United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge United States District Court
October 5, 2018, this Court entered an Order adopting United
States Magistrate Judge Jeremiah C. Lynch's
recommendation to dismiss Claims 3, 4, and 5 of Holm's
amended habeas petition. (Doc. 48.) Judge Lynch entered his
Findings and Recommendation regarding Holm's surviving
claims on June 6, 2019, recommending that Claims 1 and 2 of
the amended petition be denied for lack of merit. (Doc. 49 at
9.) Through counsel, Holm timely filed objections. (Doc. 53.)
Respondents also object. (Doc. 52.) Consequently, the parties
are entitled to de novo review of those findings and
recommendations to which they have specifically objected. 28
U.S.C. § 636(b)(1)(C). Absent objection, this Court
reviews findings and recommendations for clear error.
United States v. Reyna- Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc); Thomas v. Arn,
474 U.S. 140, 149 (1985). Clear error exists if the Court is
left with a "definite and firm conviction that a mistake
has been committed." United States v. Syrax,
235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
alleges that he is entitled to relief under the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA").
His petition may be granted only if the operative state court
decision-in this instance, the opinion of the Montana Supreme
Court in Montana v. Holm, 304 P.3d 365 (Mont.
2013)-either: (1) "was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United
States"; or (2) "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. §
2254(d). Holm alleges that two of the Montana Supreme
Court's decisions meet this high standard, challenging
that Court's affirmance of the state trial court's
(1) denial of Holm's request for new counsel, and (2)
denial of his request for a continuance. (Doc. 20 at 13,
Lynch recommended denying Claims 1 and 2 for lack of merit.
(Doc. 49.) Holm objects as to both claims. Although Judge
Lynch recommended granting relief to Respondents, they
nonetheless object to the reasoning set forth in the Findings
and Recommendation, arguing that Judge Lynch ought to have
applied AEDPA deference instead of looking strictly to the
record created in the state trial court. Given the breadth of
the parties' objections-to both the standard applied and
Judge Lynch's analysis-the Court reviews Holm's
entitlement to habeas relief de novo.
night of November 9, 2010, Holm drove his northbound vehicle
across the southbound lane of Missoula's Brooks Street
and onto the sidewalk, where his vehicle struck and killed
pedestrian Brian Beaver. Holm, 304 P.3d at 367.
Responding officers found evidence of Holm's consumption
of alcohol, Ambien, hydrocodone, and a prescription
antidepressant. Id. At the time, Holm said that he
did not remember the accident. Id.
defender Scott Spencer was assigned to the case. Id.
at 368. Trial was initially set for April 13, 2011, but the
trial court granted Holm's first motion to continue and
reset the start date for August 3, 2011. Id. On July
8, Holm moved again to continue trial, citing medical issues,
but he withdrew the motion on July 19. Id. On July
26-just one week later and only eight days before trial- Holm
appeared in court with both Spencer and a new attorney,
Richard Buley, and requested another continuance to allow
Buley to prepare. Id.
trial court denied Holm's third continuance request,
noting his belief that Holm was strategically seeking delay.
Id. Three days later-now five days before trial-Holm
filed a pro se motion for appointment of different counsel
and a fourth motion for a continuance. Id. Holm
argued that Spencer's representation was ineffective.
Id. After a hearing, the Court denied both motions,
finding that Spencer was providing adequate representation
and that Holm did not seek a continuance in good faith but
only to delay trial. Id.
convicted Holm of vehicular homicide under the influence on
August 5, 2011. (Doc. 27-9.) He was sentenced to 30 years
custody with fifteen years suspended. (Doc. 27-12.)
parties agree that the Court must give deference to the
Montana Supreme Court under AEDPA and may grant Holm's
petition only if that Court's decision: (1) "was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States"; or (2) "was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. § 2254(d). Applying AEDPA deference, the Court
finds that neither claim 1 nor 2 of the Amended Petition may
Claim 1: Substitution of Counsel
claims that the Montana Supreme Court unreasonably
interpreted the facts and misapplied United States Supreme
Court law when it held that the trial court conducted an
adequate colloquy as to Holm's request for counsel. (Doc.
20 at 13.) He argues that the United States Supreme Court has
clearly established a right to an attorney who
"function[s] in the active role of an advocate" and
that the Montana Supreme Court unreasonably determined that
the trial court sufficiently safeguarded that right.
Entsiminger v. Iowa, 386 U.S. 748 (1967). (See
Id. at 13-17.)
Court assumes for the sake of argument that United States
Supreme Court law clearly establishes that a state trial
court must fully investigate a defendant's
dissatisfaction with court-appointed counsel. See Martel
v. Clair,565 U.S. 648 (2012) (setting forth standard
for federal habeas petitioners' ...