Darby v. North Dakota

Decision Date12 February 2013
Docket NumberCase No. 1:11-cv-071
PartiesVonnie D. Darby, Petitioner, v. State of North Dakota, Respondent.
CourtU.S. District Court — District of North Dakota
ORDER TO SHOW CAUSE AND
REPORT AND RECOMMENDATION

Petitioner Darby has filed what will be construed as a petition for habeas corpus relief pursuant to 42 U.S.C. § 2254 naming the State of North Dakota ("State") as respondent. The petition has been referred to the undersigned for a report and recommendation.

Darby's petition and attachments are filed electronically at Doc. Nos. 2 and 2-1. Paper copies of the relevant state-court records are at Doc. No. 12 where Exhibits A1-A54 are the records for Darby's criminal case and direct appeal and Exhibits B1-B24 are the records for the collateral postconviction proceedings and subsequent appeal. Except as otherwise noted, the references to individual items of the state-court record will be by exhibit number.

I. BACKGROUND

In March 2007, Darby was convicted in state court of two offenses: burglary (Count I) and simple assault (Count II). (Ex. A43, p. 559). The trial court entered judgment on August 27, 2007, sentencing Darby to concurrent sentences of ten years imprisonment on Count I and thirty days on Count II. (Ex. A48). Darby's subsequent appeal was summarily denied by the North Dakota Supreme Court in a per curiam decision filed on March 20, 2008. State v. Darby, 2008 ND 43, 747N.W.2d 136 (table). (Ex. A54). His writ of certiorari to the United Supreme Court was denied on May 19, 2008. Darby v. North Dakota, 553 U.S. 1058 (mem.) (2008).

Darby filed petitions for postconviction relief and for a writ of habeas corpus with the state district court in June and September 2008, respectively. (Exs. B4-B6). The court consolidated the proceedings and conducted an evidentiary that extended over several days, i.e., June 16 and November 10 & 12, 2009. (Exs. B11-14). On December 7, 2009, the district court issued an amended order denying Darby's petitions for habeas corpus and postconviction relief. (Ex. B15).

Darby filed a motion for reconsideration, which the district court promptly denied, as well as a notice of appeal. (Doc. No. 2-1, pp. 11-23, 24-25). On September 21, 2010, the North Dakota Supreme Court summarily affirmed the state district court's amended order. Darby v. State, 2010 ND 180, 794 N.W.2d 898 (table). (Ex. B23).

Undaunted, Darby petitioned the United States Supreme Court for a writ of certiorari. His petition was denied on April 4, 2011. Darby v. North Dakota, __ U.S. _, 131 S.Ct. 1826 (mem.) (2011).

On September 1, 2011, Darby filed his present § 2254 petition for habeas relief.1 (Doc. No. 2). Before the court now is the State's motion to dismiss (Doc. No. 17).

II. TRIAL EVIDENCE

Before turning to a discussion of Darby's claims, it is helpful first to consider the evidence presented at trial and the reasons why the evidence of Darby's guilt was overwhelming, since it provides context for what follows and is also relevant to the recommended disposition of certain claims.

A. What happened at trial
1. Introduction

Darby was charged with the burglary of the Uno Chicago Grill in West Fargo, North Dakota, and the simple assault of one of its employees. The State presented evidence that Darby entered the backdoor of the restaurant at approximately 8:25 a.m. on October 2, 2006, before the restaurant was open for business, purportedly seeking an application for employment, but soon thereafter committed the burglary and assault upon one of the restaurant employees.

At trial, the State called three of the restaurant's employees to testify, all of whom identified Darby as being the person who committed the offenses. The State also called several law enforcement officers to testify about the investigation.

Darby, who represented himself at trial, called two witnesses in an unsuccessful attempt to establish an alibi defense. Darby himself did not take the stand.

The trial transcript is contained in Exhibits A41- A43. The references below are to the page numbers of the transcript.

2. Prosecution witness Ciro Delagarza

The first witness called by the State was the restaurant's kitchen manager, Ciro Delagarza. Delagarza was the first person to encounter Darby after he entered the back of the restaurant.

Delagarza testified he was putting food products away in the freezer when he first observed an individual, whom he did not know, in the hallway extending from the back door of the restaurant. He testified the stranger was a tall black male, wearing a bluish-colored beanie, a big puffy blue jacket, and jeans. He also stated the stranger had a small moustache and looked like a young "George Forman." He estimated the stranger's weight to be about 250 pounds. Delagarza pointed to Darby as being the person he saw that morning. (Tr. Tr. 61, 68-70, 88).

Delagarza testified he asked the stranger if he could help him and that the stranger responded by requesting an employment application. Because the restaurant was closed and not wanting the stranger to roam about freely, Delagarza took the stranger into the kitchen where two other employees were doing prep work and left him there while he went to get an employment application. The two employees were Pedro Gomez and Rebecca Bachmeier. Delagarza testified that, when he returned, he gave the stranger an employment application, advised he should fill it out and return it when the restaurant was open for business, and then escorted him to the back door and watched him exit the premises. (Tr. Tr. 70-74).

Delagarza testified he returned to the kitchen area, engaged in a discussion with Gomez and Bachmeier about what he perceived to be the oddity of the stranger's behavior, and decided to check on the restaurant's office because its door had been left open. Delagarza testified he encountered the stranger coming out of the restaurant's office carrying a cash box, but was able to wrestle it away. Delagarza stated he yelled for help and a minor scuffle ensued during which the stranger pushed him back. According to Delagarza, the stranger then exited the rear of the restaurant and that he, along with Gomez who had come to his assistance, followed the stranger out the door. Delagarza testified he was hoping to get a license number of the stranger's vehicle, but what he sawinstead was the stranger getting on a red "mountain bike" and pedaling away. Delagarza testified the reason why he thought the bike was a "mountain bike" was because it had straight handlebars and large tires. He also testified that the bike had a "big lockup chain." (Tr. Tr. 74-85, 92).

Delagarza testified that, a short time later, a police officer drove him over to an apartment complex to make an identification of a suspect whom the police had detained. When they arrived and while still seated in the patrol vehicle, the officer asked Delagarza if he could identify the man sitting on the outside stairs in the accompaniment of other law enforcement officers. Delagarza testified he advised the officer he could not make an identification without glasses and that the officer then gave him a pair of binoculars. Delagarza testified that, with the assistance of the binoculars, he was able to identify the person sitting on the steps as being the stranger he saw in the restaurant, even though the person at that point did not have his jacket on. He testified that, after he made the identification, he was able to identify a blue jacket that was held up by an officer, a red mountain bike with the same "big lockup chain" that was parked near the suspect, and a driver's license photo of Darby that was shown to him in the patrol vehicle. (Tr. Tr. 88-94).

Darby conducted an extensive cross-examination of Delagarza, but was unable to make any headway with respect to the essential aspects of Delagarza's testimony. (Tr. Tr. 94-169, 183-223). In particular, Darby questioned Delagarza about his eyesight. Delagarza testified he had no problems seeing things close up, just trouble seeing things from a distance. In response to Darby's questions and the State's questions upon redirect, Delagarza testified he had no problem identifying Darby and the red mountain bike with the binoculars after he adjusted the focus. (Tr. Tr. 99-101, 140-142, 227).

3. Prosecution witness Rebecca Bachmeier

The State next called Rebecca Bachmeier. She testified she was doing prep work in the kitchen on the morning in question when Delagarza entered with a stranger whom he left in the kitchen while he went up front. When Delagarza returned, she saw him give the stranger an employment application and then follow the stranger out into the hallway leading to the rear door. Bachmeier then observed Delagarza return to the kitchen, briefly talk with two other employees, and then go down the hallway toward the area of the office. She testified the next thing she observed was Delagarza in the hallway leaning back like he had been pushed and his yelling to Gomez for help. At that point, suspecting there was trouble, Bachmeier went to the front of the restaurant to get the restaurant manager and did not see the stranger again. (Tr. Tr. 230-240).

Bachmeier testified the stranger was tall, black, "kind of built," and that he had a coat and hat on. She identified Darby in the courtroom as being the individual she saw on that day and testified she had no doubt about Darby being that person. (Tr. Tr. 232, 236, 240, 267). Darby cross-examined Bachmeier without any apparent success in casting doubt upon her testimony. (Tr. Tr. 241-275).

4. Prosecution witness Pedro Gomez

Pedro Gomez was the next person called to testify. Gomez's testimony mirrored that of Bachmeier with respect to Delagarza bringing a stranger into the kitchen and their being told the stranger was interested in employment. Gomez testified he did not pay much attention at that point and kept working. He stated the next thing he remembered was Delagarza coming back into the...

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