United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Jeremiah C. Lynch United States Magistrate Judge
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.
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.
Wick's Initial 28 U.S.C. § 2254 Petition
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.)
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.)
State Court Collateral History
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
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
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).
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.
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.
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
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.)