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Anderson v. Brilz

United States District Court, D. Montana, Billings Division

August 18, 2014

MICHAEL JEFFREY ANDERSON, Petitioner,
v.
JAMES BRILZ, et al., Respondents.

FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

On June 17, 2013, Petitioner Michael Anderson applied for a writ of habeas corpus under 28 U.S.C. § 2254. Anderson is a state prisoner proceeding pro se.

I. Background

Anderson challenges convictions he incurred in Montana's Eighteenth Judicial District Court for felony assault with a weapon, misdemeanor assault, and partner or family member assault. On January 22, 2009, he was sentenced to serve ten years in prison, with five suspended. Pet. (Doc. 1) at 2-3 ¶¶ 1-4. He contends that his attorneys violated his Sixth and Fourteenth Amendment rights to the effective assistance of trial counsel because counsel did not seek to change venue and did not request a continuance based on Anderson's taking pain medication during the three days of trial. He also claims the prosecutor failed to disclose exculpatory evidence of the violent histories of the two victims of the crime. Id. at 4-5 ¶¶ 13A-B.

Anderson did not raise these claims on direct review. See Appellant Br., passim, State v. Anderson, No. DA 09-0160 (Mont. Oct. 9, 2009), available at http://supremecourtdocket.mt.gov (accessed June 19, 2013).[1] He raised them in postconviction proceedings, see Postconviction Aff. at 1 (Doc. 1-2 at 6), but the trial court dismissed his postconviction petition as untimely, and the Montana Supreme Court affirmed its dismissal, see Order at 3 ¶ 6, Anderson v. State, No. DA 12-0109 (Mont. July 18, 2012). Anderson filed his federal petition on June 17, 2013. Pet. at 1.

On June 20, 2013, Anderson was ordered to show cause why his federal petition should not be dismissed with prejudice as time-barred or as procedurally barred. He responded on August 23, 2013.

Based on his response, the Court found the facts Anderson alleged "might suffice to... equitably toll the federal limitations period, " in particular because "it is not clear when (or even whether) the trial court entered an amended judgment following remand on direct review." Order (Doc. 8) at 2. The Court ordered Respondents ("the State") to file an Answer. Id. at 2-3 ¶ 2.

The State complied on April 30, 2014. Among other exhibits, as well as thorough briefing of the merits, the State submitted the amended judgment entered by the trial court after Anderson's case was remanded from the Montana Supreme Court on direct appeal. See Am. Sentencing Order (Doc. 50) at 1-10. That document clarifies the time bar.

II. Time Bar

A. Application of Limitations Period

Anderson's federal petition for writ of habeas corpus had to be filed within one year of the date his conviction became final. 28 U.S.C. § 2244(d)(1)(A). On direct review, the Montana Supreme Court affirmed Anderson's conviction in part and remanded for one condition of probation to be stricken. Order at 2 ¶ 2, 3-4 ¶ 7, State v. Anderson, No. DA 09-0160 (Mont. Feb. 2, 2010), available at http://supremecourtdocket.mt.gov.

The trial court entered an amended sentencing order on March 25, 2010. Anderson did not appeal. His conviction became final sixty days after entry of the amended judgment, that is, on May 24, 2010. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54 (2012); Mont. R. App. P. 4(5)(b)(i).

Absent other tolling or excuse, Anderson's petition should have been filed on or before May 24, 2011. But it was not filed until June ...


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