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Bagnell v. McTighe

United States District Court, D. Montana, Missoula Division

December 10, 2019

BRANDON KALE BAGNELL, Petitioner,
v.
PATRICK MCTIGHE; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          ORDER

          Dana L. Christensen, Chief Judge United States District Court

         On 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.)

         LEGAL STANDARD

         Bagnell 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).

         DISCUSSION

         Judge 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, n.15.)

         The Court will address each of Bagnell's claims and his objections to the corresponding findings in the F&R in turn.

         I. BagnelPs claim related to his expired 2014 conviction falls outside the Court's habeas jurisdiction and is denied for lack of merit.

         Bagnell 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.

         The 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.[1] 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)).

         However, 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.

         After 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 and ...


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