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Dubray v. Pringle

United States District Court, D. North Dakota

August 30, 2016

Nathan G. DuBray, Petitioner,
v.
Chad Pringle, Warden, Respondent.

          Nathan G. DuBray, Petitioner, Pro Se.

          Chad Pringle, Respondent, represented by Michael T. Mahoney, ND Attorney General's Office.

          REPORT AND RECOMMENDATION

          ALICE R. SENECHAL, Magistrate Judge.

         Nathan G. DuBray (DuBray)[1] petitioned for habeas relief under 28 U.S.C. § 2254. (Doc. #1). After preliminary review, the court ordered service on the respondent. (Doc. #3). The respondent moved to dismiss the habeas petition, (Doc. #7), and DuBray has responded to that motion, (Doc. #14).

         Summary of Report and Recommendation

         DuBray pleaded guilty to two counts of gross sexual imposition, but later stated a desire to withdraw those pleas. DuBray's petition alleges various ways in which his counsel were ineffective. He also alleges that the state district court used the wrong standard in declining to allow him to withdraw his guilty pleas. Finally, in his response to the motion to dismiss, DuBray contends he was constructively denied effective assistance of counsel.

         DuBray's claim that the state district court used the wrong standard in declining to allow him to withdraw his guilty pleas is a matter of state law; it fails to present a federal constitutional claim, and it should be dismissed. DuBray is not entitled to habeas relief on his ineffective assistance of counsel claims or on his claim of constructive denial of effective assistance of counsel, since the state court decisions on those issues were not unreasonable or contrary to federal law. Since he has not demonstrated entitlement to relief on any of his claims, DuBray's federal habeas petition should be dismissed.

         Background

         An Information charged DuBray with two counts of gross sexual imposition. (Resp. Ex. #2; Resp. Ex. #3). The Affidavit of Probable Cause in support of the Information alleged that the eight-year-old victim reported that DuBray had engaged in sexual acts with her twice in January, 2012.[2] (Resp. Ex. #2). The victim was described as considering DuBray to be like an uncle to her. (Resp. Ex. #6, p. 14).

         On July 15, 2013, the day before his jury trial was scheduled to begin, DuBray appeared in state court for a status conference. (Resp. Ex. #4, p. 2). At that time, DuBray's trial counsel-Blake Hankey (Hankey)-informed the court that DuBray would enter guilty pleas to both counts pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).[3] Id. at 3. The state court judge confirmed that DuBray intended to plead guilty, she advised him of the charges, and she advised him of the minimum and maximum penalties for those charges. Id. at 3-6. DuBray pleaded guilty to both charges, and the state court judge determined that DuBray's guilty pleas were freely and voluntarily made and that they were supported by sufficient facts. Id. at 6-14. The court ordered a presentence investigation and scheduled a sentencing hearing. Id. at 14, 17-18.

         On October 4, 2013, DuBray appeared for his sentencing hearing. (Resp. Ex. #6). At the beginning of that hearing, Hankey advised the court that DuBray wanted to withdraw his guilty pleas. Hankey requested that a briefing schedule be set, and he advised the court that DuBray had stated that he "felt pressure" from Hankey and his co-counsel-Adam Fleishman (Fleishman)-to plead guilty. Id. at 3-5. In response to questions from the court, DuBray stated that nobody had made any threats or promises to him, but that he felt he "owe[d] an explanation to [his] children; so [he] want[ed] to take it to trial to prove to them that [he] didn't do this." Id. at 5-6. The court advised DuBray that he could file a motion to withdraw his pleas, but the court proceeded with sentencing.[4] Id. at 4-5. The court sentenced DuBray to thirty years of imprisonment with fifteen years suspended and ten years of probation on each count, to be served concurrently. (Resp. Ex. #5). DuBray did not file a direct appeal.

         On July 14, 2014, DuBray filed a state application for post-conviction relief. (Resp. Ex. #8; Resp. Ex. #9). In that application, DuBray generally alleged that counsel did not represent him as is required by "prevailing professional norms." (Resp. Ex. #9, p. 13). Specifically, he alleged that counsel were ineffective by (1) failing to "conduct a full and complete investigation" or hire an investigator, (2) failing to hire an expert to address issues regarding the victim's forensic interview; (3) failing to determine whether the state subjected him to an impermissible multiplicity of charges "based on fabricated or tainted evidence"; (4) failing to provide him with "sufficient information" which would have enabled him "to make an intelligent decision"; and (5) failing to interview and/or depose witnesses. Id. at 7-14. DuBray also alleged that he did not knowingly or intelligently plead guilty to the charges, id. at 20, that he was constructively denied effective assistance of counsel, id., and that the prosecutor erred in charging him, (Resp. Ex. #8, p. 4).

         On October 20, 2014, the state court held an evidentiary hearing on DuBray's post-conviction relief application. (Resp. Ex. #11). DuBray and Hankey both testified. Id . DuBray testified that Hankey failed to hire a private investigator or expert, failed to depose or interview the state's trial witnesses, and failed to secure defense witnesses. Id. at 4-5, 13-14. He testified that Hankey met with him in person approximately three times, reviewed all of the discovery with him, prepared him to testify, and reviewed plea offers with him. Id. at 5-8. When asked whether he felt forced or coerced into pleading guilty, DuBray responded, "I felt like there wasn't any other choice but to take the agreement, " and " I felt like I was led to believe that I was going to be [found] guilty no matter what." Id. at 12-13. But, DuBray acknowledged that it had been his decision to plead guilty, and he stated that he was upset with the length of his sentence. Id. at 15-16.

         DuBray requested that he be allowed to proceed to trial, and he testified that he could show, through cross-examination, that three witnesses lied. Id. at 14-15. But, DuBray acknowledged that none of those witnesses observed the events that gave rise to the charges. Id. at 18-20. He also acknowledged that another individual, whom he contended Hankey should have interviewed, could provide no information related to the allegations. Id. at 21-22.

         Hankey testified that he reviewed the discovery with DuBray, that they discussed the weaknesses of the case, that they discussed the trial judge's sentences in similar cases in which a jury had found a defendant guilty, and that they met with the prosecutor who outlined the state's case. Id. at 34-35. Hankey testified that he and Fleischman reviewed the video of the forensic interview of the victim, that he had previously handled numerous cases involving interviews of child victims, that the forensic interviewer "handled everything appropriately, " that the forensic interviewer did not use leading questions, that no evidence indicated that the forensic interview was tainted, and that he saw no reason to hire an expert to review the video. Id. at 29-30, 37. Hankey further testified that he did not hire an investigator because he did not "believe one was necessary, " that only the victim and DuBray were present during the "incident, " and that nothing "could be gleaned by having a private investigator." Id. at 42.

         Hankey testified that he was prepared for trial. Id. at 32-33. He testified that he had prepared DuBray to testify, including advising him that, to keep his prior bad acts from being used against him, he "had to be very selective in how he answered questions so that evidence [of those prior bad acts] couldn't be brought in." Id. at 33. Hankey acknowledged that he did not file a motion in limine to keep DuBray's prior bad acts out of evidence, and he stated that he did not file that motion because there was "no indication that [DuBray's prior bad acts] were ever going to be used unless [the defense] opened the door." Id. at 39. Hankey testified that no pretrial hearing regarding hearsay evidence was held, but that he "was of the opinion [that he] could [also] keep hearsay out." Id. at 40-41.

         Hankey testified that he "viewed it as a he said, she said' type of case." Id. at 43. He testified that he would have attacked witnesses' credibility, and would have tried to show "that for some reason the family was mad, making this up, and [DuBray] had to be... rock solid on the stand." Id. at 43-44. Hankey testified that he did not depose the victim's mother because "in these cases [he] like[s] to keep things close to the vest." Id. at 45. Hankey explained that he did not want any witness-or the state-to have time to prepare for his cross-examination. Id.

         Hankey testified that DuBray was "difficult to get a hold of." Id. at 34. But, the state's exhibit-counsels' billing record-received in evidence at the evidentiary hearing, shows that either Hankey or Fleischman met with DuBray approximately ten times before his change of plea. (Resp. Ex. #12).

         Hankey testified that the prosecutor had asked to meet with defense counsel and DuBray to outline the state's case in the hope of avoiding trial. (Resp. Ex. #11, p. 35). Hankey stated when prosecutors decide to do that, "it gives [him] a nice snapshot into what the State is trying to prove or what they think their case is, and it helps [him] attack it." Id. at 35-36.

         Hankey further testified that he did not force DuBray to plead guilty. Id. at 36. He said that he could not specifically recall what he had said to DuBray in that regard, but that he tells all of his clients:

It's your decision. Here's the negatives. Here's the positives. And, you know, ultimately it's up to you.
And, you know, I'll go to trial, but if we go to trial and lose, there are the negatives. If we go to trial and win, you walk out of here with nothing.

         Id.

         The state district court, in its order denying DuBray's post-conviction relief application, described DuBray's claims as alleging that "trial counsel should have hired a private investigator, deposed the State's witnesses, and filed a motion to exclude evidence of prior bad acts." (Resp. Ex. #13, p. 1). The state district court concluded that "Hankey satisfactorily explained his rationale for preparing the defense in the manner he chose." Id. at 5. The state district court noted that "over 60 hours of work went into the case and numerous items of written correspondence were exchanged." Id . The state district court found that "Hankey's legal representation did not fall below an objective standard of reasonableness" and no evidence established "a reasonable probability that the outcome of this case would have been different had the case been tried to a jury." Id. at 6.

         DuBray appealed the state district court's order denying him post-conviction relief. (Resp. Ex. #14). In his appellant brief, submitted by his court-appointed counsel, DuBray claimed that his pleas were not voluntary because he received ineffective assistance of counsel, [5] and that the state district court did not apply the proper standard for the second prong of DuBray's ineffective assistance of counsel claims.[6] (Resp. Ex. #16). DuBray also submitted a pro se supplemental appellant brief, in which he raised the same claims as in his post-conviction relief application. (See Resp. Ex. #17).

         The North Dakota Supreme Court, in summarily affirming the district court's order, described DuBray's ineffective assistance of counsel claims as alleging that trial counsel failed to "(1) hire a private investigator; (2) depose witnesses; (3) move to exclude evidence; and (4) communicate all known facts to Dubray." DuBray v. State, 2015 ND 244, 872 N.W.2d 633 (unpublished table decision). The supreme court also noted that DuBray argued that the district court applied the wrong standard to the second prong of its ineffective assistance of counsel analysis, but it concluded that argument was irrelevant since courts need not address the second prong if the first prong is not established. Id . The supreme court found that "the district court's finding that Dubray's trial counsel's representation did not fall below an objective standard of reasonableness [was] not clearly erroneous." Id.

         Allegations of the Federal Habeas Petition

         In his habeas petition, DuBray raises two grounds for relief. First, he raises ineffective assistance of counsel claims. He generally alleges that counsel failed to represent him with "skill, knowledge of the law, diligence, and preparation." (Doc. #1, p. 13). He specifically alleges that his trial counsel were ineffective by (1) failing to interview or depose witnesses, including the victim and her mother; (2) failing to file a motion in limine to exclude prior bad acts; (3) failing to conduct an investigation or hire an investigator; (4) failing to develop a defense strategy; (5) failing to hire an expert; (6) failing to communicate and provide him "with all information"; (7) failing to determine whether the state subjected him to an impermissible multiplicity of charges; (8) failing to file a timely motion to withdraw his guilty pleas; and (9) allowing the prosecutor, in DuBray's presence, to "outline his case against [him]." Id. at 12-13. In addition to the claims of ineffective assistance of counsel, DuBray alleges that the state court used the wrong standard in declining to allow him to withdraw his guilty pleas. Id. at 14.

         In his response to the motion to dismiss, DuBray also alleges that he was constructively denied effective assistance of counsel under United States v. Cronic, 466 U.S. 648 (1984). (Doc. #14, p. 21).

         Law and Discussion

         The court first considers respondent's claims of procedural defects in DuBray's petition.

         1. State Law Claims

         Respondent contends that DuBray's claim concerning withdrawal of his guilty pleas-that the state court used the wrong standard-fails to present a federal constitutional claim. (Doc. #8, p. 17). DuBray counters that his claim arises under Kercheval v. United States, 274 U.S. 220 (1927), (Doc. #14, pp. 24-25), which addressed questions under federal criminal law.

         DuBray contends that his "attempt to withdraw his guilty plea through post-conviction proceeding[s] should have been reviewed under the fair and just' standard" of North Dakota Rule of Criminal Procedure 11(d)(1)(B). (Doc. #1, p. 14). That rule provides that a defendant may withdraw a guilty plea "after the court accepts the plea, but before it imposes sentence if:... the defendant can show a fair and just reason for the withdrawal." (Emphasis added). DuBray argues that the state district court should have applied Rule ...


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