UNITED STATES OF AMERICA,
Plaintiff,
v.
TIMOTHY DUANE ARCOREN,
Defendant.
[1999 DSD 25]
United States District Court
District of South Dakota-Central Division
CR. 89-30049/CIV. 97-3020
REPORT AND RECOMMENDATION
FOR DISPOSITION
Tara L. Adamski, Adamski & Brugger, Pierre, SD
Bernard E. Duffy, Ft. Pierre, SD
Attorneys for Petitioner
David L. Zuercher, U.S. Attorney's Office, Pierre, SD
Attorney for Respondent.
Filed July 27, 1999
Mark A. Moreno, United States Magistrate Judge
INTRODUCTION
[¶1] The above-captioned 28 USC § 2255 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, Timothy Duane Arcoren's (hereinafter Arcoren) 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. 133.
[¶2] After careful scrutiny of the record and based on the totality of the circumstances present, this Court does now make and propose the following findings of fact, report and recommendation for disposition.
PROCEDURAL HISTORY
[¶3] Arcoren was indicted on four counts of aggravated sexual abuse by use of force, 18 USC §§ 1153 & 2241(a)(1) and one count of sexual abuse of a minor, 18 USC §§ 1153 & 2243. Docket No. 2. Counts I and II charged Arcoren with aggravated sexual abuse of Brenda Brave Bird; Counts III and IV charged him with aggravated sexual abuse of C.B., a female child; Count IV charged him with sexually abusing C.B. and Count V charged him with sexually abusing C.B. by knowingly engaging in a sexual act with her. Id. He was arrested, arraigned and thereafter detained pending trial. Docket Nos. 3, 6, 7. On January 25, 1990, a jury found Arcoren guilty of aggravated sexual abuse of Brave Bird (Count I) and C.B. (Count III), guilty of the lesser included offense of abusive sexual contact involving Brave Bird on Count II and guilty of sexual abuse of C.B. (Count V). Docket No. 73. The jury, however, acquitted him of the aggravated sexual abuse charge relating to C.B. as charged in Count IV of the indictment. Id. The trial court later sentenced Arcoren to 400 months imprisonment on Counts I and III, 120 months imprisonment on Count II and 60 months on Count V, with all five sentences to run concurrently, and imposed a special assessment of $200. Docket No. 100.
[¶4] Subsequently, Arcoren appealed his convictions. Docket No. 102. The Eighth Circuit Court of Appeals affirmed the trial court's judgment as to Counts I, II and III but reversed the Judgment on Count V and remanded the case for a new trial on that Count. Docket Nos. 116-17. The United States Supreme Court thereafter denied certiorari. The Eighth Circuit and Supreme Court decisions are reported at Arcoren v United States, 929 F2d 1235 (8th Cir.), cert. denied, 502 US 913 (1991). Plaintiff, United States of America, (hereinafter government) ultimately dismissed Count V, thereby obviating the need for a re-trial. Docket No. 118.
[¶5] Arcoren later filed a motion under to vacate, set aside or correct his sentence and included with the motion separate motions for leave to proceed in forma pauperis and for the appointment of counsel. Docket Nos. 129, 131, 132. Following the District Court's order of reference, Docket No. 133, this Court granted Arcoren leave to proceed in forma pauperis and appointed counsel for him. Docket Nos. 134, 143.
[¶6] In his § 2255 motion, Arcoren claims that:
1. The trial court improperly exercised subject matter and personal jurisdiction over the criminal proceedings that resulted in his convictions;
2. That his rights to a fair trial and to due process of law were contravened by virtue of the government's prosecutorial misconduct;
3. That he was denied effective assistance of counsel due to the acts or omissions of his trial counsel; and
4. That the trial court abused its discretion and committed plain error in its actions and conduct, thereby prejudicing rights guaranteed to him under the Constitution.
Docket Nos. 129 at 5-6a, 131 at 55-77, 148 at 16-33, 151 at 4-7.
[¶7] The government denies that Arcoren is entitled to any relief under § 2255 and moved for a dismissal of the motion, contending that the same is untimely. Docket No. 149 at 1-2.
FACTS
[¶8] Arcoren's convictions stem from and arise out of events that transpired on September 17, 1989 at his apartment in St. Francis, South Dakota, located on the Rosebud Indian Reservation. T.Tr.
[¶9] After attending a dance and consuming alcoholic beverages, Arcoren, a thirty-three-year-old Indian, Docket No. 6, returned to his apartment at approximately 3:00 a.m., accompanied by his nephew, brother and four girls - including C.B., Brenda Brave Bird's fifteen-year-old niece. T.Tr. 20-21, 53-55, 310, 317, 325-26. Brave Bird, Arcoren's pregnant wife from whom he had separated just two days before, was not in the apartment at the time. T.Tr. 101, 109-15. Shortly after arriving, Arcoren and C.B. went into the bedroom while the others played music on the stereo in the living room. T.Tr. 56-57, 71-72, 312. Some time around 5:00 a.m., Brave Bird arrived at the apartment, argued with Arcoren, and left. T.Tr. 21-22, 57-58, 115-16, 331-33. Arcoren then went back into the bedroom and had consensual sexual intercourse with C.B. T.Tr. 21-23, 58-59. Brave Bird subsequently returned to the apartment and discovered Arcoren and C.B. in the bedroom together. T.Tr. 117-18, 334-35. Thereafter, Arcoren forcibly pulled Brave Bird into the bedroom; verbally and physically abused her; prevented Brave Bird and C.B. from leaving the room; and, for the next several hours, forced both of them to have sexual intercourse with him. T.Tr. 25-30, 84-86, 97-98, 101, 119-23, 204-15, 221-24, 337-38.
[¶10] Later that same morning, while Arcoren was asleep, Brave Bird ran out of the apartment, left in Arcoren's car, flagged down John Two Eagle, a tribal police officer, and reported the rapes. T.Tr. 83-86, 313. Following Two Eagle's directives, Brave Bird proceeded to the hospital in Rosebud, South Dakota, for medical treatment. T.Tr. 86-96. There, she advised both Carol Edwards, an emergency room nurse, and Teresa Mareska, a family physician, of the beatings and sexual assaults. T.Tr. 94-101. Brave Bird also described the assaults to Phillip Charles, a Criminal Investigator for the Bureau of Indian Affairs (BIA). T.Tr. 218, 221-24, 226, 228.
[¶11] Three days later, Brave Bird testified before a federal grand jury in Rapid City, South Dakota, and described in graphic detail the physical and sexual assaults that Arcoren had perpetrated on both herself and C.B. Docket No. 152, Ex.3; T.Tr. 204-15.
[¶12] At trial, C.B. testified that she and Arcoren initially had consensual sexual intercourse; that after Brave Bird arrived, Arcoren verbally and physically abused Brave Bird, and then forced she and Brave Bird to have intercourse with him as the other watched. T.Tr. 23-30, 43, 51.
[¶13] In his trial testimony, Two Eagle related that when Brave Bird stopped him on the road the morning of September 17th, she had a swollen face, a cut on the bridge of her nose, bloody clothing and was "really upset". T.Tr. 84-85. According to Two Eagle, Brave Bird told him that Arcoren "had assaulted her most of the night, forced her to stay at the apartment there on the east side of the town and raped her and that there was another girl there [she identified as C.B.] that was being forced to stay at [the] apartment by [Arcoren] and that he raped her, too." T.Tr. 85-86.
[¶14] Edwards, the receiving nurse at the hospital, observed that upon arrival, Brave Bird was "crying and upset" and complained that she had been beaten up and raped twice. T.Tr. 96-98.
[¶15] Dr. Mareska, the treating physician, testified that Brave Bird reported being "assaulted" by an individual named "Tim" and "forced in some sexual activities" including entry into her vagina. T.Tr. 100-01. In her physical examination, Dr. Mareska noted that Brave Bird was thirty-four weeks pregnant and had a straight-line cut along her temple, a half-inch bruise on her nose, three small, fresh scabs around her navel, multiple bruises on her knee-caps and swelling around her shin area. T.Tr. 101-03. In Dr. Mareska's opinion, the swelling that was observed in and around Brave Bird's legs was consistent with being kicked. T.Tr. 103-04.
[¶16] Charles, the Criminal Investigator who interviewed Brave Bird at the emergency room the afternoon of September 17th, described Brave Bird's account of the vicious attacks Arcoren subjected Brave Bird and C.B. to for several hours earlier that day. T.Tr. 221-24.
[¶17] When the government called Brave Bird as a witness in its case in chief, she recanted her prior grand jury testimony. T.Tr. 114, 116-17, 121-36, 145-46, 180-87. Specifically, she denied Arcoren had raped her and that she had seen he and C.B. have sexual intercourse, and maintained that the bruises Dr. Mareska observed in the emergency room resulted from an earlier "motor bike wreck". T.Tr. 133-42, 166-67, 169, 171-72, 176, 178-87, 189-98. When the government confronted her with her contradictory testimony, Brave Bird indicated that she could not remember making the statements or that, where she did recall making them, they were factually incorrect. T.Tr. 121-148, 178-87. She maintained that when she made the statements shortly after her encounter with Arcoren, accusing him of raping her, she was angry with him because he was with another woman and not because he raped her. T.Tr. 165-67.
[¶18] Arcoren testified in his own defense. T.Tr. 323-51. He admitted that he had argued with Brave Bird over C.B. during the night in question and "accidentally" bloodied her nose, but insisted that they later made up and then had consensual intercourse in his bedroom while C.B. was asleep. T.Tr. 335-41. He also testified that Brave Bird and C.B. could have left at any time and that he "did not make any sexual contact with [C.B.] whatsoever." T.Tr. 340-41, 347-48.
DISCUSSION
I
TIMELINESS OF ARCOREN'S MOTION
[¶19] In its written response, the government moves for the dismissal of Arcoren's § 2255 motion on the ground that the same is time-barred. Docket No. 149 at 1-2. The government asserts that the motion is untimely under the one-year limitation period found in § 2255.(fn2) This provision became effective on April 24, 1996, with the enactment of the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, Title I, § 105, 110 Stat. 1220 (1996) (AEDPA).
[¶20] The government's timeliness assertion, however, appears in this case to be clearly foreclosed by the Eighth Circuit's recent pronouncements in Moore v. United States, 173 F3d 1131, 1132-36 (8th Cir. 1999), and Nichols v. Bowersox, 172 F3d 1068, 1069-77 (8th Cir. 1999) (en banc); see also, Henderson-El v. Maschner, No. 98-2905, 1999 WL 415440 of **1-2 (8th Cir. June 23, 1999). A review of the record reveals that Arcoren's § 2255 motion was filed with the clerk on April 23, 1997, one day before the deadline for filing such a motion under § 2255's one-year grace period. This being the case, Arcoren's motion is timely and the government's dismissal motion is without merit and must be denied. Id.
II
EVIDENTIARY HEARING
[¶21] Arcoren requests that this Court grant him an evidentiary hearing on his motion. Docket Nos. 130 at 8 and addendum thereto, 148 at 333, 151 at 7. An evidentiary hearing, however, need not be held (1) if the defendant'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 [defendant] is not entitled to relief." Standing Bear v. United States, 68 F3d 271, 272 (8th Cir. 1995), cert. denied, 517 US 1147 (1996); 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).
[¶22] Arcoren's 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 Arcoren 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.
III
JURISDICTION
[¶23] Arcoren contends that the trial court lacked jurisdiction over the aggravated sexual abuse and abusive sexual contact charges for which he was convicted and later sentenced. Docket Nos. 129 at 6, 130 at 55-60, 148 at 16-19, 151 at 4. Both of these offenses were at the time, and are today, among the crimes enumerated in the Major Crimes Act, 18 USC § 1153.(fn3) The gist of Arcoren's contention is that the trial court deprived the Rosebud Sioux Tribe (RST) of its "sovereign jurisdiction" over the "charges" filed against him (which he argues were "originated" in tribal court) and by doing so "subverted" the tribal constitution and "circumvented" tribal authority. Docket Nos. 129 at 5, 130 at 55-59, 148 at 16-19. Although not altogether clear, Arcoren seems also to contend that the trial court should have "stayed its hand" of the criminal prosecution to afford the tribal court a full opportunity to determine its jurisdiction over the controversy. Docket Nos. 130 at 57, 148 at 17.
[¶24] The Major Crimes Act was inspired by and passed in direct response to the Supreme Court's decision in Ex Parte Crow Dog, 109 US 556 (1883). There, the Court held that the federal court lacked jurisdiction to try an Indian for the murder of another Indian in Indian country. 109 US at 557, 572. While recognizing Congress's authority to confer such jurisdiction on federal courts, the Court observed that, in the absence of a clear expression of Congressional intent, the tribe retained exclusive jurisdiction to preside over and punish the offense. Id. at 570-72.
[¶25] The Major Crimes Act - which conferred jurisdiction on federal courts to punish certain offenses - was enacted two years after the Crow Dog decision was handed down and "reflected a view that tribal remedies were either nonexistent or incompatible with principles that Congress thought should be controlling." Keeble v. United States, 412 US 205, 210 (1973). By extending federal jurisdiction to crimes committed by Indians on Indian land, Congress believed that many Indians would be "civilized a great deal sooner by being put under [federal criminal] laws and taught to regard life and the personal property of others." Keeble, 412 US 211-12 (quoting 16 Cong. Rec. 936 (1885) (remarks of Rep. Cutcheon)).
[¶26] In 1886, the Supreme Court upheld the Major Crimes Act as within the power of Congress to regulate Indian criminal activity in Indian country. United States v. Kagama, 118 US 375, 384-85 (1886). Since then, the Court has made clear that its decision in Kagama was not anomalous and has continued to assume the constitutionality of the Act. See Negonsott v. Samuel, 507 US 99, 103 (1993); Oliphant v. Suquamish Indian Tribe, 435 US 191, 203-04 & n.14 (1978); United States v. Antelope, 430 US 641, 648 (1977); Keeble, 417 US at 209; Lone Wolf v. Hitchcock, 187 US 553, 566-67 (1903); United States v. Thomas, 151 US 577, 585 (1894).
[¶27] There can be no question that the Major Crimes Act represents an intrusion of federal power into otherwise exclusive jurisdiction of Indian tribes to punish Indians for crimes committed on Indian land, but the intrusion is a "carefully limited" one. United States v. Wheeler, 435 US 313, 325 n. 2 (1978) (citing Antelope, 430 US at 654 n.1); United States v. Center, 750 F2d 724, 725 (8th Cir. 1984). Despite this intrusion, it appears that the Act does not divest tribes of concurrent authority to prosecute individuals for conduct which constitutes one or more major crimes under the Act. See Wetsit v. Stafne, 44 F3d 823, 825-26 (9th Cir. 1995); W. Canby, American Indian Law in a Nutshell, 135 (2d ed. 1998); F. Cohen, Handbook of Federal Indian Law, 339-41 (1982 ed.).
[¶28] Regardless of whether federal jurisdiction under the Major Crimes Act is exclusive or concurrent with tribal jurisdiction, this Court concludes, based on applicable precedent, that the trial court had jurisdiction to try and sentence Arcoren. Wheeler, 435 US at 330-31; United States v. Wadena, 152 F3d 831, 840 (8th Cir. 1998), cert. denied, 119 S.Ct. 1355 (1999); Standing Bear, 68 F3d at 272; United States v. Demarrias, 876 F2d 674, 675 (8th Cir. 1989); United States v. Allen, 574 F2d 435, 438 & n.5 (8th Cir. 1978); United States v. Walking Crow, 560 F2d 386, 389 (8th Cir. 1977); see also, Negonsott, 507 US at 105; United States v. Azure, 801 F2d 336, 338-39 (8th Cir. 1986); United States v. Broncheau, 597 F2d, 1260, 1264-65 (9th Cir.), cert. denied, 444 US 859 (1979). Because the trial court plainly had jurisdiction under the Act to preside over the major crimes he was convicted of and to sentence him for these crimes, his lack of jurisdiction contention fails.
[¶29] Arcoren's related contention, namely, that the trial court should have deferred criminal prosecution to RST under civil exhaustion principles in diversity cases, must likewise be rejected. Indeed, because Congress chose to place under the jurisdiction of federal courts Indian offenders who commit the crimes of aggravated sexual abuse and abusive sexual contact, and because RST had no felony jurisdiction over these crimes, there was no reason for the court to stay or otherwise delay the federal proceedings. To do so, from a practical standpoint, could have easily resulted in the criminal jurisdiction, conferred to that court by § 1153, being confounded in favor of a tribal misdemeanor prosecution, and lead also to undesirable situations and to the frustration of important federal interests. See Wheeler, 435 US at 330-31; Walking Crow, 560 F2d at 389.
[¶30] In this Court's view, the government's prosecution of Arcoren, for committing major sex crimes under Chapter 109A of Title 18, fell squarely within the federal court's jurisdiction, as defined by Congress in § 1153(a). As such, the trial court had jurisdiction over both Arcoren and the charges lodged against him in the indictment and was authorized to adjudicate and punish him for his misdeeds without infringing upon tribal self-governance.
IV
PROSECUTORIAL MISCONDUCT
[¶31] Arcoren asserts that he was denied due process of law and a fair trial because of misconduct on the part of the prosecutor. Docket Nos. 129 at 5, 130 at 61-67, 148 at 20-25, 151 at 4-5. He argues that the prosecutor "abuse[d] the grand jury process, used "coerced and perjured testimony of a material nature," presented "unsubstantiated evidence to support unfounded contentions," "subvert[ed] his constitutionally protected rights as a tribal member" and "sequester[ed] a material witness for procedurally improper purposes" in violation of "a standing court order of no-contact." Docket Nos. 130 at 61-67, 148 at 20-25.
[¶32] The Supreme Court has observed that "a collateral challenge may not do service for an appeal." United States v. Frady, 456 US 152, 165 (1982); see also, Reed v. Farley, 512 US 339, 354 (1994). "[N] ormally a collateral attack should not be entertained if defendant failed, for no good reason, to use another available avenue of relief." Poor Thunder v. United States, 810 F2d 817, 823 (8th Cir. 1987) (citing Kaufman v. United States, 394 US 217 (1969)). Section 2255 relief is not available to correct errors which could have been raised at trial, or on direct appeal, absent a showing of both "cause" excusing defendant's procedural default and "actual prejudice" resulting from the errors of which he complains, Reid v. United States, 976 F2d 446, 448 (8th Cir. 1992), cert. denied, 507 US 945 (1993) (citing Frady, 456 US at 168) or alternatively, a showing that the alleged errors would result in a "fundamental miscarriage of justice", Schlup v. Delo, 513 US 298, 319-27 (1995); Ramey v. United States, 8 F3d 1313, 1314 (8th Cir. 1993). The miscarriage-of- justice exception allows for review in those "rare" and "extraordinary cases" where "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup, 513 US at 327, (quoting Murray v. Carrier, 477 US 478, 496 (1986)).(fn4)
[¶33] Arcoren offers no "cause" for his procedural default and this Court can find none. Significantly, he does not argue that his appellate counsel(fn5) was ineffective or seek to use such an argument to establish "cause" for his procedural defect. See Reid, 976 F2d at 448; Ford v. United States, 983 F2d 897, 898-99 (8th Cir. 1993). Furthermore, in view of Brave Bird's recantations, C.B.'s prior inconsistent statements and the testimony of Arcoren himself and others, which the jury compartmentalized and credited for and against him in its verdict, Arcoren has failed to shoulder the burden of proving "actual prejudice" within the meaning of Frady(fn6) and its progeny so as to overcome his default. He has likewise failed to satisfy the Schlup/Carrier "actual innocence" standard by showing that "it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." 513 US at 327-29.
[¶34] Having failed to establish the requisite "cause" and "prejudice" to excuse his procedural default, and having failed to make a proper showing of actual innocence, this Court concludes that Arcoren's prosecutorial misconduct assertion is procedurally barred from review under § 2255. Ramey, 8 F3d at 1314.
[¶34] Yet even if Arcoren's assertion is reviewable, he is still not entitled to § 2255 relief.
[¶36] Arcoren maintains that the prosecutor abused the grand jury process by:
1. Pursuing an investigation and seeking an indictment in a criminal matter under the exclusive jurisdiction of RST, and which the grand jury had no authority over;
2. Calling and soliciting testimony from witnesses the prosecutor knew had recanted their statements about what happened on September 17, 1989; and
3. Not offering exculpatory evidence.
Docket Nos. 130 at 61-65, 148 at 20-23.
[¶37] At the outset, as an "appendage" of the trial court, see Brown v. United States, 359 US 41, 49 (1959) that is subject to the "supervisory powers" of the court, see 1 C. Wright, Federal Practice & Procedure: Criminal 3d § 101, n.18 (1999), the grand jury sitting for the instant case was authorized to hear and consider evidence of Arcoren's alleged criminal conduct within the District of South Dakota and to return an indictment against him, see United States v. Calandra, 414 US 338 (1974); Branzburg v. Hayes, 408 US 665 (1972); Fed. R. Crim. P. 6. Because the court had criminal jurisdiction over Arcoren and the offenses he was indicted on, see ante at 8-12, it necessarily follows, a fortiori, that the grand jury for the District would have broad authority to inquire into law violations brought to light by Brave Bird and C.B. and make probable cause determinations regarding the same.
[¶38] Arcoren contends that after obtaining an indictment against him from a grand jury in the District of South Dakota, the prosecutor went outside the District to another district "for the sole purpose of taking the sworn testimony of [C.B.] ." Docket No. 130 at 66, 148 at 24. The record, however, reflects that Arcoren was indicted in Rapid City on September 20, 1989, by a grand jury empaneled for the District, and that C.B. appeared before and gave testimony to the same grand jury at a session held in Sioux Falls on or about November 15, 1989. Docket Nos. 97, 130 at 38, 148 at 9, 152, Ex.2; T.Tr. 291-94.
[¶39] Furthermore, it cannot be said that the prosecutor was aware of Brave Bird's desire to retract her initial version of what took place at the time he questioned her before the grand jury on September 20, 1989. Moreover, while the prosecutor, by November 15, 1989, was apparently apprised of the fact that C.B. had talked to Brave Bird, Arcoren and trial counsel and as a result may have suspected that C.B. might try to change some of her original story, see Docket No. 15, the child chose not to do this, instead testifying truthfully and providing the grand jury with testimony the trial court found to be "credible". Sent. Tr. 30.(fn7)
[¶40] Arcoren also complains that the prosecutor failed to present certain critical exculpatory evidence to the grand jury. Docket Nos. 130 at 62-64, 148 at 21-23. The grand jury, however, need only hear the prosecution's side of an investigation and need not be presented with exculpatory evidence in the possession of the prosecutor. United States v. Williams, 504 US 36, 51-52 (1992). A suspect or defendant has no right to have evidence favorable to him presented to a grand jury, just as he has no right to testify himself before such a body. Id. at 51. Even so, a prosecutor may not deliberately mislead a grand jury or instill false impressions to it in an effort to obtain an indictment. United States v. Red Elk, 955 F. Supp. 1170, 1182 (D.S.D. 1997). Yet, absent some evidence of gross purposeful deception on the part of the prosecutor, an indictment legally valid on its face will not be dismissed because of a possibility that some of the evidence presented to the grand jury may have permitted an erroneous adverse inference. Id. Arcoren does not claim that the indictment is invalid on its face. Nor has he met his burden and overcome the strong presumption of regularity afforded to grand jury proceedings or shown that the grand jury was, in fact, misled or deceived by the prosecutor's intentional conduct or that he suffered actual prejudice therefrom. Id.
[¶41] In addition to his assertions of grand jury abuse, Arcoren claims that there was prosecutorial misconduct committed after he was indicted. Docket Nos. 130 at 65-67, 148 at 23-25. First, he argues that the prosecutor violated the trial court's standing order prohibiting the parties from having contact with Brave Bird and C.B., unless authorized by the court. Docket Nos. 130 at 65-66, 148 at 23-24. On October 20, 1989, the government filed a motion for protective order prohibiting defendant and his counsel from taking the depositions of Brave Bird and C.B. and included with its motion a supporting affidavit and memorandum of law. Docket Nos. 11-13. Three days later, the court held a hearing on the motion, took the same under advisement, directed that briefs be filed and entered an interim order that no under-oath statements be taken from either of these two witnesses until the court ruled on the matter. T.Tr. 293, 295; Docket No. 14 (minutes of Oct. 23, 1989 motion hearing). The court subsequently denied the government's motion, in a written order filed on December 20, 1989, but did not address the interim "no-contact" order that it had orally issued at the October 23, 1989 hearing. Docket No. 40. At trial, Arcoren's counsel moved to dismiss the indictment on the ground that the government had violated the court's oral order when it subpoenaed and questioned C.B., under oath, before the grand jury on or about November 15, 1989. T.Tr. 291-94. The court denied the dismissal motion, concluding that there was nothing about the no-contact order that was intended to prohibit the government from conducting further investigatory proceedings before the grand jury in connection with a pending criminal case. T.Tr. 294-95.
[¶42] Second, and as a follow-up to a similar grand jury misconduct assertion he raises, Arcoren claims that the prosecutor's use of Brave Bird's false and recanted testimony in its case in chief at trial amounted to actionable misconduct. Docket Nos. 130 at 65, 148 at 22-23. The court, though, allowed the prosecutor to impeach Brave Bird with her prior grand jury testimony and portions of this testimony were admitted as substantive evidence. T.Tr. 121-36, 145-46, 153-60, 178-87, 204-15. The jury, as evidenced by its verdict, undoubtedly found some of the recanted testimony to be true. The court later specifically found that the grand jury testimony Brave Bird recanted at trial was "credible" and that Arcoren's own trial testimony was not truthful. Sent. Tr. 29-32.
[¶43] Third, Arcoren argues that the prosecutor and/or the criminal investigator threatened and coerced Brave Bird and C.B. into giving perjurious testimony. Docket Nos. 130 at 65-67, 148 at 23-24. The fact that the trial court found Brave Bird and C.B.'s grand jury and trial testimony to be "credible" trumps this argument and with it any contention that the prosecutor and/or investigator pressured or encouraged a witness to testify falsely.
[¶44] Finally, and aside from the foregoing, this Court is satisfied that any assumed prosecutorial misconduct did not infect the pre- and post-indictment proceedings with enough unfairness to render Arcoren's convictions a denial of due process. Louisell v. Director of Iowa Dept. of Corrections, No. 98-2449, WL 346133 at *3 (8th Cir. June 2, 1999); Ashker v. Class, 152 F3d 863, 871-72 (8th Cir. 1998); see also, United States v. Jones, 160 F3d 473, 477-79 (8th Cir. 1998); Thompson v. United States, 7 F3d 1377, 1378-79 (8th Cir. 1993), cert. denied, 511 US 1010 (1994).
V
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard and Applicable Law.
[¶45] "The benchmark for judging any claim of [constitutionally] ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 US 668, 686 (1984). A defendant's claim "that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . . Second, [he] must show that the deficient performance prejudiced [his] defense." Id. at 687; 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). To prevail, the defendant must make a showing of both deficient performance and prejudice. Strickland, 466 US at 687.
[¶46] With respect to the performance prong of the Strickland test, the defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. 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. Id. at 689; Fretwell v. Norris, 133 F3d 621, 623, 625-27 (8th Cir.), cert. denied, 119 S.Ct. 115 (1998).
[¶47] Professionally unreasonable 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 reviewing court will set aside a 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.
B. Motion For Depositions.
[¶48] Arcoren initially contends that he received ineffective assistance when his trial counsel failed to move for leave to take the depositions of Brave Bird and C.B. Docket Nos. 130 at 68, 148 at 25. He argues that such a motion was necessary "to preserve and protect" information Brave Bird and C.B. had provided to counsel about wanting "to retract and recant" the earlier statements they made against Arcoren. Id. Inasmuch as Arcoren has made no showing that "exceptional circumstances" existed requiring, "in the interests of justice", the taking of depositions under Fed. R. Crim. P. 15, see United States v. Hutchins, 751 F2d 230, 236 (8th Cir. 1984), cert. denied, 474 US 829 (1985), he has failed to establish that his counsel's performance was deficient. Strickland, 466 US at 689-91. Nor has he established, particularly in light of Brave Bird and C.B.'s trial testimony, see T.Tr. 44-48, 121-49, 165-98, that his counsel's inactions prejudiced him or somehow made the jury's verdict "unreliable or unfair." Strickland, 466 US at 694-96; see also, Aldrich v. Wainwright, 777 F2d 630, 631-37 (11th Cir. 1985), cert. denied, 479 US 918 (1986).
C. Motion to Dismiss.
[¶49] Arcoren next asserts that trial counsel's failure to move for a dismissal, based on the recantations Brave Bird and C.B. provided to counsel, amounted to ineffective assistance. Docket Nos. 130 at 68, 148 at 25. He does not specify or otherwise describe, with any modicum of particularity, the grounds that would have entitled him to the "drastic" remedy of dismissal. His factual allegations concerning the "deficiency" prong of the Strickland test are vague and conclusory and those relating to the "prejudice" prong of the test are nowhere to be found. His ineffectiveness assertion, therefore, is legally insufficient and subject to dismissal without an evidentiary hearing. Hill v. Lockhart, 474 US 52, 57-60 (1985); Strickland, 466 US at 700; United States v. Robinson, 64 F3d 403, 405 (8th Cir. 1995); Hollis v. United States, 796 F2d 1043, 1046 (8th Cir.), cert. denied, 479 US 965 (1986); Voytik v. United States, 778 F2d 1306, 1308-10 (8th Cir. 1985); Smith v. United States, 677 F2d 39, 41 (8th Cir. 1982); Smith v. United States, 618 F2d 507, 510 (8th Cir. 1980).
D. Frequency of Consultations.
[¶50] Arcoren claims that his trial counsel did not consult with him as much as he desired and as such rendered ineffective assistance. Docket Nos. 130 at 69, 148 at 25-26. Accepting as true Arcoren's allegations that he only met with his counsel on four occasions prior to trial and was never permitted to speak with counsel by telephone, Arcoren has nevertheless failed to demonstrate how these facts affected, in any appreciable manner, the presentation of his defense or prejudiced him within the meaning of Strickland and Fretwell. See United States v. Reed, 756 F2d 654, 657 (8th Cir.) (defendant was not denied effective assistance of counsel because his counsel met with him for only two hours on the day of trial), cert. denied, 474 US 836 (1985).
E. Motion to Withdraw/For Substitution of Counsel.
[¶51] In addition, Arcoren maintains that his trial counsel's failure to move to withdraw or for the appointment of substitute counsel constituted inadequate assistance. Docket Nos. 130 at 169-70, 148 at 26. Arcoren, on his own, first sought to obtain substitute counsel on November 9, 1989 (approximately 3½ weeks before the original trial date). Docket Nos. 8, 130, Exhibit 11(a). Counsel, in a letter dated November 22, 1989, notified the trial court that he had no objection to new counsel being appointed to represent Arcoren. Docket No. 130, Ex. 11(d). One week later, the court wrote Arcoren, acknowledged receipt of his earlier correspondence and advised him that no action could be taken to replace counsel without a hearing being held. Docket No. 130, Ex. 11(e). Arcoren, for whatever reason, did not pursue the matter or bring up the substitution of counsel issue again until nearly three weeks after the trial (which was rescheduled) had concluded. Docket Nos. 81-86, 88-91, 130, Ex. 11(f)-(o). In response to a letter/motion dated March 6, 1990, the court appointed new counsel for Arcoren pending sentencing. Docket Nos. 81-82, 85. One week later, Arcoren's new counsel moved to withdraw because Arcoren no longer wanted counsel to represent him at sentencing or on appeal because of a possible conflict of interest and due process violation. Docket No. 88. The court thereafter appointed Arcoren new counsel again, who went on to represent Arcoren at his sentencing and on appeal. Docket Nos. 90-91; Sent.Tr. 1; Arcoren, 929 F2d at 1237.
[¶52] Under these circumstances, trial counsel's conduct was not objectively unreasonable. Counsel could have easily concluded, based on pretrial correspondence, that Arcoren was attempting to secure substitute counsel on his own and that because he did not request a hearing or otherwise bring the matter to the trial court's attention again before trial, he had decided to continue with counsel for the trial.
[¶52] In any event, Arcoren does not explain how he was prejudiced by trial counsel's alleged nonfeasance, other than to suggest that new counsel would have done a better job for him at trial and perhaps obtained a different result. Assertions such as these, based on speculation and conjecture and lacking in specifics, do not provide a basis for relief under the Strickland test and must be summarily disposed of.(fn8) Payne v. United States, 78 F3d 343, 345-48 (8th Cir. 1996); Voytik, 778 F2d at 1308-10.
F. Motion For Sanctions.
[¶53] Arcoren further argues that his trial counsel's representation was constitutionally ineffective because counsel failed to move for sanctions against the prosecutor for subpoenaing and thereafter obtaining testimony from C.B. before the grand jury, in violation of the trial court's "standing no-contact" order. Docket Nos. 130 at 70, 148 at 26. As already discussed herein, ante at 16, the court specifically ruled that C.B.'s grand jury appearance did not violate the oral no-contact order it earlier entered. T.Tr. 293-94. In view of the court's ruling, and its statements that the order was not designed to prohibit the government from doing further investigative work with the grand jury on matters related to the case, counsel surely could not have been expected to ask that the prosecutor be sanctioned and acted well within his professional bounds in not doing so. Indeed, to press for the imposition of sanctions against the prosecutor could have easily resulted in a backlash, affecting the case and counsel's own credibility with the court. Arcoren thus has not come anywhere close to demonstrating that his counsel's performance was subpar on the sanctions issue, or that he was prejudiced to such an extent that the fairness of his trial was fatally tainted. Strickland, 466 US at 687-700.
G. Motion For Continuance.
[¶54] Arcoren claims that trial counsel provided him with incompetent assistance when counsel filed a motion for continuance that was uncalled for and served only to benefit the government. Docket Nos. 130 at 70, 148 at 27. He asserts that the continuance motion counsel filed afforded the government time to produce the discovery materials complained of in the motion to dismiss counsel had earlier filed and served to render counsel's prior dismissal motion moot. Id.
[¶55] Trial counsel moved to dismiss the case, alleging that the government withheld discovery materials. Docket Nos. 22-23. After the government resisted the motion, Docket No. 32, counsel filed a motion for a continuance. Docket No. 35. The trial court granted the continuance motion based in part on the fact that "certain material and exculpatory evidence" relating to C.B., previously forwarded to the FBI Laboratory for testing and analysis, had not yet been returned and that "because of this delay, [Arcoren was] unable to investigate and subpoena witnesses prior to the commencement of [the December 4, 1989 trial]". Docket No. 37. In doing so, the court found that the "[f]ailure to complete and furnish to [Arcoren] all discovery materials prior to trial could result in a miscarriage of justice." Id. Subsequently, the court denied counsel's dismissal motion, opining that the government's agreement to supply Arcoren with discoverable materials and the seven-week continuance of the original trial date alleviated any possible prejudice to him. Docket No. 42.
[¶56] Trial counsel's decision to move for a continuance, four days before the original trial date, was a tactical one. Counsel, on the eve of trial, had still not received all exculpatory evidence and other discoverable materials. Moreover, the trial court had not yet ruled on his motion to dismiss and time was running out. Counsel evidently did not believe his dismissal motion would likely be granted, and was no doubt fearful that he would be forced to go to trial without being afforded sufficient time to prepare and respond to potentially important evidence. Strategic choices, made after consideration of law and facts relevant to plausible options are "virtually unchallengeable". Strickland, 466 US at 690. Counsel's decision to seek a continuance, despite having filed, some days before, a motion to dismiss, was not professionally unreasonable based on the situation counsel faced at the time. See Nazarenus v. United States, 69 F3d 1391, 1394 (8th Cir. 1995). To find that this tactical decision was so egregious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, would be the very type of "second guessing" Strickland makes clear a reviewing court must avoid. 466 US at 689-90.
[¶57] Even if it was poor judgment on the part of trial counsel to file a continuance motion, which this Court is confident was not the case, nonetheless, counsel's conduct did not prejudice Arcoren's defense or change the result of the proceeding. Strickland, 466 US at 694-96. In fact, it may have been more damning to Arcoren if counsel had not sought a continuance given the circumstances present, including the fact that not all discovery materials had been disclosed. See Docket No. 37 (wherein the trial court found that good cause existed for granting the continuance and that a "miscarriage of justice" could result unless Arcoren was furnished with "all discovery materials prior to trial"); see also, Strickland, 466 US at 700 ("admission of the evidence respondent now offers might even have been harmful to his case").
H. Investigation and Interview of Witnesses.
[¶58] Arcoren contends that his trial counsel failed to investigate, interview and call two witnesses and that these omissions, rendered counsel's representation ineffective. Docket Nos. 130 at 70-71, 148 at 27. He maintains that had counsel conducted a proper fact investigation, interviewed two prospective witnesses, whose names had been provided to him by Arcoren, and called both witnesses at trial, he would have been able to provide the jury with a non-inculpatory explanation for the injuries Brave Bird sustained to her arm and legs. Id. Arcoren first offers what purports to be a post-trial letter from Meyer G. Leading Fighter, Sr., indicating that the bruises on Brave Bird's legs, that were testified to and depicted in evidence received at trial, see T.Tr. 103-04, 140-41, 231-32, were not caused by a forcible rape, but rather, by a motor bike wreck she was involved in on September 15, 1989.(fn9) Docket No. 130, Ex. 20. Dr. Mareska, however, testified that in her opinion, some Brave Bird's leg bruises were inflicted within 24 hours of her examination of Brave Bird (i.e., sometime after noon on September 16, 1989). T.Tr. 95-96, 98, 104-05, and that these bruises were consistent with being kicked, T.Tr. 103-04. Significantly, Brave Bird testified that her bruises resulted from a motor bike accident she had with her brother on September 15th. T.Tr. 141-42, 171-72.
[¶59] Arcoren offers a second letter, in support of his claim, allegedly written by Gervis Fool Bull on July 17, 1990. Docket No. 130, Ex. 19. The letter states that Fool Bull observed Brave Bird get hit in the arm with a rifle on September 17, 1988, by "some guy" named "Huber, from Norris". Docket No. 130, Ex. 19. The letter goes on to say that Brave Bird was thereafter "holding her arm" and "hollered" that "he [Huber] broke her arm." Id. At trial, Brave Bird recanted her grand jury testimony and denied that Arcoren had broken her arm in September, 1988. T.Tr. 144-46.
[¶60] Assuming, without deciding, that trial counsel's performance with respect to Leading Fighter and Fool Bull was deficient, Arcoren was not prejudiced by it because the same evidence both witnesses would have testified to was, in substance, offered at trial for the jury's consideration. T.Tr. 141-42, 144-46, 171-73. Any such evidence was therefore merely cumulative to testimony already presented and would not, in all probability, have had an effect on the jury as to Arcoren's guilt. Strickland, 466 US at 691-96; see also, Walls v. Bowersox, 151 F3d 827, 834-35 (8th Cir. 1998), cert. denied, 119 S.Ct. 1468 (1999); Sanders v. Trickey, 875 F2d 205, 208-212 (8th Cir.), cert. denied, 493 US 898 (1989).
I. Serology Evidence.
[¶61] Arcoren asserts that his right to effective assistance was violated when his trial counsel failed to offer certain expert testimony at trial. Docket Nos. 130 at 71, 148 at 27. He argues that counsel should have called the serology expert the trial court appointed for him, see Docket No. 58, as a witness to show that he did not have sexual intercourse with C.B. Docket Nos. 130 at 71, 148 at 27. Arcoren relies on a report, dated January 23, 1990, from Yvette Thomas to support his contention. Docket No. 130, Ex. 21. In her report, Thomas states that the government's serological analysis (see Docket No. 130, Ex. 14) contained "very little practical information" and that she could not arrive at any conclusions "except for the fact that there was [inconclusive] semen present on vaginal samples from one of the females." Docket No. 130, Ex. 21.
[¶62] Given the equivocal nature of Thomas's report, it was certainly not unreasonable, under prevailing professional norms, for counsel not to call her as a witness. Strickland, 466 US at 688-91. Nazarenus, 69 F3d at 1395. Based on the conclusions described in her report, the testimony offered from Thomas would have had very little, if any, exculpatory value. Indeed, the fact that no semen was found on vaginal samples of only one of the females reinforced, or at least corroborated, C.B.'s trial testimony that she did not think Arcoren ejaculated when he had sexual intercourse with her. T.Tr. 26-27. Moreover, because of the marginal evidentiary significance of any proffered testimony of Thomas, Arcoren cannot come close to showing that he was prejudiced in any meaningful way by counsel's decision not to offer such testimony. Strickland, 466 US at 695-700; Beeman v. State of Iowa, 108 F3d 181, 184-85 (8th Cir.) cert. denied, 118 S.Ct. 131 (1997).
J. Examination of Brave Bird by a "Battered Woman's Syndrome" Expert.
[¶63] Arcoren claims that after the government sought to introduce expert testimony from Carol Maicki as to the "battered woman's syndrome", his trial counsel should have requested a continuance. Docket Nos. 130 at 71, 148 at 27. According to Brave Bird, such a continuance was necessary so that Brave Bird could be "properly examined by an expert in the field." Id. He asserts that counsel was dilatory in not asking for a continuance and allowing this syndrome to be used as a explanation for Brave Bird's recantations. Docket Nos. 130 at 71, 148 at 27-28.
[¶64] Arcoren, however, does not articulate what such an examination would show or how he would have benefitted from it. Nor does he demonstrate how, in view of the fact that Maicki expressed no opinion as to whether Brave Bird suffered from or displayed symptoms of the syndrome, Arcoren, 929 F2d at 1239, he was prejudiced and that prejudice undermined the fairness of the trial proceeding. Because he has failed to sustain his burden of proving "prejudice" sufficient to obtain habeas relief, this Court need not consider the propriety of counsel's performance. Strickland, 466 US at 697; Blankenship, 159 F3d at 338.
VI
ABUSE OF DISCRETION AND PLAIN ERROR
[¶65] Arcoren contends that the trial court abused its discretion and committed "plain error" in ruling or not ruling on various matters both before and during the trial. Docket Nos. 130 at 73-77, 748 at 29-31. Most, if not all of the "abuses" and errors" he complains of have been addressed and dealt with herein already in one form or another. See ante at 16-17, 20-22, 27. Significantly, every one of these so-called "abuses" and "errors" he could and should have raised on direct appeal, but did not. Because he has failed to show both "cause" and "actual prejudice" for his procedural default or show that the errors he complains of would result in a "fundamental miscarriage of justice", he is barred from obtaining review of the same.
[¶66] Assuming though, that collateral review of Arcoren's contention is called for in this instance, he nonetheless cannot obtain § 2255 relief on it. Contrary to his assertions, the trial court did not abuse its discretion or commit plain error in what it did or failed to do. Even if some "abuse" or "error" can be found, which this Court is doubtful of, the same was harmless beyond a reasonable doubt. See Chapman v. California, 386 US 18, 24 (1967); Charlton v. Morris, 53 F3d 929 (8th Cir. 1995); see also, Delaware v. Van Arsdall, 475 US 673, 681 (1986) ("[A] n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt").
CONCLUSION AND RECOMMENDATION
[¶67] Upon due consideration of the record and in light of applicable precedent, this Court believes that Arcoren is not entitled to relief under § 2255 and that his 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
[¶68] RECOMMENDED that Arcoren's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, Docket No. 129, be DENIED in all respects and DISMISSED with prejudice.
Footnotes
1. The Honorable Charles B. Kornmann, United States District Judge, presiding.
2. Section 2255 provides in pertinent part:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -
- the date on which the judgment of conviction becomes final;
- the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
- the date on which the right asserted by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
- the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
3. At the time Arcoren's case was pending, § 1153 declared as federal crimes, thirteen named offenses committed by Indians in Indian country. Congress supplemented the Act with a jurisdiction statute, 18 USC § 3242, which provides that Indians prosecuted under § 1153 "shall be tried in the same courts and in the same manner as are all other persons committing such offense[s] within the exclusive jurisdiction of the United States."
4. Whether this exception even applies in non-capital cases appears to be an open question among the circuits. See 2 J. Liebman & R. Hertz, Federal Habeas Practice & Procedure, § 26.4, n.17 (3d ed. 1998).
5. Arcoren was represented by different counsel at his sentencing and on appeal than he had at trial.
6. Under Frady, defendant must show not merely that the actions and conduct assailed "created a possibility of prejudice but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." 456 US at 170.
7. It appears that the prosecutor subpoenaed C.B. before the grand jury to investigate possible witness tampering law violations. See 18 USC § 1512. See Docket No. 152, Ex. 2.
8. Aside from having failed to show that his counsel's alleged deficiencies resulted in prejudice that was outcome-determinative, Arcoren has likewise failed to demonstrate, under applicable standards, see Hunter v. Delo, 62 F3d 271, 274-75 (8th Cir. 1995); see also, United States v. Long Crow, 37 F3d 1319, 1324-25 (8th Cir. 1994), cert. denied, 513 US 1880 (1995), that he was entitled to substitute counsel prior to trial.
9. Leading Fighter's letter does not say whether he attended Arcoren's trial; just that his sister, Brave Bird, "informed" him of the bruises on her legs some time after her September 20, 1989 grand jury testimony and that he believed Arcoren should be given a "re-trial". Docket No. 130, Ex. 20.
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