United States District Court, D. North Dakota
Nathan G. DuBray, Petitioner,
Chad Pringle, Warden, Respondent.
G. DuBray, Petitioner, Pro Se.
Pringle, Respondent, represented by Michael T. Mahoney, ND
Attorney General's Office.
REPORT AND RECOMMENDATION
R. SENECHAL, Magistrate Judge.
G. DuBray (DuBray) petitioned for habeas relief under 28
U.S.C. Â§ 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).
of Report and Recommendation
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.
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.
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. (Resp. Ex.
#2). The victim was described as considering DuBray to be
like an uncle to her. (Resp. Ex. #6, p. 14).
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). 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.
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. 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.
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).
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.
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.
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.
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.
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.
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).
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.
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.
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.
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,  and that the state
district court did not apply the proper standard for the
second prong of DuBray's ineffective assistance of
counsel claims. (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).
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."
of the Federal Habeas Petition
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.
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).
court first considers respondent's claims of procedural
defects in DuBray's petition.
State Law Claims
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.
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 ...