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Harper v. State

United States District Court, Ninth Circuit

August 5, 2013

PETER WILLIAM HARPER, Petitioner,
v.
STATE OF MONTANA, Respondent.

FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

KEITH STRONG, Magistrate Judge.

On January 25, 2013, Petitioner Peter William Harper filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Harper is a state prisoner proceeding pro se. He is currently housed at a pre-release center in Butte. He raises various challenges to a sentence imposed in 1996 for drug-related offenses, as well as to revocation of the suspended portion of that sentence in 2012. Originally, he was sentenced to serve 30 years, with ten suspended. Pet. (doc. 1) at 2 ¶¶ 2-3. On revocation, he was resentenced to serve ten years with five suspended. Id. at 14 ¶ 17.

On May 20, 2013, Mr. Harper was ordered to show cause why some of his claims should not be dismissed with prejudice as procedurally barred. He responded on May 31, 2013.

I. Preliminary Screening

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires courts to examine the petition before ordering the respondent to file an answer or any other pleading. The petition must be summarily dismissed "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Id.

A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (" Nicolaus ") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). Consideration under Rule 4 "may properly encompass any exhibits attached to the petition." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases. Further, a court may take judicial notice of its own records, Rand v. Rowland, 154 F.3d 952, 961 (9th Cir. 1998) (en banc); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980), as well as other courts' records, Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011); Zolg v. Kelly ( In re Kelly ), 841 F.2d 908, 911 n.1 (9th Cir. 1988). "[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Id .; see also 28 U.S.C. § 2243.

II. Background

Mr. Harper's allegations are sometimes confusing. Confusion is not diminished by the fact that Mr. Harper refused to follow the ordinary course of proceedings in state court. The Court has consulted the electronic records of the Montana Supreme Court, as well as reviewing Mr. Harper's previous and current submissions to this Court, to make sense of his claims and to fulfill its duty to avoid unnecessarily burdening the respondent. All citations to documents filed in or by the Montana Supreme Court may be viewed at http://supremecourtdocket.mt.gov (accessed June 3, 2013). See Trigueros, 658 F.3d at 987.

Mr. Harper was arrested in the summer of 2011. The State filed a petition to revoke the suspended portion of his 1996 sentence in Case No. DC-25-1995-167. Pet. at 5. It also filed one or more new charges against him, including a misdemeanor charge of resisting arrest in Case No. CDC 2011-204.[1] Judge McCarter presided over the revocation petition. Judge Seeley presided over the new case.

Mr. Harper was represented by counsel in both the revocation proceedings and on the new charges. See, e.g., Resp. to Order (doc. 4) at 5; Resp. to Habeas Pet. at 2, Harper v. State, No. OP 12-0107 (Mont. filed Apr. 2, 2012). In the fall of 2011, however, he filed a pro se petition for writ of habeas corpus in Montana district court. It was assigned Case No. ADV-2011-956. Mr. Harper challenged the legality of his 1996 sentence, sought access to the law library at the detention center, and alleged a lack of dental care. The Montana district court re-characterized his first claim as a claim for postconviction relief and denied it. Order at 1-2, Harper v. State, No. ADV-2011-956 (Mont. 1st Jud. Dist. Dec. 20, 2011) ( filed as Pet. Ex. 1, Harper v. State, No. CV 12-9-H-DLC-RKS (D. Mont. Jan. 25, 2012)). The court ordered the State to respond to the claims regarding the law library and dental care.

On January 25, 2012, Mr. Harper filed a habeas petition pro se in this Court, alleging the same claims he filed in his habeas petition in the Montana district court and adding a claim that he was not properly served or given a show-cause hearing, pursuant to Mont. Code Ann. § 46-18-203(1), in the then-pending revocation proceeding. Pet. at 2-15, Harper v. State, No. CV 12-9-H-DWM-RKS (D. Mont. filed Jan. 25, 2012). The federal petition was recommended for dismissal on January 31, 2012. Findings and Recommendation (doc. 4) at 5, Harper, No. CV 12-9-H-DWM-RKS (D. Mont. Jan. 31, 2012).

Before the trial court decided the remaining two claims in the state habeas petition, Mr. Harper, acting pro se, filed a notice of appeal of the trial court's denial of the first claim. See Notice of Appeal at 1-2, Harper v. State, No. DA 12-0106 (Mont. filed Feb. 10, 2012). On the same day, Mr. Harper also filed a pro se original petition for writ of habeas corpus in the Montana Supreme Court. He alleged the same first two claims he had filed in the trial court and added the claim regarding lack of notice and a preliminary hearing in the revocation proceeding. Pet. at 2-4, Harper v. State, No. OP 12-0107 (Mont. filed Feb. 10, 2012).

Meanwhile, back in the trial court, Mr. Harper sought a jury trial on the new charges. Trial commenced on February 27 or 28, 2012. A dispute arose between Mr. Harper and his counsel, a Ms. Quinn, regarding what evidence should be presented to the jury. Although it is not clear exactly what happened, ultimately Mr. Harper pled guilty to resisting arrest. He was sentenced to time served, which was 228 days in jail. See Pet. Ex. Br. Copy at 2 (doc. 1-1 at 2).[2]

On February 29, 2012, Mr. Harper's first habeas petition in this Court was denied in part and dismissed in part. Order (doc. 5) at 4-5, Harper, No. CV 12-9-H-DWM (D. Mont. Feb. 29, 2012). Mr. Harper did not appeal.

On April 3, 2012, Mr. Harper, again acting pro se in the trial court, filed a notice of appeal of a decision entered on or about February 27, 2012, in Case No. ADV 2011-204 - that is, the resisting arrest case. Notice of Appeal at 1, ...


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