United States District Court, D. Montana, Billings Division
ZACHARY G. SHAFFER, Petitioner,
DOUGLAS FENDER, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Timothy J. Cavan United States Magistrate Judge.
case comes before the Court on Petitioner Zachary G.
Shaffer's application for writ of habeas corpus under 28
U.S.C. § 2254. (Doc. 1.) Shaffer is a state prisoner
proceeding pro se.
2013, Shaffer was convicted of felony Assault on a Police
Officer following a jury trial in Montana's Twenty-Second
Judicial District, Carbon County. (Doc. 1 at 2-3). The charge
against Shaffer stemmed from a report made to the Red Lodge
Police Department on January 8, 2012, of an adult male
trespassing at a local residence. Officer Greg Srock
responded to the scene, encountered the adult male, and a
physical altercation ensued. Shaffer was subsequently
identified by Officer Srock, and was convicted of the
sentencing, Shaffer filed a direct appeal, raising a claim of
ineffective assistance of trial counsel (IAC) for failure to
challenge a purported violation of Shaffer's right to a
speedy trial. The Montana Supreme Court determined
Shaffer's IAC claim was not appropriate for review on
direct appeal; Shaffer's convictions were affirmed.
State v. Shaffer, 2014 MT 34ON, ¶¶ 12-15,
377 Mont. 436, 348 P.3d 172; see also (Doc. 1 at 3,
then filed a petition for postconviction relief in the trial
court. Id. at 3, ¶ 9. Shaffer raised claims of
ineffective assistance of trial counsel, ineffective
assistance of appellate counsel, and malicious prosecution.
The trial court dismissed Shaffer's petition, finding
Shaffer failed to provide substantive evidentiary support and
advanced only conclusory allegations. Shaffer appealed the
denial of his postconviction petition, arguing the trial
court erred by denying his petition without appointing
Shaffer counsel or scheduling an evidentiary hearing.
Montana Supreme Court determined Shaffer failed to comply
with the statutory provisions governing postconviction
filings. Shaffer v. State, No. DA 15-0397, 2016 MT
39N, ¶ 5 (Mont. Feb. 16, 2016). Further, Shaffer failed
to properly brief his claims on appeal. Id. at f6.
The Court affirmed the dismissal, holding the trial
court's findings were not clearly erroneous and its
conclusions of law were correct. Id. at ¶ 8.
August 2016, Shaffer filed a second petition for
postconviction relief. In denying the petition, the trial
court held the successive petition was not permitted under
Montana law; Shaffer appealed the denial. The Montana Supreme
Court determined that Shaffer failed to raise any issues in
his second petition that either were not raised or could not
have been raised in his original petition or on direct
appeal. Shaffer v. State, No. DA 16-0584, 2017 MT
213N, ¶¶ 6-7 (Mont. Aug. 29, 2017); see
also (Doc. 1 at 4, ¶ 10). The Court affirmed the
lower court's dismissal of Shaffer's second
present petition, Shaffer alleges trial counsel provided
ineffective assistance by failing to file a motion to dismiss
his underlying criminal case based upon purported Speedy
Trial and/or Brady violations. (Doc. 1 at 4,
¶ 13(A)(i)). Shaffer asks this Court to vacate and/or
dismiss his Assault on a Peace Officer conviction with
prejudice. (Doc. 6 at 8.) Alternatively, Shaffer requests
that this Court remand his postconviction petition to the
state district court, and direct that an evidentiary hearing
be held to address the merits of Shaffer's claims. (Doc.
1 at 7, ¶ 16.)
explained above, however, the Montana Supreme Court has not
considered the merits of this claim. Id. at 5,
¶ 13 (A)(iii)). Because it appears Shaffer's claims
are now procedurally defaulted, Shaffer was directed to show
cause why his petition should not be dismissed. (Doc. 5.) Shaffer
timely responded. (Doc. 6.)
reasons set forth herein, Shaffer's petition should be
dismissed with prejudice because he has failed to demonstrate
grounds to excuse the default of his claim.
habeas petitioner has not fairly presented a constitutional
claim to the highest state court, and it is clear the state
court would now refuse to consider the claim because of the
state's procedural rules, the claim is deemed to be
procedurally defaulted. Gray v. Netherlands 518 U.S.
152, 161-62 (1996). Procedural default is based on the
"adequate state ground doctrine." The adequate
state ground doctrine "applies to bar federal habeas
when a state court declined to address a prisoner's
federal claims because the prisoner had failed to meet a
state procedural requirement. In these cases, the state
judgment rests on independent and adequate state procedural
grounds." Coleman v. Thompson, 501 U.S. 722,
a petitioner's claim is procedurally defaulted, however,
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).
advances several grounds for excusing his default. First, he
appears to allege the district court erred by not granting
him leave to amend his postconviction petition, and then
improperly dismissed his amended petition without ruling on
the merits of his claims. See, ("Show Cause #1,"
Doc. 6 at 1-2.)
Shaffer argues there were "external factors"
responsible for his default. That is, the State and the Red
Lodge Police Department disposed of evidence that would have
proven Shaffer's innocence. See, ("Show Cause
#2," Doc. 6 at 2.) Had this evidence been secured and
tested for DNA, Shaffer believes it would have shown he was
not the perpetrator of the assault on Officer Srock.
Shaffer appears to argue that the evidence introduced at
trial was insufficient to establish that he was the
perpetrator of the offense. See, ("Show Cause #3,"
at 2-6.) He also asserts in this regard that trial counsel
did an inadequate job of questioning a child witness who
provided testimony regarding Shaffer's presence in the
area on the evening of the assault. Id. at 4-6.
Shaffer also argues Officer Srock was removed from his
position in Carbon County following a wholly unrelated
incident in 2016. Shaffer believes this puts Srock's
credibility and integrity into question. Id. at 6;
see also, (Doc. 6-1 at 18) (portion of news article reporting
that Deputy Srock purportedly made factual misrepresentations
when obtaining a January 2016 search warrant in Carbon
Shaffer asserts his attorney failed to adequately communicate
with him prior to trial. Shaffer asserts that his original
trial date of July 16, 2012, was vacated without his
knowledge or a waiver of speedy trial. See, ("Show
Cause #4, Doc. 6 at 7.) Because of this continuance and a
perceived lack of communication, Shaffer's relationship
with counsel deteriorated. Ultimately, the deterioration
resulted in Shaffer lodging complaints with the Office of
Disciplinary Counsel (ODC) and filing a motion with the trial
court, in which Shaffer requested the removal of Steven
Thuesen as his attorney. Id. A hearing
was held before the trial court, during which Thuesen agreed
with Shaffer that there had been a breakdown in the
attorney-client relationship. See, Id. at 7-8
(Shaffer's summation of the hearing transcript).
According to Shaffer, the trial court declined to appoint new
counsel and, instead, gave Shaffer the options of: proceeding
pro se, proceeding with stand-by counsel, or proceeding with
Thuesen. Id. at 8. Shaffer elected to proceed with
Thuesen as counsel, but he reiterated his unhappiness with
the lack of communication from Thuesen. Id.
Fundamental Miscarriage of Justice/Actual Innocence
Schlup v. Delo,513 U.S. 298, 316 (1995), the U.S.
Supreme Court established an "actual innocence"
exception to the procedural default doctrine. In the
procedural default context, a "claim of innocence... is
procedural, rather than substantive," because it allows
a petitioner to overcome the default and obtain federal
review of his constitutional claims on the merits.
Id. at 315-16. This type of claim is not itself a
constitutional claim, but rather "a gateway through
which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits."
Id. at 315. To pass through the Schlup
gateway, a ...