United States District Court, D. Montana, Missoula Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
KATHLEEN L. DESOTO, UNITED STATES MAGISTRATE JUDGE
case comes before the Court on state pro se petitioner
Timothy Eric Ritesman's application for writ of habeas
corpus under 28 U.S.C. § 2254. Because the procedural
posture of the claims contained in the petition were unclear,
Ritesman was directed to file an amended petition addressing
the issue of exhaustion and explaining the status of his
state collateral proceedings. (Doc. 2 at 2.) Ritesman
complied and filed an amended petition. (Doc. 11.)
a jury trial in Montana's Fourth Judicial District,
Missoula County, Ritesman was convicted of Aggravated Assault
and Violation of a No- Contact Order. Written judgment was
entered on May 25, 2016. Ritesman received a fifteen-year
prison sentence, with seven of the years suspended for the
Aggravated Assault. Id. The six-month sentence for
the misdemeanor no contact order violation was ordered to run
concurrently to the prison sentence.
timely filed a direct appeal and argued that the prosecutor
deprived him of a fair trial based upon argument presented in
her closing argument and that the conditions of release in an
unrelated misdemeanor Partner Family Member Assault were not
sufficient to support a conviction for violating a no-contact
order. On March 20, 2018, the Montana Supreme Court affirmed
the Aggravated Assault conviction and reversed the Violation
of a No-Contact Order conviction. State v. Ritesman,
2018 MT 55, 390 Mont. 399, 414 P.3d 261.
previously filed a petition with this Court, but because
Ritesman still had state remedies available to him, his
petition was dismissed without prejudice as unexhausted. See,
Ritesman v. Salmonsen, CV-18-93-M-DLC, Judg.
(entered July 12, 2018).
amended petition Ritesman alleges: (1) trial counsel provided
ineffective assistance in various ways, (Doc. 11 at 3, ¶
15(A)(1); (2) the charging document alleging Ritesman
violated a no-contact order was illegal, id. at 4,
¶ 15(B)(1); (3) the prosecution engaged in misconduct,
id. at 5, ¶ 15(C)(1); (4) appellate counsel
performed deficiently, id. at 6, ¶ 15(D)(1);
(5) trial counsel failed to perform an adequate
investigation, id. at 8-10; (6) trial counsel's
ineffective assistance resulted in a due process violation,
id. at 10; (7) trial counsel failed to impeach the
alleged victim, id. at 11; (8) trial counsel
performed inadequately during pre-trial motion proceedings
and in preparation of the jury instructions, id. at
11-14; (9) the state failed to weigh the victim's
credibility and improperly bolstered her testimony by use of
an expert witness, id. at 15; (10) trial counsel
performed deficiently during voir dire, id. at
15-16; and, (11) the trial judge was biased. Id. at
asks this Court to order a new trial or, alternatively,
conduct a hearing on his newly discovered evidence.
Id. at 7, ¶ 18. Additionally, Ritesman requests
he be immediately released, his sentence be vacated, and that
all charges be expunged from his record. Id.
Exhaustion/State Postconviction Proceedings
amended petition, Ritesman has expressed confusion regarding
the status of his state postconviction (PCR) proceedings.
Ritesman explains that he has received no response to his PCR
petition, but he is aware that the presiding judge, Hon.
Leslie Halligan, apparently recused herself, and the case was
subsequently transferred to Hon. John Larson, and then to
Hon. Robert Deschamps. See, (Doc. 11 at 3, ¶ 13); see
also, Id. at 5, ¶ 15(B)(5), (C)(5); 6, ¶
a review of the state court docket,  the Court understands
Ritesman's confusion. As explained by Ritesman, the PCR
matter has been transferred from Judge Halligan, to Judge
Larson, to Judge Deschamps. On August 1, 2019, the Montana
Supreme Court ordered retired District Court Judge Ed McLean
to preside over the proceedings.
August 22, 2019, Hon. Ed McLean issued a preliminary
administrative order addressing "seven issues necessary
for the efficient and fair adjudication" of
Ritesman's PCR petition. See, Ritesman v. State,
DV-18-829, Or. (filed Aug. 22, 2019). It appears Mr. Ritesman may
presently be represented by the Office of the State Public
Defender (OPD). The OPD was directed to either provide a
status report or file a motion to withdraw from
Ritesman's representation within 30 days of the court
order. Id. at 3-4. Following a filing from the OPD,
the parties were advised the district court would then issue
a scheduling order addressing discovery and setting deadlines
for the State's response to Ritesman's petition and
for Ritesman's reply. Id. at 4.
as evidenced by the ongoing nature of his state PCR
proceedings, much like his prior federal habeas petition,
Ritesman's claims ...