United States District Court, District of Montana, Missoula Division
TRACEY R. GODFREY, Petitioner,
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
Jeremiah C. Lynch, United States Magistrate Judge
On January 27, 2014, Petitioner Tracey Godfrey filed this action under 28 U.S.C. § 2254. Godfrey is a state prisoner proceeding pro se.
In 2000, Godfrey was convicted of sexual assault and sentenced to serve 60 years, with 30 suspended, for sexual assault and a 10-year term as a persistent felony offender ("PFO"). See State v. Godfrey, 95 P.3d 166, 167 ¶ 1, 170 ¶ 21 (Mont. 2004).
In State v. Gunderson, 237 P.3d 74 (Mont. 2010) (“Gunderson II”), the Montana Supreme Court held that, when a defendant is designated a persistent felony offender, the PFO sentence replaces the sentence that would otherwise be imposed for the offense of conviction. Id. at 84 ¶ 54 (citing Mont. Code Ann. § 46- 18-502 and prior case law). Gunderson overruled State v. Gaither, 220 P.3d 640, 649-50 ¶¶ 50-55 (Mont. 2009), State v. Robinson, 117 P.3d 488, 494-95 ¶¶ 17-18 (Mont. 2008), and the decision in Gunderson's own appeal of a prior conviction, State v. Gunderson, 936 P.2d 804, 806-07 (1997) (“Gunderson I "). In those cases, the Montana Supreme Court had held that, so long as the total sentence imposed fell within the 100-year maximum authorized term for a PFO, it was not significant whether separate sentences were imposed for the offense and for the PFO designation or whether the PFO sentence replaced the sentence for the offense. Other cases, such as State v. Fitzpatrick, 805 P.2d 584 (Mont. 1991), and State v. Watson, 686 P.2d 879 (1984), had held that the PFO sentence replaces the maximum sentence for the underlying offense by altering the maximum term to 100 years. Fitzpatrick, 805 P.2d at 586; Watson, 686 P.2d at 889. Gunderson II took those cases to mean that a defendant designated a PFO receives one sentence as a PFO and is not sentenced for the underlying offense:
[W]e now hold that sentences imposed based on an offender's status as a persistent felony offender replace the sentence for the underlying felony. We further hold that when a persistent felony offender is convicted on multiple felony charges, the district court can sentence the offender to the maximum sentence allowable on each charge.
Gunderson II, 237 P.3d at 83 ¶ 54.
On April 16, 2013, relying on the 2010 Gunderson II decision, Godfrey petitioned the Montana Supreme Court for a writ of habeas corpus under state law. He alleged that his sentence was illegal on its face because it imposed one sentence for sexual assault and another for his designation as a persistent felony offender. He argued that his sexual assault sentence - sixty years with 30 suspended - should be vacated in favor of the 10-year PFO sentence. Pet. at 3, Godfrey v. Kirkegard, No. OP 13-0258 (Mont, filed Apr. 16, 2013). The Montana Supreme Court held:
Having considered the sentence, we conclude that Godfrey is serving a 60-year sentence, with 30 years suspended, and a 10-year PFO sentence. Under our precedent, the PFO portion of the sentence is invalid, which undermines the entire sentence and requires reconsideration. Consequently, a remand for resentencing is the proper remedy. However, the defect - a separate 10-year PFO sentence - was imposed originally by the District Court. Therefore, the remand must be to the District Court for imposition of a legal sentence.
Order at 3, Godfrey, No. OP 13-0258 (Mont. July 2, 2013).
On remand, the trial court imposed a PFO sentence of 60 years, with 30 suspended. Godfrey again petitioned the Montana Supreme Court for habeas relief, claiming that the trial court violated his right to due process and his constitutional protection against double jeopardy by increasing his PFO sentence from 10 years to 60 with 30 suspended. The Montana Supreme Court held that Godfrey's sentence was not facially illegal and so habeas relief was not available under state law. Order at 2, Godfrey v. Kirkegard, No. OP 13-0717 (Mont. Jan. 7, 2014).
Godfrey now petitions this Court to hold that his resentencing violated his federal protection against double jeopardy and his right to due process because he had already discharged the original 10-year PFO sentence when he was resentenced, as a PFO, to 60 years with 30 suspended. Pet. (Doc. 1) at 5 ¶ 13B. In effect, Godfrey also argues that the Montana Supreme Court's conclusion in his first habeas proceeding was wrong, and the court should have vacated the sexual assault sentence but not the PFO sentence, because the PFO sentence replaces the sentence for the underlying offense.
The United States Supreme Court:
has rejected the doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence. The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. In this case the court only set aside what it had no authority to do, and substituted directions required by the law to be done upon the conviction of the offender. It did not twice put petitioner in jeopardy for the same offense. The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.
United States, 330 U.S. 160, 166-67 (1947) (internal quotation marks, parenthesis, and citations omitted). The Supreme Court's observation here disposes of Godfrey's claim that he was entitled to only the remedy he sought, i.e., vacation of the portion of ...