United States District Court, District of Montana, Billings Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
Carolyn S. Ostby United States Magistrate Judge
On December 18, 2013, Petitioner Medicine Horse filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Medicine Horse is a state prisoner proceeding pro se.
Medicine Horse challenges his felony conviction for driving under the influence of alcohol (“DUI”) in violation of Mont. Code Ann. §§ 61-8-401(1) and 731(1) and his designation as a persistent felony offender under Mont. Code Ann. § 46-18-502. Pet. (Doc. 1) at 2-3 ¶¶ 1-3; Mem. (Doc. 2) at 6. He was sentenced to serve five years in the custody of the Department of Corrections. Pet. at 3 ¶ 4.
Medicine Horse does not claim to be innocent of driving under the influence, but he asserts his offense should have been a misdemeanor rather than a felony. He states that he has no prior DUI convictions in Montana, and he argues that the Florida laws under which he incurred three convictions for driving under the influence are not sufficiently similar to Montana law to enable those convictions to be counted against him in Montana. He concludes that he was unlawfully sentenced to a greater penalty than was authorized by law. He also contends that he attempted to persuade counsel that he was guilty only of misdemeanor DUI, but counsel “refused to listen, ” so Medicine Horse signed a plea agreement and pled guilty. He then attempted to persuade counsel to appeal, but his efforts were unavailing. Pet. at 5 ¶¶ 2-5; see also Br. in Supp. (Doc. 2) at 4. Medicine Horse contends these allegations demonstrate violations of the Sixth Amendment right to the effective assistance of counsel. Pet. at 5 ¶¶ 1-5; Mem. at 1-2, 4-6.
On March 31, 2014, the Court ordered Respondents (“the State”) to submit the presentence report compiled in the state proceedings as well as the documentation of Medicine Horse’s criminal history that was available to defense counsel at the time Medicine Horse entered his guilty plea. At the same time, the Court issued a separate order to Medicine Horse to show cause why his petition should not be dismissed with prejudice as time-barred and/or as procedurally barred.
The State responded on April 11, 2014. Medicine Horse responded on April 18, 2014, and filed a notice of supplemental authority on June 10, 2014. The latter notice consists of newspaper articles about the public defender system. Newspaper articles are not legal authority, neither binding nor persuasive. The notice will be disregarded.
When the Court issued the Order to Show Cause, it also required Medicine Horse to clarify whether he instructed counsel to file a notice of appeal and counsel failed to follow his instruction. Medicine Horse responded by reiterating that “counsel refused Medicine Horse’s attempts to persuade him to file a notice of appeal” and “failed to effectively pursue diligent research to discover the legal differences in state statutes . . . and therefore thought an appeal to be frivolous.” Resp. to Order (Doc. 11) at 2.
II. Time Bar and Procedural Bar
A. Time Bar
Each claim in Medicine Horse’s petition is time-barred. See Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). Written judgment was entered in the trial court on June 2, 2011. Pet. at 2 ¶ 2. Medicine Horse’s conviction became final sixty days after his time to appeal expired, that is, on August 1, 2011. Mont. R. App. P. 4(5)(b)(i) (2009); Gonzalez v. Thaler, __U.S. __, 132 S.Ct. 641, 653-54 (2012). He had one year from that date to file his federal habeas petition. 28 U.S.C. § 2244(d)(1)(A). He did not file until December 16, 2013, Pet. at 9 ¶ C, 501 days too late. Even if time is tolled under 28 U.S.C. § 2244(d)(2) for his filing of a habeas action in the Montana Supreme Court, see Medicine Horse v. Kirkegard, No. OP 13-0351 (Mont. filed May 20, 2013), he filed 291 days too late.
B. Procedural Bar
In addition, Medicine Horse’s claim that counsel failed to file a notice of appeal is also subject to dismissal as procedurally barred. Medicine Horse either did not file a petition for postconviction relief or a motion to withdraw his guilty plea in the trial court or, if he did file one or both, he did not appeal any denial. Pet. at 3-4 ¶¶ 9-11. He filed a habeas petition alleging his innocence of felony DUI in the Montana Supreme Court on May 20, 2013, but he did not allege that his attorney refused to appeal. A federal habeas court generally will not hear claims that were ...