Dubray v. Pringle
| Decision Date | 30 August 2016 |
| Docket Number | Case No. 3:16-cv-29 |
| Parties | Nathan G. DuBray, Petitioner, v. Chad Pringle, Warden, Respondent. |
| Court | U.S. District Court — District of North Dakota |
Nathan G. DuBray (DuBray)1 petitioned for habeas relief under 28 U.S.C. § 2254. (Doc. #1). After preliminary review, the court ordered service on the respondent. (Doc. #3). The respondent moved to dismiss the habeas petition, (Doc. #7), and DuBray has responded to that motion, (Doc. #14).
DuBray pleaded guilty to two counts of gross sexual imposition, but later stated a desire to withdraw those pleas. DuBray's petition alleges various ways in which his counsel were ineffective. He also alleges that the state district court used the wrong standard in declining to allow him to withdraw his guilty pleas. Finally, in his response to the motion to dismiss, DuBray contends he was constructively denied effective assistance of counsel.
DuBray's claim that the state district court used the wrong standard in declining to allow him to withdraw his guilty pleas is a matter of state law; it fails to present a federal constitutional claim, and it should be dismissed. DuBray is not entitled to habeas relief on his ineffective assistance of counsel claims or on his claim of constructive denial of effective assistance of counsel, since the state court decisions on those issueswere not unreasonable or contrary to federal law. Since he has not demonstrated entitlement to relief on any of his claims, DuBray's federal habeas petition should be dismissed.
An Information charged DuBray with two counts of gross sexual imposition. . The Affidavit of Probable Cause in support of the Information alleged that the eight-year-old victim reported that DuBray had engaged in sexual acts with her twice in January, 2012.2 (Resp. Ex. #2). The victim was described as considering DuBray to be like an uncle to her. (Resp. Ex. #6, p. 14).
On July 15, 2013, the day before his jury trial was scheduled to begin, DuBray appeared in state court for a status conference. (Resp. Ex. #4, p. 2). At that time, DuBray's trial counsel—Blake Hankey (Hankey)—informed the court that DuBray would enter guilty pleas to both counts pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).3 Id. at 3. The state court judge confirmed that DuBray intended to plead guilty, she advised him of the charges, and she advised him of the minimum and maximum penalties for those charges. Id. at 3-6. DuBray pleaded guilty to both charges, and the state court judge determined that DuBray's guilty pleas were freely and voluntarily made and that they were supported by sufficient facts. Id. at 6-14. The court ordered a presentence investigation and scheduled a sentencing hearing. Id. at 14, 17-18.
On October 4, 2013, DuBray appeared for his sentencing hearing. (Resp. Ex. #6). At the beginning of that hearing, Hankey advised the court that DuBray wanted to withdraw his guilty pleas. Hankey requested that a briefing schedule be set, and he advised the court that DuBray had stated that he "felt pressure" from Hankey and his co-counsel—Adam Fleishman (Fleishman)—to plead guilty. Id. at 3-5. In response to questions from the court, DuBray stated that nobody had made any threats or promises to him, but that he felt he "owe[d] an explanation to [his] children; so [he] want[ed] to take it to trial to prove to them that [he] didn't do this." Id. at 5-6. The court advised DuBray that he could file a motion to withdraw his pleas, but the court proceeded with sentencing.4 Id. at 4-5. The court sentenced DuBray to thirty years of imprisonment with fifteen years suspended and ten years of probation on each count, to be served concurrently. (Resp. Ex. #5). DuBray did not file a direct appeal.
On July 14, 2014, DuBray filed a state application for post-conviction relief. . In that application, DuBray generally alleged that counsel did not represent him as is required by "prevailing professional norms." (Resp. Ex. #9, p. 13). Specifically, he alleged that counsel were ineffective by (1) failing to "conduct a full and complete investigation" or hire an investigator, (2) failing to hire an expert to address issues regarding the victim's forensic interview; (3) failing to determine whether the state subjected him to an impermissible multiplicity of charges "based on fabricated or tainted evidence"; (4) failing to provide him with "sufficient information" whichwould have enabled him "to make an intelligent decision"; and (5) failing to interview and/or depose witnesses. Id. at 7-14. DuBray also alleged that he did not knowingly or intelligently plead guilty to the charges, id. at 20, that he was constructively denied effective assistance of counsel, id., and that the prosecutor erred in charging him, (Resp. Ex. #8, p. 4).
On October 20, 2014, the state court held an evidentiary hearing on DuBray's post-conviction relief application. (Resp. Ex. #11). DuBray and Hankey both testified. Id. DuBray testified that Hankey failed to hire a private investigator or expert, failed to depose or interview the state's trial witnesses, and failed to secure defense witnesses. Id. at 4-5, 13-14. He testified that Hankey met with him in person approximately three times, reviewed all of the discovery with him, prepared him to testify, and reviewed plea offers with him. Id. at 5-8. When asked whether he felt forced or coerced into pleading guilty, DuBray responded, "I felt like there wasn't any other choice but to take the agreement," and " I felt like I was led to believe that I was going to be [found] guilty no matter what." Id. at 12-13. But, DuBray acknowledged that it had been his decision to plead guilty, and he stated that he was upset with the length of his sentence. Id. at 15-16.
DuBray requested that he be allowed to proceed to trial, and he testified that he could show, through cross-examination, that three witnesses lied. Id. at 14-15. But, DuBray acknowledged that none of those witnesses observed the events that gave rise to the charges. Id. at 18-20. He also acknowledged that another individual, whom he contended Hankey should have interviewed, could provide no information related to the allegations. Id. at 21-22.
Hankey testified that he reviewed the discovery with DuBray, that they discussed the weaknesses of the case, that they discussed the trial judge's sentences in similarcases in which a jury had found a defendant guilty, and that they met with the prosecutor who outlined the state's case. Id. at 34-35. Hankey testified that he and Fleischman reviewed the video of the forensic interview of the victim, that he had previously handled numerous cases involving interviews of child victims, that the forensic interviewer "handled everything appropriately," that the forensic interviewer did not use leading questions, that no evidence indicated that the forensic interview was tainted, and that he saw no reason to hire an expert to review the video. Id. at 29-30, 37. Hankey further testified that he did not hire an investigator because he did not "believe one was necessary," that only the victim and DuBray were present during the "incident," and that nothing "could be gleaned by having a private investigator." Id. at 42.
Hankey testified that he was prepared for trial. Id. at 32-33. He testified that he had prepared DuBray to testify, including advising him that, to keep his prior bad acts from being used against him, he "had to be very selective in how he answered questions so that evidence [of those prior bad acts] couldn't be brought in." Id. at 33. Hankey acknowledged that he did not file a motion in limine to keep DuBray's prior bad acts out of evidence, and he stated that he did not file that motion because there was "no indication that [DuBray's prior bad acts] were ever going to be used unless [the defense] opened the door." Id. at 39. Hankey testified that no pretrial hearing regarding hearsay evidence was held, but that he "was of the opinion [that he] could [also] keep hearsay out." Id. at 40-41.
Hankey testified that he "viewed it as a 'he said, she said' type of case." Id. at 43. He testified that he would have attacked witnesses' credibility, and would have tried to show "that for some reason the family was mad, making this up, and [DuBray] had to be. . . rock solid on the stand." Id. at 43-44. Hankey testified that he did not depose the victim's mother because "in these cases [he] like[s] to keep things close to the vest." Id. at 45. Hankey explained that he did not want any witness—or the state—to have time to prepare for his cross-examination. Id.
Hankey testified that DuBray was "difficult to get a hold of." Id. at 34. But, the state's exhibit—counsels' billing record—received in evidence at the evidentiary hearing, shows that either Hankey or Fleischman met with DuBray approximately ten times before his change of plea. (Resp. Ex. #12).
Hankey testified that the prosecutor had asked to meet with defense counsel and DuBray to outline the state's case in the hope of avoiding trial. (Resp. Ex. #11, p. 35). Hankey stated when prosecutors decide to do that, "it gives [him] a nice snapshot into what the State is trying to prove or what they think their case is, and it helps [him] attack it." Id. at 35-36.
Hankey further testified that he did not force DuBray to plead guilty. Id. at 36. He said that he could not specifically recall what he had said to DuBray in that regard, but that he tells all of his clients:
The state district court, in its order denying DuBray's post-conviction relief application, described DuBray's claims as alleging that "trial counsel...
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