United States District Court, D. Montana, Missoula Division
MICHAEL S. ALLARD, Petitioner,
STATE OF MONTANA, Respondents.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Jeremiah C. Lynch, United States Magistrate Judge
case comes before the Court on Petitioner Michael S.
Allard's application for writ of habeas corpus under 28
U.S.C. § 2254.
Factual and Procedural Background
Underlying State Conviction
was originally charged in Montana's Fourth Judicial
District Court, Missoula County, with Sexual Intercourse
without Consent, Sexual Assault, and Endangering the Welfare
of Children (2nd offense). (Doc. 38-3 at 2, Doc.
Seq. 7); see also, (Doc. 19 at 9-10). Pursuant to a
plea agreement, Allard pleaded guilty to one count of Sexual
Assault. (Doc. 19 at 33-34). On December 2, 2010, Allard was
sentenced to forty years at the Montana State Prison with 10
of the years suspended and was given a nine year parole
restriction. Id. at 101-02. Judgment was entered on
December 13, 2010. (Doc. 19 at 105); see also (Doc. 38-3 at
12, Doc. Seq. 59).
sentencing, in February of 2011, Allard sent a letter to the
trial court judge, Honorable John W. Larson, requesting the
full court file and transcripts of all proceedings. Judge
Larson responded by advising Allard that his attorney should
have copies of all the pleadings and that because no notice
of appeal had been filed, transcripts were not yet prepared.
(Doc. 19 at 118). Allard was advised to contact his attorney
of record or the Office of the Appellate Defender for
Allard's Direct Appeal
Office of the State Appellate Defender filed a timely appeal
on Allard's behalf. Attorney Colin Stephens, who was
contracted through the Appellate Defender's Office, was
appointed to represent Allard on appeal. The sole issue
raised on appeal was whether or not the trial court erred by
including a "to be determined" restitution amount
in the written judgment. State v. Allard, No. DA
11-0077, App. Br. at 1 (May 19, 2011). The State of Montana
ultimately conceded that the inclusion of restitution in the
judgment appeared to be an oversight and recommended the
provision be stricken. State v. Allard, No. DA 11-0077,
Concession (filed June 16, 2011). The Montana Supreme Court
remanded the matter and ordered the trial court to enter an
Amended Judgment striking the restitution condition.
State v. Allard, No. DA 11-0077, Or. (Mont. June 28,
2011). In accordance with the Montana Supreme Court's
directive, the trial court entered an Amended Judgment on
August 14, 2011. (Doc. 38-3 at 13, Doc. Seq. 67). Apparently
Allard was never provided a copy of the amended judgment at
that time, although notice was sent electronically to the
Appellate Defender's Office.Id.
two and one-half years after the entry of the Amended
Judgment, in April of 2014, Allard sent a letter to his
appellate attorney, Colin Stephens, inquiring into the status
of his appeal and resentencing. (Doc. 19 at 120-21). Allard
stated that there "had been no movement" in his
case since the state's concession on appeal. Allard
advised Stephens he had attempted to contact the Office of
the State Public Defender, the Appellate Defender's
Office, the Missoula County Defender's Office, and the
Lake County Defender's Office, and had not been able to
obtain a response to his inquiries into the case status.
Id. at 120.
expressed to Stephens his belief that the plea agreement he
signed was binding, that a conflict of interest existed
between the Missoula County Office of the Public Defender and
the Lake County Office of the Public Defender, that his
mental functioning was impaired at the time of the change of
plea hearing, that he was not receiving his thought process
medications at the time of the change of plea hearing, and
that Judge Larson made various errors which amounted to bias.
Id. at 120-121. Allard believed that all of these
factors, taken together, should constitute grounds to
renegotiate a plea agreement of twenty years with fifteen of
those years suspended. Id. at 120. Allard also
stated that he had none of his legal documents as they had
not been sent with him following his transfer from CCA to the
Montana State Prison. Id. at 121. Allard sought
Stephens' assistance in pursuing these matters.
30, 2014, Stephens replied and advised Allard he was unable
to provide the requested assistance. Stephens acknowledged
that he had no idea what had happened to Allard's case
following the appeal and remand, but he assumed the entire
case file had been transferred back to Allard's trial
attorney, Noel Larrivee. Id. at 122. Stephens sent
Allard a copy of the Montana Supreme Court's decision on
direct appeal and explained that the case had been remanded
with a directive to strike the restitution provision.
Allard's Petition for Out of Time Appeal
September of 2014, Allard filed a petition for an out of time
appeal with the Montana Supreme Court. See, State v.
Allard, No. DA 14-0606, Pet. (filed Sept. 22, 2014. The
Court summarized Allard's issues on appeal as follows:
Allard now argues that he discussed timely appealing four
other issues with his attorney. He attaches a copy of the
opening brief filed in his 2011 appeal, acknowledging that it
addressed only a restitution issue, but now raises issues
about his arrest, Miranda rights, his trial
counsel's ineffective assistance, the plea agreement and
the sentencing court's judgment. He contends that he
discussed his concerns with his appellate attorney who said,
"he would get my case before a different District Judge
to present my medical/mental health issues, get me a trial or
renegotiate a new plea agreement, none of which were
done." State v. Allard, No. DA 14-0606, Or. at
1-2 (filed Oct. 7, 2014). The Court found that Allard failed to
present "extraordinary circumstances amounting to a
gross miscarriage of justice" under M.R. App. R. 4(6)
which would allow for an untimely appeal. Id. at 2.
Accordingly, Allard's petition was denied.
Subsequent Contact with Trial Court
it is unclear exactly when, at some point in 2015, Allard
contacted the trial court and renewed his request for a copy
of his entire case file. On November 17, 2015, Judge Larson
denied the request. Attached to the trial court's order
was a copy of the Montana Supreme Court's Order remanding
the case and the August 8, 2011, Amended Judgment. See, (Doc.
Allard's Federal Habeas Petition
filed his petition in this Court on April 14,
2016. Concerned about the procedural obstacles
faced by Allard and his claim of a brain injury, the Court
appointed counsel. An Amended Petition was filed on
Allard's behalf. (Doc. 18). Respondents filed a Motion to
Dismiss arguing: 1) the Petition is barred by the statute of
limitations and Allard is not entitled to equitable tolling
of the limitations period, and 2) that his claims are
procedurally defaulted. (Doc. 30). Allard filed a response in
opposition to the motion to dismiss. (Doc. 35). On May 19,
2017, Respondents filed their reply. (Doc. 38).
statute of limitations is a threshold issue that must be
resolved before the merits of individual claims. White v.
Klitzkie, 281 F.3d 920, 921-22 (9th Cir.
2002). For the reasons discussed herein, it is recommended
that Respondent's Motion be granted and the petition be
dismissed with prejudice as untimely.
Allard's petition was filed after the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA")
became law, it is subject to the one-year statute of
limitations set forth at 28 U.S.C. §2244(d)(1).
Allard's conviction became final 60 days after the entry
of the amended judgment following remand, on Thursday,
October 13, 2011. Mont. R. App. P. 4(5)(b)(i)(2OO8);
Caspari v. Bohlen, 510 U.S. 383, 390 (1994);
Burton v. Stewart, 549 U.S. 147, 156-57 (2007).
Pursuant to section 2244(d)(1)(A), the one-year statute of
limitations began to run the next day, on October 14, 2011,
and expired one year later, on Monday, October 15,
2012. Allard filed his initial petition in this
Court on April 14, 2016. Absent a different start date or
tolling of the limitations period, the deadline for
Allard's filing was October 15, 2012.
Delayed Accrual of Limitations Period
provides that the one-year limitations period can run from
"the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State
action." 28 U.S.C. §2244(d)(1)(B). Petitioners
invoking this provision must satisfy a "higher bar than
that for equitable tolling." Ramirez v. Yates,
571 F.3d 993, 1000 (9th Cir. 2009). Delayed
accrual is warranted under §2244(d)(1)(B) only if the
state impediment prevented the petitioner "from
presenting his claims in any form, to any court."
Id. at 1001; see also Shannon v. Newland,
410 F.3d 1083, 1088 (9th Cir. 2OO5)(section
2244(d)(1)(B) applicable "when a petitioner has been
impeded from filing a habeas petition.").
argues that he was not served with the Amended Judgment as
required by Montana law. This oversight, so the argument
goes, lulled Allard into thinking that the trial court had
not yet acted upon the remand directive from the Montana
Supreme Court. It was not until Judge Larson provided Allard
with a copy of the Amended Judgment in November of 2015 that,
according to Allard, the "state created impediment"
was removed. Thus, Allard asserts his one year limitations
period began to run on November 17, 2015, and, accordingly,
his habeas petition is timely.
State points out, Allard cannot avail himself of this
provision because he has not established that the state
engaged in an illegal action. Allard cites to a provision of
the Montana Code that deals with the entry of written
judgment following the oral pronouncement of sentence. See,
(Doc. 35 at 5; citingMont Code Ann.
§46-18-116(1)). But the State had no corresponding
statutory obligation to serve the Amended Judgment on Allard
personally. As the record reveals, the trial court provided
copies of the Amended Judgement to the Appellate
Defender's Office on two separate occasions. (Doc. 38-3
at 13, Doc. Seq. 67; 69)
failure on the part of the Appellate Defender's office or
of Allard's trial counsel to provide the Amended judgment
to Allard, does not entitle Allard to delayed accrual,
because §2244(d)(1)(B) requires a state-created
impediment. The purported acts or omissions of counsel are
not attributable to the State. See e.g., Lawrence v.
Florida,421 F.3d 1221, 1226 (11th Cir.
2005), aff d on other grounds, 549 U.S. 327 (2OO7)(rejecting
argument that the state created an impediment by providing
incompetent counsel; "[t]his is not the type of State
impediment envisioned in §2244(d)(1)(B)"),
Ibarra v. Ground, 2012 WL 3259898, at *3 (CD. Cal.
July 9, 2012), adopted, 2012 WL 3257882 (CD. Cal. Aug. 8,
2Ol2)("the actions of petitioner's appellate counsel