UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN M. EAGLE,
Defendant
[1999 DSD 20]
United States District Court
District of South Dakota, Northern Division
CR. 97-10004
(Civ. No. 98-1006)
REPORT AND RECOMMENDATIONS FOR DISPOSITION
Aloysius J. Arendt, Maher & Arendt, Pierre, SD
Attorney for Petitioner
Gregg S. Peterman, US Attorney's Office, Sioux Falls, SD
Attorney for Respondent
Filed June 3, 1999
Mark A.Moreno, US Magistrate Judge
INTRODUCTION
[¶1] The above-captioned matter was referred to this Court by the District Court(fn1) pursuant to 28 USC. § 636(b)(1)(B) for the purpose of determining defendant John M. Eagle's (hereinafter Eagle) eligibility to proceed in forma pauperis, conducting any necessary hearings, including evidentiary hearings, and submitting to it proposed findings of fact and recommendations for disposition of the matter. Docket No. 74.
[¶2] After careful review of the records on file and based on the totality of the circumstances present, this Court does now make and propose the following findings of fact, report and recommendations for disposition.
PROCEDURAL HISTORY
[¶3] Eagle was charged by Indictment filed on January 16, 1997, with Aggravated Sexual Abuse with a Child, in violation of 18 USC. §§ 2241(c) and 1153. Docket Nos. 1, 2. He was arrested, arraigned and thereafter released pending trial. Docket Nos. 4, 6, 7. On April 1, 1997, a jury found Eagle guilty of the charged offense and the District Court ordered him detained pending sentencing. Docket Nos. 36, 38. After his Motions for Judgment of Acquittal and for a New Trial were denied, Docket No. 44, the District Court sentenced Eagle to a 182-month term of imprisonment and to five years of supervised release. Docket No. 50 at 2-3.
[¶4] Subsequently, Eagle appealed his conviction, Docket No. 51, but the Eighth Circuit Court of Appeals affirmed the Judgment of the District Court in all respects, Docket Nos. 75, 76; United States v. Eagle, 137 F3d 1011, 1016 (8th Cir. 1998).
[¶5] Eagle then filed a Motion under 28 USC. § 2255 to Set Aside or Correct his Sentence and included with the Motion and Application to Proceed Without Prepayment of Fees and Affidavit and a Motion Requesting Court-Appointed Counsel. Docket Nos. 71-73. Following the District Court's Order of reference, Docket No. 74, this Court granted Eagle leave to proceed in forma pauperis and appointed counsel for him. Docket No. 77.
[¶6] Approximately four weeks later, Eagle filed an Amended § 2255 Motion and a Motion for an Evidentiary Hearing. Docket Nos. 78, 80. In his Amended Motion, Eagle claims that he was denied effective assistance of counsel under the Sixth Amendment by virtue of the acts and/or omissions of his trial counsel and that he was denied his right to a fair trial under the Due Process Clause of the Seventh and Fourteenth Amendments by virtue of prosecutorial misconduct on the part of plaintiff (hereinafter the Government). Docket No. 80.
FACTS
[¶7] The Indictment charged Eagle with sexually abusing K.W., an eight-year-old Indian girl, during the summer and early fall of 1996. Docket Nos. 1, 2. Eagle had been living in Peever, South Dakota with his common-law wife, Sherri Bretzke, when her niece, K.W., came to live with them in 1994. T.Tr. 15, 45-46, 144. Some time toward the end of October or the beginning of November, 1996, K.W.'s teacher, Mary Christopherson, noticed that the child had become withdrawn and that her performance in school had begun to slip. T.Tr. 21-22. One day, after she had learned that K.W. was missing from the school bus the child regularly took home and that the child had gone to her grandmother's home, Christopherson inquired into what was bothering K.W. and the child responded that her uncle (Eagle) had been mean to her. T.Tr. 22-25. Christopherson then recommended that K.W. receive counseling. T.Tr. 26.
[¶8] K.W. subsequently met with Linda Crawford, a social worker who specializes in child abuse, physical abuse and neglect matters, and told Crawford that her uncle had touched her. T.Tr. 30-32. K.W. was thereafter examined by Dr. Patrick James Duey, a board-certified family practitioner, T.Tr. 83-89, who found that she had physical features which could be attributed to contact or trauma to her vaginal and anal areas, including a scar which he testified was caused by an external source. T.Tr. 96-118. In Dr. Duey's opinion, the medical evidence was consistent with K.W.'s allegations of sexual abuse. T.Tr. 118-19.
[¶9] K.W. testified at trial and was subject to cross examination by Eagle. T.Tr. 39-70. She described how Eagle would instruct her to come into Bretzke's bedroom and lie down on the bed with him and how he touched her "ch'na"(fn2) with his fingers several times and attempted to take her clothes off. T.Tr. 48-56. She also related that while she and Eagle were on the bed, he laid his stomach across her "ch'na". T.Tr. 60-61. She stated that she did not like being touched in this area and that it made her feel weird. T.Tr. 47-48. When asked where Eagle had touched her, K.W. circled the vaginal area on an anatomically correct picture of a naked girl. T.Tr. 54-56. K.W. likewise circled the genital area on a picture of a man, when asked what part of Eagle's body she saw, and said that this part was "big" at the time the touchings occurred. T.Tr. 57-58. K.W. said that Eagle told her not to tell anyone about what happened. T.Tr. 59.
[¶10] K.W. gave a physical description of Eagle and referred to him by name during her testimony but was unable to point him out in the courtroom. T.Tr. 45-46, 61-62. She acknowledged that she was afraid of seeing "John" and afraid to say whether she saw him in court. T.Tr. 71-72. She also testified that she was fearful Eagle would do the same thing to her again. T.Tr. 72. The District Court found that K.W. exhibited obvious fear of Eagle while she was testifying. Docket No. 44 at 3.
[¶11] The jury was permitted to hear testimony from Gilbert Kohl, a criminal investigator for the Bureau of Indian Affairs, that Eagle had pled guilty in May, 1987 to the federal crime of "Carnal Knowledge" or "[h]aving sex with a child under the age of 16". T.Tr. 132-34. The victim of that crime was K.W.'s aunt, Bretzke, who was 14 years old at the time and 26 years younger than Eagle. T.Tr. 133-34.
[¶12] The jury found Eagle guilty of Sexual Abuse of K.W. after approximately an hour and five minutes of deliberations. Docket Nos. 36, 38.
DISCUSSION
A. EVIDENTIARY HEARING.
[¶13] By separate Motion, Eagle requests that this Court grant him an evidentiary hearing on his Amended Motion. Docket No. 79. An evidentiary hearing, however, need not be held (1) if the movant's allegations, accepted as true, would not entitle him to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, are inherently incredible or conclusions rather than statements of fact. Delgado v. United States, 162 F3d 981, 983 (8th Cir. 1998) (quoting Engelen v. United States, 68 F3d 238, 240 (8th Cir. 1995)). Likewise, an evidentiary hearing is not required "where the files and records of the case conclusively show that the [movant] is not entitled to relief." United States v. Schmitz, 887 F2d 843, 844 (8th Cir. 1989) (citations omitted); see also, Holloway v. United States, 960 F2d 1348, 1361 (8th Cir. 1992); United States v. Lambros, 614 F2d 179, 181 (8th Cir. 1980) (citations omitted).
[¶14] Eagle's ineffective assistance of counsel and prosecutorial misconduct claims are ones that are capable of resolution from the record. See Rogers v. United States, 1 F3d 697, 699 (8th Cir. 1993); see also, United States v. Raddatz, 447 US 667, 675 (1980); Dall v. United States, 957 F2d 571, 572 (8th Cir. 1992). After close scrutiny of the record, this Court is convinced that Eagle is not entitled to relief. See Cheek v. United States, 858 F2d 1330, 1333 (8th Cir. 1988). As such, his request for an evidentiary hearing is denied.
1. INEFFECTIVE ASSISTANCE OF COUNSEL.
[¶15] The well-established Strickland test for analyzing ineffective assistance of counsel claims, "although by no means insurmountable, is highly demanding." Payne v. United States, 78 F3d 343, 345 (8th Cir. 1996) (quoting Kimmelman v. Morrison, 477 US 365, 382 (1986)). Inquiry under this test is two-fold:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defendant. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 US 668, 687-700 (1984); see also, United States v. Craycraft, 167 F3d 451, 455 (8th Cir. 1999); Blankenship v. United States, 159 F3d 336, 338 (8th Cir. 1998), cert. denied, 119 S.Ct. 844 (1999). A defendant must make a showing of both deficient performance and prejudice in order to obtain habeas relief based on an ineffective assistance of counsel claim. Strickland, 466 US at 687, 690-94.
[¶16] With respect to the performance aspect of the Strickland test, a defendant must demonstrate that counsel's presentation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 US at 688. Judicial review of counsel's performance is highly deferential; a court must indulge a strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance and sound trial strategy. Strickland, 466 US at 689; Fretwell v. Norris, 133 F3d 621, 623, 625-27 (8th Cir.), cert. denied, 119 S.Ct. 115 (1998).
[¶17] Professionally unreasonable trial errors, however, do not satisfy the burden of proving ineffectiveness absent a showing of prejudice to the defendant. Strickland, 466 US at 691-92; Driscoll v. Delo, 71 F3d 701, 706 (8th Cir. 1995), cert. denied, 519 US 910 (1996). A court will set aside the judgment of conviction only when counsel's performance renders the result of the proceeding unreliable or fundamentally unfair. Lockhart v. Fretwell, 506 US 364, 374 (1993). In other words, "'counsel's unprofessional errors [must] so upset the adversarial balance between the defense and the prosecution that the trial was rendered unfair and the verdict suspect.'" Id. at 369 (quoting Nix v. Whiteside, 475 US 157, 175 (1986)). Unreliability or unfairness, though, does not result unless the ineffectiveness of counsel deprives the defendant of a substantive or procedural right to which the law entitles him. Id.
[¶18] Eagle initially claims that his trial counsel was ineffective because he failed to move for a continuance which, in turn, prohibited him from making a motion to allow the jury to learn of the prior sexual molestation of K.W. Docket No. 81 at 3, ¶ 1. Eagle maintains that K.W.'s earlier molestation was exculpatory evidence and would have provided the jury with an alternative explanation of her injuries. He points to a 1992 medical report, prepared by Pamela Ephgrave, an OB-GYN physician, as evidence that K.W. had been sexually abused as a four-year-old. Docket No. 81, Ex. A.
[¶19] Although the medical report reflects that K.W. was seen because of sexual abuse and that the perineal trauma that was noted had a number of etiologies, including sexual abuse, the report itself is inconclusive and does not definitively show that K.W. was, in fact, molested in 1992. Significantly, trial counsel, who reviewed all of the 1992 medical reports, (including the one report referred to by Eagle), determined that K.W.'s injuries were caused by a fall she had taken on a slide at a playground and that "there was no conclusive evidence of sexual abuse". Docket 83, Attchms. A & B; see also, T.Tr. 36. Moreover, as the Eighth Circuit observed in its opinion, Dr. Duey compared the findings he made during his examination of K.W. with those made by other physicians in 1992. Dr. Duey testified that K.W.'s hymenal ring and her anal area were markedly different than the descriptions of these areas found in the 1992 medical reports. T.Tr. 197-201. This testimony clearly supports the finding made by the Eighth Circuit that the injuries Dr. Duey observed in K.W.'s vaginal and anal regions were not present before she moved in with her aunt in 1994. See Eagle, 137 F3d 1011-12, 1014. This being the case, there was little, if any, reason for trial counsel to explore or otherwise delve further into what happened in 1992. Counsel, therefore, cannot be faulted, or more importantly, held to be ineffective for failing to seek a continuance and not scrutinizing the injuries K.W. suffered as a a four-year-old.
[¶20] Eagle also claims that his trial counsel should have moved for a continuance for another reason, namely, to allow him to gather and present evidence that K.W. was digitally penetrated by her cousin. Docket No. 81 at 3, ¶ 2. He argues that such evidence was exculpatory and would have explained K.W.'s injuries.
[¶21] Trial counsel, however, testified that she personally spoke to the child who had the information relating to the digital penetration, and that the child "backed down on her story saying that she had not seen anything happen, but had only heard about it." Docket No. 83, Attchm. A. Counsel went on to testify that she was not willing to run the risk of calling the child as a witness and having to deal with testimony that might be inconsistent and more detrimental than exculpatory. Docket No. 83 at 1-2, ¶ 3. Under these circumstances, counsel's failure to move for a continuance, to develop evidence based on a child's recanted version of what took place, did not amount to incompetent assistance.
[¶22] Even assuming otherwise, arguendo, Eagle (as was the case on his direct appeal) has failed to make any showing whatsoever that the District Court erred in excluding the alleged sexual misconduct evidence or that it violated his constitutional rights. Eagle, 137 F2d at 1015 (citing United States v. Eagle Thunder, 893 F2d 950, 954 (8th Cir. 1990); United States v. Rouse, 111 F3d 561, 569 (8th Cir.), cert. denied, 118 S. Ct. 261 (1997)). Eagle therefore has failed to sustain his burden of proving that he was prejudiced by his trial counsel's conduct.
[¶23] Eagle's third claim of ineffectiveness is premised on trial counsel's failure to object to the hearsay testimony of Kohl (referred to as Cole in Eagle's brief) and Crawford. Docket No. 81 at 3, ¶ 3. Eagle asserts that by objecting to such testimony, trial counsel could have excluded the only evidence (other than K.W.'s own testimony) implicating him in the sexual abuse offense for which he was ultimately convicted.
[¶24] Eagle does not detail what hearsay statements were elicited from Kohl (other than testimony, which is addressed below, relating to Eagle's 1987 Carnal Knowledge conviction in federal court) or how he was prejudiced by these statements. Without something more than mere conclusory allegations, Eagle cannot obtain § 2255 relief. Azure v. United States, 925 F. Supp. 671, 681 (D.S.D. 1996).
[¶25] With respect to the hearsay statements testified to by Crawford, trial counsel's failure to object was not unduly prejudicial to Eagle's defense because such evidence was admissible under the circumstances of the case, see Eagle, 137 F3d at 1015 (citing United States v. St. John, 851 F2d 1096, 1097-98 (8th Cir. 1988)), and therefore would have likely have been admitted anyway, see Cheek, 858 F2d at 1338. In addition, Crawford's testimony was limited to K.W.'s description of how "her uncle had touched her." T.Tr. 32. In light of K.W.'s far more detailed testimony of what Eagle did to her, see T.Tr. 47-62, 71-72, Crawford's testimony did not result in unfair prejudice or serve to taint the reliability of Eagle's trial.
[¶26] Eagle next claims that trial counsel provided him with inadequate representation when she failed to object to testimony, regarding his 1987 Carnal Knowledge conviction, that was elicited by the Government from Kohl and Bretzke. Docket No. 81 at 4, ¶ 4. The record, however, reveals that counsel did object to the admission of this prior conviction evidence and that the District Court ruled that such evidence was admissible. T.Tr. 121-30. Significantly, the Eighth Circuit concluded that the District Court did not abuse its discretion in admitting such evidence. Eagle, 137 F3d at 1015-16. Eagle thus cannot now be heard to complain that he was prejudiced by the admission of such evidence.
[¶27] Eagle further claims that trial counsel's performance was ineffective because she "failed to object to numerous leading and suggestive questions posed by the prosecution to [K.W.]". Docket No. 81 at 4, ¶ 5. Eagle does not specify when, during direct examination, counsel should have objected or how he was prejudiced by counsel's nonfeasance. This lack of specificity alone is enough to deny Eagle's ineffectiveness claim. Azure, 925 F. Supp. at 681. Moreover, trial counsel's failure to object to leading questions may very well have been a strategic decision on her part to avoid any impression that she was badgering or being mean to K.W., and thereby garner sympathy for the child, and to bolster or at least maintain her credibility with the jury. Such a trial tactic plainly undermines Eagle's ability to satisfy the deficient performance prong of the Strickland test.
[¶28] Aside from this, the Eighth Circuit has permitted the use of leading and suggestive questions in cases like the instant one involving a young, reticent child witness. See United States v. Longie, 984 F2d 955, 958 (8th Cir. 1993); United States v. Iron Shell, 633 F2d 77, 92 (8th Cir. 1980), cert. denied, 450 US 1001 (1981); see also, United States v. DeMarrias, 876 F2d 674, 678 (8th Cir. 1989); United States v. Rossbach, 701 F2d 713, 718 (8th Cir. 1983), cert. denied, 498 US 827 (1990); United States v. Littlewind, 551 F2d 244, 245 (8th Cir. 1977). This Court has reviewed the transcript of K.W.'s testimony and is satisfied that the Government's use of leading questions was not excessive and was necessary under the circumstances. T.Tr. 39-62, 71-72. The transcript also reflects that the principal evidence against Eagle was elicited through open-ended, non-leading questions. T.Tr. 47-61.
[¶29] Curiously, Eagle argues that the lack of any objection by trial counsel allowed the Government "unfettered discretion" in framing its questions and resulted in responses from K.W. that had "virtually no probative value". Docket No. 81 at 4, ¶ 5. If counsel failed to object to evidence and testimony that had little or no probative value, as Eagle asserts, how then can he possibly establish that counsel's omissions had an adverse effect on the outcome of his case?
[¶30] Eagle additionally claims, without any elaboration, that trial counsel's failure to question K.W. on re-cross examination made counsel's performance ineffective. Docket No. 81 at 4, ¶ 5. Even if it can be shown that counsel's decision not to further question the child was trial strategy that was professionally unreasonable, which this Court seriously doubts can be done, nonetheless, counsel's actions or lack thereof alone cannot rise to the level of constitutional ineffectiveness without a showing of prejudice. The Court can think of a number of reasons why counsel may have chosen not to question the child a second time(fn3) and does not believe, particularly in view of the Government's brief redirect examination, that any real prejudice occurred that served to affect the integrity of the jury's decision.
[¶31] Finally, Eagle claims that trial counsel's failure to "require a pretrial discovery order from the prosecution mandating the release of all discovery materials" somehow made her representation subpar. Docket No. 81, at 4, ¶ 6. A cursory review of the court file, though, indicates that a discovery order was entered on January 30, 1997 by the District Court, less than one week after Eagle's initial appearance, Docket No. 8, and that counsel executed a stipulation, approved by the Court, regarding the handling of discovery materials provided by the Government, Docket No. 15. These filings belie the validity of Eagle's claim and soundly defeat any contention that his counsel's actions were deficient or that he was in any way prejudiced.
[¶32] Eagle cites to and relies on the case of Freeman v. Class, 911 F. Supp. 402 (D.S.D. 1995), aff'd., 95 F3d 639 (8th Cir. 1996) in support of his claims of ineffective assistance of trial counsel. Freeman, however, is inapposite. Unlike the case at hand, counsel's performance in Freeman was egregious and warranted habeas relief. By contrast, the performance of counsel here, while perhaps not a model of perfection, was nevertheless within the bounds of prevailing professional norms and/or did not result in prejudice that affected either the reliability or fairness of the outcome.
2. PROSECUTORIAL MISCONDUCT.
[¶33] Eagle contends that the Government's delay in turning over Dr. Ephgrave's September 21, 1992 medical report until the morning of trial amounted to prosecutorial misconduct. Docket No. 81 at 4. According to Eagle, the report was "exculpatory in nature and resulted in significant prejudice to his due process rights." Id. Prosecutorial misconduct may so infect the trial with unfairness as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 US 637, 643 (1974). To constitute a due process violation, however, the prosecutorial misconduct must be "'of sufficient significance to result in the denial of a defendant's right to a fair trial.'" United States v. Bagley, 473 US 667, 676 (1985) (quoting United States v. Agrus, 427 US 97, 108 (1976)).
[¶34] At the outset, Eagle's assertion that the Government waited until the day of trial to deliver the medical report is factually incorrect. The record indicates that the report and other materials relating to K.W.'s 1992 injuries were provided to Eagle fifteen days before trial in accordance with the District Court's Discovery Order. See Docket Nos. 8, 81, Attchms. A, ¶ 4 & B. Trial counsel reviewed the report and accompanying materials before trial and thereafter drew various conclusions and formulated a trial strategy based on information gleaned from the same. Docket No. 81, Attchm. A, ¶ 4; T.Tr. 36-38, 157-161.
[¶35] More importantly, because Eagle cannot prove that a Brady(fn4) violation has occurred, his prosecutorial misconduct contention must necessarily fail. It appears clear from the record that the Government did not suppress or disclose the medical report in an untimely fashion, that the report, when read in conjunction with the other related documents submitted with it, was inconclusive and that the same was not material to the issue of guilt or punishment (i.e., there is no "reasonable probability" that, had the report been produced at an earlier point in time in the case, the result of the proceeding would have been different). See United States v. Duke, 50 F3d 571, 577 (8th Cir.) (quoting Bagley, 473 US at 682), cert. denied, 516 US 885 (1994); see also, Ashker v. Class, 152 F3d 863, 867-68 (8th Cir. 1998)).
[¶36] In any event, the circumstances surrounding the disclosure of the medical record were not significant enough to deny Eagle's right to a fair trial or to undermine this Court's confidence in the result reached by the jury.
CONCLUSIONS AND RECOMMENDATIONS
[¶37] Upon due consideration of the record and in light of applicable precedent, this Court believes that Eagle is not entitled to relief under § 2255 and that his Amended Motion should be dismissed. Accordingly, based on the foregoing findings of fact and legal discussion and pursuant to 28 USC § 636(b)(1)(B) and (C), it is hereby
[¶38] RECOMMENDED that Eagle's Motion For Evidentiary Hearing, Docket No. 78, be DENIED. It is further
[¶39] RECOMMENDED that Eagle's Amended Motion Under 28 USC § 2255 to Vacate, Set Aside or Correct Sentence by Person in Federal Custody be DENIED in all respects and DISMISSED with prejudice.
Footnotes
1. The Honorable Charles B. Kornmann, United States District Judge, presiding.
2. "Ch'na" is a Lakota word meaning vagina. T.Tr. 74-75, 156-57.
3. For example, counsel may have simply decided that in view of the Government's limited redirect examination, it was not necessary for her to ask K.W. any additional questions. Counsel may also have been motivated by a desire to avoid the appearance of browbeating the child in an effort to stay in good graces with the jury. Finally, counsel may well have been prompted by a perceived need to get the child off the witness stand and out of the courtroom so that the jury would not have more time to feel sorry for her or credit her testimony.
4. See Brady v. Maryland, 373 US 83 (1963).
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