Kahl v. U.S., 00-1322

• Decision Date: 11 December 2000
• Docket Number: No. 00-1322,00-1322
• Citation: 242 F.3d 783
• Parties: (8th Cir. 2001) YORIE VON KAHL, APPELLANT, V. UNITED STATES OF AMERICA, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 783

242 F.3d 783 (8th Cir. 2001)

YORIE VON KAHL, APPELLANT,

V.

UNITED STATES OF AMERICA, APPELLEE.

No. 00-1322

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: December 11, 2000

Filed: March 9, 2001

Appeal from the United States District Court for the District of North Dakota. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Loken, Heaney and Fagg, Circuit Judges.

Heaney, Circuit Judge.

Yorie Von Kahl appeals the district court's ¹ denial of his 28 U.S.C. § 2255 motion without conducting an evidentiary hearing. We affirm.

I. BACKGROUND

The facts giving rise to this appeal are set forth in some detail in our opinion in Kahl's direct appeal. See United States v. Faul, 748 F.2d 1204, 1208-1210 (8th Cir. 1984). Briefly, in February 1983, a shoot-out erupted in Medina, North Dakota when United States Marshals attempted to execute a warrant for the arrest of Kahl's father Gordon Kahl for a probation violation. Two marshals were killed, and Kahl was seriously injured. Kahl was later convicted by a jury of two counts of second-degree murder and lesser charges, and sentenced to life imprisonment. On direct appeal, we affirmed Kahl's convictions. See id. at 1223.

In April 1996, Kahl filed a § 2255 motion challenging his conviction. In a subsequent amended motion, Kahl claimed (1) he was denied counsel while in custody, in violation of his Sixth Amendment rights; (2) he was denied effective assistance of counsel; (3) the trial judge was biased against him; (4) he was prejudiced by a juror's failure to disclose a personal relationship with a prosecutor; (5) the jury as a whole was biased; (6) he was prejudiced by prosecutorial misconduct; (7) a deputy United States Marshal that was a victim of the Kahl shoot-out had improper contact with the jury; and (8) newly-discovered evidence called into question the outcome of his trial. With respect to his ineffective-assistance claim, Kahl asserted, inter alia, that counsel failed to object to prosecutorial misconduct and inadmissible evidence, conduct an adequate pretrial investigation, present certain evidence and arguments at a suppression hearing, challenge the validity of the warrant for Kahl's father's arrest, pursue disqualification of the trial judge, and preserve several issues for appeal.

After an initial review pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, the district court on March 31, 1997, summarily dismissed all of Kahl's claims except his claims of ineffective assistance and trial judge bias. After the government responded to the remaining claims, the district court issued an order on October 12, 1999 rejecting those claims and dismissing Kahl's motion. On November 11, 1999, Kahl filed a notice of appeal. Two days later, through a new attorney, Kahl filed a motion for leave to file out-of-time a motion for reconsideration and for an extension of time in which to file such a motion for reconsideration. On November 19, Kahl filed a motion to withdraw his November 11 notice of appeal, stating that the notice of appeal had been filed by his earlier attorney without his permission. Kahl supported his motion with a lengthy declaration recounting the difficulties he had had with his post-trial representation.

On December 8, Kahl filed a fifty-page document styled a "Motion for Rehearing of Court's Memorandum, Opinion and Order Filed March 31, 1997," which contained extensive argument and cited new evidence in support of the claims the district court had summarily dismissed. Also on December 8, Kahl filed a thirty-one- page "Motion for Reconsideration of Court's October 12, 1999 Order Denying Yorie Kahl's § 2255 Motion," in which he argued the claims the district court had rejected in its October 1999 order, and requested that the court consider two new issues: (1) counsel's failure to object to a jury instruction, and (2) the government's failure to disclose the existence of two additional All Points Bulletins (APBs) issued on the day of the shoot-out that would have corroborated Kahl's self-defense theory.

On December 13, Kahl filed a second notice of appeal. In a December 23 order, the district court denied Kahl's pending motions. The court observed that Kahl's initial notice of appeal divested the lower court of jurisdiction, and it thus lacked jurisdiction to reconsider its earlier rulings. Nevertheless, the court added that even if it had the power to do so, it would not grant Kahl's motions for reconsideration, as Kahl's § 2255 motion had been pending for some three years, giving him ample time to muster his evidence and arguments.

Kahl appeals. He has briefed a number of the issues he attempted to present to the district court by motions for reconsideration, and has abandoned several of the issues contained in his amended § 2255 motion.

II. DISCUSSION

We review de novo the district court's denial of a § 2255 motion without an evidentiary hearing and will affirm only if the motion, files, and record conclusively show the movant is not entitled to relief. See Latorre v. United States, 193 F.3d 1035, 1038 (8th Cir. 1999).

As an initial matter, we consider the claims that first appeared in Kahl's out-of- time motion for reconsideration--filed after his notice of appeal--to be dead on arrival. See Liddell v. Board of Educ., 73 F.3d 819, 822-23 (8th Cir. 1996) (as general rule, once notice of appeal is filed, district court has no jurisdiction to reconsider prior decision); Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988) ("A motion to alter or amend judgment cannot be used to raise arguments which could have been raised prior to the issuance of judgment.").

We also reject Kahl's effort to supplement the record on appeal with some 177 pages of evidence. This court recognizes a "rarely exercised . . . narrow exception" to the general rule that the appellate record is limited to the record made below. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63-64 (8th Cir.1993). However, both the ample time Kahl has had to develop a record since filing his § 2255 motion in April 1996 and the sheer volume of the material that Kahl now seeks to present suggest that any gaps in the record are due to a lack of diligence on Kahl's part. Moreover, our review of Kahl's Supplemental Appendix does not reveal any material that we must consider in the interests of justice. Cf. Miller v. Benson, 51 F.3d 166, 168 (8th Cir.1995) (permitting pro se appellant to expand record where appellant did not learn that district court had not received his motion until after court dismissed appellant's case); Dakota Indus., 988 F.2d at 63-64 (permitting supplementation of district court record where parties had not completed discovery and one party's misrepresentation left district court with incomplete record).

A. Kahl's statements

Kahl was injured in the February 13 shoot-out when he was shot in the abdomen with a shotgun. He underwent surgery that day, and woke the following day. Though he was sedated, he spoke to Special Deputy Sheriff Ronald Perleberg. At 6:00 a.m. on February 14, Kahl asked to speak to Perleberg in order to tell his story. He was informed that he did not have to speak, but elected to do so nevertheless. At 9:00 a.m., FBI agents read Kahl his Miranda rights, and listened to Kahl's story. On the morning of February 21, Kahl again asked to speak to the agents. The agents read Kahl his Miranda rights a second time, and Kahl again spoke.

After a hearing that included testimony from Kahl's physician and two assistant professors of pharmacy, the district court suppressed Kahl's February 14 statements, but declined to suppress his statements of February 16 and 21. The court concluded the later statements were voluntarily and knowingly initiated and uninfluenced by coercion or medication. On direct appeal, we affirmed, concluding that Kahl had failed to show the district court's factual findings were clearly erroneous, and that "the totality of the circumstances indicate[d] that the statements were a product of a rational intellect and a free will." Faul, 748 F.2d at 1220 (internal quotation omitted).

In denying Kahl's § 2255 motion, the district court rejected Kahl's argument that counsel was ineffective for failing to present his testimony at the suppression hearing, noting that Kahl had testified at trial, and that his testimony there failed to establish that his statements were coerced. On appeal, Kahl urges his statements resulted from being held incommunicado and being denied the opportunity to speak with an attorney, in addition to other "psychological factors." He asserts not only that counsel was ineffective for failing to present his testimony at the suppression hearing, but that we may not fairly judge the prejudice of that failure by examining his trial testimony on the issue, as his trial attorney also failed to competently question him on the issue.

Kahl has submitted a supporting declaration in which he presents facts that he claims his testimony--at trial and at the suppression hearing--should have brought out; little of it is relevant to the voluntariness of his statements. Much of Kahl's declaration consists of his theories regarding the validity of the warrant for his father's arrest and allegations that law enforcement officers interfered with his medical care. Kahl also recounts that he repeatedly asked to use a telephone to contact his family to secure legal assistance, and repeatedly asked for information about proceedings against him. Kahl states, however, that he was told that he was not allowed to call, write, watch television, or read newspapers, and that his only contact could be with the FBI. Kahl adds that as a result of the powerful pain-killing drugs he was prescribed while hospitalized, he was physically and mentally exhausted and experienced difficulty concentrating, and was therefore unable to voluntarily and knowingly waive any rights...