Wacht v. Braun, Case No. 1:15-cv-092

CourtUnited States District Courts. 8th Circuit. United States District Court of North Dakota
Writing for the CourtCharles S. Miller, Jr., Magistrate Judge United States District Court
PartiesDaniel Evan Wacht, Petitioner, v. Colby Braun, Warden, NDSP, Respondent.
Docket NumberCase No. 1:15-cv-092
Decision Date25 March 2016

Daniel Evan Wacht, Petitioner,
Colby Braun, Warden, NDSP, Respondent.

Case No. 1:15-cv-092


March 25, 2016


Before the court is a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner, Daniel Evan Wacht ("Wacht") and respondent's Motion to Dismiss. For the reasons set forth below, the undersigned recommends that Wacht's petition be denied and respondent's motion be granted.1


A. Trial

On January 7, 2011 a Criminal Complaint was filed in the district court for Griggs County, North Dakota, charging Wacht with Murder, a class AA felony. (Ex. 2). A Criminal Information was subsequently filed on May 27, 2011. (Ex. 1). An Amended Criminal Information was filed on January 30, 2012. (Ex. 7). A Second Amended Criminal Information was filed on February 3, 2012.

On November 30, 2011, Wacht filed a motion and brief to suppress evidence obtained pursuant to the search warrants dated January 5, 2011. (Ex. 6). A hearing on Wacht's motion to

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suppress was held on January 19, 2012. (Ex. 10). On January 24, 2012, the district court filed a memorandum and order denying Wacht's motion to suppress. (Ex. 11).

On April 24, 2012, the jury found Wacht guilty of Murder. (Ex. 19). Wacht was sentenced to life without parole on August 1, 2012. (Ex. 20).

B. Direct appeal

Wacht appealed his conviction to the North Dakota Supreme Court on August 13, 2012. (Ex. 21). Wacht raised several issues on appeal, some of which were presented by appellate counsel and some of which Wacht raised in a pro se supplemental brief. (Exs. 23 and 24). Wacht argued: (1) the trial court erred in denying Wacht's motion to suppress evidence obtained from the illegal searches of Wacht's van and residence; (2) the trial court erred in denying Wacht's motion to exclude evidence under Rule 404(b) of the North Dakota Rules of Evidence; (3) there was insufficient evidence on which to find Wacht guilty beyond a reasonable doubt; (4) evidence was admitted in violation of Rule 16(c) N.D.R.Crim.P. and/or without foundation; and (5) Wacht's constitutional right to a fair and impartial jury was violated. ( Id.). On July 18, 2013, the North Dakota Supreme Court rejected Wacht's claims and affirmed his conviction. State v. Wacht, 2013 ND 126, 833 N.W.2d 455 ("Wacht I").

C. State postconviction proceedings

Wacht next filed an application for postconviction relief with the district court on January 15, 2014, claiming that (1) newly discovered evidence showed a State's witness fabricated his trial testimony, and (2) his counsel was ineffective. (Ex. 27). The State filed an answer to Wacht's application for postconviction relief and also moved for summary disposition. (Exs. 28 and 33).

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On October 1, 2014, the district court summarily dismissed Wacht's application for postconviction relief. (Ex. 37).

Wacht appealed the order dismissing his postconviction application. (Ex. 38). On June 11, 2015, the North Dakota Supreme Court affirmed the district court's dismissal of the postconviction application. Wacht v. State, 2015 ND 154, 864 N.W.2d 740 ("Wacht II").

D. Federal habeas petition

After exhausting his state-court remedies, Wacht filed his § 2254 petition with this court. Wacht's petition raises five different grounds for relief. In his first and second grounds for relief, he alleges that his Fourth Amendment rights were violated because there were illegal searches of his vehicle and residence and surrounding property. (Doc. No. 1 at 5-6). In his third ground for relief, he alleges that his Sixth Amendment right to a fair and impartial jury was violated. (Doc. No. 1 at 8). In his fourth ground for relief, he alleges that evidence was presented in violation of state and federal criminal procedure rules and in violation of his right to due process. (Doc. No. 1 at 9). In his fifth and final ground for relief, he alleges that his trial attorney was ineffective for multiple reasons. (Doc. No. 1 at 11).

E. Evidence supporting Wacht's conviction

The following factual summary, taken verbatim from the decision of the North Dakota Supreme Court on direct appeal, is set forth below:

[¶ 2] Kurt Douglas Johnson was reported missing to Griggs County Sheriff Robert Hook on January 4, 2011 by his cousin, Murray Stokka. After determining that Johnson was last seen on December 31, 2010 with Daniel Evan Wacht, Sheriff Hook obtained a search warrant to search Wacht's van on January 5, 2011 at 12:25 a.m. The evidence presented to the district judge to obtain the search warrant was contained in affidavits from Sheriff Hook and Bureau of Criminal Investigation Agent Arnie Rummel.

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[¶ 3] Sheriff Hook's affidavit set forth the events leading up to the night Johnson was reported missing. Murray Stokka, Johnson's cousin, contacted Hook to report that Johnson was missing. The last time anyone had seen Johnson was at the Oasis bar in Cooperstown on December 31, 2010. Johnson appeared to be drunk and was causing a disturbance at the bar. The bartender threatened to call the sheriff. Wacht was also at the Oasis, and offered to give Johnson a ride home. Tim Vincent, later identified as a patron of the Oasis bar on December 31, 2010, told the sheriff that he helped Wacht get Johnson out of the bar, and Wacht proceeded to throw Johnson into the van. Johnson was never seen again. Johnson's family thoroughly searched his house for him, including inside the cupboards, but did not find him. Sheriff Hook also searched Johnson's house and did not find him. The person who does Johnson's snow removal said there were no footprints in the snow when he came to shovel on January 1, 2011. Wacht is employed by Sheyenne Tooling in Cooperstown, and Tim James, his supervisor, stated Wacht had not reported for work since December 23, 2010 because his mother had died in California. An informant said Wacht told the informant he was shopping in Fargo. Sheriff Hook called Wacht's cell phone and it sounded like Wacht was driving. Wacht stated that he dropped Johnson off at the Fish Bowl bar in Cooperstown at 11:30 p.m. on December 31, 2010, and "[n]o one saw me do it." Ron Berge Jr. stated that Wacht told him Wacht took Johnson to Wacht's own home and was there for some time while Johnson was passed out in Wacht's van, then dropped Johnson off at the Fish Bowl bar. No one saw Johnson at the Fish Bowl bar that night. Sheriff Hook spoke with his deputies and they stated they received a call requesting assistance because Wacht was stuck in a ditch. Wacht reported he had been at his buddy's place, gesturing toward the Richard Sutcliffe farm. Wacht adamantly refused to allow the deputies anywhere near his van, which was the same van where Johnson was last seen. The deputies gave Wacht a ride home.

[¶ 4] Agent Rummel's affidavit recited Wacht's criminal background since 2001, including charges of grand theft auto, burglary, force with a dangerous weapon, use of a firearm or animal during a theft, taking a vehicle without owner's consent, possession and transport of a controlled substance, parole and probation violations, felon in possession of a firearm, willful discharge of a firearm with gross negligence, and manufacture or possession of a dangerous weapon. Agent Rummel also stated Wacht had an outstanding warrant in California for [a] probation violation, and that he believed Wacht has violent tendencies.

[¶ 5] After staking out Wacht's home and work, law enforcement arrested Wacht pursuant to the California warrant outside Sheyenne Tooling on the morning of January 5, 2011. When Wacht was arrested, he was in possession of a stolen Glock 9mm handgun. Wacht was interviewed by Agent Rummel, and he admitted Johnson was in his van on New Year's Eve. Wacht also stated that he believed he had a Second Amendment right to possess firearms regardless of his probation conditions. The police towed Wacht's van to a local body shop and sealed it to preserve the

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evidence. When they searched the van, they found an envelope containing five spent rifle shells and ammunition for a rifle. Agent Rummel then applied for a search warrant to search Wacht's home for firearms, weapons, and ammunition. His affidavit stated they found ammunition for a rifle in Wacht's van, that Wacht had told officers he believed he had a constitutional right to possess firearms despite his criminal convictions and probation conditions, and that an informant told Rummel about an incident in which Wacht had shot through a coffee table inside Wacht's house. The affidavit also stated that Wacht was under surveillance from the time he left his home to the time he arrived at work, and that Wacht admitted that he brought a gun to work on a regular basis. The search warrant was granted.

[¶ 6] Law enforcement searched Wacht's house, discovering more firearms and ammunition. They also found a blood stained couch cushion in a garbage bag in Wacht's laundry room. Law enforcement applied for and obtained another warrant to search the house for evidence of Johnson. That search uncovered Johnson's decapitated head buried in the crawl space under Wacht's house, as well as a bullet casing, bloody pillow, and several items with Johnson's DNA on them. Wacht was charged with the murder of Kurt Johnson.

Wacht I, 2013 ND 126, ¶¶ 2-6.


A. Scope of review

Under 28 U.S.C. § 2254, a federal court may review state-court criminal proceedings to determine whether a person is being held in custody in violation of the United States Constitution or other federal law. However, where the state court has adjudicated the federal claim on the merits, this court's review is limited by 28 U.S.C. § 2254(d) to a determination of whether the state court's decision is (1) directly contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) based on an...

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