United States District Court, D. Minnesota
Clifford B. Wardlaw, Assistant United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, for plaintiff.
Valerian Parshall, No. 15987-041, Federal Correctional
Institution, pro se defendant.
R. Tunheim Chief Judge
matter is before the court on Joseph Valerian Parshall's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255, accompanied by a Motion for Appointment
of Counsel, a Motion for an Evidentiary Hearing, and a Motion
for Discovery and Production of Documents.
March to July 2011, Parshall lived with his grandmother,
D.B., in her house on the Red Lake Indian Reservation. (Tr.
of Trial Vol. II (“Tr.”) at 336-37, Nov. 22,
2013, Docket No. 75.) While living there, Parshall spent time
with A.B., the six- year-old child of Parshall's cousin.
(Id. at 200-201, 204, 221-22.) Late in July of that
year, A.B. told her mother that Parshall had sexually abused
her. (Id. at 208.)
was charged with two counts of aggravated sexual abuse of a
child under the age of twelve years old under 18 U.S.C.
§§ 1151, 1153(a), 2241(c), and 2246(2)(B) and (C).
(Indictment, Sept. 21, 2011, Docket No. 7.) Parshall pled not
guilty and the case went to trial in February of 2012. A.B.
gave live testimony at trial. (Tr. at 240-55.) The jury
returned a guilty verdict, and on August 12, 2013, the Court
imposed a thirty-year sentence - the mandatory minimum under
18 U.S.C. § 2241(c). (Sentencing J., Sept. 4, 2013,
Docket No. 66.) The Eighth Circuit affirmed the conviction
and sentence in 2015. United States v. Parshall, 600
F. App'x. 485 (8th Cir. 2015).
who maintains his innocence, now moves to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255,
primarily on the basis that his trial counsel was
constitutionally ineffective. Parshall contends that his
counsel failed to discover and/or introduce important
evidence, call certain favorable witnesses at trial,
effectively cross-examine government witnesses at trial, and
consult him about the consequences of his not-guilty plea.
Having reviewed the motions and the government's
response, the Court finds that appointment of counsel,
discovery, and an evidentiary hearing on Parshall's
§ 2255 motion are warranted.
2255 permits a prisoner to move a sentencing court to
“vacate, set aside or correct” a sentence on the
grounds 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 attack.” 28
U.S.C. § 2255(a). “Relief under 28 U.S.C. §
2255 is reserved for transgressions of constitutional rights
and for a narrow range of injuries that could not have been
raised on direct appeal and, if uncorrected, would result in
a complete miscarriage of justice.” Walking Eagle
v. United States, 742 F.3d 1079, 1081-82 (8th
Cir. 2014) (quoting United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996)).
petitioner “is entitled to an evidentiary hearing on a
section 2255 motion unless the motion, files and records of
the case conclusively show that the prisoner is not entitled
to relief.” Engelen v. United States, 68 F.3d
238, 240 (8th Cir. 1995). “An evidentiary
hearing on a section 2255 motion must be granted when the
facts alleged would justify relief if true, or when a factual
dispute arises as to whether or not a constitutional right is
being denied.” Smith v. United States, 618
F.2d 507, 510 (8th Cir. 1980). On the other hand,
a court need not grant an evidentiary hearing if “the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.”
Engelen, 68 F.3d at 240.
Ground 1 of his petition, Parshall asserts that his counsel
was constitutionally ineffective for not bringing forward at
trial certain evidence that would have impeached the
testimony of one or more key witnesses. Parshall's
filings mention the following pieces of evidence potentially
useful to this end: a police report from the Red Lake Indian
Reservation; paperwork from a hospital visit; testimony from
Parshall's cousin showing A.B. had a history of falsely
accusing numerous adults of abusing her; and video footage
showing the prosecution heavily coached a witness.
petitioner's allegations must be accepted as true and a
hearing should be held unless they are contradicted by the
record, inherently incredible, merely conclusions, or would
not entitle the petitioner to relief.” Garcia v.
United States, 679 F.3d 1013, 1014 (8th Cir.
2012). It is not “inherently incredible” that one
or more of the pieces of evidence Parshall mentions would
entitle him to relief. See Id. Because the evidence
that is the subject of Parshall's motion is not in the
record, the Court finds that an evidentiary hearing is
warranted to determine whether it entitles Parshall to