Fire Cloud v. USA

Filing 41

ORDER denying 38 Motion for Certificate of Appealability; denying 40 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Charles B. Kornmann on 5/21/2019. (JLS) Modified: delivered to Ronnie Fire Cloud via US Postal Service on 5/21/2019 (JLS).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

RONNIE FIRE CLOUD,

Petitioner,

1:I6-CV-0I024-CBK

ORDER DENYING REEQUEST FOR A
CERTIFICATE OF APPEALABILITY AND

vs.

ORDER DENYING REQUEST TO
UNITED STATES OF AMERICA,

PROCEED ON APPEAL
IN FORMA PAUPERIS

Respondent.

Petitioner 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 on appeal.
The 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 informa
pauperis.
DECISION

Pursuant to 28 U.S.C. § 2253(c)(1), an appeal from an order denying a motion to
vacate may not be taken unless ajudge 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 ofthe constitutional claims debatable or wrong." Slack v.
McDaniel. 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542(2000).

Petitioner 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 ofthe 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.

Counsel 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

victini alleged that the crime occurred." Petitioner did not, at any time during the
pendency ofthe 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.

Petitioner 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
ofthe offense.

It now appears that there did exist records showing that the defendant had been
sentenced to serve community service during the time frame ofthe 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.

Whether 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
fmd it debatable whether the petition was correctly dismissed.
In any 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.
I find that this appeal is not taken in good faith. Ifthe petitioner's request for a
certificate of appealability is granted by the United States Court of Appeals for the Eighth
3

Circuit, he would be entitled to seek permission from the Court of Appeals to proceed on
appeal informa pauperis pursuant to Fed. R. App. P. 24(a)(5).
ORDER

Now,therefore,

IT IS ORDERED that petitioner's motion, Doc. 40, to proceed on appeal informa
pauperis is denied.

IT IS HEREBY CERTIFIED that there does not exist probable cause of an
appealable issue with respect to the Court's order denying petitioner's petition for a writ
of habeas corpus. Petitioner's motion, Doc. 38, for a certificate of appealability is denied.
This in no way hampers the petitioner's ability to request issuance of the certificate by a

circuitjudge pursuant to Fed. R. App.P. 22
DATED this

of May,2019.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge