United States District Court, D. North Dakota
ORDER RE PENDING MOTIONS
Charles S. Miller, Jr., Magistrate Judge United States
the court is a petition under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus by a Person in State Custody filed by
petitioner, Damon John White Bird Solgado (“White
Bird”). (Doc. No. 2). Also before the court is a Motion
to Dismiss by respondent, Colby Braun (“the
State”). (Doc. No. 12). For the reasons set forth
below, the petitioner's writ of habeas corpus is
dismissed and the respondent's motion is granted.
April 2, 2013, White Bird was charged with attempted murder,
a class A felony, two counts of felonious restraint, class C
felonies, aggravated assault, a class C felony, and tampering
with physical evidence, a class A misdemeanor. (Doc. No.
11-1). On August 5, 2013, a jury found White Bird guilty of
all charges. (Doc. No. 11-1). White Bird was sentenced to ten
years in prison, with two five year terms to run
Bird appealed to the North Dakota Supreme Court on December
20, 2013. (Doc. No. 11-1). In that appeal, White Bird argued:
(1) he was not competent to waive his right to counsel; (2)
he did not receive a fair trial because the state district
court did not limit the evidence he introduced at trial; and
(3) there was insufficient evidence to sustain his
convictions. State v. White Bird, 2015 ND 41, 858
N.W.2d 642 (“White Bird I”) (Doc. No.
8). The North Dakota Supreme Court affirmed White Bird's
conviction, concluding: (1) the state district court did not
err in concluding White Bird was competent to waive his right
to counsel; (2) the state district court did not err in not
limiting evidence White Bird presented; and (3) sufficient
evidence supported his convictions.
State Postconviction Proceedings
Bird next filed an application for postconviction relief on
December 6, 2015. (Doc. No. 11-9). In his forty-eight page
application, White Bird set forth seven grounds for relief.
(Doc. No. 11-10). Although not necessarily styled in this
fashion, White Bird essentially alleged: (1) an
unconstitutional search and seizure occurred at his
apartment; (2) White Bird was convicted with evidence
obtained pursuant to an unlawful arrest; (3) White Bird was
convicted in violation of his right to avoid
self-incrimination; (4) the prosecution committed a
Brady violation; (5) White Bird was denied effective
assistance of counsel during trial and appeal; (6) White Bird
was denied the right to appeal his conviction; and (7) White
Bird was convicted through use of a coerced confession.
state district court denied the application. (Doc. No.
11-10). After the State moved for reconsideration, the court
vacated its order as to the issue of whether White Bird
received ineffective assistance of appellate counsel. (Doc.
No. 11-10). After an evidentiary hearing limited to that
issue, (Doc No. 11-11), the court again denied White
Bird's petition. (Doc. No. 11-12).
Bird appealed that order on January 21, 2016. (Doc No. 11-9).
Of the fifteen issues raised by White Bird on appeal, the
majority focused on the conduct of his appellate counsel,
particularly with counsel not raising all the issues White
Bird wanted. (Doc. No. 11-13). On August 26, 2016, the North
Dakota Supreme Court affirmed the state district court's
order denying White Bird's application. White Bird v.
State, 2016 ND 47, 882 N.W.2d 727 (“White Bird
II”) (Doc. No. 15). The court concluded White
Bird's appellate counsel's performance fell within
prevailing professional norms and White Bird did not suffer
any prejudice. The court also concluded the state district
court did not err in limiting White Bird's claim to the
effectiveness of his appellate counsel.
Federal Habeas Petition
Bird next filed his § 2254 petition with this court on
March 30, 2017. (Doc. No. 2). White Bird's forty-two page
petition contains six grounds for relief. In ground one,
White Bird alleges he was denied his right to effective
assistance of trial counsel when the state district court
refused to appoint him a new court-appointed attorney. In
ground two, White Bird alleges he was the victim of an
unconstitutional search and seizure that occurred when
authorities acted outside the scope of a search warrant. In
ground three, White Bird alleges the state district court
violated his right to compulsory process when the court
excused a witness subpoenaed by White Bird. In ground four,
White Bird alleges he did not receive a fair trial when the
alleged victims displayed scars to the jury and White
Bird's standby counsel did not object. In ground five,
White Bird alleges the state district court violated his
equal protection rights when it limited the postconviction
proceeding to the issue of whether White Bird received
ineffective assistance of appellate counsel. In ground six,
White Bird essentially alleges there was insufficient
evidence to support his convictions.
Evidence Supporting White Bird's Conviction
following factual summary, taken verbatim from the North
Dakota Supreme Court's decision on direct appeal in
White Bird I, at ¶¶ 2-6, provides context
in evaluating this petition:
[¶2] In April 2013, Fargo Police officers investigated
two separate violent assaults on two victims, which occurred
between twelve to eighteen hours apart at the same location,
White Bird's apartment. On the basis of the
investigation, White Bird was subsequently charged with
attempted murder, a class A felony; two counts of felonious
restraint, class C felonies; tampering with physical
evidence, a class A misdemeanor; and aggravated assault, a
class C felony. White Bird made his first appearance in the
district court on April 5, 2013, and he applied for and was
appointed a public defender.
[¶3] On April 30, 2013, on the basis of a defense
motion, the district court ordered White Bird committed to
the North Dakota State Hospital to evaluate his fitness to
proceed and criminal responsibility. A psychologist at the
State Hospital evaluated White Bird and prepared two reports,
which were both filed with the court on June 10, 2013. White
Bird was found both fit to proceed and criminally
responsible. In June 2013, White Bird and his attorney
appeared at the preliminary hearing. White Bird waived his
preliminary hearing and pled not guilty to all of the
[¶4] In July 2013, White Bird filed a document in which
he fired his attorney and moved to dismiss the case. On July
24, 2013, the district court held a hearing at which White
Bird's attorney said White Bird had fired him and wanted
to represent himself. His attorney raised the issue of White
Bird's ability to represent himself. The court then
discussed with White Bird his decision to represent himself.
White Bird said he did not believe his appointed counsel was
giving him an "adequate defense." The court
continued discussing the issue with White Bird, but White
Bird did not change his mind, insisting on representing
himself. The court informed him that trial was only six days
away, and he would have to subpoena his witnesses and be
ready to try his case.
[¶5] At another pretrial hearing on July 26, 2013, the
district court again addressed White Bird's desire to
represent himself. The hearing ended with White Bird's
consenting to permit his appointed counsel to represent him.
However, on July 29, 2013, the day before trial, at the final
pretrial hearing, White Bird again insisted that he wanted to
represent himself. The court again discussed with White Bird
the dangers of self-representation and his decision to fire
his appointed counsel. The court allowed White Bird to
represent himself and appointed his former attorney as
standby counsel. The court also denied White Bird's
motion to dismiss.
[¶6] At the five-day jury trial in late July and August
2013, White Bird represented himself with limited assistance
of standby counsel. The jury found White Bird guilty on all
five counts. In October 2013, White Bird moved for an
evidentiary hearing, alleging he was not competent to waive
his right to counsel. At a November 2013 hearing, the court
denied White Bird's motion and sentenced him.
Scope of Review
28 U.S.C. § 2254, a federal court may review state-court
criminal proceedings to determine whether a person is being
held in custody in violation of the United States
Constitution or other federal law. However, where the state
court has adjudicated the federal claim on the merits, this
court's review is limited by 28 U.S.C. § 2254(d) to
a determination of whether the state court's decision is
(1) directly contrary to, or an unreasonable application of,
clearly established federal law as determined by the United
States Supreme Court or (2) based on an unreasonable
determination of the facts based on the evidence presented in
the state-court proceeding. See 28 U.S.C. §
2254(d); see generally Harrington v. Richter, 562
U.S. 86, 97-100 (2011) (“Richter”);
Williams v. Taylor, 529 U.S. 362, 399-413 (2000).
This highly deferential standard of review is often referred
to as “AEDPA deference” because it was enacted by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). E.g., Pederson v. Fabian, 491 F.3d
816, 824-25 (8th Cir. 2007); see generally Renico v.
Lett, 559 U.S. 766, 773 n.1 (2010). The reasons for the
limited review are ones of federalism and comity that arise
as a consequence of the state courts having primary
responsibility for ensuring compliance with federal law in
state criminal proceedings. See, e.g.,
Richter, 562 U.S. at 103.