Feather v. United States

Decision Date14 September 2020
Docket NumberCIV 18-4090
PartiesGARFIELD FEATHER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — District of South Dakota
MEMORANDUM OPINION AND ORDER

Petitioner Garfield Feather ("Feather") moved to vacate or set aside his conviction pursuant to 28 U.S.C. § 2255. (Doc. 1.) For the following reasons the motion is denied.

BACKGROUND

Following a three-week jury trial in 1994, Feather and three co-defendants were convicted on several counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c). All defendants are Native American men. Another Native American man was acquitted.

After trial, the Clerk's Office received a call from a co-worker of juror Patricia Pickard. The co-worker, Verna Boyd (then Severson), said that Patricia Pickard was prejudiced against Native Americans. This Court notified counsel for Petitioners and held four separate hearings on the alleged juror misconduct. See CR 94-40015, Doc. 323. Pursuant to Federal Rule of Evidence 606(b), the Court instructed the attorneys not to contact any of the jurors, and the jurors were not allowed to testify about any statement made or incident that occurred during deliberations. In addition to hearing the testimony of Boyd and Pickard, the Court heard testimony from the jury foreperson, the alternate juror, and multiple co-workers of Pickard. The Court ultimately concluded that juror Pickard had "responded honestly and accurately" during voir dire and had not concealed "any racially prejudiced attitudes, beliefs, or opinions" about Native Americans. Doc. 323 at 11. The Court found that "as between juror Pickard and Ms. [Boyd], juror Pickard [was] the more credible witness." Id. The Court further found that the jury foreman and an alternate juror testified credibly "that they did not hear juror Pickard or any other juror make racially disparaging remarks about the defendants or about Native American people during the trial," id. at 14, and "that no improper outside influence affected the jury." Id. at 5. Petitioners' motion for a new trial was denied. Id.

On direct appeal, a divided panel of the Eighth Circuit initially reversed and remanded for a new trial, holding that this Court erred in rejecting expert testimony that the children's testimony regarding sexual abuse had been coerced by the adults in the case. See United States v. Rouse, 100 F.3d 560, 566 (8th Cir. 1996). However, the Eighth Circuit panel granted rehearing and affirmed the exclusion of the proposed expert testimony, and it affirmed this Court's denial of the motion for new trial which was based upon co-worker Boyd's testimony. United States v. Rouse, 111 F.3d 561, 573 (8th Cir. 1997) (holding in part that this Court's findings on the motion for new trial established that no new trial was warranted because of juror Pickard's responses during voir dire).

The facts underlying Feather's conviction are described in the Eighth Circuit's opinion affirming the convictions of all four defendants after rehearing. The defendants, who include two brothers and their two cousins, were convicted of sexually abusing young female relatives on the Yankton Sioux Indian Reservation:

The victims are granddaughters of Rosemary Rouse. During the summer and fall of 1993, defendants lived at Rosemary's home on the Yankton Sioux Reservation. The victims also lived or spent a great deal of time at this home. In October 1993, five-year-old R.R. was placed with Donna Jordan, an experienced foster parent, due to neglect and malnutrition. R.R. disclosed apparent sexual abuse to Jordan, who reported to the Tribe's Department of Social Services ("DSS") (as Jordan was required to do) that R.R. said she had been sexually abused. On January 10, 1994, DSS told Jordan to take R.R. to therapist Ellen Kelson. After an initial interview, Kelson reported to DSS (as Kelson was required to do) that R.R. had reported acts of sexual abuse against herself and other children in the Rouse home. On January 11, DSS removed thirteen children living in the Rouse home and placed them in Jordan's foster home. Of the four who disclosed sexual abuse by their uncles, T.R. was seven years old, L.R. was six, R.R. was five, and J.R. was four and one-half. The fifth victim of the alleged offenses, F.R., was a twenty-month-old infant.

Rouse, 111 F.3d at 565.

The children were examined by two physicians, Richard Kaplan and Robert Ferrell. Dr. Ferrell is an obstetrician and gynecologist. He testified that he found physical injuries consistent with sexual abuse. The evidence at trial included the testimony of the four oldest children andanother child who witnessed acts of abuse, medical evidence, medical experts for the government and for the defense, and the testimony of an FBI agent and a BIA criminal investigator, both who interviewed the children. Id. at 566. The defendants also presented numerous lay witnesses in support of their defense at trial.

In 1999, the defendants filed a second motion for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure based on recantations of the victims.1 See CR 94-40015, Doc. 428. This Court held a four-day evidentiary hearing in 2001. See United States v. Rouse, 329 F.Supp.2d 1077 (D.S.D. 2004). Jessica, Thrista, Lucritia and Rosemary Rouse testified that the abuse did not occur. Experts and several other witnesses testified. This Court concluded that the recantations were not credible. Id. The Eighth Circuit affirmed that finding:

After reviewing the record as a whole, we conclude that the district court's credibility findings are not clearly erroneous and the denial of the new trial motion was not a clear abuse of discretion. By the time of the evidentiary hearing, the children had been living with their mothers for at least two years, within walking distance of their grandmother's home. These women never believed the children's accusations, and testified on the defendants' behalf at trial. The children knew their grandmother and mothers missed the defendants. The children saw letters written by the uncles from prison and spoke to the men by telephone. Family members drove the children to interviews by Dr. Underwager, whose stated purpose was to free their uncles from lengthy prison sentences. The district court's finding that the recantations were the product of family pressure and therefore not credible is overwhelmingly supported by this record. Combined with the defendants' failure to refute the powerful medical evidence of abuse at trial, this finding fully justified the court's conclusion "that there is no reasonable probability that the recantations would produce an acquittal if a new trial were held." Accordingly, the district court did not abuse its discretion in denying the defendants' joint motion for a new trial.

United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005).

On August 20, 2010, Feather filed his first § 2255 motion to vacate. See Civ. 10-4115. On November 12, 2010, the motion was erroneously dismissed as successive, relying on a previous order of the Eighth Circuit denying Feather leave to file a successive § 2255.

On March 5, 2018, now represented by counsel, Feather once again erroneously sought leave to file a successive § 2255 motion from the Eighth Circuit. See 18-014180. The EighthCircuit denied leave to file a successive petition on June 4, 2018. Feather filed this pending § 2255 motion on July 27, 2018. (Doc. 1.)

On August 1, 2018, Feather filed a Motion for Reconsideration pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, in his 2010 habeas action. See Civ. 10-4114, Doc. 6. Feather asked this Court to reconsider its ruling dismissing as successive his 2010 motion under 28 U.S.C. § 2255, and to permit him to withdraw his 2010 motion that was incorrectly dismissed as a successive petition. The government did not oppose the motion and it was granted. The government has responded to Feather's present § 2255 motion, and it is fully briefed and ready for ruling.

On March 7, 2018, Feather's co-defendants filed motions for new trial. The Court held argument on the motions on October 31, 2018 and denied the motions for a new trial on March 18, 2020. See Civ. 06-4008, Doc. 56 (Desmond Rouse and Jesse Rouse); Civ. 98-4176 (Russell Hubbling). His co-defendants filed their motions for a new trial under Federal Rule of Civil Procedure 60(b)(6), and the Court found they were second or successive § 2255s. Feather makes some of the same substantive claims as his co-defendants, but his case differs procedurally because this is considered to be his first § 2255 motion.

LEGAL STANDARD

Section 2255 allows a federal prisoner to move to "vacate, set aside or correct" a federal sentence 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 that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Thus, relief is available under section 2255 "on the ground that '[a person] is in custody in violation of the Constitution or laws or treaties of the United States.'" Davis v. United States, 417 U.S. 333, 344 (U.S. 1974); Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007).

"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987)). A petitionerbears the burden of showing that he is entitled to relief. Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970).

CLAIMS PRESENTED

Feather's § 2255 motion lists two grounds for relief. First, he claims that there is "significant new proof of innocence...

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