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Ritesman v. United States

United States District Court, D. Montana, Missoula Division

September 10, 2019




         This 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.)

         i. Procedural History

         Following 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.

         Ritesman 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.

         Ritesman 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).

         ii. Ritesman's Claims

         In his 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 16-17.

         Ritesman 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.

         iii. Exhaustion/State Postconviction Proceedings

         In his 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, ¶ 15(D)(3).

         Following a review of the state court docket, [1] 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.[2]

         On 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).[3] 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.

         Thus, as evidenced by the ongoing nature of his state PCR proceedings, much like his prior federal habeas petition, Ritesman's claims ...

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