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United States District Court, D. North Dakota, Northwestern Division.

UNITED STATES of America, Plaintiff,

v.

Monty M. MARINER, Defendant.

Monty M. Mariner, Petitioner,

v.

United States of America, Respondent.

No. 4:09–cr–101.

No. 4:12–cv–072.

Dec. 4, 2012.

Rick L. Volk, U.S. Attorney's Office, Bismarck, ND, for Plaintiff.

Orell D. Schmitz, Federal Public Defender Office, Bismarck, ND, for Defendant.

ORDER DENYING PETITIONER'S 28 U.S.C. § 2255 MOTION

DANIEL L. HOVLAND, District Judge.

I. FACTS

*1 Monty M. Mariner (“Mariner”) was charged in a three-count indictment in North Dakota with assault resulting in serious bodily injury, assault with a dangerous weapon, and sexual abuse of a person who was physically incapable of declining participation in, or communicating an unwillingness to engage in, a sexual act. The charges arose from the physical and sexual assault of Mariner's live-in girlfriend on the night of her birthday.

On or about November 18, 2009, and on the evening of her birthday, the victim went to the Four Bears Casino in New Town, North Dakota, where she began drinking alcohol. (Tr. 94–96, 98). There, she met her friend Brandy Canyon. (Tr. 96, 201). Later, the two were joined by Mariner. (Tr. 97, 202–03). The three drank at the casino but eventually left and went to a number of bars in New Town, where the victim continued to drink. (Tr. 98–99, 203–04). After the bars closed at 2:00 a.m., the three went to a party at the home of Deigh Lincoln in New Town. (Tr. 100–02, 205). The victim was intoxicated by the time they arrived at the party, but she continued to drink more alcohol. (Tr. 100–02, 206).

Others at the party noticed Mariner appeared to be upset with the victim and was pulling her around by the arm. (Tr. 209, 224, 238, 244, 271–72). At one point, a witness observed Mariner push the victim against a wall of the home after seeing the victim talking to another male in the house. (Tr. 272–73). After hearing a commotion going on during the party, Brandy Canyon went outside and observed Mariner holding the victim by the arm and taking her to the couple's van. (Tr. 209–10). As the victim had earlier told Canyon not to leave her, Canyon caught up to them and got in the couple's van. (Tr. 207, 209–10). Mariner, Canyon, and the victim then left the party in the van. (Tr. 210, 225). The victim could not remember leaving the party. (Tr. 102). The record clearly reveals that at the time she left the party, she was not injured. (Tr. 213–14, 226). Mariner drove the van and stopped at a residence in New Town to drop off Canyon. However, Mariner and Canyon argued because Canyon wanted to stay with the victim as she had requested. (Tr. 211–12). Canyon eventually relented and exited the vehicle, leaving only Mariner and the victim, who had passed out in the van. (Tr. 212–13). The record reveals that at that time, the victim was not injured or bleeding. (Tr. 213–14).

Upon arriving at the couple's home outside of New Town, Mariner went into the house by himself. (Tr. 193). Mary Duchaine was babysitting the couple's children. She observed Mariner was acting “panicky” and had blood on himself and his shirt when he came inside. (Tr. 193). Mariner initially told Duchaine that the victim, who was still passed out in the van, was “hurt really bad.” (Tr. 193). Mariner indicated the victim had blood all over her from her menstrual period. (Tr. 193). Mariner told Duchaine he first noticed the victim was full of blood when he found her naked in the van at Deigh Lincoln's. (Tr. 194–95). Mariner indicated he had walked the victim out to the van because she was too drunk, and he returned to the party because he wanted to stay. (Tr. 194–95). Mariner then told Duchaine, after returning from taking the victim to the van, he saw an individual named J.D. leave the party and return. (Tr. 195). Mariner said he “had a feeling” so he checked on the victim and found her in the back of the van naked and full of blood. (Tr. 194–95). Mariner told Duchaine he was going to wake the victim up and bring her into the house. (Tr. 196–97). As Duchaine was leaving, she saw Mariner go to the van, open the hatch or back door of the van, and reach in to grab the victim. (Tr. 196–97).

*2 The victim awoke the next morning in her bed inside the couple's home with Mariner sleeping next to her. (Tr. 103). She discovered she was bleeding badly from her vaginal area and went to the bathroom. (Tr. 103). She contacted her sister who arrived at the house, as did the victim's sister-in-law. (Tr. 104, 178–79, 181). An ambulance was summoned and arrived on scene. (Tr. 25). Law enforcement officers also arrived at the home. (Tr. 27, 31, 104).

Officer Nate Sanchez was the first law enforcement officer to arrive at the house. (Tr. 31). The victim had at that time already been placed in the ambulance. (Tr. 32). Officer Sanchez entered the home and observed Mariner sleeping on the bed. (Tr. 33). He also saw what appeared to be blood on the bed. (Tr. 33). He observed a trail of blood going to the bathroom and a large amount of blood on the toilet seat. (Tr. 33). An emergency medical technician observed what he estimated to be approximately 500 cc's of blood in the bathroom. (Tr. 26–27). Officer Sanchez advised Mariner he was being detained, and Sanchez brought Mariner out to his patrol car and shortly thereafter transported him to the police station. (Tr. 34–35).

The victim was taken to Trinity Hospital in Minot, North Dakota, where she was examined by physicians. (Tr. 28). Doctors observed severe injuries to the victim's genitalia. There was a laceration at the top of the vaginal cavity that had perforated the abdominal cavity and bowel. (Tr. 43, 47). The laceration also severed blood vessels that feed the uterus. (Tr. 43) There was another severe laceration down to the right of the buttocks that the physician originally believed may have gone into the rectum. (Tr. 42, 46). The lacerations were so severe the physician was able to place her entire hand into the vagina and up into the abdominal cavity. (Tr. 43). The physician also noted the victim had bruising on her chest and an abrasion above her right eye. (Tr. 40).

A search of the house and surrounding area was conducted by law enforcement officials. In a garbage can outside the house, officers found two pieces of a carpenter's level and a bra the victim had worn the night before. (Tr. 58, 63, 80–81, Ex. 1). The pieces of level contained a reddish substance and other material the officer thought appeared to be human feces. (Id.) A broken piece of the bright green plastic carpenter's level was also found in the van. (Tr. 61–62).

The reddish substance on the pieces of level found in the garbage tested presumptively positive for human blood. (Tr. 134–37). DNA testing revealed DNA from both the victim and Mariner were on one of the pieces of the level found in the garbage can. (Tr. 157–59). On the second piece of level found in the garbage can, two sets of DNA were found, with one set of DNA matching the profile of the victim. (Tr. 153–154). Testing on the second set of DNA was inconclusive, although the analyst testified it did match Mariner's profile at one location. (Tr. 154–56).

*3 Mariner was later interviewed by law enforcement. He informed the interviewing officer that he left the house party at Deigh Lincoln's with the victim and Brandy Canyon, dropped Canyon off at her house, and he and the victim then went home. (Tr. 290). Mariner made no mention of stopping anywhere else between Lincoln's and his home. (Tr. 290).

At trial, Mariner testified he had stopped at other locations after leaving the house party. Mariner said after dropping Canyon off, he drove to the rodeo grounds where he and the victim intended to have sex. However, they did not have sex because the victim had passed out. (Tr. 312–13). Mariner testified that because of his desire to have sex, he then drove to the apartment building of Juna Smith with the intent of having sex with Smith. (Tr. 313). According to Mariner, he pounded on Smith's door for about 20 minutes but, when no one answered, he left and returned to the van where the victim was still passed out. (Tr. 313–14). Mariner then testified that a few minutes later, he stopped the van at another location intending to wake the victim up. (Tr. 314–15). Mariner said he went into the back of the van and, as the dome light came on, he noticed the victim was bleeding, which he believed was from her period, so he closed the door and drove home. (Tr. 314–15). Mariner claimed he never observed the bright green carpenter's level at any time that night, even when he attempted to retrieve the victim from the back of the van after arriving home.FN1 (Tr. 324–25).

FN1. Mariner testified he could not see into the back of the van when they arrived home because the dome light did not come on as they “just kind of turned it down all the time.” (Tr. 327). This was in direct conflict with Mariner's earlier testimony that the dome light came on when he went into the back of the van to have sex with the victim after leaving Juna Smith's apartment. (Tr. 315).

A jury found Mariner guilty on all counts. He was sentenced to a 30–year term of imprisonment. A notice of appeal was filed. However, Mariner's attorney filed a brief under Anders v. California and a motion seeking to withdraw claiming he could find no non-frivolous issues to raise on appeal. United States v. Mariner, 411 F.App'x. 930 (8th Cir.2011). Mariner was allowed to file a pro se supplemental brief in which he argued, among other things, there was insufficient evidence to convict him. The Eighth Circuit found the issues raised in the Anders brief and Mariner's pro-se supplemental brief were meritless. It also conducted a full review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), and found no non-frivolous issues. The Eighth Circuit did find the judgment incorrectly referred to 360–month terms of supervised release on Counts One and Two rather than 36–month terms of supervised release, and remanded the case back to the district court to correct this error.

Mariner has now filed this motion to vacate under 28 U.S.C. § 2255. In the motion he raises several challenges to his convictions.

II. LEGAL ARGUMENT

Collateral relief pursuant to 28 U.S.C. § 2255 is not an appropriate remedy for every alleged error in conviction and sentencing. Meirovitz v. United States, 688 F.3d 369, 270 (8th Cir.2012). Rather, Section 2255 relief is available where the court lacked jurisdiction to impose a sentence, the sentence was imposed in violation of the Constitution or laws of the United States, or the sentence exceeded the maximum sentence authorized by law. Id. Thus, Section 2255 provides a remedy for jurisdictional and constitutional errors; “[b]eyond that, the permissible scope of a [Section] 2255 collateral attack on a final conviction or sentence is severely limited.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir.2011). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constitute[s] a fundamental defect which inherently results in a complete miscarriage of justice.' “ Id.; United States v. Wallace, 585 F.Supp.2d 1101, 1103 (D.N.D.2008) (internal citations omitted).

A. LACK OF FEDERAL JURISDICTION

*4 Mariner first argues the district court lacked jurisdiction over him because the United States no longer has jurisdiction over crimes committed by Indians on the Fort Berthold Reservation. Mariner contends that only the State of North Dakota has jurisdiction over such offenses. Mariner contends the factual stipulation entered into by the parties for trial (that the alleged offenses occurred in Indian country) was insufficient to confer jurisdiction on the federal court. Mariner failed to raise this issue at trial or on direct appeal. Therefore, he must demonstrate cause and prejudice before the Court may consider this claim in a habeas petition. While ineffective assistance of counsel can constitute “cause” for failing to raise a claim, see United States v. Frady, 456 U.S. 152, 167–68 (1982), there is no cause in this instance as Mariner's allegation of a lack of federal jurisdiction is meritless, and defense counsel was not ineffective for failing to pursue the matter at trial or on direct appeal. See Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir.1994). The United States, not the State of North Dakota, has jurisdiction over the major crimes committed by Indian persons on the Fort Berthold Reservation.

1) DAWES ACT

Mariner cites the Dawes Act as authority for his assertion the United States no longer has jurisdiction over crimes occurring on the Fort Berthold Reservation. The Dawes Act (ch. 119), also known as the Indian General Allotment Act, was passed in February 1887. 24 Stat. 388 (1887). “The Dawes Act permitted the Federal Government to allot tracts of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 335 (1998). The Dawes Act does not affect criminal jurisdiction on the Fort Berthold Reservation.

In United States v. Standish, 3 F.3d 1207 (8th Cir.1993), the defendant raised a similar claim in challenging the federal court's jurisdiction over his offenses of murder, arson, and accessory after the fact. Id. at 1208. The crimes were committed in the city of New Town, North Dakota. The defendant argued New Town was not within Indian country, as defined by 18 U.S.C. § 1151, because Congress had opened the part of the Reservation where New Town was located for homesteading in 1910. The Eighth Circuit reaffirmed its decision in City of New Town v. United States, 454 F.2d 121 (8th Cir.1972) that the Reservation had not been diminished, and held there was federal jurisdiction over the defendant's crimes because New Town was within the Reservation. Standish, F.3d at 1208–09. The Fort Berthold Indian Reservation has not been diminished since it was established in 1891. Thus, the Dawes Act provides no support for Mariner's claim.

2) PUBLIC LAW 280

Mariner also cites Public Law 280, 67 Stat. 588 (1953), as authority for his claim that jurisdiction was ceded to North Dakota. Public Law 280 gave federal permission to states to assume criminal and civil jurisdiction over Indian country and encouraged states to assume jurisdiction in Indian country. Three Affiliated Tribes v. Wold Eng'g (Three Affiliated Tribes II), 476 U.S. 877, 879, 887 (1986).

*5 Section 2 of Public Law 280 (codified at 18 U.S.C. § 1162) granted criminal jurisdiction over crimes committed in Indian country by or against Indians to several states. Specifically, Section 2 granted the states of California and Nebraska criminal jurisdiction over all Indian country within those states. Section 2 also granted criminal jurisdiction to Minnesota, Oregon, and Wisconsin over all Indian country except one reservation within each state. Sections 6 and 7 gave the remaining states the option of assuming criminal and civil jurisdiction in Indian country. Three Affiliated Tribes v. Wold Eng'g (Three Affiliated Tribes I), 467 U .S. 138, 143 (1984); Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 472–75 (1979). For those states whose constitutions or laws disclaimed jurisdiction in Indian country, Section 6 permitted those states to amend their constitutions or laws to remove any legal barriers to the assumption of jurisdiction in Indian country. Yakima Indian Nation, 439 U.S. at 474. North Dakota was a state disclaiming jurisdiction over Indian country and fell under Section 6 of Public Law 280. Three Affiliated Tribes I, 467 U.S. at 143; Yakima Indian Nation, 439 U.S. at 474, 481 n. 25.

In response to Public Law 280, North Dakota amended its constitution in 1958 giving the state legislature the authority to accept jurisdiction in Indian country. Three Affiliated Tribes I, 467 U.S. at 144. The amendment provided, in relevant part that “the Legislative Assembly of the state of North Dakota may, upon such terms and conditions as it shall adopt, provide for the acceptance of such jurisdiction as may be delegated to the state by act of Congress.” Davis v. O'Keefe, 283 N.W.2d 73, 75 n. 1 (N.D .1979).

In 1963, the North Dakota Legislature enacted Chapter 27–19 of the North Dakota Century Code. Three Affiliated Tribes I, 467 U.S. at 144. Section 27–19–01 provided that:

“In accordance with the provisions of Public Law 280 ... and [the amended] North Dakota constitution, jurisdiction of the state of North Dakota shall be extended over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. Upon acceptance the jurisdiction of the state shall be to the same extent that the state has jurisdiction over other civil causes of action, and those civil laws of this state that are of general application to private property shall have the same force and effect within such Indian reservation or Indian country as they have elsewhere within this state.”

Id. (quoting N.D.C.C. § 27–19–01 (1974) (emphasis added)). The North Dakota Supreme Court interpreted this provision as a disclaimer of jurisdiction over all claims arising out of Indian country absent consent by the tribes. Id. (citing In re Whiteshield, 124 N.W.2d 694 (N.D.1963)).

In 1968, Congress enacted the Civil Rights Act of 1968, Pub.L. No. 90–284, 82 Stat. 78 (1968), which amended Public Law 280. See Three Affiliated Tribes I, 467 U.S. at 143. In Section 401(a) of the Civil Rights Act (codified at 25 U.S.C. § 1321(a)), Congress again gave its permission for states to assume criminal jurisdiction in Indian country. Section 404 of the Civil Rights Act (codified at 25 U.S.C. § 1324), like Section 6 of Public Law 280, gave the permission of the United States for states to amend their constitutions or laws to remove any legal impediments to assuming jurisdiction. However, unlike Public Law 280, Section 406 (codified at 25 U.S.C. § 1326) provided that States could not assume criminal or civil jurisdiction in Indian country unless approved by the enrolled members in the affected area of Indian country in a special election. Three Affiliated Tribes I, 467 U.S. at 143.

*6 Thus, Public Law 280 § 6 and 25 U.S.C. § 1324 permit a state, despite the provisions of its Enabling Act, to amend its laws and constitution to provide a method to assume jurisdiction in Indian country. While North Dakota amended its constitution and laws to provide a method of assuming civil jurisdiction, it has not amended its laws to provide a method for assuming criminal jurisdiction as required by Section 6 of Public Law 280 and 25 U.S.C. § 1324. Davis, 283 N.W.2d at 75 n. 1. Further, even if North Dakota had established some provision for assuming criminal jurisdiction over the Fort Berthold Reservation, Mariner provides no information indicating the Three Affiliated Tribes of the Fort Berthold Reservation have consented to the State of North Dakota assuming criminal jurisdiction over matters occurring within the exterior boundaries of the reservation as required by 25 U.S.C. § 1324. It is clear and well-established that the State of North Dakota does not have criminal jurisdiction over matters occurring on the Fort Berthold Reservation, and federal jurisdiction remains over major crimes committed by Indians within the Fort Berthold Reservation, including the crimes Mariner was convicted of in this case. See 18 U.S.C. § 1153.

B. UNLAWFUL INDICTMENT

Mariner next argues the indictment was unlawful and, therefore, he was not properly brought to trial as required by the Constitution. Mariner claims (a) the indictment was “fabricated and falsely signed;” (b) the indictment did not contain the seal and teste of the court as allegedly required by 28 U.S.C. § 1691; (c) the indictment only contained electronic signatures and was allegedly not signed by either the grand jury foreperson or a government attorney as required by Rules 6(c) and 7(c), Federal Rules of Criminal Procedure; and (d) the indictment was not returned in open court as required by Federal Rule Criminal Procedure 6(f).

The Fifth Amendment to the United States Constitution and Rule 7(a)(1), Federal Rules of Criminal Procedure, require that felonies be charged by grand jury indictment. An “indictment” is the document founded by a grand jury charging a defendant with a crime. The primary purposes of an indictment are to inform the defendant of the charges he must defend against and to allow the defendant to plead double jeopardy to any future prosecution. United States v. Allen, 406 F.3d 940, 946 (8th Cir.2005). Defects in an indictment are not jurisdictional and do not affect a court's jurisdiction to hear a case. United States v. Cotton, 535 U.S. 625, 629–31 (2002). Further, errors in grand jury proceedings generally do not warrant dismissal of an indictment unless the errors prejudiced the defendant. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).

The ability to challenge an indictment in a Section 2255 proceeding is very limited. United States v. Armstrong, 951 F.2d 626, 628 (8th Cir.1992). Only in exceptional circumstances may a court consider a challenge to an indictment in a post-conviction proceeding. A jurisdictional challenge claiming the indictment is so defective that it deprived the court of jurisdiction is an issue that may be cognizable in a Section 2255 motion. However, in such a case, the defendant must establish that the face of the indictment failed to charge a federal offense. Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988). If the propriety of the charging document is not questioned until after a defendant is convicted, the same is presumed to be sufficient, and even then, in cases where the conviction is collaterally attacked, only in exceptional circumstances can such an attack be considered. United States v. Hill, 171 F.Supp.2d 1032, 1039 (D.S.D.2001); Merrill v. United States, 599 F.2d 240, 242 (8th Cir.1979).

1) 28 U.S.C. § 1691

*7 Mariner contends his indictment is invalid because it was not issued in accordance with 28 U.S.C. § 1691. This section provides:

Seal and teste process

All writs and process issuing from a court of the United States shall be under seal of the court and signed by the clerk thereof.

The requirements of 28 U.S.C. § 1691 do not apply to an indictment.

The Eighth Circuit has explained that “process” is essentially “the means by which a court compels the appearance of a defendant before it or by which the court compels a compliance with its demands.” Girardier v. Webster College, 563 F.2d 1267, 1272 (8th Cir.1977). In essence, both “writ” and “process” command or direct action or inaction on the part of an individual. An indictment is not such a command or directive by the court for the addressee to appear or to take some action or inaction. As such, an indictment is not a writ or process to which 28 U.S.C. § 1691 applies. Rather, its primary purposes are to inform a defendant of the charges and allow him to claim double jeopardy to future prosecutions. Once a person has been indicted, his presence or appearance before the court is obtained through the issuance of a warrant of arrest or summons. See F.R.Crim.P. 9(a).

In short, the term “process” as used in 28 U.S.C. § 1691 refers to an order or directive by a court which compels a person to comply with a court's demand. The indictment is not such a directive. Therefore, 28 U.S.C. § 1691 does not apply to an indictment and Mariner's argument to the contrary is devoid of merit.

2) FEDERAL RULES OF CRIMINAL PROCEDURE 6(c) AND 7(c)

Mariner also contends his indictment violated F.R.Crim.P. 6(c) and 7(c). These rules require signatures by both the foreperson and an attorney for the government. Specifically, Rule 6(c) requires the grand jury foreperson, or deputy foreperson in the absence of the foreperson, to sign the indictment. Similarly, Rule 7(c) provides the indictment “must be signed by an attorney for the government.” Mariner contends there is no evidence the indictment was signed by the grand jury foreperson or an attorney for the government as required by those rules. He states that the only copy of the indictment he received contained electronic signatures of the foreperson and the government attorney, which he argues is evidence the indictment was fraudulently and unlawfully filed.

In this District, original indictments are not accessible to the public. Local Rule 6.1, D.N.D.Crim. L. R., prohibits the disclosure of grand juror names to any person except “to an attorney for the United States and necessary support personnel for use in the performance of official duties to enforce federal criminal law and to other persons as may be required by law or allowed by special order of the court.” Thus, providing the original signed indictment would violate this Local Rule.

Further, the fact Mariner may have received a copy of the indictment that contained electronic signatures does not establish a violation of Rule 6(c). “Rule 6(c) does not require the signature of the foreman to appear in the copy of the indictment that is placed in the public file.” United States v. Curls, 219 F.App'x. 746, 751 (10th Cir.2007) (unpublished).

*8 The Court has reviewed the original indictment and confirms that Mariner's indictment was signed by both the foreperson and an attorney for the government as required by Rules 6(c) and 7(c). The government's copy contains the names and signatures of both individuals. In addition, the transcript of the Grand Jury Returns on December 10, 2009 (the day on which Mariner's indictment was returned and filed), reflects that the indictments were examined by the clerk prior to filing and found to have been signed. (Ex. 2—Tr. of Grand Jury Return). Mariner's argument that he received only a copy containing an “/s/” on the signature lines is not evidence that the indictment was not signed. To the contrary, it is proof that the indictment was signed. See Administrative Policy Governing Electronic Filing and Service § X(A).

There are a number of cases that have rejected similar arguments about electronic signatures. In Johnson v. United States, No. 10–5042–cv–SW–ODJ, 2010 WL 4553671 at *1 (W.D.Mo. Nov. 3, 2010) (unpublished), the defendant claimed his attorney was ineffective for failing to challenge his indictment because it did not contain the foreperson's signature. The court rejected the claim, finding that the electronic signature notation “/s/” on the electronically filed indictment reflected the foreperson had indeed signed the actual indictment, which was not filed electronically for privacy reasons.

In United States v. Henderson, No. 2:02–cr–00826–PMD, 2007 WL 5263457 (D.S.C. Sept. 20, 2007) (unpublished), the defendant sought to have his case reopened and the indictment dismissed complaining, like Mariner, the indictment did not contain signatures of the United States Attorney and the grand jury foreperson, but rather electronic signatures which, he claimed, rendered the indictment void from the beginning. Id. at *2. The court rejected this claim, finding the fact the indictment contained electronic signatures did not call for reopening the case and dismissing the indictment. Id. at *3.

In United States v. McDowell, No. 09–20133, 2011 WL 3240839 (D.Kan. July 29, 2011)(unpublished), the court rejected a challenge to the indictment and superseding indictment claiming they were not signed by the grand jury foreperson, although both contained electronic signatures. Id. at *1. In rejecting the claim, the court noted that the Local Rules (similar to the Local Rules of North Dakota), allow for electronic signatures. Id. The court went on to find the defendant had failed to establish a violation of Rule 6(c), noting that the Rule does not require that the copy of the indictment that is in the public file contain the actual signature of the foreperson. Id. The court also held that, even if there was such a requirement, the defendant failed to establish the appropriate remedy was dismissal of the indictment. Id. Thus, the receipt of a copy of the indictment containing electronic signatures does not entitle Mariner to any relief.

*9 Even if one or both signatures were missing, Mariner would not be entitled to relief. Courts have recognized that the absence of signatures of the foreperson and the government attorney does not render an indictment defective and deprive a district court of jurisdiction. In Hobby v. United States, 468 U.S. 339 (1984), in which the Supreme Court considered a claim of discrimination in the selection of the grand jury foreperson, the Supreme Court described the foreperson's duties as set out in Rule 6(c), including the signing of indictments, as “essentially clerical in nature” which “carry with them no special powers or duties that meaningfully affect the rights of persons that the grand jury charges with a crime.” Id. at 344–45. The Court also noted the foreperson role has no special authority, separate from the grand jury as a whole, to act in a manner which influences or determines whether a person should be prosecuted. Id. at 345. The foreperson's signature on an indictment is a formality and the absence of the signature is a technical defect that is not necessarily fatal to the indictment. Id. Appellate courts have also rejected challenges on appeal by defendants alleging their indictments were not signed by the foreperson. See United States v. Titchell, 261 F.3d 348, 351 (3d Cir.2001); United States v. Marshall, 910 F.2d 1241, 1243 (5th Cir.1990) (noting the commentary to Rule 6(c) of the Federal Rules of Criminal Procedure makes clear that the foreperson's failure to sign the indictment is an irregularity and is not fatal, quoting Frisbie v. United States, 157 U.S. 160 (1895)).

In United States v. Morse, 613 F.3d 787 (8th Cir.2010), the defendant filed a pretrial motion to dismiss for lack of a signed indictment, which was denied by the district court. Id. at 791. On appeal, the defendant argued that the failure to provide him a signed copy of his indictment violated his due process rights. Id . at 793. In rejecting the claim, the Eighth Circuit found that signatures on the indictment of the foreperson and government attorney “are a formality, and even the lack of signatures would not render an indictment invalid.” Id. (citing United States v. Willaman, 437 F.3d 354, 360 (3d Cir.2006) and United States v.. Irorere, 228 F.3d 816, 830–31 (7th Cir.2000)).

Even if the indictment in this case had been missing the signatures of the foreperson and an attorney for the government, those defects would not render the indictment fatally defective nor deprive the district court of jurisdiction.

3) FEDERAL RULE OF CRIMINAL PROCEDURE 6(f)

Mariner also questions whether the indictment was returned in open court as required by Rule 6(f), Fed.R.Crim.P. He supplies no evidence that it was not.

On the same date Mariner's indictment was filed with the Court, the grand jury returned the indictments for that particular session to the district court judge in court. Grand jury returns were made on December 10, 2009. (Ex. 2–Grand Jury Return Tr. at 1). United States District Court Judge Ralph Erickson presided over the returns. (Id.) The grand jury foreperson reported that the grand jury found 25 true bills/indictments. (Id. at 3). These true bills/indictments were examined by the Clerk of Court who noted they had all been signed. (Id.) The Court also examined each true bill and found there were “a sufficient number of grand jurors who [had] concurred in the issuance of each true bill.” (Id. at 3–4). The Court then ordered the indictments filed, but filed under seal, and arrest warrants issued for the defendants named in the indictments. (Id. at 4). Mariner's indictment was filed that same day. The record clearly reveals the indictments were returned in open court, that each one was signed, and that each had a sufficient number of concurring grand jurors. As a result, this claim is devoid of merit.

*10 Mariner also notes that his indictment was filed under seal. Rule 6(e)(4), Fed.R.Crim.P., allows for the sealing of an indictment until a defendant is in custody or released pending trial. While Mariner was already in custody after being detained on a criminal complaint, he had not yet been arraigned on the indictment on the date the indictment was returned. It was within the discretion of the district court judge to seal the indictment pending Mariner's appearance on the indictment.

C. INSUFFICIENCY OF EVIDENCE/PROSECUTORIAL MISCONDUCT

Mariner raises two issues in Ground C of his petition: (1) there was insufficient evidence to convict him, and (2) prosecutor misconduct.

1) INSUFFICIENCY OF EVIDENCE

A claim that all of a crime's statutory elements were not proven is not a constitutional claim for purposes of collateral attack, nor is it a jurisdictional claim or otherwise reviewable as expressly authorized by 18 U.S.C. § 2255. Anderson, 25 F.3d at 706; United States v. Norton, 539 F.2d 1194, 1195 (8th Cir.1976).

Insufficiency of evidence was raised by Mariner in his pro se brief on direct appeal, and was rejected by the Eighth Circuit Court of Appeals. On direct appeal from his convictions, Mariner's attorney filed a motion to withdraw and a brief under Anders v. California, 386 U.S. 738 (1967), stating that counsel reviewed the record and had not found any non-frivolous issues to raise on appeal. In his Anders brief, Mariner's appellate counsel set forth a sentencing issue. Mariner, 411 F.App'x at 931. Mariner was allowed to file a pro se supplemental brief in which he claimed, among other things, the evidence was insufficient to convict him. Mariner also complained the government had failed to obtain fingerprints of his van. The Eighth Circuit held “the evidence, viewed in a light most favorable to the verdict, amply supports the jury's verdict regardless of fingerprint evidence.” Id. The Court also conducted an independent review of the case under Penson v. Ohio, 488 U.S. 75, 80 (1988), and found no non-frivolous issues. Thus, Mariner's insufficiency claim has already been addressed, and he is not permitted to raise the same issue again in his Section 2255 petition. United States v. Smith, 843 F.2d 1148, 1149 (8th Cir.1988) (“[W]here the sufficiency of the evidence is decided on direct appeal, review of the issue in a § 2255 motion is precluded.”); English v. United States, 998 F.2d 609, 612–13 (8th Cir.1993) (insufficiency of evidence cannot again be raised in § 2255 where decided on direct appeal); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) (insufficiency of evidence raised on appeal); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir.2003); United v. Davis, 406 F.3d 505, 511 (8th Cir.2005).

Mariner asserts he is innocent of the conduct as he claims Dustin Morsette told him another person (Medicine Bird Morsette) sexually abused the victim. Mariner notes that he was told this by Dustin Morsette while in custody awaiting transfer to the Bureau of Prisons, following his trial and sentencing. Relying on Schlup v. Delo, 513 U.S. 298 (1995), and other cases, Mariner asserts his actual innocence claim is a reason to overlook his procedural default for failing to challenge the sufficiency of the evidence at trial and on appeal.

*11 Sufficiency of the evidence was challenged both at trial and on appeal. Therefore, Mariner's claim of actual innocence is not being used to excuse a procedural default and assert some other constitutional grounds for habeas relief, but is instead a direct claim of innocence based on what he alleges is newly discovered evidence. Such a claim is not cognizable in a habeas petition.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation in the underlying criminal proceeding. Herrera v. Collins, 506 U.S. 390, 400 (1993). This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, and not to correct errors of fact. Federal courts do not cast a blind eye toward innocence. Id. at 404. A petitioner otherwise procedurally barred from asserting a constitutional defect with his underlying trial may have that claim considered on the merits if he makes a proper showing of actual innocence. Id. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable’ discretion of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Id. However, “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. Thus, “[t]he fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.’ “ Id. (internal citation omitted). However, this exception does not extend to freestanding claims of actual innocence. Id. at 404–05. Instead, criminal rules of procedure provide the avenue for asserting a claim of actual innocence based on newly discovered evidence. Id. at 408–11. In federal court, Rule 33 of the Federal Rules of Criminal Procedure provides for a new trial based on newly discovered evidence. Id. at 408–09.

It is clear the Eighth Circuit found ample evidence to convict Mariner. The evidence presented at trial against Mariner was overwhelming. The only “new” evidence not presented at trial that Mariner asserts is the information allegedly received from Dustin Morsette (a defendant in another case before this Court). Mariner alleges Dustin Morsette told him that he observed Medicine Bird Morsette engage in digital penetration of the victim's vagina, which became violent but ended when Mariner returned from the apartment building he had stopped by to attempt to wake Juna Smith to have sex, causing Morsette to run away. Mariner alleges this conduct by Medicine Bird Morsette caused the injuries to the victim. Additionally, Mariner claims Dustin Morsette indicated the carpenter's level was not used in the assault. This evidence does not satisfy the actual innocence exception.

*12 The undisputed medical evidence presented at trial revealed the victim had a severe laceration deep within the vagina, through the uterus, and up into the abdominal cavity that caused perforations of the bowel and abdominal cavity. (Tr. 42–47, Ex. 3). The victim also had a severe laceration down toward the right buttocks that was filleted open. (Tr. 42). Insertion of a human finger into the vagina could not cause such severe injuries to the vagina and other bodily organs, nor could it explain the severe laceration into the buttocks.

In addition, the information from Morsette does not explain away the DNA evidence on the carpenter's level. The Morsette information specifically disclaims the use of a carpenter's level. Two broken pieces of a carpenter's level belonging to Mariner (Tr. 319) were found in a garbage can outside the home of Mariner and the victim. (Tr. 80–81). DNA from two people was found on one of the pieces of the carpenter's level (Tr. 157–59), with those two sources matching the DNA profiles of the victim and Mariner. (Tr. 157–64). Another piece of the level contained DNA from two individuals (Tr. 153), with one set of the DNA matching the DNA profile of the victim. (Tr. 153–54).

At trial, Mariner claimed he initially tried to carry the victim into the house after the babysitter left, but the victim got up and walked into the house on her own. Mariner made no mention that the victim placed anything into the garbage can. He disclaimed any awareness of the carpenter's level in the back of the van. Mariner claimed he did not place the carpenter's level in the garbage can. Another small piece of the carpenter's level was found within the rear compartment of the van where Mariner admitted the victim was laying. Photographs of the broken pieces of carpenter's level in the garbage can depicted blood on those pieces. The new information from Morsette provides no explanation of how the pieces of carpenter's level came to be in the garbage can (in particular, lying next to the victim's bra that was also in the garbage can), have blood on them, or have DNA from both the victim and Mariner on them.

The Morsette information is entirely inconsistent with Mariner's own statements to law enforcement and to babysitter Mary Duchaine that were presented at trial. Mariner told the investigating BIA special agent that he and the victim made no stops between Deigh Lincoln's home and the couple's home. (Tr. 290). Thus, this statement makes the alleged conduct by Morsette entirely impossible. Duchaine testified that Mariner arrived at the couple's house driving in the van. (Tr. 192). Mariner entered the home in a “panicky” state, and Duchaine observed that he had blood on his shirt, arm, and neck. (Tr. 192–93). Mariner told Duchaine, who was there babysitting the couple's children, that the victim was badly hurt and was inside the van. (Tr. 193). Mariner initially said the victim was passed out and bleeding because of her period. (Tr. 193). As Duchaine prepared to leave, Mariner then told Duchaine that while at the party at Deigh Lincoln's house, he had walked the victim out to the van so she could pass out, and then he returned to the party. (Tr. 194–95). Thereafter, he observed a person known as J.D. leave the party and return, after which Mariner went back out to the van and found the victim naked and full of blood. (Tr. 194–96). These statements to Duchaine were obviously false as others observed the victim enter the van with Mariner and Brandy Canyon as they left the party, and the victim was not injured or bleeding at that time. (Tr. 213–14, 225–26). In addition, Mariner admitted in his testimony at trial that he did not leave the victim passed out in the van, but that she walked out to the van and was not injured, and that he did not notice blood until after they had left the party. (Tr. 307–09, 314–15). Thus, Mariner's statements to Duchaine were false exculpatory statements designed to attempt to shift blame, and were evidence of conscious guilt. United States v. Penn, 974 F.2d 1026, 1028 (8th Cir.1992).

*13 Given the direct conflict between Mariner's statements to others and the alleged information provided by Dustin Morsette, the complete absence of explanation for the injuries to the victim through this information, and the complete absence of explanation for the DNA evidence and the placement/location of the broken carpenter's level, the alleged statement by Dustin Morsette is far from reliable new evidence that would raise a reasonable doubt as to Mariner's guilt. The evidence of Mariner's guilt at trial was overwhelming. Mariner's conflicting versions of what occurred on the evening of the sexual assault are completely unbelievable.

In conducting a review of the sufficiency of the evidence, a court must view the evidence in a light most favorable to the verdict. United States v. Varner, 678 F.3d 653, 656 (8th Cir.2012). All conflicts in the evidence must be resolved in favor of the verdict, giving the verdict all reasonable inferences that may be drawn from the evidence. Id.; United States v. Spears, 454 F.3d 830, 832 (8th Cir.2006). The court may not weigh the evidence or assess the credibility of the witnesses as these tasks are the sole propriety of the jury, as is resolving any conflicts or contradictions in testimony. A court must resolve any credibility determinations and conflicts in the testimony in favor of the verdict. Id. The Court must reject any testimony by a defendant that contradicts the evidence supporting the verdict. United States v. Morin, 338 F.3d 838, 844 (8th Cir.2003). When the evidence is viewed in the proper standard, in a light most favorable to the verdict, the evidence was more than sufficient to convict Mariner of all charges.

The evidence at trial clearly demonstrated that Mariner was the only person who could have committed the brutal and horrendous crimes against the victim. This was one of the most brutal sexual assaults this Court has witnessed in more than ten years on the federal bench. When Mariner, Brandy Canyon, and the victim left the party at Deigh Lincoln's, the undisputed evidence revealed the victim was not injured or bleeding. (Tr. 225–26). Mariner drove to a trailer court where he instructed Canyon to get out. (Tr. 211–12). Canyon believed she would be staying with Mariner and the victim at their residence, but Mariner refused to allow her to do so. (Tr. 211–12). Canyon then exited the vehicle. (Tr. 212). As she left the vehicle, Canyon saw that the victim was passed out, but fully clothed. (Tr. 211, 213). Canyon observed the victim did not appear injured and did not have any blood on her. (Tr. 213–14). According to Mariner's statement to law enforcement, Mariner and the victim went directly home after dropping off Canyon. (Tr. 290). Mariner did not indicate they stopped anywhere on the way home. (Tr. 290). When they arrived at their residence, Mariner entered the house, where Mary Duchaine observed he had blood on his shirt, arm and neck. (Tr. 193)

*14 The evidence at trial clearly demonstrated that Mariner lied to Duchaine about how the victim was injured. Mariner initially told Duchaine the victim was badly hurt when he came in the door with blood on him. He then said she was bleeding because of her period. (Tr. 193). A short time later, Mariner told Duchaine that, while at Deigh Lincoln's party, he had taken the victim out to the van so she could pass out, and he returned to the party. (Tr. 194–95). Mariner told Duchaine that he then observed a person known as J.D. leave the party and return, after which Mariner went to the van and found the victim was naked and full of blood. (Tr. 194–96). These statements to Duchaine were clearly false, as others observed the victim enter the van with Mariner and Canyon after the party, and she was not injured or bleeding at that time. (Tr. 213–14, 225–26). At trial, Mariner admitted he did not leave the victim passed out in the van as he told Duchaine, but that she walked out to the van herself and was not injured, and he did not notice blood until sometime after they had left the party. (Tr. 307–09, 314–15).

DNA evidence also clearly linked Mariner to the crimes. Two broken pieces of a carpenter's level and the bra the victim was wearing on the night of her assault were found in a garbage can outside the home of Mariner and the victim. (Tr. 80–81, 109, 319). Both pieces of the level tested presumptively positive for human blood. (Tr. 127, 134–35). One piece had DNA from both the victim and Mariner upon it, and the other had DNA from the victim but was inconclusive as to the other contributor. (Tr. 160–67). This evidence, when coupled with the severity of the victim's injuries in the vaginal and abdominal cavities (Tr. 41–47) created a reasonable inference that the carpenter's level was used by Mariner to sexually assault the victim by forcibly inserting it into her vagina. Mariner's claims of insufficiency of evidence attempt to portray the evidence in the light most favorable to him, and ignore all reasonable inferences that the jury could draw from the evidence.

Mariner also argues there was insufficient evidence to establish the carpenter's level was inserted in the victim's vagina. He complains there was not a full examination of the victim's vaginal area, and no evidence on the level to demonstrate it was inserted into her, such as smear marks, tissue or a collection of blood. Again, Mariner tries to portray the evidence in a light most favorable to him and ignores all reasonable inferences that could be drawn from the evidence. He does not indicate what a “full examination” is, or what such an examination would consist of. The evidence at trial demonstrated that a full external and internal examination of the victim's genitalia was conducted, such that the physician was able to describe in significant detail the track of the wounds, the location and severity of the victim's injuries, the substantial loss of blood, and the risk that was associated with the injuries (the victim would have died if left untreated). (Tr. 41–49). The nature, severity, and location of these injuries allowed the jury to reasonably infer that some object was inserted into the victim's vagina and caused these injuries.

*15 Two pieces of the broken carpenter's level were found in a garbage can outside the couple's home, each of which had a fair amount of reddish substance on them. (Ex. 1). Swabs of this material tested presumptively positive for human blood. (Tr. 134–35). DNA from the victim, who was bleeding from the vaginal area, was found on both pieces. (Tr. 153–159). The bra the victim had been wearing the night of the assault was found lying in and among the broken pieces of level in the garbage can. (Tr. 80, 109). The officer who located the pieces of level and bra in the garbage can noticed a bloody item / substance on one piece of the level, which he opined to be human feces. (Tr. 81; Ex. 1). Another broken piece of this level was found within the cargo area of the van parked outside the couple's home. Photographs were submitted to the jury showing bloods spots and spatter throughout the cargo area of the van. Mariner admitted that the victim was in this area of the van at the time they arrived home. These facts were more than sufficient for the jury to infer the carpenter's level was the object inserted into the victim's vagina.

There was also overwhelming evidence linking Mariner to the scene of the crime in this case. All of the evidence, including Mariner's own testimony, indicated the assault of the victim occurred in the van while the victim was passed out. Canyon testified she, the victim, and Mariner left the party in Mariner's van. Mariner dropped Canyon off leaving only himself and the victim in the van. The victim was uninjured at that time. Duchaine's testimony established that the victim was injured when she arrived home with Mariner in the van, and only Mariner was with her at that time. There was evidence indicating that between the time Mariner and the victim left Lincoln's home and the time they arrived at their house, Mariner was the only person with the victim—i.e. his statement to law enforcement that he made no stops between dropping Canyon off and arriving home. (Tr. 289–90). Even Mariner's own testimony linked him to the scene of the crime—that he was the one driving the van with the victim inside. There was also physical evidence associated with the crime that connected Mariner to the crime—the broken pieces of level and the victim's bra in the garbage can, blood inside Mariner's van, and blood on Mariner's person when he arrived home. The evidence clearly linked Mariner to this scene during the time of the assault.

Mariner asserts that the “new information” from Dustin Morsette would have changed the result of the trial, and his defense counsel was ineffective for failing to take any action after Mariner allegedly told him of it. Since this alleged information came up only after trial, counsel could not be found to be ineffective for failing to bring the evidence forward at trial. Assuming Mariner actually told his attorney of this information, counsel presumably could have filed a motion for new trial based on newly discovered evidence pursuant to Rule 33, Fed.R.Crim.P. In order to establish counsel was ineffective for failing to file such a motion, Mariner must establish not only that defense counsel's performance was deficient, but that there was resulting prejudice. In this context, prejudice would only exist if a motion for new trial would have been granted.

*16 A court may grant a motion for new trial based on newly discovered evidence if:

(1) The new evidence was unknown or unavailable at trial;

(2) The defendant must have been duly diligent in attempting to uncover the new evidence;

(3) The new evidence must be material; and

(4) The new evidence would probably result in acquittal on retrial.

United States v. Stroud, 673 F.3d 854, 863 (8th Cir.2012). Mariner must meet all five criteria before a motion for new trial could be granted.

The newly proffered information from Dustin Morsette would not result in acquittal on retrial. All of the same arguments stated above addressing Mariner's claim of “actual innocence” apply with equal force here. Digital penetration of the victim's vagina with a finger, no matter how “violent,” would not be able to cause the severe injuries to the victim's vagina, past the cervix, and damage the abdominal cavity and bowel. This new information cannot explain the severe laceration to the victim's buttocks. The Morsette information is in direct conflict with Mariner's own statements to the investigating agent that he made no stops between dropping Canyon off and arriving home. The Morsette information denying use of the carpenter's level provides no explanation for the DNA evidence, nor for the placement and/or location of the broken pieces of level in the van and in the garbage can outside the couple's home. This allegedly newly discovered evidence would not make it likely Mariner would ever be acquitted in a new trial.

Finally, Mariner complains of the presence of Nelson Heart, the tribal public safety officer, at his home the morning of his arrest. Mariner alleges Officer Heart is biased because Mariner had at one time beaten up Heart's son in a fight. Mariner now claims that while he was sitting in the back of the patrol car, he observed Heart walking around the property engaging in various types of activity, including looking in the van windows and walking between the garbage, where the victim's bra and level pieces were ultimately found. He claims that he left the door of the van unlocked but that the van was locked when officers went to search it. Mariner's implication is that Heart may have planted the evidence. He alleges that he told his attorney about this dispute with Heart, but his attorney did not act on that information.

Mariner's allegation does not establish that defense counsel was ineffective. First, all he presents is that Heart was walking around the property. Mariner does not claim that Heart entered the van or was carrying any item or items, much less the carpenter's level. In addition, the validity of Mariner's statement is highly questionable in comparison to the other evidence at trial. The evidence at trial reveals that Mariner was taken away from the residence moments after he was placed in the patrol car. Officer Sanchez, who took Mariner to the police station, testified he only stayed at the scene for a few moments after he placed Mariner in the squad car. (Tr. 34–35, 182–83). In other words, it is highly unlikely Heart could carry out all the activities Mariner indicates occurred while he was sitting in the squad car at the house, which the evidence indicates was only for a few moments.

*17 To the extent Mariner contends defense counsel was ineffective, he must show both deficient performance and prejudice. If his allegation is that counsel failed to investigate the presence of Heart and his dislike for Mariner, Mariner has not shown deficient performance or prejudice. Mariner must show what further investigation would have revealed. Hunt v. Houston, 563 F.3d 695, 705 (8th Cir.2009) (failure to present any indication what a more thorough investigation would have revealed does not establish prejudice). If Mariner's allegation is that his attorney failed to present or argue this evidence, he still cannot demonstrate prejudice. The only evidence defense counsel could have presented was that Heart was present at the home with a number of other officers and emergency personnel, not that Heart was carrying any objects, opening any containers, entering any vehicles or the home, or otherwise tampering with the scene. “Unsupported speculation about the possible existence of some yet undiscovered malfeasance does not establish prejudice.” Id.

2) IMPROPER CLOSING ARGUMENT

Mariner claims the prosecutor made improper statements during closing argument. Like his other claims, this claim may be dismissed on procedural grounds and on the merits.

a. PROCEDURAL DEFECTS

The Eighth Circuit has stated that improper statements by a prosecutor are normally not grounds for relief under 28 U.S.C. § 2255. Houser v. United States, 508 F.2d 509, 515–16 (8th Cir.1974). However, improper statements may constitute a constitutional violation if the comments infected the trial with such unfairness that the defendant's conviction violated due process. Kennedy v. Kenma, 666 F.3d 472, 481 (8th Cir.2012). To reach this threshold, the statements must be so inflammatory and outrageous that a reasonable judge would sua sponte declare a mistrial. Id. In order to obtain habeas relief in this regard, a defendant must show there was a reasonable probability the results of his trial would have been different absent the improper statements.

Mariner cannot show the prosecutor's closing remarks reached a level of a constitutional error, that they were so inflammatory and outrageous that a trial judge would have declared a mistrial on his own. The entire record was reviewed by the Eighth Circuit Court of Appeals who “found no non-frivolous issues to appeal.” Mariner, 411 F.App'x at 931. Had there been any outrageous and inflammatory comments by the prosecutor, the Eighth Circuit would have undoubtedly found an appealable issue.

The comments that Mariner complains about were not improper. There is no basis to conclude the prosecutor made any comments that would constitute a constitutional violation. Mariner's claim of prosecutorial misconduct does not rise to the level of an inherent defect resulting in a complete miscarriage of justice, the necessary requisite for obtaining Section 2255 relief for non-constitutional and non-jurisdictional claims.

b. MERITS

*18 Statements by a prosecutor during closing argument may warrant reversal of a conviction if the statements are improper and prejudicially affected the defendant's substantial rights to a fair trial. United States v. Hawkins, 548 F.3d 1143, 1147 (8th Cir.2008). However, when raised in a collateral attack pursuant to 28 U.S.C. § 2255, a defendant is required to establish the complained-of comments were not only improper, but were also so inflammatory and outrageous that the defendant's due process rights were violated. Kennedy, 666 F.3d at 481. This requires a showing there was a reasonable probability the results of the trial would have been different but for improper comments, or that the comments constituted a fundamental defect which inherently resulted in a complete miscarriage of justice.

A prosecutor's closing argument must be confined to the evidence at trial and inferences that may be drawn from the evidence. Hawkins, 548 F.3d at 1147. An argument is improper if it highlights a defendant's failure to testify or injects the prosecutor's personal opinion the defendant is guilty. United States v. Moore, 129 F.3d 989, 993 (8th Cir.1997); United States v. Bentley, 561 F.3d 803, 812–13 (8th Cir.2009). Arguments are also improper if they introduce evidence not within the record. Hawkins, 548 F.3d at 1148. Improper vouching is likewise improper. Bass v. United States, 655 F.3d 758, 761 (8th Cir.2011). Improper comments may also include “appeals to the passions, prejudice, or sympathy of jurors,” such as emotional appeals designed to convince the jury to convict on something other than the facts; and urging the jury to convict as a means to protect the public and deter future crimes especially when such comments are intended to inflame the jury. United States v. Eagle, 515 F.3d 794, 805 (8th Cir.2008). However, “a prosecutor may use ‘colorful perjoratives' and argue a personal interpretation of the evidence.” Id. (internal citation omitted). The comments complained of must be evaluated in “the context of the entire closing argument and the evidence introduced at trial.” Hawkins, 548 F.3d at 1147.

1. USE OF CARPENTER'S LEVEL

Mariner first complains the prosecutor improperly argued the carpenter's level was inserted into the victim's vagina. He suggests there was no evidence from which such an inference could be drawn. Needless to say, the evidence was overwhelming to warrant such an inference.

Dr. Nordell examined the victim and testified about her injuries. She described the track of the wound, the nature and severity of the injuries, and the depth into the victim's body—from the vagina up into the abdominal cavity which, along with the bowel, was perforated. Dr. Nordell explained that the injuries included lacerations and a great amount of blood loss. A reasonable inference could be drawn from this evidence that some object was forcibly inserted into the victim's vagina.

*19 Other evidence indicated that object was the carpenter's level. As previously noted, pieces of a broken carpenter's level were found in the garbage can outside the couple's home, along with the victim's bra that she had been wearing that night. A substance that tested presumptively positive for blood and containing DNA from the victim was found on these pieces of level. The agent who discovered the pieces of level in the garbage can observed another substance on one of the pieces of level that he opined was human feces. Photographs of the interior cargo area of the van, where Mariner admitted the victim was lying when they arrived home, were submitted to the jury and depicted red substances splattered about that area of the van. The jury did not need scientific evidence to determine those substances were blood. See State v. Opeilewski, 341 A.2d 722, 724 n. 1 (R.I.1975) (witness testimony that object was blood found permissible as “such a fact is capable of determination by the ordinary person.”). Mariner told Mary Duchaine the victim had been assaulted and was “bleeding” from her vagina area. During his testimony at trial, Mariner indicated the victim was bleeding from her vaginal area when he removed her from the van. The victim testified that she was bleeding from her vaginal area when she awoke. The E.M.T. who arrived at the home the following morning testified that he observed “blood” in the home. Another broken piece of the carpenter's level was found in the cargo area of the van. Arguing the carpenter's level was used to assault the victim, and that the assault occurred in the cargo area of the van, was clearly reasonable in light of this evidence.

2. ACCIDENTAL INJURY

Mariner also complains about the prosecutor's closing comments regarding the possibility the injuries to the victim were the result of an accident whereby the victim fell on the level while it was sitting on end sticking up in the air. The prosecutor argued three possibilities existed to explain the injuries to the victim: (1) Mariner or another person inserted the level into the victim's vagina; (2) the victim intentionally did it to herself; and (3) it was an accident where the victim fell on the level which would have had to occur when her jeans were off because there was no hole in her jeans. (Tr. 337–38). The prosecutor argued that two of the possibilities were impossible. First, the victim could not have done it to herself because she was passed out. (Tr. 338). He also argued that an accident where the victim fell on the level was not a realistic possibility because the level would have had to have been sticking up in the air rather than lying flat. Id. The prosecutor followed up his comments regarding the accident scenario with the statement, “[s]o what you're left with is the fact that another person did this to her, so she was assaulted.” (Tr. 338–39)

Mariner now presents another scenario in which the injuries could be accidental—the victim slid while the van was turning a corner forcing the level, which would have been braced against something, into her vagina. This scenario is devoid of any reason or common sense. More important, this assertion does not make the prosecutor's closing comments improper. A prosecutor is permitted to argue reasonable inferences that can be drawn from the evidence. A very reasonable inference from the evidence in this case was that the injury to the victim was not accidental. The nature of the injury to the victim, the shape of the carpenter's level, the location where the injury occurred (cargo area of the van), the physical evidence in the van and at and around the home, and the false exculpatory comments by Mariner to Duchaine, all allowed the prosecutor to argue it was reasonable to disbelieve the injury occurred by accident.

*20 The comments regarding impossibility of an accidental injury were not inflammatory, nor did they make any emotional appeal to convict on grounds not in evidence, nor did they introduce any evidence not in the record, nor did they express personal belief of guilt. Mariner points to none of these as reasons why the argument was improper. He simply presents another possible scenario, unsubstantiated by any evidence at trial.

The Court instructed the jury that comments by the attorneys were not evidence. A district court's instruction that closing arguments are not evidence is a curative action that serves to alleviate any risk of prejudicial impact. Eagle, 515 F.3d at 806. In light of this instruction, and the reasonable inferences that can be drawn from the evidence, Mariner has not shown that these comments prejudicially affected his substantial rights to a fair trial, or that there was a reasonable probability the results of his trial would have been different had they been excluded.

3. MARINER'S ANGER WITH VICTIM

Mariner complains the prosecutor's comment that Mariner was angry and jealous was improper. (Tr. 347). Suffice it to say there was more than sufficient evidence at trial from which the prosecutor could make this comment. Several witnesses indicated that Mariner was angry at the victim. (Tr. 224, 238, 244, 271–72). One witness testified Mariner got mad at the victim because she was talking with some males at the party. (Tr. 224). Another testified the victim was talking with J.D. Finley when Mariner entered the room and saw them talking. (Tr. 271–72). The victim walked to Mariner where they spoke, and Mariner eventually pushed the victim into a wall. (Tr. 272–73). Witnesses also saw Mariner pulling the victim around by the arm. (Tr. 209, 224)

4. PRIOR SEXUAL ABUSE

Mariner next complains about the prosecutor's statement that the defendant had previously enjoyed sexually abusing the victim with objects such as beer bottles while she was “in a vulnerable state, when she's intoxicated.” (Tr. 347). He claims this was improper because there was no evidence the victim considered it abuse.

This claim is also patently frivolous. There was specific testimony as to this conduct that allowed the prosecutor to argue it was sexual abuse. “Sexual abuse” under 18 U.S.C. § 2242(2) occurs when a victim is either “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” That offense was, in fact, one of the charges against Mariner in the case. The victim testified that on other prior occasions Mariner inserted “a beer bottle, and stuff” into her vagina when she was intoxicated to a level similar to her intoxication on the night the charged assaults took place. (Tr. 107). She had no recollection of the incidents at the time they were happening, and only found out about them the next day when Mariner told her about it. (Tr. 111). Thus, the evidence demonstrated she was physically incapable of declining participation in, or communicating unwillingness to engage in, those sexual acts with beer bottles due to severe intoxication. The evidence clearly supported an argument that Mariner's conduct was sexually abusive.

5. WORLD POPULATION

*21 Mariner also complains that the prosecutor misstated the probability of finding a person with the same DNA as the defendant exceeded the world population. When commenting on the DNA testing, the prosecutor reiterated the testimony of the forensic scientist who testified at trial that the probability of finding the same DNA profile of an unrelated person was one in 9,328,000,000, which was more than the world population. (Tr. 348). The prosecutor went on to state that it “would take more than the world's population, six-and-a-half billion, to find another person who matched that other than the defendant.” (Id.)

This was not an improper comment. The forensic scientist testified the DNA profile of the minor contributor developed from the swab of a piece of the level (Item 3B2) matched Mariner's DNA profile at 11 of 15 loci. (Tr. 162). Based on these results, the scientist conducted a frequency analysis. (Tr. 163). The forensic scientist then testified, “[t]he frequency of selecting an unrelated individual at random from the population having the same profile as the profile on Item 3B2 minor is approximately 1 in 9,328,000,000.” (Tr. 163–64). When asked about the population of the world, the scientist believed it was about 6 1/2 billion. (Tr. 164). Thus, the prosecutor did not misstate the evidence and clearly made no improper comment during closing argument.

6. COMMON SENSE

The next comment Mariner complains about is the prosecutor allegedly stating to the jury they would lack common sense if they believed Mariner's version of the events. Mariner's description of the comment is inaccurate.

The prosecutor was commenting on whether to believe Mariner's trial testimony. He stated:

Well, common sense also tells you that his version is not to be believed. His explanation for the carpenter level is just simply incredible. He never saw it in the van? It's bright green. These are large pieces. This is a large object. It's his. Did somebody steal it and put it in his van or take it to the apartment building and just by chance come across [the victim] and then decide to use it and then plant it in his van?

Again he tells you that he never removed it from the van, so the real perpetrator again played this secret spy game and followed him home, retrieved the object from the van presumable to get rid of it, but then just disregards it in the trash next to the house? Well, maybe it just magically floated over there and plopped in the trash on its own. It's more logical—it's more logical that he threw it in the trash to get rid of it. He's in control of the situation. He isn't calling the police or the ambulance about this. He's in control of [the victim]. The trash is going to be gone before anybody else finds out about this.

(Tr. 355–56). When read in full context, these comments are nothing more than the prosecutor commenting on the plausibility of Mariner's defense based on a reasonable interpretation of the evidence, which is not improper. United States v. Jewell, 614 F.3d 911, 928 (8th Cir.2010) (not improper for the government to comment on its interpretation of the evidence, including the strength of the defense theory); United States v. Glover, 558 F.3d 71, 78 (1st Cir.2009) (government is permitted to comment on the plausibility of the defendant's theory).

*22 Mariner's version of what transpired was that it was not him but someone else who committed the horrific sexual assault. Mariner denied committing the assault and claimed it must have occurred while he was knocking on Juna Smith's apartment door for approximately 20 minutes in the early morning hours. (Tr. 322, 330). With respect to the level, Mariner testified he borrowed it from his uncle, had not seen it for a while, and had no idea it was in the back of the van. (Tr. 319–20; 324–25). He denied removing the level from the van and putting it in the garbage. (Tr. 324–25)

The prosecutor's statements were, without question, proper. As the prosecutor pointed out, the level was bright green and, fairly large in size, at least 24 inches in length. (Ex. 4). A reasonable inference could be drawn that Mariner would have seen such an object in the van, especially when Mariner admitted he entered the back of the van twice—once shortly after leaving Juna Smith's apartment building, and again when he retrieved the victim from the van after arriving home. The other closing comments simply reflect on the plausibility of how someone other than Mariner could have committed the crime and secretly hidden pieces of the carpenter's level in Mariner's van and/or outside his home. The arguments were proper, especially in light of Mariner's statement to law enforcement that he drove straight home with the victim after dropping off Brandy Canyon. While making these comments, the prosecutor also argued the more logical conclusion was that Mariner was the one who threw the level in the garbage can. The comment about common sense directed the jury to review the evidence submitted in the case and to draw reasonable inferences from that evidence, which is entirely permissible.

7. PLACEMENT OF DNA

Mariner complains about the prosecutor's rebuttal comment in which he stated Mariner's DNA was on the level and that it was not from several weeks ago. He complains there was no evidence from which the prosecutor could argue the DNA evidence was deposited on the level at the same time as the victim's DNA and that it could have been that his DNA was on the level weeks before the incident.

The context of the comment reads:

His DNA is on that level. You heard from Ms. Gebhardt. There needs to be a significant quantity of that in order to develop the loci here. That's his DNA, not something from several weeks ago. The swab, the reddish brown areas of the carpenter level, that's the area where the mixture of DNA was.

(Tr. 362–63).

Again, this was not an improper argument based on the evidence presented at trial. The presence of the victim's DNA on the pieces of level, along with the nature and severity of her injuries, indicated the carpenter's level was used in the assault. There was evidence Mariner was the only one who was with, and who had access to, the victim between the time Brandy Canyon was dropped off and arriving home. This evidence, in itself, was sufficient to argue that Mariner was the person who assaulted the victim with the level and who left DNA on the level at the time of the assault, not from some other time. Further, there was no evidence the level was broken prior to the assault. Mariner testified the level was in working condition the last time he used or saw it. Based on the nature and severity of the injury to the victim, and the spattering of blood within the cargo area of the van, it is reasonable to infer the level was broken during a forcible assault of the victim during which DNA from Mariner's skin or bodily fluids could have gotten on the level. In addition, there was testimony from Mary Duchaine that placed Mariner in a position to discard the pieces of level into the garbage can outside the home. All of these facts suggested that Mariner had, in fact, utilized the level recently, not weeks ago.

III. LACK OF AUTHORITY TO PROSECUTE

*23 Mariner next claims there was no jurisdiction to prosecute him because the Acting U.S. Attorney Lynn Jordheim, and AUSA Rick Volk did not have authority to prosecute him. In support of his claim, Mariner attaches a response to a Freedom of Information Act request he submitted seeking the oaths of offices and appointments for Acting U.S. Attorney Jordheim and AUSA Volk. See Docket No. 56, pp. 69–70. The response from the FOIA Unit of the Executive Office for U.S. Attorneys indicates that no responsive records to Mariner's request were found in the U.S. Attorney's Office for the District of North Dakota. Mariner claims this response establishes the two men were not properly appointed. All Mariner has established is no such records were found in the U.S. Attorney's Office in North Dakota. This is insufficient to establish that AUSA Volk's and Acting U.S. Attorney Jordheim's participation in the case resulted in lack of jurisdiction. United States v. Jackson, No. CR 03–219–CAS, 2008 WL 4330252, at *1 (C.D.Cal.2008) (unpublished).

In Jackson, like the instant case, the defendant claimed the court lacked jurisdiction because the AUSA assigned to the case had allegedly not complied with statutory requirements to assume the post, namely taking the oath of office. Id. Like Mariner, the defendant submitted a document in response to a FOIA request for the oath of office which indicated that a search of the records in the United States Attorney's Office did not find any responsive records. Id. The court found the document indicating no responsive records was insufficient to find that the AUSA had failed to comply with the requirements to assume the position. Id. The same applies here as Mariner received essentially the same response to his FOIA request as did the defendant in Jackson.

Both AUSA Volk and Acting U.S. Attorney Jordheim were properly appointed. Copies of the appointment affidavits and oaths of office for both men were obtained from the Human Resources Office for the Executive Office for U.S. Attorneys. Both men were duly appointed and authorized to prosecute Mariner.

In addition, although Mariner attempts to frame this issue as a jurisdictional one, it is not. The decision of who will represent the United States in prosecuting a criminal case, or whether that individual has the authority to prosecute, does not affect the jurisdiction of the court to hear the case and adjudicate him guilty. United States v. Fitzhugh, 78 F.3d 1326, 1329–30 (8th Cir.1996); United States v. Suescun, 237 F.3d 1284, 1287–88 (11th Cir.2001).

In Fitzhugh, the defendant, who had pled guilty, unsuccessfully sought dismissal of the indictment by essentially claiming the Independent Counsel appointed to prosecute him did not have authority to do so because the Attorney General did not have authority to appoint the Independent Counsel, and that the Independent Counsel exceeded his authority in prosecuting the case. Id. at 1329. The Eighth Circuit interpreted this claim as one claiming the Attorney General sent the wrong person to prosecute him, not that the government lacked power to prosecute him for the offense or that the superseding information failed to state an offense. Id. at 1330. The Court noted that the decision of who should represent the United States in a criminal prosecution is a question for the Attorney General, and that any judicial supervision over that decision “[did] not affect the court's jurisdiction” over the defendant's case. Id. The Court held the claim was a non-jurisdictional claim that was waived by the defendant's guilty plea. Id.

*24 Thus, Mariner's claim that AUSA Volk and Acting U.S. Attorney Jordheim did not have authority to prosecute him does not affect the court's jurisdiction to hear his case. This claim is devoid of any merit.

IV. LACK OF JURISDICTION BASED ON IMPROPER ENACTMENT OF LAW

Mariner claims this Court lacked jurisdiction over his offense because the law that enacted the federal criminal code found in Title 18 (Act of June 25, 1948, 62 Sta. 683) was not enacted in accordance with constitutional and statutory requirements. Specifically, he claims the law was signed by the Speaker of the House and President of Senate after both houses had adjourned which Mariner asserts violated the constitutional provisions of Article I—Section 1, Section 2, clause 1, and Section 5, clause 1—and the Seventeenth Amendment; and the statutory provision at 1 U.S.C. § 106. See Docket No. 56, p. 7. Mariner contends that by signing after adjournment, the law was essentially passed by only two persons in Congress-the Speaker of the House and President of the Senate.

Of the constitutional and statutory provisions Mariner claims were violated, only one mentions signing of bills by the presiding officers of the House and Senate.

1 U.S.C. § 106—Printing bills and joint resolutions

Every bill or joint resolution in each House of Congress shall, when such bill or resolution passes either House, be printed, and such printed copy shall be called the engrossed bill or resolution as the case may be. Said engrossed bill or resolution shall be signed by the Clerk of the House or the Secretary of the Senate, and shall be sent to the other House, and in that form shall be dealt with by that House and its officers, and, if passed, returned signed by said Clerk or Secretary. When such bill, or joint resolution shall have passed both Houses, it shall be printed and shall then be called the enrolled bill, or joint resolution, as the case may be, and shall be signed by the presiding officers of both Houses and sent to the President of the United States. During the last six days of a session such engrossing and enrolling of bills and joint resolutions may be done otherwise than as above prescribed, upon the order of Congress by concurrent resolution.

The Presentment Clause of the United Sates Constitution provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

*25 U.S. Const. art. I, § 7, cl. 2. The Presentment Clause requires that bills or resolutions passed by both houses be presented to the President for his consideration within ten days. It does not require that it be signed by the leaders of the two houses.

Title 1, U.S.C. § 106, does require the signature of the leaders of the House and Senate on enrolled bills (i.e., a bill that has passed both houses) and joint resolutions that have passed both houses. However, it does not provide that the signatures of the leaders of the houses must occur while Congress is in session. In other words, there is no constitutional or statutory provision prohibiting signing of bills or resolutions after Congress has adjourned.

Mariner relies upon the journal and other publications from Congress, which he attaches to his motion. However, the Supreme Court has held an enrolled bill signed by the Speaker of the House and President of the Senate, prior to presentment to the President, is an attestation by the House and Senate that the bill has passed both houses; and, further, upon approval of the President and deposited in public archives, “its authentication as a bill that has passed congress should be deemed complete and unimpeachable.” Marshal Field & Co. v. Clark, 143 U.S. 649, 672 (1892). The Court further noted “the journals of either house, ... reports of committees, or ... other documents printed by authority of Congress” could not be used as competent evidence to challenge passage of the law. Id. at 680. In other words, a court may not look beyond the signatures of the leaders of the House and Senate in determining whether a bill or resolution was validly enacted. United States v. Farmer, 583 F.3d 131, 151–52 (2d Cir.2009) (internal citations omitted). That being so, the publications relied upon by Mariner are of no benefit in his challenge to the law.

In summary, the signing of the joint resolution by the Speaker of the House and President of the Senate after Congress had adjourned did not affect the validity of the law. The Presentment Clause (U.S . Const. art. I, § 7, cl.2) does not prohibit such action and, in fact, does not require signatures by the presiding officers of the Houses. Section 106 likewise does not prohibit the signing after Congress adjourned, and, in fact, authorizes Congress, by concurrent resolution, to adopt different procedures in handling enrolled bills and joint resolutions within the last six days of the session, which Congress did by passing a concurrent resolution authorizing the presiding officers to sign enrolled bills and joint resolutions after adjournment. There were not improprieties in passing the law as Mariner claims.

V. CONCLUSION

Monty Mariner's Section 2255 petition for habeas relief is denied in all respects. The 127–page motion is devoid of any merit and is frivolous. A defendant is entitled to an evidentiary hearing on his Section 2255 motion only when his “facts alleged, if true, would entitle him to relief.” Blankenship v. United States, 159 F.3d 336, 337 (8th Cir.1998) (internal quotations omitted). However, a hearing is not necessary if it can be conclusively determined from the motion, files, and records of the case that a defendant is not entitled to relief. Id. In other words, a hearing is not necessary if the motion can be decided based on the record before the Court. No hearing is needed in this case.

*26 IT IS SO ORDERED.

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