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Shaffer v. Fender

United States District Court, D. Montana, Billings Division

January 9, 2019

ZACHARY G. SHAFFER, Petitioner,
v.
DOUGLAS FENDER, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan United States Magistrate Judge.

         This 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.

         I. Procedural History

         In 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.[1] Shaffer was subsequently identified by Officer Srock, and was convicted of the assault.

         Following 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;[2] see also (Doc. 1 at 3, ¶6).

         Shaffer 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.

         The 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.

         In 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 postconviction petition.

         II. Shaffer's Claims

         In his 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.[3] (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.)

         As 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.[4] (Doc. 5.) Shaffer timely responded. (Doc. 6.)

         For the 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.

         III. Procedural Default

         When a 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, 729-30(1991).

         Even if 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).

         A. Shaffer's Response

         Shaffer 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.)

         Second, 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. Id.

         Third, 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 County).

         Finally, 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.[5] 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[6] 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.

         B. Fundamental Miscarriage of Justice/Actual Innocence

         In 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 ...


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