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Fitch v. Attorney General of State

United States District Court, D. Montana, Missoula Division

October 23, 2018

WILLIAM FITCH, Petitioner,


          Jeremiah C. Lynch United States Magistrate Judge

         This 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.

         I. Background

         Fitch 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.

         Fitch 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.[1] 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.

         Because 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).

         Fitch 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.[2] Id. Fitch did not raise the claim of ineffective assistance of counsel in any state collateral proceeding. Id. at 4-5, ¶¶ 13(A)(ii)-(v).

         II. Procedural Default

         Before 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 (1982).

         When a 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).

         As set 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.)

         i. Actual Innocence

         Fitch 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.

         But the 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 4.)[3] 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. ยง 2254(a)(a court "shall entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the ...

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