United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge United States District Court.
the Court is Inmate Jeremy MacGregor's
("MacGregor") petition for habeas corpus. (Doc. 1.)
On October 26, 2018 United States Magistrate Judge John
Johnston entered his Order and Findings and Recommendations
recommending that MacGregor's petition be denied. (Doc.
7.) MacGregor timely objected and is therefore entitled to de
novo review of those findings to which he specifically
objects. 28 U.S.C. § 636(b)(1). This Court reviews for
clear error those findings and recommendations to which no
party objects. United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Am, 474
U.S. 140, 149 (1985). Clear error exists if the Court is left
with a "definite and firm conviction that a mistake has
been committed." United States v. Syrax, 235
F.3d 422, 427 (9th Cir. 2000) (citations omitted).
the parties are familiar with the factual and procedural
background, it will only be restated as necessary to
understand this order. For the reasons explained, the Court
adopts the Findings and Recommendations in full.
habeas review, this Court applies the deferential standard
imposed under the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA") and may not reverse a state
court decision unless the state's adjudication on the
merits (1) "resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States" or (2) "resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
claims that appellate counsel violated his right to effective
assistance by failing to request an over-length brief to
raise certain claims on direct appeal. "The due process
clause of the fourteenth amendment guarantees a criminal
defendant the right to the effective assistance of counsel on
his first appeal as of right." Moormann v.
Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010) (quoting
Miller v. Keeney, 882 F.2d 1428, 1431 (9th Cir.
1989)). When a court reviews a claim for ineffective
assistance of counsel whether on direct appeal or collateral
review, it does so under the standard put forth in
Strickland v. Washington, 466 U.S. 668 (1984).
Moormann, 628 F.3d at 1106. This inquiry has two
First, the petitioner must show that counsel's
performance was objectively unreasonable, which in the
appellate context requires the petitioner to demonstrate that
counsel acted unreasonably in failing to discover and brief a
merit-worthy issue. Second, the petitioner must show
prejudice, which in this context means that the petitioner
must demonstrate a reasonable probability that, but for
appellate counsel's failure to raise the issue, the
petitioner would have prevailed in his appeal.
Id. (internal citations omitted).
assessing counsel's performance, courts are instructed to
"indulge in a strong presumption that counsel's
conduct f[ell] within the wide range of professional
assistance." Strickland, 466 U.S. at 689.
Johnston recommended dismissing MacGregor's habeas
petition, finding that it did not survive deferential review
under AEDPA. In response, MacGregor raised nine objections.
The Court will address each below.
Indictment by Grand Jury and Preliminary Hearing
petition, MacGregor claimed his due process rights were
violated when: (1) his request for a preliminary hearing was
denied and the trial court made no determination that
MacGregor waived this right; (2) he was charged with a felony
according to state procedure (as opposed to indictment by
grand jury); and (3) his right to a fair trial was violated
when the prosecutor and trial judge "participated in the
accusatory process," by signing documents related to the
criminal charge then failing to recuse themselves. (Doc. 1 at
4, 5, 8.)
Johnston determined that appellate counsel's performance
was not deficient for failing to raise plainly frivolous
claims. (Doc. 7 at 12-14, 13 n.7 (collecting cases).)
MacGregor objects, first by arguing that he is entitled to an
evidentiary hearing to develop the factual record. (Doc. 8 at
11-3.) This objection misconstrues the nature of Judge
Johnston's determination-Judge Johnston found that
MacGregor's claims lacked a cognizable legal theory not
factual support. MacGregor next seeks to clarify that his due
process rights were violated when the prosecutor failed to
recuse himself after a conflict of interest developed in the
case. (Doc. 8 at 5-6.) As already explained, there is no
conflict of interest where a prosecutor makes a sworn
statement during the charging process. (Doc. 7 at 12-13.)
MacGregor claims that the Findings and Recommendations did
not fully appreciate the biased nature of the trial judge and
its impact on the fairness of MacGregor's trial. (Doc. 8
at 7-8.) While the factual basis for this claim was not well
developed in MacGregor's federal habeas petition, this
claim was addressed by the state court. There, the court
determined that MacGregor failed to substantiate this
argument with anything other than conclusory allegations,
which does not satisfy the high standard ...