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Taylor v. Kirkegard

United States District Court, D. Montana, Great Falls Division

December 5, 2016

KEVIN MARK TAYLOR, Plaintiff,
v.
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Defendant.

          ORDER

          Dana L. Christensen, Chief Judge.

         United States Magistrate Judge John T. Johnston entered Findings and Recommendations in this case on October 17, 2016, recommending that Plaintiff Kevin Mark Taylor's ("Taylor") petition under 28 U.S.C. § 2254 for writ of habeas corpus be denied for failing to survive deferential review under the Antiterrorism and Effective Death Penalty Act ("AEDPA") and be dismissed as procedurally defaulted. Taylor timely filed an objection to the findings and recommendations, and so is entitled to de novo review of those findings and recommendations to which he specifically objects. 28 U.S.C. § 636(b)(1)(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Am, 474 U.S. 140, 149 (1985). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).

         Because the parties are familiar with the factual and procedural background, and Judge Johnston explained it in depth in his Findings and Recommendations, it will not be restated here.

         Taylor raised three claims in his habeas petition that were addressed in detail and on the merits in Judge Johnston's Findings and Recommendations:

(1) Trial counsel was ineffective for failing to move to dismiss the case on the grounds that police destroyed potential exculpatory evidence in bad faith;
(2) Trial counsel unreasonably failed to request a jury instruction on missing evidence;
(3) Post-conviction counsel was ineffective for failing to assert a claim that trial counsel ineffectively failed to object to prosecutorial misconduct in the closing argument.

         Having reviewed Taylor's objections, the Court finds that his main objection is in response to Judge Johnston's findings on Claim 1 and Claim 2 that trial counsel was not ineffective. Taylor also objects to Judge Johnston's finding on Claim 3 that it is procedurally defaulted. The Court will address each issue separately.

         I. Ineffective Assistance of Trial Counsel.

         To warrant habeas relief due to ineffective assistance of counsel, a petitioner must demonstrate that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-693 (1984). Because both prongs of the Strickland test must be satisfied in order to establish a constitutional violation, failure to satisfy either prong requires that a petitioner's ineffective assistance of counsel claim be denied. Strickland, 466 U.S. at 687, 697; Hein v. Sullivan, 601 F.3d 897, 918 (9th Cir. 2010). If a state court has already adjudicated a petitioner's claims on the merits, a federal court will not grant the writ unless the state court's adjudication of the claims: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(l-2). The "AEDPA imposes a highly deferential standard for evaluating state-court rulings and demands that [they] be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 767 (2010) (internal citations and quotation marks omitted).

         Taylor contends that his trial counsel was ineffective for failing to articulate Taylor's Youngblood claim regarding law enforcement's failure to preserve potentially exculpatory evidence and for failing to correct the record about the fingernail scrapings. In order to succeed, Taylor must show that counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for his trial counsel's unprofessional errors, the result of the proceeding would have been different.

         Judge Johnston ordered additional briefing from the parties regarding Claim 1, and specified that counsel focus on whether there was a due process violation under Arizona v. Youngblood, 488 U.S. 51 (1984), in relation to law enforcement's failure to collect Taylor's fingernail scrapings and, what impact, if any, Detective Schalin's trial testimony that the scrapings were taken had upon the purported violation. (Doc. 19.) After reviewing the parties' briefing and the trial record, this Court agrees with Judge Johnston that there was no due process violation and that there was no bad faith on the part of law enforcement for failing to take fingernail scrapings from Taylor.

         First and foremost, this Court recognizes that the state of the law does not impose a constitutional duty upon law enforcement to perform any particular tests. Youngblood, 488 U.S. at 58. While there does indicate some level of confusion among the officers who worked on the initial investigation whether fingernail scrapings were actually taken, it is clear from the parties' additional briefing that no fingernail scrapings were ever taken and put into evidence. It follows that no testing of DNA evidence occurred. Thus, it is inconclusive whether the fingernail scrapings would have provided exculpatory or inculpatory evidence for Taylor, or would have provided no conclusive evidence whatsoever.

         The record shows that Taylor's trial counsel used the lack of testing to his advantage, as it was a main component of Taylor's defense at trial. Defense counsel, Jeff Olson, questioned officers about their decision not to test Taylor's fingernail scrapings to poke holes in the prosecution's case and infer reasonable doubt. Moreover, during his initial investigation, Taylor never asked to have his fingernails scraped and tested and did not mandate that it be done when he clearly knew it had not. Likely, this was because Taylor knew very well that the testing could come back as inculpatory evidence. Thus, it was a reasonable strategy by trial counsel to use the lack of due diligence by law enforcement ...


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