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Otto v. Kirkegard

United States District Court, D. Montana, Great Falls Division

July 15, 2019

ROBERT LEE OTTO, Petitioner,
v.
LEROY KIRKEGARD, et al., Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge

         This case comes before the Court on state pro se Petitioner Robert Lee Otto's application for writ of habeas corpus under 28 U.S.C. § 2254.

         I. Background

         Following a guilty plea to Sexual Intercourse without Consent in Montana's Eighth Judicial District, Cascade County, Otto was sentenced to 60 years at the Montana State Prison (MSP) with 10 of the years suspended. (Doc. 1 at 2.)[1]

         Otto filed a direct appeal and argued that the state district court erred when it based its sentence, in part, upon Otto's refusal to answer a question in the presentence investigative report. Id. at 3; see also, Appellant's Brief, (Doc. 1-1 at 5-18.) The Montana Supreme Court affirmed Otto's sentence and held that the district court's reference during sentencing to Otto's failure to answer a question in the presentence report did not violate Otto's Fifth Amendment rights to remain silent and against self-incrimination. State v. Otto, 2017 MT 212, 388 Mont. 391, 401 P.3d 193; see also, (Doc. 1-1 at 87-94.)

         Otto indicates he also filed a petition for postconviction relief with the state district court, (Doc. 1 at 3, ¶11), but did not appeal the adverse decision because he “could not afford an attorney and decided to pursue relief on grounds of a constitutional violation with Habeas Corpus.” Id. at ¶13. Otto then applied for relief with the Sentence Review Division, id. at ¶9; his sentence was affirmed. See, (Doc. 1-1 at 95-96.)

         In his federal petition, Otto presents the following claims: 1) the state district court violated his Fifth Amendment rights by explicitly punishing him for his refusal to answer a question in the presentence investigative report and for his silence during sentencing; and, 2) trial counsel provided ineffective assistance by failing to advise Otto to affirmatively invoke his Fifth Amendment rights during the presentence report interview and during his sentencing allocution.

         As set forth above, Otto presented his first claim to the Montana Supreme Court on direct appeal. Because the state court addressed the merits of Otto's first claim, this Court's review is constrained by the deferential standard set forth in 28 U.S.C. §2254(d). Otto's second claim was not properly exhausted in the state court system; thus, it is procedurally defaulted.

         On March 11, 2019, this Court directed Otto to show cause as to why the claim should not be dismissed and directed him to the ways in which he might make such a showing. See generally, (Doc. 7.) But despite being provided two extensions of time to file his Response, (Docs. 9 & 11), Otto failed respond to the Court's order.

         For the reasons explained below, Otto's petition should be denied. Claim 1 does not survive deferential review under §2254(d) and Claim 2 is procedurally defaulted without excuse.

         II. Claim 1

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal habeas court may not grant relief to a state prisoner whose claim has already been “adjudicated on the merits in State court, ” 28 U.S.C. § 2254(d), unless the claim's adjudication resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court, ” § 2254(d)(1), or “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2); see also, Johnson v. Williams, 568 U.S. 289, 292 (2013). AEDPA substantially limits the power of federal courts to grant habeas relief to state prisoners, Hurles v. Ryan, 725 F.3d 768, 777 (9th Cir. 2014), and “demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). Thus, if a petitioner's claim has been “adjudicated on the merits” in state court, “AEDPA's highly deferential standards kick in.” Davis v Ayala, __ U.S., 135 S.Ct. 2187, 2198 (2015) (citations omitted).

         In response to Otto's contention that the district court imposed a longer sentence than that recommended by the parties in retaliation for Otto exercising his right to remain silent, the State countered Otto's unresponsiveness was properly considered by the state district court because it was demonstrative of his lack of remorse. State v. Otto, 2017 MT 212, ¶8. Specifically, the State contended the district court could view this as Otto's attempt to: obscure the psychological injuries he inflicted upon his victim, maximize his assertion that he would complete rehabilitation, and minimize the danger he posed to society, which were all relevant statutory sentencing factors. Id. Further, the State argued Otto “was not silent, and he did not assert the privilege with respect to every aspect of his offense.” Id.

         The Montana Supreme Court noted, while district courts cannot infringe upon a defendant's rights to silence and against self-incrimination during sentencing, a person claiming the Fifth Amendment privilege must “affirmatively invoke it” and the right can be waived if a defendant fails to assert the privilege Id. at ¶10 (citations omitted). The Court noted that Otto failed to affirmatively invoke his Fifth Amendment rights either during the PSI process or during his sentencing hearing. Id. Moreover, the Court found that the district court “carefully considered” Montana's sentencing policies, statutory factors and other relevant information in arriving at Otto's ultimate sentence. The district court's passing reference to Otto's unresponsiveness was made in the larger context of ...


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