appellate Case: 17-2903

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Date Filed: 04/13/2018 Entry ID: 4649720