Contreras v. United States of America

Filing 212

MEMORANDUM OPINION AND ORDER Signed by U.S. District Judge Lawrence L. Piersol on 02/23/2022. (SAC)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

MARIO M. CONTRERAS,

4:17-CV-04075-LLP

Movant,
MEMORANDUM OPINION AND ORDER
vs.

UNITED STATES OF AMERICA,

Respondent.
Pending before the Court is Movant, Mario Contreras's ("Contreras")

"Respjonse to the Government" in regard to his Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. (Civ. Doc. 208.) The government
filed a Reply asserting that Contreras's Response raises three new claims that are
untimely and that do not relate back to his Amended § 2255 Petition. (Doc. 210 at
1.) Contreras responded by explaining why he believes the three claims relate back
to his Amended Petition. (Doc. 211.) For the following reasons, the Ramsey County

Mediial Examiner's Office claim relates back, but the two additional claims raised
in Contreras's Response to the Government do not relate back.
BACKGROUND

Contreras was convicted by ajury 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 12-10047, Doc. 180.) On
direct appeal, the Eighth Circuit affirmed his conviction and sentence. See United
States V. Contreras, 816 F.3d 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. (Civ. Doc. 1). He filed another pro
se § 2255 motion on June 30, 2017. (Civ. Doc. 29.) The government filed its first
motion to dismiss Contreras's § 2255 on July 26, 2017. (Civ. Doc. 48.) Contreras

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has filed over eighty pro se motions during the course of his § 2255 proceedings.

Though Contreras raised a myriad of issues in his numerous pro se filings, the gist
of his,ineffective assistance of counsel claims appeared to be his claim that A.C. died
from a pre-existing heart defect, and that his trial lawyer should have obtained the
medical records related to A.C.'s heart condition. That became clearer when his

court-appointed lawyer filed an Amended Petition to Vacate, Set Aside or Correct
Sentence Under § 2255 on April 24, 2020. (Civ. 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.

(Civ. t)oc. 135, p. 5.) The Amended Petition also includes a claim about the Ramsey
County Medical Examiner's Office where A.C.'s autopsy was performed: 'That Mr.

Contijeras was denied effective assistance of counsel in that counsel failed to
question the coroner from the Ramsey County Coroner's Office about events or

problems that, according to Mr. Contreras, cast doubt on the impartiality and
professional competence of the work performed in that office." (Doc. 135 at 3.)
1

Finally, Contreras asserted a claim of actual innocence in his Amended Petition. (Id.
at 6.

The reasons for the delay in resolving Contreras's § 2255 motion have been
set forth in considerable detail by this Court. (Civ. Docs. 134, 156, 174, 184 and

201.) The Court won't repeat all of the circumstances in this Memorandum Opinion,
but a long delay occurred while attempting to obtain a signed attorney-client waiver
form from Contreras so that his trial attorney could respond to the ineffective
assistance of counsel claims. On May 6,2021,the Court issued an Order dismissing
Contreras's ineffective assistance of counsel claims for want of prosecution due to

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his failure to comply with the Orders directiug him to sign and file the form waiving
the attorney-client privilege. (Civ. Doc. 184.)
After the ineffective assistance of counsel claims were dismissed, the only
remaining claim was that Contreras is actually innocent. On June 7, 2021, the
government filed a response requesting dismissal of Contreras's claim that he is

actually innocent of the crimes of conviction. (Civ. Doc. 187.)
On July 6, 2021, a new lawyer filed a Notice of Appearance for Contreras.
(Civ. Doc. 188.) On July 15, 2021, Contreras's new lawyer filed a motion asking the
Court to reconsider its dismissal of the ineffective assistance of counsel claims. (Civ.
Doc. 191.) According to his lawyer, Contreras wrote her about why he did not sign
the waiver form and said, among other things, that he "was fearful of testifjdng
against Iranians" and "other non-relevant issues." (Id.) Contreras's new lawyer
thought Contreras might be willing to waive his attorney-client privilege if she had

a chance to meet with him and explain why it was needed.(Id.) After further briefing
and receipt of a signed waiver of Contreras's attomey-clLent privilege, the Court held
that Contreras could proceed with his ineffective assistance of counsel claims "set
forth in his Amended Petition." (Civ. Doc. 201.)
The government was directed to send the Amended Petition and the signed

attorney-client waiver form to trial counsel. (Id.) Trial counsel was directed to
provide and file an affidavit responding to the allegations in the Amended Petition,
and the government was to file a response to Contreras's claims. (Id.) Contreras
could file a brief within twenty days after receipt of the government's response. (Id.)
Trial counsel's affidavit was filed on November 22, 2021. (Civ. Doc. 206.) It
was counsel's "understanding that Mr. Contreras's claims for ineffective assistance
of counsel revolve around an alleged heart condition that would have supported an
alternative causation theory." (Id., f 3.) Counsel explained the work he did to
uncover possible causes of A.C.'s death, and how Contreras's medical expert
reviewed A.C.'s medical records and autopsy photographs and identified no

underlying heart condition. (Id., Tf 6.) Had Contreras mentioned the possibility of a
heart defect, counsel would have taken all lawful and ethically permissible steps to
obtain it. (Id., Tf 11.)

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The government filed its response on December 22, 2021. (Civ. Doc. 207.)
The government argued that neither Contreras nor anything in the medical records
alerted Contreras's trial lawyer that A.C. died from a pre-existing heart condition.
Rather, all of the medical evidence tied A.C.'s death to head injuries. According to
the government, trial counsel was not ineffective, and Contreras did not suffer any
prejudice.
On January 10, 2022, Contreras filed a pleading entitled "Defendant's

Response to the Government," which the Court considers a reply brief in support of
his Amended § 2255 motion. (Civ. Doc. 208.) The claims of ineffective assistance
of counsel addressed in the reply brief are not limited to the claim that a heart
condition caused A.C.S death. Rather, Contreras states the claims in his reply brief
as follows:

a. His attorney failed to invoke Rule 16 and Brady to compel the Government
to turn over exculpatory evidence. Per the Government's Motion in Limine,
Doc #31, the Government has in its possession "tribal records" and other
documents concerning the full-time caregivers of AC. The Government filed
a Motion to prohibit introduction of these documents into evidence. Doc. 31
page 4.

Contreras claims that he is actually innocent and such failure by trial counsel
to investigate tribal/state records, subpoena the same, and respond to the
Government's Motion, was prejudicial to his case and were it not for counsel's
error, the result would be different.

b. His attorney failed give proper Notice of a pre-existing condition to the
Government under Rule 16(b)(1)(c), and, as a result, the Court ruled that the
defense expert could not testify to a pre-existing condition that could have led
to the child's death. Contreras argues he was prejudiced by the same, and if
the evidence had been admitted, the result would have been different.

Additionally, the defense failed to call an expert witness who could give
favorable testimony that exculpates the defendant.

c. His trial attorney failed to investigate the Ramsey County Medical Examiner's
office for allegations of dishonesty and autopsies deemed incorrect by other
doctors. A random and simple internet search of articles published could
have led the defense to numerous news articles about the chief medical

examiner, giving false and incorrect testify [sic] at a Minnesota murder trial.
Contreras argues he was prejudiced by this mistake and that but for the error,
there is reasonable probability that the result would have been different.

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d. Finally, Contreras asserts the child had a heart problem and his trial attorney
failed to secure medical evidence of the same, which prejudiced him.
(Civ. Doc. 208, pp. 1-2.)

Most of the discussion in Contreras's reply brief is devoted to addressing the
first three claims - - that trial counsel should have investigated A.C.'s mother and

stepfather's criminal histories, that counsel failed to follow proper procedures in
order to introduce evidence that A.C. had a medical condition called hydrocephalus,
and that he failed to investigate the Ramsey County Medical Examiner's office. (Civ.

Doc. 208, pp. 2-6.) A.C.'s alleged heart condition is addressed in only one paragraph
of the reply brief and in an Affidavit of Mario Contreras attached as Exhibit F to the
brief.

The government replied with a brief arguing that the first three claims of
ineffective assistance of counsel raised in Contreras's reply brief are new, do not

"relate back" and, consequently, are time-barred. (Civ. Doc. 210.) Counsel for

Contreras responded with a brief explaining why she believes the claims relate back
to the Amended Petition and thus should not be barred as untimely. (Civ. Doc. 211.)
DISCUSSION

Section 2255 proceedings are civil in nature and, therefore, are governed by
the Federal Rules of Civil Procedure, see, e.g., Mandacina v. United States, 328 F.3d

995, 1000 85 n. 3 (8th Cir. 2003), including Rule 15 regarding amendments.

Contreras's two pro se § 2255 motions were timely filed in 2017, but the time for
Contreras to amend his § 2255 motion expired years ago and any attempted
amendment now is untimely. Fed.R.Civ.P. 15(a)(1)("A party may amend its pleading
once as a matter of course within ... 21 days after serving it, or . .. if the pleading

is one to which a responsive pleading is required, 21 days after service of a

responsive pleading or 21 days after service of a motion under Rule 12(b), (c), or (f),
whichever is earlier.").

On April 23, 2020, Contreras obtained leave of court to file an Amended §2255
Petition after the expiration of his time to amend as a matter of course. See

Fed.R.Civ.P. 15(a)(2) (if not filed as a matter of course within the meaning of Rule

15(a)(1), "a party may amend its pleadings only with the opposing party's written

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consent or the court's leave"). The Amended Petition was filed on April 24, 2020.
(Civ. Doc. 135.)

The Eighth Circuit has recognized that amendments pursuant to Rules 15(a)
or 15(b) in § 2255 cases, offered after the expiration of the § 2255 statute of
limitations, are subject to the "relation back" requirements of Rule 15(c). The Eighth
Circuit has explained the requirements for "relation back," as follows:
Claims made in an amended motion relate back to the original motion when
the amendment asserts a claim that arose out of the same "conduct,

transaction, or occurrence set out . .. in the original" motion. Fed.R.Civ.P.

15(c)(1)(B). To arise out of the same conduct, transaction, or occurrence, the
claims must be "tied to a common core of operative facts." Mayle v. Felix, 545
U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (applying Rule 15(c)

to a 28 U.S.C. § 2254 petition). An amended motion may raise new legal
theories only if the new claims relate back to the original motion by "aris[ing]
out of the same set of facts as [the] original claims." Mandacina, 328 F.3d at
1000. The facts alleged must be specific enough to put the opposing party on
notice of the factual basis for the claim. See[United States v.]Hernandez, 436

F.3d [851,] 858 [(8th Cir. 2006)], (explaining the rationale for Rule 15(c)).
Thus, it is not enough that both an original motion and an amended motion
allege ineffective assistance of counsel during a trial. See United States v.
Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) ("[A] petitioner does not satisfy the
Rule 15 'relation back' standard merely by raising some type of ineffective
assistance in the original petition, and then amending the petition to assert
another ineffective assistance claim based upon an entirely distinct type of
attorney misfeasance."), cert, denied, 547 U.S. 1217, 126 S.Ct. 2906, 165
L.Ed.2d 936 (2006). The allegations of ineffective assistance "must be of the
same 'time and type'as those in the original motion, such that they arise from
the same core set of operative facts." Hernandez, 436 F.3d at 857

(quoting Mayle, 545 U.S. at 650, 657, 660, 125 S.Ct. 2562, 162 L.Ed.2d 582
and holding that ineffective assistance claim alleging that counsel
inadequately cross-examined two witnesses did not relate back to a claim for
ineffective assistance related to counsel's failure to object to the admission of

evidence lacking a proper foundation); see also Mandacina, 328 F.3d at 1002
(concluding that counsel's alleged failure to investigate the police report of an
interview naming potential suspects was not a similar type of error as
allegedly failing to discover exculpatory footprints during counsel's
investigation of the case); United States v. Craycraft, 167 F.3d 451, 457 (8th
Cir. 1999)(failure to file an appeal is not the same type of error as failure to
seek a downward departure or challenge the drug type at sentencing).

Dodd V. United States, 614 F.3d 512, 515 (8th Cir. 2010). The petitioner carries the
burden "to satisfy a relation back analysis" under Rule 15(c). Mandacina, 328 F.3d
at 999.

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The government asserts that the first three ineffective assistance of counsel
claims in Contreras's reply brief do not "relate back" and are time barred. The Court
will consider each of the challenged claims in turn.
A. Brady Claim
The "Brady Claim" is based on allegations that trial counsel ineffectively
handled evidence concerning conduct of A.C.'s full-time caregivers. A.C.'s mother,

Shannon Sine ("Shannon") had custody of A.C. Shannon was married to Samuel
Sine ("Samuel"). In his reply brief, Contreras references the government's Motions
in Limine that were filed in the criminal case on April 3, 2013. Specifically, the
government's motion in limine number 8 provided:
References to prior arrests, convictions or problems relating to victim
child's mother (Shannon Sine! and/or her husband (Samuel Sine).

The USA win assert at trial that the two-year old child victim died as a result
of an assault perpetrated by the defendant. The doctors will testify that the child's
injuries were "acute," or very recent (within 24 hours) to her arrival at the
hospital. At the hospital, defendant told police and hospital personnel that the
child died from the fall from a chair (barely two feet tall) at his house. He
maintained the same thing to the FBI. Another doctor will testify that the child
was examined two weeks prior to her death as a prelude to beginning classes at
Head Start and found nothing wrong with the child.
Therefore the only real issue in this case is what caused the child's injuries
which the experts agree occurred within the previous 24 hours of being brought
to the hospital (when the child was in Defendant's custody). The USA therefore
moves that there be no mention, question or otherwise regarding any prior arrest,
conviction, or police report regarding the child's mother or her husband.The USA
received from Defendant's previous attorney copies of some tribal records which
show a DWI conviction for the victims's mother several months before the victim

died as well as some allegations of child welfare made by defendant's family. Also,
that same discovery discussed some domestic disputes between the child's
mother and those of her current husband. The USA moves that there he no

mention of ANY prior arrest, conviction, police report, or otherwise involving the
victim's mother or her husband. Such information has nothing to do with the
case and would be presented by the defense only to "dirty up" the child's mother
or her bo37friend, and distract the jury from the real issues in the case.

(Cr. Doc. 31, p. 4.) Contreras claims that trial counsel's failure to investigate the
records of prior arrests, convictions or problems relating to Shannon and Samuel,
to subpoena the records, and to respond to the government's motion in limine was

prejudicial. While the merits of the "Brady Claim" are questionable based on the

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proceedings in the criminal trial, that is not the issue to be decided at this time.i
In arguing that the Brady Claim relates baek to the Amended § 2255 Petition,
Contreras points out that a reference to "Bradjr" was made in the Amended Petition.
But that reference to Brady did not even hint at the present claim. The reference to

Brady in the Amended Petition appears to relate to medical records from Indian
Health Services ("IHS") in Sisseton, South Dakota. According to Contreras, Dr. John
Leventis examined A.C. at IHS in November 2011, and he purportedly reeommended

A.C. be taken to a cardiologist or to a heart specialist. (Civ. Doc. 135, p. 2.) These

allegations in the Amended Petition did not put the government on notice that
Contreras was claiming trial counsel failed to obtain and introduce records of any

prior arrest, convietion, or poHce report regarding Shannon or Samuel Sine. There
are no comparable allegations in the Amended Petition and no factual allegations
identifying a eommon core of operative facts. Dodd, 614 F.3d at 515. The Brady
allegation in Contreras's reply brief alleges circumstances and theories that are
different in "time and type" than the Brady-related allegation in the Amended
Petition. Id. This claim does not relate baek and is time-barred from consideration
on the merits.

B. Ramsey County Medical Examiner's Ofilce Claim
Dr. Vietor Froloff is the assistant medieal examiner at the Ramsey County

Medical Examiner's Offiee who performed A.C.'s autopsy. He testified at Contreras's
trial that A.C.'s eighteen subgaleal hemorrhages, which were on multiple planes of
her head, were inconsistent with a single fall. (Trial Transcript ("TT") in CR 12-

10047, Doc. 158, pp. 150-51.) Dr. Froloff stated that the hemorrhages were caused

by "by a fist . . . [or] . . . by just punching," TT 139, and that A.C.'s cause of death
1 The government's April 3, 2013 motion in limine states that it received "from Defendant's
previous attorney" copies of the records regarding Shannon and Samuel Sine. On July 29,

2013, Contreras's trii lawyer moved for service of subpoenas to obtain photographs of the
Sines's home, all law enforcement reports and other information regarding the Sines. (Cr. Doc.

94.) The motion was granted. (Cr. Doc. 95.) The subpoenas were issued. (Cr. Doc. 96.) During
the hearing on motions in limine, the parties addressed the government's motion to exclude the
evidence obtained by Contreras's lawyer. (TT 17-20.) Contreras's lawyer argued that the
evidence he had obtained was relevant and admissible. The Court did not allow trial counsel to

present the evidence regarding Shannon or Samuel, but counsel was allowed to present
testimony that A.C. would come from the Sines's house into Contreras's care with unexplained
bruises on her head and legs. (TT 479-92.)

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was "traumatic brain injuiy due to physical assault." TT 184. Further, Dr. Froloff
testified that A.C.'s injuries occurred within about seventy-two hours of the time of
her death, placing A.C. in Contreras's care at the time she received the head injuries.
TT 142.

In his reply brief, Contreras asserts that Dr. Froloff should have been
questioned about the professional integrity of the Ramsey County Medical
Examiner's Office. (Civ. Doc. 211, p. 4.) Contreras submitted articles criticizing
some of the work and trial testimony of the Chief Medical Examiner in Ramsey
County, Dr. Michael McGee. (Docs. 208-4 and 208-5.)

There is an allegation in the Amended § 2255 Petition which states that trial
counsel was ineffective for failing "to question the coroner from the Ramsey County
Coroner's Office about events or problems that, according to Mr. Contreras, cast

doubt on the impartiahty and professional competence of the work performed in that
office." (Doc. 135, p. 3.) This allegation was sufficient to put the government on
notice that Contreras was claiming ineffective assistance of counsel in relation to

questions about the professional integrity of the Ramsey County Medical Examiner's
Office, a claim that is similar in both "time and type" as that described in Contreras's

reply brief. Dodd, 614 F.3d at 515. This claim does "relate back," and it will be
considered on the merits.

C. Claim Related to Expert Witness for Defense

This claim relates to Contreras's expert witness at trial. Dr. Brad Randall.
Contreras claims that trial counsel was ineffective for failing to give the government

notice of Dr. Randall's opinion that hydrocephalus could have been a potential cause
of the brain injury suffered by A.C.(TT 384-396.) That opinion was not disclosed in
Dr. Randall's expert report, and he was not allowed to testify about this theoiy at

trial. {Id.) Contreras also claims that trial counsel should have hired an expert who
would have assisted in his defense instead of helping the government prove their
case.2

2 Dr. Randall predominantly agreed with the facts found in Dr. FrolofFs autopsy report. TT
371. He testified, "I don't believe a single fall can explain everything, all the injuries that were
found at the autopsy." TT 378-79. Dr. Randall agreed, "if the child would have fallen from a
chair of two feet in height, . . . that would not cause [eighteen] subgaleal hemorrhages.'" TT

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Contreras argues that this claim relates back to his Amended § 2255 Petition
based on this allegation in the Petition:
That Mr. Contreras was denied effective assistance of counsel in that his trial

counsel failed to retain and hire an expert in cardiology and forensic
examination who was capable of discerning evidentiary support for heart
failure/heart defect as a cause of death in the medical records that were
actually produced by the Government.
(Civ. Doc. 135, p. 3.)
The main problem with Contreras's argument is that the Amended Petition
does not even mention Dr. Randall, his trial testimony, or hydrocephalus. Alleging
ineffective assistance for failing to hire a cardiology expert does not put the
government on notice of the new claims involving Dr. Randall. This is not the time
to add a factually distinct claim unrelated to trial counsel's failure to hire a
cardiology expert. This claim does not "relate back," and it will not be considered
on the merits.

Judge Kelly in a concurring opinion in Taylor v. United States, 792 F.3d
865, 871-72 (8th Cir. 2015), stated:

I find it important to reiterate that district courts maintain the ability
under Rule 52 to address sua sponte an issue not raised by the petitioner.
If it becomes apparent to the district court during the course of a habeas
proceeding that an error has occurred—an error not previously raised by
the petitioner—and if that error is both plain and affects a substantial
right, the court has the authority to notice it and, if warranted, to provide
relief.

In the many filings in this case, the Court has not seen evidence of error not

previously raised which is both plain and affects a substantial right.
For all of these reasons,
IT IS ORDERED:

1. Within 20 days after receipt of this Order, the government shall file
a supplemental brief addressing the Ramsey County Medical
Examiner's Office claim.

403. Further, Dr. Randall agreed that "three or four blows with the knuckles to the head or
four or five blows could cause these [eighteen] subgaleal contusions." TT 413.
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2. Contreras shall file a responsive brief within 20 days after receipt of
the government's supplemental brief.
3. The government may file a reply brief within 10 days after receipt of
Contreras's response.
Dated this 23rd day of February, 2022.
BY THE COURT:

IdUJLULUiL

llisdJL.

[.awrence L. Piersol
United States District Judge
ATTEST:

THEW W.THELEN. CLERK

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