Provancial v. United States

• Decision Date: 26 February 2014
• Docket Number: CIV 13-3009-RAL
• Parties: JEFFREY W. PROVANCIAL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of South Dakota

JEFFREY W. PROVANCIAL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CIV 13-3009-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

Dated February 26, 2014

OPINION AND ORDER

GRANTING GOVERNMENT'S

MOTION TO DISMISS AND

DENYING § 2255 MOTION

Petitioner Jeffrey W. Provancial ("Provancial") filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. CIV Doc. I.¹ Provancial is in federal custody having pleaded guilty to a sexual abuse count and having been sentenced to 108 months in the custody of the Bureau of Prisons on that conviction. CR Doc. 34.² Provancial appealed his sentence to the United States Court of Appeals for the Eighth Circuit, which affirmed this Court's sentence. United States vs. Provancial, 438 F. App'x 529 (8th Cir. 2011) (per curiam). Provancial's § 2255 motion raised two grounds: (1) ineffective assistance of counsel based on the contention that Provancial's guilty plea was "tendered in an unknowing and involuntary manner, because his attorney failed to fully investigate the case before advising him to plead guilty"; and (2) insufficient factual basis for his plea in that allegedly no finding was made that Provancial knew that the victim of his offense was incapacitated at the time of the sexual abuse. CIV Doc. 1 at4-5. This Court screened Provancial's petition and ordered that the United States attorney file an answer. CIV Doc. 5.

The United States filed a motion for an order directing an affidavit response, CIV Doc. 6, which this Court granted. CIV Doc. 8. Provancial executed an attorney-client privilege waiver. CIV Doc. 9. The Government then filed its motion to dismiss. CIV Doc. 13. After a month had elapsed without Provancial responding, this Court entered an order directing petitioner to reply giving him an additional month to submit his reply. CIV Doc. 14. Provancial filed his reply a few days beyond the deadline to do so, CIV Doc. 15, but this Court has considered Provancial's reply as if timely filed in evaluating whether Provancial is entitled to relief and whether the Government is entitled to dismissal.

I. Summary of Facts

On July 13, 2010, Provancial was indicted on one count of aggravated sexual abuse by force and one count of sexual abuse. CR Doc. 3. Provancial originally pleaded not guilty and was appointed counsel Randall Briggs Turner from the Federal Public Defender's Office. CR Doc. 9; CR Doc. 10.

On November 16, 2010, Provancial entered into a plea agreement with the Government under which he was to plead guilty to the second count for sexual abuse with the greater offense contained in Count I of aggravated sexual abuse being dismissed. CR Doc. 23. Provancial signed a factual basis statement setting forth the following:

On or about April 11, 2010, in Todd County, in Indian country, in the District of South Dakota, Jeffrey W. Provancial, an Indian, did knowingly engage in and attempt to engage in a sexual act, that is, contact between his penis and the vulva of [the victim], who at the time was incapable of appraising the nature of the conduct and was physically incapable of decliningparticipation in and communicating unwillingness to engage in the sexual act.

On April 10, 2010, 17-year-old [victim] was drinking with friends. The next morning she went to Jeffrey W. Provancial's residence to drink with Provancial and Brent Good Shield. She drank with them for most of the night, going to bed "after daylight." [The victim] started to wake later on April 11, and noticed someone had taken her clothes off. She noticed that the defendant had gotten on top of her and told her to be quiet. At that time, the defendant had his penis inside her vagina.

When interviewed, the defendant stated that Good Shield and [the victim] arrived at his residence to drink. Good Shield later left the residence. The defendant went to his room and saw [the victim] passed out and naked on his bed. He tried to wake her, but he could not. He informed the interviewing agent that then "something just happened." The defendant stated that he pulled down his pants, got on top of [the victim] while she was passed out, and put his penis in her vagina. He said that when he did that, she woke up. He stated that [the victim] did not tell him to stop, and he only stopped because his condom broke. The defendant provided a handwritten statement, admitting that he had sex with [the victim], without her consent, while she was passed out. The defendant stated he was sorry for what he did and wishes he had never done a thing.

CR Doc. 25. The factual basis statement also acknowledged that Provancial is an "Indian" and that the offense took place in "Indian country." CR Doc. 25.

On November 24, 2010, this Court conducted a change of plea hearing in Provancial's case. CR Doc. 29; CR Doc. 46. Provancial took an oath to tell the truth at that hearing before this Court asked any questions of him and confirmed that he understood his obligation to answer questions of the Court truthfully. CR Doc. 46 at 3. After initial questioning, this Court determined that Provancial was competent to go forward with the proposed change of plea. CR Doc. 46 at 5. During those initial questions, the following exchange occurred:

THE COURT: Are you fully satisfied with the counsel, representation and advice given to you by Mr. Turner? THE DEFENDANT: Yes, I am.

CR Doc. 46 at 4-5.

The Court advised Provancial about the offense to which he was proposing to plead guilty, including advising Provancial of the possible penalties he faced, rights that he had to a jury trial which he would be giving up, and the sentencing process. CR Doc. 46. After determining that Provancial had voluntarily signed the plea agreement, the Court asked Provancial the following questions:

THE COURT: Next, the Court wants to ask you about the factual basis statement. Do you have that in front of you?

THE DEFENDANT: Yes, sir.

THE COURT: Did you carefully read and understand the factual basis statement?

THE DEFENDANT: Yes.

THE COURT: Did you go over the factual basis statement with your attorney before signing it?

THE DEFENDANT: Yes, sir, I did.

THE COURT: Is the factual basis statement one hundred percent accurate in what it states?

THE DEFENDANT: Yes, sir, Your Honor.

CR Doc. 46 at 14. The Court continued its questioning of Provancial as follows:

THE COURT: If you were to present a plea to Count II today, would that plea be made voluntarily on your own part and on your own free will?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Have you had enough time to talk with Mr. Turner about your case and about what you should do here today?

THE DEFENDANT: I did.

THE COURT: Have you been fully satisfied with his counsel, advice and representation?

THE DEFENDANT: Yes.

CR Doc. 46 at 15. Provancial then pleaded guilty to Count II, which charged that he had engaged and attempted to engage in a sexual act, contact between his penis and the vulva of the victim, "who at the time was incapable of appraising the nature of the conduct and was physicallyincapable of declining participation in and communicating unwillingness to engage in the sexual act." CRDoc. 46 at 16; CR Doc. 1.

At the sentencing hearing on March 2, 2011, as stated previously, Provancial received a sentence of 108 months in the custody of the Bureau of Prisons, followed by supervised release of five years on certain terms and conditions. CR Doc. 34. Provancial argued on appeal that this Court improperly imposed a use-of-force enhancement under the United States Sentencing Commissions Guideline Manual and erred in commenting that Provancial had no employment history, when in fact he had worked for part of one summer prior to his arrest. The United States Court of Appeals for the Eighth Circuit affirmed the sentence. Provancial, 438 F. App'x 529.

Provancial filed a timely § 2255 motion alleging two grounds of relief: (1) ineffective assistance of counsel allegedly "because his attorney failed to fully investigate the case before advising him to plead guilty"; and (2) insufficient factual basis for his plea based on an alleged lack of the mens rea element under 18 U.S.C. § 2242(2) of knowing that the victim was incapacitated. CIV Doc. 1 at 4-5. After Provancial executed an attorney-client waiver, his trial counsel, Randall Briggs Turner, executed an affidavit. CIV Doc. 10. In the affidavit, Turner affirmed that he advised Provancial of the evidence furnished by the Government including Provancial's own confession, and discussed the options available to Provancial. CIV Doc. 10 at 2. Turner reviewed the evidence against Provancial and listened to Provancial's side of the story. After the Government made a plea offer to allow Provancial to plea to sexual abuse and to dismiss the greater charge of aggravated sexual abuse by force, Turner discussed the plea agreement proposal with Provancial and advised him that it was his choice whether to enter a plea or go to trial. Provancial chose to plead guilty. CIV Doc. 10 at 2-3.

II. Discussion

A. Evidentiary Hearing

"A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless 'the motion and the files and the records of the case conclusively show that [he] is entitled to no relief." Holder v. United States, 721 F.3d 979, 993 (8th Cir. 2013) (quoting Aniulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008)). "No hearing is required where the claim 'is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.'" Watson v. United States, 492 F.3d 960,963 (8th Cir. 2007) (quoting Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994)). Because the record convincingly refutes Provancial's assertions and shows conclusively that he is not entitled to relief, an evidentiary hearing is not necessary in this case.

B. Provancial's Claims

1. Ineffective Assistance of Counsel

Provancial's first claim in his § 2255 motion asserts ineffective assistance of counsel. Under Strickland v. Washington, 466...