Long v. United States of America
ORDER granting 9 Motion to Dismiss. A certificate of appealability is issued. Signed by U.S. District Judge Karen E. Schreier on 5/19/16. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
GILLMAN RODDY LONG,
a/k/a Dave Gillman Long,
MOTION TO DISMISS
UNITED STATES OF AMERICA,
Petitioner, Gillman Roddy Long, moves to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Docket 1. The government opposes the
motion and moves to dismiss. Docket 9. For the following reasons, the court
grants the government’s motion and dismisses Long’s § 2255 motion.
Long was indicted in the United States District Court for the District of
South Dakota, Western Division, on July 21, 2009. USA v. Long, 09-CR-50051
(“CR Docket”) 4. The case was tried to a jury, and Long was found guilty of two
counts of Aggravated Sexual Abuse. CR Docket 212. Long was represented at
trial by Monica Colbath.
The victim, AP, testified at trial that Long sexually abused her while she
was living with her aunt Brenda, Long’s girlfriend, and Long. Docket 1 at 4. AP
testified that Long abused her approximately 40 to 45 times. CR Docket 287 at
17. She testified that she told numerous people about Long’s abuse, many
before she reported the abuse to law enforcement. CR Docket 269 at 3-4. TE,
Long’s stepdaughter, also testified that Long abused her over many years. Id. at
10. The jury saw all the witnesses testify at trial and determined they were
The government called FBI agent Sherry Rice to testify during its case-inchief. Docket 1 at 12. She interviewed Long during her investigation into the
abuse of AP. Id. Agent Rice testified that Long described an incident to her
where AP rubbed her breasts on Long’s back, and Long pushed her away from
him. Id. at 12-13. She also testified that when she told Long that she wanted
to “concentrate on the sexual contact between” Long and AP, he responded, “I
do not want to incriminate myself. I would like to stop talking.” Id. at 13.
Colbath did not object to this testimony. Id.
During the cross-examination of Agent Rice, Colbath asked her several
questions about the meaning of Long’s statement. Id. at 13-14. Agent Rice
responded that the meaning of Long’s statement was clear to her, i.e., that
Long meant that he had sexually abused AP. Id. at 14. On re-direct
examination, the government again asked Agent Rice about Long’s response to
her question about what happened between AP and him, and Agent Rice agreed
that Long said he did not want to incriminate himself. Id. at 15.
The government also referenced Long’s statement in its closing
argument. The government stated, “ ‘I don't want to incriminate myself.’ That
was what Gillman Long said to Agent Sherry Rice when she asked him about
sexual contact between him and [AP] ... What was his response? ‘I don't want
to incriminate myself.’ ” Id. Colbath did not object to this. Id. at 16. After again
pointing out that Long ended the interview with Agent Rice by saying he did not
want to incriminate himself, the government stated, “We are asking you not to
leave your common sense at the door. If somebody doesn't want to incriminate
themselves, it means any sort of statement as to that topic that they are being
asked for would get them in trouble.” Id. Colbath did not object.
Long did not testify at trial. Id. at 1. Colbath did object to the
government stating in its closing argument that Long did not say “I didn’t do
it.” Id. at 15. The government clarified during its closing argument that the jury
could not hold Long’s decision not to testify against him. Id.
After Long was found guilty, he moved to vacate the judgment and
requested a new trial. CR Docket 273. The court held that the government’s
use of Long’s statement did not violate his Fifth Amendment rights because he
had not been arrested and was under no compulsion to speak. CR Docket 287
at 15. Therefore, Colbath could not be ineffective in her failure to object to the
government’s use of the statement. Id. The court also found that Long could
not show prejudice because overwhelming evidence supported his guilt, and he
could not prove Colbath’s actions were not sound trial strategy. Id. at 23. The
court denied Long’s motion. Long was sentenced to life imprisonment. CR
Long appealed his conviction. On appeal, he argued:
(1) the use of his ‘incriminate myself’ statement by the government
in its case-in-chief as a confession to the crime violated the Fifth
Amendment because the statement was made in an effort to invoke
his Fifth Amendment right to remain silent after he had agreed to
answer Agent Rice's questions, (2) the district court plainly erred in
not finding prosecutorial misconduct when the government
referenced Long's decision not to testify at trial, and (3) the district
court abused its discretion when it determined by denying the
motion for a new trial, that Long had not received ineffective
assistance of counsel.
United States v. Long, 721 F.3d 920, 924 (8th Cir. 2013).
Because Colbath did not object to the government’s use of his
“incriminate myself” statement, the Eighth Circuit Court of Appeals applied a
plain error standard of review. Id. To obtain relief, Long was obliged to show
that “ ‘there was an error, the error is clear or obvious under current law, the
error affected the party's substantial rights, and the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting
United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011)). The Court upheld
Long’s conviction, a decision that was “based largely on the plain error
standard of review.” Id. at 926.
The Court of Appeals first discussed Long’s argument concerning the
government’s use of his statement as a confession. This was a question of first
impression for the Court. Id. at 924. The Court stated that it had previously
found that use of a defendant’s silence in the same situation was
constitutional. Id. at 924-25; see United States v. Frazier, 408 F.3d 1102
(8th Cir. 2005). The Court also cited with approval United States v. Davenport,
929 F.2d 1169 (7th Cir. 1991), in which the Seventh Circuit held that once
defendants agreed to answer questions, “any statement they made—including ‘I
won't tell you’—was fair game.” Id. at 1174.
The issue was “determined by application of the elements of plain error
review,” and the Court held that “even if it was error for the government to
admit Long's pre-arrest, pre-Miranda ‘incriminate myself’ statement as part of
the government's case-in-chief—a question we do not reach—it was certainly
not an error that is ‘clear or obvious under current law.’ ” Long, 721 F.3d at
925 (quoting United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011)). The
Court of Appeals found that the district court did not plainly err by failing to
sua sponte strike Agent Rice’s testimony or the reference to Long’s statement in
the government’s closing argument. Id.
The Court of Appeals next discussed Long’s claim that during its closing
argument, the government improperly commented that Long did not testify at
trial. Id. This claim was reviewed for plain error because Colbath did not object
to the comment on constitutional grounds. Id. The Court discussed the
subsequent history of the rule, announced in Griffin v. California, 380 U.S. 609
(1965), that “the Fifth Amendment ‘forbids either comment by the prosecution
on the accused's silence or instructions by the court that such silence is
evidence of guilt.’ ” Long, 721 F.3d at 925-26 (quoting Griffin, 380 U.S. at 615).
Here, the Court found that the government “merely rephrased the
instruction the court presented to the jury moments before closing arguments”
and that the comment “was not presented in a context to suggest that the jury
construe Long's decision not to testify against him.” Id. at 926. Instead, the
Court found that the government “made the comment to contrast the
prohibition on considering Long's decision not to testify with the consideration
of his statement to Agent Rice.” Id. Therefore, the Court of Appeals found that
the district court did not clearly err by failing to sua sponte strike the
Finally, the Court of Appeals did not decide Long’s argument that he
received ineffective assistance of counsel. First, the Court stated that ineffective
assitance claims are generally “ ‘better left for post-conviction proceedings’
under 28 U.S.C. § 2255.” Id. (quoting United States v. Cook, 356 F.3d 913, 919
(8th Cir. 2004)). Second, the Court of Appeals’ decision to uphold Long’s
conviction was “based largely on the plain error standard of review.” Id.
Therefore, it was necessary to develop facts outside of the record such as
whether the decision not to object was due to trial strategy in order to evaluate
a claim for ineffective assistance. Id. at 926-27.
Long filed this petition on April 1, 2014. Docket 1. Long argued that the
government violated his Fifth Amendment privilege against self-incrimination
by using his “I don’t want to incriminate myself statement” during its case-inchief and by mentioning this statement and the fact that he did not testify
during its closing argument. Id. at 3. He claimed his Sixth Amendment right to
effective assistance of counsel was denied by Colbath’s failure to move to
suppress this evidence before trial, to object to the evidence during the
government’s case-in-chief, and to object during the government’s closing
argument. Id. Additionally, Long claims Colbath was ineffective because she
raised the issue herself in cross-examination. Id.
The government moves to dismiss the petition, arguing that Colbath’s
assistance was not ineffective. It argues that Long’s statement was admissible,
Colbath’s actions were part of a sound trial strategy, and even if Colbath was
ineffective, Long was not prejudiced. Docket 30 at 8-9. On June 17, 2015, an
evidentiary hearing was held in which one witness, Colbath, was called and
questioned. Docket 21. Colbath explained her actions and litigation strategy in
Long’s case. Id. Afterward, Long filed a brief in support of his ineffective
assistance of counsel claim, Docket 26, the government responded, Docket 30,
and Long replied. Docket 31.
A § 2255 motion is the “statutory analog of habeas corpus for persons in
federal custody.” United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005)
(citation omitted). A federal prisoner may seek relief from his sentence on the
grounds that “the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255. Relief
may be granted under § 2255 only for “transgressions of constitutional rights
and for a narrow range of injuries that could not have been raised on direct
appeal and, if uncorrected, would result in a complete miscarriage of justice.”
Walking Eagle v. United States, 742 F.3d 1079, 1082 (8th Cir. 2014) (citation
The Sixth Amendment to the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI. To successfully
state an ineffective assistance of counsel claim, Long must show that “ ‘(1) trial
counsel’s performance was so deficient as to fall below an objective standard of
the customary skill and diligence displayed by a reasonably competent
attorney, and (2) trial counsel’s deficient performance prejudiced the defense.’ ”
Becker v. Luebbers, 578 F.3d 907, 915 (8th Cir. 2009) (quoting Armstrong v.
Kemna, 534 F.3d 857, 863 (8th Cir. 2008)).
The court’s scrutiny of an attorney’s performance is extremely
deferential, with a strong presumption that counsel’s performance was within a
wide range of professional and reasonable judgment. Armstrong, 534 F.3d at
863 (citing Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)). To show
prejudice, Long must establish that “ ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Id. at 866 (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). “Failure to establish either Strickland prong is fatal to an
ineffective-assistance claim.” Worthington v. Roper, 631 F.3d 487, 498 (8th Cir.
2011) (citing Strickland, 466 U.S. at 697).
Before the court can decide if Colbath’s failure to object to the use of
Long’s statement was deficient, it must determine whether the use of the
statement was constitutionally defective such that no reasonable attorney
would have failed to object to its use.
The Fifth Amendment to the United States Constitution offers protection
that “[n]o person shall be . . . compelled in any criminal case to be a witness
against himself[.]” U.S. Const. amend. V. The main protection afforded by the
Fifth Amendment is to prevent a criminal defendant from being compelled to
testify against himself at trial. United States v. Frazier, 408 F.3d 1102, 1109
(8th Cir. 2005) (citing Chavez v. Martinez, 538 U.S. 760, 767 (2003)). The Fifth
Amendment also prohibits “comment by the prosecution on the accused's
silence[.]” Griffin, 380 U.S. at 615. The Supreme Court has made it clear that
“the prosecution may not . . . use at trial the fact that [the defendant] stood
mute or claimed his privilege in the face of accusation” when faced with “police
custodial interrogation.” Miranda v. Arizona, 384 U.S. 436, 468 n. 37 (1966).
In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court
determined that the use of a defendant's postarrest, post-Miranda silence for
impeachment purposes violated the defendant's rights under the Due Process
Clause of the Fourteenth Amendment. Miranda warnings have an implicit
assurance that the defendant's silence will not be used against him. Id. at 61718. The court found, therefore, that this use of defendant's silence was
improper because post-Miranda silence is ambiguous and could be an
arrestee's exercise of his Miranda rights. Id. Therefore, the use of that silence
against the arrestee would penalize him for relying on the Miranda assurances
made by the government. Id. at 618-19.
The Supreme Court has also concluded that the government’s use of an
arrestee’s post-Miranda silence in its case-in-chief is improper when the
defendant invokes his right to counsel in the face of questioning. Wainwright v.
Greenfield, 474 U.S. 284, 292 (1986). The Supreme Court found, however, that
the use of postarrest, pre-Miranda silence to impeach a testifying defendant did
not violate due process. Fletcher v. Weir, 455 U.S. 603, 607 (1982). The court
found that “[i]n the absence of the sort of affirmative assurances embodied in
the Miranda warnings, we do not believe that it violates due process of law for a
State to permit cross-examination as to postarrest silence when a defendant
chooses to take the stand.” Id.
The Supreme Court has not determined whether it is proper for the
government to introduce evidence of a defendant’s prearrest, pre-Miranda
silence during its case-in-chief as the government did at Long’s trial. There is a
body of case law on the government’s use of a defendant’s silence, but not
necessarily the government’s use of the words used to invoke the right to
Long cites numerous cases outside of the Eighth Circuit, including a
First Circuit case where the Court of Appeals found that the government’s use
of the defendant’s statement that he was not going to confess to the police was
an improper comment on the defendant’s constitutional right to silence and
could not be used against him. Coppola v. Powell, 878 F.2d 1562 (1st Cir.
1989). While there is a circuit split 1 in the courts of appeal as to whether the
government may use the defendant's postarrest, pre-Miranda silence in its
case-in-chief, the Eighth Circuit Court of Appeals has found that such evidence
is admissible. United States v. Osuna-Zepeda, 416 F.3d 838 (8th Cir. 2005);
United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005). These cases guide the
court’s analysis of the government’s use of prearrest and pre-Miranda
In Frazier, the Eighth Circuit held that using “postarrest, pre-Miranda
silence in a prosecution’s case-in-chief was not unconstitutional.” OsunaZepeda, 416 F.3d at 844 (citing Frazier, 408 F.3d at 1109-11). The court stated
that when the defendant was arrested “there was no governmental action at
Compare United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.
1998) (holding the privilege against self-incrimination does not apply when the
defendant is under no official compulsion to speak); United States v. Zanabria,
74 F.3d 590, 593 (5th Cir. 1996) (concluding that when the silence is not
induced by government action, the Fifth Amendment does not protect the use
of defendant’s prearrest silence); United States v. Rivera, 944 F.2d 1563, 1568
(11th Cir. 1991) (stating that the government can comment on defendant’s
silence when it occurs prior to arrest and prior to Miranda); United States v.
Moore, 104 F.3d 377, 385 (D.C. Cir. 1997) (stating that the critical inquiry is
not the giving of Miranda rights, but whether the defendant is in custody) with
Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (determining that defendant’s
counsel was ineffective for failing to object to the government’s use of
defendant’s postarrest and pre-Miranda statement that he wanted to talk to his
lawyer because it violated his Fifth Amendment right against selfincrimination); Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989) (determining
that when defendant does not testify at trial it is impermissible to comment on
any Fifth Amendment rights that were exercised); United States ex rel. Savory v.
Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) (determining that the right to
remain silent attaches before formal adversarial proceedings commence).
that point inducing his silence,” and the defendant “was under no governmentimposed compulsion to speak.” Frazier, 408 F.3d at 1111. Similarly, in OsunaZepeda, the Eighth Circuit determined that the case only concerned the
defendant's “silence during and just after his arrest.” 416 F.3d at 844.
Although Osuna-Zepeda had been arrested and taken into custody, he was not
read his Miranda rights. Id. The government then tried to use Osuna-Zepeda's
postarrest and pre-Miranda silence during the government's case-in-chief. Id.
The Eighth Circuit concluded in both Frazier and Osuna-Zepeda that the
introduction of defendants’ silence did not violate their constitutional rights.
The Eighth Circuit also has said that whether the defendant has received
his Miranda rights is what is determinative of the right to remain silent, but in
this type of case, there is more to the inquiry. Vick v. Lockhart, 952 F.2d 999,
1003 (8th Cir. 1991) (citation omitted). The precise inquiry is if the defendant is
under a compulsion to speak. Frazier, 408 F.3d at 1111. The Eighth Circuit
also noted that an arrest in and of itself is not sufficient government action
that compels a defendant to speak. Weir, 455 U.S. at 606.
Here there was no arrest, no Miranda warnings, and no governmental
action mandating speech. See United States v. Rivera, 944 F.2d 1563, 1568
(11th Cir. 1991) (concluding that “the government may comment on a
defendant’s silence if it occurred prior to the time he is arrested and given his
Miranda warnings.”). Long was under no compulsion to speak when he made
the statement that he wanted to stop talking so he did not incriminate himself.
He was told that he was free to leave, he could stop talking at any time, and he
was not under arrest or in custody. See Moore, 104 F.3d at 386 (“We therefore
think it evident that custody and not interrogation is the triggering mechanism
for the right of pretrial silence under Miranda”). Long’s situation was less
hostile than what occurred in either Frazier or Osuna-Zepeda because Long
was not under arrest and was not given his Miranda warnings.
There is a distinction between Frazier and Osuna-Zepeda and Long’s case
because here the government used a substantive statement invoking silence
rather than silence in the face of questioning. Many courts, however, have
found that the use of words to claim a right to remain silent is the same as
silence itself. See Wainwright, 474 U.S. at 295 n. 3 (stating “silence does not
mean only muteness; it includes the statement of a desire to remain silent”).
For these reasons, the court finds Frazier and Osuna-Zepeda persuasive as to
the rationale and conclusion that the appropriate inquiry is whether Long was
under a compulsion to speak when he made his statement. There was
substantial evidence that Long was free to leave at any time and that his
presence at the interview with Agent Rice was voluntary. Moreover, there is no
indication that when Long made his statement he was relying on the
government’s assurance that his silence would not be used against him
because it was a pre-Miranda interview. See Weir, 455 U.S. at 606 (“[W]e have
consistently explained Doyle as a case where the government had induced
silence by implicitly assuring the defendant that his silence would not be used
Long argues that there was no authority that permitted the introduction
of his statement, Docket 1 at 25, and that admissibility of this evidence is an
open question in the Eighth Circuit. Docket 26 at 8. During the evidentiary
hearing, Colbath testified that her research had indicated that the statement
would be admissible. Docket 21 at 19-25, 27. Colbath explained that the
reason she did not try to exclude or object to the government’s use of the
statement was because she believed it was admissible. Id. at 37; 6-8. Even if
Long was compelled by law enforcement to make his statement, the law was
unsettled as to whether that statement would be admitted. At best, Long shows
that there was a possibility that the statement would have been excluded.
Therefore, it was not ineffective assistance of counsel for Colbath to fail to
challenge the evidence when research indicated it would be admitted.
Because Long was under no compulsion to speak, it was not
unconstitutional for the government to use Long’s statements in its case-inchief. Even if he was compelled to speak, it was not a settled question of law in
the Eighth Circuit that the evidence would be excluded. For these reasons,
Long has not established that his trial counsel’s performance was deficient
when she did not move to suppress the evidence, object at trial, or object
during closing arguments. See Armstrong, 534 F.3d at 863 (noting the strong
deference to finding counsel’s performance was reasonable).
Weight of the Evidence and Prejudice
Long argues that the case against him was weak. Therefore, the
government’s use of his statement caused him prejudice because it was the
reason he was found guilty.
Long points out deficiencies in the government’s case. AP testified that
she did not like living with Brenda, her aunt and Long’s girlfriend. Docket 1 at
4. During AP’s testimony, the prosecution had to backtrack several times
because her testimony was either inconsistent with her previous statements to
law enforcement or other parts of her testimony. Id. at 4-10. AP’s testimony
was not supported by physical evidence. Id. at 4. Also, numerous witnesses
testified to AP’s reputation for untruthfulness. Id. at 10. TE, Long’s
stepdaughter, testified to making false reports of abuse to law enforcement
against her mother. Id. at 11. During cross-examination, doubt was cast over
whether TE had lied about being abused by Long in the past. Id. Other
witnesses testified to TE’s reputation for untruthfulness. Id. at 12.
After reviewing all the evidence that was admitted during the trial, the
court finds that even without the references to Long’s statement, there was still
strong evidence by two complaining witnesses that they had been victims of
forcible sexual abuse by Long. AP testified extensively about the abuse that
occurred in her home approximately 40 to 45 times. She testified that she told
Brenda Brewer, Oma Perez, Suzie Red Cloud, Harriet Broken Nose, Mona
Waters, Kristin Waters, Jacey Twiss, D.J. Clifford, Juan Ramos, and Brad
Conroy about Long’s abuse of her. CR Docket 269 at 3-4. Multiple witnesses
testified at trial that AP told them that Long had been abusing her before she
reported it to law enforcement. TE also testified about Long’s systematic abuse
that occurred when she was young and Long was living with her. The jury saw
all the witnesses testify at trial, and the jury made the determination of these
witnesses’ credibility. The jury only had to believe AP’s testimony to find Long
guilty of the charges. See United States v. DeCoteau, 630 F.3d 1091, 1097
(8th Cir. 2011) (noting that “a victim's testimony alone can be sufficient to
prove aggravated sexual abuse”).
Long has not met his burden of establishing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. Long cannot show that there
is a substantial likelihood that there would have been a different result but for
the admission of Long’s statements. See Hanegan v. Miller, 663 F.3d 349, 355
(8th Cir. 2011) (“The likelihood of a different result must be substantial, not
Long has not shown that he was prejudiced by his trial counsel’s
performance because the overwhelming weight of the government’s evidence
proved Long’s guilt beyond a reasonable doubt. See Simmons v. Taylor, 195
F.3d 346, 349 (8th Cir. 1999) (stating that even if the court remanded the case
back to the trial court for an evidentiary hearing “the overwhelming weight of
the state’s evidence of [defendant]’s guilt would make it impossible for him to
demonstrate prejudice under Strickland”). Because Long has not satisfied
either the deficiency prong or the prejudice prong of Strickland, his ineffective
assistance of counsel claim based on Colbath’s failure to challenge the
government’s use of his statement is dismissed.
Long’s Failure to Testify
Long argues that the government violated his Fifth Amendment privilege
against self-incrimination by commenting during its closing argument that he
did not testify at trial. Docket 1 at 3. Long argues that he was denied his Sixth
Amendment right to effective assistance of counsel because Colbath did not
challenge this comment. Id. Before the court can decide if Colbath’s failure to
object to the government’s comment during its closing argument that Long did
not testify was deficient, it must determine whether the government’s comment
was constitutionally defective such that no reasonable attorney would have
failed to object to its use.
The Eighth Circuit Court of Appeals discussed this claim in Long’s direct
appeal. It stated that “the Supreme Court held that the Fifth Amendment
‘forbids either comment by the prosecution on the accused's silence or
instructions by the court that such silence is evidence of guilt.’ ” Long, 721
F.3d at 926 (quoting Griffin, 380 U.S. at 615). The Court of Appeals explained
that this original holding has been narrowed by subsequent cases. Id. at 926
(citing Lakeside v. Oregon, 435 U.S. 333 (1978); United States v. Robinson, 485
U.S. 25 (1988)).
The Court of Appeals construed the comment as “merely rephrase[ing]
the instruction the court presented to the jury moments before closing
arguments,” and contrasting “the prohibition on considering Long's decision
not to testify with the consideration of his statement to Agent Rice.” Id. The
comment “was not presented in a context to suggest that the jury construe
Long's decision not to testify against him.” Id. The Court of Appeals held that
the district court “did not clearly err in allowing the statement during closing
argument,” and even if it did clearly err, Long did not suffer prejudice because
of the government’s comment. Id.
Long argues that the government treated his decision not to testify at
trial as substantive evidence of guilt. Docket 1 at 21. He also argues that this
comment, coupled with the government’s use of his statement as a confession,
violated his constitutional rights, and Colbath’s decision not to object
constituted ineffective assistance of counsel. Id. at 27.
As the government points out, however, Long fails to show that the
comment was improper. Docket 10 at 9. The comment was an accurate
statement of the law: “Ladies and gentlemen, you can never use against
somebody when they invoke their right to remain silent. You can't use that
Mr. Long didn't testify in this trial; you cannot use that against him.” CR
Docket 270 at 442. Because the comment was not impermissible, the failure to
object to it was not deficient. As with his first claim, Long fails to show
Colbath’s deficiency in failing to object to this comment.
Because Long fails to show Colbath’s deficiency, the court need not
discuss the prejudice prong of Strickland. See Worthington, 631 F.3d at 498
(“Failure to establish either Strickland prong is fatal to an ineffective-assistance
claim”). Even so, Long’s failure to show prejudice discussed above is equally
applicable to his second claim. Without the government’s comment during its
closing argument, the overwhelming weight of the government’s evidence
showed Long’s guilt. See Simmons, 195 F.3d at 349. Because Long cannot
satisfy either the deficiency prong or the prejudice prong of Strickland, his
ineffective assistance of counsel claim based on Colbath’s failure to object to
the government’s comment during its closing that he did not testify in his
defense is dismissed.
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). Because the
Eighth Circuit has not squarely addressed both of Long’s issues, the court
finds that Long has made a substantial showing that his constitutional rights
were denied. Consequently, a certificate of appealability on both issues is
Long argues that his trial counsel’s failure to exclude his “incriminate
myself” statement or to object to the government’s use of the statement and
counsel’s failure to object to the government’s comment that he did not testify
at trial denied him his right to effective assistance of counsel under the Sixth
Amendment. The court disagrees. Long was under no compulsion to speak
when he made his statement. Therefore, the government’s use of the statement
did not violate his Fifth Amendment rights. Further, the law in the Eighth
Circuit is unsettled. Failure to object to the use of the statement cannot,
therefore, be grounds for a claim for ineffective assistance of counsel. The
government also accurately stated the law when it commented that Long did
not testify in his defense. It did not ask the jury to construe this fact against
him. Long also fails to show prejudice in either claim because the evidence
against him, even without his statement or the government’s comment on his
silence, was overwhelming.
IT IS ORDERED that
1. The government’s motion to dismiss (Docket 9) is granted.
2. Long’s Motion to Vacate, Set Aside, or Correct his sentence (Docket 1)
3. A certificate of appealability is issued.
Dated May 19, 2016.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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