United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
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].
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
[Id. at 81, 83-88; CR Doc. 70 at 215-17].
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].
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].
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].
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. [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].
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
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.].
2, 2009, the Petitioner filed a motion to suppress his
confession. [CR Doc. 14]. The District Court, with the
Honorable Lacy H. Thornburg presiding,  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.].
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].
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.
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].
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].
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].
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].
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].
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
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.].
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].
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.].
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].
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].
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].
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).
Motion for New Trial
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.
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. 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].
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].
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. 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].
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.].
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.].
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 ...