United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge United States District Court
October 17, 2019, United States Magistrate Judge Kathleen L.
DeSoto entered her Order and Findings and Recommendation
("F&R") in the above-captioned matter. (Doc.
7.) She recommends that the Court deny Petitioner Brandon
Kale BagnelPs ("Bagnell") first claim for habeas
corpus relief and dismiss his second claim as unexhausted.
(Id. at 13.) And, because she concluded that
reasonable jurists would not find a basis to encourage
further proceedings, Judge DeSoto recommends that the Court
deny a certificate of appealability. (Id.)
timely filed objections and is therefore entitled to de novo
review of those findings to which he specifically objects. 28
U.S.C. § 636(b)(1). Absent objection, the Court reviews
the Magistrate Judge's findings and recommendations for
clear error. United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003); Thomas v. Am, 474 U.S.
140, 149 (1985). Clear error exits if the Court is left with
the "definite and firm conviction that a mistake has
been committed." United States v. Syrax, 235
F.3d 422, 427 (9th Cir. 2000) (citations omitted).
DeSoto thoroughly set out the factual and procedural
background in her F&R, so the Court will not transcribe
her work here. (See Doc. 7 at 2-6.) In his petition for writ
of habeas corpus, Bagnell asserts two claims. First, he
contends that his current incarceration violates his right to
due process. (Doc. 1 at 4, ¶ A.) Bagnell rests this
claim on the theory that the State unconstitutionally
obtained a prior conviction against him in 2014.
(Id.) The allegedly unconstitutional prior
conviction (Cause No. DC-13-80), in turn, served as an
enhancement for the sentence he is currently serving (Cause
No. DC-15-355). (Id.) Therefore, Bagnell argues, the
sentence he is currently serving in DC-15-355 is
unconstitutional as a "collateral consequence" of
the unconstitutional prior conviction in DC-13-80.
(Id.) Second, Bagnell claims that counsel
ineffectively represented him in DC-15-355 by failing to
address the unconstitutional collateral consequence issue.
(Id. at 5, ¶ B.) As Judge DeSoto notes in her
F&R, Bagnell has filed a direct appeal challenging his
2018 stalking conviction in DC-15-355, which is currently
pending before the Montana Supreme Court. (Doc. 7 at 6,
Court will address each of Bagnell's claims and his
objections to the corresponding findings in the F&R in
BagnelPs claim related to his expired 2014 conviction falls
outside the Court's habeas jurisdiction and is denied for
lack of merit.
challenges the constitutionality of his 2014 conviction by
packaging it as an attack against the sentence he is
currently serving for his 2018 conviction. (See Doc. 7 at 8.)
To that end, he seeks an evidentiary hearing to question the
validity of the guilty plea he entered in 2014 in DC-13-80-a
conviction which ultimately resulted in an enhancement of the
sentence handed down in 2018 in DC-15-355. (Docs. 8 at 1; 1
at 4.) For the following reasons, his claim is denied.
Court notes and Bagnell does not dispute that, for federal
habeas purposes, his 2014 conviction constitutes an
"expired" conviction. That is, Bagnell has fully
served the sentence for the 2014 conviction. Dubrin v.
People of California, 720 F.3d 1095, 1097 (9th Cir.
2013). Usually, an expired conviction cannot serve as a basis
of a § 2254 petition:
[W]hen an "expired" prior conviction  is later
used to enhance a criminal sentence, a state prisoner
"generally may not challenge the enhanced sentence
through a petition under § 2254 on the ground that the
prior conviction was unconstitutionally obtained."
Id. (quoting Lackawanna Cnty. Dist Attorney v.
Coss, 532 U.S. 394, 403-04 (2001) (plurality opinion)).
the Ninth Circuit permits federal habeas review of expired
prior convictions "when the defendant cannot be
'faulted for failing to obtain timely review of a
constitutional claim.'" Id. at 1098
(quoting Lackawanna Cnty. Dist. Attorney, 532 U.S. at 405).
Two sets of circumstances may satisfy this so-called
Lackawanna/Dubrin exception: first, "a state court,
without justification, refuses to rule on a constitutional
claim that has been properly presented to it,"
Id. (internal quotation marks and modification
omitted); or second, the petitioner obtains "compelling
evidence that he is actually innocent of the crime of
conviction," Lackawanna County District Attorney, 532
U.S. at 405. To fall within the second set of circumstances,
the "compelling evidence" must be that "which
he could not have uncovered in a timely manner."
Lackawanna Cnty Dist. Attorney, 532 U.S. at 405.
analyzing the Lackawanna/Dubrin exception, Judge DeSoto found
that BagnelPs 2014 conviction satisfied neither of the
prerequisites. (Doc. 7 at 9-11.) First, she concluded that
while Bagnell attacked the correctness of the state
courts' decisions on his challenges to the 2014
conviction, he failed to show that they refused to rule on
any constitutional claim he presented to them. (Id.
at 10.) Second, she determined that Bagnell presented no
compelling evidence of his innocence, but rather rehashed a
legal argument that was the subject of a motion to dismiss