American Horse v. United States of America

Filing 42

ORDER Dismissing Case and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 5/2/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GEORGE AMERICAN HORSE,
Petitioner,
vs.

CIV. 14-5094-JLV
[CR-12-50111-JLV]
ORDER

UNITED STATES OF AMERICA,
Respondent.

On December 29, 2014, Petitioner George American Horse, appearing
pro se, filed a motion (Docket 1) pursuant to 28 U.S.C. § 2255 (“2255 Motion”)
to vacate or set aside his criminal conviction in United States v. George
American Horse, CR-12-50111-JLV (D.S.D. 2012). Mr. American Horse
subsequently filed three briefs seeking to expand the number of grounds for
relief on the 2255 Motion. (Dockets 14, 24 & 34). He later filed a motion to
amend the 2255 motion. (Docket 35). The court allowed the amendment.
On July 2, 2015, the government filed a motion to dismiss the 2255
Motion. (Docket 32). Pursuant to a standing order of October 16, 2014, the
matter was referred to United States Magistrate Judge Veronica L. Duffy
pursuant to 28 U.S.C. § 636(b)(1)(B). On December 4, 2015, Judge Duffy
issued a report recommending the court deny all of Mr. American Horse’s

claims in the 2255 Motion.1 (Docket 37). Mr. American Horse timely filed
his objections. (Docket 41). For the reasons stated below, Mr. American
Horse’s 2255 motion is denied.
ANALYSIS
The court reviews de novo those portions of the report and
recommendation which are the subject of objections. Thompson v. Nix, 897
F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(l). The court may then
“accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
The court reviewed the record in this case de novo and carefully considered
Mr. American Horse’s objections to the report and recommendation. The court
finds Mr. American Horse’s objections are without merit. Each of the objections
is repetitive of the arguments made initially in support of the 2255 Motion and
rejected in the report and recommendation. Compare Dockets 1, 14, 24, 34,
35 & 37. Each of the grounds for relief alleged in the 2255 Motion is thoroughly
analyzed and rejected by Judge Duffy in the report and recommendation.
(Docket 37).
The court finds the report and recommendation is an accurate and
thorough recitation of the facts and applicable case law. The court further finds
Judge Duffy’s legal analysis is well-reasoned. The court adopts and
incorporates the report and recommendation in full and overrules Mr. American
The magistrate judge considered each of Mr. American Horse’s filings as
additional amendments to the 2255 Motion. (Docket 37 at p. 10).
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Horse’s objections for the same reasons set forth in the report and
recommendation.
ORDER
Having carefully reviewed the record in this case and good cause
appearing, it is
ORDERED that Mr. American Horse’s objections (Docket 41) are
overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
37) is adopted in full.
IT IS FURTHER ORDERED that the government’s motion to dismiss
(Docket 32) is granted.
IT IS FURTHER ORDERED that Mr. American Horse’s petition (Docket 1)
is dismissed with prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c) and Rule
11 of the Rules Governing Section 2255 Cases in the United States District
Courts, the court declines to issue a certificate of appealability. A certificate
may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added). A “substantial
showing” under this section is a showing that “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). In other words, a “substantial
showing” is made if a “court could resolve the issues differently, or the issues
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deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Mr. American Horse has not made a substantial showing of the denial of a
constitutional right.
Although the court declines to issue a certificate of appealability, Mr.
American Horse may timely seek a certificate of appealability from the United
States Court of Appeals for the Eighth Circuit under Fed. R. App. P. 22. See
Rule 11(a) of the Rules Governing Section 2255 Cases in the United States
District Courts and Fed. R. App. P. 22.
Dated May 2, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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