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Dethman v. Kirkegard

United States District Court, D. Montana, Helena Division

January 31, 2014



KEITH STRONG, Magistrate Judge.

This case comes before the Court on Petitioner Stanley Dethman's petition for writ of habeas corpus under 28 U.S.C. § 2254. On January 28, 2013, Mr. Dethman, acting through counsel David Ness, filed an amended petition. Respondent ("the State") filed an answer on September 11, 2013. Mr. Dethman did not file a reply.

On June 28, 2013, based on the parties' written consent, see Consents (Doc. 19), the matter was assigned to the undersigned for all purposes, including entry of judgment. 28 U.S.C. § 636(c).

I. Background

On September 16, 2008, Mr. Dethman was charged with one misdemeanor count of driving under the influence, a violation of Mont. Code Ann. § 61-8-401 (2007); one felony count of assault on a peace officer, a violation of Mont. Code Ann. § 45-5-210; and one misdemeanor count of resisting arrest, a violation of Mont. Code Ann. § 45-7-301. Am. Pet. (Doc. 14) at 4 ¶ 8.

The charges arose in connection with a bystander's report that Mr. Dethman appeared to be driving under the influence and a police officer's follow-up contact with Mr. Dethman. In the course of that contact, Mr. Dethman fled from the officer, was tased and placed under arrest, and failed field sobriety tests. Id. at 3-4 ¶¶ 1-7.

Ben Krakowka of the Public Defenders' Office was appointed to represent Mr. Dethman. Shortly after Mr. Krakowka's appointment, Mr. Dethman expressed dissatisfaction with his services. Following the policies of the State Appellate Defenders' Office, Mr. Dethman repeatedly attempted to obtain new counsel over the next few months. Id. at 5-7 ¶¶ 4-8.

On January 29, 2009, Mr. Dethman was advised that his case would not be reassigned to a new attorney. On the same day, Mr. Krakowka sent a letter to Mr. Dethman. He told Mr. Dethman that his options extended to proceeding to trial with Mr. Krakowka as counsel or conducting his defense pro se. He also instructed Mr. Dethman to write a letter to the trial court asking for Mr. Krakowka's removal if he wished to terminate Mr. Krakowka's services as counsel. Id. at 7-8 ¶ 10.

On February 4, 2009, Mr. Dethman wrote to the trial court. He stated that he had asked Mr. Krakowka to "bring me before this Honorable Court to request change of counsel on more than one occasion and he refuses to do so." He also asserted that "I have been trying to remove Mr. Krakowka since late September '08." He explained that he "tried to follow proper procedures and ha[d] been attempting to resolve this issue well before the trial date [was] set." Am. Pet. at 8 ¶ 11.

The trial court held a hearing on Mr. Dethman's motion on February 10, 2009. Mr. Dethman, Mr. Krakowka, and the prosecutor were present. Id. at 8 ¶ 12. The trial court advised Mr. Dethman that, based on its review of Mr. Dethman's letter and the attached correspondence, Hr'g Tr. (Doc. 5-5) at 4:9-17, [1] as well as Mr. Krakowka's performance in court to that point, id. at 5:5-20, Mr. Dethman had shown no reason to believe Mr. Krakowka was "not doing a reasonably good job, " id. at 5:9. Instead, he had shown only differences of opinion with his attorney. Substitution of counsel was denied. Mr. Dethman was advised that the trial, scheduled to commence seven days later, would not be delayed. He was advised of the dangers and disadvantages of self-representation. See id. at 6:15-22, 8:23-12:19, 16:19-17:15, 19:5-20. Mr. Dethman was required to choose between proceeding with Mr. Krakowka as his attorney or proceeding pro se. He chose to proceed pro se. Id. at 18:17-24.

Trial commenced one week later, on February 17, 2009. Mr. Dethman pled nolo contendere to the misdemeanor DUI charge and proceeded to jury trial on the felony charge of assaulting a peace officer and the misdemeanor charge of resisting arrest. The jury found him guilty of both offenses. Am. Pet. at 10 ¶ 16.

On April 14, 2009, Mr. Dethman - once again represented by Krakowka - was sentenced to serve a total of ten years in prison, with five suspended, and fined $1, 100. Id. ¶ 17.

Mr. Dethman appealed. As relevant here, he asserted the trial court erred in failing to conduct an adequate inquiry into Mr. Dethman's complaints about Mr. Krakowka's performance. He also claimed his decision to proceed pro se was not unequivocal or voluntary. On December 21, 2010, the Montana Supreme Court rejected Mr. Dethman's claims and affirmed his conviction. Id. at 11-13 ¶¶ 3-7.

Mr. Dethman filed his federal petition on December 19, 2011. See Pet. (Doc. 1) at 6, Pet'r Decl. ¶ C; Houston v. ...

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