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Molder v. Kirkegard

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

January 23, 2017

KIRK R. MOLDER, Petitioner,
v.
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Defendants.

          ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE

          DONALD W. MOLLOY, DISTRICT JUDGE

         On August 19, 2013, Petitioner Kirk R. Molder filed an application for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Molder was appointed counsel and filed an amended petition on December 8, 2014, presenting claims for relief based on ineffective assistance of counsel. (Doc. 17.) On October 19, 2015, this Court adopted Magistrate Judge John Johnston's Findings and Recommendations denying the State's motion for summary judgment on statute of limitations. (Doc. 43.) Judge Johnston now recommends denying Molder's claims. (Doc. 46.) Molder objects. (Doc. 47.) Molder is entitled to de novo review of those specific findings or recommendations to which he objects, 28 U.S.C. § 636(b)(1), while those findings and recommendations not specifically objected to are reviewed for clear error, McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with the "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). Because the parties are familiar with the factual and procedural background of this case, it will not be restated here.

         Molder presents six claims: ineffective assistance of trial counsel for failing (1) to introduce evidence relating to Brittany Highland's 1999 anal-genital examination in Miles City; (2) to introduce Savannah Highland's statement that she had sex with two boys prior to being examined by Dr. Gerrity in 2001; (3) to request a specific unanimity instruction under State v. Weaver, 964 P.2d 713 (Mont. 1998); (4) to introduce evidence bearing on the girls' motive to fabricate sexual abuse allegations; (5) to properly address the legal relationship of Molder to Savannah and Britany; and (6) that the cumulative impact of trial counsel's deficiencies prejudiced Molder's defense and requires reversal. Judge Johnston concluded that Molder's ineffective assistance of counsel claims fail under Strickland v. Washington, 466 U.S. 668 (1984), and that Molder fails to establish a single constitutional error. Molder objects as to his first, second, and sixth[1]claims, arguing his first and second claims meet the Srickland standard, and that cumulative error prejudiced him. Molder is incorrect.

         LEGAL STANDARD

         Counsel is ineffective if (1) his "performance was deficient" and (2) that "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To meet the first prong, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. To meet the second, the defendant must show there is a "reasonable probability" that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may not be granted "with respect to any claim that was adjudicated on the merits in State court proceedings" unless the state decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or (2) "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). Federal review of a state court's Strickland determination is "doubly" deferential, because Strickland requires state courts to give deference to choices made by counsel and AEDPA in turn requires the federal court to defer to the determination of the state court. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. Ill. 123(2009)).

         Under AEDPA, a state court decision is "contrary" to clearly established United States Supreme Court precedent "if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases, 'or if it confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a result different from the Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). An "unreasonable application" of clearly established federal law occurs if the state court's application "was objectively unreasonable." Williams, 529 U.S. at 409-10, 413.

         ANALYSIS

         A. Molder's Claims

         1. Brittany's 1999 Miles City Anal-Genital Examination.

         Molder objects to Judge Johnston's finding that the state court did not unreasonably apply Strickland in determining that Steve Hudspeth's (Molder's trial counsel) decision to withhold the medical record was strategic, and that inclusion of the record at trial would not have created a reasonable probability of a different outcome. (Doc. 47 at 3.) The record, a letter from Dr. Patricia Pezzarossi to the Montana Department of Public Health and Human Services, Child and Family Services Division, discussed examinations Dr. Pezzarossi performed on Brittany and Savannah Highland on October 29, 1999. (Doc. 23-52 at 25.) It indicated that Brittany had an intact hymen and no signs of vaginal trauma. It also stated that although Savannah "denied any sexual abuse, she refused to let [Dr. Pezzarossi] examine her vaginal area, " and that "she did not want [Dr. Pezzarossi] to make a record of anything or write anything down that she said as she feared her stepfather would find out what she was saying." (Doc. 23-52 at 25.)

         Molder argues that Brittany's records were directly relevant to Counts III and V, which charged Molder with having sexual intercourse with Brittany "on or about and between February 10, 1998 and February 10, 1999." (Doc. 47 at 4.) Molder believes the record would have rebutted Brittany's trial testimony that Molder had sex with her "two to four times" a week during this time period. Id. This argument, however, overlooks the fact that the examination record also included potentially damaging information regarding Savannah and that Hudspeth's decision not to introduce the record was a tactical one designed to keep that damaging information out.

         Instead of introducing the record, Hudspeth used cross-examination to present the jury with evidence indicating the Pezzarossi examinations did not indicate sexual abuse. (Doc. 49 at 14.) Hudspeth explained this strategic decision in his closing argument, when he argued that the findings of Pezzarossi's exam undercut the prosecution's case that Molder was having sex with Brittany in early 1999 because Brittany and Savannah had been returned to Molder after the exam took place. (Doc. 23-54 at 20.) He described his tactic as "one of the things that [defense attorneys] can do when we represent people charged with crimes in this country. It's called waiting in the weeds ... but I asked the witnesses questions about [the exam] and it came in, and now they realize that maybe they charged their case wrong." Id. Counsel's "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. Here, Hudspeth, after examining Dr. Pezzarossi's letter, made a tactical decision not to introduce it. The state court's determination that his decision did not violate the first prong of Strickland is not objectively unreasonable.

         Nor was the state court's determination that Molder was not prejudiced by the omission. As indicated above, the state court noted that Hudspeth was able to elicit testimony from the family's social worker that Child and Family Services policy was not to return children to the custody of an alleged sexual abuse perpetrator if the children showed signs of that abuse, but that Brittany and Savannah had undergone examinations and afterward been returned to Molder's custody. (Doc. 23-23 at 344-47, 361-62, 376-77.) Hudspeth also elicited testimony from Dr. Nora Gerrity that she had learned from the family's social worker that some sexual abuse allegations had been made while the family was living in Forsyth, that physical examinations may have been done at the time, that doctors are under a legal obligation to report suspected cases of sexual abuse, and that the children were returned to Molder's care after these allegations were ...


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