United States District Court, D. Montana, Billings Division
ORDER ADOPTING MAGISTRATE'S FINDINGS AND
P. WATTERS UNITED STATES DISTRICT JUDGE
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.
Factual and Procedural Background
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.
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.
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,
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); 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.
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
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.
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.
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.
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
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
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.
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).
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 ...