Ford v. United States of America
ORDER granting 22 Motion to Dismiss for Failure to State a Claim; adopting 28 Report and Recommendation; overruling 32 Objection to Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 3/31/2017. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
ORDER ADOPTING REPORT
AND RECOMMENDATION AND
UNITED STATES OF AMERICA,
Petitioner, Robert Ford, filed a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Docket 1. The government now moves to
dismiss the petition for failure to state a claim. Docket 22. The matter was
assigned to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B) and this court’s October 16, 2014 standing order. Magistrate
Judge Duffy recommends that the petition be dismissed. Docket 28. Ford
timely filed his objection. Docket 32. For the following reasons, the court
adopts Magistrate Judge Duffy’s report and recommendation and dismisses
Ford was charged with sexual abuse of an incapacitated person and
kidnapping. United States v. Ford, 726 F.3d 1028, 1029 (8th Cir. 2013). After a
A full recitation of the facts can be found in the report and recommendation.
jury trial, he was acquitted of sexual abuse but convicted of kidnapping. The
Eighth Circuit Court of Appeals affirmed his conviction. Id.
On October 1, 2015, Ford filed a motion to vacate or set aside his
conviction under 28 U.S.C. § 2255. Docket 1. Ford argued that his trial
attorney had provided ineffective assistance by not presenting evidence at trial
to attack the credibility of Christine Weston, the victim and a witness. Docket
5. The government moved to dismiss the petition, arguing that Ford’s attorney
had not been ineffective because the evidence was inadmissible and that Ford
could not show prejudice. Docket 22. On August 18, 2016, Magistrate Judge
Duffy filed her report and recommendation, recommending that the
government’s motion be granted and the petition be dismissed. Docket 28. Ford
objects to this recommendation. Docket 32. He seeks de novo review of this
STANDARD OF REVIEW
The court’s review of a Magistrate Judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
The Report and Recommendation
After de novo review, the court finds that Ford has failed to show
ineffective assistance of counsel because he failed to show he was prejudiced
by counsel’s alleged ineffectiveness. The test for ineffective assistance of
counsel comes from Strickland v. Washington, 466 U.S. 668 (1984). Strickland
“requires that the movant show that he was prejudiced by counsel's error, and
‘that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.’ ” Williams v.
United States, 452 F.3d 1009, 1014 (8th Cir. 2006) (quoting Anderson v. United
States, 393 F.3d 749, 752–53 (8th Cir. 2005)). “ ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting
Strickland, 466 U.S. at 694).
“When determining if prejudice exists, the court must consider the
totality of the evidence . . . .” Id. (quoting Strickland, 466 U.S. at 695).
In doing this analysis, the court should be mindful of (1) the
credibility of all witnesses, including the likely impeachment of the
uncalled defense witnesses; (2) the interplay of the uncalled
witnesses with the actual defense witnesses called; and (3) the
strength of the evidence actually presented by the prosecution.
Id. (quoting Strickland, 466 U.S. at 695). “Because both prongs must be met for
the petitioner to succeed, ‘a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.’ ” Taylor v. Kelley, 825 F.3d
466, 470 (8th Cir.), cert. denied, 137 S. Ct. 387 (2016) (quoting Strickland, 466
U.S. at 697).
Ford has not shown that trial counsel’s alleged ineffectiveness prejudiced
him. He claims that trial counsel was ineffective because he failed to
thoroughly investigate Weston and use that information to impeach her
credibility. While this goes to Weston’s credibility, and her credibility was
important for the prosecution, it simply does not create a “reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.”
Evidence that did not rely on Weston’s credibility supported Ford’s
conviction. Ford objects to the R&R, arguing that his conviction rested on
Weston’s credibility, but this is not true. Cindy Deutscher, a physician’s
assistant who treated Weston after the incident with Ford, testified that Weston
had bruises on her arms and legs. United States v. Ford, 4:11-cr-40116-KES
(hereinafter “CR Docket”), Docket 87 at 127. Ford argues that no one testified
that Ford inflicted the bruises on Weston. Docket 32 at 12. This does not
matter. Deutscher testified that Weston told her the bruises were not present
before she went to bed and that the bruises were consistent with this
understanding. CR Docket 87 at 129-130. The lack of evidence pointed out by
Ford in his objections merely implies that there is another possible
interpretation of these bruises. While that may be true, it does not create a
“reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Concerning the bruises, Ford also argues that Weston failed to explain
how she had been bruised during her testimony. Docket 32 at 11. The
examples Ford provides show Weston answering indirectly to questions about
how she was bruised. Id. These examples do not support the argument that
trial counsel’s ineffectiveness prejudiced Ford. If anything, they support the
opposite argument because even given Weston’s inconclusive testimony, the
jury found the remainder of the evidence persuasive enough to find Ford guilty
of detaining Weston against her will.
Eric Sherman and Michelle Red Heart also testified that they heard a
commotion in the bedroom when Ford was detaining Weston. Ford argues that
this does not constitute evidence that he detained Weston because neither
Sherman nor Red Heart actually saw him detaining Weston. Combined with the
other evidence, however, the fact that both Sherman and Red Heart heard a
commotion at the time Weston said she was being detained constitutes
evidence that Weston was being stopped from leaving the room.
Ford also made two phone calls while he was detaining Weston. One of
those calls was to Weston’s mother. During cross-examination, the prosecutor
asked Ford why Weston did not call her mother herself if she was free to.
Docket 87-1 at 145. Ford answered, “Beats the heck out of me.” Id. Ford
objects to the report and recommendation, arguing that the calls he made do
not constitute evidence that he was detaining Weston against her will. Docket
32 at 14. Here, Ford again merely suggests a different interpretation of this
evidence: that Ford called Weston’s mother in order to help Weston. While this
may be a reasonable interpretation of the facts, it is not the only interpretation
To show prejudice, Ford has to show a reasonable probability that the
jurors would have had a reasonable doubt that he committed kidnapping if
Ford’s attorney had introduced character evidence against Weston. As outlined
above, Ford’s conviction did not rest solely on Weston’s credibility. Therefore,
the evidence Ford argues his attorney should have presented would not have
led to acquittal, and Ford fails to show that the failure to introduce this
evidence prejudiced him.
“A district court may deny an evidentiary hearing where (1) accepting the
petitioner's allegations as true, the petitioner is not entitled to relief, or (2) ‘the
allegations cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’ ”
Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir. 2017) (quoting
United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir. 2014)). “ ‘No hearing is
required, however, where the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based.’ ” Franco v.
United States, 762 F.3d 761, 763 (8th Cir. 2014) (quoting Anjulo–Lopez v.
United States, 541 F.3d 814, 817 (8th Cir. 2008)).
Here, an evidentiary hearing is not required. Even if trial counsel was
deficient for failing to attack Weston’s credibility with the information Ford
argues he should have, Ford failed to demonstrate that this alleged deficieny
prejudiced him. As discussed above, Ford’s conviction did not rest solely on
Weston’s credibility, which would only arguably be affected by Ford’s proposed
attack. There is no issue of fact or credibility to be determined in an evidentiary
hearing. Therefore, Ford’s request for an evidentiary hearing is denied.
Certificate of Appealability
Before denial of a § 2255 motion may be appealed, a petitioner must first
obtain a certificate of appealability from the district court. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). A certificate may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(2). A “substantial showing” is one that demonstrates “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
finds that Ford has made a substantial showing that the district court’s
assessments of his claims are debatable or wrong. Consequently, a certificate
of appealability is issued.
Thus, it is ORDERED
1. Fords objections to the report and recommendation (Docket 32) are
2. The report and recommendation (Docket 28) is adopted in full.
3. Respondent’s motion to dismiss (Docket 22) is granted. Ford’s motion
to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255
(Docket 1) is dismissed.
4. A certificate of appealability is issued on the following issues:
a. Is Ford entitled to an evidentiary hearing?
b. Was Ford’s trial counsel ineffective regarding the kidnapping
charge because he failed to properly investigate the matter and
impeach the complaining witness’s credibility?
Dated March 31, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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