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Vondal v. Kirkegard

United States District Court, D. Montana, Great Falls Division

February 28, 2018

LAVERNE J. VONDAL, Petitioner,
v.
LEROY KIRKEGARD, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         This case comes before the Court on Petitioner LaVerne Vondal's application for writ of habeas corpus under 28 U.S.C. § 2254. Vondal is a state prisoner proceeding pro se.

         I. 28 U.S.C. §2254 Petition

         A. Procedural History

          Vondal challenges convictions for Operation of Unlawful Clandestine Laboratory and two counts of Criminal Endangerment handed down in Montana's Fifteenth Judicial District, Sheridan County, on November 15, 2004. See, (Doc. 28-28). Vondal was sentenced to forty years in prison with twenty-five of the years suspended.

         Vondal then engaged in a lengthy and convoluted path toward collateral review of his 2004 conviction, which included the filing of a prior federal habeas petition. Vondal's first federal petition was ultimately dismissed with prejudice as time-barred and procedurally defaulted. Vondal v. Frink, CV-11-42-GF-SEH, Or. (D. Mont. Sept. 14, 2011).

         The procedural history from 2014 to Vondal's present filing was included in this Court's order to Vondal to show cause as to why his pending petition should not be dismissed as procedurally defaulted and will not be repeated herein. See (Doc. 33 at 2-6). Vondal was directed as to how he could make such a showing. Id. at 7-8. Vondal timely responded. (Doc. 34). As set forth below, because Vondal has not demonstrated adequate cause to excuse the procedural default, his petition should be dismissed.

         B. Vondal's Claims

         Vondal claims: (1) an illegal search and seizure occurred in violation of the Fourth Amendment, (Doc. 22 at 4-5); (2) trial counsel provided ineffective assistance of counsel by failing to file a suppression motion, failing to adequately investigate his case, failing to file his direct appeal, and laboring under a conflict of interest (id. at 5-7); (3) the trial judge was biased and engaged in misconduct (id. at 7-8); and, (4) Vondal was denied a fair trial in violation of his right to due process. Id. at 9. Vondal seeks immediate release from custody and expungement of his criminal record. He asks this Court to order the state courts to allow him to file his direct appeal and appoint conflict-free counsel to represent him. Id. at 11.

         C. Vondal's Response to Order to Show Cause

         In order to demonstrate a legitimate cause excuse for his default Vondal was advised he that he might show “‘some objective factor external to the defense'” prevented him from raising his claims in state court. Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); see also (Doc. 33 at 7-8). Vondal was also instructed he could establish requisite “prejudice” if he could show that each error he alleges was serious enough to undermine confidence in the outcome of the proceeding. Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir. 2007) (en banc) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also (Doc. 33 at 7-8).

         Vondal contends that cause exists to excuse his procedural default, because his appointed counsel effectively abandoned him on direct appeal. (Doc. 34 at 3). This abandonment, in turn, resulted in Vondal's direct appeal being left uncompleted. Id. at 4. Vondal asserts that his attorney also failed to follow the proper procedure, under both state and federal law, from withdrawing her representation. Id. at 4-5. Vondal goes on to argue that the prejudice to excuse the default can be presumed in a situation such as his, when one has been abandoned by counsel and denied his Sixth Amendment right to the effective assistance of counsel. Id. at 6.

         D. Analysis

         Because Vondal's response goes back to his 2004 conviction, direct appeal, and postconviction proceedings, a closer examination of the procedural developments during that timeframe is ...


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