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United States v. Lewis

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

June 20, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DAVID J. LEWIS, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Dana L. Christensen, Chief Judge

         This case comes before the Court on Defendant/Movant David J. Lewis's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Lewis is a federal prisoner proceeding pro se.

         Three of Lewis's claims have been denied for lack of merit. The United States responded to these claims. It also filed and served on Lewis the pretrial discovery produced to defense counsel. See Order (Doc. 67) at 12 ¶ 2; Notice (Doc. 76). Since then, Lewis has filed a reply to the answer, two supplements, and a motion for counsel. Although he previously rejected the Court's offer to appoint new counsel to represent him, see Orders and Responses (Docs. 61-66), he also filed a motion for the appointment of counsel after the United States filed its answer and the discovery. See Mot. for Counsel (Doc. 80).

         The Court has reviewed all the materials in the file as well as the discovery[1]and is prepared to rule on the remaining claims as well as the motion for counsel.

         I. Background

         Lewis was arrested on January 11, 2014, when he confessed to killing 21-year-old Armon Boyd. On February 5, 2014, a grand jury indicted Lewis on one count of first-degree murder (Count 1) and one count of second-degree murder (Count 2), both violations of 18 U.S.C. § 1111(a). Jurisdiction was predicated on the Major Crimes Act. See 18 U.S.C. § 1153(a); Indictment (Doc. 11) at 2. If convicted on Count 1, Lewis faced a mandatory sentence of life in prison. See 18 U.S.C. § 1111(b). If convicted on Count 2, Lewis faced a sentence of "any term of years or life." Id. Chief Federal Defender Anthony Gallagher was appointed to represent Lewis. See Order (Doc. 7).

         On April 28, 2014, the parties filed a fully-executed plea agreement. Lewis agreed to plead guilty to Count 2, second-degree murder. In exchange, the United States agreed to dismiss the charge of first-degree murder in Count 1. The United States also conditionally agreed to seek a three-level reduction in Lewis's offense level under the Sentencing Guidelines to reflect his acceptance of responsibility. Both parties waived their rights to appeal the sentence if it fell within the applicable guideline range. See Plea Agreement (Doc. 39) at 2 ¶ 2, 7 ¶ 6, 7-8 ¶ 8.

         On May 2, 2014, at the change of plea hearing, Lewis agreed he had previously told a law enforcement officer that he had not at any time been afraid of Boyd, but he said his previous statement was incorrect. He explained that he was afraid at the outset of the altercation, but his fear dissipated and he was no longer afraid at the time he actually killed Boyd. He agreed with the other statements in the United States' Offer of Proof. See Offer of Proof (Doc. 40) at 3-4. At the conclusion of the hearing, Lewis pled guilty in open court to Count 2 of the Indictment.

         A presentence report was prepared. The total offense level was 35. With a criminal history category of I, Lewis's advisory guideline range was 168 to 210 months. Lewis was sentenced to serve 210 months in prison, to be followed by a five-year term of supervised release. See Minutes (Doc. 48); Judgment (Doc. 49) at 2-3; Statement of Reasons (Doc. 50) at 1 ¶ III.

         Lewis did not appeal. His conviction became final on September 30, 2014. See Gonzalez v. Thaler, __ U.S. __, 132 S.Ct. 641, 653-54 (2012). He timely filed his § 2255 motion on September 18, 2015. See 28 U.S.C. § 2255(f)(1).

         II. Remaining Claims

         Three claims remain pending:

Claim 1 Counsel provided ineffective assistance because he did not correctly understand the events leading to Lewis's arrest and refused to move to withdraw Lewis's plea or to obtain new counsel for Lewis. See Mot. § 2255 (Doc. 55) at 1-2 ¶¶ 1-3; Br. in Supp. (Doc. 58) at 2-5;[2] Supp. (Doc. 78) at 1-2.
Claim 3 Counsel did not do any pre-trial investigation and, if he had, "we would have known that a conflict between [Boyd's] brothers and myself happened on April 26, 2011, " resulting in serious and potentially life-threatening injuries to Lewis, and that in 2012 Boyd twice kicked in the back door to someone else's home. See Br. in Supp. at 2-3; Supp. (Doc. 79) at 2; Supp. (Doc. 81) at 1-2.
Claim 5 Lewis pled guilty because counsel told him that if he went to trial, the prosecutor would indict Lewis's sister, Pauline, on a charge of aiding and abetting. Counsel told Lewis at the change of plea hearing to "remember" that Pauline was threatened but Lewis himself was not. Later, Lewis learned the supposed threat "was not true." See Mot. § 2255 at 3-4 ¶ C; Br. in Supp. at 4-5; Reply (Doc. 78) at 1.

         III. Factual Background

         The course and content of the investigation is relevant to Lewis's claims. Investigative reports are the raw materials of the prosecution's case. Even if the reports do not accurately reflect the defendant's version of events, they show what witnesses and evidence the government likely would have presented to prove the case at trial and, therefore, what defense counsel had to be prepared to meet.

         A. Investigation of Missing Person Report

         At about 6:30 p.m. on Friday, January 10, 2014, Officer Jay Brugh of the Brockton city police asked Fort Peck Tribal Officer Doyle Bets His Medicine to help him investigate a report that 21-year-old Armon "Poohz" Boyd was missing. Brugh had spoken with Lewis, who told him that Boyd had been at his house on Thursday night but left when he got a text message from Tracy Yellow Hammer. Yellow Hammer said she did not text Boyd on Thursday night and had not heard from him for a few days. Bets His Medicine talked to a few more residents on First Street without getting anywhere. At 8:30 p.m., he returned to Poplar and contacted his lieutenant, Frank Martell, to advise him of the situation. See Bets His Medicine Report, Bates 231.[3]

         Around 9:00 a.m. on Saturday morning, January 11, 2014, Roosevelt County Deputy Tim Lingle traveled to Brockton to resume the investigation. Tribal police also became involved. Arietta Black Dog, Boyd's grandmother, told Lingle she had last seen Boyd around 10 p.m. on Thursday night, January 9. She added that Lewis had called her and told her Boyd was being stalked by someone. See Lingle Report, Bates 244; Trottier Report, Bates at 40; Lingle Report, Bates 2246.

         After talking to Black Dog, Lingle went to see Lewis at his residence on First Street.[4] Lewis let him in, and they sat at the kitchen table. Lingle noticed a strong "air freshener" type of smell. Lewis said Boyd visited him on Thursday night and asked to borrow some money to get a marijuana cigarette and go to a game on Friday. Boyd also told Lewis someone was stalking him but said he was not worried about him or them. Lewis said Boyd left at 11:20 p.m. He said Vangie Ramsay told him Boyd came to her house around 1:00 a.m. on Friday. See Lingle Report, Bates at 244-45.

         Lingle went to see Ramsay, who lived a few houses away on First Street. She confirmed that Boyd was there at about 1:00 a.m. on Friday morning. Her boyfriend, Del Ray Smith, said Boyd asked to buy a marijuana cigarette and was not dressed like someone who intended to be outdoors long. Ramsay said Myron Spotted Bird told her Boyd called him at 1:36 a.m. on Friday. Ramsay also thought Tracy Yellow Hammer got a text from Boyd around 11:00 Friday morning. See Id. at 245; see also FBI 302 re: Smith, Bates 662.

         Lingle contacted Yellow Hammer. She said she got a text from Boyd on Thursday, not Friday, and had not heard from him since. See Lingle Report, Bates 245; 1-11-14 Interviews, WS700159 at 1:24-1:33, 3:06-3:30, 4:18-4:35; see also Overby Report, Bates 1156 (requesting enhancement of Lingle recordings).

         Lingle also spoke to Myron Spotted Bird, who confirmed a phone call from Boyd at 1:33 a.m. on Friday. Boyd had asked where Spotted Bird was. Spotted Bird told Boyd he was playing whist at Lori Big Talk's residence. Boyd told Spotted Bird he would be right there, but he did not show up. Both Myron and Leland Spotted Bird told Lingle Lewis had a violent past and they suspected he had something to do with Boyd's disappearance. See Lingle Report at 245-46.

         Based on these interviews, Lingle decided to ask Lewis and Ramsay if they would allow him to search their homes for Boyd. Up to this point, Lewis had been talking with his neighbors about Boyd's whereabouts and expressing concern about him. See, e.g., FBI 302 re: Yellow Hammer, Bates 19; FBI 302 re: Gray Hawk, Bates 21; FBI 302 re: Black Dog, Bates 455; Lingle Report, Bates 244-45; see also, e.g., SMS Text and Toll Records, TollJData, lines 152-179 (calls between Lewis and Boyd's friends and family). But when Lingle asked him to allow a search of his house, Lewis declined. He said, "I got stuff in there that's illegal." Lingle assured Lewis he was only interested in Boyd and would not charge Lewis for anything else, such as marijuana or methamphetamine. Lewis still declined and told Lingle he would need a search warrant. Bets His Medicine also asked Lewis whether he would consent to a search, and Lewis turned him down as well. See 1-11-14 Interviews, WS700159 at 4:30-7:20; Lingle Report at Bates 246; Bets His Medicine Report, Bates 232; see also Trottier Report at Bates 40.

         B. Lewis's Statement to Martell

         At that point, Lieutenant Martell of the Fort Peck Tribal Police approached Lewis. According to Martell, he told Lewis that rumors Lewis had a role in Boyd's disappearance would stop if he permitted a search of his house. Lewis then looked around at the neighborhood people watching the police activity. Lewis asked Martell if he could come in so they could talk. Martell agreed. They sat down at the kitchen table. See Martell Report, Bates 240; see also Bets His Medicine Report, Bates 232-33.

         Lewis told Martell that Boyd had left his house at about 8:00 p.m. but returned at about 4:00 a.m. and knocked on the door. When Lewis opened it, Boyd pushed his way inside and struck Lewis in the face. Lewis described himself as too drunk to fight back. He said, "I killed him." When Martell asked Lewis whether he was defending himself, Lewis paused but did not answer. He said the two of them fought in the living room and into the kitchen. Lewis grabbed a knife and started swinging it and Boyd was not moving. Martell advised Lewis of his tribal rights and handcuffed him. See Martell Report, Bates 240-41.

         Lewis said a friend from Poplar came to his house twice, told him they should hide the body, and tried to cut Boyd's arm off the second time he was there, but Lewis stopped him. Lewis told Martell that the knife was in the second drawer of the white dresser in the first bedroom. Martell asked where Boyd was. Lewis gestured with his head toward the bedroom area of the house. When Lewis's sister Pauline arrived and came into the kitchen with Lewis and Martell, Lewis said to her, "I killed Poohz." See Id. at 241; Bets His Medicine Report, Bates 233.

         Martell asked Officer Bets His Medicine to stay with Lewis and Pauline and went to the first bedroom. He found the knife, but Boyd was not there. Martell asked Lewis again where Boyd was, and Lewis said he was in the last bedroom on the right. Martell looked in the room and saw a body under a blanket, with hands and feet protruding. Martell then called Trottier and told him Lewis had confessed to ...


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