Long v. United States of America

Filing 5

ORDER denying second or successive motion to vacate, set aside, or correct sentence; denying 2 Motion to Appoint Counsel. It is hereby certified that there does not exist probable cause of anappealable issue with respect to the Court's order denying petitioner's § 2255 motion. Nocertificate of appealability will be granted. This in no way hampers the petitioner'sability to request issuance of the certificate by a circuit judge pursuant to Fed. R. App. P. 22(b) Signed by U.S. District Judge Charles B. Kornmann on April 6, 2018. (DLC)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

\\

NORTHERN DIVISION

1:18-CV-01007-CBK

GARY LONG,JR.,
Petitioner,

OPINION AND ORDER
/-

vs.

UNITED STATES OF AMERICA,

Respondent.

Petitioner has filed a motion to vacate, set aside, or correct his conviction for

aggravated sexual abuse and 540 month sentence in l:01-:cr-10021-CBK pursuant to 28
U.S.C. § 2255.

This case arises out of events beginning in the early morning hours of October 5,

2001, when the petitioner was 15 years old. Petitioner broke into a residence of a 30 year
old woman in McLaughlin, South Dakota, on the Standing Rock Indian Reservation. He

raped the woman,kidnapped her in her vehicle, drove 200 miles to Bear Butte State Park,
murdered her, and left her body in a secluded area. He then drove her car 40 miles to

Rapid City, South Dakota. Prior to arriving in Rapid City, he stopped to wipe down and
vacuum the inside of the car. When he arrived in Rapid City, he disposed ofthe vacuum

and the victim's.clothing in a dumpster. Two days later, while he was driving the car

around Rapid City with his sister, the vehicle ran out of gas on the roadway. When a
patrol officer approached the vehicle, petitioner fled. The vehicle was traced to the
victim and local law enforcement had, by that time, been notified that the victim was

missing and her home had been broken into. Petitioner was arrested in Bismarck, North
Dakota, on October 8, 2001. Following an interview with the petitioner, law enforcement

unsuccessfixlly tried to locate the victim's body. Petitioner personally directed law
enforcement to the location ofthe victim's body on October 11, 2001.

Petitioner was charged on October 9, 2001, by information with juvenile

delinquency in the commission ofthe crimes of kidnapping, burglary, and larceny. A
superseding information added the crime of aggravated sexual abuse; Following a

psychiatric evaluation and a transfer hearing, the government's motion to transfer was
granted. The United States Court of Appeals for the Eighth Circuit affirmed on
interlocutory appeal. Thereafter, an indictment was filed charging the four crimes set

forth in the superseding information. Petitioner entered iiito a plea agreement wherein he
agreed to plead guilty to the crime of aggravated sexual abuse. The parties jointly
recommended a sentence of-42 years, nine months(513 months). He was ultimately
sentenced on April 14, 2003,to 45 years custody(540 months). He was 17 years old at
the time of his sentencing. His is currently scheduled to be released in 2044, when
petitioner will be 58 years old.
The Federal Public Defender's Office filed a motion to vacate petitioner's

sentence in 2013, l:13-cv-01012-CBK, contending that his sentence was the functional

equivalent to a senterice of life without parole in violation of the Eighth Amendment. See
Miller V. Alabama. 567 U.S. 460,479, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407(2012)

("The Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders."). That motion was summarily
denied and a certificate of appealability was denied both by this Court and the United
States Court of Appeals for the Eighth Circuit.

Petitioner filed the instant petition pro se contending that he currently suffers from
a mental illness requiring the assistance of counsel. He contends that his guilty plea was
not knowing or voluntary because his plea was coerced with threats that he could be

subject to the death penalty. He contends that trial counsel was ineffective in failing to
advise him that it would have been unconstitutional to sentence him to death for a crime

committed prior to his reaching the age of 18 years. He contends that counsel in his first
habeas proceeding was ineffective in failing to raise the foregoing issues in his first
motion to vacate.

Pursuant to 28 U.S.C. § 2255(h), 28 U.S.C. § 2244(b)(3)(A), and Rule 9 of the

Rules Governing Section 2255 Proceedings for the United Sates District Courts, before

presenting a second or successive motion to vacate, petitioner must obtain an order from
the United States Court of Appeals for the Eighth Circuit authorizing the district court to
consider the motion. Defendant has failed to comply with the rules governing second or
successive motions.

Now,therefore,
IT IS ORDERED that the second or successive motion to vacate, set aside, or
correct sentence is denied.

IT IS FURTHER ORDERED that the motion. Doc. 2, to appoint counsel 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 § 2255 motion. No
certificate of appealability will be granted. This in no way hampers the petitioner's
ability to request issuance ofthe certificate by a circuit judge pursuant to Fed. R. App. P.
DATED this

of April, 2018.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge