United States District Court, D. Montana, Missoula Division
W. Molloy, District Judge
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.)
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.
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.)
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..
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); 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.
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)). The decision not to file
therefore falls squarely within the range of "reasonable
professional assistance" guaranteed by the Sixth
Claims 1, 2, and 3
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.)
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).
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 ...