Crow v. United States
| Decision Date | 28 October 2022 |
| Docket Number | 5:21-cv-5065 |
| Parties | MARLON IRON CROW, Petitioner v. UNITED STATES OF AMERICA, Respondent |
| Court | U.S. District Court — District of South Dakota |
Pending before the Court is Petitioner's motion for relief pursuant to 28 U.S.C. § 2255. (Doc. 1). Petitioner asserted in his motion that he would supply the grounds in later documents and submitted nine supplementary documents. (Doc. 4, 5, 6, 11, 12, 13, 15). Most list grounds for relief with numerous subparts. Petitioner has filed sixteen motions in connection with his case. (Doc. 7, 8, 9, 10, 14, 16, 17 18, 26, 25, 28, 33, 36, 37, 38, 42). The Government has moved to dismiss (Doc. 40, 41), responding to Petitioner's allegations and raising issues of its own. Petitioner responded (Doc. 34, 35, 38, 42).
Petitioner was convicted by a jury of second-degree murder of Craig Charging Crow, 18 U.S.C. §§1111(a) and 1153. He was sentenced to 240 months.
The incident resulting in the death of Charging Crow occurred at the Petitioner's half-sister's home and was witnessed by his half-sister (Nicole Morsette), her partner (Lee Tonorio), and their 12-year-old son. The half-sister and son testified at trial that the parties were drinking, and a fight occurred between Charging Crow and Iron Crow. Their testimony was that Iron Crow hit and kicked the victim, who died from his injuries. At trial, the pathologist testified death was the result of a subarachnoid hemorrhage from a lacerated basilar artery. (5:16-cr-50148, Doc. 127, PgID 424). See United States v. Iron Crow, 970 F.3d 1003,1006 (8th Cir. 2020). A defense medical witness offered testimony that another possible cause of death was the victim's suffocating on his vomit. (Id.).
Defendant was represented by counsel. She made numerous pretrial motions, including one related to jury selection under Batson v. Kentucky, 476 U.S. 79 (1986), and one seeking to admit Iron Crow's statement to the FBI investigator. See United States v. Iron Crow, 2017 WL 2804914 (D.S.D. 2017) (). At trial, among other strategic choices, she challenged the Government's questioning of its witness, Morsette, as vouching and bolstering, and also alleged the prosecutor had threatened or intimidated the witness. (Doc. 32, PgID 200). She introduced Petitioner's statement to police, which was helpful to him in that it raised his claim of self-defense. (Id., PgID 199). She did not call Morsette's boyfriend, Tonorio, as a witness, anticipating he would place the blame on Petitioner, but did argue the evidence pointed to him as the perpetrator. (Id., PgID 201). She challenged the evidence of cause of death. (Id., PgID 201-02, citing trial transcript). She requested and received lesser-included offense instructions. She moved unsuccessfully for a judgment of acquittal and new trial after conviction. United States v. Iron Crow, 2018 WL 3862762 (D.S.D. 2018). After Petitioner's conviction, she filed an appeal, which she briefed and argued before the Eighth Circuit.
The Eighth Circuit affirmed Petitioner's conviction. United States v. Iron Crow, 970 F.3d 1003 (8th Cir. 2020), rehearing denied, October 1, 2020, cert. den. 141 S.Ct. 1422 (2021). Counsel raised four issues in Petitioner's appeal to the Eighth Circuit: 1~ a challenge based on Batson v. Kentucky, 476 U.S. 79 (1986); 2— challenges alleging prosecutorial misconduct based on alleged improper vouching and leading a witness, intimidating a witness pretrial, using perjured testimony at trial, and comments during voir dire; 3— a challenge to the sufficiency of the evidence; and 4— a challenge to the 240-month sentence. Iron Crow, 970 F.3d at 1006. On all issues the Eighth Circuit denied relief. The Eighth Circuit also denied Counsel's request for rehearing on the issue of whether Defendant's reckless conduct could constitute malice aforethought to support a murder conviction. (5:16-cr-50148, Doc. 222; 5:21-cv-5065, Doc. 32, PgID 203).
1. Legal Standards
In accordance with 28 U.S.C. § 2255, "[a] prisoner in custody under sentence ... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence ... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." Id. § 2255(a). See Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (). If an error of law constitutes a "fundamental defect which inherently results in a complete miscarriage of justice," the court may grant relief. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011).
The Government has moved to dismiss Iron Crow's motion under F.R.C.P. 12(b)(6). (Doc. 11). The standard governing dismissal of a motion to dismiss was set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) as follows: "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'" (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). See Spagna v. Phi Kappa Psi, Inc., 30 F.4th 710, 715 (8th Cir. 2022) (); Faulk v. City of St. Louis, 30 F.4th 739, 744 (8th Cir. 2022) (quoting Iqbal standard and reversing denial of motion to dismiss).
Ineffective assistance of counsel serves as part of the basis for Petitioner's § 2255 motion, thus invoking the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, petitioner must establish that counsel's performance was "deficient," meaning it "fell below an objective standard of reasonableness." Id. at 687-88. A mere assertion of ineffectiveness is insufficient. Rather the movant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. See also Collins v. United States, 28 F.4th 903, 906 (8th Cir. 2022). The court presumes counsel's representation was reasonable. Thomas v. United States, 737 F.3d 1202, 1207 (8th Cir. 2013). This means the court "must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance" to which a criminal defendant is entitled. Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019) (quoting Strickland, 466 U.S. at 689). Counsel's performance is evaluated on the facts of the case, "viewed at the time of counsel's conduct." Strickland, 466 U.S. at 690. See also Adejwna v. United States, 908 F.3d 357, 361 (8th Cir. 2018) (); Johnson v. United States, 278 F.3d 839, 842 (8th Cir. 2002) (cautioning against "second guessing").
A petitioner has a second burden to address when alleging ineffective assistance of counsel. As Strickland held, the individual "must show that the deficient performance prejudiced the defense." 466 U.S. at 687. In practice, this means the individual must establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Allen v. United States, 854 F.3d 428, 432 (8th Cir. 2017) (quoting Strickland, 466 U.S. at 694). See also Theus v. United States, 611 F.3d 441, 446 (8th Cir. 2010).
Strategic decisions by counsel are "virtually unchallengeable" unless they resulted from inadequate investigation. Strickland, 466 U.S. at 690. See also Meza-Lopez v. United States, 929 F.3d 1041, 1044-45 (8th Cir. 2019); Chavez-Cruz v. United States, 2018 WL 2383156, *2 (D. S.D. 2018); Pippenger v. United States, 2012 WL 3206244, *1 (D. S.D. 2012).
The Strickland standard applies not only to trial, but to the first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Pippenger, 2012 WL 3206244, *1.
2. Petitioner's claims
In this Court, Petitioner challenges virtually every aspect of trial and appeal. Many of his grounds for relief and their subparts repeat issues he raises in other filings, which the Court makes note of in its discussion.
Ground 1 (Doc. 11)—Petitioner does not state this ground with specificity but makes a series of statements. He states the victim was angry about a cell phone and grabbed Iron Crow, who then acted in self-defense when he hit the victim on the head. (Id., PgID 124). Petitioner supplies a statement of facts listing issues addressed elsewhere in his filings. (Id., PgID 125). He raises admissibility of an interview he gave to investigators and cites FRE 807.
Defense counsel addressed Ground 1 in her statement. (Doc. 32). Counsel confirmed that she raised a claim of self-defense and that Iron Crow's interview with the FBI supported this theory of defense. (Id., PgID 199). She argued for admission of Iron Crow's statement and the court ruled in the defendant's favor. (Id.). See Iron Crow, 2017 WL 2804914, *1. Defense Counsel's performance was effective in this respect.
Petitioner's additional statements in Doc. 11 are raised in other Grounds in the petition and the Court discusses them below. The exception is Petitioner's claim that a statute of limitations on DUI prevents it from being used as part of his criminal history in sentencing. That issue is irrelevant, as...
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