United States District Court, D. Minnesota
AMENDED MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK United States District Judge
Court filed a Memorandum Opinion and Order on February 17,
2017 in which it denied Petitioner-Defendant Geshik-O-Binese
Martin's (“Petitioner-Defendant”) motions
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence. (Doc. No. 497). The Court also
respectfully denied the Petitioner-Defendant's four
pro se motions filed on August 23, 2016 (Doc. Nos.
475, 476, 477 & 478). In addition to those motions, the
Court, with the exception of one issue, denied any further
evidentiary hearings and denied a certificate of
the Court had conducted an evidentiary hearing on August 30,
2016, on the sole issue of whether the
Petitioner-Defendant's trial counsel was ineffective
because he did not communicate a plea offer to him. That
issue was not addressed in the Court's February 17, 2017
Memorandum Opinion and Order.
Court stated in its Memorandum Opinion and Order of February
17, 2017, (Doc. No. 497), this matter is before the Court on
the Petitioner-Defendant's pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. (Doc. No. 420.) The United States of
America (“the Government”) opposes the
Petitioner-Defendant's motions. (Doc. Nos. 447, 486.)
Petitioner-Defendant alleges in his § 2255 motion that:
(1) his trial counsel was ineffective in advising him to sign
a stipulation regarding his Indian status; (2) that
insufficient evidence existed to prove his Indian status
beyond a reasonable doubt; (3) that his trial counsel was
ineffective because he did not communicate a plea offer to
him; (4) that his appellate counsel failed to argue
prosecutorial misconduct by the United States Attorney's
Office; and (5) that his trial counsel failed to raise an
intoxication defense and request proper jury instructions for
an intoxication defense.
August 23, 2016, the Petitioner-Defendant filed the following
pro se motions: (1) motion requesting the Court to
issue a subpoena to compel the Red Lake Tribal Court to
respond to the Petitioner-Defendant's motions to
challenge the trial court's jurisdiction over him for
tribal court convictions as well as to order the Red Lake
Tribal Court to respond to his jurisdictional challenge to
his Tribal Court convictions; (2) motion to amend his §
2255 petition regarding ineffective assistance of his
appellate counsel by alleging that his appellate counsel was
ineffective because counsel cited erroneous law in making
legal arguments and alleging that the Eighth Circuit Court of
Appeals incorrectly applied law that was not applicable to
the situation presented in his case; (3) motion to stay
proceedings related to his § 2255 motion until the
Petitioner-Defendant received documentation from the Red Lake
Band of Chippewa Indians relating to his arguments pertaining
to his Indian status; and (4) motion for issuance of a
subpoena or court order to compel the Red Lake Band of
Chippewa Indians to respond to the Petitioner-Defendant's
various inquiries regarding his nonmember status and lack of
recognition by the Red Lake Band.
August 2012, a federal grand jury returned an Indictment
charging the Petitioner-Defendant, and his codefendants,
Edward McCabe Robinson, David John Martin, George Allen
Martin, Kevin John Needham, and Terin Rene Stately, with
aiding and abetting Murder in the First Degree and aiding and
abetting Murder in the Second Degree, all in violation of
Title 18, United States Code, Sections 2, 1111, 1151, and
1153(a), and aiding and abetting Robbery in violation of
Title 18, United States Code, Sections 2, 1151, 1153(A), and
2111, for their respective roles in the robbery and deaths of
Craig David Roy and Darla Ann Beaulieu. (Doc. No. 1.)
case was tried before a jury for nine days, beginning on
February 25, 2013. Significantly, the Petitioner-Defendant
testified on his own behalf before the jury. (Tr. 1352-1431.)
During the direct examination by his trial counsel, the
Petitioner-Defendant admitted that he was an Indian. (Tr.
1352.) The Petitioner-Defendant testified and claimed that he
and his codefendants went to the Roy residence to retrieve
David Martin's clothes on January 1, 2011. (Tr. 1362-64.)
The Petitioner-Defendant also testified that he alone stabbed
the victims, Roy and Beaulieu, and did so in self-defense
after Roy became violent. (Tr. 1368-74.) The
Petitioner-Defendant was very clear in testifying that his
codefendants were not in the Roy residence at the time of the
jury returned a verdict finding that the Petitioner-Defendant
guilty on all counts. (Doc. No. 274.)
21, 2013, this Court sentenced the Petitioner-Defendant to
consecutive terms of life imprisonment for the first-degree
murder convictions and a concurrent term of 15 years
imprisonment for the robbery conviction. (Doc. No. 319.)
appeal to the Eighth Circuit, the Petitioner-Defendant argued
improper ex parte contact by the undersigned with
the jury during jury selection and alleged that the
Government failed to prove his Indian status under §
1153, even though he had stipulated and admitted to that
fact. United States v. Martin, 777 F.3d 984, 990-94
(8th Cir. 2015). The Eighth Circuit Court of Appeals affirmed
the judgment of the district court on February 4, 2015.
Id. at 998.
8, 2015, the United States Supreme Court denied the
Petitioner-Defendant's petition for writ of certiorari.
Martin v. United States, 135 S.Ct. 2827 (2015).
August 17, 2015, the Petitioner-Defendant filed his pro
se motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. (Doc. No. 420.)
23, 2016, the Court appointed counsel to represent the
Petitioner-Defendant in his § 2255 matter. (Doc. No.
467.) The Petitioner-Defendant filed four pro se
motions on August 23, 2016, which was subsequent to
appointment of counsel. The Petitioner-Defendant's
counsel acknowledged at the evidentiary hearing that she had
reviewed all of his claims and would only be addressing
assisting the Petitioner-Defendant with respect to the issue
before the Court at the evidentiary hearing which was the
issue of whether the Petitioner-Defendant's trial counsel
had provided ineffective assistance of counsel by failing to
communicate a plea offer from the Government. The evidentiary
hearing occurred, as referenced above, on August 30, 2016.
Ineffective Assistance of Counsel
United States Constitution guarantees that the accused
“shall enjoy the right . . . to have the Assistance of
Counsel” in criminal prosecutions. U.S. Const. amend.
VI. To prevail on a claim for ineffective assistance of
counsel under § 2255, however, a defendant must overcome
a “heavy burden.” United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To overcome
that burden, a defendant must first “show that
counsel's performance was deficient.”
Strickland v. Washington, 466 U.S. 668, 687 (1984).
The deficiency must be “so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. Second,
the defendant must establish that the deficient performance
actually prejudiced the defense. Id.
establish that there was a deficient performance, the
defendant must show that the errors were not the result of
“reasonable professional judgment.” Id.
at 690. There is a strong presumption “that counsel . .
. rendered adequate assistance.” Id. A
defendant must prove, then, with “a probability
sufficient to undermine confidence in the outcome, ”
that “but for ...