MEMORANDUM OFDECISION AND ORDER
THIS MATTER is before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Doc. 1]; Respondent's Motion for Summary Judgment [Doc. 12]; and Petitioner's Response to Respondent's Motion for Summary Judgment [Doc.25].
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner, an American Indian, was charged with assaulting and kidnaping his wife, also an American Indian, and sexually abusing their three daughters at various times in 2003 and 2004. All incidents took place at the family home within the boundaries of the Eastern Band of Cherokee Indian Reservation. Jurisdiction resided in the Federal District Court pursuant to 18 U.S.C. § 1153(a).
On October 19, 2004, Petitioner was convicted after a trial by jury of three counts of assault with a deadly weapon with intent to do bodily injury (Counts Fourteen, Sixteen, Eighteen), three counts of assault resulting in serious bodily injury (Counts Fifteen, Seventeen, Nineteen), one count of kidnaping (Count Twenty), and six counts of aggravated sexual assault (Counts Twenty-One through Twenty-Six), in violation of 18 U.S.C. §§ 113(a)(3), (a)(6); 1153; 1201; 2241(a) (2000). United States v. Oglesbee, 177 Fed.Appx. 359, 360 (4th Cir. 2006), certiorari denied 549 U.S. 987, 127 S.Ct. 462, 166 L.Ed.2d 329 (2006). Petitioner was sentenced on the various counts to life imprisonment. Id. He appealed, and his convictions and sentences were affirmed by the Fourth Circuit in an unpublished opinion. Id. Petitioner's Petition for Writ of Certiorari was denied by the Supreme Court. Oglesbee v. United States, 549 U.S. 987, 127 S.Ct. 462, 166 L.Ed.2d 329 (2006).
The trial focused primarily on the three assaults alleged in the indictment and on the aggravated sexual abuse of Petitioner's daughters.
The Government's evidence showed that on or about January 27, 2004, Petitioner began hitting his wife. His wife was seated at the time, and in the process of drawing up her legs to protect herself, she knocked over a glass jar containing tea, which splattered on Petitioner. He picked up the jar and threw it at her head. She attempted to block the jar with her hand, and it broke her finger. The break was severe, causing the broken bone to tear through and protrude from her skin. [Criminal Case No. 2:04cr38, Doc. 49: Trial Tr. Vol. I, 93-94, 170-71.]
Petitioner initially refused to let his wife seek treatment for her injury, telling her to get her "pigs" (meaning the police) and "bring them down," and that he would "take some of them out with [him]." [Id. at 94-95, 171-172, 204, 232.] Eventually, the pain in his wife's finger overrode her fear of Petitioner, and she left for the hospital after telling him that she would not contact the police and would tell the doctors that she had broken her finger carrying firewood. [Id. at 98-99, 143, 258.] She smeared mud on her clothes before leaving to make her story of carrying firewood more convincing. [Id. at 99, 172-73.] When she left, Petitioner was sitting in a chair with a rifle across his legs; he told her that "he would be there waiting for the cops to get there." [Id. at 205; 98, 221-22, 233.] Although there was conflicting testimony regarding the length of time between the injury and his wife's departure for the hospital, Petitioner did not dispute that it was about an hour and a half to two hours. [Case No. 2:04cr38, Doc. 50: Trial Tr. Vol. II, 309-11.]
Petitioner testified that he did not throw the jar at his wife, but away from her, and that she intentionally "backhanded the jar in a badminton style . . ." [Id. at 282, 308.] He also testified that he did not prevent her from leaving, that she delayed her trip to the hospital, and that "she's tough and she was not crying" after her finger was broken. [Id. at 309-10.]
The Baseball Bat Incident
On or about March 11, 2004, Petitioner and his wife were arguing when he struck her in the middle of the back with an aluminum baseball bat, causing her to fall. [Trial Tr. Vol. I, 106, 174-75, 206.] He then hit her on the hip at least three times as she lay prone, leaving a bruise the size of a basketball. [Id. at 105-106, 174-75, 258-59.] Petitioner's two oldest daughters and his son witnessed some or all of this assault. [Id. at 174-75, 206, 258-59.]
Petitioner testified that his wife had the bat and that she was asking him to insert it into her vagina. He testified that he refused and that she was hit while he was trying to take the bat away from her. [Trial Tr. Vol. II, 283-86.] He could not account for why his children did not hear their mother make the alleged request, or why her bruising was so severe. [Id. at 316-18.]
Beginning on March 14 and continuing into March 15, 2004, Petitioner repeatedly shocked his wife with a stun gun. [Trial Tr. Vol. I, 112-13, 176, 207-08, 236-37, 260.] He told "R.O.," his oldest daughter, that God told him to use the stun gun on his wife because it was his turn to have fun. [Id. at 176.] When the batteries ran low, he asked "H.O.," his middle daughter, to go out and buy $300 worth of 9-volt batteries for the gun; she did not comply. [Id. at 176, 208.]
Petitioner testified that he and his wife were taking turns shocking themselves and that he laughed when he got shocked. [Trial Tr. Vol. II, 287, 322-24.] He claimed that the whole episode lasted less than an hour. [Id. at 323.]
Aggravated Sexual Assault
Evidence at trial also revealed that Petitioner sexually abused his three daughters over a period of two years. The first offense occurred in November, 2003. Petitioner required "R.O." to "help him to maintain an erection . . ." during his sexual activities with his wife, "R.O.'s" mother. [Trial Tr. Vol. I, 120-21, 178-179.] He forced "R.O." to manually stimulate his penis and to perform oral sex on him. [Id. at 120-21, 125, 179-82.] If she resisted, he used physical force to get her to comply. [Id. at 181-82.] Additionally, he fondled her breasts and genitals. [Id. at 120-22, 179-80.] These abuses recurred two or three times a week. [Id. at 123, 181.] Petitioner told "R.O." that she was "under his protection," which she understood from prior conversations to mean that she was "either a wife or a concubine." [Id. at 180-81.]
When "R.O." was unavailable to him due to her menstrual cycle, Petitioner involved his 18-year-old middle daughter, "H.O.," in his sexual activities with his wife. [Trial Tr. Vol. I, 124-27.] Petitioner would fondle her genitals, perform oral sex on her, force her to perform oral sex on him, and force her to manually stimulate his penis. [Id. at 125-29, 212-16.] On other occasions he would penetrate her vagina with his finger, purportedly to see if she was still a virgin. [Id. at 213-14, 216] He told her that "Lot's daughters had laid with Lot and they had children by him," and that she was "under his protection" for having complied. [Id. at 124-25, 212.] This abuse occurred approximately two or three times a week [Id. at 213] and sometimes involved Petitioner, "R.O.," "H.O.," and their mother together. [Id. at 128, 183-84.]
Petitioner's youngest daughter, "A.O.," did not escape the abuse. In early March, 2004, after a particularly savage beating, Petitioner pulled up "A.O.'s" skirt and digitally penetrated her and forced her to kiss his penis. [Trial Tr. Vol. I, 238-41.] He also digitally penetrated her for the stated purpose of seeing if she was still a virgin, accusing her of sexual activity with her younger brother, "J.O." [Id. at 243-44.]
For his part, Petitioner denied all sexual activity with his daughters. [Trial Tr. Vol. II, 287-88.] He testified that they and their mother "pushed him in that direction," suggesting that they attempted to draw him into sexual activity. [Id. at 326-27.]
Petitioner filed a timely Motion to Vacate, Set Aside or Correct
Sentence in this Court on October 19, 2007. [Doc. No. 1.]*fn1
Due to the disjointed, rambling, and repetitive nature of the
allegations raised in the Motion, the Court delineated the
recognizable claims and ordered the Government to respond to the
following issues: ineffective assistance of counsel for failing to
prepare for trial, for failing to prepare a diminished capacity
defense, for failing to investigate Petitioner's wife's motives in
testifying against him, for failing to hire an expert to prove that
some of his wife's testimony was false, for failing to dismiss jurors
that Petitioner wanted dismissed, for failing to properly question
Petitioner during his testimony, for failing to oppose testimony
concerning Petitioner's possession of an AK-47, and for failing to
seek a change of venue; and prosecutorial misconduct for permitting
Petitioner's wife to testify falsely that he had broken her finger,
and for eliciting testimony of Petitioner's ownership of weapons,
including an AK-47, for the sole purpose of portraying Petitioner as a
"bad man." [Doc. 2.]
By the same Order, the Court dismissed Petitioner's claim that counsel was ineffective for failing to "defend [his] rights" as too vague to state a constitutional claim for relief. [Id. at 2 n.1.] The Court also dismissed Petitioner's claim that the prosecutor engaged in misconduct when he argued that the victims still were afraid of Petitioner despite the fact that he was in leg shackles because the Fourth Circuit had determined on direct appeal that even if the remark was prejudicial, it could not have violated Petitioner's right to a fair trial given the "volume of evidence of [Petitioner's] guilt." [Id., citing Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Boeckenhaupt v.United States, 537 F.2d 1182 (4th Cir. 1976), certiorari denied 429 U.S. 863, 97 S.Ct. 169, 50 L.Ed.2d 142 (1976).]
Respondent filed a Response and a Motion for Summary Judgment. [Docs. 11 & 12.] Petitioner subsequently filed a Response to the Motion for Summary Judgment, in which he raised additional claims of constitutional violations. [Doc. 25.] Petitioner has not moved to amend his Motion to Vacate to add these additional claims. Therefore, the Court will not consider them." Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005).
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn2 "As the Supreme Court has observed, 'this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003), certiorari denied 541 U.S. 1042, 124 S.Ct. 2171, 158 L.Ed.2d 732 (2004), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). A genuine issue of fact exists if "'a reasonable jury could return a verdict for the nonmoving party.'" Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994), certiorari denied 513 U.S. 814, 115 S.Ct. 68, 130 L.Ed.2d 24 (1994), quoting Anderson, 477 U.S. at 248.
"Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat, 346F.3d at 522. If this showing is made, the burden then shifts to the non-moving party who must convince the Court that a triable issue does exist. Id. (citation omitted).
A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial. Furthermore, neither unsupported speculation, nor evidence that is merely colorable or not significantly probative, will suffice to defeat a motion for summary judgment; rather, if the adverse party fails to bring forth facts showing that reasonable minds could differ on a material point, then, regardless of any proof or evidentiary requirements imposed by the substantive law, summary judgment, if appropriate, shall be entered.
Id. (internal citations and quotation marks omitted).
Ineffective Assistance of Counsel.
The Sixth Amendment requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. In addition, case law requires that to satisfy this right, the assistance must be effective. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.").
In order to establish a claim for relief for ineffective assistance of counsel, Petitioner must demonstrate that counsel's performance was deficient, that is, that it fell below an objective standard of reasonableness when considered in light of the prevailing norms of practice and that such deficiency prejudiced him such that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
In reviewing claims of ineffective assistance of counsel, "[j]udicial scrutiny of counsel's performance must be highly deferential;" therefore, reviewing courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689. Furthermore, the petitioner "bears the burden of proving Strickland prejudice," and if he fails to do so "a reviewing court need not consider the performance prong." Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 (4th Cir. 1992), certiorari denied 506 U.S. 885, 113 S.Ct. 243, 121 L.Ed.2d 176 (1992) (citations omitted).
1. Diminished Capacity Defense
Petitioner contends that throughout the time that he was alleged to have sexually abused his daughters, he suffered from "sexual diseases," erectile dysfunction, a prostate infection, a kidney infection, and "a fever in the brain," all of which he was unaware of until jailed on the instant charges. [Doc. 25, at 3.] He contends that all of these ailments were discovered when he was given a medical examination at the jail, and that he was treated for them there. He claims that counsel was ...