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Bird v. United States

United States District Court, W.D. North Carolina, Asheville Division

August 13, 2019

JOHN DOUGLAS BIRD, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Petitioner's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 [CV Doc. 1]; the Petitioner's Motion for Leave to Conduct Discovery [CV Doc. 8]; and the Government's Motion to Dismiss [CV Doc. 13].

         I. BACKGROUND

         A. The Shooting

         On the morning of Christmas Day, December 25, 2008, the victim, Meroney George “Garce” Shell (“Shell”), was walking in the woods at the end of Bunches Creek Road within the boundaries of the Eastern Band of Cherokee Indians reservation. [CR Doc. 69 at 76-79]. Shell was searching for hornet nests to harvest and carve into masks to sell. [Id. at 78]. He heard someone behind him, and turned and saw the Petitioner John Douglas Bird, Jr. standing near a gray truck and holding a rifle at his side. [Id. at 79-80, 101]. Shell immediately recognized the Petitioner because they once had been co-workers. [Id. at 71-72, 80]. The Petitioner told Shell that he was going to shoot him. [Id. at 80-81]. Shell responded by cursing the Petitioner, then telling him, “You might as well kill me. You've got the gun.” [Id.]. The Petitioner then began shooting Shell, hitting him multiple times in the face and arm.[1] [Id. at 81, 83-88; CR Doc. 70 at 215-17].

         Shell had consumed an excessive amount of alcohol prior to this incident. Whether it was attributable to having been shot in the head or to his alcohol consumption (or both), Shell experienced significant gaps in his memory. [CR Doc. 69 at 74-75]. Following the shooting, Shell next recalled driving back down Bunches Creek Road and wiping blood off his face; he could not recall how he got to his car or how long it had been since he had been shot. [Id. at 81]. When Shell attempted to pull his car over alongside the creek, he wrecked and fell out of his car, tumbling down an embankment and falling into the icy water. [Id. at 82]. He crawled back up the bank to the road where neighbors found him. One of those neighbors, Theresa McCoy (“McCoy”), rendered him some assistance and called the police. [Id. at 82-83, 121-22]. When McCoy asked Shell who had injured him, he was able to tell her, “John Bird.” [Id. at 83, 124, 127]. McCoy recalled having seen Shell's car earlier going up the road toward the woods at approximately 11:00 or 11:15 a.m., and she estimated that Shell's wreck occurred between 12 noon and 12:15 p.m. [Id. at 119-22].

         Shell was transported to Mission Hospital in Asheville, North Carolina. There, FBI Special Agent Craig Sidwell (“SA Sidwell”) was able to speak briefly to Shell, although his injuries prevented a full interview at that time. Shell identified the shooter as “Little Johnny Bird.” [CR Doc. 69 at 107]. SA Sidwell passed that information on to Detective Gene Owl of the Cherokee Indian Police Department. [Id. at 141]. Detective Owl then began to backtrack Shell's whereabouts prior to the shooting. At approximately 7:45 p.m. on Christmas Day, Detective Owl went to the home of Chuck Taylor because he had been told that Shell had visited Taylor on Christmas Eve. [Id. at 141-42]. As Detective Owl walked up onto Taylor's porch, through the screen door he saw the Petitioner standing in the living room. [Id. at 142]. When Detective Owl and the Petitioner made eye contact, the Petitioner fled out the back door and escaped into the woods. [Id. at 142-44]. The Petitioner was not arrested until January 8, 2009, when he was found hiding in the closet of his father's home. [CR Doc. 70 at 226-29].

         B. The Petitioner's Confession

         Detective Owl interviewed the Petitioner at the Cherokee Indian Police Department on January 9, 2009. The detective advised the Petitioner of his Miranda rights, and the Petitioner indicated that he understood his rights and agreed to provide an interview. [CR Doc. 69 at 144]. As the interview began, however, the Petitioner vomited into a trash can. [Id. at 144-45]. When Detective Owl asked him what was wrong, the Petitioner said that his stomach was “messed up” and had been like that for “a couple years, ” and that he had to drink “a couple beers each morning to make his stomach feel better.” [Id. at 145]. Although Detective Owl assumed that the Petitioner was experiencing symptoms of alcohol withdrawal, this assumption was never medically confirmed. [Id. at 176]. The Petitioner thereafter provided an approximately 45-minute-long interview without further incident, during which he denied any knowledge of the shooting and provided an account of his whereabouts on Christmas Eve and Christmas Day. [Id. at 145-55].

         The following day, Detective Owl brought the Petitioner to the office of North Carolina State Bureau of Investigation (“SBI”) Special Agent Chris Smith (“SA Smith”) to conduct a second interview.[2] [CR Doc. 69 at 155-56]. When Detective Owl arrived at the Swain County Detention Center to transport the Petitioner to the SBI office, the Petitioner threw up again. [Id. at 157-58]. The Petitioner did not request medical attention or seek a delay of the interview. [Id. at 158]. Detective Owl recalled that the Petitioner vomited two additional times in the patrol car during the hour-long trip to Agent Smith's office. [Id. at 184]. Once they arrived at the SBI office, however, the Petitioner did not vomit at any time in the office or during the taking of his statement. [Id. at 185, 196]. Agent Smith again advised the Petitioner of his Miranda rights. The Petitioner indicated that he understood his rights and agreed to waive them, both orally and in writing. [Id. at 196-97]. As he was aware of the Petitioner's earlier stomach upset, Agent Smith asked the Petitioner if he felt okay and offered him some water. [Id. at 196-99]. Agent Smith concluded that there was no physical reason to reschedule, so he proceeded to interview the Petitioner. During the interview, the Petitioner confessed to shooting Shell. [Id. at 197]. Agent Smith thereafter turned the Petitioner back over to Detective Owl for a follow-up interview. [Id. at 157, 197-98].

         During this follow-up interview with Detective Owl, which lasted approximately ten to fifteen minutes, the Petitioner again confessed to shooting Shell and provided some details of the incident that he would not have otherwise known, although he claimed that he could not remember the entire event. [Id. at 159-60]. The Petitioner recalled that it occurred “somewhere in the mountains.” [Id. at 159]. He also remembered that Shell cussed him, saying, “Shoot me, bitch, ” or something similar. [Id. at 160]. The Petitioner further stated, “I didn't want to kill him. I made a mistake. I ain't no killer.” [Id. at 160-61].

         C. The Criminal Proceedings

         On April 7, 2009, the Petitioner was charged in a Bill of Indictment with attempted murder, in violation of 18 U.S.C. §§ 1113 and 1153 (Count One); assault with intent to commit murder, in violation of 18 U.S.C. §§ 113(a)(1) and 1153 (Count Two); assault with a dangerous weapon with intent to do bodily harm, in violation of 18 U.S.C. §§ 113(a)(3) and 1153 (Count Three); assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153 (Count Four); and use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count Five). [CR Doc. 3]. The Indictment alleged that all these offenses were committed by an Indian within the boundaries of the Eastern Band of Cherokee Indians reservation. [Id.].

         On June 2, 2009, the Petitioner filed a motion to suppress his confession. [CR Doc. 14]. The District Court, with the Honorable Lacy H. Thornburg presiding, [3] conducted a hearing on the motion on June 8, 2009. At the suppression hearing, SA Smith testified that Detective Owl contacted him and asked him to conduct a polygraph examination of a suspect in a shooting and that SA Smith agreed to conduct the polygraph. [CR Doc. 31 at 5]. Describing how he conducts a polygraph, SA Smith testified that he begins by reading an examinee his Miranda rights, after which he talks with the examinee, learning a little about him and why he is there. [Id. at 5-6]. SA Smith testified that he also talks with the examinee about how and why the polygraph works. [Id. at 6]. SA Smith testified that once this “pretest” is complete, they take a break while SA Smith compiles the test questions. [Id.].

         Addressing the Petitioner's polygraph, SA Smith testified that he understood that the Petitioner's stomach had been upset and that the Petitioner had vomited in Detective Owl's car on the way to the SBI. [CR Doc. 31 at 10]. SA Smith explained that ensuring an examinee's physical competency is one of his first tasks and that after advising the Petitioner of his Miranda rights, he asked the Petitioner if he felt okay and offered him some crackers and water to settle his stomach. [Id.]. When the Petitioner affirmed that he was feeling better, SA Smith began the polygraph. [Id.]. SA Smith testified that the Petitioner did not vomit during the exam and “seemed to be fine” to answer questions. [Id.]. SA Smith testified further that he explains to all examinees that a polygraph is voluntary and that Bird “never asked to stop and never gave any indication that he wanted to stop.” [Id. at 11].

         At the conclusion of the hearing, the Court denied the motion and the case proceeded immediately to trial. This trial ended in a mistrial after a day of testimony when a Government witness referenced the fact that the Petitioner had been given a polygraph examination, after the Court had granted a motion in limine excluding all references to the polygraph.

         The case was re-tried on August 3 and 4, 2009. During the trial, Shell testified that he first met the Petitioner when they worked together for the Petitioner's girlfriend's father. [CR Doc. 69 at 72]. Although Shell could not recall a fight or other dispute between him and the Petitioner, he testified that there “evidently” had been some kind of issue because the Petitioner was “the guy that shot [him].'” [Id. at 73]. Shell acknowledged that he was drinking on Christmas Eve and that he did not “have a complete memory” of Christmas Eve or Christmas Day. [Id. at 75]. Shell testified that he drove his black Ford Mustang to the Bunches Creek area of the Cherokee reservation and that he believed it was Christmas morning when he went to look for hornet nests. [Id. at 78-79]. Shell also testified that when he turned and saw the Petitioner standing with his rifle between 20 and 25 feet away from Shell, he “immediately” recognized him. [Id. at 80]. Shell testified that he had “[n]o doubt at all” that the Petitioner was the person who shot him and that he had earlier seen an older model gray truck that the Petitioner might have driven to Bunches Creek. [Id. at 98, 101]. Shell testified further that after his accident, he recalled hearing McCoy ask him repeatedly who had “[done] it” and that he responded, “John Bird.” [Id. at 83].

         The Petitioner's counsel cross-examined Shell extensively, asking him at length about his drinking habits around the time of the shooting and soliciting his testimony that he sometimes drank between a twelve-pack and a case of beer in one day and drank an average of a six-pack a day. [CR Doc. 69 at 90-91]. Shell estimated that he and two or three friends drank four cases of beer between December 22 and Christmas Eve. [Id. at 92]. Shell acknowledged on cross-examination that he thought that he and the Petitioner had gotten along well. [Id. at 89]. Shell's brother, Perry Shell, testified that he was present at the hospital when SA Sidwell asked Shell who had shot him. [CR Doc. 69 at 107]. Perry testified that his brother was difficult to understand but that Perry heard Shell tell SA Sidwell that “Little Johnny Bird” had done it. [Id. at 107].

         Theresa McCoy testified that she saw a black Mustang drive by her home on Bunches Creek a few minutes after 11:00 a.m. on Christmas morning. [CR Doc. 69 at 120]. McCoy testified that at approximately 12:15 p.m., she saw smoke in the direction of the road, as if a car were stuck with its wheels turning. [Id. at 121]. A few minutes later, Britney Welch (“Britney”), one of the women renting McCoy's brother's house next door, contacted McCoy asking her to call 911 because the driver of the car was hurt. [Id. at 122]. McCoy testified that she accompanied Britney to the crash site, where McCoy immediately recognized Shell. [Id. at 123-24]. McCoy testified that she asked Shell whether he could hear her and that after Shell nodded his head, she asked Shell what happened. [Id. at 124]. Shell responded that “[t]hey followed [him] in town” and that “John Bird” had “[done] this.” [Id. at 124]. McCoy described wrapping Shell in blankets and encouraging him to stay awake. [Id. at 124-25]. McCoy testified that Shell was able to talk and to respond when she “first got there” but that after a few minutes, he began “shutting down.” [Id. at 132-33].

         Detective Owl testified at trial that he asked SA Sidwell to interview Shell and that after he heard from SA Sidwell, he began looking for the Petitioner. [CR Doc. 69 at 140-41]. Detective Owl testified that SA Sidwell had only given him “the name of the person that had shot Mr. Shell.” [Id. at 153]. Detective Owl testified that the Petitioner fled as soon as Owl made eye contact with him on Christmas night. [Id. at 143, 169]. Detective Owl also testified that when he interviewed the Petitioner on the day after his arrest, the Petitioner stated that he had run from Owl on Christmas night because “he didn't know anything about what was going on.” [Id. at 146-47]. Detective Owl then asked the Petitioner about his relationship with Shell, and the Petitioner stated that he “heard about the wreck while he was at his grandmother's house.” [Id. at 147]. When Owl noted that he had not mentioned anything about a wreck, the Petitioner responded that he had heard that Shell had wrecked on Bunches Creek. [Id.]. Detective Owl testified that the Petitioner stated that he spent Christmas Eve with his father and Nellie Littlejohn, his father's girlfriend, and that he was at Dahne Driver's house from 8:00 or 9:00 a.m. on Christmas morning until approximately 12:30 p.m., when his grandmother picked him up to chop wood at her house. [Id. at 150-53]. The Petitioner stated that he stayed at his grandmother's house until 7:00 p.m. on Christmas night. [Id. at 153].

         Detective Owl also testified about the Petitioner's later confession, explaining that after SA Smith was finished talking with the Petitioner, following the polygraph, Detective Owl asked the Petitioner whether the Petitioner had shot Shell and the Petitioner responded, “[y]es” and that he would “man up” and admit that he made a mistake. [CR Doc. 69 at 159].

         Detective Owl testified that he first interviewed Shell two days after the Petitioner confessed and that Shell recalled that the Petitioner was “standing behind [Shell] about 20 or 25 feet” and “had a gun.” [CR Doc. 69 at 164]. Shell also recalled that “the gun was still going off as [Shell] was running to his [car].” [Id. at 165].

         On cross-examination, the Petitioner's counsel questioned Detective Owl about the adequacy of his investigation and Shell's ability to recall facts accurately, given his intoxication. [CR Doc. 69 at 172-74, 191-92]. Detective Owl acknowledged that Shell's perception might have been impaired but stated that Shell was “very adamant about who had assaulted him, and that person was John Bird.” [Id. at 173]. As Owl explained: “That part he was clear about.” [Id.].

         SA Smith testified that when he talked with the Petitioner before interviewing him, he asked the Petitioner about his upset stomach. [CR Doc. 69 at 196]. The Petitioner responded that “he had a drinking problem” and that he believed his stomach was upset from alcohol withdrawal. [Id. at 197].

         Dr. Dominique Toedt, an internal medicine physician at Cherokee Hospital, testified that there was nothing about Shell's blood clotting or injuries that would indicate how recent or how old his injuries were. [CR Doc. 70 at 214, 219-20]. Dr. Toedt testified that after several days you would see a different pattern of bruising but that blood clots fairly quickly and looks the same at one hour as it appears at 12 or 24 hours. [Id.].

         The Petitioner elected not to testify at trial, but Nellie Littlejohn, his father's former girlfriend, testified about his whereabouts on Christmas Eve and Christmas Day. [CR Doc. 70 at 238-44]. She testified that they went to Dahne Driver's house for breakfast around 9:00 a.m. but that they returned home between 11:00 and 11:30 a.m., not at 12:30 like the Petitioner claimed during his first interview. [Id. at 243]. She further testified that the Petitioner was with her and John Bird, Sr., until Myrtle Bird picked him up to cut wood around 12:45 p.m. [Id. at 243-44]. Littlejohn acknowledged that she did not go with the Petitioner to Myrtle Bird's house. [Id. at 251]. Littlejohn also testified that Myrtle Bird had a small gray sport-utility vehicle “like a Bronco or something like that.” [Id.]. Littlejohn admitted during cross-examination that the Petitioner's father told her that they would have to lie for his son and say that he was with them during the shooting (although she denied lying on the stand). [Id. at 253]. Littlejohn also conceded that she suffered from medically-induced memory problems. [Id. at 255].

         During closing arguments, the Petitioner's counsel challenged the adequacy of the investigation into Shell's shooting, noting that Detective Owl had not interviewed the witnesses who stated that the Petitioner was with them on Christmas Day or followed up on Shell's statement suggesting that there had been more than one person present when he was shot. [CR Doc. 70 at 280, 285-86]. Counsel also argued that Shell's memory was unreliable because he had been drinking heavily in the days preceding and on Christmas Day. [Id. at 284-85]. Further, counsel argued that the Petitioner's confession was unreliable because he was sick and likely to confess just to end the interview. [Id. at 289-91]. Notwithstanding these arguments, the jury convicted the Petitioner on all counts. [CR Doc. 43].

         The Court conducted a sentencing hearing on August 25, 2009. The Court imposed a sentence of 210 months' imprisonment for each of Counts One and Two, and 120 months' imprisonment for each of Counts Three, Four, and Five. Counts One through Four were ordered to be served concurrently, and Count Five (the § 924(c) violation) was ordered to be served consecutively, for a total punishment of 330 months' imprisonment. [CR Doc. 52].

         The Petitioner appealed to the Fourth Circuit on two issues: the denial of the motion to suppress his confession, and the imposition of concurrent sentences for both attempted murder and assault with the intent to commit murder. The Fourth Circuit Court of Appeals affirmed his conviction and sentence in an unpublished opinion on January 31, 2011. United States v. Bird, 409 Fed.Appx. 681 (4th Cir. 2011).

         D. The Motion for New Trial

         On May 29, 2012, the Petitioner, through counsel, filed a motion for a new trial based on newly discovered evidence. [CR Doc. 82]. In support of his motion for a new trial, the Petitioner presented to the Court the following evidence that was discovered after the trial.

         1. Deborah Caro

         On July 11, 2011, Deborah Caro (“Caro”) came to Detective Owl at the Cherokee Indian Police Department claiming that she had information concerning the shooting of Shell. During her interview with Detective Owl, Caro stated that on Christmas Eve 2008, she and her husband, Justin Denig (“Denig”), were drinking with Shell in their trailer located outside of her mother's home. She said that she passed out at her mother's house, but that Denig retrieved her and brought her back to bed in the trailer. She said that she woke up at around 6:00 a.m. and found blood in the trailer. She walked outside and observed Shell bloody and lying on the ground. She claimed that she saw a “bullet mark” on Shell's arm. She said that Denig was crying and said, “I shot him.” When she recommended that they take Shell to the hospital, Denig refused, stating “no, you need to help me put him in the car or I'm gonna kill you.” Caro told Detective Owl that she helped Denig put Shell in the car and that Denig and Shell then drove away. Caro further said that when they left, she believed that Denig was taking Shell to the hospital. Caro reported that she did not see Denig again until late in the day when he called and asked to be picked up at a place near Bunches Creek. When she picked him up, Denig was muddy and wet, and he told her that he got lost in the woods and fell in a creek. She also described a .22 caliber derringer style pistol that Denig had in his possession.[4] Caro told Detective Owl that Denig was abusive to her and that she had not reported him until now because she was afraid of him. She stated that she had been married to Denig for approximately three years, but that at the time of the interview she had taken out a protective order against him. [CR Doc. 82-6].

         The Government produced this interview to Petitioner's counsel at the Federal Defender's Office. At that time Jim Allard (“Allard”), an investigator with the Federal Defenders, also joined the investigation. On August 5, 2011, Allard briefly interviewed Caro while she was at work. Caro affirmed her previous statement to Detective Owl. [CR Doc. 85 at ¶ 3]. Three days later, on August 8, 2011, Allard attempted a more complete interview with Caro. On that date, however, Caro recanted much of her previous statement. She denied ever saying that Denig admitted to shooting Shell. At that time, Caro told Allard that Denig had been released from custody and was again residing with her at her home. [CR Doc. 85 at ¶ 7, CR Doc. 84-4].

         On May 30, 2012, Detective Owl interviewed Caro again. In this fourth interview, Caro claimed that Denig told her one time while he was drunk that he had shot Shell, but that she did not believe it and she had not seen evidence of the shooting herself. She said that she remembered a night when the three were together and were very drunk. She recalled it was a Wednesday night because she recalled watching her favorite television program.[5] Caro stated that she had passed out, and when she awoke, she saw blood on the floor. Varying significantly from her first account, Caro claimed that she saw Shell and Denig sitting together inside the trailer, drunk but apparently having a good time. She said that each of them had evidence of a bloody nose, causing her to surmise that they had been in a scuffle, but she observed no evidence of hard feelings between them. She claimed that Denig and she helped Shell out to his car because he was drunk but did not claim to see any bullet wound or any other injury other than the bloody nose. She said that Denig later went fishing, but that that was not unusual for him to do, and that he came back wet from falling in the creek. [CR Doc. 84-1].

         In this fourth interview, Caro claimed that she only learned about Shell having been shot many months later, and that she learned it from Shell, not Denig. She asserted that on another occasion months later, Denig, while drunk, said that he had shot Shell, but that she did not believe him. She said that on other occasions when she asked Denig about it when he was sober, he denied being involved. Caro denied that Denig threatened to kill her if she did not help to get Shell into the car. Instead, she implied that her mother told her to say that because her mother does not like Denig. [Id.].

         Caro again told the detective about the .22 derringer-style pistol that she and Denig owned for protection. Caro said that they kept the pistol under the mattress and that she doubted that Denig could have retrieved it from under her while she was sleeping without awakening her. She said that there had been a .22 rifle in the trailer at one time, but that someone named Justin Blake stole it in the fall of 2008 before she and Denig married. [Id.].

         Caro told Detective Owl that she had not seen anything to indicate that a shooting had taken place, and that she could only testify about what Denig said about it. [Id.]. She wrote out a hand-written statement, which reads in totality, “I am willing to ...


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