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Killsontop v. Guyer

United States District Court, D. Montana, Missoula Division

October 11, 2019

KURTIS LEE KILLSONTOP, Petitioner,
v.
LYNN GUYER, Respondent.

          ORDER

          Dana L. Christensen, Chief United States District Judge.

         Before 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.)

         LEGAL STANDARD

         Killsontop 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 omitted).

         Because 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.

         Second, 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.

         Third, 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.

         DISCUSSION

         I. 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 procedurally defaulted.

         Under 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).

         Despite 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.

         The 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).

         Killsontop's 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.

         Although 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.

         Killsontop's 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).

         Accordingly, 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.

         II. Killsontop fails to establish the prejudice required by Martinez to excuse his claim from procedural default.

         When a 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).

         A. Killsontop's claim is eligible to be saved from procedural default through Trevino's ...


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