United States District Court, D. Montana, Great Falls Division
LAVERNE J. VONDAL, Petitioner,
LEROY KIRKEGARD, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES
Johnston United States Magistrate Judge
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
28 U.S.C. §2254 Petition
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
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).
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.
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.
Vondal's Response to Order to Show Cause
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).
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.
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 ...