Provancial v. United States of America

Filing 17

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255), granting 13 Motion to Dismiss, declining to issue certificate of appealability Signed by U. S. District Judge Roberto A. Lange on 2/26/14. (SLW)

FTLHåi
UNITED STATES DISTRICT COURT
DISTzuCT OF SOUTH DAKOTA
CENTRAL DIVISION
JEFFREY W. PROVANCIAL,

CIV 13.3009-RAL

Plaintiff,
vs.

UNITED STATES OF AMEzuCA,

OPINION AND ORDER
GRANTING GOVERNMENT'S
MOTION TO DISMISS AND
DENYING ç 22ss MOTION

Defendant.

Petitioner Jeffrey Vy'. Provancial ("Provancial") filed a motion under 28 U.S.C. ç 2255

r
to vacate, set aside, or correct sentence. CIV Doc. 1 Provancial is in federal custody having
pleaded guilty to a sexual abuse count and having been sentenced to 108 months in the custody

of the Bureau of Prisons on that conviction. CR Doc. 34.2 Provancial appealed his sentence to
the United States Court of Appeals for the Eighth Circuit, which affirmed this Court's sentence.

United States vs. Provancial, 438 F. App'x 529 (9thCir.2}l l) (per curiam). Provancial's $ 2255

motion raised two grounds: (1) ineffective assistance of counsel based on the contention that
Provancial's guilty plea was "tendered in an unknowing and involuntary manner, because his

attorney failed

to fully investigate the case before advising him to plead guilty";

and (2)

insufficient factual basis for his plea in that allegedly no finding was made that Provancial knew
that the victim of his ofîense was incapacitated at the time of the sexual abuse. CIV Doc.

I

at

I To cite

pleadings in this case-CIV 13-3009-RAL-this Opinion and Order uses "CIV
Doc." followed by the Case Management/Electronic Case Filing ("CMÆCF") document number.
2

When this Opinion and Order cites to documents from the underlying criminal case, CR
10-30056-RAL, "CR Doc." will be used followed by the CMIECF document number. This Court
takes judicial notice under Rule 201 of the Federal Rules of Evidence of the entire file in CR 1030056-RAL.

4-5. This Court screened Provancial's petition and ordered that the United

States attorney

file

an answer. CIV Doc. 5.
The United States filed a motion for an order directing an affidavit response, CIV Doc.

6, which this Court granted. CIV Doc.

8.

Provancial executed an attorney-client privilege

waiver. CIV Doc. 9. The Govemment then filed its motion to dismiss. CIV Doc. 13. After

a

month had elapsed without Provancial responding, this Court entered an order directing
petitioner to reply giving him an additional month to submit his reply. CIV Doc. 14. Provancial

filed his reply a few days beyond the deadline to do so, CIV Doc. 15, but this Court

has

considered Provancial's reply as if timely filed in evaluating whether Provancial is entitled to

relief and whether the Government is entitled to dismissal.

I.

Summary of tr'acts
On July 13,2010, Provancial was indicted on one count of aggravated sexual abuse by

force and one count of sexual abuse. CR Doc. 3. Provancial originally pleaded not guilty and
was appointed counsel Randall Briggs Turner from the Federal Public Defender's Office. CR

Doc. 9; CR Doc. 10.
On November 16, 2010, Provancial entered into a plea agreement with the Government

under which he was to plead guilty to the second count for sexual abuse with the greater offense

contained in Count

I of aggravated sexual

abuse being dismissed. CR Doc.

23. Provancial

signed a factual basis statement setting forth the following:

On or about April 11,2010, in Todd County, in Indian
country, in the District of South Dakota, Jeffrey W. Provancial, an
Indian, did knowingly engage in and attempt to engage in a sexual
act, that is, contact between his penis and the vulva of [the
victim], who at the time was incapable of appraising the nature of
the conduct and was physically incapable of declining

participation in and communicating unwillingness to engage in
the sexual act.
On April 1 0, 20 1 0, 1 7-year-old [victim] was drinking with
füends. The next moming she went to Jeffrey W. Provancial's
residence to drink with Provancial and Brent Good Shield. She
drank with them for most of the night, going to bed "after
daylight." [The victim] started to wake later on April 11, and
noticed someone had taken her clothes off. She noticed that the
defendant had gotten on top of her and told her to be quiet. At
that time, the defendant had his penis inside her vagina.
When interviewed, the defendant stated that Good Shield
and [the victim] arrived at his residence to drink. Good Shield
later left the residence. The defendant went to his room and saw
[the victim] passed out and naked on his bed. He tried to wake
her, but he could not. He informed the interviewing agent that
then "something just happened." The defendant stated that he
pulled down his pants, got on top of [the victim] while she was
passed out, and put his penis in her vagina. He said that when he
did that, she woke up. He stated that [the victim] did not tell him
to stop, and he only stopped because his condom broke. The
defendant provided a handwritten statement, admitting that he had
sex with [the victim], without her consent, while she was passed
out. The defendant stated he was sorry for what he did and
wishes he had never done a thing.
CR Doc.

25. The factual basis statement also acknowledged that Provancial is an "Indian" and

that the offense took place in "Indian country." CR Doc. 25.

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case. CR Doc.29; CR Doc. 46. Provancial took an oath to tell the truth atthat hearing before
this Court asked any questions of him and confirmed that he understood his obligation to answer
questions of the Court

truthfully. CR Doc. 46 at 3. After initial questioning, this Court

determined that Provancial was competent to go forward with the proposed change of plea. CR

Doc.46 at 5. During those initial questions, the following exchange occurred:

THE COURT: Are you fully satisfied with the counsel,
representation and advice given to you by Mr. Turner?
THE DEFENDANT: Yes,I am.

CRDoc.46at4-5.
The Court advised Provancial about the offense to which he was proposing to plead

guilty, including advising Provancial of the possible penalties he faced, rights that he had to a

jury trial which he would be giving up, and the sentencing process. CR Doc. 46. After
determining that Provancial had voluntarily signed the plea agreement, the Court asked
Provancial the following questions

:

THE COURT: Next, the Court wants to ask you about the factual
basis statement. Do you have that in front of you?
THE DEFENDANT: Yes, sir.
THE COURT: Did you carefully read and understand the factual
basis statement?

THE DEFENDANT: YeS.
THE COURT: Did you go over the factual basis statement with
your attorney before signing it?
TFIE DEFENDANT: Yes, sir,I did.
THE COURT: Is the factual basis statement one hundred percent
accurate in what it states?
THE DEFENDANT: Yes, sir, Your Honor.
CR Doc. 46 at 14. The Court continued its questioning of Provancial as follows:

THE COURT: If you were to present a plea to Count II today,
would that plea be made voluntarily on your own part and on your
own free will?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you had enough time to talk with Mr. Turner
about your case and about what you should do here today?
THE DEFENDANT: I did.
THE COURT: Have you been fully satisfied with his counsel,
advice and representation?
THE DEFENDANT: Yes.
CR Doc. 46 at 15. Provancial then pleaded guilty to Count II, which charged that he had engaged
and attempted to engage in a sexual act, contact between his penis and the vulva of the victim,

"who at the time was incapable of appraising the nature of the conduct and was physically

incapable of declining participation in and communicating unwillingness to engage in the sexual

act." CRDoc.46 at16; CRDoc.

1.

At the sentencing hearing on March 2,2011, as stated previously, Provancial received a
sentence

of

108 months in the custody of the Bureau of Prisons, followed by supervised release

of five years on certain terms and conditions. CR Doc. 34. Provancial argued on appeal that this

Court improperly imposed a use-of-force enhancement under the United States Sentencing
Commissions Guideline Manual and erred in commenting that Provancial had no employment
history, when in fact he had worked for part ofone summer prior to his arrest. The United States
Court of Appeals for the Eighth Circuit affirmed the sentence. Provancial, 438 F. App'x 529.
Provancial filed a timely ç 2255 motion alleging two grounds of relief: (1) ineflective
assistance of counsel allegedly "because his attomey failed to

fully investigate the

case before

advising him to plead guilty"; and (2) insufficient factual basis for his plea based on an alleged

lack of the mens rea element under 18 U.S.C. ç 2242(2) of knowingthat the victim was
incapacitated. CIV Doc.

1 at

4-5. After Provancial executed an attorney-client waiver, his trial

counsel, Randall Briggs Tumer, executed an affidavit. CIV Doc. 10. In the affidavit, Turner

afürmed that he advised Provancial of the evidence fumished by the Government including
Provancial's own confession, and discussed the options available to Provancial. CIV Doc. l0 at

2. Tumer reviewed the evidence against Provancial and listened to Provancial's side ofthe story.

After the Government made a plea offer to allow Provancial to plea to sexual abuse and to
dismiss the greater charge of aggravated sexual abuse by force, Tumer discussed the plea
agreement proposal with Provancial and advised him that

it was his choice whether to enter

plea or go to trial. Provancial chose to plead guilty. CIV Doc. l0 at2-3.

il.

Discussion

a

A.

Evidentiary Hearing

"A petitioner is entitled to an evidentiary hearing on a section2255 motion unless 'the
motion and the files and the records of the case conclusively show that [he] is entitled to no

relief." Holder v. United

States

,721 F.3d 979,993 (8th Cir. 2013) (quoting Anjulo-Lopez v.

United States, 541 F.3d 814,8I7 (8th Cir. 2008). "No hearing is required where the claim 'is
inadequate on its face or

if the record affirmatively refutes the factual assertions upon which it

is based."' Watson v. United States

,492F.3d960,963 (8th Cir. 2007) (quoting Shaw v. United

States, 24 F.3d 1040, 1043 (8th

Cir. 1994)).

Because the record convincingly refutes

Provancial's assertions and shows conclusively that he is not entitled to reliet an evidentiary
hearing is not necessary in this case.

B.

Provancial's Claims

l.

Ineffective Assistance of Counsel

Provancial's first claim in his ç 2255 motion asserts ineffective assistance of counsel.
Under Strickland v. Washington, 466 U.S. 668 (1984), Provancial must meet a two-prong test

in order to prevail on such a claim. Under the first prong, Provancial must demonstrate "errors
so serious that counsel was not

functioning

as the 'counsel' guaranteed the defendant by the

Sixth

Amendment." ld. at 687. To make such a showing, Provancial must overcome the "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial strategy." I4. at 689 (intemal quotation
marks omitted). "Judicial scrutiny of counsel's performance must be highly deferential." I4.
"'When reviewing counsel's performance, a court must avoid using the 'distorting eflects

of

hindsight'and must evaluate the reasonableness of counsel's conduct'from counsel's perspective

at the time."' United States y- eafter, 629 F. Supp. 2d 934, 940 (D.S.D. 2009) (quoting
Strickland,466 U.S. at 689).

Under the second prong of Strickland, Provancial must demonstrate prejudice, by
showing a reasonable probability that counsel's error altered the result of the proceeding.
Strickland, 466 U.S. at 694. "To establish prejudice, [Provancial] must show 'a reasonable
probability that, but for counsel's unprofessional errors, the result ofthe proceeding would have
been difîerent."' Wong

v. Belmontes, 558 U.S. 15, 19-20 (2009) (per curiam) (quoting

Strickland, 466 U.S. at694). When a defendant makes multiple claims of ineffective assistance
of counsel, each claim must be independently examined to determine ifthere is prejudice, rather

thantakingthematterscollectively. SeeHallv.Luebbers,296F.3d685,692-93(8thCir.2002).
That is, the Eighth Circuithas "repeatedlyrejectedthe cumulative errortheoryofpost-conviction

relief." United

States v. Brown, 528 F.3d 1030, 1034 (8th

Cir. 2008). Thus, Provancial faces

what the Supreme Court has characteÅzed a "highly demanding" standard under Strickland.

Kimmelmanv.Morrison,477U.S.365,382(1986). Provancialhasnotmetthatstandard.
Provancial claimed that his counsel was ineffective for failing to investigate his case.

I at 4.

Provancial asserts that an investigation would have shown that the victim

engaged in sexual

activity on the night in question prior to her encounter with Provancial. CIV

CIV Doc.

Doc. 1. Provancial presents no evidence to support these contentions. Moreover, alleged prior
sexual conduct by the victim likely would have been inadmissible at any trial, Fed. R. Evid.
412(a), and certainly does not provide Provancial license to sexually abuse the victim.
The recordestablishes that attorneyTumerreviewedthe investigation ofthe Government
and went over

it with Provancial. Included in that information was Provancial's confession to

the crime. After discussion with Turner and receiving a plea offer to plead guilty to the lesser

of the two offenses charged in the indictment, Provancial agreed to plead guilty. When

a

defendant who has pleaded guilty seeks to assert ineflective assistance of counsel, such an

individual "must show that, if not for counsel's errors, 'he would not have pleaded guilty [but]
would have insisted on going to trial."' United States v. Lockstein, 859 F.2d 82, 83 (8th Cir.

19SS)(percuriam)(quotingHillv.Lockhart,474U.S.52,58-59(1985). Provancialhasmade
no such showing.

In addition, Provancial's assertion that his counsel provided ineffective assistance of
counsel is rebutted by Provancial's testimony during the change of plea hearing. Twice during
the change of plea hearing, Provancial confirmed satisfaction with his attomey's representation
and advice. CR Doc. 46 at
he was satisfied

4-5,15. A defendant who testifies at a change of plea hearing that

with his attorney's representation cannot later claim that the plea was involuntary

duetofailureofthatsameattorneytoinvestigatethecase. UnitedStatesv.Hughes,l6F.3d949,
951 (8th Cir.1994). Provancial cannot make a showing under Strickland of any error "so serious

that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Str'þkl3¡(l,466 U.S. at687.
Provancial also cannot satisffthe secondprong of Strickland of areasonable probability
that counsel's errors altered the result of the proceeding. Id. at 694. After all, Provancial had
confessed to the crime. The information about the victim's claimed prior sexual activity likely

was inadmissible and cert¿inly not a defense to justify Provancial sexually abusing the victim.
Provancial's ineffective assistance of counsel claim in his ç 2255 motion fails.

2.

Lack of Adequate Factual Basis

Provancial's second argument in his $ 2255 motion is that there was no adequate factual
basis to support his adjudication

ofguilt

as to the sexual abuse charge, because, according to

Provancial, the Court failed to make a determination that the defendant possessed the necessary
mens rea element of knowing that the victim was incapacitated. Provancial's argument comes

on the heels of a recent en banc decision of the United States Court of Appeals that resolved a

split between two Eighth Circuit panels. On the same day in20l2, two separate panels of the
United States Court of Appeals for the Eighth Circuit issued irreconcilable decisions on whether
the word "knowingly" as used

in

18 U.S.C. ç2242(2) extends to the elementthatthe

victim be

"incapable of appraising the nature of the conduct . . . or . . . physically incapable of declining

participation in, or communicating unwillingness to engage in, that sexual act." See United
States v. Rouillard, 701 F.3d 861, 865 (8th

Cir. 2012), vacated, reh'g en banc granted March 4,

2013; United States v. Bruguier,703 F.3d393,399-401 (8th Cir.2012), vacated, reh'g en banc
granted March

4,2013. Last year, the United

States Court of Appeals for the Eighth Circuit, en

banc, decided that the "knowingly" language in $ 22a2Q) applies both to a defendant knowingly
engaging in a sexual act and knowing that the victim was "incapable of appraising the nature

of

the conduct" or "physically incapable of declining participation in, or coÍlmunicating
unwillingness to engage in, that sexual act." United States v. Bruguier,735F.3d754,763 (9th

Cir.2013) (enbanc) (quoting 18 U.S.C. ç2242(2)).
Provancial did not raise the issue in his direct appeal of whether the factual basis
statement was suffrcient to support his conviction nor in his criminal case before this Court.

A

ç 2255 motion, of course, is not a substitute for a direct appeal. United States v. Frady, 456 U.S.
152, 165 (1982); Auman v. United States , 67

F

.3d 157 , 16l (8th Cir. 1995). Rather, relief under

ç 2255 is available only for "transgressions of constitutional rights and for a naffow range of

injuries that could not have been raised on direct appeal and, if uncorrected, would result in a
complete miscarriage of justice.

"

United States v. Apfel , 97 F .3d

107

4, 1 076 (8th Cir. 1 996).

Even

if it

were proper to consider Provancial's argument about an insuffrcient factual

basis at this time on a $ 2255 motion, the factual basis statement that Provancial signed and
acknowledged under oath to be "one hundred percent accurate" establishes that he knew his

victim to have been incapable of consenting at the time of his sexual abuse of her. CR Doc. 46
at 14; CR Doc. 25. That factual basis statement, among other things, stated:
The defendant went to his room and saw [the victim] passed out
and naked on his bed. He tried to wake her, but could not . . . The
defendant stated that he pulled down his pants, got on top of [the
victim] while she was passed out, and put his penis in her vagina.
CR Doc. 25 aI

I-2. The factual

basis statement also contained the statement:

The defendant provided a handwritten statement, admitting that
he had sex with [the victim] without her consent, while she was
passed out.
CR Doc. 25

atZ. Dwing his change of plea hearing, the Court

asked Provancial, who was under

oath at the time, whether he had carefully read and understood the factual basis statement and
whether he had gone over it with his attorney before signing

it. Provancial

responded that he

had. CR Doc. 46 aI14. The Court then asked:
THE COURT: Is the factual basis statement one hundred percent
accurate in what it states?
THE DEFENDANT: Yes, sir, Your Honor.
CR Doc. 46 at 14. The factual basis statement supported an adjudication of Provancial's guilt

of sexual abuse and further supported that Provancial knowingly engaged in the sexual abuse at
a time when he knew the

victim to be passed out and incapable of consenting. CR Doc. 25.

Thus, the second ground in Provancial's $ 2255 motion lacks merit.

III.

Conclusion
For the reasons contained herein, it is hereby

10

ORDERED that Provancial's motion to vacate, set aside, or correct sentence by a person

in federal custody, Doc. 1, is denied. It is flrther
ORDERED that the Govemment's motion to dismiss, Doc. 13, is granted. It is further
ORDERED that no certificate of appealability under Rule 11(a) of the Rules Governing
Section 2255 Proceedings for the United States District Courts

will issue. It is finally

ORDERED, ADJUDGED AND DECREED that Judgment of Dismissal in favor of the

Govemment and against Provancial under Rules 54 and 58 of the Federal Rules of Civil
Procedure hereby enters.

Dated February ¿é3 ZOru.

BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTzuCT JUDGE

11