High Wolf v. United States of America

Filing 16

ORDER granting 7 Motion to Dismiss for Failure to State a Claim; granting 7 Motion to Dismiss for Lack of Jurisdiction; adopting 11 Report and Recommendation and declining to issue a certificate of appealability. Signed by U.S. District Judge Jeffrey L. Viken on 1/27/20. (SB) Modified on 1/27/2020 (SB).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

CIV. 18-5007-JLV

CLAYTON M. HIGH WOLF,
Petitioner,

ORDER

vs.
UNITED STATES OF AMERICA,
Respondent.
INTRODUCTION

Petitioner Clayton High Wolf, appearing pro se, filed a petition to vacate,
correct or set aside his criminal judgment of conviction pursuant to
28 U.S.C. § 2255 (“2255 Petition”). (Docket 1). Following a jury trial, Mr.
High Wolf was convicted of one count of possession of a firearm and
ammunition by a prohibited person. United States v. High Wolf, CR. 1450093 (D.S.D. 2014), Dockets 81 & 95. Mr. High Wolf makes several
challenges to the conviction which will be addressed in this order. The
government moved to dismiss Mr. High Wolf’s 2255 Petition. (Docket 7).
The matter was referred to Magistrate Judge Veronica L. Duffy pursuant to the
court’s standing order of October 16, 2014, and 28 U.S.C. § 636(b)(1) for a
report and recommendation (“R&R”). The magistrate judge issued an R&R
concluding Mr. High Wolf’s 2255 Petition should be denied without an
evidentiary hearing. (Docket 11). Mr. High Wolf filed a supplemental
pleading to the 2255 Petition which purports to raise two additional claims.
(Docket 14). Given Mr. High Wolf’s pro se status, the court will construe his

factual recitation as objections to the magistrate judge’s findings. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be
liberally construed[.]”) (internal quotation omitted). Because the supplemental
pleading addresses the R&R, the court finds Mr. High Wolf timely filed
objections to the R&R.1 Id.
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files
written objections to the magistrate judge’s proposed findings and
recommendations, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. The court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” Id. For the reasons given below, the court overrules
Mr. High Wolf’s objections to the R&R and adopts the R&R in full. The court
denies Mr. High Wolf’s 2255 Petition.
ANALYSIS
I.

Facts and Procedural History
Mr. High Wolf does not specifically challenge the factual findings made

by the magistrate judge. However, he argues the dash-camera video from
Rapid City Police Officer Carmen Visan’s patrol car “should properly be viewed

Mr. High Wolf also filed an ex parte motion asking the court to appoint a
special master “to resolve issues pursuant to 28 U.S.C. § 530(B), known as the
Citizens Protection Act of 1998.” (Docket 13). Section 530B addresses the
ethical standards for attorneys representing the government. 28 U.S.C.
§ 530B. For the reasons stated in this order, Mr. High Wolf’s motion is denied.
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in conformance with Fed. R. Evid. 401(a) & (b).” (Docket 14 at p. 2). He
asserts the video presents “undisputed facts” that when Officer Visan
conducted a search of Mr. High Wolf “the video clearly shows that no evidence
of ammunition or a weapon was taken from the person of Mr. High Wolf.” Id.
(capitalization omitted). The same video, he argues, shows Rapid City Police
Office Seth Walker conducting a search of Mr. High Wolf and no ammunition or
weapon was taken from his person. Id.
Officer Visan testified at the jury trial. She testified that after asking Mr.
High Wolf to step out of the vehicle, she asked if he would allow her to conduct
a pat-down and he agreed. CR. 14-50093, Docket 105 at p. 54:12-19.
During the pat-down she felt what she thought might be “small caliber bullets”
in his “front, left pocket of his pants or shorts.” Id. at pp. 54:24 & 55:9. The
officer was not concerned at that point because no firearm was located, so she
continued with her request for his driver’s license. Id. at p. 55: 4-12 and
65:21-66:3. Because he did not have a license in his possession, the officer
asked for his full name, date of birth and social security number. Id. at
p. 55:14-16. She ran this information with dispatch to verify his driver’s
license. Id. at p. 55:18-19.
The dispatcher reported Mr. High Wolf’s license was suspended and he
had “a warrant for driving under suspension.”

Id. at p. 58:9-11. At that

point, Officer Walker handcuffed Mr. High Wolf and Officer Visan placed him
under arrest. Id. at p. 58:23-24.

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During trial, the government played the dash-camera video from Officer
Visan’s patrol car, with the government pausing the video from time-to-time for
questions of the officer. Id. at pp. 59:23-67:17. At the point of the arrest of
Mr. High Wolf, Officer Visan described what appeared on the video: “I searched
his pockets myself. . . . I just did it because I knew I was going to put him in
my car and I wanted to double check his pocket and make sure what I felt at
first was what it could have been.” Id. at pp. 67:25-68:5. The officer
identified for the jury that she appeared “on the left-hand side of the screen”
displaying the video. Id. at p. 68:6-8. She described conducting a more
thorough search of his left front pocket. Id. at p. 68:10-13. She reached all
the way to the bottom of a “fairly deep . . . mid-thigh” pocket. Id. at p. 68:1721. In the bottom of the pocket she “found lots of live bullets, .22 caliber.
. . . there were 39 . . . .” Id. at p. 69:2-5.
Mr. High Wolf’s attorney took a screen shot of the initial pat-down by
Officer Visan. CR. 14-50093, Docket 106 at pp. 116:13-117:12. Defense
counsel then examined the officer about her perception of what was in Mr.
High Wolf’s pocket. Id. at pp. 119:20-120:18.
Officer Walker also testified at trial. As Mr. High Wolf’s vehicle was
coming to a stop, the officer observed Mr. High Wolf “leaning over toward the
passenger side of the vehicle.” Id. at p. 138:2-3. Officer Walker approached
the vehicle and spoke to the two passengers still in the vehicle. Id. at
p. 139:8-10. Later, as he conducted an inventory search of the vehicle, Officer
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Walker located a Smith & Wesson .22 pistol under the front passenger seat.
Id. at p. 148:16-19. Officer Walker found the firearm was loaded. Id. at
p. 149:11-14. The magazine had “five rounds inside of it and one live round in
the chamber.” Id. at p. 149:19-22.
Special Agent Randel Probst with the Bureau of Alcohol, Tobacco,
Firearms & Explosives testified at trial. He testified the Smith & Wesson
firearm was manufactured in Springfield, Massachusetts. Id. at p. 178:19-20.
Smith & Wesson also has another plant in Houlton, Maine, where firearm parts
are made, shipped to Springfield and distributed out of the Massachusetts
facility. Id. at p. 179:4-9. Based on his training and experience, Special
Agent Probst testified the firearm affected interstate commerce. Id. at
p. 180:1-3.
Regarding the Remington .22 caliber ammunition, Special Agent Probst
testified it was manufactured in either Roanoke, Arkansas, or Bridgeport,
Connecticut, but not in South Dakota. Id. at p. 181 :21-25. Special Agent
Probst testified the ammunition traveled in interstate commerce. Id. at
p. 182:5-6.
The jury found Mr. High Wolf guilty of felon in possession of a firearm or
ammunition. CR. 14-50093, Docket 81. In the special interrogatory, the jury
unanimously found, beyond a reasonable doubt, that Mr. High Wolf possessed
both the Smith & Wesson firearm and the Remington .22 caliber ammunition.
Id.
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II.

PROCEDURAL DEFAULT
The R&R recommends dismissal with prejudice on the three grounds

asserted in Mr. High Wolf’s 2255 Petition. (Docket 11 at p. 12). Those
challenges are summarized as follows: (1) the government interfered with the
state of South Dakota’s independent prosecution “clear[ing] the way for a
prosecution in the District Court of the United States.” Id. at p. 4 (referencing
Docket 1 at p. 2); (2) the firearm “was not possessed ‘in or affecting interstate
commerce’ as required by 18 U.S.C. § 922(g)(1).” Id. (citing Docket 1 at p. 3);
and (3) “the jury verdict . . . is void because it was obtained through the use of
fraud, slander and libel.” Id. at p. 5 (referencing Docket 1 at p. 4).
The magistrate judge arrived at that recommendation finding “[t]he three
grounds Mr. High Wolf asserts in his § 2255 motion . . . were not included as
grounds in his direct appeal.” Id. at pp. 8-9. Referencing United States v.
Frady, 456 U.S. 152, 167-68 (1982), and McNeal v. United States, 249 F.3d
747, 749 (8th Cir. 2001), the magistrate judge found “Mr. High Wolf has
procedurally defaulted [on] all three of his § 2255 grounds for relief.” Id. at p.
9. Mr. High Wolf does not challenge that finding but asserts ”he is in fact
actually innocent.” (Docket 14 at p. 1).
“A motion under § 2255 is not a substitute for direct appeal . . . and is
not the proper way to complain about simple trial errors . . . .” Anderson v.
United States, 25 F.3d 704, 706 (8th Cir. 1994) (citation omitted). “[T]he
cause and prejudice exception does not apply to nonconstitutional or
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nonjurisdictional claims that could have but were not raised on direct appeal
. . . . A petitioner simply cannot raise a nonconstitutional or nonjurisdictional
issue in a § 2255 motion if the issue could have been raised on direct appeal
but was not.” Id. (citations omitted). “Where a defendant has procedurally
defaulted a claim by failing to raise it on direct review, the claim may be raised
in habeas only if the defendant can first demonstrate either ‘cause’ and actual
‘prejudice’ . . . or that he is ‘actually innocent.’ ” Bousley v. United States,
523 U.S. 614, 623 (1998).
A petitioner’s burden of proof under the actual innocence test is high.
Schlup v. Delo, 513 U.S. 298, 324 (1995) (“To be credible, such a claim
requires petitioner to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at
trial.”). “[A] petitioner can obtain review of procedurally defaulted claims if he
produces reliable new evidence not available at trial which demonstrates that it
is more likely than not, that with this evidence no reasonable juror would have
convicted him.” Amrine v. Bowersox, 128 F.3d 1222, 1226-27 (8th Cir. 1997)
(referencing Schlup, 513 U.S. at 326-38).
“If a petitioner presents sufficient evidence of actual innocence, he
should be allowed through this gateway permitting him to argue the merits of
his underlying constitutional claims.” Id. at 1227. “In deciding whether a
petitioner has made the necessary showing of innocence, a federal court must
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make its own determination of whether the ‘probative force of the newly
presented evidence in connection with the evidence of guilt adduced at trial’ is
sufficient to warrant consideration of the otherwise barred claims.” Id.
(quoting Schlup, 513 U.S. at 330-32). “The underlying reason for an actual
innocence gateway is that the ‘quintessential miscarriage of justice is the
execution of a person who is entirely innocent.’ ” Id. (quoting Schlup, 513 U.S.
at 324-26). “[A]n evidentiary hearing is not required on a claim of actual
innocence if development of the claim would not establish actual innocence.”
Bannister v. Delo, 100 F.3d 610, 617 (8th Cir. 1996).
Mr. High Wolf’s actual innocence claim is resolved by the recitation of
facts above. Petitioner asserts this evidence constituted “fraud on the
machinery of the court through the willful use of slander. . . perjury . . .
through reckless disregard for the truth, and wilful [sic] blindness to the facts
of this case in violation of 18 U.S.C. § 530(B).” (Docket 14 at pp. 1-2)
(capitalization omitted).
There is no merit to Mr. High Wolf’s claim the video did not support the
officers’ testimony. Likewise, there is no merit to his claim the officers must
have committed fraud on the court. Whether the officer’s dash-camera caught
the moment Officer Visan removed the .22 caliber ammunition from Mr. High
Wolf’s pants pocket is not the end of the matter. It was for the jury to evaluate
the evidence, including the credibility of the two officers when compared to the
dash-camera video. From the verdict, it is obvious the jury found beyond a
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reasonable doubt Mr. High Wolf possessed both the ammunition and the
firearm.
Mr. High Wolf’s fourth objection “is insufficient to overcome the barrier of
procedural default in the absence of a showing sufficient to satisfy Schlup’s
actual innocence gateway.” Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir.
1995).
Mr. High Wolf further asserts he is factually innocent because the
government failed to prove he “ ‘knowingly’ possess[ed] either the firearm or
ammunition.” Mr. High Wolf claims he “was not in personal possession of any
ammunition or a firearm when he was search[ed] by both of the Rapid City
Police Officers[.]” (Docket 14 at p. 5). This assertion is without merit.
Officer Visan can be seen on the dash-camera video conducting a pat-down of
Mr. High Wolf. During the pat-down, the officer testified she felt what she
thought were small caliber bullets in his pocket, an assumption which turned
out to be true.
At trial, Mr. High Wolf stipulated he was a convicted felon. CR. 1450093, Docket 72 at p. 6. He also knew he “was restricted from possessing a
firearm or ammunition[.]” (Docket 14 at p. 7). Both officers saw Mr. High
Wolf inside the vehicle making an evasive movement—reaching downward to
his right. The Smith & Wesson pistol was found in the location toward which
he moved—under the front passenger’s seat. The pistol contained a magazine
with five .22 caliber bullets and a live .22 caliber round in the chamber. This
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was the same type of ammunition found on Mr. High Wolf’s person. Simply
because Mr. High Wolf was courteous and cooperative at the scene does not
undermine the jury’s finding of guilt. His conduct satisfied the knowingly
element of § 922(g)(1). See CR. 14-50093, Docket 72 at p. 7 (“As used in this
instruction, an act is done ‘knowingly’ if the defendant realized what he was
doing and did not act through ignorance, mistake, or accident. You may
consider evidence of the defendant’s acts and words, along with all the
evidence, in deciding whether the defendant acted knowingly. The government
is not required to prove the defendant knew his acts or omissions were
unlawful.”).
Mr. High Wolf’s fifth objection “is insufficient to overcome the barrier of
procedural default in the absence of a showing sufficient to satisfy Schlup’s
actual innocence gateway.” Brownlow, 66 F.3d at 999.
ORDER
For the reasons given above, it is
ORDERED that Mr. High Wolf’s objections to the magistrate judge’s
report and recommendation (Docket 14) are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
11) is adopted in full.
IT IS FURTHER ORDERED that the government’s motion (Docket 7) to
dismiss Mr. High Wolf’s 2255 Petition is granted.

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IT IS FURTHER ORDERED that Mr. High Wolf’s 2255 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, 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 deserve further proceedings.”
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Mr. High Wolf has not made
a substantial showing of the denial of a constitutional right.
Although the court declines to issue a certificate of appealability, Mr.
High Wolf may timely seek a certificate of appealability from the United States
Court of Appeals for the Eighth Circuit under Federal Rule of Appellate
Procedure 22. See Governing Rule 11(a); Fed. R. App. P. 22.
Dated January 27, 2020.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

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