Stead v. U.S.
| Decision Date | 03 September 1999 |
| Docket Number | No. CR 95-30098.,No. CIV 98-3007.,CIV 98-3007.,CR 95-30098. |
| Citation | 67 F.Supp.2d 1064 |
| Parties | Barry Douglas STEAD, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of South Dakota |
Barry Douglas Stead, Lewisburg, PA, pro se.
Barry Douglas Stead filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence (Doc. 70) and filed a supporting memorandum (Doc. 71). He was allowed to proceed in forma pauperis. Following a referral to U.S. Magistrate Judge Mark Moreno, Judge Moreno issued a "report and recommendations for disposition" (Doc. 80). This Court has conducted a de novo review of the entire file. This Court also heard all the evidence in the trial at which Mr. Stead was convicted and observed, of course, the performance of Mr. Stead's trial attorney. Judge Moreno declined to appoint counsel or to conduct an evidentiary hearing. Judge Moreno did give full consideration to Stead's motion for leave to file an amendment to his § 2255 motion (Doc. 73) and his amended claims.
This Court has never appointed an "intoxication expert" in any case. Testimony from a chemist has been allowed when questions were present as to dissipation rates or extrapolation based upon blood alcohol results. There would have been no basis whatever for appointing a so-called "intoxication expert" in this case, for the very reasons set forth by Judge Moreno.
Judge Moreno has very carefully analyzed the claims of Mr. Stead and appears to understand fully what happened in the course of this trial. The evidence of guilt as to all counts of the indictment in this case was overwhelming. Trial lawyers obviously do not determine the facts but must do the best they can with what facts there are. Mr. Stead's lawyer did that. Mr. Stead's past record must have driven this case to trial rather than a plea agreement. There was nothing, in this Court's view, that Mr. Stead's lawyer could have done other than what he did do, given the fact that no plea agreement was reached. Stead is, without question, not entitled to relief under 28 U.S.C. § 2255 and his motion, as amended, (Docs. 70 and 73) should be denied.
No objections have been filed. The report and recommendation for disposition should be adopted in its entirety. Now, therefore,
IT IS ORDERED that the motion to vacate, set aside or correct the sentence of Mr. Stead as a person in federal custody (Docs. 70 and 73) is hereby denied, and the Report and Recommendations for Disposition (Doc. 80) is hereby adopted.
Dated this 2nd day of September, 1999.
Barry Douglas Stead filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence (Doc 70) and filed a supporting memorandum (Doc 71). He was allowed to proceed in forma pauperis. Following a referral to U.S. Magistrate Judge Mark Moreno, Judge Moreno issued a "report and recommendations for disposition" (Doc 80). This Court previously conducted a de novo review of the entire file. This Court also heard all the evidence in the trial at which Mr. Stead was convinced and observed, of course, the performance of Mr. Stead's trial attorney. Judge Moreno declined to appoint counsel or to conduct an evidentiary hearing. Judge Moreno did give full consideration to Stead's motion for leave to file an amendment to his § 2255 motion (Doc. 73) and his amended claims.
By virtue of an Order dated September 2, 1999, this Court denied the motion of Mr. Stead and adopted the Report and Recommendations, stating also that no objections were filed. The Court subsequently received objections from Mr. Stead (Doc. 82) and such objections have now been carefully considered. They will be considered as timely filed. Mr. Stead, for the most part, repeats arguments rejected by the jury. Mr. Stead's version of what happened was rejected by the jury as the fact finder, the jury having obviously concluded that other eye witnesses were more credible as to what happened. The Court continues to reject the claim that counsel for Mr. Stead was deficient or provided ineffective assistance. The Court sees nothing to change the earlier ruling and the report and recommendation for disposition should be adopted in its entirety and the objections should be overruled.
Now, therefore,
IT IS ORDERED that the objections of Mr. Stead (Doc. 82) are overruled and the Court reaffirms the earlier action to deny the motion to vacate, set aside or correct the sentence of Mr. Stead as a person in federal custody (Docs. 70 and 73), and the court reaffirms that, despite the objections, the Report and Recommendations (sic) for Disposition (Doc. 80) is hereby adopted.
The above-captioned 28 U.S.C. § 2255 matter was referred to this Court by the District Court1 pursuant to 28 U.S.C. 636(b)(1)(B) for the purpose of determining defendant, Barry Douglas Stead's (hereinafter Stead) eligibility to proceed in forma pauperis, conducting any necessary hearings, including evidentiary hearings, and submitting to it proposed findings of fact and recommendations for disposition of the matter. Docket No. 72.
After careful review of the record and based on the totality of the circumstances present, this Court does now make and propose the following findings of fact, report and recommendations for disposition.
Stead was charged by a superseding indictment with committing the offenses of second degree murder (Count I), assaulting, resisting or impeding a federal officer with a deadly weapon (Count II), using or carrying a firearm during and in relation to a crime of violence (Count III) and being a felon in possession of a firearm (Count IV) in violation of 18 U.S.C. §§ 1153, 1111, 111(a), 924(c)(1) and 922(g)(1). On April 3, 1996, a jury found Stead guilty of all four of the charged offenses. Docket No. 41. The trial court thereafter sentenced Stead to terms of imprisonment and supervised release totaling 35 years and 4 years respectively. Docket No. 51. The Eighth Circuit Court of Appeals affirmed the trial court's judgment in an opinion filed on March 6, 1997, Docket No. 61, and reported as United States v. Stead, 107 F.3d 876 (8th Cir.1997) (unpublished opinion). The Eighth Circuit's mandate was later issued on April 3, 1997. Docket No. 62. Stead did not seek certiorari review of his convictions with the United States Supreme Court.
Subsequently, Stead filed a motion under § 2255 to vacate, set aside or correct his sentence and included with the motion a supporting memorandum. Docket Nos. 70, 71. Following the District Court's order of reference, Docket No. 72, Stead moved for leave to amend his motion, Docket No. 73. Later, this Court granted Stead's tardy application to proceed in forma pauperis. Docket No. 79.
In his § 2255 motion and proposed amendment thereto, Stead claims that his trial counsel was ineffective in five different respects. Docket Nos. 70, 71, 73. The government denies that Stead is entitled to any relief under § 2255 and argues that both the motion and the proposed amendment to it should be dismissed because the same were not timely filed. Docket No. 78.
Stead's convictions revolve around the shooting of Harry Dubray, Sr. on December 1, 1995 in Parmelee, South Dakota, located on the Rosebud Indian Reservation. Docket No. 57.
On the afternoon of December 1st, Dubray and his sons, Harry, Jr., and Marvin, were at Stead's residence. T.Tr. 108. Some time that afternoon, Stead's brother, James Stead, showed up at the residence. T.Tr. 284, 298, 301, 349. Most of the individuals there were, or had been, drinking alcoholic beverages. T.Tr. 85-86, 116-285, 299, 311-12. At some point in time, Dubray and Marvin left the residence and went back to their house, approximately two doors down the street. T.Tr. 58-59, 104, 283, 348.
A short time later, Harry, Jr., and Stead got in an argument which escalated into a fist fight outside Stead's house. T.Tr. 229, 301-03, 350-53. Harry, Jr. was badly beaten up in the fight and began walking back to Dubray's residence. T.Tr. 53, 110, 153, 174, 243, 284-86, 353, 375. He was met part of the way by Dubray, who noticed that Harry, Jr. was bleeding from his mouth and face. T.Tr. 284-86. Dubray escorted Harry, Jr. into the house and laid him down on a couch. T.Tr. 53, 110.
Dubray then came out of the house and was met by Jesse and Peter Knife, (ages 21 and 16, respectively, T.Tr. 136-38, 163), who had stopped over to visit Harry, Jr T.Tr. 140-41, 243-44. Dubray immediately informed the Knifes that Harry, Jr. had been "ganged" (i.e., beaten up) and pointed toward the Stead residence. T.Tr. 141, 166-67. Not having seen Harry, Jr. or knowing for sure where he was (Dubray was not clear in his description of Harry, Jr.'s location at the time) and being concerned about him, the Knifes took off running toward the Stead residence. T.Tr. 142-43.
In the meantime, Stead and James were getting into a vehicle outside of the residence. T.Tr. 143-45, 231, 304, 334, 377. The Knifes approached the vehicle to see if Harry, Jr. was there and confronted Stead and James about beating up Harry, Jr. T.Tr. 143-45, 168-69, 304, 306, 335. As Stead, James and the Knifes were arguing with each other, Dubray arrived. T.Tr. 147. Upset over what he perceived the Steads had done to his son, Dubray tackled James and the two began wrestling on the ground in the back yard of the residence. T.Tr. 147-48, 172. Upon seeing this, Stead grabbed a loaded rifle, and while Dubray and James were wrestling with each other, approached them with the rifle and shot Dubray in the back at close range. T.Tr. 148, 172-73, 246, 358-60, 383-86. Before discharging the rifle, Stead yelled for James to move. T.Tr. 321-25.
Shortly after the shot was fired, everyone present scattered....
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