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Peterson v. Salmonsen

United States District Court, D. Montana, Missoula Division

October 29, 2019

BRYCE EVERETT PETERSON, Petitioner,
v.
JIM SALMONSEN; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER

          Dana L. Christensen, Chief Judge United States District Court

         On June 27, 2019 United States Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendation recommending that Peterson's petition for writ of habeas corpus under 28 U.S.C. § 2254 be denied. (Doc. 35.) Both the State and Peterson have filed objections. (Docs. 42; 47.) The Court will review de novo those findings and recommendations to which the parties specifically object. 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. Am, 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). Because the parties are familiar with the facts, they will not be restated here. For the reasons explained below, the Court will adopt the recommendation to deny Peterson's petition.

         Discussion

         In his Findings and Recommendation, Judge Lynch acknowledged that portions of Peterson's federal habeas petition may be untimely or procedurally defaulted. (Doc. 35 at 15.) However, Judge Lynch elected not to address those issues under the Ninth Circuit's exception to the procedural bar rule. Ayala v. Chappell, 829 F.3d 1081, 1096 (9th Cir. 2016); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). That is, where a court determines that a procedural issue is complex or thorny and the merits of a habeas petition are "clearly not meritorious," a court may decline the petition on the merits without addressing the procedural bar. Franklin, 290 F.3d at 1232. Turning to the merits, Judge Lynch determined that although "[m]any of Peterson's assertions appear significant" his petition fails because he cannot show prejudice regarding his Napue, Brady, or ineffective assistance of counsel claims. (Doc. 35 at 20-27.) Additionally, Judge Lynch determined that Peterson's remaining claims lacked merit. (Doc. 35 at 27-35.)

         On August 14, 2019 the State filed its objection to the Findings and Recommendation. (Doc. 42.) Though the State agreed that Peterson's petition lacked merit, it believed that Judge Lynch erred in failing to address whether Peterson's petition is barred by the Antiterrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations. (Doc. 42 at 5.) Peterson responded, asserting that his petition was timely, and, in the alternative, that he was entitled to equitable tolling. (Doc. 46.) After several extensions of time, Peterson then filed his own objections to the Findings and Recommendation addressing perceived deficiencies in Judge Lynch's analysis of the merits. (Doc. 47.) The State did not respond to Peterson's objections.

         Because the State specifically objects to Judge Lynch's review of the merits as permitted under Ayala v. Chappell, and because, in doing so, the issue is now fully briefed, the Court will address that issue de novo. Because the Court ultimately concludes that Peterson's claim is time barred, it renders the bulk of Peterson's merits objections moot.

         I. Timeliness

         AEDPA imposes a one-year statute of limitations for filing a federal habeas petition. 28 U.S.C. § 2244(d)(1). This one-year period begins to run after the date the habeas petitioner's state conviction becomes final. Carey v. Saffold, 536 U.S. 214, 216 (2002). A conviction is final either "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1). For petitioners who do not seek direct review or are barred from seeking direct review from the state's highest court, their conviction is final at the "expiration of the time for seeking such review." Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The one-year limitations period is tolled during the time "which a properly filed application for State post-conviction or other collateral review" is "pending" in front of a state court. 28 U.S.C. § 2244(d)(2). As determined by the Montana Supreme Court, Peterson's conviction became final on November 5, 2010. (Doc. 26-85 at 6.)

         On the eve of trial, Peterson entered Alford pleas to the state charges against him. (Doc. 26-7.) As explained more fully in the Findings and Recommendation, Peterson now claims that these pleas were involuntary and coerced as a result of prosecutorial misconduct and erroneous pretrial rulings. (Doc. 35 at 2-15.) Nevertheless, the state district court accepted Peterson's pleas and entered judgment on November 23, 2009. (Doc. 26-20.) Under the Montana Rules of Appellate Procedure, Peterson had 60 days from entry of judgment to file a direct appeal. M. R. App. P. 4(5)(b)(i). On the 60th day, which was January 22, 2010, Peterson filed an appeal but later moved to voluntarily dismiss it. (Docs. 26-21; 26-22.) His intent in doing so was to ask the state district court to withdraw his pleas and proceed to trial. On November 5, 2010, the Montana Supreme Court granted Peterson's motion to dismiss his appeal. (Doc. 26-23.)

         The effect of this decision was significant. By voluntarily seeking to withdraw his plea having used up his full 60 days with which to file an appeal, Peterson effectively placed all of his eggs in the state district court's basket. (Doc. 26-85 at 5-6.) When the Montana Supreme Court granted Peterson's motion on November 5, 2010 his conviction became final because he had no further right of appeal to the Montana Supreme Court-he had used up all of his time. And because he voluntarily dismissed his appeal, he had nothing left to appeal to the United States Supreme Court, in the event he had wanted to. Therefore, the Montana Supreme Court's November 5th decision signified the "expiration of the time for seeking such review," under 28 U.S.C. § 2244(d)(1) making his conviction final. This is when the federal one-year clock on Peterson's habeas claim began to tick.

         Seventeen days later, Peterson filed a motion to withdraw his Alford pleas in the state district court. (Doc. 26-24.) The Montana Supreme Court determined that this motion was a postconviction petition. (Doc. 26-85 at 4-6.) This postconviction petition was "properly filed" and, as such, tolled the one-year federal filing deadline. After a hearing, the state district court denied his motion. (Doc. 26-27.) Peterson appealed to the Montana Supreme Court and on November 5, 2013, the Court affirmed the state district court's decision to deny Peterson's motion, although the Court remanded to the district court for the sole purpose of determining the amount of restitution. (Doc. 26-33.) Peterson then petitioned for rehearing and on December 18, 2013, the Court denied his request. (Doc. 26-36.)

         Because this denial completed Peterson's first state collateral review process, the one-year clock on Peterson's federal habeas claims began again. In light of the fact that 17 days had elapsed prior to Peterson filing his motion to withdraw his Alford pleas, Peterson had 348 days from the Montana Supreme Court's December 18, 2013 petition, meaning he had until December 1, 2014 to file in federal court. Peterson filed his federal habeas claim on February 17, 2017.[1]

         Peterson argues that his conviction did not become final until on or after December 28, 2014, which is when the state district court reduced the restitution amount. Peterson believes that decision resulted in a "new judgment" which reset the clock for filing his federal claims. Peterson's argument would carry the day if an amended restitution award was a "new judgment." See Gonzalez v. Sherman, 873 F.3d 763, 768 (9th Cir. 2017) (citing Wentzell v. Neven, 674 F.3d 1124, 1126-28 (9th Cir. 2012)). A "new judgment" correcting an error in a in a previously entered judgment of conviction necessarily renders the prior judgment not "final" for statute of limitations purposes. See Lawrence v. Lizzaraga, No. 216CV0792GEBACP, 2017 WL 495774, at *2 n.5 (E.D. Cal. Feb. 7, 2017). However, consistent with the several district courts that have addressed this issue, an amendment or reduction to a restitution amount is not a "new judgment of conviction" because it does not alter or amend the custodial term. Id.; Pease v. Beach, 2011 WL 6001865, at *3-4, (D. Alaska 2011); Carrillo v. Zupan, 2015 WL 3929650, at *2 (D. Colo. 2015).

         Peterson next argues that this Court may determine that his federal petition is timely if it concludes that the Montana Supreme Court's conclusion that his December 7, 2014 postconviction challenge (the second petition) was not timely was "subterfuge" in order to avoid addressing Peterson's federal constitutional claims. Peterson argues that "[o]n rare occasions federal courts have re-examined a state court interpretation of state law when it appears an obvious subterfuge," and the Court should do so now. (Doc. 46 at 13 (citing Radio Station WOW v. Johnson,326 U.S. 120, 129 (1945)).) As already explained, Peterson's second petition on December 17, 2014 was filed after his federal habeas claim had already expired. Even assuming that the Montana Supreme Court's procedural denial of Peterson's claim was an "obvious subterfuge to evade consideration of a federal issue," Peterson's ...


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