ORDER TO STATE TO FILE ANSWER and FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
On November 8, 2012, Petitioner David Gunderson filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Gunderson is serving state sentences after being convicted of burglary and attempted sexual intercourse without consent. Respondent ("the State") has complied with Orders to file documents from the state court record. See Docs. 5, 7, 9, 11.
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, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases. "[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.
Stephanie Randall arrived home at about 2:00 a.m. on July 3, 2007. While she was making herself something to eat, someone knocked at the door of her apartment. She answered. It was Gunderson. He asked to use her telephone. Randall told him she did not have a phone and shut the door. She returned to her kitchen. After she finished her snack, she went to bed.
About half an hour later, Randall woke "to somebody getting in my bed, " kissing her neck and touching her thigh. He pulled her underwear down four to six inches, but she stopped him by grabbing his hand. He also pinned her arms on the bed while she was on her back, but she struggled free. She reached up and turned on the light, which she could reach without getting out of bed. She immediately recognized the man who had earlier knocked on her door. His shirt and his shoes - new and brightly white - were on the floor, but he was wearing pants. She "was screaming pretty loudly" at him to get out. He was "telling [her] to knock it off and to calm down." Randall physically tried to throw him out, but he was concerned about retrieving his shoes and shirt. As he was attempting to pick them up, Randall grabbed his hair and started to drag him out of her apartment. She scratched his neck. Eventually she picked up his shoes and carried them to the front door. It was locked. She unlocked it, opened it, threw the shoes out, and ordered him to get out. When he was gone, Randall called 911.
Gunderson was located a few blocks away, walking with another man. Based on Randall's description, his bright white shoes, and fresh scratch marks on Gunderson's neck and face, he was stopped and asked to take a portable breath test. His blood alcohol content was 0.086. He was arrested for a parole or probation violation.
Gunderson agreed to make a statement. He said he had taken a taxi to the Crystal Lounge, a local bar, earlier that night and jumped out of the vehicle without paying. After he went into the Crystal Lounge, he got into a fight with a man who scratched him on the neck, and then he was thrown out. He claimed he had been in a different part of town at the time of the crime. Gunderson told police he did not enter Randall's apartment and stated his DNA would not be found there.
Gunderson was photographed at the detention center. He had scratches not only on his face and neck but also one on his hand and one on his shoulder or chest that had previously been obscured by his shirt. Randall said she had seen "some tattoos" and most clearly remembered one somewhere on his chest or shoulder; Gunderson had several tattoos on his chest and shoulder. Shortly after the incident, Randall was shown a photographic lineup. She "immediately, " in "seconds, " identified Gunderson as the man who attacked her. Gunderson's DNA was not found in the apartment, but it was identified in a small scraping of blood taken from Randall's hand.
Gunderson was charged with burglary, a violation of Mont. Code Ann. § 45-6-204(1) (2005) (Count 1), and attempted sexual intercourse without consent (rape), a violation of Mont. Code Ann. §§ 45-4-103 and -5-503 (Count 2). To prove burglary, the State had to prove he entered Randall's apartment with the intention of committing an offense. The State predicated rape as that offense. To prove attempted rape, the State had to prove beyond a reasonable doubt that Gunderson attempted to penetrate Randall's vulva or anus for his sexual gratification and without her consent. To prove attempt, the State had to prove that Gunderson did "any act toward the commission" of the offense "with the purpose to commit" the offense.
Trial commenced on February 19, 2008. In addition to the facts already described, a police witness testified that several businesses surrounding Randall's duplex all had accessible pay phones. The State also called an employee of the Crystal Lounge and the owners of the two taxi cab companies in Billings, each of whom had attempted but failed to corroborate Gunderson's taxi ride or the events at the bar. Gunderson testified as the last witness in the case. He maintained he had cheated a taxi driver and been in a fight just outside the Crystal Lounge, despite the lack of corroboration. He admitted his neck was not scratched at the Crystal Lounge. He explained that his hand injury came from construction work, and he re-injured it by scraping it on the concrete outside the Lounge.
Gunderson also admitted he was in Randall's apartment that night. He said he saw Randall enter her apartment alone at about 2:00 in the morning. He admitted he did not want to use the phone but "just used that for an excuse to see who it was, " because he thought he recognized "that chick" or "that broad" from the Rainbow Bar. He also said he wanted to "give her a chance to see if she recognized me." (He did not claim she did.) He said she opened the door to him but mumbled something and closed it in "[n]ot even a second." He returned half an hour later. He admitted the apartment was dark. He said he approached the door, opened the screen door, and found the inside door open about "half a foot." He entered the apartment, went into the kitchen, and then asked in a loud voice whether anyone was home. He thought he heard a noise or a voice and started down the short hallway saying "Where you at?" "Next thing I know, I'm standing in the middle of her bedroom." Someone - Gunderson was not sure at first whether it was the same person who had answered the door half an hour earlier - was lying in the bed with her back to him with a sheet "across the hip and most across the thigh going down towards the thigh." At that point, he knew it was the same person he had seen earlier. Gunderson testified:
I sat down on the edge of the bed, and I said, "Hey, what's up?" And I put my hands on her hip and kind of on her - by the kidney here and then I moved it down to her leg. I said, "Hey." And at that time I kicked my shoes off, because I just bought those shoes and my feet was sweating. My feet was hurting from walking. And I turned and I didn't want to put my shoe up on the bed. So when I turned sideways on the mattress to talk to her, she rolled over. She said, "What are you doing? What are you doing in my house?" I said, "I'm going to come over and bullshit with you."
Trial Tr. (doc. 7-3) at 399:11-21. When Randall continued yelling at him, Gunderson told her, "I thought I heard you say come in or something.'" When Randall got up, Gunderson said, "Where you going, man?" Asked what Randall's demeanor was when she got out of bed, Gunderson said, "Kind of like aggressive, " "[k]ind of like mad I was there." Id. at 399:22-400:21.
Gunderson denied that he was trying to have sex with Randall and denied returning to her apartment for that purpose. (He also denied touching her at all, even though he had just said he "put my hands on" her hip and leg.) On cross-examination, he reiterated:
I had no intentions of that. If I was going to rape her or do something sexually to her, you know, if that's where my mind, my train of thought is at, then I had all the opportunity to do it.
... I didn't try nothing sexual on her, you know. I could have - there's a lot of things a guy could have did. I didn't attempt to do nothing. I know for a fact I didn't. I sat on the edge of the bed and didn't make no attempts to do anything sexual to her.
Trial Tr. (doc. 7-3) at 446:18-447:3.
The jury found Gunderson guilty on both counts.
Gunderson had been convicted in Broadwater County in 1994 of sexual intercourse without consent, see State v. Gunderson, 936 P.2d 804 (Mont. 1997),  and released on parole just six weeks before committing the instant offense. He was designated a persistent felony offender, which elevated the maximum penalty for burglary from 20 years to 100 years. Mont. Code Ann. §§ 45-6-204(3), XX-XX-XXX(1) (2005). He had also been convicted in 1985 and in the early 1970's of similar offenses. Based on expert evaluation, the trial court designated Gunderson a Level 3 offender, that is, most likely to re-offend. Gunderson was sentenced to life in prison for attempted rape and to 100 years without parole for burglary, as a persistent felony offender. Both terms were consecutive to each other and to any revocation sentence imposed in Broadwater County. Judgment (doc. 7-6) at 1-3.
Gunderson appealed. Appellate counsel filed an Anders brief. The Montana Supreme Court granted counsel's motion to withdraw but appointed new appellate counsel, who proceeded with the appeal. After full briefing, the Montana Supreme Court affirmed Gunderson's conviction and sentence, excepting only the trial court's imposition of 51 conditions of supervision in the event Gunderson ever was released. On July 27, 2010, the case was remanded for vacation of those conditions. State v. Gunderson, 237 P.3d 74, 91 ¶¶ 110-111 (Mont. 2010).
On December 14, 2010, Gunderson filed a petition for postconviction relief in the trial court, asserting ineffective assistance of counsel at trial and on appeal. The trial court held that some of Gunderson's claims failed to meet the pleading standard for state postconviction relief and others were barred by res judicata, having been decided on direct appeal. Gunderson appealed. On February 12, 2013, the Montana Supreme Court affirmed the trial court's ruling. Order at 3 ¶¶ 5-6, Gunderson v. State, No. DA 12-0376 (Mont. Feb. 12, 2013) (unpublished) (doc. 7-37).
Gunderson timely filed his federal petition on March 8, 2013. 28 U.S.C. § 2244(d)(1)(A).
III. Gunderson's Claims
Gunderson's claims are reorganized here. All are addressed.
First, Gunderson claims the evidence was not sufficient to support his conviction. Pet. Supp. (doc. 1-1) at 4 ¶ 3.
Second, Gunderson contends that the trial court erred in failing to instruct the jury on three points: consideration of the defendant's testimony, Pet. Supp. at 1 ¶¶ 1A, D; the definitions of the mental-state elements "purposely" and "knowingly, " id. ¶ 1B; and the State's failure to collect physical evidence that could have been tested, id. ¶ 1C.
Third, Gunderson asserts that trial counsel was ineffective because he failed to raise an abandonment defense, Pet. Supp. at 2 ¶ 1A, 3 ¶ 3C; failed to request an instruction on a lesser-included offense, id.; failed to impeach the victim with conflicts between her pretrial statements and her trial testimony, id. ¶ 2B, 4 ¶ 3D; failed to challenge a biased juror for cause, id. ¶ 2C; failed to object to the erroneous mentalstate definitions, id. ¶ 2D; and failed to request an evidentiary hearing so that Gunderson could air his complaints about counsel before trial, id. ¶ 2E.
Fourth, Gunderson avers the State failed to preserve the bedding and underwear and deprived him of exculpatory evidence. Pet. Supp. at 4 ¶¶ 3A-B. In light of his pleadings in state court, the Court will generously assume that Gunderson's nonspecific reference to "exculpatory evidence" also includes the State's failure to swab Randall's neck for DNA.
Fifth, Gunderson contends the trial court erred in imposing 51 conditions of supervision. Pet. Supp. at 5 ¶ 4. Sixth, he claims that he could not be sentenced both to life in prison and to 100 years without parole. Pet. Supp. at 6.
Finally, Gunderson claims that appellate counsel was ineffective because she failed to brief his issue regarding the instruction given regarding consideration of the defendant's testimony. Pet. Supp. at 5 ¶ 5.
Although some or all of Gunderson's claims may be procedurally defaulted, it is clear that he is not entitled to relief on the merits of the following claims. Accordingly, it is more efficient to proceed to the merits. See, e.g., 28 U.S.C. § 2254(b)(2); Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997) (making detailed analysis of constitutional issue despite ...