U.S. v. One Star, CR 04-30070.

Citation575 F.Supp.2d 1104
Decision Date25 August 2008
Docket NumberNo. CR 04-30070.,CR 04-30070.
PartiesUNITED STATES of America, Plaintiff, v. Roy B. ONE STAR, Defendant.
CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota

Randolph J. Seiler, Eric D. Kelderman, U.S. Attorney's Office Pierre Office, Pierre, SD, for Plaintiff.

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO VACATE SENTENCE AND ORDER DENYING CERTIFICATE OF APPEALABILITY

CHARLES B. KORNMANN, District Judge.

Defendant was convicted, following a trial by jury, of six counts of aggravated sexual abuse of a child and one count of simple assault. He was sentenced to life imprisonment. He appealed his conviction and sentence to the United States Court of Appeals for the Eighth Circuit and the Eighth Circuit affirmed. Defendant filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 contending that (1) trial counsel was ineffective because he knew that the defendant was mentally incompetent (defendant contends that he is currently incarcerated in the mental health unit at F.C.I. Butner), (2) trial counsel was ineffective because he prevented defendant from testifying at trial, and (3) trial counsel was ineffective "in not forcing [defendant] and advising [defendant] in writing" as to the acceptance of a "10 year plea offer."

The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A. Moreno and the magistrate judge submitted his report and recommendation to the Court on July 21, 2008, Doc. 109. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636. Petitioner did not file timely objections but he did file a "motion in opposition to government's motion to deny plaintiff motion to vacate," Doc. Ill, on August 18, 2008. He did not specifically address the report and recommendation in that document.

The Court has conducted a de novo review of the file. I was the trial judge and observed counsel. I also heard all the evidence and arguments. I find that the report and recommendation of the magistrate judge should be accepted and the motion to vacate should be denied.

Defendant's most recent filing did specifically address his contention that he was incompetent at the time of his trial. I will construe that portion of the document as an objection to the Magistrate's conclusion that counsel was not ineffective in failing to request a competency hearing. The United States Supreme Court has held that "the standard for competence to stand trial is whether the defendant has `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has `a rational as well as factual understanding of the proceedings against him.'" Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993).

Retrospective determinations of whether a defendant is competent to stand trial or to plead guilty are strongly disfavored. Such determinations have "inherent difficulties" even "under the most favorable circumstances." [Drope v, Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 909, 43 L.Ed.2d 103 (1975)]; cf. [United States v. Day, 949 F.2d 973, 982 n. 9 (8th Cir.1991)] ("To require a sentencing court [upon a collateral attack to a prior conviction] to decide whether a defendant was competent during proceedings that took place years earlier would be an exercise in futility.").

Weisberg v. State of Minn., 29 F.3d 1271, 1278 (8th Cir.1994). Defendant's current housing assignment in a mental health unit does not raise a presumption that the defendant was incompetent to assist counsel at the time of his trial. "Not every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a [then] present inability to assist counsel or understand the charges." United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.1984). See also, Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir.1995) ("[N]either low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial")

Based upon the evidence presented to the Magistrate, there was no information available to trial counsel to raise a question as to the defendant's competence. Defendant is not entitled to an evidentiary hearing on the issue of his competence at the time of his trial based merely on conclusory statements by the defendant that his present incarceration in a mental health unit demonstrates that he was incompetent at the time of trial. Dranow v. United States, 407 F.2d 47, 49 (8th Cir. 1969). The record shows that petitioner understood the nature of the proceedings and the charges against him and was able to assist his trial attorneys before, during and after trial and therefore counsel acted reasonably in not requesting a competency hearing. Vogt v. United States, 88 F.3d 587, 590 (8th Cir.i996).

Defendant, for the first time, now contends that the government failed to disclose all exculpatory evidence and that he "found some evidence that supports his supposition that the Government has withheld evidence from the Plaintiff (sic)." He also, for the first time, now claims that one or more jurors had reasonable doubt as to his guilt but felt "forced" in finding him guilty. Defendant contends that he has evidence to support his claims but does not wish to reveal such evidence until the evidentiary hearing. Defendant has it backwards. He is not entitled to an evidentiary hearing based only on conclusory allegations. Evans v. United States, 200 F.3d 549, 551 (8th Cir.2000). Conclusory allegations unsupported by specifics are insufficient to overcome the barrier to an evidentiary hearing. Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir.1985).

Defendant also now contends that he was assigned an improper criminal history category and requests that he be re-sentenced under the now advisory Guidelines. "[G]arden-variety Sentencing Guideline application issues" are not properly raised in collateral proceedings under § 2255. Auman v. United States, 67 F.3d 157, 160-61 (8th Cir.1995). Defendant did not raise any sentencing issues on direct appeal and those claims are thus procedurally defaulted. United States v. Perales, 212 F.3d 1110, 1111 (8th Cir.2000). Defendant does not claim that he falls into one of the exceptions to procedural default (ineffective assistance in failing to raise sentencing issues, sentence in excess of statutory maximum, and errors that rise to the level of miscarriage of justice) and I find that none are applicable. In addition, defendant was sentenced under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held that the Federal Sentencing Guidelines are now advisory. Booker does not, in any event, benefit a movant on collateral review. Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir.2005).

Based upon the foregoing,

IT IS ORDERED:

1. The report and recommendation of the U.S. Magistrate Judge, Doc. 109, shall be and is hereby adopted as the findings of fact and conclusions of law herein.

2. The defendant's objections, as set forth in his "motion in opposition," Doc. Ill, are overruled.

3. The motion to vacate, set aside, or correct defendant's conviction and sentence is denied.

IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable issue with respect to the Court's order denying petitioner's motion to vacate, set aside, or correct sentence. No certificate of appealability will be granted. 28 U.S.C. § 2253(c). This in no way hampers the petitioner's ability to request issuance of the certificate by a circuit judge pursuant to Fed. R.App. P. 22.

REPORT AND RECOMMENDATIONS FOR DISPOSITION OF MOTION UNDER § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE

MARK A. MORENO, United States Magistrate Judge.

The above-captioned 28 U.S.C. § 2255 case was referred to this Court, pursuant to 28 U.S.C. § 636(b)(1)(B), for the purpose of conducting any necessary hearings, including evidentiary hearings, and submitting proposed findings of fact and recommendations for disposition thereof.1 Having carefully reviewed and considered all of the records on file and being fully advised in the premises, the Court does now make and propose the following findings, report and recommendations for disposition of the case.

I.

Defendant, Roy B. One Star (One Star), an Indian, was indicted on and found guilty of six counts of aggravated sexual abuse of his two minor daughters, R.O.S. and J.O.S., in violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2) and one count of the lesser included offense of simple assault on one of the daughters, R.O.S., contrary to 18 U.S.C. §§ 1153 and 113(a)(5). The District Court sentenced One Star to life in prison on each of the aggravated sexual abuse counts and to one year in prison on the simple assault count, with all sentences to run concurrently.

On appeal, One Star raised two issues, namely (1) whether the prosecutor violated his constitutional right to remain silent by soliciting an FBI agent's testimony regarding his post-Miranda silence; and (2) whether there was sufficient evidence to convict him of aggravated sexual abuse. The Eighth Circuit Court of Appeals, however, affirmed the District Court's Judgment. United States v. One Star, 465 F.3d 828, 829, 834 (8th Cir.2006).

One Star then filed a timely Motion under § 2255 to vacate, set aside or correct his sentence. In his Motion, One Star claims that his trial counsel was ineffective because counsel (1) knew One Star was mentally incompetent; (2) prevented One Star from testifying at trial; and (3) did "not forc[e] [One Star] and advis[e][him] in writing and orally" to accept a "10 year plea offer." The District Court thereafter ordered Plaintiff, United States of America (Government), to serve and file an answer or responsive pleading and...

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  • U.S. v. Arcoren
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    • U.S. District Court — District of South Dakota
    • 7 July 2009
    ...is necessary, the appointment of counsel is discretionary. Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir.1994): United States v. One Star, 575 F.Supp.2d 1104, 1111 (D.S.D.2008). In exercising its discretion, a court should first determine whether the § 2255 movant has presented a non-frivol......
  • Ex Parte Barnett
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    • Alabama Supreme Court
    • 10 April 2009
    ...and voluntary when there is some indication that the defendant is prevented from exercising his or her right); and United States v. One Star, 575 F.Supp.2d 1104 (D.S.D.2008)(negative response to trial court inquiry to defendant as to desire to testify was a valid waiver of the right). Cf. S......
  • Barrera v. United States, CIV 11-3014
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    • U.S. District Court — District of South Dakota
    • 3 June 2013
    ...341 F.3d [720] at 722 [8th Cir. 2003] (quoting Engelen v. United States, 68 F.3d 238, 241 (8th Cir.1995)).United States v. One Star. 575 F.Supp.2d 1104, 1116 (8th Cir. 2008). "A defendant who maintains his innocence at all the stages of his criminal prosecution and shows no indication that ......

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