Estrada v. USA
Filing
23
OPINION AND ORDER granting 21 Motion to Dismiss for Failure to State a Claim. Signed by U.S. District Judge Roberto A. Lange on 6/17/2016. (JLS)
UNITED STATES DISTRICT COURT
FILED
JUN 17 2016
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
CELSO ESTRADA, JR.,
~~
3:15-CV-03011-RAL
Plaintiff,
OPINION AND ORDER GRANTING
GOVERNMENT'S MOTION TO DISMISS
vs.
UNITED STATES OF AMERICA,
Defendant.
Celso Estrada, Jr. filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence, Civ. Doc. 1. 1 This Court screened the § 2255 motion and ordered the Government to
answer. Civ. Doc. 7. Estrada's § 2255 motion made claims of ineffective assistance of counsel,
so the Government sought an order directing Estrada's defense counsel to file an affidavit
addressing factual matters raised in the § 2255 motion. Civ. Doc. 9. Estrada waived in writing
the attorney-client privilege with his defense counsel, and defense counsel submitted an affidavit.
Civ. Doc. 14. Thereafter, on April 20, 2016, the Government filed a Motion to Dismiss and
accompanying Memorandum. Civ. Docs. 21, 22. Estrada did not respond to the Motion to
Dismiss and his 21-day time for doing so under Civil Local Rule 7.l(B) passed several weeks
ago. D.S.D. Civ. LR 7.l(B). For the reasons explained, the Government's motion to dismiss is
granted.
I.
Facts
1
Citations to documents in the CM/ECF system filed in the § 2255 case will be "Civ. Doc."
followed by the document number from 15-CV-3011-RAL.
1
On November 16, 2013, Estrada stabbed Harold James Fuller, Jr. ("Harold") in the torso
with a knife causing Harold to suffer a collapsed lung and internal organ damage in the area of
his stomach. United States v. Estrada, 13-CR-30200-RAL, Doc. 36. 2 Estrada then used the
knife to slash the arm of Harold's wife Tera Jade Fuller ("Tera") causing a severe laceration
down to the bone and a small puncture to her torso. Cr. Doc. 36. Both Harold and Tera are
"Indians" under federal law and Estrada's assaults occurred in Indian country. Cr. Doc. 36.
Estrada was indicted for two counts of assault with a dangerous weapon and two counts of
assault resulting in serious bodily injury. Estrada was appointed counsel, Jana M. Miner, who
was and remains the Senior Litigator for the Federal Public Defender's Office for North and
South Dakota. Cr. Doc. 9. Estrada initially pleaded not guilty. Cr. Doc. 21. Later, Estrada
entered into a plea agreement, changed his plea to guilty on the two counts of assault with a
dangerous weapon, and received a sentence of 46 months total with two years of supervised
release. Cr. Docs. 52, 53.
Estrada's § 2255 motion asserts that Miner provided ineffective assistance of counsel in
not investigating or pursuing a self-defense theory. Civ. Doc. 1. Specifically, Estrada in ground
one alleges that Miner was ineffective "for failing to investigate and pursue a self-defense theory
after movant had advised her that he had only defended himself and his wife" ostensibly from a
couple motivated by racial animus and "for failing to call and/or investigate [Estrada's] wife"
who ostensibly would have supported Estrada's self-defense theory. Civ. Doc. 1.
However, Estrada signed a Factual Basis Statement, Cr. Doc. 36, that directly refutes his
assertion of self-defense. Estrada at his change of plea hearing testified under oath that the
2
Citations to documents in the CM/ECF system filed in Estrada's criminal case hereafter will use
"Cr. Doc." Followed by the document number from 13-CR-30200-RAL.
2
Factual Basis Statement was completely accurate. Cr. Doc. 56 at 16-17. That Factual Basis
Statement stated in relevant part:
On or about the 16th day of November, 2013, in Todd County, in Indian
country, in the District of South Dakota, Celso Estrada, Jr., a non-Indian, did
unlawfully assault Harold James Fuller, Jr., an Indian, with a dangerous weapon,
that is, a knife, with intent to do bodily harm to Harold James Fuller, Jr., in
violation of 18 U.S.C. §§ 1152 and 113(a)(3).
On or about the 16th day of November, 2013, in Todd County, in Indian
country, in the District of South Dakota, Celso Estrada, Jr., a non-Indian, did
unlawfully assault Tera Jade Fuller, an Indian, with a dangerous weapon, that is, a
knife, with intent to do bodily harm to Tera Jade Fuller, in violation of 18 U.S.C.
§§ 1152 and 113(a)(3).
On November 16, 2013, Tera Jade Fuller was at apartment# 31 at the
Sinte Gleska University apartment complex, where the Defendant lives with his
wife Destiny Swan, a/k/a Destiny Estrada. Estrada and Tera were drinking
alcohol, socializing, and watching some sports events on television. They were
all friends. At some point, a verbal and physical disagreement arose. Tera may
have bitten Estrada. Tera called for her husband, Harold James Fuller, Jr., to
come to the apartment and take her home. Around 3:00 a.m., Harold arrived and
knocked at apartment# 31, and observed that Tera and Destiny were involved in a
physical confrontation. The physical confrontation between Tera and Destiny
spilled out into the hallway in front of Apartment # 31. Harold, who was not
drinking alcohol, positioned himself between Tera and Destiny, in an effort to
break them up or hold them apart. As Harold is positioned between Tera and
Destiny, with his back to the doorway of apartment # 31, the Defendant comes in
the hallway holding a knife and quickly stabs Harold in the torso, striking Harold
from a rear position. Thereafter, the Defendant makes a slashing motion to Tera's
torso and arm. The Defendant reversed his course of travel, puts the knife behind
his back, and retreats into apartment # 31. Harold and Tera bled profusely in the
hallway, and both ended up on the hallway floor until medical personnel arrive to
help them.
Harold suffered a collapsed lung, as well as damage to internal organs in
his stomach region. Tera suffered a stab and slash to her arm, which also
punctured her torso. Tera's arm was severely lacerated, with the slashing cutting
down to the bone. Both Harold and Tera were hospitalized. The parties agree
that both Harold and Tera suffered serious bodily injury.
Cr. Doc. 36. The Factual Basis Statement also contains a verification paragraph at its start
verifying the truth of those facts and a final paragraph setting forth the facts that bring the case
within federal criminal jurisdiction under 18 U.S.C. § 1153.
3
Estrada's stabbings of Harold and Tera were captured on a security camera video of the
hallway outside of Estrada's apartment, showing Estrada stabbing Harold from behind as Harold
was trying to separate Tera and Estrada's wife who were tussling. Estrada then slashed Tera's
arm with the knife before putting the knife behind his back and retreating into his apartment.
Estrada has not contested the content of the Affidavit of Jana Miner, which directly
addresses Estrada's contentions in his § 2255 motion. Miner attested as follows in paragraphs 8
through 16: 3
At the beginning of my representation, Estrada said that he did not
remember what had happened because he was very intoxicated. His first
conversation with the federal defender investigator was very emotional, with
Estrada crying and wailing. His story moved from being blacked out to a
recollection of stabbing the victims because he was being beaten up by Tera
Fuller. He did mention defense of Destiny, but was more concerned about his
injuries at the hand of Tera Fuller. He did not say he was attacked by Harold
Fuller. He acknowledged his perception of what happened might be different
from what was on the video because he was drunk. During a second visit, when
he reviewed the video, Estrada said that the video must have been altered by the
building management because he is not a tribal member and that his status as an
outsider married to a tribal member had always been an issue and why he couldn't
get work on the reservation. A second video, taken from a different angle, did not
deter Estrada from his belief that the first and primary video had been edited.
Estrada's version of what happened continued to evolve, although it still
centered on Tera Fuller attacking him, thus justifying his response when Tera and
Estrada's wife began to physically fight. At no time in the case did Estrada claim
that he had been attacked by Harold Fuller until the presentence report draft was
read to him. Estrada then claimed that "God helped me to remember" and went
on to say that Harold Fuller came into the apartment, struck Estrada in the living
room by the table, and that Estrada went down to the floor. Estrada said he then
watched Harold Fuller and Tera Fuller drag his wife by her hair out the door.
Estrada said he got up, grabbed a knife, and went out the door to ultimately stab
[Harold] Fuller and Tera Fuller.
The facts as recited by Estrada in his petition contain information not
disclosed previously to counsel, specifically the statements attributed to Harold
Fuller and Tera Fuller about him being of Mexican origin, racial slurs, and that his
wife was called a "traitor to her race." That is all new information from Estrada.
I declined to file objections to the presentence report based on Estrada's
previously undisclosed recollections about Harold Fuller. I advised him that the
3
The paragraph numbering is omitted from this block quote.
4
information was very different from what he had told me before, very different
from the factual basis statement in the plea agreement, and that to offer it at that
time risked the loss of acceptance of responsibility ....
In working through the self defense and defense of other arguments by
Estrada, I talked to his wife several times on the phone and traveled to Mission,
South Dakota on or about February 12, 2014, to meet with his wife at the scene of
incident. There were several facts gleaned from the visit that were important to
me: 1) there was a working land line phone very near the table and couch where
Estrada claimed he had been first attacked by Tera Fuller and then again by
Harold Fuller. If the attacks happened the way Estrada claimed, he could have
called for the police more quickly than going into the kitchen to grab a knife; 2)
that Estrada kept a baseball bat under a couch cushion, very close to where he
claimed to have been attacked. Grabbing the bat and threatening its use was an
option he ignored; 3) although it was a small apartment, under his version, he had
to stand up, go to the kitchen, pass by where he says his wife was being assaulted
by Tera Fuller, reach over several pans and items to grab a knife with a long blade
and then turn to go out of the apartment. No mention was made by him of trying .
to physically separate Tera Fuller and his wife before going to get the knife. The
video did not support his contention that Harold Fuller attacked him in the
apartment. From the video, it appeared that Harold Fuller was trying to separate
the two women, entered the apartment very briefly, and then brought the women
into the hallway where he continued to separate them. Estrada came from the
back, stabbed Fuller in the back and side three times, then slashed Tera Fuller's
arm.
During the interview with Estrada's wife, she said that after coming back
into the apartment, he wanted to leave so he would not be arrested but that she
made him stay. She said he also stabbed himself and wanted her to say that
Harold Fuller had stabbed him. She refused to lie for him. He also hid the knife
and tried to wash off the blood, all acts observed by his wife. The physical set-up
of the apartment did not lend support to Estrada's version of what happened. His
wife's testimony had the case gone to trial would not have supported his version.
I discussed with him that even if I did not call his wife as a witness, the
government likely would have, that there was not a way to keep her from
testifying to at least some of her observations, and that because she had made
statements during the initial investigation, there may not have been a reasonable
likelihood of claiming marital privilege to suppress some of the statements from
being used against him.
There are two videos of what happened. Estrada was shown both videos,
several times each. He refused to acknowledge that he stabbed Harold Fuller
three times.
I spoke with Estrada's wife a number of times, specifically with an eye to
whether her version supported a defense of another. From her description of the
night, from the point where Tera Fuller and Estrada argued, to the end when
Estrada asked her to lie about his stab wound, she was consistent. She did not say
that either Tera or Harold Fuller called her "a traitor to her race" or otherwise
describe Estrada in racial invective.
5
Civ. Doc. 14
Statements made by Estrada under oath at his change of plea hearing further refute his
contention that Miner failed to investigate or pursue for Estrada a self-defense theory. When
Estrada changed his plea to plead guilty, he testified as follows:
THE COURT: Have you had enough time to talk with Ms. Miner about your
case and about what you should do?
THE DEFENDANT: Yes.
THE COURT: All right. Are you satisfied with the work that Ms. Miner has
done for you?
THE DEFENDANT: Yes.
Cr. Doc. 56 at 4. Estrada later was advised that he would not have the right to withdraw his
guilty plea and acknowledged: "Yes, once I - once I say guilty, it's guilty." Cr. Doc. 56 at 15.
As mentioned above, Estrada acknowledged under oath the accuracy of the Factual Basis
Statement. Cr. Doc. 56 at 17. He stated that he was pleading guilty to the two counts of assault
with a dangerous weapon because he wanted to do so. Cr. Doc. 56 at 18. He pleaded guilty to
the two counts then and acknowledged that the was pleading guilty because he was in fact guilty
of those offenses. Cr. Doc. 56 at 20.
II.
Discussion
Estrada's ineffective assistance of counsel claims are governed by the test articulated in
Strickland v. Washington, 466 U.S. 668 (1984). United States v. Apfel, 97 F.3d 1074, 1076 (8th
Cir. 1996). An ineffective assistance claim has two elements: Estrada must show both that his
counsel's performance was constitutionally deficient and that he was prejudiced by this
deficiency. Strickland, 466 U.S. at 687.
6
To demonstrate deficient performance, Estrada must show that "counsel's representation
fell below an objective standard of reasonableness."
Id. at 688.
This standard is "highly
deferential," and courts "must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Id. at 689. Estrada has the burden of
demonstrating that "counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687.
To establish prejudice, Estrada must demonstrate a "reasonable probability" that, but for
his attorney's deficient performance, the outcome of his trial would have been different. Id. at
694.
"A reasonable probability is a probability sufficient to undermine confidence in the
outcome." Id.
Estrada, having pleaded guilty, further must show "a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
United States v. Storey, 990 F.2d 1094, 1097 (8th Cir. 1993); see also Matthews v. United
States, 114 F .3d 112, 114 (8th Cir. 1997).
A petitioner like Estrada "is bound by his plea and
resulting conviction unless he can show his attorney's ineffective assistance rendered his plea
involuntary."
United States v. Davis, 2000 WL 1521611 at *1 (8th Cir. Oct 16, 2000)
(unpublished). Merely a "bare assertion that he would not have pied guilty is insufficient to
allow for an intelligent assessment of the likelihood that [Estrada] would have pled guilty and is
far too speculative to warrant § 2255 relief." United States v. Frausto, 754 F.3d 640, 644 (8th
Cir. 2014).
Here the record demonstrates that Estrada received effective assistance of counsel, that
his contention of self-defense and use of his wife as a defense witness were adequately
investigated, and that Estrada voluntarily and knowingly (and wisely in light of the video
7
evidence of the assaults) pleaded guilty based under a plea agreement. Estrada requested an
evidentiary hearing in his § 2255 motion, but subsequently has filed nothing to contest Miner's
affidavit or the Government's motion to dismiss. A§ 2255 motion may be dismissed without an
evidentiary hearing when the movant's "allegations cannot be accepted as true because they are
contradicted by the record, are inherently incredible, or are conclusions rather than statements of
fact." Winters v. United States, 716 F.3d 1098, 1103 (8th Cir. 2013). Estrada's allegations in his
§ 2255 motion are contradicted by the record including by his own sworn testimony during his
change of plea hearing, the videotape of the assaults, and the undisputed affidavit of counsel
Miner. Consequently, Estrada's allegations in the § 2255 motion are inherently incredible. No
evidentiary hearing is warranted here.
III.
Conclusion and Order
For the reasons explained above, it is hereby
ORDERED that the Government's motion to dismiss, Civ. Doc. 21, is granted. It is
further
ORDERED that Estrada's§ 2255 motion is denied. It is finally
ORDERED that no certificate of appealability issues because there is an absence of a
colorable showing of the denial of a constitutional right to justify issuance of such a certificate
under 28 U.S.C. § 2253.
DATED this
17"° day of June, 2016.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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