Giddings v. Kirkegard

ORDER

Dana L. Christensen, District Judge.

Before the Court is United States Magistrate Judge John T. Johnston's findings and recommendation regarding Petitioner Joshua David Giddings' petition for writ of habeas corpus brought under 28 U.S.C. § 2254. (Doc. 30.) Judge Johnston recommends that Mr. Giddings' petition (Doc. 1) be denied without a certificate of appealability. (Id. at 75.) For the reasons stated herein, the Court agrees and will adopt the recommendations in full.

Background

Amy Rolfe was murdered on July 22, 2005 in Lewis and Clark County, Montana. The State of Montana subsequently charged Mr. Giddings with various offenses stemming from her death, including deliberate homicide, tampering with evidence, solicitation, and criminal possession of dangerous drugs. (Doc. 19-5.)

The case proceeded to trial with Mr. Giddings represented by Randi Hood, Al Avignone, and Lisa Banick. (Doc. 19-24 at 2.) The jury convicted Mr. Giddings on all charges except solicitation. (Id.)

The state district court sentenced Mr. Giddings to life without the possibility of parole on the deliberate homicide charge and 50 years each on the possession and tampering charges, to run consecutively. (Id. at 3-4.) Of note, in sentencing Mr. Giddings on the latter two charges, the state district court concluded that he met the definition of a persistent felony offender under Montana law. (Id.) Mr. Giddings litigated a direct appeal to the Montana Supreme Court complaining of various errors. During this proceeding, he was represented by Joslyn Hunt. The Montana Supreme Court rejected his contentions and affirmed his convictions through a published opinion issued on March 3, 2009. State v. Giddings, 208 P.3d 363 (Mont. 2009).

Mr. Giddings subsequently initiated post-conviction relief proceedings in Montana state court. (See generally Doc. 25-1.) For at least part of these proceedings, Mr. Giddings was represented by Chad Wright. (Doc. 29 at 2-3.) The state district court denied the petition on January 9, 2015. (Doc. 25-18.) Mr. Giddings appealed and was again represented by Chad Wright for at least part of the proceedings. (Docs. 25-19; 25-21.) While this appeal was pending, Mr. Giddings initiated the instant habeas proceedings in this Court. (Doc. 1.) The

Court stayed such proceedings until Mr. Giddings' state court remedies were exhausted. (Docs. 8; 12.)

The Montana Supreme Court affirmed denial of his petition for postconviction relief on June 7, 2016. Giddings v. State, 2016 WL 3173127 (Mont. 2016) (unpublished). The stay was then lifted (Doc. 15) and the State of Montana was ordered to file various documents from the state court record to permit this Court to complete the prescreening process required by 28 U.S.C. § 1915A and Rule 4 of the Rules Governing Section 2254 Cases and Section 2255 Proceedings (Doc. 16). The State of Montana filed such documents (Docs. 19-20; 22; 25; 28) and on October 21, 2020, Judge Johnston issued his Findings and Recommendation, recommending that Mr. Giddings' petition be denied, without a certificate of appealability. (Doc. 30.)

Specifically, Judge Johnston enumerated Mr. Giddings' 15 claims (id. at 24- 25) and recommended that they be rejected as non-cognizable (id. at 26-34), procedurally defaulted (id. at 35-37), or barred by AEDPA (id. at 37-74). Mr. Giddings was given several extensions to file his objections to Judge Johnston's conclusions (Docs. 32; 34; 36; 38; 40) and did so on August 5, 2021 (Doc. 41). In his objections, Mr. Giddings also moves the Court for leave to file an amended petition. (Id. at 1.) The matter is now ripe for review.

Standard of Review

The level of scrutiny applied by this Court to a magistrate's findings and recommendations varies depending on whether a party exercises its right to object. Thomas v. Arn, 474 U.S. 140, 150-51 (1985). If a party objects to aspects of a magistrate's proposed findings and recommendations, then this Court must review the objected-to portions de novo. 28 U.S.C. § 636(b) (1)(C). Absent objections, however, this Court is free to review the unobjected to portion of a magistrate's proposed findings and recommendations “under a de novo or any other standard.” Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017) (quoting Thomas, 474 U.S. at 154).

This Court's general practice is to review unobjected to portions of a magistrate's proposed findings and recommendations for clear error. See, e.g., Demarie v. Guyer, 2021 WL 171043 (D. Mont. 2021); Wallway v. Schneider, 2019 WL 95657 (D. Mont. 2019). Clear error review is “significantly deferential” and exists when the Court is left with a “definite and firm conviction that a mistake has been committed.” United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). With this framework in mind, the Court will turn to the substance of Judge Johnston's conclusions.

Analysis

As noted above, Mr. Giddings' petition advances 15 claims. (Doc. 30 at 24- 25.) Mr. Giddings' objections do not take issue with this construction and the Court reads his petition to contain the same constitutional claims identified by Judge Johnston. This includes claims asserting that:

(1) Attorney Chad Wright was constitutionally ineffective during post-conviction relief proceedings, in violation of the Sixth Amendment;

(2) Attorney Chad Wright's representation of Mr. Giddings in post-conviction relief proceedings presented a conflict of interest, in violation of the Sixth and Fourteenth Amendments;

(3) Mr. Giddings exclusion from a August 25, 2006 state district court hearing violated the Fifth, Sixth, and Fourteenth Amendments;

(4) Mr. Giddings exclusion from a November 29, 2006 state district court hearing violated the Fifth, Sixth, and Fourteenth Amendments;

(5) Mr. Giddings exclusion from a December 8, 2006 state district court hearing violated the Fifth, Sixth, and Fourteenth Amendments;

(6) Mr. Giddings exclusion from a January 2, 2007 state district court hearing violated the Fifth, Sixth, and Fourteenth Amendments;

(7) the State of Montana destroyed exculpatory evidence in violation of the Fifth, Sixth, and Fourteenth Amendments;

(8) the state district court allowed the jury to take a videotape into deliberations in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments;

(9) the State of Montana's discovery abuses violated the Fifth, Sixth, and Fourteenth Amendments;

(10) the state district court's endorsement of 2 jailhouse violated the Fifth, Sixth, and Fourteenth Amendments;

(11) the state district court's limitation on the defense's cross-examination of Richard Allen King violated the Fifth, Sixth, Eighth, and Fourteenth Amendments;

(12) the State of Montana's intentional solicitation of testimony in violation of a state district court order violated the Fifth, Sixth, and Fourteenth Amendments;

(13) the State of Montana's tampered with or fabricated evidence in violation of the Fifth, Sixth, and Fourteenth Amendment;

(14) cumulative error occurred; and

(15) his sentence is illegal.

(See generally Doc. 1; see also Doc. 30 at 24-25.)

Judge Johnston concluded that claims 1-2, and 15 were not cognizable in habeas proceedings (Doc. 30 at 26-34), that claim 13 was procedurally defaulted (id. at 35-37), and that claims 3-12, and 14 are barred by AEDPA (id. at 37-74).

In Mr. Giddings' objections, he takes issue with Judge Johnston's conclusions as to claims 1-2 (Doc. 41 at 1-24), claims 7 and 9 (id. at 24-50), claim 11 (id. at 50- 60), claim 10 (id. at 60-77), claim 15 (id. at 77-96), and claim 14 (id. at 96-106). Reviewing the unobjected to claims for clear error, (claims 3-6, 8, 12-14), the Court finds none. These conclusions are thorough, well-reasoned, and will be adopted in full. As such, the Court will turn its attention to the objected to conclusions.

I. Claims Regarding Post-Conviction Relief Counsel (Claims 1-2).

As noted above, Mr. Giddings' petition levels two claims against Chad Wright, the attorney who represented him through at least part of his postconviction relief proceedings. (Doc. 1 at 4-18.) The first claim (Claim 1) alleges that Mr. Wright was constitutionally ineffective in failing to amend Mr. Giddings' postconviction relief petition to include a claim of ineffective assistance of counsel against trial counsel Randi Hood on the basis that “she failed to ensure his presence” at 4 pre-trial hearings. (Doc. 1 at 4-17.) The second claim (Claim 2) alleges that Mr. Wright's representation of Mr. Giddings in the appellate stage of his postconviction relief proceedings presented a conflict of interest, thus violating his Sixth and Fourteenth Amendment rights. (Id. at 17-18.) The Court agrees with Judge Johnston that neither of these claims can proceed.

Judge Johnston found these claims failed for a variety of reasons. First,

Judge Johnston indicated in a previous order that both of these claims were procedurally defaulted, likely precluding this Court's review of such claims through the habeas process. (Docs. 26 at 6-9; 30 at 28.) Second, Judge Johnston held that even if such claims were not procedurally defaulted, they are not “cognizable in federal habeas.” (Doc. 30 at 26-27.) Finally, Judge Johnston held that to the extent Claim 1 could be read to fall within the procedural default exception established by Martinez v. Ryan, 566 U.S. 1 (2012), the exception was not available because Mr. Giddings had failed to present a substantial claim of ineffective assistance of trial counsel. (Id. at 27-32.)^[1]

In his objections, Mr. Giddings largely argues the merits...