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Ritchie v. Batista

United States District Court, D. Montana, Missoula Division

March 27, 2017

STEVEN RAY RITCHIE, Plaintiff,
v.
MIKE BATISTA; LEROY KIRKEGARD, Respondents.

          ORDER

          Donald W. Molloy, District Judge

         On November 25, 2009, Steven Ray Ritchie filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On June 24, 2010, Ritchie's claims were dismissed as time-barred on the recommendation of United States Magistrate Judge Jeremiah C. Lynch. (Doc. 21.) On May 10, 2012 a Ninth Circuit panel affirmed-in-part but remanded with instruction to consider whether Ritchie's claims were equitably tolled under the subsequently-decided Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010). Judge Lynch held an evidentiary hearing for that purpose on October 2, 2013. (Docs. 81, 85.) On June 18, 2014, Ritchie's claims were again dismissed as time-barred on the recommendation of Judge Lynch, and a certificate of appealability was granted. (Doc. 95.) On November 6, 2015, a Ninth Circuit panel reversed and remanded after respondents conceded at oral argument that Ritchie's petition was timely in light of the subsequently-decided Rogers v. Ferriter, 796 F.3d 1009 (9th Cir. 2015). (Doc. 99.)

         Judge Lynch now recommends denying Ritchie's claims. (Doc. 111.) Ritchie 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 Bush. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syr ax, 235 F.3d 422, 427 (9th Cir. 2000). Because the parties are familiar with the factual and procedural background, it will not be further restated here.

         Ritchie claims that: (1) trial counsel Keithi Worthington ("Worthington"), violated his Sixth Amendment right to the effective assistance of counsel because she did not adequately investigate his competency before negotiating a plea agreement; (2) the trial court violated his right to due process by accepting his guilty plea to burglary without ensuring he understood the elements of the offense; (3) the trial court violated his right to due process by accepting his guilty plea to theft without ensuring the factual basis was accurate; and (4) Worthington violated his Sixth Amendment right to effective assistance of counsel because she did not file a motion to withdraw his guilty plea. (Doc. 1 at 1-2.) Judge Lynch concludes that Ritchie's first three claims are procedurally defaulted without excuse, and that his fourth claim does not allege a violation of federal law because Ritchie did not have a cognizable Sixth Amendment right to counsel after his judgment became final. (Doc. 111 at 2-3.) Ritchie objects, arguing he should prevail on his fourth claim because trial counsel was ineffective for not filing a motion to withdraw his guilty plea, and that trial counsel's ineffective assistance excuses procedural default as to his remaining claims. (Doc. 114 at 2, 5.)

         Legal Standard To establish ineffective assistance of counsel, Ritchie must show that: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment, " and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong of Strickland, an attorney's performance is reviewed against an objective standard of reasonableness. Id. at 687-88. The review is "highly deferential" and must avoid "the distorting effects of hindsight." Id. at 689. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. If a petitioner shows that counsel's performance was deficient, the second Strickland prong requires a showing of prejudice, meaning a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 691, 694. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. at 694..

         Analysis

         I. Claim 4

         Because Ritchie's first three claims rely on the success of his fourth claim, his fourth claim is considered first. Ritchie objects to Judge Lynch's conclusion that his fourth claim does not allege a violation of a cognizable federal right because Ritchie was not entitled to counsel once his judgment became final. (Doc. 114 at 2.) The federal constitutional right to the effective assistance of counsel "extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987). Judgment in the underlying case was entered in the trial court on August 29, 2005. (Doc. 38-1 at Entry 31.) Ritchie did not appeal, and his conviction became final on October 28, 2005. Mont. R. App. P. 5(b) (2005)[1]; Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Ritchie did not file his pro se motion to withdraw his guilty plea until December 14, 2005, after the deadline to file his first appeal of right, at which point his Sixth Amendment right to the effective assistance of counsel had expired. (Doc. 1-2 at 2.) Because Ritchie cannot therefore allege he is being held in violation of a federal right, 28 U.S.C. § 2254 (a), his fourth claim fails.

         Ritchie points out that the trial court refused to consider his pro se filing because it determined he was still represented by Worthington at the time he filed it, arguing the trial court forced Worthington's deficient performance on Ritchie because she did not file a motion to withdraw his guilty plea. (Doc. 114 at 3.) Even assuming this Catch-22 scenario implicated Ritchie's Sixth Amendment right, however, Worthington's performance was not defective under the first prong of Strickland. Ritchie faced a total of six counts, four of them felonies. (Doc. 1-1 at 3-8.) His plea agreement allowed him to avoid three felony counts and a persistent felony offender designation. (Doc. 1-1 at 11-12.) On receiving Ritchie's pro se motion to withdraw his plea, the trial court directed Worthington to review it and to "file the appropriate pleading with the appropriate court as determined necessary after consultation with her client." (Doc. 1-2 at 10.) However, Ritchie subsequently stated clearly that he did not want his plea withdrawn, (Doc. 105-2), and Worthington testified it was her practice to pursue legal challenges she believed were valid, (Doc. 105 at 22 (Worthington Dep. 81:2-6)).[2] The decision not to file therefore falls squarely within the range of "reasonable professional assistance" guaranteed by the Sixth Amendment.

         II. Claims 1, 2, and 3

         Judge Lynch concludes that Ritchie's first three claims are procedurally defaulted without excuse. (Doc. Ill. at 3.) Ritchie objects, arguing his procedural default should be excused because the state trial court, by dismissing his pro se motion, prevented him from raising his claims at the state level, and that Worthington's failure to file a motion to withdraw Ritchie's guilty plea did the same. (Doc. 114 at 6.)

         A petitioner must exhaust his federal habeas claims at the state level before he may bring them in federal court. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 520 (1982). Unexhausted claims are procedurally defaulted. Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). Procedural default can be overcome by if the petitioner can demonstrate either actual innocence or cause and prejudice. Smith, 510F.3datll39. Actual innocence requires the petitioner "show that, in light of all available evidence, it is more likely than not that no reasonable juror would convict him of the relevant crime." Id. Alternatively, to establish cause and prejudice, the petitioner must show that an objective, external factor prevented him from presenting his claims in state court and that he was prejudiced thereby. Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008).

         a. Procedural Default

         Ritchie does not specifically challenge Judge Lynch's conclusion that he did not properly exhaust his first three claims as required by 28 U.S.C. § 2254(b). There is no clear error in the finding that Ritchie's pro se motion to withdraw his guilty plea, his November 2007 petition for postconviction relief in the trial court, and his March, 2009 petition for writ of habeas corpus at the Montana Supreme Court did not properly exhaust his current claims. (Doc. 111 at 5-6.) Claims 1, 2, and 3 are thus ...


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