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Russell v. Guyer

United States District Court, D. Montana, Billings Division

August 27, 2019

RUSTY LEE-RAY RUSSELL, Petitioner,
v.
LYNN GUYER, WARDEN OF MONTANA STATE PRISON, Respondent.

          ORDER ADOPTING MAGISTRATE'S FINDINGS AND RECOMMENDATIONS

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on an Amended Petition for Writ of Habeas Corpus filed by Petitioner Rusty Lee-Ray Russell (Russell) pursuant to 28 U.S.C. § 2254. (Doc. 26.) United States Magistrate Judge Cavan filed Findings and Recommendations on May 15, 2019. (Doc. 31.) Judge Cavan recommended the Court deny Russell's petition. (Id. at 35.) Russell filed objections to Judge Cavan's Findings and Recommendations on June 13, 2019. (Doc. 34.) For the following reasons, the Court adopts Judge Cavan's Findings and Recommendations. Russell's Amended Petition for Writ of Habeas Corpus is DENIED.

         I. Factual and Procedural Background

         Judge Cavan summarized the initial factual background in Russell's case by referring to the Montana Supreme Court's opinion in State v. Russell, 198 P.3d 271 (Mont. 2008) [hereinafter Russell I]. (Doc. 31 at 1.) Judge Cavan summarized the procedural history of the case through Russell's second appeal, Russell v. State, 368 P.3d 1171 (Mont. 2016) [hereinafter Russell II], where the Montana Supreme Court affirmed the state district court's denial of Russell's petition for postconviction relief. Russell does not object to the factual and procedural background Judge Cavan provided. The Court adopts those findings in full and restates the factual and procedural background relevant to resolving Russell's objections.

         On April 25, 2005, Russell and an acquaintance named Spotted Wolf spent the day drinking at various locations around Billings. In the early morning hours of April 26, the two found themselves in an alley-type area behind a thrift store near downtown Billings. There they met Henry Rideshorse, and the three began sharing a bottle of vodka. After a time, the three noticed a sleeping transient, Wallin. Spotted Wolf confronted Wallin, demanding money and alcohol. Wallin did not respond. Russell drew a knife and handed it to Spotted Wolf. Spotted Wolf slashed Wallin in the face and gave the knife back to Russell, directing him to "show me what you are made of man, show me what you can do." Russell stabbed Wallin several times in the back.

         After the attack, Russell stepped further into the alleyway where he spotted another sleeping transient, Gewanski. Russell beat Gewanski and stabbed him several times. Gewanski later died of his injuries. Russell and Spotted Wolf turned their attention back to Wallin and began a second attack, but this time Rideshorse intervened in an effort to protect Wallin. Russell punched Rideshorse and pressed Spotted Wolf, "Let's do this guy, man." Spotted Wolf convinced Russell not to attack Rideshorse, and the two fled. Rideshorse helped Wallin to a nearby street to summon an officer for help. Despite suffering multiple stab wounds, Wallin survived.

         The State of Montana charged Russell with the deliberate homicide of Gewanski under Montana's felony murder statute, Mont. Code Ann. § 45-5-102(1)(b)[1]; the aggravated assault of Wallin; accountability for Spotted Wolfs robbery of Wallin; and accountability for Spotted Wolfs aggravated assault of Wallin. The State identified Russell's aggravated assault of Wallin as the underlying predicate felony for the felony murder. A jury convicted Russell on all four counts.

         Before sentencing, Russell's trial counsel, Penelope Strong, moved to dismiss his aggravated assault conviction, arguing the conviction violated his right to be free of double jeopardy because the aggravated assault charge was both a separate charge and the predicate offense for his felony murder conviction. The trial court rejected Russell's argument.

         Russell appealed his convictions to the Montana Supreme Court where Shannon McDonald of the Appellate Defenders Office initially represented him. McDonald argued the trial court erred by denying Russell's motion to dismiss his aggravated assault conviction for the same reasons Strong argued to the trial court. McDonald argued the aggravated assault and felony murder charges should merge.

         Following the completion of appellate briefing, Koan Mercer assumed the role of Russell's appellate counsel after McDonald left the Appellate Defenders Office. Mercer identified an argument for Russell on appeal that he believed Strong and McDonald had overlooked-that the underlying aggravated assault of Wallin lacked the causal connection to Gewanski's death needed to justify Russell's felony murder conviction. Mercer requested supplemental briefing to raise the claim, but the Montana Supreme Court denied his request.

         In Russell I, the Montana Supreme Court reversed the district court's denial of Russell's motion to dismiss his aggravated assault conviction. The Court agreed with both Strong and McDonald's assessment that double jeopardy prohibited the State from convicting Russell for the same aggravated assault that was the predicate offense underlying Russell's felony murder conviction. Otherwise, the Court affirmed Russell's remaining convictions and sentence. Russell I, 198 P.3d at 277- 78. In a concurring and dissenting opinion, Justice Nelson agreed with Mercer's theory that Gewanski's death was not "a natural and probable consequence" or "the natural or necessary result" of the assault on Wallin so as to justify Russell's felony murder charge. Id. at 280 (Nelson, J., concurring in part and dissenting in part) (quoting State ex rel Murphy v. McKinnon, 556 P.2d 906, 910 (Mont. 1976)). Justice Nelson believed the Court should have reversed Russell's felony murder conviction on these grounds, even though the issue was not properly presented on appeal. Id.

         In 2010, Russell filed a postconviction relief petition arguing his trial and appellate counsel provided ineffective assistance. The District Court held a hearing on the petition where several witnesses testified, including Strong, McDonald, and Mercer. Russell II, 368 P.3d at 1173-74. Strong testified she researched felony murder issues and their application to Russell's case. She raised several concerns to the District Court through motions, her trial brief, and proposed jury instructions. One of her arguments-that the aggravated assault was a lesser included offense of the felony murder-proved successful on appeal in Russell I Id. at 1174. McDonald testified her analysis of Russell's case did not permit an argument of a temporal break between the assault on Wallin and Gewanski's death. She recalled how the evidence showed that "the crimes occurred in a short period of time, in a relatively small place, with the victims close together." Id. Mercer testified there was insufficient evidence at trial to support a felony murder conviction based upon his belief that there were two separate crimes involving the two victims. He believed no reasonable attorney could hold a different opinion and that failure to reach such a conclusion fell below the duty of care for attorneys. Id.

         The District Court found Russell killed Gewanski in furtherance of the initial assault Spotted Wolf inflicted upon Wallin. The court found there was "no break in time or space," and the "events took place within feet of one another." (Doc. 7-34 at 17.) The court found Strong and McDonald's interpretation of the evidence was reasonable based on the facts of the case and that "Mercer's argument that he would have proceeded differently is not sufficient to establish ineffective assistance of counsel." (Doc. 7-34 at 18.) The court was unpersuaded Mercer's argument would have changed the outcome had it been advanced. Therefore, the court concluded each attorney rendered effective assistance. (Doc. 7-34 at 17.)

         Russell appealed, and in Russell II, the Montana Supreme Court once again affirmed his convictions. Russell II, 368 P.3d at 1178. Using the test from Strickland v. Washington, 466 U.S. 668 (1984), the Court evaluated Russell's ineffective assistance of counsel claims against both Strong and McDonald. Id. at 1176-78. The Court held Russell had failed to show either attorney's performance fell below an objective standard of reasonableness and failed to demonstrate the outcome of trial or appeal would have been different, but for his counsel's unprofessional errors. Id. at 1178.

         Russell subsequently filed a petition for a writ of habeas corpus. He raised three claims: 1) trial counsel provided ineffective assistance by failing to challenge the felony murder charge, (Doc. 26 at 20-25); 2) appellate counsel provided ineffective assistance by failing to argue there was insufficient evidence to support Russell's felony murder conviction, (id. at 25-27); and 3) Russell's right to due process was violated because he was unconstitutionally charged and convicted of felony murder despite there being no causal connection between the predicate felony and Gewanski's death, (id. at 27-28).

         Judge Cavan reviewed the claims and concluded they were without merit. (Doc. 31 at 34.) Under a "doubly" deferential standard of review, Judge Cavan determined neither trial nor appellate counsel performed deficiently. (Id. at 21.) He determined Russell's claim that his right to due process had been violated was procedurally barred. (Id. at 16-17.) He also recommended this Court deny Russell a certificate of appealability ...


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