Walking Eagle v. United States of America
Filing
52
AMENDED ORDER referring case to magistrate judge for evidentiary hearing; granting in part and denying in part 29 Motion to Dismiss; adopting 40 Report and Recommendation; overruling 43 Objection to Report and Recommendation; overruling 44 Objection to Report and Recommendation. Signed by Chief Judge Karen E. Schreier on 6/19/2012. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KEVIN WALKING EAGLE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Civ. 11-5016-KES
AMENDED
ORDER ADOPTING REPORT AND
RECOMMENDATION
Petitioner, Kevin Walking Eagle, filed a pro se motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United States
moves to dismiss Walking Eagle’s § 2255 motion. This court referred the
matter to Magistrate Judge Veronica Duffy for a recommended disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). On January 12, 2012, Magistrate Judge
Duffy submitted her report and recommended that the court dismiss all of
Walking Eagle’s claims except one: his claim that he was denied effective
assistance of counsel under the Sixth Amendment when his attorney failed to
file an appeal as directed. Magistrate Judge Duffy also recommended that this
court hold an evidentiary hearing on that issue and that counsel be appointed
to represent Walking Eagle at the evidentiary hearing. Both Walking Eagle
and the United States filed timely objections to the report and
recommendation.
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1), “when a party objects to the report and
recommendation of a magistrate judge concerning a dispositive matter, ‘[a]
judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection
is made.’ ” United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003)
(quoting 28 U.S.C. § 636(b)(1)); see also Fed. R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate judge's disposition
that has been properly objected to.”). Objections must be timely and specific
in order to require de novo review by the district court. Thompson v. Nix, 897
F.2d 356, 358 (8th Cir. 1990). Because both parties filed timely objections,
the court will review the matters objected to de novo.
BACKGROUND
Walking Eagle was first arrested on October 16, 2008. Walking
Eagle was initially charged with conspiracy to distribute controlled
substances, possession with intent to distribute a controlled substance, and
distribution of a controlled substance. See United States v. Walking Eagle,
CR. 08-50100-01-KES, Docket 1 (CR Docket). Law enforcement then
monitored and recorded telephone calls that Walking Eagle made from the jail
after his initial appearance. These phone calls appeared to be attempts by
Walking Eagle to continue his participation in the drug conspiracy from his
2
location at the jail.1 A superseding indictment was issued approximately three
months later that charged Walking Eagle with conspiracy to distribute
cocaine and marijuana, possession with intent to distribute cocaine,
distribution of cocaine, and engaging in a continuing criminal enterprise. CR
Docket 83.
At Walking Eagle’s initial appearance, the court appointed Robert Van
Norman to represent Walking Eagle. CR Docket 15. Mr. Van Norman
immediately moved the court for the appointment of a paralegal and a private
investigator to assist him in representing Walking Eagle. Those motions were
granted. CR Docket 35.
Slightly over a month later, Walking Eagle then privately retained
attorney Terry Pechota, who made his appearance on Walking Eagle’s
behalf on November 24, 2008, terminating Mr. Van Norman’s representation.
CR Docket 68. Some nine months later, Mr. Pechota’s status as a
privately retained lawyer was converted to that of a court-appointed lawyer at
Mr. Pechota’s request. CR Docket 293 (Sept. 15, 2009).
1
The recordings of these phone calls were introduced as evidence in one
of the many bail review hearings requested by Walking Eagle. They are
filed under seal in CR. 08-50100-01, Docket 130, and were reviewed by
Magistrate Judge Duffy when ruling on the Motion for Reconsideration found at
CR Docket 129.
3
On April 2, 2009, Mr. Pechota filed a motion to suppress evidence on
behalf of Walking Eagle. CR Docket 149. In the motion, Mr. Pechota
sought to suppress the fruits of two search warrants, the contents seized from
a motor vehicle, the results of a drug dog alert to that motor vehicle, and the
previously mentioned telephone calls made by Walking Eagle from the jail.
Id. As to the search warrants, Mr. Pechota argued that: (1) the search
warrants lacked probable cause; (2) the information from confidential
informants was not reliable and could not support probable cause; (3) the
information presented in the affidavit in support of the request for the search
warrant was stale; and (4) the affiant who obtained the search warrants had
included false statements or omitted material information, either intentionally
or with reckless disregard, from his affidavit. Id.
Magistrate Judge Duffy held an evidentiary hearing on Mr. Pechota’s
motion to suppress on September 9, 2009, and Walking Eagle was
present for the hearing. The day after the hearing, a report and
recommendation was filed recommending denial of the motion to
suppress in all respects. CR Docket 189. Magistrate Judge Duffy concluded
that Mr. Pechota had made a sufficient preliminary showing to allow him to
probe the credibility of the search warrant affiant pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). Id. Mr. Pechota cross-examined the affiant
about the veracity of the statements made in the affidavit in support of the
4
search warrant and questioned the affiant as to whether there were any
material misrepresentations or omissions of fact from that affidavit. Id. The
court ultimately rejected Mr. Pechota’s Franks argument. Id. Mr. Pechota then
timely objected to the magistrate judge’s report and recommendation. CR
Docket 199. Mr. Pechota objected to the magistrate judge’s conclusions about
the admissibility of Walking Eagle’s jail phone calls, the fruits of the search
warrant executed on his home, and the search of the motor vehicle. Id. In
objecting to the magistrate judge’s recommendation as to the search
warrants, Mr. Pechota renewed his Franks arguments, asserting that the
affidavits contained false statements or material omissions. Id. Mr. Pechota
specifically argued that the statements in the affidavits tying Walking Eagle to
gang activity were false and without any factual support. Id.
While the objections to the recommended disposition of the suppression
motion were pending, Mr. Pechota filed a number of other motions on
Walking Eagle’s behalf. Among those were a motion to dismiss the indictment,
a motion to sever Walking Eagle’s trial from that of his codefendants, a
motion to compel the government to reveal the identities of its sources of
information and confidential informants, a motion for a change of venue, and
a motion to dismiss the indictment for want of jurisdiction. CR Docket 224,
225, 227, and 228. Among the arguments posited in support of the motion to
dismiss the indictment was an argument that the crime of continuing
5
criminal enterprise in count III of the indictment violated Walking Eagle’s due
process rights because it was too vague and did not allow persons to
determine what conduct was made unlawful by the statute. CR Docket 227.
Before this court ruled on any of these pending motions or on Mr. Pechota’s
objections to the magistrate judge’s recommendation on the suppression
motion, Walking Eagle entered a plea of guilty to the continuing criminal
enterprise count.
A written plea agreement and statement of factual basis were signed by
Walking Eagle and filed on November 17, 2009. Pursuant to the written plea
agreement, Walking Eagle agreed to plead guilty to count III of the
superseding indictment, which charged Walking Eagle with the crime of
knowingly and intentionally engaging in a continuing criminal enterprise in
violation of 21 U.S.C. § 848(a) and (c). See CR Docket 83, 238. Count III of the
indictment charged that Walking Eagle had violated 21 U.S.C. §§ 841(a)(1)
and 846, conspiracy to distribute controlled substances, and that he engaged
in a continuing series of violations of these drug laws from no later than 1999
continuing up through the December 16, 2008, date of the indictment.
CR Docket 83.
The statement of factual basis, which was signed by Walking Eagle,
Mr. Pechota, and the prosecutor, stipulated that in 1998, Walking Eagle was
introduced to drug suppliers in Denver, Colorado, by a man named Joe
6
Valdez. CR. Docket 240. After the introduction, Walking Eagle began
purchasing cocaine from these Denver suppliers and distributing the cocaine
on the Pine Ridge Indian Reservation in the District of South Dakota. Id. He
began doing so at quantities of approximately one-quarter of a pound of
cocaine, but by 2008, Walking Eagle was purchasing three-quarters of a
pound at a time. Id. The statement stipulated that Walking Eagle rarely
transported the cocaine himself, but he would have others take care of that
task. Id. The statement stipulated that Walking Eagle and others recruited
couriers to work for him. Id. Once the details of a purchase were worked out,
Walking Eagle or his brother would provide a vehicle and the contact
information to the couriers. Id. Walking Eagle was exclusively responsible for
providing the money for these drug purchases and his brother was exclusively
responsible for negotiating the terms of the purchase. Id. When the cocaine
arrived, Walking Eagle paid his brother, usually with cocaine. Id. Walking
Eagle would then work with others to break the bulk drugs down into .4-gram
packets that were subsequently then sold as “half grams.” Id. Walking Eagle
would then apportion the packets in bundles of twenty to trusted dealers. Id.
Walking Eagle’s brother took care of paying the couriers. Id.
Under the terms of the written plea agreement, Walking Eagle waived
7
his right to appeal except in two circumstances: (1) if the district court
departed upwards in sentencing him or (2) if there were issues as to the
district court’s jurisdiction. Id. at 238. Walking Eagle also waived all defenses.
Id. The written plea agreement stated that the crime of continuing criminal
enterprise carried a mandatory minimum sentence of 20 years’ imprisonment
(240 months) and a maximum sentence of life imprisonment. Id.
An oral change of plea hearing was held on November 18, 2009, before
the district court. CR Docket 238, 240, 242, and 248. During the hearing,
Walking Eagle was placed under oath. CR Docket 309 at 2. He was advised
that all his testimony, if false, was subject to prosecution for perjury. Id.
Walking Eagle stated that he had gone to school through the eleventh grade
and had obtained his general equivalency diploma. Id. at 3. He denied any
recent treatment for mental illness or for drug or alcohol abuse. Id. Except for
high blood pressure medicine, he denied having recently ingested any drug,
medication, or alcohol. Id. He stated that his high blood pressure medication
did not interfere with his ability to understand what was happening at the
hearing. Id. Walking Eagle told the court that he had received a copy of the
superseding indictment, had read it, and had discussed it with Mr. Pechota.
Id. at 4. Walking Eagle told the court that he was fully satisfied with the
advice and representation that Mr. Pechota had given him. Id. Walking Eagle
also stated that he had read the written plea agreement and had discussed it
8
with Mr. Pechota. He asserted that the terms contained in the written plea
agreement represented–in their entirety–all of the understandings that he had
with the government. Id. He specifically denied that any promises or
assurances had been made to him that were not contained in the written plea
agreement. Id. at 4-5. Walking Eagle told the court that no one had
threatened him or coerced him to get him to accept the plea agreement. Id. at
5. Walking Eagle testified that he was pleading guilty of his own free will
because he was guilty. Id.
With regard to the charge of continuing criminal enterprise, the court
advised Walking Eagle that the minimum term of incarceration for that
offense was 20 years’ imprisonment and that the maximum term of
incarceration was life in prison. Id. at 6. Walking Eagle stated that he
understood those penalties. Id. at 7. Walking Eagle told the court that he
understood that, by pleading guilty, he was giving up his right to appeal
according to the agreement he had signed. Id. at 8. Walking Eagle said he
understood that the only exceptions to this appeal waiver were to raise
jurisdictional questions or to challenge an upward departure if the court
adopted one at sentencing. Id. at 8-9. The court advised Walking Eagle that, if
he pleaded guilty, he would give up his right to a jury trial, his right to be
presumed innocent, his right to make the government prove the charges
against him beyond a reasonable doubt, the right to confront and
9
cross-examine witnesses, his right to put on evidence on his own behalf, and
his right to remain silent. Id. at 9-10. Walking Eagle told the court he
understood what he would be waiving if he pleaded guilty. Id. at 10.
The court advised Walking Eagle of the elements of the offense of
continuing criminal enterprise that the government would have to prove if
Walking Eagle went to trial: that from 1999 through the date of the
indictment, at Pine Ridge, in the District of South Dakota, and elsewhere, he
committed the offense of conspiracy to distribute or to possess with intent to
distribute a controlled substance, distribution of a controlled substance, or
possession with intent to distribute a controlled substance; that the offense
was part of a continuing series of three or more related felony violations of the
federal controlled substance laws; that such offenses were undertaken in
concert with five or more other persons; that he acted as an organizer,
supervisor, or manager of those five or more other persons; and that he
obtained a substantial amount of money or other property from the series of
violations. Id. at 10-11. Walking Eagle told the court that he understood that
the government would have to prove these elements if he went to trial. Id. at
11.
The court then asked Walking Eagle if he had read the statement of
factual basis before he signed it. Id. Walking Eagle stated that he had. Id.
He further told the court that everything in the statement of factual basis was
10
the truth. Id. Walking Eagle then entered a plea of guilty to the charge of
continuing criminal enterprise. Id. The court made a finding that Walking
Eagle was fully competent and capable of entering an informed plea. Id. The
court found that Walking Eagle was aware of the nature of the charges and
the consequences of the plea. Id. The court also found that Walking Eagle’s
plea of guilty was knowing and voluntary and was supported by an
independent basis in fact that contained each of the essential elements of the
offense. Id. at 11-12. Walking Eagle’s plea of guilty was accepted. Id. at 12.
Walking Eagle’s sentencing hearing was scheduled on March 1, 2010. CR
Docket 249.
Five days after entering his plea of guilty pursuant to the plea
agreement, Mr. Pechota filed a motion seeking Walking Eagle’s release
pending sentencing. CR Docket 258. The district court denied the post-plea
motion for release of Walking Eagle. CR Docket 259. Mr. Pechota filed an
appeal of the district court’s denial of his post-plea motion for release to the
Eighth Circuit Court of Appeals. CR Docket 260. The Eighth Circuit denied
the appeal approximately six weeks after the notice of appeal was filed. CR
Docket 265.
Eight days later, Walking Eagle filed a pro se motion with the court
asking the court to remove Mr. Pechota and appoint new counsel for his
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sentencing. CR Docket 267. In his ex parte communication with the court,
Walking Eagle never asked to be allowed to withdraw his plea of guilty. Id.
Walking Eagle specifically requested that the court appoint Ms. Monica
Colbath to represent him. Id. The court granted Walking Eagle’s motion, in
which Mr. Pechota concurred, and appointed Ms. Colbath to represent him.
CR Docket 269, 270.
After the presentence investigation was conducted, a presentence
investigation report (PSI) was given to both the government and to Walking
Eagle and Mr. Pechota, who was still serving as Walking Eagle’s counsel at
the time the PSI was disclosed. Mr. Pechota lodged a number of objections to
the PSI on Walking Eagle’s behalf, and Walking Eagle personally lodged a
number of objections to the PSI himself.
Walking Eagle’s sentencing took place on March 1, 2010, as
scheduled, with Ms. Colbath representing him by this point. See CR Docket
310, Transcript of Sentencing Hearing. At that hearing, Walking Eagle
withdrew all his objections to the PSI except the objection to paragraph 10 of
the PSI. Id. at 2. The lone remaining objection was an objection to the
assertion that Walking Eagle had been a gang member or had been involved
in gang activity. Id. The government, noting that the objection did not have
any effect on the guideline sentencing range, asked the court to sustain
Walking Eagle’s objection and strike paragraph 10 from the PSI. Id. at 3. The
12
court did so. Id. The district court then sentenced Walking Eagle to 20 years’
imprisonment, the minimum term of incarceration allowed for the offense of
continuing criminal enterprise. Id. After imposing sentence, the district court
advised Walking Eagle again that he had given up his right to appeal under
the terms of his plea agreement. Id. at 30. The court nevertheless told
Walking Eagle that, if he thought there remained an appealable issue and he
wanted to appeal, he must file a notice of appeal within 14 days with the
clerk’s office. Id. The court told Walking Eagle that if Ms. Colbath was unable
to help him prepare his notice of appeal, he could contact the clerk’s office
and the clerk’s office would prepare the notice of appeal and file it for him. Id.
Mr. Walking Eagle stated that he understood that he would have to file a
notice of appeal within 14 days with the clerk’s office if he wanted to appeal.
Id. No notice of appeal was filed.
Walking Eagle filed the instant motion to vacate, correct, or set aside
his sentence pursuant to 28 U.S.C. § 2255 on March 3, 2011. In his motion,
Walking Eagle alleges that he received ineffective assistance of counsel, that
his Fifth Amendment due process rights were violated, that his Sixth
Amendment confrontation rights were violated, and that his right to equal
protection of the laws under the Fifth Amendment was violated. Walking
Eagle’s ineffective assistance of counsel claim is predicated on several
grounds: (1) that his attorney failed to file a notice of appeal when directed;
13
(2) that his attorney permitted him to plead guilty when there was an
insufficient factual basis for his plea; (3) that his attorney allowed the
prosecutor to harass him, and (4) that his attorneys, collectively, failed to
have a “coherent strategy.” Magistrate Judge Duffy recommended that all of
Walking Eagle’s claims be dismissed, except for his claim that he received
ineffective assistance of counsel when his attorney failed to file a notice of
appeal.
DISCUSSION
I.
Walking Eagle’s Factual Objections
The court will first address Walking Eagle’s factual objections to
Magistrate Judge Duffy’s report and recommendation. Walking Eagle first
objects to Magistrate Judge Duffy’s characterization of his phone calls from
the jail as “attempts to continue his participation in the drug conspiracy” and
argues that it should not be included in the court’s order unless he is
permitted to brief the issue. Walking Eagle also asserts that the phone calls
are not pertinent to his § 2255 motion. Whether Walking Eagle’s phone calls
were attempts to continue his participation in the drug conspiracy is
irrelevant to the resolution of the claims contained in his § 2255 motion. But
the record supports Magistrate Judge Duffy’s characterization of the phone
calls. See CR Docket 130 (recordings of phone calls). Thus, Walking Eagle’s
objection is overruled.
14
Walking Eagle next objects that the summary of the facts does not
include certain arguments made in the motion to dismiss and for severance.
Docket 43 at 1-2. Specifically, Walking Eagle asserts that his attorney argued
that “the manner in which the counts are phrased, the activities and conduct
could have commenced at some earlier time than 1999" and that the counts
should be severed because “there are some counts that defendant [Walking
Eagle] would testify on, but not others, forcing him to make a difficult choice
of testifying to all or none.” Id. Magistrate Judge Duffy’s summary did not
purport to reiterate all of the arguments made in the motion. Because
Walking Eagle pleaded guilty before the court could rule on the motion to
dismiss and motion to sever, the district court did not rule on the motions.
The arguments contained therein are irrelevant to this court’s resolution of
Walking Eagle’s § 2255 claims. Thus, this objection is overruled.
Walking Eagle objects “to the Report and Recommendation’s inference
that the alleged continuing criminal enterprise began ‘no later than 1999.’ ”
Docket 43 at 2. Walking Eagle contends that “the Factual Basis Statement
agreed to by the Government specifically represents that the alleged
enterprise began prior to 1999[.]” Id. The report and recommendation later
clarifies that Walking Eagle was introduced to drug suppliers in 1998. See
Docket 40 at 6. Thus, Walking Eagle’s objection is overruled.
15
Walking Eagle next objects that the report and recommendation
misquotes the factual basis statement. Docket 43 at 2. Specifically, he states
that the report and recommendation asserts that Walking Eagle and others
recruited drug couriers, but that the factual basis statement states that
Walking Eagle’s brother, Ken Walking Eagle, recruited the couriers. Id. The
factual basis statement does state that Ken Walking Eagle recruited the
couriers. CR Docket 240. Thus, Walking Eagle’s objection is granted and the
report and recommendation will be amended to reflect this change.
II.
Walking Eagle’s Legal Objections
A.
Ineffective Assistance of Counsel for Allowing Plea
Walking Eagle objects to Magistrate Judge Duffy’s conclusion that his
attorney was not ineffective for allowing him to plead guilty to continuing
criminal enterprise when there was an insufficient factual basis for this plea.
The elements of 21 U.S.C. § 848, the continuing criminal enterprise
statute, are met if the defendant commits: (1) a felony violation of the federal
narcotics laws; (2) as part of a continuing series of [three or more related
felony] violations [of federal narcotics laws]; (3) in concert with five or more
[other] persons; (4) for whom the defendant is an organizer [, manager] or
supervisor; (5) from which he derives substantial income or resources. United
States v. Jelinek, 57 F.3d 655, 657 (8th Cir.1995). Walking Eagle does not
object to Magistrate Judge Duffy’s finding that his conduct satisfies the first,
16
second, third, and fifth elements of § 848. Thus, the only issue is whether his
conduct meets the organizer, manager, or supervisor element.
“[T]he basic elements of the . . . management element have been
liberally construed.” United States v. Roley, 893 F.2d 992, 994 (8th Cir. 1990)
(citations omitted). This element is satisfied if “the defendant exerted some
type of influence over another individual as exemplified by that individual’s
compliance with the defendant’s directions, instructions, or terms.” United
States v. Possick, 849 F.2d 332, 335 (8th Cir. 1988). But “a mere buyer-seller
relationship is not sufficient to satisfy the management element.” United
States v. Jackson, 345 F.3d 638, 646 (8th Cir. 2003). Walking Eagle now
contends he was a mere seller of drugs.
The factual basis statement, however, demonstrates otherwise. The
factual basis statement specifies that Walking Eagle would contact the
suppliers in Denver and then have his brother transport or arrange for the
transportation of the drugs from Denver to Pine Ridge. CR Docket 240. When
the couriers left the reservation, either Walking Eagle or his brother would
obtain a vehicle and provide the couriers with the necessary contact
information. Id. Walking Eagle would provide the money for the runs. Id.
When the drugs arrived, Walking Eagle would break them down and parcel
them out to a number of trusted dealers. Walking Eagle instructed his dealers
17
to sell the drugs for $50 per half-gram. Id. These facts demonstrate that
Walking Eagle was more than a mere seller of drugs.
In United States v. Vasquez, 552 F.3d 734, 738 (8th Cir. 2009), the
Court of Appeals for the Eighth Circuit affirmed a district court’s finding that
a defendant was a manager of a methamphetamine ring because there was
testimony that the defendant would set the price of the drugs based on their
quality and quantity and tell the coconspirator where to meet him. In United
States v. Gaines, 639 F.3d 423, 429 (8th Cir. 2011), the court affirmed a
finding that a defendant was a manager or organizer because he
manufactured the drug to be distributed, distributed the end product to
others, at a price he set, for redistribution in smaller quantities. In Gaines,
the defendants’ “primary enterprise responsibilities included dividing,
preparing, packaging, and distributing cocaine to lower distributors and
sellers.” Id. at 427. Here, Walking Eagle admitted to contacting suppliers in
Denver, arranging for vehicles for the drug couriers, breaking the drug down
into smaller quantities for resale, and setting the sales price of the smaller
quantities. On these facts, the court cannot conclude that there was an
insufficient factual basis for his plea. Because the court finds there was a
sufficient factual basis for his plea, Walking Eagle’s attorney’s performance
cannot have been deficient. Consequently, Walking Eagle’s claim that he
received ineffective assistance of counsel because his attorney allowed him to
18
plead guilty to continuing criminal enterprise when there was an insufficient
factual basis for the guilty plea fails.
B.
Ex Post Facto Claim
Walking Eagle next contends that the report and recommendation did
not address his allegations that his attorney failed to investigate “when the
alleged continuing criminal enterprise began, and then improperly advised
Petitioner that the mandatory minimum in Petitioner’s case was twenty and
not ten years.” Docket 43 at 8. The report and recommendation did address
this claim, and noted that Walking Eagle did not raise this claim in his § 2255
motion or in his memorandum in support of his motion. Nor did Walking
Eagle move to amend his motion to add this claim. Rather, Walking Eagle
attempts to assert an ex post facto claim in his brief opposing the United
States’ motion to dismiss. See Docket 39 at 1. In his objections to the report
and recommendation, Walking Eagle also couches this claim in terms of
ineffective assistance of counsel. Neither of these claims is properly before the
court. Thus, Walking Eagle’s objections are overruled.
Even if Walking Eagle’s claim were before this court, he would not be
entitled to relief. Walking Eagle asserts that he received ineffective assistance
of counsel because his attorney did not investigate whether Walking Eagle
began distributing drugs before the date alleged in the indictment. According
to Walking Eagle, he has been distributing drugs since 1986. The mandatory
19
minimum sentence for a violation of 28 U.S.C. § 848 was changed from ten
years to twenty years on November 18, 1988, two years after Walking Eagle
alleges he began his “continuous distribution of narcotics on the reservation.”
Docket 43 at 9. Thus, Walking Eagle reasons the mandatory minimum
sentence should be ten years, rather than twenty years, because the statute
“was violated both before and after the enactment of the 1988 statutory
mandatory minimum penalty change.” Id. Based on this reasoning, Walking
Eagle contends that his present sentence violates the ex post facto clause,
and he asserts that he received ineffective assistance of counsel.
The ex post facto clause generally prohibits the retroactive application
of a criminal statute that changes the legal consequences for a crime after it
was committed. Miller v. Florida, 482 U.S. 423, 430 (1987). “Two elements
must be met before legislation violates the ex post facto clause: (1) the
legislation in question must apply to events occurring before its enactment;
and (2) the offender affected by the legislation must be disadvantaged.” United
States v. Mueller, 661 F.3d 338, 345 (8th Cir. 2011) (citing United States v.
Chandler, 66 F.3d 1460, 1467 (8th Cir. 1995)). Walking Eagle asserts that
elements of the crime of continuing criminal enterprise occurred both before
and after the statute was amended.
“ ‘An offense is committed when it is completed, that is, when each
element of that offense has occurred.’ ” United States v. Gonzalez, 495 F.3d
20
577, 580 (8th Cir. 2007) (quoting United States v. Yashar, 166 F.3d 873, 875
(7th Cir. 1999)). Here, Walking Eagle stipulated that every element necessary
to prove the crime of continuing criminal enterprise occurred after the
amendment to the statute. See CR Docket 240, Statement of Factual Basis.
Thus, there has been no ex post facto violation. See Mueller, 661 F.3d at 346
(holding that there was no ex post facto violation where the “conduct essential
to completing the crime and proving the murder-for-hire scheme . . . occurred
after the amendment . . . took effect.”); United States v. Zimmer, 299 F.3d 710,
718 (8th Cir. 2002) (holding that there was no ex post facto violation where
evidence showed that defendant continued to participate in drug conspiracy
after the amendment of the sentencing guidelines to produce a harsher
sentence). Because no ex post facto violation occurred, Walking Eagle’s
attorney’s performance was not deficient. Thus, the court need not consider
whether Walking Eagle was prejudiced. See Strickland v. Washington, 466
U.S. 668, 697 (1984) (“[T]here is no reason for a court deciding an ineffective
assistance claim to . . . address both components of the inquiry if the
defendant makes an insufficient showing on one.”).
III.
The United States’ Objection
The United States objects to Magistrate Judge Duffy’s conclusion that
Walking Eagle is entitled to an evidentiary hearing on his claim that he
received ineffective assistance of counsel when his attorney failed to file an
21
appeal when instructed. Walking Eagle asserts that he asked his attorney,
Monica Colbath, to appeal. See Docket 1 at 5 (“My attorney failed to file a
direct appeal when asked). Ms. Colbath states that Walking Eagle never
indicated that he wanted to appeal. See Docket 32-1, Affidavit of Monica
Colbath, at ¶ 10. Magistrate Judge Duffy found that this resulted in “a classic
credibility conflict which this court believes requires an evidentiary hearing to
resolve.” Docket 40 at 27. The United States objects to this conclusion and
argues that Walking Eagle’s claim is contrary to the evidence in the record.
A § 2255 petitioner is entitled to an evidentiary hearing on his claim
“[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). But a
petitioner must “allege facts which, if true, would entitle him to relief; merely
stating unsupported conclusions will not suffice.” Woods v. United States, 567
F.2d 861, 863 (8th Cir. 1978) (per curiam).
In Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007), the
Eighth Circuit Court of Appeals held that a § 2255 petitioner was entitled to
an evidentiary hearing on his claim that his attorney failed to file an appeal
when directed to do so on his behalf. There was “no evidence in the record to
contradict Watson’s assertion that he requested an appeal.” Id. “Although the
district court was not required to credit [petitioner’s] assertion, it was
required to hold a hearing before making factual determinations about
22
[petitioner’s] credibility.” Id. (internal citations omitted). But the court has
also held that “[a] bare assertion by the petitioner that he made a request is
not by itself sufficient to support a grant of relief, if evidence that the factfinder finds to be more credible indicates the contrary proposition.” Barger v.
United States, 204 F.3d 1180, 1182 (8th Cir. 2000).
The United States contends that the affidavit from Ms. Colbath
conclusively shows that Walking Eagle is not entitled to relief and
characterizes his claim as a “bare assertion.” Docket 44 at 4-5. Walking Eagle
argues that he is entitled to an evidentiary hearing because the telephone call
in which he alleges he instructed Ms. Colbath to file an appeal occurred
outside the record of the court. Docket 46 at 3.
“Whenever the written record is ‘inconclusive’ on whether a defendant
told his attorney to file an appeal an evidentiary hearing should be held.”
United States v. Robinson, 171 Fed. App’x 536, 537 (D. Minn. 2006) (citing
Holloway v. United States, 960 F.2d 1348, 1357 (8th Cir. 1992) and GomezDiaz v. United States, 433 F.3d 788 (11th Cir. 2005)). See also Emery v. United
States, No. 1:11CV00013, 2011 WL 5553776 at * 8 (E.D. Mo. Nov. 15, 2011)
(“A hearing is generally required to resolve the factual issue of whether the
petitioner in a Section 2255 proceeding had directed his trial counsel to file
an appeal.”). But see Rodriguez v. United States, 964 F.2d 840, 840-42 (8th
Cir.1992) (per curiam) (affirming the denial of a section 2255 motion without
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an evidentiary hearing because the bare assertion that an appeal was
requested was “plainly inadequate” in the face of an affidavit by the
defendant's attorney, which was corroborated by a letter, denying that the
defendant asked the attorney to file an appeal); Sanguino v. United States, No.
07-4057, 2009 WL 2922038 at *6 (N.D. Iowa Sept. 8, 2009) (dismissing claim
without an evidentiary hearing because petitioner “offer[ed] no evidence to
support her claim other than her self-serving testimony” and the court found
that the statement of her attorney was “more credible”). Because the
telephone call in which Walking Eagle asserts he told his attorney to file an
appeal is outside the written record, Walking Eagle is entitled to an
evidentiary hearing. Therefore, it is
ORDERED that Walking Eagle’s objections (Docket 43) and the United
States’ objections (Docket 44) are overruled.
IT IS FURTHER ORDERED that the report and recommendation
(Docket 40) is adopted as amended by this order, and the United States’
motion to dismiss (Docket 29) is granted in part and denied in part.
IT IS FURTHER ORDERED that this matter is referred to Magistrate
Judge Veronica Duffy for an evidentiary hearing pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Rule 8 of the Rules Governing Section 2255 Proceedings for
the United States District Courts. Magistrate Judge Duffy is directed to
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appoint counsel to represent Walking Eagle at the hearing. Magistrate Judge
Duffy will also address the discovery issues raised in Docket 50.
Dated June 19, 2012.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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