United States District Court, D. Montana, Great Falls Division
L. Christensen, Chief Judge.
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).
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.
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.
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.
Ineffective Assistance of Trial Counsel.
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).
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.
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
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.
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 ...