CAROLYN S. OSTBY, Magistrate Judge.
On June 13, 2012, Petitioner John Brandon Lacey filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Lacey is a state prisoner proceeding pro se.
On July 20, 2012, Respondent ("the State") was ordered to file an Answer. It complied on October 5, 2012.
On November 15, 2012, based on the parties' written consent, Consents (doc. 18-1) at 1-2, the case was reassigned to the undersigned for all further proceedings, including entry of judgment.
The State asserts that Lacey's second claim for relief, alleging both prosecutorial misconduct and ineffective assistance of counsel, was not sufficiently exhausted in state court and so is procedurally defaulted. The State does not assert a procedural defense to Lacey's first claim, which alleges a violation of his federal right to a speedy trial.
Having reviewed the parties' arguments and the applicable authorities, the Court will deny the petition for the reasons set forth below.
On April 7, 1999, Lacey was charged with two counts of sexual intercourse without consent, violations of Mont. Code Ann. § 45-5-503 (1995), and an arrest warrant was issued. The conduct was alleged to have occurred in the spring of 1995 and the summer of 1996. It involved one victim, J.G., who was at least 16 years old, the age of consent in Montana, on both occasions.
On November 8, 2007,  Lacey was arrested in Arizona. After his arrest, Lacey moved to dismiss the charges for violation of his right to a speedy trial. Following a hearing on August 25, 2008, the trial court denied the motion. Findings (doc. 12-3) at 1, 16. Lacey was convicted on both counts at trial. He appealed. The Montana Supreme Court affirmed the trial court's denial of the motion to dismiss but remanded the case for a new trial due to an error in the admission of other-acts evidence. State v. Lacey, 224 P.3d 1247, 1254 ¶ 26, 1255 ¶ 42 (Mont. 2010) (" Lacey I ").
After Lacey was again convicted on both counts in the second trial, the trial court dismissed Count 1 because the State changed its theory at trial. It had charged Lacey with using force, but it did not introduce evidence showing force. The trial court affirmed the verdict on Count 2, in which the State had both alleged and introduced evidence that J.G. was asleep when Lacey penetrated him. Order re: New Trial (doc. 12-14) at 14 ¶ 2.
Lacey was sentenced on February 9, 2011, to serve forty years in prison, with twenty years suspended. He must complete two phases of the sexual offender treatment program at the prison and serve at least five years before becoming eligible for parole. Sentencing Tr. (doc. 12-15) at 26:1-9, 29:6-22; Mont. Code Ann. § 46-23-201(3).
Lacey again appealed, arguing that the prosecutor commented he was guilty and that trial counsel were ineffective for failing to object. The Montana Supreme Court rejected his arguments and affirmed his conviction on March 6, 2012. State v. Lacey, 272 P.3d 1288, 1291-93 ¶¶ 16-28 (Mont. 2012) (" Lacey II ").
Lacey's conviction became final on June 4, 2012. He timely filed his federal habeas petition on June 13, 2012. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, __ U.S. __, 132 S.Ct. 641, 653-54 (2012).
A. Speedy Trial
The Sixth Amendment right to a speedy trial is binding on the States. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The time between Lacey's arrest in the fall of 2007 and the commencement of his first trial in 2008, a period of eleven months to a year, was reasonable in view of the fact that the "ordinary procedures for criminal prosecution are designed to move at a deliberate pace." United States v. Ewell, 383 U.S. 116, 120 (1966), quoted in Barker v. Wingo, 407 U.S. 514, 521 n.15 (1972). But Lacey asserts he was deprived of a speedy trial because more than eight and a half years - 3, 143 days - passed between the filing of the charges against him on April 7, 1999, and his arrest on November 8, 2007. Lacey asserts that he was unaware of the charges and did not conceal his whereabouts. He also claims that the State of Montana did not diligently attempt to locate him to bring him to trial. Pet. (doc. 1) at 4 ¶ 15A.
1. State Courts' Application of Federal Law: § 2254(d)(1)
The Montana Supreme Court considered the merits of Lacey's speedy trial claim, Lacey I, 224 P.3d at 1251-54 ¶¶ 13-26, and Lacey fairly presented that claim as a federal one, e.g., Appellant Br. at 14, Lacey I (doc. 12-4 at 20); see also Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008); cf. Dye v. Hofbauer, 546 U.S. 1, 3-4 (2005) (per curiam); Smith v. Digmon, 434 U.S. 332, 333-34 (1978) (per curiam).
If the Montana Supreme Court applied federal law, Lacey must show its adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Federal habeas relief is not available unless the state court's decision is "more than incorrect or erroneous, " that is, "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). And, even if the state court does not speak to a federal claim at all, there is a strong but rebuttable presumption that it adjudicated a fairly presented federal claim on its merits. Johnson v. Williams, __ U.S. __, 133 S.Ct. 1088, 1096 (2013).
The Montana Supreme Court's opinion is not entirely clear on the application of federal law. Although the supreme court's opinion in Lacey I references the Sixth and Fourteenth Amendments to the United States Constitution and cites Barker v. Wingo, supra , the court also gives an "indication, " ( see Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 784-85 (2011)), that it did not apply federal law. In a footnote, the court said:
In Doggett v. U.S., 505 U.S. 647 (1992), the United States Supreme Court spelled out a similar four-factor speedy trial test. However, in resolving the case before us here, while we refer to federal court precedent, our decision today is based on the right to a speedy trial grounded in the Montana Constitution.
Lacey I, 224 P.3d at 1252 n.1 (parallel citations omitted).
This indication is corroborated by the independent nature of speedy trial analysis under Montana state law. The State asserts that the Montana Supreme Court "relied upon the Montana Constitution and Montana case law to provide even more heightened scrutiny to its analysis, " Mem. in Supp. of Answer (doc. 13) at 11, but the Montana Supreme Court did not expressly so hold. In neither Lacey I nor in the controlling state speedy-trial case, State v. Ariegwe, 167 P.3d 815 (Mont. 2007), has the Montana Supreme Court said that the right to a speedy trial under Montana law gives greater protection to the accused or logically subsumes federal law. Although state law presumes prejudice sufficient to trigger a speedy trial analysis accrues at 200 days, Ariegwe, 167 P.3d at 831 ¶ 41, rather than "as [the delay] approaches one year, " Doggett, 505 U.S. at 652 n.1, this fact alone does not necessarily mean that application of binding Montana precedents will implement equivalent or greater protection of the right to a speedy trial than application of binding federal precedents.
By way of contrast, Montana law clearly affords greater protection against double jeopardy than does federal law. Compare, e.g., Missouri v. Hunter, 459 U.S. 359, 368-69 (1983) (holding that federal double jeopardy law permits, where authorized by legislature, cumulative punishments in single prosecution), with State v. Guillaume, 975 P.3d 312, 315-16 ¶¶ 11-16 (Mont. 1999) (prohibiting cumulative punishments in single prosecution based on Montana Constitution's prohibition against double jeopardy); compare also Mont. Code Ann. § 46-11-503 to -505 (2011) (prohibiting prosecution in Montana state court after prosecution in another jurisdiction), with United States v. Lara, 541 U.S. 193, 210 (2004), Heath v. Alabama, 474 U.S. 82, 88 (1985) (holding that successive prosecutions by separate sovereigns do not violate federal Double Jeopardy Clause). Thus, where the Montana law of double jeopardy is not violated, neither is federal law.
Where the right to speedy trial is concerned, a federal court cannot presume a Montana Supreme Court opinion that indicates it relies on state rather than federal law nonetheless encompasses a federal analysis. See Williams, 133 S.Ct. at 1096 (rejecting proposition that federal court should always assume a silent state court opinion adjudicates a federal claim by asking "what if, for example, in at least some circumstances the state standard is less protective?... In such circumstances, the presumption that the federal claim was adjudicated on the merits may be rebutted").
The "independence" of speedy trial analysis under state law, see Ariegwe, 167 P.3d at 829 ¶ 35, combined with the Montana Supreme Court's footnote and reliance on state law in Lacey I, indicate that the Montana Supreme Court did not apply federal law to Lacey's speedy trial claim. Compare, e.g., Brown v. Bobby, 656 F.3d 325, 329 (6th Cir. 2011) (concluding that Ohio court's reference to federal speedy trial right's applicability to States and to state cases relying on federal law showed that it considered its state law an implementation of federal law). This Court must conclude, therefore, that Section 2254(d)(1) does not apply.
2. State Courts' Factual Findings: § 2254(d)(2) and (e)(1)
Although 28 U.S.C. § 2254(d)(1) does not apply, § 2254(d)(2) refers only to the state court's adjudication of the claim on the merits, not to its application of federal law. The Montana Supreme Court undoubtedly adjudicated the claim. Consequently, § 2254(d)(2) applies. Federal habeas relief is precluded unless the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." In addition, § 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" unless the petitioner rebuts it by "clear and convincing evidence."
In Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), the court explained that § 2254(d)(2):
applies most readily to situations where petitioner challenges the state court's findings based entirely on the state record. Such a challenge may be based on the claim that the finding is unsupported by sufficient evidence, that the process employed by the state court is defective, or that no finding was made by the state court at all.
Id. at 999 (internal citations omitted). If the state court's findings withstand this "intrinsic review, " then they "are dressed in a presumption of correctness" under § 2254(e)(1), "which then helps steel them against any challenge based on extrinsic evidence." Id. at 1000.
Here, there is no challenge based on extrinsic evidence. Lacey seeks to contradict the trial court's finding that he knew of the charges and concealed his whereabouts to avoid trial. Lacey also refers to a finding the trial court did not make, but the Montana Supreme Court did: "the State could have been more diligent." Lacey I, 224 P.3d at 1252 ¶ 19. Lacey challenges the extent of this finding, ...