United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge United States District Court
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.
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.)
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
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
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.)
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.)
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.
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.)
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
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).
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 ...