United States District Court, D. Montana, Great Falls Division
Morris United States District Court Judge.
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. His motion is denied.
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.
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
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.
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.
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.)
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.
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
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 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.
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.
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.)