End of Horn v. United States of America

Filing 22

ORDER granting 19 Motion to Dismiss. Signed by U.S. District Judge Charles B. Kornmann on 12/19/18. Mailed to Stoney End of Horn with post conviction appeal packet (SLW) Modified text on 12/20/2018 (SLW).

UNITED STATES DISTRICT COURT

DEC 1 B

DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

STONEY END OF HORN

1:17-CV-01011-CBK

Petitioner,
vs.

ORDER

UNITED STATES OF AMERICA,
Respondent.

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
ofthe 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 ofSouth 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 Litie.. 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 ifit strikes a savvyjudge that actual proof ofthose facts is improbable." Bell
Atlantic Corp. v. Twomblv. 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. Iqbah 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."/t/.(cfVmgTwomblv. 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 ofTribes 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 riglits 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 ofjustice," or "an omission inconsistent with the
rudimentary demands offair 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 relieffor 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 fSth Cir. 1995); U.S. v. Wilson. 997 F.2d429,431 (8th

Cir. 1993)(internal citations omitted). The burden of proofis on the petitioner to demonstrate that
the sentence must be vacated. Cassidv v. U.S.. 428 F.2d 585, 587(8th Cir. 1970).
III. Ineffective Assistance of Counsel

To prevail on a claim ofineffective 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
3

ended in a different result without counsers errors." Id. (internal citations omitted). The

reasonableness of counsel's conduct is judged "on the facts ofthe particular case, viewed as ofthe
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 ofjurors 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 ofprecedent 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 charge. Petitioner's first
s /

allegation in support of an ineffective assistance of counsel claim is therefore without merit.
Petitioner's claim that counsel failed to conduct pre-trial investigation of the sex abuse

charges and failed to dismiss the sex abuse charges for lack of evidence are similarly without merit.
On appeal to the Eighth Circuit, petitioner raised a related claim: namely, that no reasonable jury
4

could have convicted him because there was no physical evidence of the alleged abuse. However,
as the Eighth Circuit noted,"[n]o physical evidence was necessary: a victim's testimony alone can
be sufficient to support a jury verdict." U.S. v. Stonev End of Horn. 829 F.3d 681, 685 (8th Cir.
2016). Here, petitioner does not indicate what pre-trial investigation should have taken place nor
did he know what evidence his counsel failed to investigate. Even broadly construing petitioner's

complaint, it is clear that he has not satisfied his burden to demonstrate "a reasonable probability

that the proceeding would have ended in a different result without counsel's errors." Strickland at
687. Rather, as the Eighth Circuit noted, the victim's "testimony was sufficient to support the
convictions." End ofHorn at 685.

Petitioner next claims that counsel's failure to call character witnesses constitutes

ineffective assistance of counsel, listing as such witnesses his mother, father, and "other family
members." Petitioner does not state with specificity who counsel should have called beyond his
mother and father, nor does he indicate what these character witnesses would have testified to or

how that would have changed the outcome of his trial. Review of matters involving trial strategy
for ineffective assistance of counsel claims is highly deferential. Middleton v. Roper. 455 F.3d

838, 848-49(8th Cir. 2006). A counsel's decision not to call character witnesses is a matter of trial
strategy. Anderson v. Hopkins, 113 F.3d 825, 832(8th Cir. 1997)("The trial attorney's deliberate
decision not to use many of these witnesses was appropriately treated by the district court as a
matter of trial strategy, not rising to the level of constitutionally deficient legal representation.");

see also Griffin v. Delo. 946 F.2d 1356, 1359-60(8th Cir. 1991), opinion vacated and superseded
onreh'gon other grounds^ 961 F.2d 793 (8th Cir. 1992). Here, the failure to call family members

as witnesses was a reasonable trial strategy, as petitioner has not indicated what testimony, if any,
either of his parents would have provided relevant to the conduct for which he was charged, and a

jury would likely consider such testimony to be biased. Sevmour v. Walker. 224 F.3d 542(6th Cir.
5

2000). A counsers decision not to call witnesses to testify regarding petitioner's character is

reasonable, as such testimony could open the door for a government attack on the defendant's
character. U.S. v. Best, 219 F.3d 192, 201-02(2d Cir. 2000). Ultimately, as with petitioner's other
claims, he has failed to show that counsel's decision not to call character witnesses at his trial
prejudiced his defense.
Petitioner also states that counsel failed to impeach the victim of sex abuse charges,

alleging that the victim stated on record that she was not sexually abused. Petitioner misstates the
record. While the victim limited the dates and locations as to where the abuse occurred, she did

not categorically deny being abused. JT 574: 8-19. Defense counsel properly moved for dismissal
of Counts 1 and 2, granted by the Court, as occurring outside of Indian country and therefore

beyond the Court's jurisdiction. JT 647: 10-17. As with petitioner's claims regarding the
sufficiency of the evidence of the sex abuse charges, it is unclear how trial counsel failed to

impeach the victim's testimony. Although the victim's testimony as to why she did not report the
abuse earlier and explanation of her continued interaction with petitioner were, as the Eighth
Circuit held, "proper areas for cross-examination and argument by the defense," in the end the
victim's "credibility was a question for the jury." End of Horn at 685. Again, then, petitioner has
not met his burden to demonstrate that the proceeding would have ended in a different result had
his counsel cross-examined the victim in another manner during trial.

Petitioner states that defense counsel failed to prepare diminished capacity, actual

innocence, lack of premeditation, or intoxication defenses, and that this constitutes ineffective
assistance ofcounsel. Throughout trial petitioner claimed and continues to claim that he is actually
innocent. The other strategies that petitioner requests his defense counsel use are inconsistent with
a claim of actual innocence. Although "[a] tactical decision to pursue one defense does not excuse

failure to present another defense that would bolster rather than detract from the primary defense,"
6

courts have routinely dismissed ineffective assistance of counsel claims for failure to present
defenses inconsistent with the defense taken. Foster v. Lockhart. 9 F.3d 722, 726 (8th Cir. 1993)
(internal citations omitted);see, g.g.. Vison v. True.436 F.3d 412(4th Cir. 2006); Nelson v. Naele.
995 F.2d 1549(11th Cir. 1993); State v. Harris. 870 S.W.2d 798(Mo. 1994). Moreover, as counsel
has noted, there is no evidence of petitioner's diminished capacity to suggest that such a defense
would be warranted and voluntary intoxication is not a defense to a generd intent crime. Nor is

lack of premeditation. Petitioner's argument with respect to these claims is therefore without merit.
Petitioner claims ineffective assistance of counsel for counsel's failure to challenge the

selection of jurors on the basis of race. Petitioner appears to object to the number of Native

American jurors who participated in his trial. While this Court is sympathetic to the fact that it is
often the case that few Native Americans participate in federal jury trials in this state, the District
of South Dakota's Plan for the Random Selection of Grand and Petit Jurors, based on the random

selection ofjurors from the list of registered voters, is lawful: the Eighth Circuit has previously
rejected Sixth Amendments challenges on the basis of race to the District of Nebraska's jury
selection policy based, as is South Dakota's policy, solely on selecting jurors from voter
registration lists. U.S. v. Sanchez. 156F.3d875(8th Cir. 19981: see also U.S. v. Johnson. 169 F.3d

1092(8th Cir. 1999). Further, petitioner has not alleged that there was any indication ofimproper
motivation on the part of the selected jurors. Petitioner therefore fails to meet his burden of
demonstrating that, had different members ofthe community served asjurors at his trial, a different
outcome would have been reached.

Petitioner's claim that counsel failed to move for a lesser included offense to assault

resulting in serious bodily injury is also inapposite. There was no evidence on record to justify
conviction of a lesser offense, a requisite element of entitlement to a lesser included offense
instruction. U.S. v. Herron. 539 F.3d 881, 886-87 (8th Cir. 2008). Nor has defendant suggested
7

that such evidence exists but that his counsel failed to present it. Ultimately, there is no "dispute"

such that the jury could have "consistently f[ound] the defendant innocent ofthe greater and guilty
of the lesser included offense." Id. Petitioner has therefore not shown any error on the part of his
counsel that prejudiced his defense with regard to the inclusion of a lesser included offense.

Petitioner finally claims that counsel failed to obtain expert witnesses to testify on his
behalf. As respondent notes, whether to call an expert to testify is a decision oftrial strategy within
counsel's discretion. Morelos v. U.S.. 709 F.3d 1246, 1250 (8th Cir. 2013). Petitioner has not

stated with any specificity which expert witnesses counsel should have called. Nor has he indicated
how testimony given by expert witnesses would alter the outcome ofhis trial. As the Eighth Circuit

found, "[t]he record as a whole . . . shows a convincing case" that petitioner committed assault
'resulting in serious bodily injury. End ofHorn at 686. As noted above, the Eighth Circuit also held
that the victim's "testimony was sufficient to support the convictions." Petitioner's conclusory
statement that expert witnesses would alter the sufficiency ofthe evidence presented at trial is not
credible.
IV. Jurisdiction

Petitioner claims that this Court does not have jurisdiction over the alleged crimes because

the government did not prove that petitioner is an enrolled tribal member. Petitioner further claims
that the government must prove that petitioner's victims are enrolled tribal members. Petitioner's
argument is without merit. It is sufficient for federal jurisdiction under 18 U.S.C. § 1153 that the

defendant in a criminal proceeding is an Indian: "Any Indian who commits against the person or
property of another Indian or other person . . . within the Indian country, shall be subject to the
same law. and penalties as all other persons . . . within the exclusive jurisdiction of the United
States." 18 U.S.C. § 1153 (italics added for emphasis). The government submitted a trial

stipulation wherein the parties agreed that petitioner is an enrolled member of the Sioux Tribe and

that the alleged offense occurred within Indian country. The Eighth Circuit has repeatedly upheld
the validity of such stipulations as their "clear purport" is "admission to Indian status under the
[§ 1153] statute." U.S. v. Martin. Ill F.3d 984, 993 (8th Cir. 2015){quoting U.S. v. Nazarenus.
983 F.2d 1480,1484(8th Cir. 1993);

also U.S. v. Webster. 797 F.3d 531, 536(8th Cir. 2015).

V. Conclusion

As a result of the foregoing, plaintiff's complaint should be dismissed for failure to state
a claim upon which relief may be granted.
ORDER

Now,therefore,
IT IS ORDERED:

1. Respondent's motion to dismiss, Doc. 19, is granted.
2. Petitioner's motion to vacate, set aside or correct sentence and request for evidentiary
hearing. Doc. 1, are denied.

Dated this

^^ofDecember,2018.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge