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MacGregor v. McTighe

United States District Court, D. Montana, Helena Division

January 15, 2019

JEREMY MACGREGOR, Petitioner,
v.
WARDEN MCTIGHE, TIM FOX, Respondents.

          ORDER

          Dana L. Christensen, Chief Judge United States District Court.

         Before 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).

         Because 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.

         DISCUSSION

         On 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).

         MacGregor 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 steps:

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).

         In 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.

         Judge 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.

         I. Indictment by Grand Jury and Preliminary Hearing

         In his 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.)

         Judge 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.)

         Lastly, 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 ...


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