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Holt v. Kirkegard

United States District Court, D. Montana, Billings Division

February 20, 2015

BARRY K. HOLT, Petitioner,
v.
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

This case comes before the Court on Petitioner Barry Holt's application for writ of habeas corpus under 28 U.S.C. § 2254. Holt is a state prisoner proceeding pro se.

Respondents ("the State") filed an Answer on April 7, 2014. After Holt was granted two extensions of time to file a Reply, the deadline expired on June 19, 2014. Holt did not file a Reply.

I. Background

As the State's Answer and brief in support demonstrate, the procedural course of Holt's cases in the trial court was convoluted. See Answer (Doc. 18) at 2-31 ¶¶ 2-37. Ultimately, Holt was convicted in two cases in Montana's Twenty-Second Judicial District Court, Carbon County. In one, Cause No. DV 08-54, Holt was convicted at bench trial of failing to register as a sex offender, a violation of Mont. Code Ann. § 46-23-504(1)(c). In the other, Cause No. DV 09-06, at the conclusion of the first day of a jury trial, Holt pled guilty to burglary, a violation of Mont. Code Ann. § 45-6-204.[1] The plea agreement reached in the burglary case also affected Holt's sentence for failure to register. Holt was sentenced to serve five years for failure to register and ten years for burglary, concurrent. He was designated a Level III sex offender and required to complete both phases of a sex offender treatment program as a precondition to eligibility for parole. See Pet. (Doc. 1) at 2-3 ¶¶ 1-5; Judgment No. 08-54 (Doc. 18-60) at 3 ¶ 1; Judgment No. 09-06 (Doc. 18-115) at 3 ¶ 1.

Holt filed notices of appeal as to both convictions, but his only allegations on appeal pertained to his sentence for burglary. See Appellant Br. in Supp. (Doc. 18-123) at i, State v. Holt , No. 10-0060. After full briefing, the Montana Supreme Court affirmed in part and reversed in part, directing the trial court to vacate Holt's designation as a Level III sex offender in connection with the burglary conviction. State v. Holt, 249 P.3d 470, 475 ¶ 22 (Mont. 2011). The designation was duly stricken. Order (Doc. 18-118) at 1.

On February 15, 2012, Holt signed a petition for postconviction relief and sent it to the trial court. See Notice of Appeal Attachments (Doc. 18-127 at 4-17).[2] In view of the filing fee of $120.00, he moved to proceed in forma pauperis, explaining that he was paid $51.71 per month by Montana Correctional Enterprises and had an account balance of $50.00. In Forma Pauperis Application (Doc. 18-127 at 70-71). The trial court ordered Holt to pay a filing fee of $25.00. Order (Doc. 18-127 at 2). Holt did not pay the fee. Br. in Supp. (Doc. 2) at 5; Resp. by District Court (Doc. 18-130) at 2, 4.

In October 2012, Holt requested a copy of the trial court's file. When he was told that a copy of the file would cost $82.06, see Letter (Doc. 18-127 at 3), Holt filed a notice of appeal (Doc. 18-127 at 1). The Montana Supreme Court construed the notice as a petition for writ of supervisory control and ordered a response from Judge Jones. Order (Doc. 18-129) at 1. On December 18, 2012, the Montana Supreme Court accepted Judge Jones's rationale for imposing a filing fee and denied supervisory control. Order (Doc. 18-131) at 2.

Holt signed his federal habeas petition and deposited it in the prison mail system almost six months later, on June 4, 2013. Pet. at 8, Pet'r Decl. ¶ C; Houston v. Lack, 487 U.S. 266, 270-71 (1988) (establishing prison mailbox rule).

II. Holt's Claims

First, Holt contends that he was denied due process and access to the courts by the state courts' imposition of a filing fee. Pet. at 4 ¶ 13A; Br. in Supp. (Doc. 2) at 6-7.

Second, Holt asserts that his guilty plea was involuntary because counsel allowed Holt to be held in segregation for three years before he pled guilty and allowed the prosecution to manipulate the timing of Holt's state and federal cases to gain the advantage of an illegal persistent felony offender enhancement at sentencing in the state cases. Holt also alleges that counsel were ineffective because they failed to challenge a photo line-up, a Brady violation, and an unconstitutional search. He further avers that all of counsel's errors caused him cumulative prejudice. Pet. at 5 ¶ 13B; Br. in Supp. at 7-9.

Finally, Holt argues that appellate counsel was ineffective because she missed the same issues as trial counsel, and the prejudice to him was cumulative. Br. in Supp. at 9-10.

III. Analysis

A. Postconviction Petition Filing Fee

Holt contends he was denied "access to the courts to address the legality of his sentence" because he made only $50.00 per month but was required to pay a filing fee of $120.00. Br. in Supp. at 5-6. He describes this deprivation as one of three issues on which he believes he is entitled to federal habeas relief ...


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