United States District Court, D. Montana, Billings Division
ORDER ADOPTING MAGISTRATE'S FINDINGS AND
P. WATTERS, UNITED STATES DISTRICT JUDGE.
the Court are United States Magistrate Judge Timothy
Cavan's Findings and Recommendations filed on September
5, 2019. (Doc. 28.) Judge Cavan recommends that this Court
dismiss the matter with prejudice. (Doc. 28 at 19.) After the
Court extended the objection period, Petitioner James Stewart
filed timely objections to Judge Cavan's findings and
recommendations (Doc. 33), entitling him to de novo review.
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
Court construes Stewart's objections as follows: (1) the
Court should reconsider and grant Stewart's motion to
appoint counsel (Doc. 26), which Judge Cavan denied; (2)
Stewart requires independent counsel because his state public
defender, Ed Werner, is related to a federal public defender;
(3) Stewart received ineffective assistance of counsel (IAC)
because his public defender did not object to his felony DUI
sentence exceeding the maximum sentence allowed under the
law; and (4) the state court violated Stewart's right to
a speedy trial.
Court overrules Stewart's objections as either meritless
or irrelevant to the outcome.
Court will reconsider a motion to appoint counsel only where
"it has been shown that the magistrate judge's order
is clearly erroneous or contrary to law." 28 U.S.C.
§ 636(b)(1)(A). Stewart has shown neither. The Court
will deny his request to reconsider the motion to appoint
counsel. Objection (1) is overruled.
Stewart's state public defender is related to a federal
public defender is irrelevant to his habeas petition.
Objection (2) is overruled.
Cavan recommended dismissing Stewart's IAC claim
regarding Stewart's timely return from the custody of
Butte-Silver Bow County to Yellowstone County because it is
procedurally defaulted. (Doc. 28 at 11-14.) Judge Cavan had
already provided Stewart an opportunity to show cause as to
why the claim was not procedurally defaulted, and he failed
to do so. (Doc. 11.) In Stewart's objections, he again
failed to provide any basis in law or fact as to why his
claim is not procedurally defaulted. See (Doc. 33.)
The Court has reviewed the record and concurs with Judge
Cavan: Stewart did not raise the IAC claim he raises now to
the Montana Supreme Court, and his claim is procedurally
defaulted without excuse. See (Doc. 28 at 11-14).
Stewart appears to now assert IAC because his state public
defender did not object to his felony DUI sentence exceeding
the maximum sentence allowed under the law. Stewart did raise
this argument on appeal to the Montana Supreme Court. See
Stewart v. Montana, 2018 MT 179N, ¶¶ 5, 8
[hereinafter Stewart II]. However, this is
not the IAC claim Stewart has raised in his Petition
for Habeas Corpus. (Doc. 1.) Nevertheless, the argument would
be frivolous if Stewart amended his petition to allege it.
The review of IAC claims in a federal habeas petition is
doubly deferential. Under this standard, Stewart's
argument that his counsel should have objected to his
sentence is without merit, especially where the Montana
Supreme Court concluded the sentence the state district court
imposed was legal. Id. at ¶ 8 ("The
sentence imposed by the District Court was legal. Therefore,
counsel's failure to object to the valid, legal sentence
imposed was not ineffective assistance of counsel."). To
the extent Stewart seeks to challenge the legality of his
sentence, such a claim is not cognizable in federal habeas
proceedings. Christian v. Rhode, 41 F.3d 461, 469
(9th Cir. 1994) ("Absent a showing of fundamental
unfairness, a state court's misapplication of its own
sentencing laws does not justify federal habeas
relief.") Objection (3) is overruled.
other than conclusory statements that his right to a speedy
trial was violated and that he "did not waive his right
to a speedy trial," Stewart provides no substance in law
or fact for his objection to Judge Cavan's findings and
recommendation to dismiss his speedy trial claim. (Doc. 33 at
1-2.) The Court has reviewed the record and agrees with Judge
Cavan. First, Stewart's claim that he did not waive his
right to a speedy trial is patently false. The Montana
Supreme Court documented two waivers for speedy trial Stewart
filed, Montana v. Stewart, 389 P.3d 1009, 1011, 1013
(Mont. 2017) [hereinafter Stewart I], and Stewart
has provided no reason for why this was an unreasonable
determination of the facts in light of the evidence
presented. 28 U.S.C. § 2254(d)(2); see (Doc. 28
at 6). Second, Judge Cavan provided a thorough analysis of
Stewart's speedy trial claims, which the Court has
reviewed and now adopts. (Doc. 28 at 14-18.) Stewart provides
only conclusory statements that the state district court
violated his right to a speedy trial. He has not established
that the Montana Supreme Court's attribution of the bulk
of the trial delay to him was an unreasonable application of
clearly established federal law under 28 U.S.C. §
2254(d)(1). Moreover, he has not established how the Montana
Supreme Court unreasonably applied clearly established
federal law to his speedy trial claim in general.
See (Doc. 28 at 14-18.) Objection (4) is overruled.
Court agrees with Judge Cavan in full. Therefore, the Court
adopts Judge Cavan's findings and recommendations in
Leave to Amend and Certificate of Appealabiliry
courts must grant a habeas petitioner an opportunity to amend
the petition to overcome a deficiency "unless it clearly
appears from the complaint that the deficiency cannot be
overcome by amendment." James v. Giles, 221
F.3d 1074, 1077 (9th Cir. 2000) (quoting Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).
clearly appears from the petition that Stewart cannot, by
amendment, overcome the procedural default of his IAC claim
regarding his transfer from Butte-Silver Bow County to
Yellowstone County. Neither could Stewart overcome the
deficiencies in his IAC claim for his counsel's failure
to object to his sentence, even if he had the opportunity to
add this claim to his petition. The Montana Supreme Court
affirmed his sentence was legal, Stewart II, 2018 MT
179N, ¶ 8, and Stewart cannot otherwise challenge his
sentence's legality in federal habeas proceedings.
Furthermore, it clearly appears from Stewart's complaint
that he could not overcome the deficiencies in his speedy
trial claim by amendment. The Montana Supreme Court
extensively analyzed the reasons for the delay before
Stewart's trial and attributed it primarily to him.
Stewart I, 389 P.3d at 1012-14. Stewart failed to
substantively rebut any of these factual findings or show an