Submitted: October 16, 2018
from United States District Court for the District of South
Dakota - Sioux Falls
SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
19, 2012, a jury found Robert Ford guilty of kidnapping but
acquitted him on the charge of sexual abuse of an
incapacitated person. The district court then sentenced
Ford to 36 months' imprisonment. Ford appealed that
conviction, and we affirmed. See United States v.
Ford, 726 F.3d 1028, 1029 (8th Cir. 2013). Ford then
moved to vacate, set aside, or correct his sentence in the
district court. See 28 U.S.C. § 2255. Ford
claimed ineffective assistance of counsel based on his
counsel's alleged failure to impeach his accuser's
credibility. The district court denied Ford's motion
without holding an evidentiary hearing.
now appeals that denial, arguing that the district court
erred in denying his § 2255 motion and declining to hold
an evidentiary hearing. For the reasons stated below, we
December 2011, Ford was charged with sexually assaulting and
kidnapping Christina Weston. Weston claimed Ford assaulted
her while she was sleeping and then confined her in her
bedroom to prevent her from reporting the assault.
court appointed Stacy Kooistra as Ford's counsel.
Kooistra represented Ford through the end of his jury trial.
In preparation for trial, Kooistra sought and secured a
court-appointed investigator, Tim Mulloy, and two
court-appointed medical experts. Kooistra also successfully
subpoenaed phone records to assist in establishing a timeline
for relevant events.
trial, the government called Eric Sherman and Michelle Red
Earth as witnesses. Sherman and Red Earth had been at
Weston's house drinking with her and Ford the night
before the alleged assault. Both also slept at Weston's
house that night.
testified that he and Red Earth arose around 11 or 11:30 a.m.
on the morning of the alleged assault. About 15 or 20 minutes
after waking, Sherman heard noise coming from Weston's
bedroom. He went to investigate, but Ford stepped out of the
room just as Sherman approached and closed the door behind
him. Ford told Sherman that Weston was "having a fit, an
attack" and that he had "better go check on
her." Trial Tr. at 41, United States v. Ford,
No. 4:11-cr-40116-KES-1 (D.S.D. October 25, 2012), ECF No.
87. Sherman described Ford as upset. When Sherman entered the
room, he found Weston on the floor "sobbing," with
red marks on her arms. Id. When asked what was
wrong, Weston told Sherman "that f***ing Bob" and
pointed towards the door. Id. at 42.
Earth testified that she got up between 8 and 9 a.m. to go
buy breakfast supplies and then returned to Weston's
house. She testified to hearing a cry, "something . . .
horrible. . . . like a shattered soul" coming from
Weston's bedroom sometime after returning. Id.
at 56. Red Earth then found Weston on her bedroom floor
"in a heap, crying, trembling, broken."
Id. at 56-57. Weston told Red Earth that Ford had
done "wrong." Id. at 57. Red Earth
testified Weston had marks on her arms and legs, which had
not been present the night before.
also testified. Weston explained that she and Ford had once
dated, but they had stopped in 2008. Ford lost his home in
the spring of 2011, and Weston allowed him to live in her
basement while he searched for new accommodations; however,
they did not rekindle their relationship during this time.
Just as Sherman and Red Earth had, Weston described the
evening preceding the assault as involving heavy alcohol
consumption. At trial, she testified to awakening to pain in
her genital area between 7 and 9 a.m. the next morning and to
seeing Ford "scrambling to get [her] bottoms up and
backing away." Id. at 79. Weston claimed that
she started screaming and tried to leave the room, but Ford
blocked her by standing in front of the door and putting his
leg up. She claimed that he also took her cell phone when he
left. She then testified she was unable to leave the room
until Sherman arrived. Weston also identified photos of the
marks on her arms and legs; she said they were bruises that
Kooistra cross-examined Weston, he highlighted
inconsistencies between her testimony and that of the other
witnesses. Weston alleged the assault and confinement
occurred sometime between 7 and 9 a.m. In contrast,
Sherman's testimony suggested a later time frame.
Kooistra also highlighted inconsistencies in Weston's own
testimony. Although Weston initially stated she saw no clock
in her room, she later testified to seeing a clock. She also
initially stated she awakened several times during the night
preceding the alleged assault. But she later testified to
being so incapacitated by alcohol and Ambien that she did not
wake up when Ford had sex with her. Kooistra also exposed
inconsistencies in her testimony about the amount of beer she
consumed that night and the nature of Ford's sexual acts.
conclude its case, the government called a forensic
scientist, who testified to the presence of Ford's sperm
in Weston's genital area, and a physician's
assistant, who testified to the freshness of the bruising on
Weston's arms and legs. Finally, the government called
the FBI agent who had interviewed Weston and Ford following
Weston's allegations. The agent testified to his
conversations with the victim and suspect.
the close of the government's case, Kooistra initiated
Ford's defense by calling two expert witnesses: Drs. Eric
Kutscher and Elizabeth Dimitrievich. Dr. Kutscher testified
as an expert in pharmacology. His testimony cast doubt on
Weston's claim that she had been incapacitated during her
sexual encounter with Ford by the pills and alcohol consumed
the evening prior; Dr. Kutscher concluded Weston would have
become more sober by dawn. Dr. Dimitrievich testified as an
expect in gynecology. Her testimony called into question
Weston's description of Ford's sexual acts. Dr.
Dimitrievich concluded the condition of Weston's genital
area was inconsistent with the type of acts Weston claimed
Ford had perpetrated.
Kooistra called Ford to testify on his own behalf. Ford
averred that he and Weston had consensual sex around 10:30
a.m. of the morning in question. He testified that after
their encounter, they chatted and eventually discussed his
upcoming testimony against her in a tribal assault case; Ford
had been scheduled to testify against Weston for assaulting
him on a prior occasion. Ford had previously obtained
permission from the court to ask questions related to the
assault charges against Weston. Ford claimed that, after they
discussed his upcoming testimony that morning, Weston began
screaming at him. Ford alleged that he called Weston's
mother after Weston began asking for her. Ford denied
confining Weston to her bedroom, bruising her, or taking her
jury returned a verdict of not guilty on the charge of sexual
assault of an incapacitated person and a verdict of guilty on
the charge of kidnapping. The district court then sentenced
Ford to 36 months' imprisonment, a downward variance from
the Guidelines range of 121 to 151 months. Ford appealed his
sentence, arguing that he could not be convicted of
kidnapping since he had been acquitted of sexual assault. He
also contested the district court's jury instructions, as
well as its denial of his motions for judgment of acquittal
and for a new trial. We affirmed Ford's sentence.
Ford, 726 F.3d at 1029.
October 2015, Ford filed for relief under 18 U.S.C. §
2255. Ford claimed ineffective assistance of counsel based on
Kooistra's alleged failure to impeach Weston's
credibility. The district court denied Ford's motion
without holding an evidentiary hearing. Ford now appeals that
denial, arguing that the district ...