United States District Court, D. Montana, Great Falls Division
LAVERNE J. VONDAL, Petitioner,
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
John Johnston United States Magistrate Judge
On May 6, 2015, LaVerne J. Vondal filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Vondal is a state prisoner proceeding pro se. On May 11, 2015, Vondal filed a “Motion for Stay and Abeyance” (Doc. 3), asking this Court to stay his habeas petition while he pursues an appeal in the Montana Supreme Court from the denial of his postconviction petition.
I. Vondal’s Allegations/Procedural History
Vondal’s petition contains four claims for relief. First, he contends that he received ineffective assistance of counsel when his attorney: abandoned him, failed to investigate his case, coerced him, and continued representation despite a conflict of interest. Pet. (Doc 1) at 4 ¶ 13A. Second, Vondal claims that there was an illegal search and seizure because:
Sanitation employee [sic] were acting as agents of the state when they entered the property and seized garbage from behind the house without permission or a warrant and they turned garbage over to Sheriff’s deputy who was standing by watching. All this activity was performed on a non-scheduled pick up day.
Id. at 5 ¶ 13B.
Next, Vondal alleges judicial misconduct because the trial judge made himself “a witness for the state when he testified in court, without being sworn in, as to the chain of custody of a search warrant issued by him.” Id. at 9. Vondal also asserts that the trial judge made an unnecessary trip to the crime scene to see if the search warrant he signed had been executed. Id. Finally, Vondal claims that, collectively, these claims violated his right to due process under the Fourteenth Amendment. Id. at 9-10.
Notably, these allegations are substantially similar to those raised by Vondal in a prior habeas proceeding. See Vondal v. Frink, CV 11-42-GF-SEH-RKS, Pet. (Doc. 1) ¶15A1, ¶15B1, ¶15C. There, United States Magistrate Judge Keith Strong ultimately found that Vondal’s petition should be dismissed with prejudice as time barred and procedurally defaulted without excuse. Vondal v. Frink, CV 11-42-GF-SEH-RKS, (Doc. 12) at 5 (Aug. 29, 2011). After de novo review by the District Court, Judge Strong’s findings were adopted in full. Order, Vondal v. Frink, CV 11-42-GF-SEH-RKS (Sept. 14, 2011).
Following the denial of his 2011 federal habeas petition, Vondal filed a petition for an out of time appeal with the Montana Supreme Court. See, State v. Vondal, No. DA 13-0417. The Court denied Vondal’s request as time-barred. Order, State v. Vondal, No. DA 13-0417 (Mont. July 13, 2013).
On January 31, 2014, Vondal filed a state habeas petition, arguing that his original sentence was facially invalid and that his due process rights were violated by the trial court’s imposition of conditions on his parole eligibility. See, Vondal v. Frink, No. OP 14-0079 (Mont. January 31, 2014). The State conceded that the trial court purported to impose conditions for which it lacked authority; the Court granted Vondal’s petition. Order, Vondal v. Frink, No. OP 14-0079 (Mont. April 16, 2014). The Court directed the trial court to issue an amended judgment and sentence to clarify that the probation/parole conditions not expressly authorized by statute were instead recommendations to the parole board. Id. The challenge to the terms of his sentence was the only issue Vondal raised in his state habeas petition.
According to Vondal, the trial court amended the judgment on May 9, 2014. Pet. (Doc. 1) at 4 ¶2. Vondal did not file a direct appeal from the amended judgment; thus, his conviction became final 60 days after entry of the written judgment, that is, on July 8, 2014. See, Mont. R. App.P. 4(5)(b)(i)(2014); Gonzalez v. Thaler, ___U.S. ___, 132 S.Ct. 641, 653-54 (2012).
Vondal filed a petition for postconviction relief following the amendment of his judgment. The petition was denied, and Vondal subsequently appealed the denial of the petition to the Montana Supreme Court. Notice of Appeal, Vondal v. State, No. DA 15-0282 (Mont. May 6, 2015). Contemporaneously, Vondal filed the habeas petition in this Court (Doc. 1), as well as the Motion for Stay and Abeyance (Doc. 3).
II. Second or Successive
Vondal’s case is unique. At first glance, it appears the claims Vondal now raises are either time-barred and procedurally defaulted, or that the current petition is second or successive under 28 U.S.C. § 2244(b)(1). Between the filing of the 2011 federal habeas petition and the current petition, Vondal obtained an amended judgment, via habeas relief, from the Montana Supreme Court. In the Ninth Circuit, the latter of two petitions is not “second or successive” if there is a “new judgment intervening between the two habeas petitions.” Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012) (citing Magwood v. Patterson, ___U.S. ___, 130 S.Ct. 2788, 2802 (2010)). Relying upon Johnson v. United States, 623 F.3d 41 (2d Cir. 2010), the Wentzell court reasoned “where a first habeas petition results in an amended judgment, a subsequent petition is not successive, even if its claims could have been raised in a prior petition or the petitioner ‘effectively challenges and unamended component of the judgment.’ ” We ...