Koskela v. U.S., 98-1879ND

• Decision Date: 02 October 2000
• Docket Number: No. 98-1879ND,98-1879ND
• Citation: 235 F.3d 1148
• Parties: (8th Cir. 2001) Kenneth H. Koskela, Appellant, v. United States of America, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1148

235 F.3d 1148 (8th Cir. 2001)

Kenneth H. Koskela, Appellant, v. United States of America, Appellee.

No. 98-1879ND

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: October 2, 2000

Filed: January 3, 2001

On Appeal from the United States District Court for the District of North Dakota.

Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

After a jury found Kenneth H. Koskela guilty of theft of firearms, conspiracy to transport stolen firearms, and being a felon in possession of firearms, in violation of 18 U.S.C. 371, 922, and 924, we affirmed his convictions and sentence. See United States v. Koskela, 86 F.3d 122, 124-26 (8th Cir. 1996). Mr. Koskela then filed a 28 U.S.C. 2255 motion, claiming his trial counsel, Kent Morrow, had been ineffective. After responsive pleadings from the government, the District Court denied relief, and Mr. Koskela appeals. For the reasons that follow, we affirm in part and reverse in part.

The trial evidence showed that on February 24, 1994, Floyd Wesley Shulze and Mr. Koskela--assisted by Susan Kay Dokken, who testified for the government--stole approximately sixty firearms from the Dakota Lawman Supply Company in Bismarck, North Dakota. According to the government's evidence, the next day they transported the firearms in a rented car to Denver, Colorado, where Mr. Shulze traded fifty-eight of them for cocaine.

In support of his Section 2255 motion, Mr. Koskela attested that he told Mr. Morrow: (1) he had been in Bismarck from February 22 to 25 to help Mr. Shulze repair damage to his home caused by frozen water pipes; (2) during this time, he and Ms. Dokken stayed at a motel while Mr. Shulze stayed with his friends, Mary and Dean Miller; and (3) Mr. Koskela then returned to Fargo, where he was employed by Joe Kelly on the weekend of February 26 and 27, 1994. Mr. Koskela attested that he instructed Mr. Morrow to subpoena, among others, the Millers and Mr. Kelly; he attached to his motion the affidavits of the Millers, Mr. Kelly, and Mr. Shulze, all supporting his alibi defense. The government argued that the affidavits lacked credibility, given the trial evidence, the decision of Mr. Shulze's attorney not to present an alibi defense, and Mr. Shulze's decision not to testify. The government also relied heavily on Mr. Morrow's affidavit, which included his attestations that Mr. Koskela admitted going to Bismarck to get "dope," admitted accompanying Mr. Shulze and Ms. Dokken to Colorado, and never mentioned the names of potential alibi witnesses.

The District Court concluded, without an evidentiary hearing, that the affidavits lacked credibility in the face of the government's pleadings and affidavits, and in any event did not undermine the Court's confidence in...