United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Jeremiah C. Lynch United States Magistrate Judge
case comes before the Court on Petitioner William Fitch's
application for writ of habeas corpus under 28 U.S.C. §
2254. Fitch is a state prisoner proceeding pro se.
challenges a conviction for Tampering with Witnesses and
Informants following a guilty plea entered pursuant to a plea
agreement in Montana's Eleventh Judicial District,
Flathead County, on January 26, 2017. He was sentenced to
serve ten years in the Montana State Prison. Pet. (Doc. 1) at
2-3, ¶¶ 1-5.
did not file a direct appeal. Id. at 3, ¶ 6.
Fitch did, however, apply for sentence review; his sentence
was affirmed on May 4, 2017. Additionally, Fitch filed a
petition for postconviction relief in the state district
court, but he did not appeal the denial of that petition.
Id. at 3-4, ¶¶ 9-11.
the procedural posture of Fitch's state proceedings and
the issues Fitch attempted to advance in his postconviction
petition were both unclear, the State was directed in this
proceeding to file certain documents from the state court
record, including the plea agreement and waiver of rights
form signed by Fitch and all postconviction pleadings. See,
(Doc. 7 at 2).
alleges that he received ineffective assistance of counsel.
(Doc. 1 at 4, ¶ 13(A)(i)). He explains that prior to his
guilty plea he was misinformed of the "facts"
needed to convict that him; he took a plea deal, which he
ultimately did not receive because he was led to believe that
was the only way he would get out of jail; he did not know he
could appeal the denial of his postconviction petition; he
believes counsel performed deficiently at sentencing by
failing to present letters to the trial court and he was,
therefore, sentenced based upon untrue accusations; and, he
did not realize he could appeal from the Montana Sentence
Review Division's decision. Id. Fitch did not raise
the claim of ineffective assistance of counsel in any state
collateral proceeding. Id. at 4-5, ¶¶
a state prisoner may present a claim to a federal court, he
must first exhaust his available state remedies. 28 U.S.C.
§ 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27,
29 (2004). To do so, the petitioner must invoke one complete
round of the state's established appellate review
process, fairly presenting all constitutional claims to the
state courts so that they have a full and fair opportunity to
correct alleged constitutional errors at each level of
appellate review. O'Sullivan v. Boerckel, 526
U.S. 838, 842 (1999). The exhaustion requirement prevents the
federal court from "upset[ting] a state court
conviction" without first allowing the state courts an
"opportunity to.. .correct a constitutional
violation." Rose v. Lundy, 455 U.S. 509, 518
habeas petitioner has not fairly presented a constitutional
claim to the highest state court, and it is clear that the
state court would now refuse to consider it because of the
state's procedural rules, the claim is said to be
procedurally defaulted. Gray v. Netherlands 518 U.S.
152, 161-62 (1996). Even if a petitioner's claim is
procedurally defaulted, a federal district court may still
hear the merits of the claim if the petitioner meets one of
two exceptions: (1) a showing of actual innocence, which
means that a miscarriage of justice will occur if the
constitutional claim is not heard in federal court,
Schlup v. Delo, 513 U.S. 298, 329 (1995); or (2) a
showing of adequate legal cause for the default and prejudice
arising from the default, Murray v. Carrier, 477
U.S. 478, 488 (1986).
forth above, by Fitch's own admission, he did not present
his claims of ineffective assistance of counsel to the courts
of the State of Montana. Accordingly he was ordered to show
cause as to why the procedural default of his claims should
be excused and was directed as to the ways he might make such
a showing. (Doc. 5.) Fitch timely responded. (Doc. 6.)
does seem to argue that he was not guilty of Partner Family
Member Assault. He states that because his wife was
intoxicated and angry with him for taking her alcohol away
and hiding it, she made a false accusation of abuse to the
authorities. (Doc. 6 at 2.) Fitch believes the authorities
and his attorney did not perform an adequate investigation
into the allegations.
felony Partner Family Member Assault charge was subsequently
amended to a misdemeanor and Fitch entered an Alford
plea, to the amended charge. See, (Doc. 11-2 at
Fitch received a 6-month sentence for that offense, to run
concurrently to the 10-year Tampering sentence. The
misdemeanor sentence is now expired and is not the current
cause of Fitch's custody. See e.g. 28 U.S.C.
§ 2254(a)(a court "shall entertain an application
for writ of habeas corpus in behalf of a person in custody
pursuant to the ...