Gunderson v. Kirkegard et al
ORDER DENYING 1 PETITION AND DENYING CERTIFICATE OF APPEALABILITY Signed by Magistrate Judge Carolyn S Ostby on 6/18/2015. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
Cause No. CV 13-35-BLG-CSO
ORDER DENYING PETITION AND
DENYING CERTIFICATE OF
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
This case comes before the Court on Petitioner David Gunderson’s
application for writ of habeas corpus under 28 U.S.C. § 2254. Upon the parties’
consent, the matter was assigned to the undersigned for all district court
proceedings, including entry of judgment. Doc. 27.
Gunderson challenges his conviction by a jury of burglary and attempted
sexual intercourse without consent. All but one of his claims for relief have been
addressed on the merits de novo and denied. See Findings and Recommendation
(Doc. 12) at 11; Order (Doc. 13) at 2.
The sole remaining claim alleges that trial counsel was ineffective because
he did not request a jury instruction on criminal trespass, a lesser-included offense
of burglary. The claim was defaulted in state court, but the default was excused
under Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012), and Trevino v. Thaler,
__ U.S. __, 133 S. Ct. 1911 (2013). The parties conducted discovery and have
A. The Trial Record
1. Legal Framework
Gunderson was charged with burglary, a violation of Mont. Code Ann. § 456-204(1) (2005) (Count 1), and attempted sexual intercourse without consent
(“rape”), a violation of Mont. Code Ann. §§ 45-4-103 and -5-503 (Count 2).
To prove burglary, the State had to prove two elements: (1) that Gunderson
knowingly entered or remained in the victim’s (Stephanie Randall’s) apartment
unlawfully, and (2) that he did so with the intention of committing any other
offense within the apartment. The State predicated sexual assault1 as the offense
The Court previously misstated that sexual intercourse without consent was the
predicate offense for the burglary charge. See Order (Doc. 12) at 5. In fact, sexual assault, not
rape, was the burglary predicate.
It appears the jury was informed at the outset of the case that Gunderson was charged
with burglary and attempted sexual intercourse without consent. Although the State was ordered
to file the jury instructions, it does not appear that Jury Instr. No. 1 (Doc. 11-2 at 2-3) is “the
Court’s Preliminary Instruction No. 1” that was read to the panel of prospective jurors. The
instruction does not state the charges against Gunderson. The prosecutor said, when introducing
herself to the prospective jurors, that Judge Todd had informed everyone of the charges, but the
transcript before this Court does not show what he said. See Trial Tr. (Doc. 7-2) at 11:15-23,
15:13-19. It appears that the jury was instructed on the elements of the offenses, including the
predicate offense for burglary, just before closing argument. See Trial Tr. (Doc. 7-4) at 464:4-19,
Gunderson intended to commit – that is, it alleged that Gunderson entered
Randall’s apartment intending to subject her to sexual contact without her consent.
Jury Instr. No. 12 (Doc. 11-2 at 20); Jury Instr. No. 15 (Doc. 11-2 at 23).
Criminal trespass is a lesser included offense of burglary. To prove criminal
trespass, the State would have to prove only the first element of burglary – that is,
that Gunderson knowingly entered or remained unlawfully in Randall’s apartment.
Mont. Code Ann.§ 45-6-203(1)(a) (2005). The State did not charge Gunderson
with criminal trespass, and Gunderson’s counsel did not request a jury instruction
on criminal trespass.
To prove attempted rape, the State had to prove beyond reasonable doubt
that Gunderson attempted to penetrate Randall’s vulva or anus for his sexual
gratification and without her consent. See Mont. Code Ann. § 45-2-101(68). To
prove attempt, the State had to prove that Gunderson “performed an act which
constituted a material step toward the commission” of rape “with the purpose to
commit” rape. Jury Instr. Nos. 18, 20 (Doc. 11-2 at 26, 28). Sexual assault, as
mentioned, consists of knowingly subjecting someone to sexual contact without
consent. Id. § 45-5-502(1). It is a lesser included offense of rape. The State did not
charge Gunderson with sexual assault, and Gunderson’s counsel did not request a
jury instruction on sexual assault or attempted sexual assault.
As pertinent here, both criminal trespass and sexual assault were
misdemeanors. Id. §§ 45-6-203(2), -5-502(2). Both burglary and rape were
felonies. Id.§§ 45-6-204(3), -5-503(2).
2. Randall’s Testimony
At trial, Stephanie Randall testified that she arrived home at about 2:00 a.m.
on July 3, 2007. While she was making herself something to eat, someone knocked
at the door of her apartment. She answered. It was Gunderson, but Randall did not
know him. Gunderson asked to use Randall’s telephone. Randall told him she did
not have a phone and shut the door. She returned to her kitchen. After she finished
her snack, she went to bed.
About half an hour later, Randall woke “to somebody getting in my bed,”
kissing her neck and touching her thigh. He pulled her underwear down four to six
inches, but she stopped him by grabbing his hand. He also pinned her arms on the
bed while she was on her back, but she struggled free. She reached up and turned
on the light, which she could reach without getting out of bed. She immediately
recognized the man who had earlier knocked on her door. His shirt and his shoes B
new and brightly white B were on the floor, but he was wearing pants. She “was
screaming pretty loudly” at him to get out. He was “telling [her] to knock it off and
to calm down.” Randall physically tried to throw him out, but he was concerned
about retrieving his shoes and shirt. As he was attempting to pick them up, Randall
grabbed his hair and started to drag him out of her apartment. She scratched his
neck. Eventually she picked up his shoes and carried them to the front door. It was
locked. She unlocked it, opened it, threw the shoes out, and ordered him to get out.
When he was gone, Randall called 911.
3. Police and Other Witnesses’ Testimony
In response to the 911 call, police located Gunderson a few blocks away
from Randall’s apartment, walking with another man. Based on Randall’s
description, Gunderson’s bright white shoes, and fresh scratch marks on
Gunderson’s neck and face, he was stopped and asked to take a portable breath
test. His blood alcohol content was 0.086. He was arrested for a parole or probation
Gunderson told police he had taken a taxi to the Crystal Lounge earlier that
night and jumped out without paying. After he went into the Crystal Lounge, a
local bar, he got into a fight with a man who scratched him on the neck, and then
he was thrown out. He claimed he had been in a different part of town at the time
of the crime. Gunderson told police he did not enter Randall’s apartment and stated
his DNA would not be found there.
Gunderson was photographed at the detention center. He had scratches not
only on his face and neck but also one on his hand and one on his shoulder or chest
that had previously been obscured by his shirt. Randall said she had seen “some
tattoos” and most clearly remembered one somewhere on his chest or shoulder;
Gunderson had several tattoos on his chest and shoulder.
Shortly after the incident, Randall was shown a photographic lineup. She
“immediately,” in “seconds,” identified Gunderson as the man who entered her
apartment. Gunderson’s DNA was not found in the apartment, but it was identified
in a small scraping of blood taken from Randall’s hand.
Police determined that several businesses surrounding Randall’s duplex all
had accessible pay phones. An employee of the Crystal Lounge and the owners of
the two taxi cab companies in Billings could not corroborate Gunderson’s claims
that he took a taxi to the Crystal Lounge or that he got into a fight there.
4. Gunderson’s Testimony
Gunderson testified as the last witness in the case. Despite the lack of
corroboration, he maintained he had cheated a taxi driver and been in a fight just
outside the Crystal Lounge. He admitted his neck was not scratched at the Crystal
Lounge. He explained that his hand injury came from construction work, and he reinjured it by scraping it on the concrete outside the Lounge.
Gunderson also admitted he was in Randall’s apartment that night. He said
he saw Randall enter her apartment alone in the early hours of the morning. He
admitted he did not want to use the phone but “just used that for an excuse to see
who it was,” because he thought he recognized “that chick” or “that broad” from
the Rainbow Bar. He also said he wanted to “give her a chance to see if she
recognized me.”He said she opened the door to him but mumbled something and
closed it in “[n]ot even a second.”Trial Tr. (Doc. 7-3) at 394:23-396:20, 443:11-24,
Gunderson returned half an hour later. He admitted the apartment was dark.
He said he approached the door, opened the screen door, and found the inside door
open about “half a foot.” He entered the apartment, went into the kitchen, and then
asked in a loud voice whether anyone was home. He thought he heard a noise or a
voice and started down the short hallway saying “Where you at?” “Next thing I
know, I’m standing in the middle of her bedroom.” Id. at 396:12-398:14, 424:21430:4.
Someone B Gunderson was not sure at first whether it was the same person
who had answered the door half an hour earlier B was lying in the bed with her
back to him with a sheet “across the hip and most across the thigh going down
towards the thigh.” At that point, he knew it was the same person he had seen
earlier. Trial Tr. (Doc. 7-3) at 398:15-399:9. Gunderson testified:
I sat down on the edge of the bed, and I said, “Hey, what’s up?” And I
put my hands on her hip and kind of on her B by the kidney here and
then I moved it down to her leg. I said, “Hey.” And at that time I
kicked my shoes off, because I just bought those shoes and my feet
was sweating. My feet was hurting from walking. And I turned and I
didn’t want to put my shoe up on the bed. So when I turned sideways
on the mattress to talk to her, she rolled over. She said, “What are you
doing? What are you doing in my house?” I said, “I’m going to come
over and bullshit with you.”
Trial Tr. (Doc. 7-3) at 399:11-21. Randall yelled at him. Gunderson told her, “‘I
thought I heard you say come in or something.’” When Randall got up, Gunderson
said, “Where you going, man?” Asked what Randall’s demeanor was when she got
out of bed, Gunderson said, “Kind of like aggressive,”“[k]ind of like mad I was
there.” Id. at 399:22-400:21; see also id. at 430:5-437:9.
Gunderson denied that he was trying to have sex with Randall and denied
returning to her apartment for that purpose. (He also denied touching her at all,
even though he had just said he “put my hands on” her hip and leg.) Id. at 402:17403:6. On cross-examination, he reiterated:
I had no intentions of that. If I was going to rape her or do something
sexually to her, you know, if that’s where my mind, my train of
thought is at, then I had all the opportunity to do it.
. . . I didn’t try nothing sexual on her, you know. I could have B
there’s a lot of things a guy could have did. I didn’t attempt to do
nothing. I know for a fact I didn’t. I sat on the edge of the bed and
didn’t make no attempts to do anything sexual to her.
Trial Tr. (Doc. 7-3) at 446:18-447:3.
Gunderson admitted at trial that he given several different stories to law
enforcement officers about what occurred that night. Id. at 405:7-14; 408:13-409:6,
5. Closing Arguments
In closing, defense counsel conceded Gunderson “didn’t have any invitation
or business being in Stephanie Randall’s apartment. Her apartment is an occupied
structure. He entered without permission.” Trial Tr. (Doc. 7-4) at 487:14-17. He
focused instead on the second element of burglary, intent to commit the offense of
And by Stephanie Randall’s own admission to Detective Paharik,
there was no sexual contact. Detective Paharik . . . asked her, “And in
no way was there any sexual contact; is that correct?” and she said,
“Yeah, that’s right.”
If Mr. Gunderson was entering with the intent to perform sexual
contact on Stephanie Randall, why didn’t he do that? And he had
ample opportunity. She was at least nude from the waist up. And
there’s sexual areas there on a woman’s body, and he did not touch
her there. He could have committed a sexual contact, sexual assault
right then and there, and he did not do that by her own admission.
Id. at 487: 24-488:11.
As to sexual intercourse without consent, counsel argued:
It’s possible to [commit the crime] with a finger or another body part
other than the sexual organ, but, again, there’s no evidence that Dave
Gunderson tried to do that. He had the chance, he could have just put
his hand down there. I mean she’s lying there helpless, asleep. What’s
stopping him from putting his hands down there? He didn’t do that.
He did not do that. And of course then there’s the old fashion way to
do it, which we all know how to do that. And if Dave Gunderson is
going to have sexual intercourse, why, for crying out loud, does he
still have his pants on?
Id. at 490:21-491:6. Counsel concluded:
That’s all I’ve got. I just want to tell you, and I think you know this,
you have Dave Gunderson’s life in your hands; okay? Give this case
the most serious consideration that you’ve given anything that you’ve
ever had to decide. Look at all the evidence, look at what’s not there.
Use your common sense. Even though Dave Gunderson did a stupid,
foolish thing that night and wasn’t thinking clearly when he did go
into Stephanie Randall’s apartment, he did not go in with the intention
to commit a sexual assault. He had plenty of chances to do that, and
he didn’t do it. And he certainly did not go in there and did not try to
have sex with her, because there’s no proof of that, and he had his
pants on, and all the evidence that could have corroborated this is not
Id. at 503:1-14.
The jury was instructed only on the principal charges, burglary (with sexual
assault as the predicate offense) and attempted sexual intercourse without consent.
After deliberating about three hours, id. at 513:18-514:1, the jury found Gunderson
guilty on both counts.
B. Merits of Gunderson’s Claim
Claims of ineffective assistance of trial and appellate counsel are governed
by Strickland v. Washington, 466 U.S. 668 (1984). Gunderson must show both that
counsel’s performance fell below an objective standard of reasonableness, id. at
687-88, and that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,” id.
at 694. A strong measure of deference is due to counsel’s strategic decisions that
are based on reasonable investigation and knowledge of the applicable law, id. at
690-91, but a court may not make “a post hoc rationalization of counsel’s conduct”
without regard to whether counsel actually recognized and considered viable
alternative strategies, Wiggins v. Smith, 539 U.S. 510, 526-27 (2003).
The record developed in this Court shows that counsel made a reasonable
strategic choice in light of the evidence and the treacherous legal landscape in
which Gunderson found himself. First, the Court has already ruled that counsel
would not have obtained an instruction on sexual assault (or attempted sexual
assault) as a lesser included offense of attempted rape. Under Montana law, “a
lesser included offense instruction is not supported by the evidence where the
defendant’s evidence or theory, if believed, would require an acquittal.” State v.
Martinez, 968 P.2d 705, 707-08 ¶¶ 9-15 (Mont. 1998); see also, e.g., State v. Jay,
298 P.3d 396, 407 ¶ 44 (Mont. 2013). At trial, Gunderson testified that he did not
touch or intend to touch Randall in a sexual manner. See, e.g., Trial Tr. (Doc. 7-3)
at 402:17-403:6. Based on Gunderson’s testimony, a lesser-included offense of
attempted sexual assault was not available. Gunderson has never alleged that
federal constitutional law entitled him to a lesser-included instruction even if it
conflicted with his own testimony. Nor has he alleged that counsel was ineffective
for failing to recognize any such entitlement.
Although counsel could not specifically recall why he did not pursue the
lesser-included instruction on criminal trespass, he did expressly contemplate
instructions on both lesser-included offenses, see, e.g., Kelleher Dep. (Doc. 40-1)
at 16:5-19:7; Dep. Exs. 1-2 (Doc. 40-1 at 29-30). And he did recall that he make a
strategic decision to adopt an “all-or nothing” approach because, in light of the
totality of the evidence, if the jury believed Randall (which they did), seeking a
misdemeanor trespass conviction seemed like a “ludicrous alternative.” Kelleher
Dep. at 44:8-46:23. If they believed Gunderson (which they did not), then they
would have acquitted on both charges. Kelleher concluded that asking for a
criminal trespass instruction would have been “futile” because it would have
undercut Gunderson’s testimony about being invited into the apartment. Id. Under
the Strickland standard, Kelleher’s decision was a reasonable one.
Gunderson’s situation was bleak. He had a long and serious criminal history.
In terms of punishment, he faced a mandatory sentence of life without parole if
convicted of attempted rape. Mont. Code Ann. § 46-18-219(1)(a). Even if acquitted
of attempted rape but convicted of burglary, Gunderson faced a maximum sentence
of 100 years, albeit with some prospect of parole, because he was a persistent
felony offender. Mont. Code Ann. § 46-18-502(1), (2). Gunderson was 53 years
old at the time of trial. Kelleher Dep. at 18:13-19:7, 20:23. Thus, when counsel
considered an instruction on attempted sexual assault as a lesser included offense
of attempted rape, he concluded he should be careful not to concede any offense,
because even if Gunderson defeated the attempted rape charge, there was “just too
much at stake even with the burglary.”Id. at 25:7-14.
Gunderson was in a tight spot. His intent was the principal bone of
contention not only with respect to the burglary and attempted rape charges but
also with respect to the lesser included offense of criminal trespass. A defendant is
guilty of criminal trespass only if he knowingly enters or remains unlawfully; in
other words, he must not only enter or remain without invitation, but he must know
he has no invitation to enter or remain. See City of Helena v. Lewis, 860 P.2d 698,
703 (Mont. 1993).
Trial counsel explained, “my problem with lesser includeds is that it implies
that the defendant did something wrong, and a lot of times my defense is that he
just didn’t do anything wrong; there’s just nothing there.” Kelleher Dep. at 38:711. That was the strategy Kelleher developed for Gunderson. Gunderson’s defense
was “fundamentally that it was a dumb but honest mistake” – “dumb, oafish,
innocent, [and] stupid” – that Gunderson went into Randall’s apartment. Id. at
8:11-12. In other words, counsel could not concede that Gunderson knew he
entered or remained unlawfully. In effect, he had to persuade the jury that
Gunderson acted with reckless disregard of his right to enter – “oafishly” rather
than “knowingly.” Counsel’s impression that an instruction on criminal trespass
was not supported by the evidence in Gunderson’s testimony was reasonable.
Kelleher Dep. at 42:11-43:8. In Taylor v. State, 335 P.3d 1218, 1223 (Mont.
2014), the Montana Supreme Court explained:
“A lesser-included offense instruction is not supported by the evidence when
the defendant’s evidence or theory, if believed, would require an acquittal.”
[State v. Jay, 2013 MT] ¶¶ 42–44 (citations omitted) (Jay’s theory that he
had “lost consciousness” for a reason other than alcohol consumption
required acquittal, not a lesser included instruction for driving under the
influence.); State v. Grindheim, 2004 MT 311, ¶ 41, 323 Mont. 519, 101
P.3d 267 (Grindheim’s theory of the facts supported outright acquittal, not a
conviction for the lesser included crime of endangering the welfare of a
It is true that trial counsel’s closing argument conceded the first element of
burglary, which is the offense of criminal trespass. But even as counsel conceded
that Gunderson “didn’t have any invitation or business being in Stephanie
Randall’s apartment,” he still did not say Gunderson knew he did not have
permission to enter. Gunderson testified repeatedly that he thought someone inside
the apartment responded to him in a permissive way. Trial Tr. (Doc. 7-3) at
397:25-398:14, 425:15-426:17, 427:13-429:25. Thus, counsel’s closing argument
conceded only that Gunderson “entered without permission.” Trial Tr. (Doc. 7-4)
at 487:14-17. Counsel said:
In order to convict Mr. Gunderson of burglary, the State must prove
the following elements: One, he knowingly entered or remained
unlawfully in an occupied structure. And, yeah, we concede that. He
didn’t have any invitation or business being in Stephanie Randall’s
apartment. Her apartment is an occupied structure. He entered without
permission, so they proved that. I mean we admit that.
But they also have to prove element number two, and element
number two is that he went in with the purpose to commit the offense
of sexual assault. . . .
. . . [But] if he had the intent to do it as they claim, and he had ample
opportunity to do it and he didn’t do it, then that doesn’t make sense.
That doesn’t fit.
He went in there foolishly, because he thought he knew
Stephanie Randall and he wanted to talk to her. And it was a dumb
thing to do, he knows it was a dumb thing to do, but that’s all he did.
And I’m going to go through the evidence that’s there, and most of the
evidence that’s not there to show, and I think you know this, the State
has not proven their case.
Trial Tr. (Doc. 7-4) at 487:11-20, 489:17-490:2.
Counsel’s purpose in closing was to parry the burglary charge by focusing
on Gunderson’s lack of intent to commit an offense. Of the elements of criminal
trespass, counsel specifically addressed that Randall’s apartment was an occupied
structure and that Gunderson had no invitation or permission to enter. As he
testified, he was trying to preserve his own credibility with the jury without
undermining Gunderson’s credibility. Kelleher Dep. at 22:2-14; 59:19-60:3.
Had an instruction on criminal trespass been placed before the jury, it could
have undermined counsel’s strategy on the burglary charge by directing jurors’
attention to whether Gunderson really knew– contrary to his testimony – that he
did not have permission or an invitation to enter. Consequently, counsel’s “all or
nothing” strategy was reasonable. The jury deliberated on the State’s burglary
charge without a lesser-included offense that may only have re-focused attention
on Gunderson’s truthfulness about his intent in entering Randall’s apartment in the
Counsel’s failure to request a jury instruction on criminal trespass as a lesser
included offense of burglary was not, as Gunderson now contends, “the result of
simple neglect or misunderstanding of Gunderson’s case and the applicable law.”
Merits Br. (Doc. 44) at 8. It was a reasonable strategic judgment call based on the
evidence and testimony presented at trial. An instruction on criminal trespass could
have pointed the jury right back to the questions that immediately comes to mind:
what did Gunderson think he was doing? Why would a man enter a female
stranger’s apartment in the middle of the night even though he knows his entry is
not permitted? If Gunderson thought about anything enough to “know” he entered
without invitation or permission, no answer to these questions could be favorable
to Gunderson, particularly in light of Randall’s testimony that he removed some of
his clothing, sat down on her bed, and began to pull her underwear off – testimony
which everyone involved described as very strong and credible.
The claim is denied for lack of merit.
III. Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254
Proceedings. A COA should issue as to those claims on which the petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The standard is satisfied if “jurists of reason could disagree with the
district court’s resolution of [the] constitutional claims” or “conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
None of Gunderson’s claims meets even the relatively low threshold for
issuance of a COA. Although there was no direct evidence of Gunderson’s intent,
any reasonable juror could have found, beyond reasonable doubt, that Gunderson
clandestinely entered Randall’s apartment with the intent to have sexual
intercourse – with consent if it materialized and without it if not. A trial court does
not err when it instructs the jury that it may consider witnesses’ motive, bias, or
prejudice in testifying, even if the defendant is one of the witnesses; and
Gunderson’s parallel claim of ineffective assistance of appellate counsel also lacks
merit. The jury was correctly instructed on the definitions of “purposely” and
“knowingly” and on attempt. The jury was correctly instructed that the State had
the burden of proving Gunderson guilty beyond reasonable doubt, so that any
evidence the jury deemed “missing” would weigh against the State.
As to Gunderson’s claims of ineffective assistance of counsel, an
abandonment defense was not available unless Gunderson entered the apartment
with the intent to commit a crime he would later abandon before completing it; nor
is it available where the intended victim yells, kicks, scratches, pushes, and
ultimately pulls the perpetrator out of her apartment by his hair. Gunderson was
not entitled to instructions on sexual assault, because he testified he did not touch
Randall in a sexual manner and had no intention of doing so, or on criminal
trespass, because he testified he thought he was permitted to enter. Counsel did not
fail to impeach Randall because he brought out the significant inconsistencies in
her testimony. Counsel did not have a valid challenge for cause against a juror who
said she could keep a fair and open mind and would want a person like herself on
the jury if she were Gunderson. Even if counsel had requested a mid-trial hearing
on Gunderson’s complaints about his attorney’s performance, those complaints
were not substantial enough to warrant one. There is no indication that Gunderson
was deprived of exculpatory evidence; underwear not permanently stretched out of
shape would not prove Gunderson did not try to pull them down, lack of
Gunderson’s DNA on Randall’s neck would not prove he did not kiss her, and
Randall’s account of what happened did not suggest Gunderson’s DNA would
likely be found on her bedding or body – other than in blood on her hand, where it
was indeed found. Gunderson’s sentencing claims do not allege a violation of
Reasonable jurists would find no basis for further proceedings. A COA is
Based on the foregoing, the Court enters the following:
1. Gunderson’s claim that counsel was ineffective because he failed to
request an instruction on the lesser-included offense of criminal trespass is
DENIED for lack of merit.
2. All other claims having been denied, the Petition (Doc. 1) is DENIED.
3. A certificate of appealability is DENIED. The Clerk of Court shall
immediately process the appeal if Gunderson files a Notice of Appeal.
4. The Clerk shall enter, by separate document, judgment in favor of
Respondents and against Gunderson.
DATED this 18th day of June, 2015.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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