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Allard v. State

United States District Court, D. Montana, Missoula Division

December 12, 2017

MICHAEL S. ALLARD, Petitioner,
v.
STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch, United States Magistrate Judge

         This case comes before the Court on Petitioner Michael S. Allard's application for writ of habeas corpus under 28 U.S.C. § 2254.

         I. Factual and Procedural Background

         A. Underlying State Conviction

         Allard 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).

         Following 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 assistance. Id.

         B. Allard's Direct Appeal

         The 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.[1] 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.[2]Id.

         C. Interim Events

         Nearly 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.[3]

         Allard 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.[4] 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.

         On July 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. Id.

         D. Allard's Petition for Out of Time Appeal

         In 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).[5] 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.

         F. Subsequent Contact with Trial Court

         Although 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.[6] 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. 31-16).

         G. Allard's Federal Habeas Petition

         Allard filed his petition in this Court on April 14, 2016.[7] 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).

         The 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.

         II. Analysis

         Because 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.[8] 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.[9] 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.

         A. Delayed Accrual of Limitations Period

         AEDPA 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.").

         Allard 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.

         As the 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)

         Any 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 cannot ...


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