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Wick v. Fletcher

United States District Court, D. Montana, Missoula Division

August 28, 2018

RANDY BRYANT WICK, Petitioner,
v.
MICHAEL FLETCHER, Respondent.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge

         On October 5, 2017, Petitioner Randy Bryant Wick filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Wick is a state prisoner proceeding pro se.

         Following a guilty plea in Montana's Fourth Judicial District Court, on June 10, 2015, Wick was sentenced for one count of Assault with a Weapon. For the reasons set forth below, Wick's petition should be denied.

         I. Wick's Initial 28 U.S.C. § 2254 Petition

         Wick's initial petition alleged the Montana state courts violated his Fourteenth and Sixth Amendment rights to Equal Protection and Speedy Trial because of his indigence. See (doc. 4 at 4, ¶13(A)). And he asserts he was deprived of adequate access to a video that Wick contends would have established his actual innocence. Id. at 5, ¶13(B). Wick requested dismissal of his felony conviction and asked this Court to either order his immediate release or grant him a jury trial. Id. at 7, ¶ 16. Ultimately, Findings and Recommendations were entered recommending Wick's petition be dismissed without prejudice for failure to exhaust his state court remedies. (Doc. 6.) Wick subsequently filed a Notice of Voluntary Dismissal before any final action was taken relative to the initial petition. (Doc. 7.) This Court dismissed the matter without prejudice on November 20, 2017. (Doc. 8.)

         One month later, Wick filed a motion requesting that the Court reopen his case. Wick's motion was granted and Wick was ordered to file an Amended Petition. (Docs. 10 & 13.) Wick timely complied. (Doc. 15.)

         II. State Court Collateral History

         In the time that transpired between the filing of Wick's initial petition and his amended petition in this Court, he filed an appeal from the denial of his petition for postconviction relief with the Montana Supreme Court. That Court summarized Wick's case as follows:

On January 24, 2015, Wick was involved in an altercation outside the Oxford Saloon in Missoula. Wick physically confronted a man whom he accused of failing to return forty dollars Wick gave the man to purchase marijuana. A friend of the man intervened to defend him and Wick brandished a knife, threatening both men. When a Missoula police officer arrived at the scene, Wick put away his knife and began to walk away. The officer ordered him to stop and Wick refused, which prompted the officer to tase Wick twice before Wick could be handcuffed.
Wick was subsequently charged with one count of assault with a weapon, in violation of § 45-5-213, MCA. Public Defender Ted Fellman (Fellman) was appointed counsel and Wick entered a plea of not guilty. Following plea negotiations with the State, Fellman advised Wick of an offer from the State, but explained "I still needed to get [the] surveillance video referenced in the discovery and review it to confirm that it shows what the police reports indicated." Wick nonetheless indicated that he wanted to change his plea to guilty. Wick filed a waiver of rights, a plea agreement, and entered a plea of guilty to assault with a weapon. On May 27, 2015, Wick appeared with counsel for sentencing; however, the sentencing was continued because Wick indicated he was considering withdrawing his plea. Pending the continued sentencing, Fellman obtained the surveillance video of the altercation and watched the video with Wick. Wick advised Fellman that he would consider his options and call him. On June 4, 2015, Wick notified Fellman he wished to proceed with the plea agreement. On June 10, 2015, the District Court sentenced Wick to three years to the Department of Corrections with all time suspended.[1]
On June 16, 2016, Wick wrote a letter to the District Court requesting he be allowed to withdraw his plea. Wick claimed, among other issues, that the surveillance video was new evidence. Following briefing and consideration of the record, the District Court considered the merits of Wick's request and determined that his plea was voluntary, denying Wick's request to withdraw his guilty plea.

State v. Wick, DA 17-0185, 2018 MT 99N, Or. at ¶¶ 3-5 (Mont. April 24, 2018).[2]

         On appeal Wick argued Fellman provided ineffective assistance by not allowing Wick to review the surveillance video prior to his change of plea, thus resulting in an involuntary plea. The Montana Supreme Court determined, however, that the record revealed there was a through discussion of Wick's rights and the waiver of those rights prior to the entry of Wick's guilty plea. Id. at ¶ 6. Further, Wick indicated he was not under the influence of any substances that would affect his decision making and that he was satisfied with the services of his attorney. Id. Additionally, no threats or promises had been made to induce Wick to change his plea. Accordingly, the Court found his plea was entered voluntarily and intelligently. Id.

         Relative to the surveillance video, the Court noted that Wick persisted in his decision to plead guilty despite knowing of the existence of the video and not having yet viewed it. Id. Once Wick had seen the video with his attorney, he advised the district court at a subsequent hearing that he wished to proceed to sentencing. Id.

         The Court ultimately held that Wick's plea was knowingly entered. And it concluded he failed to establish he was prejudiced by Fellman's assistance. Id. at ¶ 7. Thus the Court declined to overturn the lower court's denial of his motion to withdraw his plea of guilty. Id.

         III. Wick's Claims

         In his Amended Petition, Wick claims: 1) his Fourteenth and Sixth Amendment rights were violated because he was unable to make an intelligent plea due to his attorney's negligence and inadequate advice (doc. 15 at 3-4); and, 2) his Fourteenth Amendment rights were violated by the Montana Supreme Court when he was denied counsel on his postconviction appeal. (Doc. 15 at 5-6); see also, (Doc. 15-1 at 1-2) (Montana Supreme Court order denying Wick appointed counsel). Wick requests a jury trial or, in the alternative, a judgment of 5 million dollars compensating him for: 3 years of false imprisonment, lost wages, pain, suffering, and mental anguish. (Doc. 15 at 9.)

         IV. ...


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