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Stewart v. Salmonson

United States District Court, D. Montana, Billings Division

September 5, 2019

JAMES STEWART, Petitioner,
v.
JAMES SALMONSEN; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan, United States Magistrate Judge.

         This case comes before the Court on state pro se prisoner James Stewart's application for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) In a prior order, Stewart was directed to show cause as to why his ineffective assistance of counsel claim should not be dismissed as procedurally defaulted. (Doc. 11.) Stewart responded. (Doc. 18.) Stewart also has two outstanding motions pending which are addressed below.

         For the reasons discussed herein, Stewart's petition should be dismissed. His first claim is procedurally defaulted without excuse, and his second claim does not survive deferential review under 28 U.S.C. § 2254.

         I. Motion to Sue

         Stewart has filed a “Motion to Sue, ” alleging that while he was in custody of Connections Corrections West he was told he could not work on legal matters or have access to a law library. (Doc. 21 at 1.); see also, (Docs. 23 & 24.) Stewart claims he was placed in a holding cell for 8 days as a form of retaliation and then moved to the S.T.A.R.T. facility, where he was also denied access to legal materials. Id. at 1-2. Stewart asserts this treatment was oppressive and caused him anxiety in relation to both of his pending habeas cases[1] and violated his right to due process. Stewart requests damages for the treatment he received. Id. at 3.

         To the extent that Stewart attempts to pursue such a claim, a writ under 28 U.S.C. § 2254 is not the proper vehicle to attempt to secure the relief sought. “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A claim challenging prison policies and procedures is only “cognizable in habeas if it will ‘necessarily spell speedier release' from custody, meaning that the relief sought will either terminate custody, accelerate the future date of release from custody, or reduce the level of custody.” Skinner v. Switzer, 131 S.Ct. 1289, 1299 n. 13 (2001). Prisoners seeking other challenges to their conditions of confinement may have recourse under 42 U.S.C. § 1983, but not habeas.

         It appears, therefore, to the extent that Stewart seeks to challenge the purported denial of access to legal materials and/or a law library and the conditions under which he was confined, the claims would be more appropriately filed as a civil rights action under 42 U.S.C. § 1983, rather than as a habeas corpus petition. See, Blair v. Martel, 645 F.3d 1151, 1157-58 (9th Cir. 2011) (Because the prisoner's claim did not challenge the validity of his conviction or “necessarily spell speedier release” it “belongs in a § 1983 complaint, not a habeas petition.”). Accordingly, Stewart's Motion to Sue (Doc. 21) will be denied.

         II. Motion to Appoint Counsel

         Stewart has also filed a “Motion for Stand in Attorney for Evidentiary Hearing.” (Doc. 26.) Counsel must be appointed “when the case is so complex that due process violations will occur absent the presence of counsel, ” Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993) (discussing Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (per curiam)), or when an evidentiary hearing is required, Rule 8(c), Rules Governing § 2254 Cases. Counsel may be appointed at any stage of the proceedings if “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). Under § 3006A, the Court must consider the likelihood of success on the merits, the complexity of the legal issues involved, and the petitioner's ability to articulate his claims pro se. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam).

         An evidentiary hearing has not been set in this matter; thus, Stewart is not entitled to appointed counsel under Rule 8(c). Moreover, Stewart's case is not so complex that his right to due process will be violated if counsel is not appointed. The request for counsel will be denied.

         III. Background

         Following a high-speed chase in Yellowstone County on August 3, 2013, Stewart was charged with five offenses. Stewart posted bond and was released. On August 15, 2013, however, Stewart was arrested in Butte Silver Bow County for felony Partner of Family Member Assault (PFMA). Stewart was unable to post bond and remained in custody.

         On March 12, 2015, Stewart filed a pretrial motion to dismiss his Yellowstone County case for a purported speedy trial violation. The state district court determined that between Stewart's arrest and his ultimate trial, 626 days had passed. The district court attributed 243 days of the delay to the State and 383 days of delay to Stewart.[2] The district court held Stewart had not been prejudiced by the delay and, accordingly, had not been denied his right to a speedy trial.

         Following the denial of his motion, Stewart proceed to a jury trial in Yellowstone County on April 21, 2015. Stewart was convicted of felony Driving Under the Influence and Fleeing/Eluding a Police Officer. See, (Doc. 1 at 2-3.)[3]Stewart was designated a persistent felony offender (PFO) and sentenced to ten years at the Montana State Prison, with five of the years suspended; the sentence was ordered to run concurrently to his Butte Silver Bow sentence. Id. at 3, ¶4.

         Stewart filed a direct appeal arguing that his right to a speedy trial was violated. In addressing Stewart's speedy trial claim, the Montana Supreme Court set out the following chart detailing pertinent events that occurred in the intertwined Yellowstone County and the Butte Silver Bow cases:

Date

County

Event/ Action

Aug. 3, 2013

Yellowstone

Stewart arrested in Yellowstone County

Aug. 6, 2013

Yellowstone

Stewart released on bond

Aug, 15, 2013 (9:35 am)

Yellowstone

Stewart arraigned: Plead not guilty; First trial date set for Feb. 12, 2014

Aug. 15, 2013 (8:12 pm)

Silver Bow

Stewart arrested on Silver Bow County warrant for PFMA

Aug. 15, 2013-Jan 8, 2014

Silver Bow

Detained in Butte-Silver Bow Comity Detention Center: Charged; Arraigned; Trial set for Jan. 21, 2014; Denial of Motion to be Released on Own Recognizance: Omnibus hearing

Jan. 8, 2014

Silver Bow

Letter from Stewart complaining about his public defender and complementing Yellowstone County on efficiently handling his case there

Jan. 23, 2014

Silver Bow

Stewart enters guilty plea to PFMA (would later move to withdraw tins plea)

Jan. 23, 2014-Nov. 19, 2015

Silver Bow

Before sentencing occurred on Nov. 19, 2015. Stewart filed numerous pleadings regarding withdrawal of his guilty plea, habeas corpus, and complaints about counsel

Jan 27, 2014

Yellowstone

Stewart files Motion to Continue Trial

Jan 31, 2014

Yellowstone

Stewart files Waiver of Speedy Trial

Jan. 31, 2014

Yellowstone

Order Resetting Trial for May 5, 2014

May 6, 2014

Yellowstone

Stewart files Motion to Continue Trial

May 16, 2014

Yellowstone

Stewart files Waiver of Speedy Trial

May 30, 2014

Yellowstone

Order Resetting Trial for Sept. 16, 2014

Sept. 3-5, 2014

Yellowstone

Slate and Slew art file separate Status Reports requesting a jury not be assembled

Nov. 7, 2014

Yellowstone

State files Motion to Transfer Defendant

Nov. 7, 2014

Yellowstone

Order Granting State's Motion to Transfer Defendant

Nov, 13, 2014

Yellowstone

Order Resetting Trial for Mar. 2, 2015

Jan 22, 2015

Yellowstone

Stewart files Motion for Substitution of Judge, granted

Mar. 3, 2015

Yellowstone

Oder Reselling Trial for Apr 20, 2015

Mar. 12, 2015

Yellowstone

Stewart files Speedy Trial motion

Mar. 17, 2015

Yellowstone

Stewart writes complaining of counsel; Order Setting Finley Hearing for Apr, 6, 2015

Mar. 27, 2015

Yellowstone

Extension of time granted until Apr. 7, 2015

Mar. 30, 2015

Yellowstone

Order Resetting Hearing for Apr. 13, 2015

Apr. 13, 2015

Yellowstone

Finley Hearing held; Stewart stated he was satisfied with counsel

Apr. 17, 2015

Yellowstone

Order denying Stewart's speedy trial motion

Apr. 20-21, 2015

Yellowstone

Jury trial; Stewart found guilty of two charges

State v. Stewart, 2017 MT 32, 386 Mont. 315, 317, 389 P.3d 1009. The Montana Supreme Court applied the test set forth in State v. Ariegwe, which requires a balancing of the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the accused's assertion of his right to a speedy trial; and (4) the prejudice to the accused as a result of the delay. Id. at ¶8, citing, State v. Ariegwe, 2007 MT 204, ¶20, 338 Mont. 442, 167 P.3d 815. Under the first Ariegwe factor, the Court found the length of the delay that occurred in Stewart's Yellowstone county case was sufficient to trigger a state speedy trial analysis. Id. at ¶9.

         In analyzing the second factor, the Court noted Stewart did not dispute the district court's assignment to the State of the delay between his arrest and first trial date, or the delay between his fourth trial date and eventual trial. Id. at ¶11. Additionally, Stewart conceded that the 82 days that elapsed between his first and second trial dates, and the 134 days between his second and third trial dates were properly assigned to him, because he sought continuances and waived his right to a speedy trial. Id. But Stewart argued that the circumstances surrounding his continuances and waivers be considered, and correspondingly less weight be assigned to these dates, because during those periods he “actively sought his transportation to Billings during this time period but was stymied.” Id. The Court disagreed and determined these time-periods weighed heavily against Stewart. Id.

         The parties also disagreed about the assignment of the 167-day delay that occurred between Stewart's third and fourth trial settings. During this period, it appeared the parties were attempting to reach a resolution and intended to schedule a change of plea hearing. No such agreement was reached, however, and the trial date passed without a resolution. While the Court felt the State bore some responsibility for not ensuring the matter was brought to trial, the majority of the delay was attributable to Stewart who did not change his plea and then sought “to substitute the judge, fil[ed] complaints against his attorney, and proceed[ed] to trial.” Id. at ¶13. Given Stewart's actions, primary responsibility for that delay was attributed to Stewart.

         The Court also looked at Stewart's actions in assessing his response to the delay. Because Stewart twice waived his right to a speedy trial, filed a request that a jury not be assembled, gave assurances of his intent to enter a guilty plea, moved for substitution of the judge, and made complaints against his attorney which then resulted in an unnecessary hearing, analysis of this factor also weighed against Stewart. Id. at ¶ 15.

         Under the fourth Ariegwe factor, the Court determined that Stewart was not prejudiced by the delay. Stewart argued the length of his incarceration made it oppressive, and that due to his incarceration in Silver Bow County, he was deprived of a concurrent sentence, which was prejudicial.[4] The State argued that Stewart was released on bond in his Yellowstone County case, and he would not have been incarcerated but for his arrest in Silver Bow County. Thus, his incarceration resulted from felonies unrelated to his Yellowstone County case and was, accordingly, not oppressive. The Court ultimately ...


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