Contreras v. United States of America

Filing 205

ORDER Signed by U.S. District Judge Lawrence L. Piersol on 10/27/2021. MAILING copy of Order and 204 Letter Received, 203 Letter Received to Mr. Contreras. (SAC)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

MARIO M. CONTRERAS,

4:17-CV-04075-LLP

Movant,

ORDER

vs.

UNITED STATES OF AMERICA,

Respondent.

Pending before the Court are two requests for audio recordings filed by
Movant, Mario Contreras ("Contreras"). For the following reasons the requests are
denied.
BACKGROUND

Contreras was convicted by a jury of murder and assault resulting in serious

bodily injury. The victim was his young daughter, A.C. He was sentenced to 360

months'imprisonment on each count, concurrent.(CR. Doc. 180.) On direct appeal,
the Eighth Circuit affirmed his conviction and sentence. See United States v.

Contreras, 816 F.Sd 502 (8th Cir. 2016). His petition for rehearing was denied on
July 14, 2016.

On May 31, 2017, Contreras filed a pro se Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). On July 26, 2017, the

government filed a response and a motion to dismiss for failure to state a claim.
(Docs. 47, 48.) The Court appointed two lawyers for Contreras. The first lawyer
took no action and was terminated by this Court. The second lawyer was able to
work with Contreras to prepare and file an Amended Petition on April 24, 2020.

(Doc. 135.) The Amended Petition asserts the following claims of ineffective
assistance of trial counsel:

• failure to identify medical evidence that supported the alternative theory of
causation relating to a heart defect;

• failure to interview and document testimony from physician John Levintis,
who - according to Contreras - would have testified to a latent heart issue that

required consultation of a cardiologist and affirmed that Dr. Levintis had
made a referral for a consultation in November 2011; and

• failure to invoke Rule 16 and Brady to compel the Government to turn over

the exculpatory medical evidence relating to Cook Contreras's medical
condition;

(Doc. 135, p. 5.) The Petition also asserts a claim of actual innocence. The
relationship between Contreras and his second lawyer deteriorated, and the Court
allowed that lawyer to withdraw as counsel for Contreras.

On July 6, 2021, a new lawyer filed a Notice of Appearance for Contreras.

(Doc. 188.) Recently, she was able to obtain Contreras's signed waiver of his
attorney-client privilege with his trial counsel in order to allow trial counsel to
address the ineffective assistance of counsel claims. It does not appear that

Contreras's new lawyer is involved in his requests for audio recordings.^
The first of Contreras's pro se requests for audio recordings is dated August

31, 2021. There, he requests an audio recording of the voir dire that took place in

Contreras's criminal trial oh July 29, 2013. He also requests an audio recording of
the trial testimony of Dr. Victor Froloff at the criminal trial on July 31, 2013.2 The
second pro se filing dated September 28, 2021 requests an audio recording of an ex
parte telephonic hearing held by this Court in this § 2255 action on March 19, 2020.
DISCUSSION

As best the Court can ascertain from Contreras's filings, he believes the Clerk

of Court is required by law to send him the requested audio recordings. That is
incorrect. Rule 57.2 of the Criminal Local Rules of Practice for the United States

District Court District of South Dakota provides:

If a proceeding has been recorded electronically and the electronic
recording constitutes the official record, the clerk of court will arrange, upon
the request of any party, to have a transcript prepared from the electronic
recording. The requesting party will be responsible for any costs associated
1 Though Contreras wrote his lawyer's name on one of the forms dated September 28, 2021,
Contreras is the one who signed the form.
2 Dr. Froloff also testified on July 30, 2013.

with producing a transcript in accordance with the directives of the
Administrative Office of the United States Courts. Recordings will not be
released to parties or the public.

D.S.D. Grim. LR 57.2 (emphasis added). Contreras does not have a right to obtain
copies of the audio recordings of his proceedings or to obtain copies in electronic as
opposed to printed form. Accord Tamburino v. Taylor, 2017 WL 5476375, at *5(W.D.
Mich. Nov. 15, 2017)("Plaintiff does not have a constitutiongd right to an accurate
video and audio recording of his proceedings."). Transcripts of voir dire and of the

trial, including Dr. Victor FrolofTs trial testimony, already have been prepared and
are filed in the criminal case against Contreras, CR 12-10047. (Docs. 158, 160.) In

addition, a transcript of the March 19, 2020 ex parte telephone conference has been
filed in this § 2255 case, CIV 17-4075.(Doc. 193.)

It does not appear that voir dire or the ex parte telephone conference is

relevant to the issues in this § 2255 action. In any event, Contreras's lawyer will be
able identify whether there are transcripts that are necessary to pursue the claims
in this case. The Court directs Contreras to work with his new lawyer on these

issues, and to refrain from filing any further pro se requests for audio recordings.
Accordingly,
IT IS ORDERED:

1. That Contreras's requests for audio recordings are denied and he is
directed not to file any further requests.

2. That, after filing copies of the requests, the Clerk of Court shall
return to Contreras all of the documents received in conjunction

with his requests for audio recordings, along with a copy of this
Order.

Dated this

-

day of October, 2021.

BY THE COURT: fK
Lawrence L. Piersol

ATTEST:
MATTHEW

United States District Judge