Walking Eagle v. United States of America
Filing
69
ORDER denying petition for writ of habeas corpus; adopting 64 Report and Recommendation; overruling 67 Objection to Report and Recommendation, and granting certificate of appealability. Signed by Chief Judge Karen E. Schreier on 10/23/2012. (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
ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
Petitioner, Kevin Walking Eagle, filed a petition for relief under 28 U.S.C.
§ 2255 on March 3, 2011. Docket 1. The court referred the petition to United
States Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B)
for the purposes of conducting any necessary hearings, including evidentiary
hearings, and issuing a report and recommendation for the disposition of
Walking Eagle’s § 2255 application. Docket 16.
On August 23, 2011, the government filed a motion to dismiss Walking
Eagle’s habeas application on substantive grounds. Docket 10. After several
extensions, Walking Eagle responded in opposition to the motion on
December 5, 2011. Docket 39. On January 12, 2012, Magistrate Judge Duffy
issued a report recommending the dismissal of all but one of Walking Eagle’s
claims. Docket 40. On the remaining claim–ineffective assistance of counsel
under the Sixth Amendment–Magistrate Judge Duffy recommended that an
evidentiary hearing be held to determine whether Walking Eagle’s attorney,
Monica Colbath, violated his constitutional rights when she failed to appeal
Walking Eagle’s sentence. Id. Both parties filed objections to the magistrate
judge’s determinations. Docket 43, 44. On June 18, 2012, the district court
adopted Magistrate Judge Duffy’s report and recommendation and referred the
case back to the magistrate judge 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. Docket 51. The district court
also directed the magistrate judge to appoint counsel to represent Walking Eagle
at the evidentiary hearing. Id.
An evidentiary hearing was held on July 25, 2012, at which both Walking
Eagle and attorney Colbath testified. Docket 65. The following day, on July 26,
2012, Magistrate Judge Duffy submitted the Report and Recommendation
currently under consideration. Docket 64. In her report, Magistrate Judge Duffy
recommended that the government’s motion to dismiss Walking Eagle’s
remaining claim (Docket 29) be granted and Walking Eagle’s remaining claim for
habeas relief based on counsel’s alleged failure to appeal be dismissed. Id. On
August 13, 2012, Walking Eagle filed timely objections to the Report and
Recommendation. Docket 67. For the reasons set forth herein, Magistrate Judge
Duffy’s Report and Recommendation is adopted.
2
DISCUSSION
The court’s review of the magistrate judge’s decision is governed by 28
U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Pursuant to 28
U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely made
and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine de
novo any part of the magistrate judge’s disposition that has been properly
objected to.”). In the instant case, Walking Eagle objects to Magistrate Judge
Duffy’s findings that (1) Walking Eagle did not instruct Colbath to file an appeal,
(2) Colbath had a “detailed discussion” about an appeal with Walking Eagle
before sentencing, and (3) Colbath satisfied the consulting requirement. Docket
67.
The court has reviewed the transcript of the evidentiary hearing that was
held on July 25, 2012. Docket 65. Based on the testimony provided therein and
the facts recited in Magistrate Judge Duffy’s Report and Recommendation, it is
evident that Walking Eagle and Colbath are in agreement on the details of
Colbath’s appointment and the relevant portion of events leading up to Walking
Eagle’s sentencing hearing. Docket 64, 65. Colbath was appointed to represent
Walking Eagle at Walking Eagle’s specific request in February 2010. Docket 65
at 19:22–20:3; 32:8–9. In the weeks leading up to Walking Eagle’s sentencing
hearing, Colbath met with Walking Eagle several times to discuss the history of
his case and the details of his plea and upcoming sentencing. Id. at 10:3–8;
3
20:4–7, 19–23; 21:7–9; 32:15–17; 32:20–33:3. Colbath also researched Walking
Eagle’s questions regarding the possibility of withdrawing his plea, and she
provided him with answers that explored the advantages and disadvantages of
taking such action. Id. at 33:6–13.
On March 1, 2010, the district court sentenced Walking Eagle to the
mandatory minimum term of 240 months’ imprisonment and five years of
supervised release.1 Case No. CR. 08-50100 Docket 278. At that hearing,
Walking Eagle confirmed that he understood the requirements of the appeal
process. The judge asked Walking Eagle whether he understood that he had
fourteen (14) days within which to appeal his sentence, and Walking Eagle said,
“Yes.” Docket 65 at 28:20–24. Furthermore, Walking Eagle was advised that in
the event he wanted to appeal his sentence and Colbath was unable to assist
him, he could contact the clerk of court’s office to have them prepare and file a
notice of appeal on his behalf. Id. at 28:16–20. The district court entered
judgment on March 2, 2010 (Case No. CR. 08-50100 Docket 285), and Walking
Eagle did not file a notice of appeal.
The events that transpired in the days following Walking Eagle’s
sentencing hearing are in dispute. According to Walking Eagle, he was unable to
consult with Colbath immediately after the sentencing hearing, and so he called
1
Walking Eagle pleaded guilty to participating in a continuing criminal
enterprise. Case No. CR. 08-50100 Docket 248.
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her later that same evening to determine whether he “had anything to appeal.”
Docket 65 at 12:4. Walking Eagle alleges that he “basically” told Colbath that he
wanted to appeal.2 Id. at 12:12. On March 3, 2010, Colbath visited Walking
Eagle at the Pennington County Jail to deliver paperwork and discuss whether
Walking Eagle wanted to appeal. Id. at 14:15–21, 24–25. Without discussing
information related to the advantages and disadvantages of pursuing an appeal,
Colbath told Walking Eagle that “the thing3 you wanted to appeal got rejected in
the Eighth Circuit.”4 Id. at 15:1–2, 15–18. Assuming all the doors were closed,
Walking Eagle ended the conversation.5 Id. at 15:5–11.
2
Walking Eagle asserts that he intended to direct Colbath to file an
appeal and “basically” told her, “I want to appeal.” Docket 65 at 12:5–6, 11–13.
When specifically prompted, Walking Eagle later claims that he had told
Colbath, “I want to appeal.” Id. at 24:17.
3
Prior to sentencing and during the various meetings between Walking
Eagle and Colbath, Walking Eagle had asked about jurisdictional issues and
the effect of the 1868 Fort Laramie Treaty. Docket 65 at 34:12–13; 40:23–24.
4
As Magistrate Judge Duffy pointed out, Walking Eagle does not claim to
have unequivocally insisted on an appeal after receiving the information from
Colbath that the jurisdictional issue had been previously rejected by the Eighth
Circuit. Docket 64 at 4.
5
Walking Eagle admits that Colbath “did not explain nothing [sic],
because [he] left.” Docket 65 at 15:11–12; see also Docket 65 at 25:18–20. He
later states that, after Colbath allegedly told him that the Eighth Circuit had
rejected the type of appeal he was contemplating, he walked out of the room.
Id. at 27:11–16. He did not ask her any further questions because he did not
realize he was supposed to. Id. at 27:23–25.
5
Walking Eagle allegedly attempted to contact Colbath by telephone on
March 5, 2010, to discuss an appeal, but Walking Eagle does not remember
whether he actually talked to Colbath on that occasion. Docket 65 at 13:13–18;
14:1–4. Shortly thereafter, on March 7, 2010, Walking Eagle was transported out
of the Pennington County Jail, and he neither contacted nor saw Colbath again
before his appeal period expired on March 16, 2010.6 Id. at 16:25–17:5. Walking
Eagle admits that Colbath never refused to file an appeal on Walking Eagle’s
behalf, and that he did not attempt to contact the clerk’s office to request that a
notice of appeal be prepared and filed on his behalf. Id. at 28:25–29:5.
Colbath, on the other hand, alleges that Walking Eagle never explicitly
indicated a desire to appeal his sentence. In fact, Colbath claims that
immediately after the sentencing hearing concluded, Walking Eagle did not
express an interest in appealing the sentence, but rather was concerned about
setting up a contact visit with his mother. Docket 65 at 35:6–17. When Walking
Eagle contacted Colbath later that evening, he remained primarily concerned
with setting up a contact visit with his family. Id. at 35:18–36:1. Colbath does
6
Walking Eagle wrote letters to Colbath after his appeal deadline passed.
Docket 65 at 18:1–12. In those letters, however, Walking Eagle never referred
to the prospect of an appeal. Id. Rather, he requested help with unrelated
issues such as child support, and at one point, Colbath informed Walking
Eagle of the availability of other avenues of relief. Id. at 18:7–12; 38:15–16. In
fact, Colbath sent Walking Eagle information about filing for habeas relief
under 28 U.S.C. § 2255, the very avenue he is now using to allege that Colbath
failed to provide him with sufficient legal assistance. Id. at 18:12; 38:14–15.
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not recall Walking Eagle saying anything about an appeal in their phone
conversation that evening. Id. at 36:5. Had Walking Eagle told Colbath that he
wanted to appeal, Colbath asserts that she would have filed an appeal because
she was obligated to protect Walking Eagle’s interests. Id. at 36:6–7, 11–16.
When Colbath visited Walking Eagle on March 3, 2010, she discussed the
conditions included in Walking Eagle’s judgment of conviction and asked him
whether he wanted to pursue an appeal. Docket 65 at 36:24–37:3. In response,
Walking Eagle allegedly stated, “Don’t file it.”7 Id. at 37:4–6. During that same
meeting, Colbath addressed Walking Eagle’s “chances of winning” and “what the
research showed.” Id. at 37:7–12. Moreover, she “may have said something about
the Eighth Circuit [having] looked at this [type of appeal] and reject[ing] it before.”
Id. at 37:19–20. Colbath asserts that she left “the decision . . . up to [Walking
Eagle],” and never refused to file an appeal.8 Id. at 37:12; 38:4–6; 42:24–43:3;
43:9–11. Finally, Colbath points out that in the various letters Walking Eagle
7
Colbath later indicates that when clients say they don’t want to pursue
an appeal, she does not take any further action on the matter. Docket 65 at
46:13–16. “If that’s what they say, then that’s what I do or don’t.” Id. at
46:16–17.
8
Colbath also points out that it would have been financially
advantageous for her to file an appeal on Walking Eagle’s behalf; that while she
had something to gain by filing an appeal, she certainly had nothing to lose.
Docket 65 at 38:13–25. Colbath had advised clients in Walking Eagle’s
situation before, and when such clients expressed a desire to file an appeal,
Colbath filed an appeal. Id. at 45: 21–22.
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sent to her after his appeal deadline had passed, he never once mentioned
having wanted to file an appeal. Id. at 39:3–6.
It is with these facts that the court considers Walking Eagle’s objections to
Magistrate Judge Duffy’s Report and Recommendation. Walking Eagle first
objects to the magistrate judge’s finding that Walking Eagle did not instruct
Colbath to file an appeal. Docket 67 at 5. Walking Eagle asserts that, because he
specifically recalled making a request for an appeal, and because Colbath could
not recall whether a specific request was made, Walking Eagle’s testimony
should be given credence. Id. Accordingly, Walking Eagle asserts that the court
should reject the magistrate judge’s finding and conclude that Colbath’s failure
to file an appeal on Walking Eagle’s behalf amounted to ineffective assistance of
counsel. Id. at 6.
Typically, an ineffective assistance of counsel claim involves a two-part
inquiry. First, a petitioner must show that counsel’s performance was deficient;
“that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Second, a petitioner “must show that the
deficient performance prejudiced the defense.” Id. In the context of an attorney’s
alleged failure to file a notice of appeal, however, prejudice need not be shown.
Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000). “[A]n attorney’s
failure to file a notice of appeal after being instructed to do so by his client
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constitutes ineffective assistance entitling petitioner to section 2255 relief.” Id.
Consequently, for an ineffective assistance of counsel claim to succeed in the
failure-to-appeal context, Walking Eagle must show that he instructed Colbath
to file an appeal. Id. “A bare assertion by the petitioner that [he or] she made a
request is not by itself sufficient to support a grant of relief, if evidence that the
fact-finder finds to be more credible indicates the contrary proposition.” Id.
In the instant case, Walking Eagle and Colbath gave conflicting testimony
at the evidentiary hearing–Walking Eagle claims that he specifically requested, in
a phone conversation, that Colbath file an appeal, but Colbath does not recall
having had such an exchange over the phone. Docket 65 at 24:15–17; 35:22–24.
To resolve the issue, Magistrate Judge Duffy assessed the credibility of each
party and found that the testimony of Colbath was more credible than Walking
Eagle’s testimony. Docket 64 at 8. In arriving at such a determination, the
magistrate judge cited Colbath’s experience as a criminal defense attorney, her
familiarity with the appeals process, and the fact that Colbath had no reason not
to file an appeal considering it would have been to her financial advantage. Id.
The magistrate judge also concluded that Colbath’s testimony was bolstered by
“the fact that Mr. Walking Eagle never mentioned an appeal in any of the letters
he sent Ms. Colbath after the appeal period had expired.” Id. The court finds
these facts in support of Colbath’s credibility similarly compelling.
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Also compelling is the undisputed evidence that Colbath never explicitly
refused to file an appeal on Walking Eagle’s behalf, nor did Walking Eagle
attempt to contact Colbath in the ten days leading up to his appeal deadline to
discuss an appeal. Docket 65 at 28:25–29:2; 16:25–17:2; see also Barger, 204
F.3d at 1182 (affirming the district court’s adoption of a report and
recommendation, which found that “any reasonable person concerned with
losing [his or] her appeal” would have made “an effort to follow-up with [his or]
her attorney before the time limit expired”). Furthermore, Walking Eagle readily
admits that he never attempted to contact the clerk’s office for assistance with
preparing and filing a notice of appeal (Docket 65 at 29:3–5), which was an
available measure about which he had full knowledge (Docket 65 at 28:13–24).
Based on these facts, the court concludes that Walking Eagle’s bare assertion
that he requested an appeal is not sufficient to support a grant of relief.
Accordingly, the court adopts the magistrate judge’s finding that Walking Eagle
did not instruct Colbath to file a notice of appeal.
Walking Eagle’s second and third objections to the Report and
Recommendation can be taken together. Walking Eagle objects to the magistrate
judge’s finding that Colbath had a detailed discussion with Walking Eagle prior
to his sentencing hearing and thus fulfilled her duty to consult Walking Eagle
about an appeal. Docket 67 at 7–9. Walking Eagle asserts that Colbath failed to
sufficiently advise Walking Eagle about the advantages and disadvantages of
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taking an appeal, and thus she violated the constitutionally imposed duty to
consult. Id. at 9.
The Constitution does not impose a per se duty to consult. Roe v. FloresOrtega, 528 U.S. 470, 480 (2000). As the United States Supreme Court has
made clear: “imposing ‘specific guidelines’ on counsel is ‘not appropriate.’ ” Id. at
479 (quoting Strickland, 466 U.S. at 688). Instead, the requirement imposed by
the Sixth Amendment is that “counsel make objectively reasonable choices.” Id.
The Supreme Court applied this standard to the context of advising on an appeal
and held that
counsel has a constitutionally imposed duty to consult with the
[client] about an appeal when there is reason to think either (1) that
a rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel that he was
interested in appealing.
Id. To demonstrate situations in which the duty to consult would not apply, the
Supreme Court offered the following illustrations:
[S]uppose that a defendant consults with counsel; counsel advises
the defendant that a guilty plea probably will lead to a 2 year
sentence; the defendant expresses satisfaction and pleads guilty; the
court sentences the defendant to 2 years' imprisonment as expected
and informs the defendant of his appeal rights; the defendant does
not express any interest in appealing, and counsel concludes that
there are no nonfrivolous grounds for appeal. Under these
circumstances, it would be difficult to say that counsel is
“professionally unreasonable” as a constitutional matter, in not
consulting with such a defendant regarding an appeal. Or, for
example, suppose a sentencing court's instructions to a defendant
about his appeal rights in a particular case are so clear and
informative as to substitute for counsel's duty to consult. In some
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cases, counsel might then reasonably decide that he need not repeat
that information.
Id. at 479–80 (internal citations omitted).
In the instant case, Colbath did not have an affirmative duty to
consult–not only did this court provide clear and informative instructions to
Walking Eagle about his appeal rights, but the court cannot conclude that
Colbath was “professionally unreasonable” in not pursuing an appeal given the
circumstances. And even if Colbath did have an affirmative duty to consult, she
fulfilled that duty. It is undisputed that, prior to Walking Eagle’s sentencing
hearing, Colbath discussed with Walking Eagle the advantages and
disadvantages of filing an appeal. Docket 65 at 17:18–20; 36:24–37:3. Moreover,
it is undisputed that Colbath visited Walking Eagle two days after his sentencing
hearing to deliver paperwork and speak with him about filing an appeal. Id. at
14:22–24; 36:24–37:3. During this time, Walking Eagle had the opportunity to
ask questions of Colbath, but instead, he cut the conversation short and walked
out of the meeting. Id. at 27:4–25.
Therefore, whether or not Colbath had an affirmative duty to consult, the
court finds that Colbath made objectively reasonable choices in discussing with
Walking Eagle the ramifications of an appeal prior to the sentencing hearing and
in making herself available after the sentencing hearing to answer any of
Walking Eagle’s questions regarding the conditions of his judgment and the
12
possibility of an appeal. Accordingly, the court adopts the magistrate judge’s
finding that Colbath fulfilled her duty to consult.
Therefore, it is
ORDERED that Magistrate Judge Duffy’s Report and Recommendation
(Docket 64) is adopted. Respondent’s motion is to dismiss (Docket 29) is
therefore granted, and Walking Eagle’s remaining claim for habeas relief is
dismissed.
IT IS FURTHER ORDERED that a certificate of appealability is issued on
Walking Eagle’s ineffective assistance of counsel issue for failure to file a notice
of appeal only.
Dated October 23, 2012.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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