Blue Thunder v. United States of America
Filing
17
OPINION AND ORDER granting 13 Motion to Dismiss and Denying Plaintiff's § 2255 Motion. No Certificate of Appealability will be issued. Signed by U.S. District Judge Roberto A. Lange on 1/25/19. (SKK)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
VERNA BLUE THUNDER,
3:18-CV-03009-RAL
Plaintiff,
OPINION AND ORDER
GRANTING GOVERNMENT'S MOTION
TO DISMISS AND DENYING PLAINTIFF'S
UNITED STATES OF AMERICA,
§ 2255 MOTION
Defendant.
Vema Blue Thunder filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. CIV Doc. 1.' Blue Thunder's §2255 motion stated three claims ofineffective assistance
of counsel: failing to file an appeal from her sentencing, failing to request a mental health
evaluation, and failing to communicate with her. CIV Doc. 1. Blue Thunder raised a fourth ground
alleging that she pleaded guilty without fully knowing and understanding the consequences of her
plea. CIV Doc. 1. Because Blue Thunder raised ineffective assistance of counsel claims, this
Court entered an order directing former defense counsel to respond,CIV Doc.6,and Blue Thunder
signed an Attorney-Client Privilege Waiver, CIV Doc. 7, to facilitate a response from her attomey.
Blue Thunder's criminal defense attomey filed an affidavit, CIV Doc. 9, after which the
Government filed a Motion to Dismiss and supporting memorandum, CIV Docs. 13, 14. Blue
Thunder did not respond to the Motion to Dismiss within the time allotted, so this Court entered
'Citations to documents in the CM/ECF system filed in this § 2255 case will be "CIV Doc.'
followed by the document number from 18-CV-03009.
an order directing her to respond. CIV Doc. 15. Blue Thunder then responded opposing the
dismissal of her § 2255 motion. CIV Doc. 16. For the reasons explained, the Government's
Motion to Dismiss is granted and Blue Thunder's Motion for § 2255 relief is denied.
I.
Facts from Criminal Case
Blue Thunder and two of her daughters were indicted on August 16, 2016,in a three-count
indictment charging assault resulting in serious bodily injury and child abuse. CR Doc.
Jana
M. Miner was the defense attomey appointed to represent Blue Thunder during the criminal case.
Miner has been employed with the Federal Public Defender's Office of North and South Dakota
since January of 2000, and holds the position as the Senior Litigator of that office. CIV Doc. 9.
Blue Thunder reached an agreement to plead guilty shortly prior to her scheduled jury trial.
The Plea Agreement called for Blue Thunder to plead guilty to Counts 2 and 3 of the Indictment.
CR Doc. 104 at ^ C. Blue Thunder also signed a Statement of Factual Basis, the redacted content
of which is the following:
On or about between the 29th day of October, 2014, and the 25th day of
June, 2016, near Mission, in Todd County, in Indian country, in the District of
South Dakota, Vema Blue Thunder, an Indian, did abuse, expose, torture, torment,
and cruelly pimish[NAME REDACTED 1], a child who had not attained the age
of seven, in violation of 18 U.S.C. §§ 1153 and SDCL 26-10-1.
On or about between the 29th day of October, 2014, and the 25th day of
June, 2016, near Mission, in Todd County, in Indian country, in the District of
South Dakota, Vema Blue Thunder, an Indian did abuse, expose, torture, torment,
and cruelly punish[NAME REDACTED 2], a child who had not attained the age
ofseven, in violation of 18 U.S.C. §§ 1153 and SDCL 26-10-1.
On October 29, 2014, the Defendant took full physical custody of[NAME
REDACTED 1] (hereinafter "the boy") and his sister,[NAME REDACTED 2]
(hereinafter "the girl"). The Defendant lived with the boy and the girl (collectively
"the children"), along with several other family members in her home in the New
Ring Thunder Community, Mission, South Dakota.
The boy had suffered physical abuse at the hands of his biological father
prior to coming to live with the Defendant. The boy needed specialized medical
^ Citations to documents in the CM/ECF system filed in Blue Thunder's criminal case are cited as
"CR Doc." followed by the document number from 16-CR-30114.
care due to his abuse; however, he appeared happy and healthy when he was
transported to the Defendant's home by soeial workers.
While in the Defendant's care, the ehildren suffered physieal abuse. The
Defendant hit the children with an open hand on the buttoeks,lower back, and head.
The Defendant, on more than one oeeasion, grabbed the boy by his arms and drug
him or threw him. The Defendant would loek the ehildren in a eloset in the home
for punishment and would withhold food from the children.
In August 2015, the South Dakota Department of Social Services (DSS)
received a report that the Defendant might be abusing or negleeting the children.
Subsequent investigative efforts were unsuecessfiil and resulted in an
unsubstantiated case, due in part to the faet that the Defendant refused to eooperate
with DSS employees.
In April 2016, DSS reeeived a report that the girl had told a teacher at her
school that the Defendant hit her on the head. The teaeher observed bruises on the
girl's shoulder that looked like finger marks, as well as a serape and three hard
knots on the girl's head.
On May 10, 2016, DSS received a report that the girl had been locked in
closet for digging for food at her mother's home. When contacted by DSS, the
Defendant reported that the ehildren had gone to Texas to live with a relative and
would not provide additional information.
Between May 10, 2016, and June 21, 2016, DSS made repeated
unsuccessful attempts to make contact with the Defendant at her house and gather
information regarding the children's well-being.
In June 2016, Ashley Sutch, the Defendant's nieee, became aware that the
Defendant was looking for someone to take eustody of the ehildren beeause she
eould not take care ofthem. Ashley resides in Spokane, Washington,and contacted
the Defendant to see how she could help. She subsequently made arrangements to
travel to Mission to pick up the children.
On the evening of June 25, 2016, Ashley and her boyfriend, Tyler Roberts,
arrived in Mission and picked up the ehildren from the Defendant. Ashley observed
that both the boy and the girl looked very siek. The boy appeared to have a
distended stomach and an enlarged head. He also had scrapes on his knees, arms
and legs, bruising on his back and arms, a swollen elbow, and bumps on his head.
The girl had a large knot on her forehead, serapes on her back and face, and bruising
on her arms and legs. The Defendant told Ashley that the boy was 2 years old.
Ashley and Tyler thereafter left Mission and began driving the ehildren baek
to Spokane. The children immediately started talking about how hungry they were.
During the trip, the ehildren ate so much and so fast that they beeame sick. Ashley
tried to ration their food to keep them from getting siek. The group arrived in
Spokane on the evening of June 26, 2016.
On June 27, 2016, Ashley took the children to Sacred Heart Medical Center
in Spokane. At the time of his admission, the boy was not potty-trained and was
unable to walk. He was diagnosed with healing fractures to both of his arms and to
two of his ribs, for which he had received no medieal eare. The ehild abuse
speeialist who evaluated the boy's ease noted that the arm fractures were eonsistent
with grabbing and/or pulling with extreme force by an adult caregiver. She noted
that the rib fractures were consistent with bigb-force squeezing or impact injury.
The boy was found to be cbronically starved to the point ofemaciation. The
specialist noted that the boy's condition was consistent with physiological
dwarfism, caused by a combination of extreme starvation and emotional
deprivation. She also noted that the bruising on bis face and torso were consistent
with finger marks and were not consistent with accidental injury. She further noted
that the extent and severity ofthe boy's starvation and inflicted injuries rose to the
level of torture and that, given bis level of malnutrition, the boy could have easily
died.
Finally, the specialist noted that the boy suffered subdural bematomas and
retinal hemorrhages as a result of physical abuse when be was as an infant, which
left him with some developmental delays. She noted that the chronic malnutrition
may well have further impacted his development, and that it appeared he had never
been provided medical care to address his medical condition or delays. The boy
weighed 20 lbs., 9.6 oz. at the time of his admission, which was placed him in less
than the 0® percentile for a child his age. At the time of his discharge from Sacred
Heart Medical Center on July 5, 2016, the boy weighed 25 lbs., 12.7 oz.
The girl was also evaluated for physical abuse and negleet. She was noted
to be very thin, weighing 35 lbs., 14.4 oz., which placed her in the 26''* percentile
for a child her age. She was diagnosed with malnutrition to the point of starvation.
A physical examination revealed multiple scabbed abrasions to the girl's face and
a bruised right ear. The girl reported she fell down the stairs, but the specialist
opined that the abrasions were more extensive than would be expected from a fall.
She also noted that the bruising was consistent with a blow to the side of the head
or an extremely hard punch.
The girl was also observed to be extremely protective of the boy, and the
specialist noted that if the girl was given food, she would sniff it and then hand it
to the boy. The girl was also noted to be hypervigilant and protective of the boy,
indicating to the specialist that the girl had likely been the main caregiver for the
boy. At the time of her discharge from Sacred Heart Medical Center on July 5,
2016, the girl weighed 37 lbs., 14.7 oz.
On July 11, 2016, law enforcement executed a search warrant at the
Defendant's home. They observed a rope hanging by the refrigerator, which was
used to tie the refngerator shut. They also observed a closet that contained
indications of human waste, as well as evidence that the closet door had been tied
shut with a rope.
Also on July 11, 2016, the Defendant was interviewed by Special Agent
Alicia Rowland, Federal Bureau of Investigation, at the Rosebud Adult
Correctional Facility. The Defendant was advised ofher Miranda rights, orally and
in writing, voluntarily waived her rights, and agreed to answer questions. The
Defendant admitted she had broken the boy's arms by picking him up really quickly
and dragging him. She also admitted to hitting the children, and reported they only
ate twice a day.
The children suffered physical maltreatment at the hands of the Defendant,
and they were exposed to needless risk ofstarvation and death due to the Defendant
withholding food from them.
The Defendant's treatment ofthe children, including her actions oflocking
the children in the closet and withholding food from them amounted to torment, as
such treatment caused severe and unusually persistent or recurrent distress of body
or mind.
The Defendant's actions ofinjuring the children and failing to seek medical
care for them amounted to torture and cruel punishment, as such actions caused
intense suffering and were done with reckless indifference to pain.
Between October 29, 2014, and June 25, 2016, the children lived in the
Defendant's home, and the Defendant was the primary care provider for the
children. There were other adults living in the home, but the Defendant was
responsible for the children and is responsible for the injuries and harm to the
children.
The Defendant is a maternal aunt of the boy and the girl. As of June 25,
2016, the boy was nearly four years old with a date of birth of July 2012. The girl
was five years old, with a date of birth of June 2011.
The Defendant had no excuse or legal justification for abusing the boy and
the girl, and she did so intentionally and voluntarily. She was able to appreciate
the nature and wrongfulness of her actions at the time ofthe offense, and she could
have avoided abusing the children if she had wanted to.
The Defendant is an "Indian" under the provisions of 18 U.S.C. § 1153 in
that she is an enrolled member of the Rosebud Sioux Tribe, enrollment number
345U020345 and 4/4 degree of Indian blood. The offense occurred in the New
Ring Thunder Community, near Mission, in Todd County, South Dakota, which is
within the exterior boundaries ofthe Rosebud Sioux Indian Reservation, a federally
recognized tribe. This location is "Indian country" within the provisions of 18
U.S.C. §§ 1151 and 1153.
CRDoc. 106.
Because of the egregious nature of the child abuse perpetrated on the two child victims.
Blue Thunder was looking at potentially a very long prison sentence. In the Plea Agreement, the
parties included a joint recommendation regarding sentence as follows:
The Defendant and the United States understand and agree that the Court
will determine the applicable Guideline range after reviewing the presentence
report and considering any evidence or arguments submitted at the sentencing
hearing. This is a benefit of the bargain plea agreement. The United States agrees
that it will recommend that the Court impose a sentence of twelve (12) years
imprisonment. The Defendant agrees that she will recommend a custody sentence
of not less than seven(7) years imprisonment. Under the terms of this agreement,
the Defendant shall not argue for a sentence of less than seven (7) years and
specifically agrees that her prison sentenee should be at least seven (7) years in
length.
The partiesjointly agree that in order to achieve a sentence ofbetween seven
(7) and twelve (12) years, the parties will jointly request an upward departure or
varianee, or a downward departure or variance, depending on what the Guidelines
recommend, for purposes of reaching a prison sentence within the seven (7)- to
twelve (12)-year range. This section of the plea agreement will serve as a motion
for an upward departure/variance or downward departure/variance, whichever one
is necessary to give effect to the agreement. The Government may present evidenee
that Defendant's case is exceptional as she is pleading guilty to particular charges,
and as a benefit of the bargain, the Government is dismissing other more serious
charges, some of which could be punishable by a mandatory minimum of ten (10)
years up to life imprisonment.
The Defendant understands that any recommendation made by her or the
United States is not binding on the Court. The Defendant further understands that
she may not withdraw her plea of guilty if the Court rejeets any recommendation.
CR Doc. 104 at H G. The Plea Agreement also eontained a waiver of defenses and appeal rights
as follows:
The Defendant hereby waives all defenses and her right to appeal any nonjurisdictional issues. The parties agree the Defendant may not appeal a sentence
which includes up to twelve(12) years in prison.
CR Doe. 104 atf P. Blue Thunder signed the Faetual Basis Statement, the Redacted Factual Basis
Statement, and the Plea Agreement. CR Docs. 104, 105, 106.
This Court held a change of plea hearing on August 14, 2017. CR Does. 109, 160. This
Court had Blue Thunder placed under oath at the beginning of the change of plea hearing and
assured that she understood the necessity and the legal obligation to testify truthfully. CR Doc.
160 at 2-3. This Court then asked a series ofquestions to assure that Blue Thvmder was competent
to go forward with the proposed change of plea. CR Doe. 160 at 3-6. During the exchange this
Court asked, among other things, the following:
THE COURT: Have you had enough time to talk with Ms. Miner about your case
and about what you should do here?
[BLUE THUNDER]: Yes.
THE COURT: Are you satisfied with the counsel, advice, and representation
provided to you by Ms. Miner?
[BLUE THUNDER]: Yes.
CRDoc. 160 at 5.
The Court then advised Blue Thunder that the maximum penalty she faced on the two
counts ofchild abuse to which she was pleading guilty was fifteen years in prison on each offense.
CR Doc. 160 at 7-9. Later during the change of plea hearing, the Court asked directly about the
waiver of appeal language in the Plea Agreement as follows:
THE COURT: Do you realize that your plea agreement contains language standard
in this District under Paragraph P whereby you are waiving all defenses and any
right to appeal any non-jurisdictional issues; do you understand that?
[BLUE THUNDER]: Yes.
THE COURT: Do you also understand that you are waiving your right to appeal
from any sentence, which includes any sentence up to 12- up to and including 12
years in prison; do you understand that?
[BLUE THUNDER]: Yes.
CRDoc. 160 at 14.
Blue Thunder also assured the Court that she had signed the Plea Agreement, had carefully
read and understood the Plea Agreement, had gone over it with her attorney before signing it, and
understood that by signing the Plea Agreement she was agreeing with its terms. CR Doc. 160 at
15. The Court also asked her about the Factual Basis Statement, confirming that she had in fact
signed the Factual Basis Statement. CR Doc. 160 at 16. The Court then asked:
THE COURT: Did you carefiilly read and understand the Factual Basis Statement
and go over it with Ms. Miner before signing it?
[BLUE THUNDER]: Yes.
THE COURT: Is the content ofthe Factual Basis Statement completely accurate?
[BLUE THUNDER]: Yes.
CR Doc. 160 at 16-17. The Court asked a second time about Blue Thunder's communication and
satisfaction with her attorney Jana Miner as follows:
THE COURT: Have you had enough time to talk with Ms. Miner about your case
and about what you should do?
[BLUE THUNDER]: Yes.
THE COURT: Do you remain satisfied with her work for you?
[BLUE THUNDER]: Yes.
CR Doc. 160 at 17. Blue Thunder then proceeded to plead guilty to both counts of child abuse.
CRDoc. 160 at 18-19.
On November 27, 2017, this Court held a sentencing hearing at which it heard additional
testimony. CR Docs. 148,156,157. This Court sentenced Blue Thunder to 90 months of custody
to run concurrently on the two counts of conviction, and with three yezirs of supervised release
concurrently to follow. CR Docs. 148, 156, 157. On November 28, 2017, the Court signed the
Judgment in a Criminal Case to formalize the sentence. CR Doc. 150. Blue Thunder did not
appeal from the sentence.
II.
Discussion of Blue Thunder's Claims
Blue Thunder, on June 27, 2018, filed her motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence. Under 28 U.S.C. § 2255, a prisoner in federal custody is subject to a
one-year statute of limitations in applying for relief. 28 U.S.C. § 2255(f). Blue Thunder's filing
was within the one-year statute oflimitations and thus is timely.
Three ofthe four grounds that Blue Thunder raises assert ineffective assistance ofcounsel.
The Sixth Amendment to the United States Constitution guarantees the right to effective assistance
of counsel in criminal prosecutions. U.S. Const, amend. VI; see also Gideon v. Wainwright. 372
U.S. 335,339(1963); Johnson v. Zerbst. 304 U.S. 458,459(1938); Powell v. Alabama. 287 U.S.
45,63 (1932). A defendant who elaims to have been deprived of effective assistance of counsel
must show:(1)that his lawyer's representation fell below an objective standard ofreasonableness;
and (2) that the lawyer's deficient performance prejudiced the defendant.
Strickland v.
Washington. 466 U.S. 668, 688, 692(1984); Nupdal v. United States. 666 F.3d 1074, 1075 (8th
Cir. 2012)(citing Barger v. United States. 204 F.3d 1180, 1182 (8th Cir. 2000)). For the first
requirement of the Strickland test, "the court must apply an objective standard and 'determine
whether, in light of all of the circumstances, the identified acts or omissions were outside the wide
range ofprofessionally competent assistance,' Strickland. 466 U.S. at 690, while at the same time
refi-aining from engaging in hindsight or second-guessing of trial counsel's strategic decisions."
Nave V. Delo. 62 F.3d 1024, 1035 (8th Cir. 1995). To establish prejudice to satisfy the second
prong of the Strickland test, the 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."
Strickland. 466 U.S. at 694. Because hindsight analysis is problematic, courts "indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." United States v. Staples. 410 F.3d 484, 488 (8th Cir. 2005)(quoting Strickland. 466
U.S. at 689); Hunter v. Bowersox. 172 F.3d 1016, 1024(8th Cir. 1999). Decisions involving trial
strategy are therefore "virtually unchallengeable." Link v. Luebbers. 469 F.3d 1197, 1204 (8th
Cir. 2006). "The Sixth Amendment right to counsel functions to ensure that defendants receive a
fair trial, not a perfect one." Willis v. United States. 87 F.3d 1004, 1008 (8th Cir. 1996).
Blue Thunder, having pleaded guilty, fiarther must show "a reasonable probability that, but
for counsel's errors,[she] would not have pleaded guilty and would have insisted on going to trial."
United States v. Storev. 990 F.2d 1094,1097(8th Cir. 1993)(citation omitted!: see also Matthews
V. United States. 114 F.3d 112, 114(8th Cir. 1997). A petitioner like Blue Thunder "is bound by
[her] plea and resulting conviction unless [she] can show [her] attorney's ineffective assistance
rendered [her] plea involuntary." United States v. Davis. 230 F.3d 1364,1364(8th Cir. 2000)(per
curiam). Merely a "bare assertion that [she] would not have plead guilty is insufficient to allow
for an intelligent assessment of the likelihood that [Blue Thunder] would have plead guilty and is
far too speculative to warrant § 2255 relief." United States vs. Frausto. 754 F.3d 640, 644 (8th
Cir. 2014). This Court need not conduct a hearing on a § 2255 motion when the movant's
"allegations carmot be accepted as true because they are contradicted by the record, are inherently
ineredible, or are conclusions rather than statements of fact." Winters v. United States. 716 F.3d
1098, 1103 (8th Cir. 2013)(citation omitted).
Blue Thimder's first ground in her § 2255 motion alleges ineffective assistance of counsel
for failing to file an appeal. Blue Thunder's request for relief on this ground may be denied for
two obvious reasons. First, her Plea Agreement contained a clear waiver of appeal rights stating
in part "the parties agree the Defendant may not appeal a sentence which includes up to twelve
(12) years in prison." CR Doc. 104 at f P. Blue Thunder acknowledged under oath during her
change of plea hearing that she understood this provision waiving any right to appeal the length of
the sentence ifthe sentence were under twelve years. CR Doc. 160 at 14. Blue Thunder's sentence
was ultimately 90 months in length—that is, eight-and-a-half years in length. Therefore, Blue
Thunder had waived her right to appeal the length ofthe sentence. Second, Blue Thunder plainly
was made aware of her fourteen days to appeal and her right to appeal in forma pauperis if she
should so choose. The Court had advised her of this right at the close of the sentencing hearing.
CR Doc. 156 at 54-55. Moreover, her attorney sent a letter to her the day after the Judgment was
filed advising her ofthree things:
1) we had discussed filing an appeal and that she did not indicate that she wanted
to appeal, 2) if she wanted to file a notice of appeal, she needed to contact me no
later than December 12, 2017, and 3) I was keeping her file open due to pending
restitution issues.
CFV Doc. 9 at 2. Blue Thunder never told Miner that she wanted to appeal her sentence. CIV
Doc. 9 at 3.
Blue Thunder's second ground alleged in the § 2255 motion is that Miner provided
ineffective assistance of counsel in failing to request Blue Thunder undergo a mental health
examination. Neither in her § 2255 motion nor in her response to the Motion to Dismiss does Blue
Thunder elaborate on the basis for such a claim of ineffective assistance. Miner in her affidavit
affirmed that Blue Thunder demonstrated an understanding of the charges and assisted in the
defense. Miner then addressed the topic as follows:
I explored no mental health, competency, or insanity defense. There was
no basis for a mental status defense. The children, D.B.T. and J.B.T., were in her
custody for approximately 18 months. Other children of similar age were also in
her custody, primarily M-D.B.T. There was a yawning gap in the treatment of MD,age 7, by Petitioner compared to the treatment ofthe victims. The investigation
by the FED office demonstrated that M-D was showered with attention, gifts, and
preferential treatment by Petitioner.
I requested no assessment of Petitioner for Post Traumatic Stress Disorder,
although in the sentencing memorandum,I referenced its probably existence based
on the abusive relationships in her past. I did not view it as a potential trial defense
given the long-standing neglect ofthe victims, nor did I find research and literature
to suggest PTSD was a viable trial defense. A post-plea mental examination may
have provided more support for the sentencing argument. I note, however, that the
Court sentenced near the low end of the guideline range despite stating that the
"facts appropriately invoke outrage." The Court also said that children are sacred
in the Dakota tradition and that the "terrible facts" demonstrated Petitioner's
"cruelty" and "day-by-day callousness" to the children.
Further, the Court
referenced Petitioner's "extreme conduct" toward the children. Had there not been
demonstrated ability by the Petitioner to adequately care for other children in the
same age range, I would have considered a mental health trial defense.
CIV Doc. 9 at 4-5. Blue Thunder offers no contrary explanation and did not contest the
information provided by Miner. Nothing suggests that Miner's decision to not seek a mental health
examination for Blue Thunder was deficient or somehow prejudiced Blue Thunder.
Ground three in Blue Thunder's § 2255 motion alleges that Miner provided ineffective
assistance of counsel in failing to communicate with her. Blue Thunder's testimony under oath
during her change of plea hearing belies this allegation. Blue Thunder twice during the change of
plea hearing acknowledged that she had time to talk with Miner about her case and what she should
do and that she was satisfied with the counsel, advise, and representation provided to her by Miner.
CR Doc. 160 at 5, 17. Miner in her affidavit detailed her extensive work on the case and
communication with Blue Thunder. CIV Doc. 9 at 5.
Blue Thunder's fourth and final claim in her § 2255 motion is that she pleaded guilty
without fully knowing and understanding the consequences of her plea. Blue Thunder's claim of
not fiilly knowing and understanding the consequences ofher plea is contradicted by her testimony
under oath during the change of plea hearing. This Court, after placing Blue Thunder under oath,
asked her about her ability to read, write, and understand the English language, and she affirmed
that she could do so well. CR Doc. 160 at 4. Blue Thunder committed to letting the Court know
if it asked a question that she did not understand or used a word that she did not recognize. CR
Doc. 160 at 4. Blue Thunder affirmed that she knew what she was charged with and had plenty of
time to talk with Miner about her case and what she should do. CR Doc. 160 at 4-5. After finding
Blue Thunder to be competent, this Court read to her the charges to which she was proposing to
plead guilty. CR Doc. 160 at 6-8. This Court explained all of the penalties that Blue Thunder
faced for being convicted of those offenses. CR Doc. 160 at 6-10. This Court made clear that
Blue Thunder did not have to plead guilty and could stick with a plea of not guilty and get a jury
trial. CR Doc. 160 at 10. This Court then explained to Blue Thunder herjury trial rights at length.
CR Doe. 160 at 10-12. This Court explained to Blue Thunder the sentencing process. CR Doc.
160 at 12-14. This Court went over the Plea Agreement, Supplement to Plea Agreement, and
Factual Basis Statement with Blue Thunder. CR Doe. 160 at 12-17. Blue Thunder throughout
the sentencing hearing expressed an understanding of what she was doing, knew that she was
giving up her jury trial rights, and knew that she was facing a joint recommendation of between
seven and twelve years, from whieh she would not be able to appeal. CR Doc. 160. There is
utterly nothing in the reeord to hint at, let alone support, a contention that Blue Thunder did not
know and understand the consequences of her plea.
III.
Conclusion and Order
For the reasons explained above, it is hereby
ORDERED that Blue Thunder's motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence, CIV Doc. 1, is denied. It is further
ORDERED that the Government's Motion to Dismiss Blue Thunder's § 2255 Motion, CIV
Doe. 13, is granted. It is finally
ORDERED that a eertifieate of appealability will not issue on the claims raised in the §
2255 motion.
DATED this 35 day of January, 2019.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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?