Damon John White Bird Solgado v. Braun
Decision Date | 07 November 2017 |
Docket Number | Case No. 1:17-cv-56 |
Parties | Damon John White Bird Solgado, Petitioner, v. Colby Braun, Warden, NDSP, Respondent. |
Court | U.S. District Court — District of North Dakota |
Before the court is a petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner, Damon John White Bird Solgado ("White Bird"). (Doc. No. 2). Also before the court is a Motion to Dismiss by respondent, Colby Braun ("the State"). (Doc. No. 12). For the reasons set forth below, the petitioner's writ of habeas corpus is dismissed and the respondent's motion is granted.
On April 2, 2013, White Bird was charged with attempted murder, a class A felony, two counts of felonious restraint, class C felonies, aggravated assault, a class C felony, and tampering with physical evidence, a class A misdemeanor. (Doc. No. 11-1). On August 5, 2013, a jury found White Bird guilty of all charges. (Doc. No. 11-1). White Bird was sentenced to ten years in prison, with two five year terms to run consecutively.1
White Bird appealed to the North Dakota Supreme Court on December 20, 2013. (Doc. No.11-1). In that appeal, White Bird argued: (1) he was not competent to waive his right to counsel; (2) he did not receive a fair trial because the state district court did not limit the evidence he introduced at trial; and (3) there was insufficient evidence to sustain his convictions. State v. White Bird, 2015 ND 41, 858 N.W.2d 642 ("White Bird I") (Doc. No. 8). The North Dakota Supreme Court affirmed White Bird's conviction, concluding: (1) the state district court did not err in concluding White Bird was competent to waive his right to counsel; (2) the state district court did not err in not limiting evidence White Bird presented; and (3) sufficient evidence supported his convictions.
White Bird next filed an application for postconviction relief on December 6, 2015. (Doc. No. 11-9). In his forty-eight page application, White Bird set forth seven grounds for relief. (Doc. No. 11-10). Although not necessarily styled in this fashion, White Bird essentially alleged: (1) an unconstitutional search and seizure occurred at his apartment; (2) White Bird was convicted with evidence obtained pursuant to an unlawful arrest; (3) White Bird was convicted in violation of his right to avoid self-incrimination; (4) the prosecution committed a Brady violation; (5) White Bird was denied effective assistance of counsel during trial and appeal; (6) White Bird was denied the right to appeal his conviction; and (7) White Bird was convicted through use of a coerced confession.
The state district court denied the application. (Doc. No. 11-10). After the State moved for reconsideration, the court vacated its order as to the issue of whether White Bird received ineffective assistance of appellate counsel. (Doc. No. 11-10). After an evidentiary hearing limited to that issue, (Doc No. 11-11), the court again denied White Bird's petition. (Doc. No. 11-12).
White Bird appealed that order on January 21, 2016. (Doc No. 11-9). Of the fifteen issues raised by White Bird on appeal, the majority focused on the conduct of his appellate counsel,particularly with counsel not raising all the issues White Bird wanted. (Doc. No. 11-13). On August 26, 2016, the North Dakota Supreme Court affirmed the state district court's order denying White Bird's application. White Bird v. State, 2016 ND 47, 882 N.W.2d 727 ("White Bird II") (Doc. No. 15). The court concluded White Bird's appellate counsel's performance fell within prevailing professional norms and White Bird did not suffer any prejudice. The court also concluded the state district court did not err in limiting White Bird's claim to the effectiveness of his appellate counsel.
White Bird next filed his § 2254 petition with this court on March 30, 2017. (Doc. No. 2). White Bird's forty-two page petition contains six grounds for relief. In ground one, White Bird alleges he was denied his right to effective assistance of trial counsel when the state district court refused to appoint him a new court-appointed attorney. In ground two, White Bird alleges he was the victim of an unconstitutional search and seizure that occurred when authorities acted outside the scope of a search warrant. In ground three, White Bird alleges the state district court violated his right to compulsory process when the court excused a witness subpoenaed by White Bird. In ground four, White Bird alleges he did not receive a fair trial when the alleged victims displayed scars to the jury and White Bird's standby counsel did not object. In ground five, White Bird alleges the state district court violated his equal protection rights when it limited the postconviction proceeding to the issue of whether White Bird received ineffective assistance of appellate counsel. In ground six, White Bird essentially alleges there was insufficient evidence to support his convictions.
The following factual summary, taken verbatim from the North Dakota Supreme Court's decision on direct appeal in White Bird I, at ¶¶ 2-6, provides context in evaluating this petition:
Under 28 U.S.C. § 2254, a federal court may review state-court criminal proceedings to determine whether a person is being held in custody in violation of the United States Constitution or other federal law. However, where the state court has adjudicated the federal claim on the merits, this court's review is limited by 28 U.S.C. § 2254(d) to a determination of whether the state court's decision is (1) directly contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court or (2) based on an unreasonable determination of the facts based on the evidence presented in the state-court proceeding. See 28 U.S.C. § 2254(d); see generally Harrington v. Richter, 562 U.S. 86, 97-100 (2011) ("Richter"); Williams v. Taylor, 529 U.S. 362, 399-413 (2000). This highly deferential standard of review is often referred to as "AEDPA deference" because it was enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). E.g., Pederson v. Fabian, 491 F.3d 816, 824-25 (8th Cir. 2007); see generally Renico v. Lett, 559 U.S. 766, 773 n.1 (2010). The reasons for the limited review are ones of federalism and comity that arise as a consequence of the state courts having primary responsibility for ensuring compliance with federal law in state criminal proceedings. See, e.g., Richter, 562 U.S. at 103.
The exhaustion doctrine codified at 28 U.S.C. § 2254(b)-(c) precludes granting habeas relief for claims that have not been properly exhausted in the state courts. E.g., Rhines v. Weber, 544 U.S. 269, 274 (2005); Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). Proper...
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