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Gunderson v. Kirkegard

United States District Court, D. Montana, Billings Division

June 18, 2015

DAVID GUNDERSON, Petitioner,
v.
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

ORDER DENYING PETITION AND DENYING CERTIFICATE OF APPEALABILITY

CAROLYN S. OSTBY, Magistrate Judge.

This case comes before the Court on Petitioner David Gunderson's application for writ of habeas corpus under 28 U.S.C. § 2254. Upon the parties' consent, the matter was assigned to the undersigned for all district court proceedings, including entry of judgment. Doc. 27.

I. Background

Gunderson challenges his conviction by a jury of burglary and attempted sexual intercourse without consent. All but one of his claims for relief have been addressed on the merits de novo and denied. See Findings and Recommendation (Doc. 12) at 11; Order (Doc. 13) at 2.

The sole remaining claim alleges that trial counsel was ineffective because he did not request a jury instruction on criminal trespass, a lesser-included offense of burglary. The claim was defaulted in state court, but the default was excused under Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911 (2013). The parties conducted discovery and have submitted briefs.

II. Analysis

A. The Trial Record

1. Legal Framework

Gunderson was charged with burglary, a violation of Mont. Code Ann. § 45-6-204(1) (2005) (Count 1), and attempted sexual intercourse without consent ("rape"), a violation of Mont. Code Ann. §§ 45-4-103 and -5-503 (Count 2).

To prove burglary, the State had to prove two elements: (1) that Gunderson knowingly entered or remained in the victim's (Stephanie Randall's) apartment unlawfully, and (2) that he did so with the intention of committing any other offense within the apartment. The State predicated sexual assault[1] as the offense Gunderson intended to commit - that is, it alleged that Gunderson entered Randall's apartment intending to subject her to sexual contact without her consent. Jury Instr. No. 12 (Doc. 11-2 at 20); Jury Instr. No. 15 (Doc. 11-2 at 23).

Criminal trespass is a lesser included offense of burglary. To prove criminal trespass, the State would have to prove only the first element of burglary - that is, that Gunderson knowingly entered or remained unlawfully in Randall's apartment. Mont. Code Ann. § 45-6-203(1)(a) (2005). The State did not charge Gunderson with criminal trespass, and Gunderson's counsel did not request a jury instruction on criminal trespass.

To prove attempted rape, the State had to prove beyond reasonable doubt that Gunderson attempted to penetrate Randall's vulva or anus for his sexual gratification and without her consent. See Mont. Code Ann. § 45-2-101(68). To prove attempt, the State had to prove that Gunderson "performed an act which constituted a material step toward the commission" of rape "with the purpose to commit" rape. Jury Instr. Nos. 18, 20 (Doc. 11-2 at 26, 28). Sexual assault, as mentioned, consists of knowingly subjecting someone to sexual contact without consent. Id. § 45-5-502(1). It is a lesser included offense of rape. The State did not charge Gunderson with sexual assault, and Gunderson's counsel did not request a jury instruction on sexual assault or attempted sexual assault.

As pertinent here, both criminal trespass and sexual assault were misdemeanors. Id. §§ 45-6-203(2), -5-502(2). Both burglary and rape were felonies. Id. §§ 45-6-204(3), -5-503(2).

2. Randall's Testimony

At trial, Stephanie Randall testified that she arrived home at about 2:00 a.m. on July 3, 2007. While she was making herself something to eat, someone knocked at the door of her apartment. She answered. It was Gunderson, but Randall did not know him. Gunderson asked to use Randall's telephone. Randall told him she did not have a phone and shut the door. She returned to her kitchen. After she finished her snack, she went to bed.

About half an hour later, Randall woke "to somebody getting in my bed, " kissing her neck and touching her thigh. He pulled her underwear down four to six inches, but she stopped him by grabbing his hand. He also pinned her arms on the bed while she was on her back, but she struggled free. She reached up and turned on the light, which she could reach without getting out of bed. She immediately recognized the man who had earlier knocked on her door. His shirt and his shoes B new and brightly white B were on the floor, but he was wearing pants. She "was screaming pretty loudly" at him to get out. He was "telling [her] to knock it off and to calm down." Randall physically tried to throw him out, but he was concerned about retrieving his shoes and shirt. As he was attempting to pick them up, Randall grabbed his hair and started to drag him out of her apartment. She scratched his neck. Eventually she picked up his shoes and carried them to the front door. It was locked. She unlocked it, opened it, threw the shoes out, and ordered him to get out. When he was gone, Randall called 911.

3. Police and Other Witnesses' Testimony

In response to the 911 call, police located Gunderson a few blocks away from Randall's apartment, walking with another man. Based on Randall's description, Gunderson's bright white shoes, and fresh scratch marks on Gunderson's neck and face, he was stopped and asked to take a portable breath test. His blood alcohol content was 0.086. He was arrested for a parole or probation violation.

Gunderson told police he had taken a taxi to the Crystal Lounge earlier that night and jumped out without paying. After he went into the Crystal Lounge, a local bar, he got into a fight with a man who scratched him on the neck, and then he was thrown out. He claimed he had been in a different part of town at the time of the crime. Gunderson told police he did not enter Randall's apartment and stated his DNA would not be found there.

Gunderson was photographed at the detention center. He had scratches not only on his face and neck but also one on his hand and one on his shoulder or chest that had previously been obscured by his shirt. Randall said she had seen "some tattoos" and most clearly remembered one somewhere on his chest or shoulder; Gunderson had several tattoos on his chest and shoulder.

Shortly after the incident, Randall was shown a photographic lineup. She "immediately, " in "seconds, " identified Gunderson as the man who entered her apartment. Gunderson's DNA was not found in the apartment, but it was identified in a small scraping of blood taken from Randall's hand.

Police determined that several businesses surrounding Randall's duplex all had accessible pay phones. An employee of the Crystal Lounge and the owners of the two taxi cab companies in Billings could not corroborate Gunderson's claims that he ...


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