United States v. One Star, 2008 DSD 19
UNITED STATES OF AMERICA,
ROY B. ONE STAR,
[2008 DSD 19]
United States District Court
District of South Dakota--Central Division
REPORT AND RECOMMENDATIONS
FOR DISPOSITION OF MOTION
UNDER §2255 TO VACATE,
SET ASIDE OR CORRECT SENTENCE
Roy B. One Star, Pro Se
Wade Allen Reimers,
Olinger, Lovald,McCahren & Reimers, P.C., Pierre, SD
Attorney for Defendant.
Jan Leslie Holmgren, US Attorney's Office, Sioux Falls, SD
Randolph J. Seiler, Eric D. Kelderman
US Attorney's Office, Pierre, SD
Attorneys for Plaintiff.
Opinion Filed July 21, 2008
Moreno, Mark A., United States Magistrate Judge
[¶ 1] The above-captioned 28 USC §2255 case was referred to this Court, pursuant to 28 USC §636(b)(1)(B), for the purpose of conducting any necessary hearings, including evidentiary hearings, and submitting proposed findings of fact and recommendations for disposition thereof. (1) Having carefully reviewed and considered all of the records on file and being fully advised in the premises, the Court does now make and propose the following findings, report and recommendations for disposition of the case.
[¶ 2] Defendant, Roy B. One Star (One Star), an Indian, was indicted on and found guilty of six counts of aggravated sexual abuse of his two minor daughters, R.O.S. and J.O.S., in violation of 18 USC §§1153, 2241(c) and 2246(2) and one count of the lesser included offense of simple assault on one of the daughters, R.O.S., contrary to 18 USC §§1153 and 113(a)(5). The District Court sentenced One Star to life in prison on each of the aggravated sexual abuse counts and to one year in prison on the simple assault count, with all sentences to run concurrently.
[¶ 3] On appeal, One Star raised two issues, namely (1) whether the prosecutor violated his constitutional right to remain silent by soliciting an FBI agent's testimony regarding his post-Miranda silence; and (2) whether there was sufficient evidence to convict him of aggravated sexual abuse. The Eighth Circuit Court of Appeals, however, affirmed the District Court's Judgment. United States v. One Star, 465 F3d 828, 829, 834 (8th Cir. 2006).
[¶ 4] One Star then filed a timely Motion under §2255 to vacate, set aside or correct his sentence. In his Motion, One Star claims that his trial counsel was ineffective because counsel (1) knew One Star was mentally incompetent; (2) prevented One Star from testifying at trial; and (3) did "not forc[e] [One Star] and advis[e] [him] in writing and orally" to accept a "10 year plea offer." The District Court thereafter ordered Plaintiff, United States of America (Government), to serve and file an answer or responsive pleading and supporting memorandum. The Court, at the same time, referred the case to this Court to handle on a report and recommendation basis.
[¶ 5] The Government complied with the District Court's Order, filing an Answer, containing a Motion to Dismiss for failure to state a cognizable claim under §2255, a supporting Memorandum and an Affidavit signed by trial counsel. One Star did not reply to any of the Government's submissions.
[¶ 6] The relevant facts are specifically set forth in the Eighth Circuit's decision, See One Star, 465 F3d at 830-31, and may be briefly summarized as follows.
[¶ 7] R.O.S. and J.O.S. testified that their father, One Star, began sexually abusing them when they were 6 years old and continued to do so for several years. They described how the abuse escalated from inappropriate touching to vaginal intercourse and other illicit sexual activity. R.O.S. also described how One Star physically abused she and J.O.S. (by choking J.O.S. and beating R.O.S. with a broom handle). The Government's case rested primarily on the credibility of R.O.S. and J.O.S., both of whom initially denied One Star had abused them and admitted to having difficulty remembering what had happened. Neither R.O.S. nor J.O.S. reported or complained about the abuse while it was occurring. They testified that they tried to forget what One Star did to them and were reluctant to speak out against him because he had threatened them and they were afraid of him. There was corroborating circumstantial evidence to support the girls' testimony, including physical evidence of damage to J.O.S.'s hymen and R.O.S.'s back and genital pain. The jury resolved the credibility issues in favor of the Government and convicted One Star of sexually abusing both girls and to assaulting R.O.S.
[¶ 8] Although One Star has not filed a motion seeking to have counsel appointed for him, in light of the District Court's referral order, this Court must nonetheless decide whether he is entitled to the appointment of counsel in this instance.
[¶ 9] At the outset, it must be observed that there is neither a constitutional nor a statutory right to counsel in §2255 proceedings; instead, the appointment of counsel is committed to the discretion of the reviewing court. See Pennsylvania v. Finley, 481 US 551, 555 (1987); Baker v. United States, 334 F2d 444, 447-48 (8th Cir. 1964). The court, however, may appoint counsel in a §2255 case if the interests of justice so require. 18 USC §3006A(a)(2)(B); 28 USC §2255(g). If the court conducts an evidentiary hearing, the interests of justice require the appointment of counsel. Rule 8(c) of the Rules Governing §2255 Proceedings (§2255 Rules) ("If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 USC §3006A.") (emphasis added); See also Roney v. United States, 205 F3d 1061, 1063 (8th Cir. 2000). If no evidentiary hearing is necessary, the appointment of counsel is discretionary. Hoggard v. Burkett, 29 F3d 469, 471 (8th Cir. 1994); Yellow Hawk v. United States, 314 FSupp2d 921, 927 (DSD 2004).
[¶ 10] In exercising its discretion, a court should first determine whether the §2255 movant has presented a non-frivolous claim. Abdullah v. Norris, 18 F3d 571, 573 (8th Cir.), cert. denied, 513 US 857 (1994); Gomez v. United States, 100 FSupp2d 1038, 1042 (DSD 2000). If the movant has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on the merits without appointing counsel. Rule 4 of the §2255 Rules. If the movant has presented a non-frivolous claim, the court should then determine whether, given the particular circumstances of the case, the appointment of counsel would benefit the movant and the court to such an extent that "the interests of justice so require it." §3006A(a)(2)(B); Nachtigall v. Class, 48 F3d 1076, 1081 (8th Cir. 1995). In determining whether the appointment of counsel is necessary for a movant seeking relief with non-frivolous claims, the court should consider the legal and factual complexity of the case, the movant's ability to investigate and present claims and any other relevant factors. McCall v. Benson, 114 F3d 754, 756 (8th Cir. 1997); United States v. Hill, 171 FSupp2d 1032, 1035-36 (DSD 2001).
[¶ 11] Applying these factors to the case at hand, the Court concludes that the interests of justice do not require the appointment of counsel. The claims One Star raises in his Motion, while not frivolous or plainly devoid of any colorable merit on their face, are nonetheless, not ones that involve complex legal or factual issues or ones that require further fact investigation. McCall, 114 F3d at 756; Yellow Hawk, 314 FSupp 29 at 927. It is evident that One Star understands the issues involved and is capable of articulating them. Yellow Hawk, 314 FSupp2d at 927. Moreover, his Motion is sufficiently clear to enable the Court to determine whether §2255 relief is warranted. See Nachtigall, 48 F3d at 1082; Hill, 171 FSupp2d at 1036. And, One Star's claims can be resolved on the basis of the record now before the Court. See Hoggard, 29 F3d at 472; Hill, 171 FSupp2d at 1036. Finally, One Star's likelihood of success on the merits does not support the appointment of counsel here. See United States v. Waite, 382 FSupp2d 1, 2-3 (D.D.C. 2005). For these reasons, the Court finds it unnecessary to appoint counsel for One Star and declines to do so.
[¶ 12] The District Court, in its referral Order, directed that this Court determine whether an evidentiary hearing was required on One Star's Motion. One Star has not requested an evidentiary hearing, but the Court is duty bound, under Rules 4(b) and 8(a) of the §2255 Rules, to decide if an evidentiary hearing is mandated or otherwise called for here.
[¶ 13] An evidentiary hearing need not be held "if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact." Buster v. United States, 447 F3d 1130, 1132 (8th Cir. 2006) (quoting Sanders v. United States, 341 F3d 720, 722 (8th Cir. 2003), cert. denied, 540 US 1199 (2004)). 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. Kingsberry v. United States, 202 F3d 1030, 1032-33 (8th Cir.), cert. denied, 531 US 829 (2000); Blankenship v. United States, 159 F3d 336, 337 (8th Cir. 1998), cert. denied, 525 US 1090 (1999).
[¶ 14] One Star has failed to allege, or support his Motion with, facts which, if true, would entitle him to relief. Instead, his Motion and claims are based on nothing more than conclusory allegations which will not suffice. Woods v. United States, 567 F2d 861, 863 (8th Cir. 1978); See also Azure v. United States, 925 FSupp 671, 681 (DSD 1996).
[¶ 15] Regardless, One Star's claims are ones that are capable of resolution from the record. Blankenship, 159 F3d at 337-39; Petersen v. United States, 352 FSupp2d 1016, 1019 (DSD 2005). After close scrutiny of the records on file, the Court is convinced that One Star cannot prevail on his claims. Saunders v. United States, 236 F3d 950, 952-3 (8th Cir.), cert. denied, 533 US 917 (2001); See also United States v. Regenos, 405 F3d 691, 694 (8th Cir. 2005).
[¶ 16] This being the case, One Star is not entitled to an evidentiary hearing and the Court shall proceed to dispose of his Motion in a summary manner "as justice dictates." See Rules 4(b) and 8(a) of the §2255 Rules.
[¶ 17] One Star raises three ineffective assistance of counsel claims. In doing so, he faces a heavy burden under the two-part Strickland test to establish that his trial counsel's assistance was ineffective. To prevail on his claims, One Star must show both (1) that counsel's performance was deficient, i.e., fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 US 668, 687-88, 694 (1984); See also United States v. Apfel, 97 F3d 1074, 1076 (8th Cir. 1996).
[¶ 18] "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 US at 689. A court must "indulge a strong presumption" that counsel's conduct was reasonable and that counsel "made all significant decisions in the exercise of reasonable, professional judgment." Id. at 689-90. Counsel, therefore, cannot be judged ineffective as long as the approach taken "might be considered sound trial strategy." Id. at 689. When reviewing counsel's performance, a court must avoid using "the distorting effects of hindsight" and must evaluate the reasonableness of counsel's conduct "from counsel's perspective at the time." Id. at 689. "[I]t is all too easy for a court, examining counsel's defense after it is proven unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id.
[¶ 19] "[A]ny deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Id. at 692. The burden is on the movant to prove, by a preponderance of the evidence, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. If the movant cannot prove prejudice, a court "need not address whether counsel's performance was deficient." DeRoo v. United States, 223 F3d 919, 925 (8th Cir. 2000); United States v. Flynn, 87 F3d 996, 1000 (8th Cir. 1996).
[¶ 20] Applying these precepts to the case at hand leads inescapably to the conclusion that One Star has failed to meet the rigid standards of Strickland and its progeny and therefore cannot prevail on, or obtain §2255 relief for, his ineffective assistance of counsel claims.
[¶ 21] One Star first claims that trial counsel was ineffective because counsel knew that One Star was mentally incompetent both before and during the trial and could not understand the proceedings or assist counsel. One Star, however, does not support his claim with any facts or corroborating evidence, other than perhaps his statement that he is currently in the mental health unit at the Federal Correctional Facility where he is incarcerated.
[¶ 22] Retrospective competency determinations "are strongly disfavored" and have "inherent difficulties" even "under the most favorable circumstances." Weisberg v. Minnesota, 29 F3d 1271, 1278 (8th Cir. 1994) (quoting Drope v. Missouri, 420 US 162, 183 (1975)), cert. denied, 513 US 1126 (1995); See also United States v. Day, 949 F2d 973, 982, n. 9 (8th Cir. 1991) ("to require a sentencing court [upon a collateral attack of a prior conviction] to decide whether a defendant was competent during proceedings that took place years earlier would be an exercise in futility."), on remand, 998 F2d 622 (8th Cir. 1993), cert. denied, 511 US 1130 (1994). "Absent some contrary indication, the court is entitled to presume (2) that a defendant is competent." Weisberg, 29 F3d at 1276 (quoting Day, 949 F2d at 982). Whether a Drope hearing should have been held "depends on whether [the defendant's] mental competency was in question at the time" of his trial. Weisberg, 29 F3d at 1276 (quoting United States v. Hollis, 718 F2d 277, 280 (8th Cir. 1983), cert. denied, 465 US 1036 (1984)); See also Griffin v. Lockhart, 935 F2d 926, 929-31 (8th Cir. 1991) (citing to and applying Drope).
[¶ 23] In Hollis, the §2255 movant claimed that his trial counsel was ineffective in failing to order an independent psychiatric examination. 718 F2d at 280. The Eighth Circuit, however, rejected this claim because the movant "cooperated with his attorney in the preparation of his case; had no previous psychiatric involvement; and elicited no signs of mental instability." Id. (quoting Hollis v. United States, 687 F2d 257, 260 (8th Cir. 1982), cert. denied, 459 US 1221 (1983)).
[¶ 24] Similarly, in Vogt v. United States, 88 F3d 587, 592 (8th Cir. 1996), the Eighth Circuit held that trial counsel was not ineffective in not requesting a competency hearing. In so holding, the appeals court explained that trial counsel worked extensively with the movant during trial preparation, observed the movant's demeanor during trial and did not see or experience anything that made counsel question the movant's competency. Id.
[¶ 25] In this case, trial counsel's affidavit reflects that counsel had extensive involvement with One Star both before and during the trial. In fact, counsel remarked that One Star was much more of an active participant in his own defense than most of counsel's clients. Counsel states in his affidavit that he was neither aware of nor had any information to suggest that One Star lacked the mental competence to stand trial. Although One Star received supplemental security income (SSI) benefits, counsel believed that this was because of physical, and not mental, problems.
[¶ 26] In his affidavit, trial counsel makes reference to notes he made of meetings with One Star before trial in which One Star indicated to counsel what their trial strategy should focus on. One Star mentioned specific dates that concerned a trial witness' bias and a conflict between one of the child victims and two other witnesses. One Star wanted counsel to be aware that one of the witnesses was afraid of a specific named individual and that one of the victims had said another person had tried to "dope" her.
[¶ 27] Before trial, One Star informed the defense investigator that One Star did not do the things he was charged with and that he had no idea who did them. One Star told the investigator that he wanted the investigator to contact certain family members and provided specific details about how to do so. One Star also told the investigator that he believed the charges against him were the result of a lawsuit he had filed against the State of South Dakota.
[¶ 28] According to trial counsel, One Star actively participated in his defense at trial, writing notes to counsel about strategy he thought counsel should employ. Counsel and One Star exchanged notes back and forth as the evidence was presented, with One Star making suggestions on what he thought would help the case. On one occasion, One Star believed that the testimony of one witness was too rehearsed and instructed counsel to ask specific questions about where and how long a witness had been in jail. One Star also pointed out that the testimony of one witness (presumably one of the child victims) about sex indicated that it always occurred when no one else was around. Finally, One Star wanted counsel to ask one of the witnesses (again most likely one of the victims) why the witness never disclosed anything to counselors at school (despite having the opportunity to do so).
[¶ 29] Trial counsel's affidavit, which makes reference to and describes correspondence he received from One Star after the trial, reveals that One Star had an understanding of the criminal justice system and legal principles. One Star's letters to counsel showed that One Star recalled, well after the fact, dates, events and names of individuals involved in his trial, and a civil lawsuit he was pursuing against state officials. One Star wrote to counsel about different legal theories under the Sixth Amendment and about Crawford v. Washington, 541 US 36 (2004) that he thought counsel should pursue on appeal or in other proceedings. One Star also related, in letters to counsel, various details from the trial, as well as shortcomings with testimony from certain witnesses. And, in his correspondence, One Star reminded counsel of pretrial discussions with counsel about one of the trial witnesses.
[¶ 30] As aptly shown by trial counsel's unrefuted affidavit, One Star was mentally competent to stand trial and to assist in his defense. Compare Griffin, 935 F2d at 930-31. One Star's ex post facto attempt to create a competency issue, when no evidence has been put forth to support it, is unavailing. Counsel had no indication whatsoever that One Star was not competent, and One Star's actions, before, during and after the trial show that he understood the nature of the proceedings and was an active participant in his own defense. Counsel and the trial court were entitled to presume One Star's competency and in the face of nothing to rebut this presumption and detailed evidence that supports it, One Star may not obtain relief under the Sixth Amendment. One Star has failed to satisfy his burden under Strickland of demonstrating that counsel acted outside the bounds of reasonable professional judgment and that he was prejudiced thereby. As such, One Star cannot prevail on his competency claim.
[¶ 31] One Star next claims that trial counsel was ineffective because counsel prevented One Star from testifying on his own behalf. One Star maintains that had he testified, he "would have possibly avoided conviction and a sentence enhancement to life." His claim, and the conclusory allegation used to support it, are belied by the records on file and the facts of this case.
[¶ 32] A criminal defendant has a constitutional right to testify in his own defense. Rock v. Arkansas, 483 US 44, 49 (1987); Berkovitz v. Minnesota, 505 F3d 827, 828 (8th Cir. 2007), cert. denied, 128 SCt 1454 (2008). This right is derived from the Fifth Amendment's due process clause and protection against compelled testimony and the Sixth Amendment's compulsory process clause. Rock, 483 US at 51-53. "Because the right to testify is a fundamental constitutional guarantee, only the defendant is empowered to waive the right." Frey v. Schuetzle, 151 F3d 893, 898 (8th Cir. 1998) (quoting United States v. Bernloehr, 833 F2d 749, 751 (8th Cir. 1987)). Any waiver of this right must be a knowing and voluntary one. Id. A valid waiver of the right, however, may be based on the defendant's silence when his counsel rests without calling him to testify. Frey, 151 F3d at 898 (citing Bernloehr, 833 F2d at 751-52).
[¶ 33] Trial counsel's own affidavit reflects that he engaged in a colloquy with One Star, in the presence of a court reporter, on the second day of his trial. At that time, the two of them discussed what One Star's testimony would be if he were to testify. Counsel told One Star that it was One Star's decision whether to testify or not and then inquired what One Star wanted to do. One Star thereafter stated "I'm not going to testify." Counsel confirmed this, asking "You do not want to testify?" One Star replied, "Yeah" and followed this with a statement that he was certain about his decision. Counsel asked whether One Star realized he had a right to testify and tell his side of what happened, to which One Star replied, "Yes." Counsel asked whether One Star understood that, if One Star testified, he could be cross-examined like any other witness, and One Star responded in the affirmative. Counsel inquired further, saying, "But I want to make certain you're absolutely positive you don't want to testify?" One Star again responded in the affirmative. Counsel then asked One Star, "But do you feel you need to testify at this point?" to which One Star answered, "No."
[¶ 34] The dialogue just summarized is taken from a transcript that trial counsel reviewed and quoted from in his affidavit. The dialogue clearly shows that One Star was afforded the opportunity to testify on his own behalf and chose to exercise his constitutional right not to do so. The fact that he now, after being found guilty and sentenced to life imprisonment, may regret the decision he chose to make, does not render counsel's performance deficient. See Frey, 151 F3d at 898 (holding that a defendant's post-conviction dissatisfaction with his decision not to testify does not change the analysis or vitiate the knowing and voluntary waiver of that right); See also Berkovitz, 505 F3d at 828 (concluding that the defendant was not unduly influenced or coerced into not testifying).
[¶ 35] Aside from this, One Star has not shown that he was prejudiced by trial counsel's failure to call him as a witness at trial. Significantly, the Eighth Circuit observed on direct appeal, that the evidence against One Star was more than sufficient to convict him. One Star, 465 F3d at 833-34. In doing so, the Court also noted "the strength of the personal testimony of the victims and the corroborating circumstantial and physical evidence." Id. at 833. At sentencing, the District Court characterized the case as a "horrendous" one making mention of the evidence against One Star and the impact his conduct had on the victims. One Star can thus hardly claim that he was prejudiced by either the verdict or the sentence that was imposed on him especially in the absence of proof to the contrary.
[¶ 36] Trial counsel's decision not to call One Star as a trial witness was based on One Star's own choice not to testify. Counsel's conduct, when viewed from counsel's own perspective at the time, was not unreasonable or deficient. Nor has One Star shown, in other than a conclusory manner, that he was prejudiced in not being called as a witness. Either way, One Star has failed to sustain his burden of proving ineffective assistance on the part of counsel.
[¶ 37] As his final claim, One Star alleges that trial counsel "was ineffective in not forcing [One Star] and advising [him] . . . to accept the 10-year plea offer." As with his other two claims, One Star offers no evidence to support this conclusory allegation.
[¶ 38] When a §2255 movant's claim is that trial counsel misadvised the movant of the relative advantages of pleading guilty rather than proceeding to trial, in order to satisfy the prejudice prong of the Strickland test, the movant "must show that, but for his counsel's advice, he would have accepted the plea." Sanders, 341 F3d at 722 (quoting Engelen v. United States, 68 F3d 238, 241 (8th Cir. 1995)). Even if counsel's performance is deficient, the movant must still "present some credible non-conclusory evidence" that he would have acknowledged his guilt had he been properly advised about the risks of trial." Sanders, 341 US at 723; United States v. Stevens, 149 F3d 747, 748 (8th Cir.), cert. denied, 525 US 1009 (1998); Engelen, 68 F3d at 241. "[T]he fact that [the movant] later regrets foregoing a plea offer and proceeding to trial is not evidence of ineffective assistance of counsel." United States v. Lefkowitz, 289 FSupp2d 1076, 1088 (D. Minn. 2003), aff'd, 446 F3d 788 (8th Cir.), cert. denied, 127 SCt 843 (2006).
[¶ 39] One Star has not met his burden. He has presented nothing other than a single conclusory allegation that he would have pled guilty if counsel had "forc[ed]" and/or "advis[ed]" him to accept the purported plea offer. Trial counsel's affidavit indicates that One Star maintained his innocence during and after trial. He insisted that he was not guilty of the charges, and chose to exercise his right to remain silent at both the trial and his sentencing hearing. "A [movant] who maintains his innocence at all stages of his criminal prosecution and shows no indication that he would be willing to admit his guilt undermines his later §2255 claim that he would have pleaded guilty if only he had received better advice from his lawyer." Sanders, 341 F3d at 723; See also Stevens, 149 F3d at 748; Engelen, 68 F3d at 241. One Star's unwavering representations of innocence make it difficult, if not impossible, to succeed on his ineffectiveness claim.
[¶ 40] Notwithstanding this, trial counsel's affidavit shows that the Government never offered a plea agreement involving a 10-year maximum sentence. Instead, such an offer was made by One Star's counsel; an offer that the Government did not agree to or accept at any time. There thus was no "10 year plea offer" ever made for One Star to even consider, much less accept.
[¶ 41] In any event, trial counsel could not legally "force" or use coercion to get One Star to plead guilty. A guilty plea is constitutionally valid only if it is made "voluntarily and intelligently." Bousley v. United States, 523 US 614, 618 (1998). Any "force" or coercion on counsel's part to induce One Star to accept a guilty plea would have rendered the plea invalid. Counsel, therefore, cannot be said to have rendered ineffective assistance by not "forcing" One Star to plead guilty.
[¶ 42] One Star's plea claim is baseless, devoid of any evidentiary support, and is contradicted by the record. Accordingly, the claim must be dismissed.
[¶ 43] A movant is required to obtained a certificate of appealability (COA) from a district or circuit judge before appealing from the final order entered in a §2255 proceeding. 28 USC §2253(c)(1)(B). A district court is authorized to determine a COA if the movant has made a substantial showing of the denial of a constitutional right. §2253(c)(2); United States v. Lambros, 404 F3d 1034, 1036 (8th Cir.), cert. denied, 545 US 1135 (2005); Garrett v. United States, 211 F3d 1075, 1076 (8th Cir.) (per curiam), cert. denied, 531 US 908 (2000). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Garrett, 211 F3d at 1077; Cox v. Norris, 133 F3d 565, 569 (8th Cir. 1997), cert. denied, 525 US 834 (1998).
[¶ 44] The Court believes that One Star cannot satisfy this standard and make the requisite "substantial showing" with respect to any of his three claims. None of them come even close to running afoul of the Constitution and for this reason, a COA should be denied.
[¶ 45] Based on the foregoing findings of fact and legal discussion and pursuant to §636(b) and Rule 8(b) of the §2255 Rules, it is hereby
[¶ 46] RECOMMENDED that One Star's Motion under §2255 to vacate, set aside or correct sentence by a person in federal custody, Docket No. 97, be denied in all respects. It is further
[¶ 47] RECOMMENDED that the Government's Motion to Dismiss, for failure to state a claim, Docket No. 106, be granted. It is further
[¶ 48] RECOMMENDED that the case be dismissed on the merits and with prejudice. It is further
[¶ 49] RECOMMENDED that a COA, if one is sought by One Star, be denied as to all issues and claims raised in his §2255 Motion.
Failure to file written objections to the foregoing Report and Recommendations within 10 days from the date of service shall bar an aggrieved party from attacking the Report and Recommendations before the United States District Judge assigned to review the case. See §636(b) and 8(b) of the §2255 Rules.
1. The referral was made by the Honorable Charles B. Kornmann, United States District Judge, presiding.
2. "This presumption recognizes that most persons are competent. Cases in which a defendant must not be so regarded are departures from the usual course of criminal proceedings; some showing must be made that the circumstances of a particular case should have engaged the trial judge's attention before he or she can be faulted for failing to inquire as to the defendant's competency." Day, 949 F2d at 982 (citations omitted).