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United States v. Sunchild

United States District Court, D. Montana, Great Falls Division

January 25, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Brian Morris United States District Court Judge.

         Defendant/Movant Wilford Harlan “Huck” Sunchild moved to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 on April 25, 2017. Sunchild is a federal supervisee proceeding pro se.[1] His motion is denied.

         Preliminary Review

         Sunchild's motion is subject to preliminary review before the United States is required to respond. The Court must determine whether “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.

         A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). It remains the duty of the court, however, “to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.


         In late 2011 and early 2012, Sunchild served as the Director of the Wellness Center, a program of Rocky Boy's Health Clinic. The Wellness Center operates as a health promotion and gym facility for residents of the Rocky Boy's Reservation. In the fall of 2011, Sunchild secured a grant agreement with a division of Nike, Inc. called the “Nike N7 Fund.” Nike agreed to provide shoes and other apparel to the Chippewa Cree Tribe at a reduced rate to promote youth athletics and juvenile health. The agreement was to be fulfilled through the Wellness Center.

         The charged conduct involves two types of monies related to the operation of the Wellness Center and the N7 program. First, the Wellness Center is funded by two-percent deductions from the salaries of tribal employees. Second, as part of the N7 program, money comes into the Wellness Center as payment for Nike shoes and apparel, and then that money is used to pay Nike for their product. In January 2012, Sunchild established a bank account at the Native American Bank in the name of “Chippewa Creek Wellness Center, DBA N7 Nike Team Dealer, Wilford Harlan Sunchild.” He proceeded to deposit money from two-percent payments into that account. He then withdrew money from that account through ATMs and by cashing checks at pawn shops.

         On November 22, 2013, a grand jury indicted Sunchild on one count of theft from an Indian tribal government receiving federal grants, a violation of 18 U.S.C. § 666(a)(1)(A) (“Count 1”), one count of theft from an Indian tribal organization, a violation of 18 U.S.C. § 1163 (“Count 2”), and one count of theft from a healthcare facility, in violation of 18 U.S.C. § 669 (“Count 3”). (Indictment, Doc. 1.)

         On April 7, 2014, a two-day jury trial began on all three counts of the Indictment. The government put on eight witnesses on the first day trial and rested. (See Minute Entry, Doc. 33.) The government argued that Sunchild had opened the Native American Bank account (“NAB account”) as his own “personal slush fund.” (Doc. 64, at 73.) The government argued that Sunchild opened it as a Nike account solely as a “cover” to siphon two-percent monies from the Wellness Center. (Id. at 74.) According to the government, Sunchild acted without authorization and spent the funds for personal use, cashing checks at pawn shops and withdrawing cash at casino ATMs.

         On the second day of trial, the defense's case consisted solely of Sunchild's testimony. (See Minute Entry, Doc. 35.) The jury returned guilty verdicts on all three counts after an hour-and-a-half of deliberation. (Doc. 43.) On July 24, 2014, the Court sentenced Sunchild to a custodial term of 12 months and one day on each count to run concurrently, with two-year concurrent terms of supervised release. (Judg., Doc. 54.) The Court also ordered Sunchild to pay $19, 735.77 in restitution. (Id.)

         Sunchild appealed. (Doc. 56). The Ninth Circuit affirmed both his sentence and the restitution award. (Docs. 71, 72). Sunchild's conviction became final on May 11, 2016. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on April 25, 2017. 28 U.S.C. § 2255(f)(1).

         Claims and Analysis

         Sunchild claims that defense counsel provided ineffective assistance of counsel by failing to subpoena certain witnesses and documents. Strickland v. Washington, 466 U.S. 668 (1984), governs these claims. At this stage of the proceedings, Sunchild must allege facts sufficient to support an inference that counsel's performance fell outside the wide range of reasonable professional assistance. Id. at 687-88. Sunchild also must allege facts to support an inferenc that a reasonable probability exists that, but for counsel's unprofessional performance, the result of the proceeding would have been different. Id. at 694.

         “[T]he Sixth Amendment imposes on counsel a duty to investigate, because reasonably effective assistance must be based on professional decisions and informed legal choices can be made only after investigation of options.” Strickland, 466 U.S. at 680; see also Wiggins v. Smith, 539 U.S. 510, 521 (2003). Those “investigatory decisions must be assessed in light of the information known at the time of the decisions, not in hindsight.” Strickland, 466 U.S. at 680. “[T]he investigation need not be exhaustive” as its scope “depends on such facts as the strength of the government's case and the likelihood that pursuing certain leads may prove more harmful than helpful.” Id. at 680-81. “Because advocacy is art and not science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment.” Id. at 681.

         In order to assess Sunchild's claims, the Court ordered defense counsel to produce, under seal and ex parte, all materials in his file related to Sunchild's potential claims. (Doc. 88.) Counsel produced the file. (Doc. 89.) Sunchild responded. (Doc. 90.)

         I. ...

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