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Solgado v. Braun

United States District Court, D. North Dakota

November 7, 2017

Damon John White Bird Solgado, Petitioner,
v.
Colby Braun, Warden, NDSP, Respondent.

          ORDER RE PENDING MOTIONS

          Charles S. Miller, Jr., Magistrate Judge United States District Court.

         Before 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.

         I. BACKGROUND

         A. Trial

         On 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 consecutively.[1]

         B. Direct Appeal

         White 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.

         C. State Postconviction Proceedings

         White 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.

         The 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).

         White 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.

         D. Federal Habeas Petition

         White 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.

         E. Evidence Supporting White Bird's Conviction

         The 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 charges.
[¶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.

         II. GOVERNING LAW

         A. Scope of Review

         Under 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.

         B.Exhaustion ...


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