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Payne v. Frink

United States District Court, D. Montana

April 23, 2013

TYRONE EVERETT PAYNE, Petitioner,
v.
WARDEN MARTIN FRINK; [1] ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents

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Tyrone Everett Payne, Petitioner, Pro se, Shelby, MT.

For Attorney General of the State of Montana, Respondent: Jonathan M. Krauss, LEAD ATTORNEY, MONTANA DEPARTMENT OF JUSTICE, Helena, MT.

OPINION

Jeremiah C. Lynch, United States Magistrate Judge.

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FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This petition for writ of habeas corpus under 28 U.S.C. § 2254 is before the Court on remand from the Ninth Circuit Court of Appeals. Payne is a state prisoner proceeding pro se.

The Court of Appeals directed this Court to consider Payne's claim under the Confrontation Clause and to determine whether another claim is procedurally barred by an adequate and independent state rule. Those are the issues addressed here.

I. Background

Payne was convicted by a jury of failing to register as a sex offender, a violation of Mont. Code Ann. § 46-23-507 (2007). On February 10, 2010, he was designated a persistent felony offender and sentenced to serve ten years in prison, with five suspended. Pet. (doc. 1) at 2-3 ¶ ¶ 1-6; Judgment at 1-2 (doc. 1-1 at 77-78).

Payne appealed, arguing that the State violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), when it permitted an officer to testify that she was told Payne was not in compliance with his registration requirements in Connecticut. Payne also claimed the evidence was not sufficient to support his conviction. The Montana Supreme Court rejected his arguments and affirmed his conviction. State v. Payne, 2011 MT 35, ¶ 44, 359 Mont. 270, 248 P.3d 842, 849 (Mont. 2011). On March 22, 2011, the court denied rehearing. Order, State v. Payne, No. DA 10-0178 (Mont. Mar. 22, 2011) (doc. 46-7). Payne's conviction became final 90 days later, on June 20, 2011. Gonzalez v. Thaler, U.S., 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012); U.S. S.Ct. R. 13(1), (3).

Payne filed his habeas petition in this Court before his conviction was final, on March 7, 2011. Pet. at 13, Pet'r Decl. ¶ C; 28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).

II. Claims

Payne contends, first, that his conviction was obtained in violation of the Confrontation Clause, Pet. (doc. 1) at 5-8, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and second, that the evidence was not sufficient to support his conviction, id. at 9-11, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a post-petition filing, he also alleged that his conviction was obtained in violation of Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). Although Payne set forth the Lambert claim to support his second claim regarding sufficiency of the evidence, it is appropriate and, given the Court's recommendation on the Jackson claim, will not prejudice Payne to construe it as a freestanding claim for relief. See, e.g., Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008).

Thus, although the petition raises only two claims, three are addressed here: a Crawford claim, a Lambert claim, and a Jackson claim.

III. Analysis

A. Confrontation Clause

The Montana Supreme Court decided this claim on the merits.

1. The Montana Supreme Court's Decision

Before trial, Payne moved in limine to exclude a document from Connecticut purportedly signed by Payne and concerned in some way with his registration as a sex offender in Connecticut. (Because the

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document was excluded, this Court does not know what it was.) The State originally objected, then withdrew its objection. The trial court granted the defense motion in limine and excluded the document. Trial Tr. (doc. 11-1) at 123:7-18.

At trial, instead of relying on the document, the State asked Detective Merifield whether Payne was in compliance with Connecticut's registration requirements. The defense objected, stating that the question " goes to the motion in limine." The trial court heard off-the-record argument at sidebar. Then the detective was allowed to answer. She said that " when [she] checked with the Connecticut registration authorities," she was told that Payne was not in compliance with his registration duties in Connecticut. Trial Tr. at 145:23-146:14.

The Montana Supreme Court found Merifield's testimony was based on what an unidentified declarant in Connecticut told her over the phone while she was investigating Payne's case. " [T]he statement of the Connecticut official during the inquiry . . . was made knowingly to a government official for the purpose of creating evidence, and then presented at trial for the truth of the matter asserted." Payne, 248 P.3d at 847, ¶ 30. The Montana Supreme Court held the admission of this evidence violated the Confrontation Clause. Id. at 848, ¶ 31. The State concedes that Merifield's testimony violated Payne's Sixth Amendment right to confrontation. Answer (doc. 46) at 16-17 ¶ 23.

2. Prejudice

a. The Test

Although it found a federal constitutional violation, the Montana Supreme Court denied relief because it found the error did not prejudice Payne. In doing so, it applied its own harmless-error test. See Payne, 248 P.3d at 848-49, ¶ ¶ 37-40 (applying State v. Van Kirk, 2001 MT 184, ¶ 47, 306 Mont. 215, 32 P.3d 735, 745 (Mont. 2001)). As applied here, that test does not appear to meet the standards set by " clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). See Delaware v. Van Arsdall, 475 U.S. 673, 681-84, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). But a federal habeas court " need not conduct an analysis . . . of whether the state court's harmlessness determination on direct review -- which is governed by the 'harmless beyond a reasonable doubt' test set forth in Chapman -- was contrary to or an unreasonable application of clearly established federal law." Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (internal citation omitted) (discussing 28 U.S.C. § 2254(d)(1) and Fry v. Pliler, 551 U.S. 112, 119-20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)). That is, when prejudice is the only question, the standards of § 2254(d) need not be met.

The reason for omitting that step is that the " objectively unreasonable" standard of § 2254(d), Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), is, in a sense, " built in" to the traditional prejudice test in federal habeas proceedings. A federal habeas court " must assess the prejudicial impact of constitutional error in a state-court criminal trial under the 'substantial and injurious effect' standard . . . whether or not the state appellate court recognized the error and reviewed it for harmlessness." Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). If the constitutional error had a " substantial and injurious effect or influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (adopting standard of Kotteakos

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v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)), then a state court's finding the same error harmless beyond a reasonable doubt must have been objectively unreasonable, 28 U.S.C. § 2254(d). On the other hand, if the Brecht standard is not met, then the petitioner is not entitled to federal habeas relief regardless of the state court's harmless error analysis. Fry, 551 U.S. at 121-22. Thus, the Brecht test " subsumes" the reasonableness inquiry under 28 U.S.C. § 2254(d). Fry, 551 U.S. at 120.

In sum, therefore, when the state court finds a federal constitutional violation and the State does not challenge its finding, the federal habeas court simply determines whether the constitutional error had a substantial and injurious effect on the verdict. [2] " [W]hen a court is 'in virtual equipoise as to the harmlessness of the error' under the Brecht standard, the court should 'treat the error . . . as if it affected the verdict[.]'" Thus, the State has the burden of persuasion. Fry, 551 U.S. at 121 n.3 (quoting O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).

The State asserts:

Payne's sole defense was to rely on his ignorance of or mistaken understanding of the law, and that nobody told him he had to register. Whether Payne was in compliance or not in Connecticut, as was erroneously introduced through hearsay, the jury clearly had before it sufficient evidence to find beyond a reasonable doubt that he was not in compliance when he moved to Montana and, therefore, guilty of the offense charged.

Answer at 20 ¶ 24d.

The State is correct. The jury was presented with sufficient evidence, even without the evidence admitted in violation of Crawford, to convict Payne under the instructions it was given. Officer Franke testified that he told Payne he must register. Trial Tr. at 134:1-3, 142:7-16. Nothing in the record of the trial makes it impossible, irrational, or illogical for a reasonable juror to believe Franke said what he said he believed he said. But whether

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there was sufficient evidence to support the State's case without the Crawford violation is not the question.

The question is whether the Crawford violation had a substantial and injurious effect on the defense. In Brecht itself, the Court did not ask whether, after excising the evidence admitted in violation of the Constitution, sufficient evidence to support a guilty verdict remained. It considered all the evidence to determine whether the inadmissible evidence would have been a material factor in persuading a reasonable juror to reject the defense theory, relinquish reasonable doubt, and find the defendant guilty. The Brecht Court said:

At trial, petitioner admitted shooting Hartman, but claimed it was an accident. The principal question before the jury, therefore, was whether the State met its burden in proving beyond a reasonable doubt that the shooting was intentional. Our inquiry here is whether, in light of the record as a whole, the State's improper use for impeachment purposes of petitioner's post-Miranda silence " had substantial and injurious effect or influence in determining the jury's verdict." We think it clear that it did not.
The State's references to petitioner's post-Miranda silence were infrequent, comprising less than two pages of the 900-page trial transcript in this case. And in view of the State's extensive and permissible references to petitioner's pre-Miranda silence-i.e., his failure to mention anything about the shooting being an accident to the officer who found him in the ditch, the man who gave him a ride to Winona, or the officers who eventually arrested him-its references to petitioner's post-Miranda silence were, in effect, cumulative. Moreover, the State's evidence of guilt was, if not overwhelming, certainly weighty. The path of the bullet through Mr. Hartman's body was inconsistent with petitioner's testimony that the rifle had discharged as he was falling. The police officers who searched the Hartmans' home found nothing in the downstairs hallway that could have caused petitioner to trip. The rifle was found outside the house (where Hartman was shot), not inside where petitioner claimed it had accidently fired, and there was a live round rammed in the gun's chamber, suggesting that petitioner had tried to fire a second shot. Finally, other circumstantial evidence, including the motive proffered by the State, also pointed to petitioner's guilt.
In light of the foregoing, we conclude that the Doyle error that occurred at petitioner's trial did not " substantial[ly] . . . influence" the jury's verdict.

507 U.S. at 638-39 (internal cross-reference omitted). The evidence presented at Payne's trial is reviewed with this example in mind.

b. Application

Payne came to Montana in December 2008. He became known to law enforcement in Montana on March 16, 2009, when Officers Slater and Franke stopped him for a traffic violation. Slater dealt principally with Payne's passenger, though he also spoke with Payne to some extent. Franke dealt principally with Payne.

Trial was completed in one day. The evidence consisted of 24 pages of testimony, interlaced with the usual logistical discussions about breaks and so forth; a 50-minute videotape of the traffic stop; and a job application completed by Payne. Only Franke and a Detective Merifield testified for the State. Payne called his passenger as the sole witness in his own case-in-chief. There was no rebuttal. The jury was instructed

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that Montana law required the State to prove the following: (1) that Payne was required to register as an offender under Montana law; (2) that he established a residence or was a transient in Missoula County for longer than three business days; (3) that he failed to register; and (4) that he " acted knowingly." Trial Tr. at 156:20-157:5; Mont. Code Ann. § § 46-23-502(9)(b), (13)(b), -504(1)(c), (d) (2007). The jury was not expressly instructed that the State had to prove Payne knew of the duty to register. Nor was it instructed the State did not have to prove that.

The parties stipulated that Payne was required to register in Connecticut [3] and in Montana. Trial Tr. at 126:13-21. Although the duty to register in Montana does not exist unless the residency requirement is met, the stipulation was treated as establishing the first but not the second element of the offense. Id. at 158:12-16. The residency element was established by Payne's representation on the job application that he had worked in Lolo from December 2008 through January 2009. Id. at 158:17-159:6. Detective Merifield ...


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