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Dasilva v. Law

United States District Court, D. Montana, Great Falls Division

April 16, 2014

ROBERT AYRES DaSILVA, Jr., Petitioner,
v.
WARDEN SAM LAW; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondent.

FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF OF HABEAS CORPUS

KEITH STRONG, Magistrate Judge.

I. Synopsis

Robert DaSilva is in the custody of the State of Montana, serving a sentence for failure to update his sex offender registration and resisting arrest. He seeks a writ of habeas corpus under 28 U.S.C. § 2254. Mr. DaSilva primarily argues that he was wrongfully convicted because the trial court incorrectly instructed the jury that Mr. DaSilva's prior conviction was for a "sex offense" as defined by Montana statute.

The Montana Supreme Court denied Mr. DaSilva's claims. The denial was not based on an unreasonable determination of facts and it was not contrary to federal law. The trial court's instruction concerned a purely legal issue that was properly decided by the court, and did not withdraw an essential element of the offense from the jury. The high standard set by 28 U.S.C. § 2254 for a writ of habeas corpus is not met. Mr. DaSilva's petition should be denied.

II. Jurisdiction

Mr. DaSilva alleges he is in custody pursuant to a judgment of a State of Montana court that is in violation of the right to due process guaranteed by the Constitution of the United States. Thus, this court has jurisdiction under 28 U.S.C. § 2254. Venue in the Great Falls division is proper, as Mr. DaSilva is challenging a judgment entered in Cascade County. Local Rules 1.2(c)(3); 3.2(b)(2)(A). The case is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(a)(1).

III. Status

Mr. DaSilva seeks habeas relief under 28 U.S.C. § 2254. Mr. DaSilva timely appealed his conviction to the Montana Supreme Court and timely petitioned the Montana District Court for post-conviction relief. Doc. 2-6. The petition was denied in June 2012. Id . Mr. DaSilva appealed the denial of his petition to the Montana Supreme Court in September 2012. Id . The Montana Supreme Court affirmed the district court's denial in February -. Id . Mr. DaSilva timely filed his petition in federal court. Doc. 1. The court reviewed the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases, and determined that one of Mr. DaSilva's four claims (Claim 3) merited further analysis. Doc. 9. The State was ordered to file an Answer to Claim 3. Doc. 9. The court provided Mr. DaSilva with the opportunity to explain why a second claim (Claim 2) should not be procedurally barred. Doc. 9. Mr. DaSilva filed a brief in response. Doc. 11. The State filed an Answer to Claim 3, along with numerous records from the State of Montana's failure-to-register case against Mr. DaSilva. Doc. 21and attached exhibits.

IV. Standards

Pro se pleadings

The court liberally construes pro se pleadings. Eldridge v. Block , 832 F.2d 1132, 1137 (9th Cir. 1987).

Procedural bar

A prisoner who fails to satisfy the state procedural requirements of a claim forfeits his right to present that claim in federal court, unless the prisoner can show good cause for the procedural default and actual prejudice, or demonstrate that failure to consider the claim would result in a fundamental miscarriage of justice. Coleman v. Thompson , 501 U.S. 722, 732 (1991). Federal courts generally do not consider whether the state court properly applied its default rule to the petitioner's facts. Wood v. Hall , 130 F.3d 373, 378-79 (9th Cir. 1997). However, a federal court may reject a state court's use of a procedural bar if it is erroneously applied. Sivak v. Hardison , 658 F.3d 898, 906-07 (9th Cir. 2011).

To establish "actual prejudice, " the petitioner must demonstrate "not merely that the errors at his trial constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." U.S. v. Frady , 456 U.S. 152, 170 (1982); Correll v. Stewart , 137 F.3d 1404, 1416 (9th Cir. 1998). The "miscarriage of justice" exception to a procedural bar requires the petitioner to show that a constitutional error probably resulted in the conviction of an innocent person. Schlup v. Delo , 513 U.S. 298, 327 (1995).

Deference to state

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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