United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge.
States Magistrate Judge John T. Johnston entered findings and
recommendations in this matter on November 29, 2016,
recommending dismissal of Petitioner Gary Thaut's
("Thaut") petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2254. Thaut filed objections to
the findings and recommendations on January 19, 2017, 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. Mach.,
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).
raised three claims in his amended habeas petition that were
addressed in detail and on the merits in Judge Johnston's
findings and recommendations. Having reviewed Thaut's
objections, the Court finds that he makes three specific
contentions to the findings and recommendations. The Court
will address each issue separately.
Lack of Meaningful Appeal
objects to Judge Johnston's recommendation that his first
claim is without merit and should be denied. Thaut argues
that Montana's appeal and postconviction process denied
him a meaningful appeal. (Doc. 49 at 3-4.) Judge Johnston
correctly concluded that Thaut's due process claim
arguing deficiencies in his state law proceedings is without
merit. (Doc. 42 at 10-11.)
habeas relief is not available for "attacks on
violations of state law or procedure and is unavailable for
alleged error in the interpretation or application of state
law." Fuller v. Roe, 182 F.3d 699, 703 (9th
Cir. 1999), overruled on other grounds. To the extent that
Thaut alleges errors in the state post-conviction review
process, those are not addressable through habeas corpus
proceedings. Franzen v. Brinkman, 877 F.2d 26, 26
(9th Cir. 1989). A federal habeas petition is not the proper
vehicle for addressing the adequacy of the process provided
to Thaut in his state appeal or post-conviction proceedings.
Thaut argues that his Sixth Amendment right to counsel was
violated because his appellate counsel withdrew her
representation by virtue of an Anders brief. (Doc.
49 at 7.) This Court disagrees. The State of Montana provides
court appointed counsel for an indigent defendant on his
direct appeal. Mont. Code Ann. § 47-1-104 (2016). Thaut
was appointed counsel for his direct appeal. Thaut's
counsel then filed an Anders brief with the Montana
Supreme Court asserting there were no nonfriviolous claims.
(Doc. 42 at 2-3.) Upon independent review of the record, the
Montana Supreme Court agreed and granted counsel's
Anders brief. State v. Thaut, Cause No. DA 12-0458,
(Feb. 27, 2013). Filing an Anders brief is a
constitutionally permissible method to withdraw court
appointed appellate counsel. Anders v. California,
386 U.S. 738, 744 (1967).
Court does not find that Thaut was deprived of his Sixth
Amendment right to counsel simply because his counsel filed
an Anders brief. Thaut argues that the filing of the
Anders brief without further development of the
record deprived him of counsel because he was then forced to
develop the record pro se in his post-conviction proceedings.
Although the filing of an Anders brief forced Thaut
to continue pro se, he was still provided appellate counsel
at the outset of his direct appeal as required by state law.
To the extent that Thaut argues the Anders brief was
deficient because the record should have been developed
further, this Court stands by the Montana Supreme Court's
finding that the record contained no nonfriviolous claims.
Thaut argues that a Sixth Amendment violation occurred
because he should have been appointed counsel during his
post-conviction relief proceeding. (Doc. 49 at 5.) A habeas
corpus petition may be entertained on behalf of a person
"on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). Prisoners do not "have a
constitutional right to counsel when mounting collateral
attacks upon their convictions." Pennslyvania v.
Finley, 481 U.S. 551, 555 (1990). Thaut does not have a
constitutional right to counsel in his post-conviction relief
proceeding and therefore no constitutional Sixth Amendment
violation occurred. Additionally, appointment of counsel in a
post-conviction proceeding is at the discretion of the state
district court; therefore, this argument is not proper in a
habeas petition because it is an attack on state court
procedure. His contentions here are not in violation of due
process and are without merit.
Deferential Review of Claims 2, 3, 4, and 5
Thaut objects to the Judge Johnston's deferential review
based on the Antiterrorism and Effective Death Penalty Act
("AEDPA") because the state court proceedings were
"unreasonable and void of factual development."
(Doc. 49 at 12.) Judge Johnston found that Thaut "failed
to establish that the state courts' decisions on the
merit were unreasonable." (Doc. 42 at 14.) Judge
Johnston properly gave deference to the state court
proceedings as required under the AEDPA.
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
"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 "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)(1)-(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).
warrant habeas relief due to ineffective assistance of
counsel, a petitioner must demonstrate that, considering all
of the circumstances, counsel's performance was deficient
and that such performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (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 697; Hein v.
Sullivan, 601 F.3d 897, 918 (9th Cir. 2010).
contends that the state court proceedings were unreasonable
because his appellate counsel failed to properly review and
develop the record. (Doc. 49 at 13.) This Court will not
address Thaut's arguments to ...