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United States v. Tarnow

United States District Court, D. Minnesota

December 29, 2014

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DOUGLAS WAYNE TARNOW, Defendant/Petitioner.

Clifford B. Wardlaw, Assistant United States Attorney, Counsel for Plaintiff.

Douglas Wayne Tarnow, pro se.

MEMORANDUM OF LAW & ORDER

MICHAEL J. DAVIS, Chief District Judge.

I. INTRODUCTION

This matter is before the Court on Petitioner Douglas Wayne Tarnow's pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [Docket No. 102]

II. BACKGROUND

On March 8, 2011, Douglas Wayne Tarnow ("Petitioner") was indicted for Aggravated Sexual Abuse, pursuant to 18 U.S.C. §§ 1151, 1153(a), 2241(a)(1) and 2246(2). [Docket No. 10] Petitioner entered a plea of not guilty and trial was set for May 9, 2011. [Docket No. 13] On May 19, 2011, a jury found Petitioner guilty of Aggravated Sexual Abuse. [Doc. No. 58] On March 22, 2012, this Court sentenced Petitioner to 480 months in prison and to a lifetime of supervised release. [Docket No. 75]

Petitioner appealed his conviction and sentence, asserting that the evidence was insufficient to sustain his conviction and that the Court abused its discretion: (1) in allowing in testimony relating to Petitioner's prior bad acts and (2) in declining to instruct the jury on a lesser offense. United States v. Tarnow, 705 F.3d 809 (8th Cir. 2013). The Eighth Circuit rejected Petitioner's arguments and affirmed the judgment of this Court. Id.

On May 12, 2014, Petitioner timely filed the instant pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody under 28 U.S.C. § 2255. [Docket No. 102]

In his § 2255 Petition, Petitioner sets forth three grounds for relief. First, he argues that his trial counsel was ineffective in that he "fail[ed] to learn the facts and familiarize himself with the law; fail[ed] to properly object to testamony [sic] by [the] government to material misrepresentation...; [f]ail[ed] to properly prepare adequate defense; [and] fail[ed] to gather pertinent evidence to allow defendant to testify." Id . Petitioner specifically asserts that his attorney failed to familiarize himself with Petitioner's tribal laws and treaties during the course of his representation of Petitioner. [Docket No. 109]

Second, Petitioner asserts it was an abuse of judicial discretion for the Court to deny "several motions causing conflict of interest for counsel; allow[] government material evidence to be misrepresented... (Treaty rights and jurisdiction); [and] allow[] [the] government to use unfair tactics to obtain conviction." [Docket No. 102]

Finally, Petitioner claims that the Court lacked jurisdiction due to Petitioner's status as a member of the Red Lake Band of Chippewa Indians. Id.

III. DISCUSSION

A. Standard for Relief under 28 U.S.C. § 2255

28 U.S.C. § 2255 (a) provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...

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