Gillman Roddy LONG Petitioner-Appellant v. UNITED STATES of America Respondent-Appellee
No. 16-2820
United States Court of Appeals, Eighth Circuit.
November 9, 2017
Rehearing and Rehearing En Banc Denied January 9, 2018
411
Submitted: October 19, 2017
Were we to address the contention, it would still fail. Although the parties seem to agree generally on the wording of the alleged admission, their minimalist sketch of the circumstances in which it was made won‘t allow us to find that it had the formality or the conclusiveness that Manning ascribes to it. Cf. Bannister v. Delo, 100 F.3d 610, 622 n.12 (8th Cir. 1996). In deciding the second appeal, moreover, we could hardly have intended to usurp the jury‘s right to determine the factual issue of the dean‘s responsibility. We did indeed say that “[t]he record establishes that although the College of Law uses a multifaceted process for receiving advice and consent from relevantly involved faculty and staff, . . . the Dean has final authority and responsibility for the exercise of the College‘s employment actions.” Wagner II, 758 F.3d at 1032 n.1. But that statement was dictum only. The extent of the dean‘s authority was never in issue in that appeal, and, as we noted in deciding the first appeal, whether the dean “had the ability to hire [Manning] absent the faculty‘s vote is a genuine issue of material fact that the jury, not the court, should decide.” Wagner I, 664 F.3d at 274-75.
Manning also maintains that she was entitled to judgment as a matter of law on her discrimination claim. But she did not raise this argument in her new-trial motion, and the district court did not decide it in denying the motion. Since Manning has appealed only the district court‘s denial of her motion, not the judgment entered upon the jury‘s verdict, we lack jurisdiction to hear this argument. See Rosillo v. Holten, 817 F.3d 595, 597 (8th Cir. 2016).
Manning challenges the district court‘s decision not to admit the dean‘s salary into evidence. Since Manning fails to tell us where the salary information and the decision as to its admissibility can be found in the record, we decline to address the issue. Her challenge to the district court‘s ruling not to admit an e-mail into evidence fares slightly better because she points us to the place in the record where the e-mail and the ruling can be found. But we do not have jurisdiction to decide this matter because Manning did not raise it in her new-trial motion, and the district court did not decide it in denying the motion. See Rosillo, 817 F.3d at 597.
A final assignment of error takes issue with the district court‘s decision not to instruct the jury on punitive damages. The issue is moot in light of the jury‘s verdict. See Landscape Props., Inc. v. Vogel, 46 F.3d 1416, 1426 (8th Cir. 1995).
Affirmed.
Sarah Boensch Collins, Assistant U.S. Attorney, Eric D. Kelderman, Assistant U.S. Attorney, Kevin Koliner, Assistant U.S. Attorney, U.S. Attorney‘s Office, Sioux Falls, SD, for Respondent-Appellee.
Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Gillman Roddy Long asks us to find his trial counsel ineffective for failing to venture into uncharted territory—territory that this court, and the Supreme Court, have still yet to traverse. We decline to do so, and we affirm the district court1 in denying his ineffective assistance of counsel claim filed under
We previously saw the parties on direct appeal, United States v. Long, 721 F.3d 920 (8th Cir. 2013), and thus highlight only the facts salient to our decision here. In July 2009, Long was indicted on two counts of aggravated sexual abuse of a child, and after a jury trial, a judgment of conviction was entered in April 2012. He was sentenced to life imprisonment.
Long takes issue with trial counsel‘s decision not to object to a statement Long made to FBI Special Agent Sherry Rice. As we summarized on direct appeal, during an interview where Agent Rice specifically informed Long that “he was not under arrest . . . and that he would be leaving at the end of the conversation,” Long cut off Agent Rice‘s questioning about sexual contact with a minor by stating: “I do not want to incriminate myself. I would like to stop talking.” Long, 721 F.3d at 921-22 (internal quotation marks omitted). Agent Rice testified about Long‘s statement on direct examination and was asked about it on cross examination and re-direct. The Government also used the statement during its closing arguments. Long‘s counsel did not object on any of these occasions.
When Long raised the admission of his statement on direct appeal, we held that it was not “clear or obvious under current law“—given that “[w]e have yet to directly address the question“—whether it was an error for “Long‘s pre-arrest, pre-Miranda” statement to come in. Id. at 924-25 (internal quotation marks omitted). We deferred decision on Long‘s ineffective assistance of counsel claims in order for the district court to hold a hearing to fully develop the record. Id. at 926-27.
Long subsequently brought his ineffective assistance of counsel claims under
The sole question before us on appeal is whether Long‘s trial counsel violated Long‘s Sixth Amendment right to the effective assistance of counsel by failing to object to the Government‘s use of his pre-arrest, pre-Miranda statement to Agent Rice.
II.
To prove that his trial counsel was ineffective, Long must show: “(1) trial counsel‘s performance was so deficient as to fall below an objective standard of the customary skill and diligence displayed by a reasonably competent attorney, and (2) trial counsel‘s deficient performance prejudiced the defense.” Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). On appeal, “[w]e review the district court‘s factual findings for clear error and the legal question whether those findings amount to ineffective assistance de novo.” Keys v. United States, 545 F.3d 644, 646 (8th Cir. 2008). We find that Long has failed to make a showing on the first prong, and therefore we do not consider the second prong of the Strickland test.
That authority, however, was not uniform. Compare id. (holding that “[p]etitioner‘s constitutional rights were violated by the use of his [pre-arrest] statement in the prosecutor‘s case in chief“), with United States v. Davenport, 929 F.2d 1169, 1174 (7th Cir. 1991) (Posner, J.) (holding that “once [defendants] started [answering questions in non-custodial setting], any statement they made—including ‘I won‘t tell you‘—was fair game” for the Government to use at trial). More importantly, as we noted on Long‘s direct appeal, the issue was not addressed by this court or the Supreme Court. Long, 721 F.3d at 924, 925 n.2.3 Thus, “[g]iven this split of authority at the time [Long] was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject it must be said counsel‘s performance fell within the wide range of professionally competent assistance.” Ragland v. United States, 756 F.3d 597, 601 (8th Cir. 2014) (internal quotation marks omitted).4
III.
We affirm the district court and find that Long‘s trial counsel was not ineffective when counsel did not challenge the admission of his pre-arrest, pre-Miranda statement to Agent Rice.