United States District Court, D. Montana, Missoula Division
L. Christensen, Chief United States District Judge.
the Court is the Order and Findings and Recommendations of
United States Magistrate Judge ("F&R") issued
by Judge Jeremiah C. Lynch. (Doc. 28.) Judge Lynch recommends
that the Court dismiss Petitioner Killsontop's Amended
Petition for Writ of Habeas Corpus. Judge Lynch also
recommends that the Court deny Killsontop a certificate of
appealability. Through appointed counsel, Killsontop timely
filed objections to the F&R. (Doc. 29.)
is entitled to de novo review of those findings to which he
has specifically objected. 28 U.S.C. § 636(b)(1)(C).
Absent objection, the 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. Am, 474 U.S. 140, 149 (1985). Clear
error is "significantly deferential" and 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
the parties are familiar with Judge Lynch's thorough
recitation of the facts and the procedural history in this
case, the Court will restate neither here. (See Doc.
28 at 3-9.) First, Judge Lynch reached a preliminary finding
that Killsontop's ineffective assistance of counsel claim
is procedurally defaulted. (Doc. 28 at 10.) Killsontop does
not specifically object to that finding, and in fact
anticipated it in his Amended Petition. (Doc. 13 at 12.)
Therefore, this Court reviews Judge Lynch's finding of
procedural default for clear error.
Judge Lynch found that the exception created by Martinez
v. Ryan, 566 U.S. 1 (2012), fails to save
Killsontop's claim from procedural default. (Doc. 28 at
20.) Killsontop specifically objects to this finding and
argues that his claim falls within the Martinez
exception, because his ineffective assistance claim is
"substantial." (Doc. 29 at 4.) Accordingly, the
Court reviews Judge Lynch's rejection of Killsontop's
Martinez argument de novo.
Judge Lynch recommended that the Court deny Killsontop a
certificate of appealability. (Doc. 28 at 22.) Because he
argues that the substantial nature of his ineffective
assistance claim saves it from procedural default, Killsontop
specifically objects to this recommendation. (Doc. 29 at 4.)
Therefore, the Court reviews the certificate of appealability
issue de novo.
Because he failed to exhaust his ineffective assistance claim
and Montana's procedural rules would now bar him from
bringing the claim in state court, Killsontop's claim is
the procedural default doctrine of habeas law, "a
federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural
rule." Martinez, 566 U.S. at 9. Procedural
default occurs when: (1) state courts reject a claim based on
"independent" and "adequate" state
procedural grounds; or (2) "if [the claim] is
unexhausted and state procedural rules would now bar the
petitioner from bringing the claim in state court."
Rodney v. Filson, 916 F.3d 1254, 1259 (9th Cir.
2019) (citations and quotation marks omitted); see
also 28 U.S.C. § 2254 (b)(1)(A).
their appearance as discrete routes to procedural default,
the road to default through failure to exhaust merges
seamlessly into the avenue to default through independent and
adequate state procedural grounds. Because the exhaustion
requirement "refers only to remedies still available at
the time of the federal petition ... it is satisfied if it is
clear that [the habeas petitioner's] claims are now
procedurally barred under [state] law." Gray v.
Netherlands 518 U.S. 152, 161 (1996) (citations omitted)
(alterations in original). In other words, "the
procedural bar that gives rise to exhaustion provides an
independent and adequate state-law ground for the conviction
and sentence, and thus prevents federal habeas corpus review
of the defaulted claim." Id. at 162.
exhaustion component of procedural default advances the
federal policy "to give the State an initial
'opportunity to pass upon and correct' alleged
violations of its prisoners' federal rights."
Picard v. Connor, 404 U.S. 270, 275 (1971) (quoting
Wilwording v. Swenson, 404 U.S. 249, 250 (1971)).
Furthermore, "the federal claim must be fairly presented
to the state courts." Picard, 404 U.S. at 275.
Because state courts cannot be faulted for failing to
consider constitutional claims sua sponte, "for
purposes of exhausting state remedies, a claim for relief in
habeas corpus must include reference to a specific federal
constitutional guarantee, as well as a statement of the facts
that entitle the petitioner to relief." Gray,
518 U.S. at 162-163 (citing Picard, 404 U.S. 770).
Accordingly, a claim is unexhausted where a petitioner
presents to the state courts only general appeals to broad
constitutional guarantees. Id. at 163; see also
Anderson v. Harless, 459 U.S. 4 (1982) (per curiam).
failure to raise his ineffective assistance claim in state
court implicates the requirements in habeas of exhaustion and
procedural default. While the record indicates that
Killsontop has presented various claims to Montana's
courts, some alleging ineffective assistance of counsel, he
has never presented them with the claim he now urges on the
federal court. Here, Killsontop alleges that his trial
counsel, Scott Spencer, ineffectively assisted him by failing
to address his "competency to proceed to trial and [his]
ability to assist in his own defense before trial and before
he took the stand to testify during his trial." (Doc. 13
at 12.) An entirely different statement of facts form the
basis for Killsontop's claim for habeas relief that he
presented to the state court on direct or collateral appeal.
(See Doc. 13-1 at 9-11.) There, his ineffective
assistance claims ranged from allegations that Spencer failed
to introduce Killsontop's statements into evidence, to
Killsontop's general disagreement with witness testimony.
(Id.) Nowhere does the record reflect that
Killsontop alleged Spencer's ineffectiveness stemmed from
a failure to challenge his competence.
Killsontop presented various factual theories to the state
courts to support his ineffective assistance claims
(Id.), the courts cannot be faulted for failing to
consider, sua sponte, whether his trial
representation was constitutionally insufficient for its
failure to challenge his competence at trial. Therefore,
although Killsontop advanced appeals to the state courts
under the Sixth and Fourteenth Amendments' broad
guarantee of effective assistance, the substance of the claim
he presents here is unexhausted.
unexhausted ineffective assistance claim is procedurally
defaulted, because Montana's procedural rules would now
bar him from bringing the claim in its courts. His conviction
became final on December 19, 2016. (See Doc. 13 at
3.) Under the Montana Rules of Criminal Procedure, the time
for filing his state post-conviction petition expired on
December 19, 2017. See Mont. Code Ann. §
46-21-102. Furthermore, and as the Respondent points out,
Montana would also bar Killsontop's claim because it
"reasonably could have been raised" in his previous
three post-conviction petitions. See Mont. Code.
Ann. § 46-21-105(1)(b).
the Court finds no clear error in Judge Lynch's
preliminary conclusion. (Doc. 10.) Killsontop's
ineffective assistance claim is unexhausted and Montana's
procedural rules would now bar him from bringing the claim in
state court. Therefore, his claim is subject to procedural
default, preventing federal habeas corpus review, unless he
can demonstrate cause and prejudice for the default. See
Gray, 518 U.S. at 162.
Killsontop fails to establish the prejudice required by
Martinez to excuse his claim from procedural
claim is procedurally defaulted, federal review "is
barred unless the habeas petitioner 'can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.'" Rodney, 916 F.3d
at 1259 (quoting Coleman v. Thompson, 501 U.S. 722,
750 (1991)). Generally, the absence or ineffective assistance
of state post-conviction counsel "cannot establish cause
to excuse a procedural default because there is no
constitutional right to counsel in state post-conviction
proceedings." Id. However, there is a narrow
exception to this general rule when the petitioner
establishes a substantial claim of ineffective assistance of
counsel. Ramirez v. Ryan, No. 10-99023, 2019 WL
4281731, at *7 (9th Cir. Sept. 11, 2019).
Killsontop's claim is eligible to be saved from
procedural default through Trevino's ...