United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
L. Christensen, Chief Judge
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.
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).
Court has reviewed all the materials in the file as well as
the discoveryand is prepared to rule on the remaining
claims as well as the motion for counsel.
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).
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.
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.
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.
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).
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; 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.
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.
Investigation of Missing Person Report
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
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.
talking to Black Dog, Lingle went to see Lewis at his
residence on First Street. 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
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.
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).
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.
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.
Lewis's Statement to Martell
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.
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.
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.
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 ...