Cudd v. Montana

JAMES CUDD, SR., Petitioner, v. STATE OF MONTANA, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondent.

Cause No. CV 17-108-BLG-SPW-TJC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION

March 16, 2021

ORDER

This matter comes before the Court on an application by Petitioner James Cudd for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 of the Antiterrorism and Effective Death Penalty Act (AEDPA). Because the Court was unable to discern exactly what claims Cudd was attempting to advance, he was directed to file an Amended Petition.¹ Cudd complied.²

Following a review of the Amended Petition, the Court noted it appeared that Cudd's petition faced procedural hurdles; he was directed to respond to the issue of procedural default.³ After being provided several filing extensions due toongoing medical issues surrounding his vision impairment,⁴ Cudd was appointed counsel.⁵ Counsel filed a Second Amended Petition.⁶

In his Second Amended Petition, Cudd claims: (1) trial counsel was ineffective for failing to interview or call several witnesses to testify at his trial; (2) trial counsel was ineffective for failing to object to a member of the audience coaching witness D.F. during her testimony; (3) trial counsel was ineffective for failing to give an opening statement; (4) appellate counsel was ineffective for failing to challenge the admission of hearsay testimony; and, (5) the prosecutor engaged in misconduct when asking a witness to read from his psychosexual evaluation during her testimony.⁷ Respondents filed their Answer, arguing first that Cudd had failed to exhaust Claims 2-5 and a portion of claim 1 and, accordingly, these claims are procedurally barred from review.⁸ As to the portion Claim 1 that was not defaulted, Respondents assert Cudd failed to meet his burden of establishing that the Montana Supreme Court's review of the claim was "contrary to" clearly established law or an "unreasonable application" of that law.⁹ Respondents also believe Cudd's claims lack merit.¹⁰

Cudd concedes the procedural default of his claims,¹¹ but argues that his poor health and eyesight prevented him from properly preparing his postconviction appeal and, thus, constitutes "cause" to excuse the procedural default.¹² Cudd also argues the default of Claims 1-3, alleging the ineffective assistance of trial counsel, can be excused via the application of Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013).¹³

Both parties consented to proceed before the undersigned for all purposes. See, 28 U.S.C. § 636( c).¹⁴ For the reasons set forth herein, that portion of Cudd's ineffective assistance of counsel claim relative to failure to interview Josebele Kenny and Vivian Hall is denied because it does not survive deferential review under §2254(d), and the remaining claims are dismissed as procedurally defaulted without excuse.

I. Background

The procedural history of this matter has been set forth at length in prior orders of the Court; the facts pertinent to this Court's present analysis are included in this section. Further facts will be included below where necessary.

Cudd was charged in Montana's Twenty-Second Judicial District, Big HornCounty, with Incest and Sexual Intercourse without Consent. Cudd was initially represented by Nancy Schwartz, but Robert Kelleher, Jr. assumed representation and served as Cudd's trial counsel.¹⁵ Prior to trial, the Incest charge was dismissed.¹⁶ Following a jury trial in 2012, Cudd was convicted of Sexual Intercourse without Consent. Cudd received a prison sentence of seventy years with a twenty-year parole restriction.¹⁷

i. Direct Appeal

The Montana Supreme Court granted Cudd leave to file an out-of-time appeal.¹⁸ Cudd was represented by Greg Hood on appeal. Cudd raised a single issue, arguing that the trial court abused its discretion when it denied his challenge for cause of a juror whose daughter had been the victim of sexual abuse. State v. Cudd, 2014 MT 140, 375 Mont. 215, 326 P. 3d 417 (Cudd I). In affirming the conviction, the Montana Supreme Court determined the lower court acted within its discretion in denying Cudd's challenge for cause. Cudd, 2014 MT at ¶15.

ii. Postconviction Petition

Cudd then filed a petition for postconviction relief (PCR) in the trial courtwith affidavits and memoranda in support.¹⁹ Cudd was granted leave to file an Amended Petition and several "addendums" to his petition, in addition to a statement from his girlfriend April Zier.²⁰ The State filed responses to Cudd's original and amended petitions.²¹

In his postconviction proceedings, Cudd raised four general claims: (1) prosecutorial misconduct; (2) lack of a unanimous verdict; (3) ineffective assistance of trial counsel (IAC); and (4) ineffective assistance of appellate counsel (IAAC). In relation to his first two claims, the district court found that the claims were record-based and should have been raised on direct appeal.²² To the extent that the issues were not properly preserved for appeal, Cudd's only avenue to raise them was via an ineffective assistance of counsel claim. Accordingly, the claims were procedurally barred and could not be considered in postconviction. Id.

Cudd's IAC claim contained several sub-parts. First, Cudd argued that Schwartz and Kelleher each failed to interview potential witnesses, failed to provide Cudd with discovery, and both performed an inadequate pre-trial investigation. Specifically, Cudd claimed Schwartz and Kelleher failed to interview: Ricky Wright, Donnie Wright, Molly Huggs, Andrea Stewart, JosebeleKenny, and Vivian Hall.²³ The district court found that Cudd did not indicate what evidence counsel would have obtained had a more thorough investigation been performed.²⁴ Likewise, Cudd did not explain whether the evidence would have been admissible at trial or whether the missing evidence prejudiced his case.²⁵ As to this portion of the claim, the district court found Cudd failed to state a claim for relief.²⁶

Cudd next argued that Kelleher was ineffective for failing to give an opening statement. Because Cudd failed to explain how this failure prejudiced him or that the decision was objectively unreasonable, the district declined to disturb the trial tactics of counsel and denied relief.²⁷

Cudd then claimed that while on the witness stand, the victim, D.F., was being "coached" by a member of the audience. Cudd states he told Kelleher what he saw, but Kelleher failed to make an objection. Cudd supported this claim with the statement from Zier, who was also in the audience and related that she saw someone coaching D.F. The district court noted that Kelleher was not involved in the postconviction proceedings and, accordingly, there was no way to tell whetheror not he would agree that Cudd alerted him to the purported coaching.²⁸ The district court also noted there would have been a basis, as a matter of strategy, not to object to the alleged coaching.²⁹ Nevertheless, even assuming the failure constituted deficient performance under the first Strickland prong,³⁰ the district court found Cudd failed to indicate how such failure prejudiced his defense.³¹ Because Cudd did not affirmatively prove prejudice, this claim also failed.³²

Cudd next asserted Kelleher performed ineffectively by failing to object when the prosecutor referred to Cudd as D.F.'s "stepfather" and inserted his own opinions regarding witness credibility into his closing argument. The district court determined the prosecutor's statements did not prejudice Cudd's constitutional rights; therefore, Kelleher was not ineffective for failing to object.³³ First, the court noted there was one instance in the record when the prosecutor referred to Cudd as D.F.'s stepparent, but Kelleher also referred to Cudd as D.F.'s stepfather.³⁴ Moreover, such reference did not prejudice the entire trial as there was extensive evidence presented regarding Cudd and D.F. which made theirrelationship clear.³⁵ Likewise, the court held the prosecutor's statements during closing argument did not prejudice Cudd, and Kelleher did not provide ineffective assistance by electing not to object.³⁶ The court noted that upon review of the entire closing argument, the prosecutor's statement that the victim's story was true, was made in relation to explaining that the victim's reaction was consistent with the reaction of an abused child.³⁷ The two other references made to D.F. providing "true" testimony were made in conjunction with the prosecutor asserting D.F.'s statements were consistent.³⁸ The court concluded the prosecutor neither invaded the province of the jury, nor committed prosecutorial misconduct and denied postconviction relief.³⁹

Cudd next claimed that Kelleher failed to allow him to testify on his own behalf. The court noted Cudd did not explain what testimony he would have given or how his lack of testimony prejudiced the case. The court held the claim to be unsubstantiated and insufficient to support a finding of ineffective assistance.⁴⁰

Cudd also claimed Kelleher provided ineffective assistance by failing to appeal his conviction. But the court held that whether or not Cudd's claim was true, any violation was alleviated by virtue of the Montana Supreme Courtallowing Cudd to file an out of time appeal.⁴¹ Cudd filed a direct appeal and was represented by counsel on appeal; thus, even if trial counsel did provide him unreasonable assistance, he could not demonstrate prejudice.⁴²

In relation to appellate counsel, Cudd claimed Hood provided ineffective assistance for failing to appeal the sufficiency of the evidence and failing to challenge the trial court's decision to give an Allen instruction.⁴³ The district court determined Cudd failed to set forth any legal or factual support for these claims - he did not attempt to explain how his appellate counsel's failure to raise the claims prejudiced his appeal. The court found Cudd's bare allegations to be meritless.⁴⁴ Cudd also claimed Hood was...