United States District Court, D. Montana, Billings Division
JOHN W. COLLIER, Petitioner,
STATE OF MONTANA, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS OF
Timothy J. Cavan United States Magistrate Judge
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.
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
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.
November of 2004, Collier filed a pro se petition for state
habeas relief in the Montana Supreme Court. (Doc.
11-24). 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
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,
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.
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.
requested that he be evaluated pursuant to Mont. Code Ann.
§46-14-202,  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.)
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.
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.)
order for evaluation was the last substantive entry in the
district court docket until 2011. 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. 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.
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.)
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
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.
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.
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.
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.
then filed his current petition in this Court on June 10,