Garding v. Mont. Dep't of Corr.

105 F.4th 1247

Katie GARDING, Petitioner-Appellee / Cross-Appellant, v. MONTANA DEPARTMENT OF CORRECTIONS, Respondent-Appellant / Cross-Appellee.

No. 23-35272

No. 23-35327

United States Court of Appeals, Ninth Circuit

Argued and Submitted September 15, 2023 Seattle, Washington

Filed June 28, 2024

Appeal from the United States District Court for the District of Montana, Dana L. Christensen, District Judge, Presiding, D.C. No. 9:20-cv-00105-DLC-KLD

E. Lars Phillps (argued), Crowley Fleck PLLP, Bozeman, Montana, for Petitioner-Appellee.

Roy Brown (argued), Assistant Attorney General; Austin Knudsen, Montana Attorney General; Office of the Montana Attorney General, Helena, Montana; Brad Fjeldheim, Assistant Attorney General, Montana Department of Justice, Agency Legal Services, Helena, Montana; for Respondent-Appellant.

Before: William A. Fletcher, Ryan D. Nelson, and Daniel P. Collins, Circuit Judges.

Opinion by Judge R. Nelson;

Dissent by Judge W. Fletcher

OPINION

R. NELSON, Circuit Judge:

We review on cross-appeals the district court's partial denial and partial grant of Katie Garding's habeas petition. We hold that the Montana Supreme Court reasonably determined that Garding's trial counsel was not constitutionally deficient and that her Brady claims lacked merit. We thus affirm the district court's order denying the Brady claims and reverse its grant of the ineffective assistance claim.

I

A

Early New Year's Day 2008, a vehicle hit and killed Bronson Parsons. Parsons and his friend, Daniel Barry, were walking westbound on the righthand side of Highway 200 in East Missoula. The two planned to stop by Ole's Convenience Store and then go to last call at The Reno, a casino and bar across the street.

At around 1:40 am, a vehicle struck Parsons from behind. Barry stated that he "felt . . . a rush of wind," and then Parsons was gone. Parsons "stuck to the front of the car," and then "came to rest off [of it.]" The vehicle, described as a dark-colored SUV or truck, fled.

Trooper Novak of the Montana Highway Patrol (MHP) responded. He found Parsons "lying . . . sideways on his back." He investigated, including by collecting evidence and interviewing Barry. He did not find any of the striking vehicle's debris.

Later that day, two other MHP officers—Troopers Hader and Wolfe—stopped Garding's vehicle, a dark Chevrolet S-10 Blazer. At the time, they were looking for a car with heavy front-end damage. Trooper Hader testified that Garding's windshield was visibly cracked. After stopping Garding, the officers saw that her car did not have full-front-end damage, so the officers let her go. Later that week, however, while examining Parsons's body, Trooper Hader realized Parsons's injuries did not suggest a "full-frontal impact." The State then changed its investigation to look for a minimally damaged car.

Around that time, MHP received a tip about Garding. A man reported a dark Blazer with front-end damage. MHP ran a registration check, identifying it as Garding's car. Trooper Novak contacted Garding's father, whom he knew personally, but did not speak with Garding.

The case went cold for about a year. Then an inmate in Missoula, Teuray Cornell, claimed to have information about the crash. Trooper Hader met with Cornell, who thought Garding was involved. He divulged that he had "taped up" Garding's bumper's turn indicator light right after the crash, suggesting that it had recently been damaged.

Trooper Hader then interviewed Garding. Based on further investigation, Garding was charged with Vehicular Homicide While Under the Influence or Negligent Homicide, Failure to Stop Immediately at Accident Scene, Tampering With or Fabricating Physical Evidence, and Driving Without a Valid Drivers License based on a "totality of the evidence."

B

Garding's criminal trial was in June 2011. A public defender represented Garding. Garding maintained her innocence.

What matters for this appeal is the State's crash theory, or how Garding's car caused Parsons's injuries. Garding claims that her counsel was not able to effectively push back against the State's theory because her counsel did not use an accident reconstruction expert and that the State kept evidence from her. Several State witnesses testified about the crash, including the three investigating MHP Troopers—Strauch, Hader, and Novak—and expert witness Dr. Gary Dale, who medically examined Parsons's body. We discuss the salient parts of the trial.

Each of the three Troopers testified about the crash, including how Garding's vehicle was involved.

Trooper Strauch testified about how the crash might have happened. He used a method called "total station," relying on "an electronic distance measuring instrument," to help him gauge how far Parsons might have traveled from impact. He estimated this to be about ninety feet. That said, he could not identify the location where Parsons had been hit and could not estimate the vehicle's speed. He said that tire marks might have helped him estimate, but didn't recall if any were found.

Trooper Hader testified about how the scene pointed to Garding's vehicle. He thought Parsons's injuries, which differed from full-frontal impact injuries, fit the Blazer's minimal damage. He reasoned that, if Parsons's full body had struck the vehicle, there should have been some greater evidence of impact, such as broken ribs or more bruising, but that there was not. Trooper Hader thought that the crash was likely a "swerving-type impact," consistent with minimal damage. He also thought Garding's big, steel, aftermarket bumper could explain the minimal front-end damage.

Trooper Novak testified about his interview with Barry. He stated that Barry described seeing Parsons "on the hood . . . by the windshield" after he was struck. He stated that Barry also described Parsons being "carried" by the car and falling onto the road.

The Troopers did not provide a comprehensive theory of how the crash happened. None of them claimed to be an expert in accident reconstruction, nor were they offered as experts.

Dr. Dale's autopsy identified the cause of death as blunt force head injuries, resulting from when Parsons hit the asphalt. He testified that, in his opinion, Parsons' other upper body injuries resulted from impact with the asphalt as well. Parsons also suffered faint bruising and crushed calf muscles, which Dr. Dale thought Garding's bumper could have caused as well. That said, he admitted that any bumper of a similar height could have caused Parsons's injuries.

Garding's counsel pushed back against the State's crash testimony. She called Dr. Thomas Bennett, an expert witness in forensic pathology to rebut the State's theory. During voir dire, Dr. Bennett clarified that he did not "do accident reconstruction," but "usually work[ed] with other accident reconstructionists" in similar types of cases. In his opinion, the bruises on the back of Parsons's legs "would not [have been] caused by a bumper like" Garding's but were "more consistent with a more rounded bumper." He thus concluded that Garding's "bumper could not have caused [Parsons's] injuries."

Garding's counsel extensively critiqued the State's theory of the crash during closing argument. She noted the inconsistencies with the State's theory presented during Trooper Novak's testimony and argued that it was "not possible" that "Parsons [was] struck from behind going backwards," but "g[ot] forward 150 feet." She also mentioned that "[Garding's] vehicle d[id] not have heavy front-end damage."

The jury found Garding guilty on June 10, 2011. Garding was sentenced to forty years in prison. She was released on parole on February 3, 2022.

C

Garding moved for habeas relief in state court. She alleged ineffective assistance, Brady violations, and newly discovered evidence. We discuss the evidence supporting those claims still on appeal—the ineffective assistance and Brady claims. As for the ineffective assistance claim, Garding's counsel represented that she had been "ineffective." On her Brady claims, Garding argued that the State did not disclose exculpatory evidence: (1) photographs of a 2005 hit-and-run collision and (2) x-rays of Parsons's lower legs.

In 2018, the state court granted the State's motion for partial summary judgment on Garding's Brady claim related to the x-rays and her newly discovered evidence claim. The court scheduled a hearing for the ineffective assistance claim.

The hearing lasted two days. The court listened to evidence on whether Garding's counsel was ineffective for not securing an accident reconstruction expert or conducting a reasonable investigation. Several witnesses testified, including Garding's counsel, two concurring attorney witnesses, and accident reconstruction experts.

Garding's counsel claimed that she was ineffective because she did not take "necessary steps" to consult and secure an accident reconstruction expert. She claimed to be isolated, overwhelmed, and without adequate help. That said, she admitted that she had used such an expert in a similar case and knew they could offer "valuable insight." She also admitted that she had help, including co-counsel and investigators.

Two expert attorney witnesses concurred that she was ineffective. That said, both acknowledged that defense counsel can prefer cross-examination over expert testimony, and that this can be an effective strategy.

Accident reconstruction experts also testified. One claimed that he could "[a]bsolutely" "refute the . . . theories presented at trial." But he admitted that other data, which was unavailable, would be needed for a "precise reconstruction." Another admitted that the state usually provides a "counter expert" who typically reaches different conclusions.

The State offered a rebuttal accident reconstruction expert, Trooper Smart. He explained that there usually is not enough data to do a "full accident reconstruction" when the car flees the scene or the speed or impact point are unknown. He said that Garding's...