Dowty v. USA
Filing
24
ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence pursuant to 28:2255; granting 4 Motion for Leave to File Addendum Memorandum By Law Indictment, CR-30026, Unconstitutional and Fraudulent By Law; granting 6 Motion TO FILE ADDEND UM OF MEMORANDUM BY LAW; granting 7 Motion to Amend for Addendum of Memorandum By Law ; denying 8 Motion for Judgment on the Pleadings; granting 16 MOTION to Dismiss for Failure to State a Claim ; denying 19 Motion to Suppress Evidence of Grand Jury Transcripts. Signed by U.S. District Judge Roberto A. Lange on 4/24/14. (SKK)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
25
CENTRAL DIVISION
EARL DAVID DOWTY,
*
*
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
CIV 13-3022-RAL
*
*
*
*
*
OPINION AND ORDER GRANTING
GOVERNMENT'S MOTION TO
DISMISS AND DENYING
§ 2255 MOTION
Petitioner Earl David Dowty filed this pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 on July 5, 2013. Doc. 1. Dowty is in federal custody
having pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(l), on May 18, 2011. United States v. .Dowty. CR 11 -30026-RAL, Doc. 26. On August
16, 2011, this Court sentenced Dowty to 120 months of imprisonment, with supervised release of
three years thereafter and responsibility for restitution and a special assessment. CR 11-30026RAL, Doc. 38. Dowty timely appealed his sentence to the United States Court of Appeals for the
Eighth Circuit, which dismissed his appeal "based upon his valid and enforceable waiver of his
appellate rights." United States v. Dowtv. 490 F. App'x 828,829 (8th Cir. 2012) (per curiam). The
Eighth Circuit entered judgment on October 26,2012. CR 11-30026, Doc. 51. Dowty did not file
a petition for a writ of certiorari to the United States Supreme Court. Doc. 1.
Now before the Court is Dowty's § 2255 petition, which raises the following grounds for
relief: (1) conviction obtained by a plea of guilty which was unlawfully induced or not made
voluntarily or with understanding of the nature of the charge and the consequences of the plea; (2)
conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure;
and (3) denial ofeffective assistance ofcounsel. Doc. 1. In the same petition, Dowty also alleges
that this Court lacked jurisdiction over his underlying criminal action. Doc. 1 at 6.
On December 13, 2013, the Court screened Dowty's petition and ordered the Government
to file an answer, motion, or other response. Doc. 12. The Government filed a motion to dismiss
on January 10,2013. Doc. 16. Dowty has since filed seven submissions. Docs. 17-23. Having
considered the arguments in this matter, this Court grants the Government's motion to dismiss and
denies Dowty's § 2255 petition for relief.
I.
Summary of Facts1
On March 15,2011, Dowty was indicted on two counts of being a Felon in Possession of
a Firearm in violation of 18 U.S.C. § 922(g)(l), in the first of three federal indictments of Dowty.
CR 11-30026-RAL, Doc. 1. At the time of his initial appearance in that case, Dowty was already
in federal custody on a criminal complaint charging him with Possession of a Stolen Firearm and
being a Felon in Possession of a Firearm. CR 11-30008-RAL, Doc. 3.
Dowty entered into a plea agreement. CR 11-30026-RAL, Docs. 22, 26.2 In exchange for
Dowty pleading guilty to Count II ofthe Indictment in CR 11 -3 0026-RAL, the Government agreed
to dismiss Count I of the same Indictment, as well as the charges pending against Dowty in CR
The Court takes judicial notice under Rule 201 of the Federal Rules of Evidence of the
entire file in United States v. Dowty, CR 11-30008-RAL, United States v. Dowty CR 11-30026-
RAL, and United States v. Dowty, CR 11-30027-RAL. Rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts contemplates that "the record of prior
proceedings" be considered.
2 On April 5,2011, Dowty consented to the joinder ofthree criminal matters pending against
him in federal court. CR 11-3 0026-RAL, Doc. 18. Because Dowty's criminal matters were joined
all references to Dowty's underlying criminal case will heretofore be references to United States v'
Dowty, CR 11-30026-RAL. When this Opinion and Order cites to documents from the underlying
criminal case, "CR Doc." will be.used followed by the appropriate CM/ECF document number
11-30008-RAL and CR 11-30027-RAL.^ CR Doc. 22. As part of the Plea Agreement, Dowty
signed a Factual Basis Statement. CR Doc. 24. In pertinent part, the Factual Basis Statement
stated:
On or about the 24th day ofNovember, 2010, in the District
of South Dakota, Earl D. Dowty, having been convicted of a crime
punishable by imprisonment for a term exceeding one year, did
knowingly possess and receive a firearm, to wit: a Remington Game
Master Model 760, serial number S9161 (hereinafter "the firearm"),
which firearm had been shipped and transported in interstate
commerce and foreign commerce, in violation of 18 U S C §
922(g)(l).
" • ' 8
On or about August 20,2004, the Defendant was convicted
of attempted aggravated assault, a crime of violence, in Fall River
County, and sentenced to four years incarceration at the South
Dakota State Penitentiary. On or about the 24th day of November,
2010, Defendant, a convicted felon, did knowingly possess the
firearm while in Rosebud, Todd County, South Dakota. Defendant
pawned the firearm for $50.00 at Pro Pawn, in Mission, South
Dakota, with a due date ofDecember 23,2010, and signed his name
to the pawn ticket. Defendant did not return to retrieve the firearm.
The firearm had been shipped and transported in interstate
commerce, produced, and manufactured outside the state of South
Dakota.
CR Doc. 24.
On May 18,2011, this Court held a change of plea hearing in Dowty's case. CR Doc. 26.
At the outset ofthat hearing, Dowty took an oath to answer all questions truthfully and confirmed
his understanding that failure to do so could result in subsequent prosecution. CR Doc. 46 at 3-^.
The Court then asked Dowty whether he was satisfied with the representation he had received from
his attorneys, and Dowty replied, "Yes." CR. Doc. 46 at 5. In response to further questioning,
Dowty also indicated that he had ample opportunity to talk with his attorneys about the charges
3 On March 15,2011, Dowty was indicted on one count ofFraud in Connection with an Access
Device m violation of 18 U.S.C. § 1029(a)(5). CR 11-30027-RAL, Doc. 1.
against him and how he should respond to those charges. CR. Doc. 46 at 5-6.
Next, this Court posed a series of questions to determine whether Dowty was competent
to change his plea, and to ensure that such plea was being entered into knowingly and voluntarily.
CR Doc. 46 at 4-11. After concluding that Dowty was competent to proceed with the change of
plea hearing, this Court reviewed the nature ofthe charge to which Dowty was pleading guilty and
informed Dowty of the maximum penalties associated with the relevant charge.4 CR Doc. 46 at
8-9. Dowty confirmed his understanding of the maximum penalties and his awareness that he
would be giving up certain rights upon pleading guilty to a felony charge, including his right to a
jury trial. CR Doc. 46 at 9-11.
Before accepting Dowty's plea, this Court engaged in the following colloquy with Dowty:
THE COURT: Did you carefully read and understand the Plea
Agreement before signing it?
THE DEFENDANT: Yes, I did.
THE COURT: Did you go over the Plea Agreement with your
attorneys before signing it?
THE DEFENDANT: Yes.
THE COURT: Was there anything left out of the Plea Agreement
that you thought was going to be part of it?
THE DEFENDANT: No, sir.
THE COURT: Did you carefully read and understand the Factual
Basis Statement before signing that document?
THE DEFENDANT: Yes, I did.
THE COURT: Did you go over the Factual Basis Statement with
your attorneys before signing it?
THE DEFENDANT: Yes.
THE COURT:... Is the Factual Basis Statement accurate in what
it sets forth?
4 More specifically, this Court reviewed the maximum custody term, maximum fine
supervised release, restitution, and special assessment associated with the charge to which Dowty
was pleading guilty. CR Doc. 46 at 8-9
uwmuiuowty
THE DEFENDANT: Yes, it is.
THE COURT: The Court has just a few additional questions before
it is ready to receive your change of plea. Mr. Dowty, has anyone
threatened you or anyone else in any way to get you to plead guilty
to Count II of the Indictment in 11-30026?
THE DEFENDANT: No, Your Honor.
THE COURT: Have any promises been made to get you to plead
guilty, other than what's contained in the Plea Agreement?
THE DEFENDANT: No.
THE COURT: Has anyone promised you what sentence you would
receive from the Court if you were to plead guilty to that count?
THE DEFENDANT: No.
THE COURT: If you were to enter a plea to that count today,
would the 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 to your attorneys
about your case and about what you should do here todav?
THE DEFENDANT: Yes.
THE COURT: Are you fully satisfied with the counsel, advice, and
representation provided to you by your attorneys?
THE DEFENDANT: Yes, I am.
CR Doc. 46 at 14-16. This Court then concluded that Dowty was represented by competent
counsel, was informed of his rights, understood his rights, understood the nature and the cause of
the accusations against him, including the possible penalties, was competent, and was not acting
under duress. CR Doc. 46 at 16. Dowty then entered a plea of guilty to being a Felon in
Possession of a Firearm in violation of 18 U.S.C. § 922(g)(l). CR Doc. 46 at 17.
On August 15, 2011, this Court sentenced Dowty to 120 months of imprisonment in the
custody of the Bureau of Prisons, followed by three years of supervised release. CR Doc. 46 at
20-22. In determining Dowty's sentence, the Court considered arguments submitted by the
Government and Dowty's counsel, letters submitted by Dowty, the United States Sentencing
Commission's Guidelines Manual, and the information contained in the Presentence Investigation
Report, to which Dowty did not object.5 CR Doc. 46 at 13-19.
Dowry appealed his sentence to the Eighth Circuit, arguing that (1) his sentence was
procedural^ improper and substantively unreasonable, and (2) this Court admitted evidence that
was seized in violation of the Fourth Amendment and South Dakota law. CR Docs. 42, 52 at 2.
On October 26, 2012, the Eighth Circuit granted the Government's motion to dismiss Dowry's
appeal, finding that Dowty's appeal fell within the scope of a valid waiver of appellate rights in
his plea agreement. CR Doc. 52. Dowty did not petition for a writ of certiorari.
II.
Discussion
Currently pending before this Court is Dowty's petition for relief pursuant to 28 U.S.C. §
2255. Pursuant to 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
When considering a § 2255 motion, the Court holds an evidentiary hearing "unless 'the motion and
the files and the records of the case conclusively show that [the prisoner] is entitled to no relief"
Holder v. United States, 721 F.3d 979,993 (8th Cir. 2013) (quoting Aniulo-Lonez
541 F.3d 814, 817 (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, 493 F.3d 960, 963 (8th Cir. 2007) (quoting Shaw v. United St^ 24 F.3d 1040,
> Dowty originally filed objections to the Presentence Investigation Report, but he withdrew
those objections prior to the sentencing hearing. CR Doc. 46 at 4-5
tnewirnarew
1043 (8th Cir. 1994)). Because the record conclusively demonstrates that Dowty is not entitled to
relief, an evidentiary hearing is not necessary in this case. The Court will therefore proceed to the
merits of Dowty's § 2255 motion.
Dowty raises the following grounds for reliefin his § 2255 motion: (1) conviction obtained
by a plea of guilty which was unlawfully induced or not made voluntarily or with understanding
of the nature of the charge and the consequences of the plea; (2) conviction obtained by use of
evidence gained pursuant to an unconstitutional search and seizure; (3) denial of effective
assistance of counsel; and (4) lack of subject matter jurisdiction. Doc. 1. Additionally, in
supplements to his § 2255 motion, Dowty raises issues with the sufficiency of the indictment, the
composition of the grand jury, and the validity of his arrest. Docs. 4, 6, 11.
A.
Issues Not Cognizable under § 2255
Some of the claims raised by Dowty are not cognizable under § 2255. Most notably,
"[collateral proceedings under 28 U.S.C. § 2255 cannot be made to do service for an appeal."
United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995) (citation omitted). "To the fullest extent
possible, all arguments, even constitutional or jurisdictional ones..., should be made at trial and
on direct appeal." Id (citations omitted). To overcome this procedural bar, a petitioner must show
cause for failing to raise the issue on direct appeal and prejudice from the claimed legal error. Id
In the instant case, Dowty has raised four issues in his § 2255 motion that he did not raise during
sentencing or on appeal-subject matter jurisdiction, the sufficiency of the indictment, the
composition of the grand jury, and the validity ofhis arrest. Because Dowty has not shown cause
for his failure to raise these issues on direct appeal, the issues are procedurally barred. Even absent
a procedural bar, however, the Eighth Circuit has recognized that pretrial matters such as the
sufficiency of an indictment, defects in the indictment, the composition ofthe grand jury, and the
legality of an arrest are not cognizable under § 2255. Houser v. I Inited st»t~ 508 F.2d 509, 514
(8th Cir. 1974) (citations omitted). Accordingly, those arguments cannot support relief under §
2255 for Dowty.
Similarly noncognizable under § 2255 is "any matter which has been decided adversely to
the petitioner upon direct appeal
" Houser v. United stwt«, 508 F.2d 509, 514-15 (8th Cir.
1974). As previously noted, Dowty appealed his sentence to the Eighth Circuit and specifically
argued *at(l) his sentence was procedurallyimproper and substantivelyunreasonable, and (2) this
Court admitted evidence that was seized in violation ofthe Fourth Amendment and South Dakota
law. CR Docs. 42, 52 at 2. The Eighth Circuit decided adversely to Dowty on these issues by
concluding that he had executed a valid waiver ofhis appellate rights and thus could not challenge
his sentence on the aforementioned grounds. CR Doc. 52. Moreover, the Eighth Circuit has
indicated that particular trial and post-trial matters are not cognizable under § 2255. Such
noncognizable matters include "claimed errors in evidentiary rulings," "[t]he assertion that a
severer sentence than expected was received after a guilty plea[,]" and "a claim of an excessive
sentence when the sentence imposed is within the statutory maximum." Houser. 508 F.2d at
515-16 (citations omitted). Here, the sentence Dowty received—120 months-is not beyond the
statutory maximum for the offense to which he pleaded guilty. CR Doc. 40 at 18. The claims
raised by Dowty on direct appeal and rejected by the Eighth Circuit cannot be grounds for relief
under § 2255.
B.
Ineffective Assistance of Counsel
The only ground for possible § 2255 relief left for this Court to consider is Dowty's
ineffective assistance ofcounsel claim. To establish ineffective assistance ofcounsel, a petitioner
must show that (1) "counsel's performance was deficient^]" and (2) "the deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient
performance is demonstrated by "showing that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id To establish
that such performance prejudiced the defense, a petitioner "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Id at 694. Therefore, in the context of a guilty plea, a petitioner "must establish
a reasonable probability that he would have exercised his right to trial but for counsel's
ineffectiveness." Watson v United States, 682 F.3d 740, 745 (8th Cir. 2012) (citation omitted).
In his various filings, Dowty makes just two passing references to the performance of his
criminal defense attorneys in the underlying criminal action.6 See Docs. 8, 18. In one instance,
Dowty asserts that "a failure to properly investigate the jurisdiction of the court in a criminal
charge is a violation by the criminal defense attorney of the Sixth Amendment rights of a
Defendant." Doc. 8 at 7. In a second submission, Dowty alleges that his attorneys, Doug Foshiem
and Ron Volesky, coerced him into taking a deal and avoiding trial. Doc. 18 at 4. In short, Dowty
believes that his attorneys provided ineffective assistance by not objecting to this Court's exercise
a ^ 1 Dowty/eferences one ofhis attorneys-Ron Volesky-a third time in his "Memorandum
Addendum to the Government's Answer and Their Motion to Dismiss." Doc 17 In that instance
however, Dowty requests that the Court appoint Attorney Volesky to represent him in this § 2255
case. Doc. 17 at 4 This request undercuts Dowty's claim that Attorney Volesky was deficient in his
representation during the underlying criminal case.
* ueiiuem in nis
of jurisdiction and by coercing him into pleading guilty to one of the counts on which he was
indicted.
With respect to Dowty's first argument-that his attorneys failed to object to this Court's
exercise ofjurisdiction-Dowry is not entitled to reliefbecause this Court in fact had jurisdiction.
Pursuant to 18 U.S.C. § 3231, "[t]he district courts of the United States . . . have original
jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United
States." As to the count on which Dowty pleaded guilty, the grand jury had indicted Dowty for
violating 18 U.S.C. § 922(g)(l); a United States statute prohibiting an individual "who has been
convicted in any court, of a crime punishable by imprisonment for a term exceeding one year[,]"
from possessing or receiving a firearm "which has been shipped and transported in interstate or
foreign commerce." 18 U.S.C. § 922(g)(l). Because Dowty was charged with violating the laws
ofthe United States, this federal districtcourt had statutoryjurisdiction over the underlying count
on which Dowty was convicted. United States v. Foster 443 F.3d 978, 981 (8th Cir. 2006).
Obviously, Dowty cannot demonstrate that he was prejudiced by the deficiency. If Dowty's
attorneys had filed a motion to dismiss the indictment for want of subject matter jurisdiction, this
Court would have denied the motion because, as discussed, this Court had statutory jurisdiction
over Dowty's underlying criminal case. A motion to dismiss for lack ofsubject matterjurisdiction,
in other words, would have been futile, and the Eighth Circuit has explicitly held that failure to file
a futile motion does not constitute ineffective assistance of counsel. Halev.Lockha.it. 903 F.2d
545, 549-50 (8th Cir. 1990). Accordingly, Dowty is not entitled to relief under § 2255 on the
ground that his attorneys failed to file a motion to dismiss the indictment.
With respect to Dowty's second argument-that his attorneys coerced him into "taking a
10
deal"-DOwty has not provided evidence to demonstrate any coercion. To the contrary, a review
of the transcript from the change of plea hearing reveals that Dowty pleaded guilty of his own
volition. CR Doc. 46 at 15-16. The extensive plea colloquy establishes that Dowty understood
the charge to which he was pleading guilty and the consequences of his guilty plea. CR Doc. 46
at 7-15. Moreover, this Court twice asked Dowty whether he was satisfied with his representation,
andeachtimeDowtyrespondedintheaffirmative. CR Doc. 46 at 5-6,16. Dowty acknowledged
voluntarily entering into and signing the plea agreement. CR Doc. 46 at 14-15. Dowty further
acknowledged that his plea ofguilty was voluntary and on his own free will. CR Doc. 46 at 15-16.
Because Dowty has not provided evidence to refute the record of a knowing and voluntary plea,
Dowty is not entitled to reliefunder § 2255 on the ground that his attorneys allegedly coerced him
into pleading guilty.
Dowty's other motions and submissions do not change the outcome. This Court has
considered those other motions and submissions.
III.
Conclusion
For the reasons contained herein, it is hereby
ORDERED that Dowty's motions seeking to submit additional materials, Docs. 4,6,7, are
granted. It is further
ORDERED that the Government's motion to dismiss, Doc. 16, is granted. It is further
ORDERED that Dowty's motion to vacate, set aside, or correct sentence by a person in
federal custody, Doc. 1, is denied, and that his motions seeking judgment and relief, Docs. 8, 19,
are denied. It is further
ORDERED that no certificate of appealability under Rule 1 l(a) of the Rules Governin
11
g
Section 2255 Proceedings for the United States District Courts will 1Ssue. It is finally
ORDERED, ADJUDGED AND DECREED that Judgment of Dismissal in favor of the
Government and against Dowty under Rules 54 and 58 of the Federal Rules of Civil Procedure
hereby enters.
Dated April ^_f 2014.
BY THE COURT:
ROBERTO A. LANGI
UNITED STATES DISTRICT JUDGE
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?