Fire Cloud v. USA
Filing
31
ORDER granting 21 Motion to Dismiss for Failure to State a Claim. Signed by U.S. District Judge Charles B. Kornmann on 12/19/18. (mailed to Mr. Fire Cloud) (JLS) Modified on 12/19/2018 (JLS).
.DEC 1 a 2018
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
RONNIE FIRE CLOUD,
1:16-CV-01024-CBK
Petitioner,
ORDER
vs.
UNITED STATES OF AMERICA,
Respondent.
Petitioner 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.
Petitioner contends that he received ineffective assistance of counsel at trial,
sentencing, and on appeal. To support a claim of ineffective assistance of counsel, a twoprong 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)
(auotins 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).
I. Transcripts.
Petitioner 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 stated 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.
Petitioner also contends that the transcript ofthe 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 fictional.
Pursuant 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 ofthe 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. 162F.3d981,983 (8th Cir. 1998).
II. Ineffective Assistance Prior to Trial.
Petitioner 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 ofthe Sixth Amendment right to counsel." Kramer v. Kemha. 21 F.3d 305, 309
(8th Cir. 1994). Qounsel 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, 104S.Ct. at2066).
The 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.
Petitioner 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 petitioner's residence.
In 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.
Trickev. 875 F.2d 205, 210(8th Cir. 1989). Petitioner is further required to show that
counsel was informed ofthe existence of any witnesses not called to testify.
Petitioner 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 ofthe
proffered witnesses.
Petitioner 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 Ruflis
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. 1 realize
that he is in prison but he sets forth no explanation as to why one of his friends could not
obtain the records.
Counsel 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
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occurred." Of course, at trial it became apparent that the victim had made conflicting
statements as to the claimed time of the offense.
Whether 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 ofthe multitude offalse 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 these matters. His allegations cannot be
accepted as presenting a factual dispute because they are contradicted by the record and
are inherently incredible.
III. Ineffective Assistance at Trial.
A. Failure to put on a defense.
Petitioner contends that counsel was ineffective in failing to call petitioner as a
witness in his own defense and in failing to present his alibi witnesses in his defense. He
claims that he was threatened and prevented from testifying. In response, trial counsel
submitted the transcript of a conference between counsel and petitioner wherein
petitioner agreed that he did not wish to testify or present evidence on his own behalf.
Petitioner contends that the transcript is not an accurate recording of what transpired
during that conference and that the transcript was obtained by subterfuge to make it
falsely appear that petitioner waived his right to testify. He contends that the transcript
"was patched together by the clerk who typed from a document she was presented by
Sutton." Petitioner contends that he thought the transcript was being created "to protect
him from the judge 'giving him life in prison' as Sutton had indicated he would do if Fire
Cloud testified." Petitioner contends that, after the colloquy between himself and counsel
concluded,"Fire Cloud still believed he was going to be testifying at his trial." Petitioner
insists that the exchange between he and his attorney as set forth by the transcript "never
occurred as transcribed." , Petitioner contends that he xmderstood that invoking his Fifth
Amendment right "was intended to protect him from the judge asking him a lot of
5
questions and giving him life in prison when he did not testify." Petitioner contends that
counsel did not explain that waiving his Fifth Amendment right meant that petitioner
would not be testifying at all. All of petitioner's foregoing claims are contradicted by the
record. His claims regarding the transcript of the discussion with counsel as to waiving
the right to testify are all inaccurate and are rejected.
Petitioner is entitled to no credence. He has put forth a total pack of lies.
The Sixth Amendment grants a criminal defendant the right to call witnesses in his
favor and to testify in his own defense. Rock v. Arkansas. 483 U.S. 44, 52,107 S.Ct.
2704, 2709,97 L.Ed.2d 37(1987). "Only the defendant may waive [his] right to testify,
and the waiver must be made voluntarily and knowingly." Berkovitz v. Minnesota. 505
F.3d 827, 828(8th Cir. 2007).
I
As early as voir dire, defense counsel raised the issue of the possibility that the
defendant would nof testify. s He elicited from the jury panel that there may be valid
reasons, including the inability to effectively communicate, that would deter a person
from testifying in his own defense even if the defendant asserts his innocence.
The transcript shows that petitioner fully understood the he had the right to testify
in his own behalf and that he made the final decision not to take the stand. This decision
was made for tactical reasons -petitioner and counsel believed that the government had
failed to prove its case beyond a reasonable doubt.
Further, petitioner's knowing and voluntary waiver of the right was evidenced by
silence when his coimsel told the court, outside the presence of the jury, that petitioner
made the decision to not present any evidence, other than what was presented through
cross examination. Petitioner further did not object when counsel subsequently rested in
front of the jury without calling petitioner to testify. Frev v. Schuetzle, 151 F.3d 893,898
(8th Cir. 1998). A criminal defendant "must act affirmatively" in objecting when counsel
rests without calling the defendant to the stand. United States v. Bemloehr. 833 F.2d
749,752(8th Cir. 1987). "The defendant may not... indicate at trial his apparent
acquiescence in his counsel's advice that he not testify, and then later claim that his will
totestify was'overcome.'" Id.
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Petitioner contends that he was coerced into waiving his right to testify by counsel,
who advised him that the Judge would likely sentence petitioner to life in prison if
petitioner testified. One ofthe risks of testifying is that, if convicted, the sentencing
range could be enhanced based upon a finding that the defendant's testimony was false
and that he obstructed justice. There is therefore a risk that a defendant who testifies
could get a longer sentence if convicted.
The record is clear that counsel discussed with petitioner his right to testify and
petitioner waived that right. He was not denied the right to testify in his own defense.
He was not denied the effective assistance of counsel in this regard.
Counsel subpoenaed Barbara Mosseau, defendant's common law wife, along with
family members Charles Chapman and Milton Uses The Arrow, to testify at trial.
Counsel submitted a witness list which included the foregoing witnesses. They were not
called as defendant elected not to put on a defense.
It was a reasonable trial strategy to refrain from putting on any evidence and
instead arguing to the jury that the victim was not credible and the government's case
was so weak that the defendant need not refute the evidence. The fact that the jury did
find the victim credible, despite evidence to the contrary, does not impugn the
reasonableness of the trial strategy selected by counsel and the defendant.
Petitioner knew that counsel intended to rest without putting on evidence prior to
his attorney formally resting in front of the jury. Petitioner raised no objection to the
/
failure to do so. Petitioner had the opportunity to raise his objections to me prior to
counsel resting, after counsel formally rested and the jury was excused for the evening,
and during the jury instruction settlement conference the following morning. Petitioner
did not indicate in any way that he disagreed with counsel and wanted to call witnesses in
his defense. Petitioner waived any right to present a defense, other than that presented
through cross-examination ofthe government's witnesses.
B. Failure to object to jury Instructions.
Petitioner contends that counsel was ineffective in failing to object to the giving of
lesser included offense instructions to the jury. Petitioner contends that such instructions
7
told the jury to presume guilt and to deliberate only over the degree of guilt. Petitioner
asserts that he told counsel he wanted to "roll the dice."
At the end ofthe first day of trial, I inquired, outside the presence ofthe jury,
whether the defense wanted an instruction on a lesser included offense. Counsel stated,
in the presence of the defendant, that he would like a lesser-included offense instruction.
There was a discussion as to what were the lesser included offenses to the crimes of
aggravated sexual abuse by force and attempted aggravated sexual abuse. The Court took
an evening recess and jury instructions were settled in the morning.
Defendant was present the following morning when jury instructions were settled
in chambers. Counsel stated "Judge,I had an opportunity to consult with my client last
night, and my client has instructed me to request less-included offenses for both Counts I
and 11." Defendant did not contradict or raise any objection to his counsel's statement.
At that time, defendant was seated around a conference table within feet of me. He did
not indicate in any manner that he was not in agreement with his attorney's statement.
It is the District Court Judge's right and duty to instruct the jury on the law based
upon the evidence presented. United States v. Stegmeien 701 F.3d 574, 582(8th Cir.
2012). The ultimate decision as to what instruction should be given to the jury is the sole
responsibility ofthe Court. I have previously held that the district court may give a lesser
included offense instruction sua sponte. United States v. Gregg. 376 F.Supp.2d 949, 954
(D.S.D. 2005).
Petitioner cannot demonstrate that counsel was ineffective in requesting lesser .
included offense instructions because he cannot show that he objected to such
instructions at the time of trial. Further, petitioner cannot demonstrate prejudice. The
Court twice (both on the evening of the first day of trial and the following morning)
invited counsel to review and discuss which offenses were in fact lesser offenses of the
crimes charged. The Court clearly intended to instruct the jury on lesser included
offenses based upon the evidence presented at trial and the petitioner knew that.
C. Failure to attack victim's credibility.
Petitioner contends that counsel did not adequately attack the truthfulness of the
victim. That is not true. There were no witnesses to the sexual assault and there was no
forensic evidence that a sexual assault had occurred. This case presented the classic "he
said/she said" situation. The victim's credibility was in contention at the start of the trial.
In his opening statement, counsel for defendant told the jury that the evidence would
show that the victim made contradictory statements about what happened on the date of
the alleged offense. Counsel thoroughly cross-examined the victim, attempting to illicit
inconsistencies in her testimony.
On direct examination, the victim testified that she and her boyfriend, M.J.
Archambault, were at the defendant's home drinking with others. She testified, however,
that she did not have any alcohol, other than a sip of M.J.'s drink. On cross examination
she denied telling Wendy Bredow, the investigating officer, on the day after the offense
that she had approximately five "drinks" that evening. Bredow testified on cross
examination that that the victim did state that she had five or six drinks that evening with
her fiiends at Cattlemen's and one at defendant's home.
Counsel fiirther asked the victim where in McLaughlin, South Dakota, she met up
with M.J. that evening prior to going to the defendant's home. She testified that they met
at a gas station. She denied that she told Wendy Bredow that they met at Indian Health
Services. Wendy Bredow testified on cross-examination that the victim stated on the day
after the offense that she met M.J. at Indian Health Services.
The victim testified that she woke up about 8:00 or 9:00 in the morning. M.J. left
to get food. An hour later she took a shower and the offense occurred. She admitted on
cross-examination that she told F.B.I. Agent Miller that M.J. left at 11:00 for a job and
the offense occurred around noon. She admitted on cross-examination that she told
B.LA. Agent Lawrence that the offense occurred at 1:00 p.m.
On cross-examination, counsel elicited evidence that the victim told different
stories about the actual offense conduct at different times, that she told different stories
about the time of the offense, that she told different stories about whether she drank that
evening, and even about trivial matters that occurred that evening and the following
9
morning. Counsel's cross-examination highlighting the victim's inconsistent stories
called into question her credibility and was a reasonable trial strategy.
Counsel argued to the jury during closing argument that the victim was not
credible, pointing out all the inconsistencies in her story. Counsel was not ineffective as
contended by petitioner.
IV. Ineffective Assistance at Sentencing.
Petitioner contends that counsel was ineffective at sentencing by insisting that the
petitioner receive a ten year sentence when petitioner was entitled to a six month sentence
for simple assault.
Petitioner was convicted in Count I ofthe lesser included offense of abusive
sexual contact, which has a statutory maximum custody sentence of ten years(120
months), and in Count II of attempted aggravated sexual abuse, which has a statutory
maximum custody sentence of life. The Guideline range was 151 to 188 months. The
Federal Sentencing Guidelines are advisory only. I had the statutory authority to impose
the maximum sentence on each coxmt of conviction. The prosecutor asked for a sentence
in the middle ofthe guideline range. In response, counsel for petitioner argued that the
behavior in Count I accounted for the actual conduct found by the jury and a sentence of
120 months was sufficient to account for such conduct. That was certainly effective
advocacy on behalf of petitioner since 120 months was a lower sentence than called for
by the advisory guideline range.
I sentenced petitioner to 120 months on Count I and 120 months on Count II, to be
served concurrently. In essence, petitioner was sentenced to a total sentence of 120
months which was well below the advisory guideline range. Counsel for petitioner
successfully advocated for a sentence which was less than what the government and the
sentencing guidelines suggested should be imposed. Absent effective advocacy by
counsel, petitioner would have received a sentence in excess of 120 months. He cannot
demonstrate that counsel was ineffective at sentencing or that he was prejudiced by
counsel's assistance at sentencing.
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V. Ineffective Assistance on Appeal.
Petitioner contends that counsel was ineffective on appeal in failing to consult
petitioner prior to submitting the appellate brief and in failing to request to expand the
record to include alibi evidence. The United States Court of Appeals for the Eighth
Circuit has instructed:
Under Strickland, in evaluating whether an attorney provided
objectively unreasonable assistance, a reviewing court should
minimize the effects of hindsight and recognize a "strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Because ofthis presumption
and the reality that effective appellate advocacy often entails
screening out weaker issues, the Sixth Amendment does not require
that appellate counsel raise every colorable or non-frivolous issue on
appeal. "Absent contrary evidence," we assume that appellate
counsel's failure to raise a claim was an exercise of"sound appellate
strategy."
Roe V. Delo. 160 F.3d 416,418(8th Cir. 1998)(internal citations omitted).
Petitioner has not alleged any colorable issue that counsel should have raised that
was not raised on direct appeal. Any failure to consult with petitioner could not have
been prejudicial absent the failure to raise an issue having some merit.
There is no basis to request that the appeal record be expanded to include evidence
not presented at trial. Petitioner waived the presentation of his alibi defense by resting
without putting on any evidence. Counsel was not ineffective by failing to apprise the
Court of Appeals of his claimed alibi defense.
Petitioner has not shown that counsel was ineffective on appeal or that petitioner
suffered any prejudice by counsel's performance on appeal.
VI. Evidentiary Hearing.
The district court must hold an evidentiary hearing on a § 2255 motion which
presents factual issues. United States v. Lambros. 614 F.2d 179, 181 (8th Cir. 1980).
However, a § 2255 "petition can be dismissed without a hearing if(1)the petitioner's
allegations, accepted as true, would not entitle the petitioner to relief, or(2)the
allegations cannot be accepted as true because they are contradicted by the record,
11
inherently incredible or conclusions rather than statements of fact." Delgado v. United
States, 162 F.3d 981, 983(8th Cir. 1998)(auotms Engelen v. United States. 68 F.3d 238,
240(8th Cir. 1995)). No evidentiary hearing is necessary because it plainly appears from
the face of the motion, after extensive review of the record, that the petitioner is not
entitled to relief on any issues. Summary dismissal is therefore appropriate pursuant to
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District
Courts.
ORDER
IT IS ORDERED that respondent's motion to dismiss for failure to state a claim,
Doc. 21, is grantecy^ to all claims ofineffective assistance of counsel.
DATED this//
ofDecember, 2018.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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