United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge.
19, 2019 United States Magistrate Judge Jeremiah C. Lynch
entered his Findings and Recommendations recommending that
Andrew David Golie's Amended Petition (Doc. 6) for writ
of habeas corpus be denied. (Doc. 12.) On August 12, the
Findings and Recommendations were returned to the Court as
incorrectly postmarked. (Doc. 15.) The Court resent the
document, and then on August 26, Golie requested an extension
of time to file his objections. (Doc. 16.) The Court granted
Golie's request and gave him until September 30 to do so.
(Doc. 17.) That date has come and gone. The Court will
construe this matter as unobjected.
is only entitled to de novo review of those findings to which
he or she specifically objects. 28 U.S.C. §
636(b)(1)(C). This Court reviews for clear error those
findings to which no party objects. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);
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).
is a state pro se prisoner seeking a writ of habeas corpus
under 28 U.S.C. § 2254. Golie challenges his 2012
conviction for felony witness tampering. As the facts
underlying his offense and the procedural history of his case
are recited in the Magistrate Judge's findings, they will
not be restated here.
petition, Golie raises an ineffective assistance of counsel
("IAC") claim. This claim was considered by the
state court and denied on the merits. Therefore, the
Antiterrorism and Effective Death Penalty Act
("AEDPA") applies. To warrant relief, Golie must
demonstrate that the state court's denial was
"contrary to or an unreasonable application of clearly
established federal law." 28 U.S.C. § 2254(d). The
clearly established federal law is Strickland v.
Washington, 466 U.S. 668 (1984). Under
Strickland, a claim for IAC requires a claimant to
demonstrate that: (1) counsel's performance was deficient
and (2) the deficient performance prejudiced the defense.
Id. at 687. This is a tall order. In order for Golie
to obtain relief, he must show that the Montana Supreme
Court's decision that counsel's performance was not
deficient or that Golie was not prejudiced by any allegedly
deficient performance was contrary to or an unreasonable
application of Strickland.
Lynch determined that each of Golie's five claims did not
survive AEDPA deference. Turning to the first one, Judge
Lynch determined that Golie could not show that his counsel
was deficient in failing to raise an objection to the mental
state instruction offered at trial because the instruction
referenced a matter of state law and the Montana Supreme
Court determined that the instruction was proper. If the
instruction was proper, counsel could not have been deficient
in failing to object. Therefore, Judge Lynch correctly
determined that Golie's claim fails AEDPA deference.
Judge Lynch determined that counsel was not deficient in
failing to object to the gang-related references at trial
when Golie himself opened the door to such testimony and
counsel made a tactical decision to directly confront the
issue and allow Golie to explain himself. Because tactical
decisions by counsel are accorded a high degree of deference,
Yarborough v. Gentry, 540 U.S. 1, 6 (2003), Judge
Lynch was correct that Golie did not meet his burden.
Lynch then determined that Golie failed to demonstrate that
counsel erred by not objecting to Detective Murphy's
improper bolstering testimony in light of counsel's
affidavit that this was also a tactical decision. Counsel
clarified that she allowed the detective to continue because
she believed that the longer he spoke, the more credibility
he lost with the jury, which was good for Golie's
defense. This is a reasonable explanation and there is no
clear error in Judge Lynch's assessment that this claim
to Golie's next claim, there is also no clear error in
Judge Lynch's assessment that Golie could not show a
constitutional error in counsel's accidental reference to
a prior conviction. Once the reference slipped from
counsel's tongue, she made the tactical decision to
question Golie on the matter so that the jury would know that
his prior conviction was only a misdemeanor traffic offense.
The Montana Supreme Court determined that Golie failed to
show any prejudice from this information coming to light.
Given the high standard necessary to show prejudice, there is
no clear error in Judge Lynch's assessment that Golie did
not met his burden under AEDPA.
there is no clear error in Judge Lynch's determination
that, having failed to allege a single constitutional
violation, there is no cumulative error in this case.
finding no close calls, the Court will adopt the
recommendation to deny a certificate of appealability.
reviewed each of Judge Lynch's determinations in this
matter, the Court will adopt the ...