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Collier v. State

United States District Court, D. Montana, Billings Division

May 22, 2019

JOHN W. COLLIER, Petitioner,
v.
STATE OF MONTANA, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED

          Timothy J. Cavan United States Magistrate Judge

         This matter comes before the Court on Petitioner, John W. Collier's, application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Collier is a state prisoner represented by counsel.

         I. Procedural History

         In May of 2002, Collier was convicted of one count of Incest following a jury trial in Montana's Fourteenth Judicial District, Musselshell County. On November 1, 2002, Collier was sentenced to fifty years in the Montana State Prison with all but twenty of the years suspended. See, Judg. (Doc. 11-20 at 1-2).

         Following his conviction, Collier filed a direct appeal and raised five separate claims. Pertinent to the petition at hand, Collier argued his trial counsel was ineffective for failing to present testimony at sentencing regarding Collier's alleged cognitive impairment. Because no such testimony was presented at sentencing, Collier argued that he was sentenced more harshly than was appropriate. (Doc. 11-21 at 23-24.) In support of his argument, Collier attached a copy of a Wechsler Intelligence test administered to him in 1976, (id. at 32-33), and a Special Services Skills Assessment from the Salish Kootenai College for the 1986-87 academic year. Id. at 34-35. Apparently, neither of these documents were provided to the state district court during Collier's criminal proceedings. The Montana Supreme Court determined the claim of ineffective assistance of counsel was not appropriate for direct appeal because it would require consideration of factual matters that were not contained in the district court record. But the Court noted the issue could properly be raised in a postconviction proceeding. State v. J.C., 2004 MT 75, ff 26-27, 320 Mont. 411, 87 P.3d 501.

         In November of 2004, Collier filed a pro se petition for state habeas relief in the Montana Supreme Court. (Doc. 11-24).[1] Among the issues raised by Collier, he argued that trial counsel failed to mention his cognitive disability, and his inability to fully comprehend and understand the psychosexual evaluation and presentence investigation and the questions that were asked of him during these interviews. Id. at 15. Collier further contended trial counsel was not present during either interview, and he was prejudiced by counsel's absence. Id. Collier argued that he lacked the requisite mental capacity to complete the sexual offender program (SOP) at prison and should be allowed to complete the program in an outpatient setting. Id. at 15-16. Collier stated he was prejudiced by counsel's failure to raise these issues during his sentencing hearing, thus depriving him of due process of law. Id. at 16. It appears Collier prepared this document with the assistance of another inmate. Id. at 18-19; see also (Doc. 11-26 at l-2)(both documents stating habeas petition drafted by Jeffry John Lout).

         The Montana Supreme Court denied Collier's petition on January 25, 2005. The Court determined that his claims constituted "collateral attacks on the validity of his sentence," and were not proper for habeas proceedings. (Doc. 11-28 at 1); Collier v. State, No. 04-864, Or. at 1 (Mont. Jan. 25, 2005). The Court noted, however, that Collier might be able to seek relief in a postconviction proceeding. Id. at 1-2. The Court further directed the Clerk of Court to forward a copy of Collier's petition to the Fourteenth Judicial District Court, and instructed that the petition be filed in the district court as a petition for postconviction relief. Id. at 2, IP 2.

         Following the directive from the Montana Supreme Court, the district court opened a postconviction matter and appointed counsel, John Bohlman, to represent Collier on March 10, 2005. (Doc. 11-30.) The district court noted the criminal proceedings did not address Collier's mental capacity, and found the allegation that Collier was unable to fully appreciate all of his circumstances was a serious one. Id. at 1-2.

         Bohlman then filed a petition for postconviction relief on Collier's behalf. (Doc. 11-31.) The petition asserted Collier was unable to comprehend the trial court proceedings and assist in his defense, trial counsel was ineffective, and an unduly harsh sentence was imposed in light of the Collier's mental deficiency. Specifically, the petition asserted Collier had a diminished mental capacity, and trial counsel should have moved for an examination of Collier's developmental disability to determine his fitness to proceed. Id. at 3. Collier also alleged trial counsel was ineffective for not presenting evidence relative to Collier's diminished mental capacity at sentencing. Id. at 4. Collier further asserted the presentence investigation report was incomplete because it did not consider or report Collier's diminished mental capacity. Therefore, the report did not adequately address Collier's "circumstances, characteristics, needs, [or] potentialities." Id. Additionally, Collier asserted he lacked the mental capacity to complete SOP while in prison. Id. at 4-5.

         Collier requested that he be evaluated pursuant to Mont. Code Ann. §46-14-202, [2] regarding his "fitness to proceed," and if Collier were found not fit, Collier asked to "be dealt with as if he had not been sentenced." Id. at 5-6. If found to have been able to assist in his own defense, Collier asked the district court to consider the updated evaluation and whether or not adjustments to his sentence were warranted. Id. at 6. Following a response from the State, the district court ordered further proceedings. (Doc. 11-35.)

         On September 1, 2005, the parties filed a "Stipulation and Statement of Matters at Issue." (Doc. 11-41.) The stipulation called for Collier to be examined by a psychiatrist or clinical psychologist of his choosing who was familiar with the sexual offender programs offered at the Montana State Prison. Id. atl. The evaluator would assess Collier's fitness to proceed. If Collier were found not to be fit, he would be dealt with as if he had not been sentenced. But if he was found to be fit, the court was to consider the degree of mental disability and determine whether adjustments to the sentence were warranted. Id. at 1-2. The parties contemplated that perhaps Collier be allowed to complete a different version of SOP. Id. at 2.

         On November 23, 2005, a subsequent Stipulation was entered by the parties, which identified Michael J. Scolatti, Ph.D. as the evaluator for the defendant. Robert Page, LCPC, was also identified as an evaluator in the event that a second evaluation was necessary or was requested by the State. (Doc. 11-43 at 2.) On December 14, 2005, the district court filed the stipulation and ordered that the evaluation occur as outlined by the parties. See e.g. (Doc. 1-16 at 12, Doc. Seq. 151); (Doc. 11-44.)

         The order for evaluation was the last substantive entry in the district court docket until 2011.[3] On January 4, 2011, the district court received a letter from Collier inquiring into the status of his case and indicating that the evaluation ordered in 2005 had never taken place. (Doc. 11-46 at 1.) The letter also explained Collier had received word from the Office of the State Public Defender (OPD) that Mr. Bohlman had retired from the practice of law and moved to Japan. Id.[4] The letter asked the court to provide clarification as to the status of the case and require that the parties comply with previous court orders, including the transfer of Collier to Warm Springs for an evaluation. Id. at 1-2.

         The district court immediately issued an order to the parties requiring both the State and the OPD to show cause as to what had transpired. (Doc. 11-47.) At this point in time, neither of the attorneys who had been involved in Collier's 2005 postconviction proceedings, Bohlman, or Musselshell County Attorney, Stacy Maloney, were practicing law in the area. See e.g., (Doc. 11-48 at 2: 23-26.)

         On March 9, 2011, Kent Sipe, the Musselshell County Attorney responded to the district court's order and explained that Collier had misled the court, and that he had, in fact, been evaluated in June of 2006 by Dr. Scolatti. Id. at 3; see also, (Doc. 12-3)(Scolatti Evaluation). Apparently, based upon what was perceived as an unfavorable evaluation from Dr. Scolatti, Bohlman had informed the Musselshell County Attorney's Office that he intended to file a motion to withdraw the postconviction petition. (Doc. 11-48 at 3-4.) This information was gleaned from e-mails exchanged between Bohlman and Karen Lekse, an administrative assistant in the Musselshell County Attorney's office, (id. at 6-7), and a handwritten note, purportedly authored by Ms. Lekse, stating "John has indicated he will file a motion to withdraw the petition for postconviction relief which was attached to the County Attorney's file. Id. at 8.

         The OPD also responded and represented that even if a postconviction hearing was granted to Collier, the Scolatti evaluation would not be helpful to Collier. Specifically, the OPD stated:

This evaluation would not suggest the defendant was unfit to proceed. It would not suggest that he suffered a mental disease or defect that would raise the issue that he was guilty but should receive a sentence to [the Department of Health and Human Services] rather than the sentence he has already been given. The evaluation would not suggest that he did not have the requisite mental state in order to be convicted of the offense he was found guilty of. In other words, the evaluation would not help him.

(Doc. 11-51 at 2.) Further, the OPD represented that it would be folly for Collier, through counsel, to admit the Scolatti evaluation to the district court because the evaluation would "do him more harm than good." Id. The OPD did not provide a copy of the report, and did not advise the district court that Dr. Scolatti reported Collier's full scale IQ to be 58, and that he was in the 2nd to 4th percentile in most areas of intellectual testing. (Doc. 12-3.)

         The district court accepted the assertions made in the OPD response that the evaluation would not assist Collier. (Doc. 11-53 at 1.) The district court did not require any additional evidence from either party, but did acknowledge that both prior attorneys involved abandoned the case without notice. Id. On April 15, 2011, Collier's postconviction petition was dismissed with prejudice. Id. at 1-2.

         On April 18, 2011, Collier filed an objection to the parties' recommendation for dismissal of his postconviction petition. See (doc. 11-52). He did not, however, file an appeal from the dismissal of his petition.

         Over three years later, Collier filed a writ of habeas corpus with the Montana Supreme Court on June 3, 2014, alleging that the sentence imposed upon him by the district court was facially invalid. (Doc. 33-1.) The Montana Supreme Court denied Collier's petition on June 17, 2014, finding the district court properly imposed conditions upon Collier's sentence and that the sentence he received was facially valid. (Doc. 33-3.)

         Collier then filed his current petition in this Court on June 10, ...


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