Ayers v. Laughlin et al
Filing
6
ORDER DENYING PETITIONS AND DENYING CERTIFICATES OF APPEALABILITY. Signed by Judge Dana L. Christensen on 1/21/2015. Mailed to Ayers. (TAG, )
·
-----------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
TW AIN NEWMAN AYERS,
Cause No. CV 14-110-BLG-DLC
Petitioner,
FILED
vs.
JAN 21 2015
LEROY KIRKEGARD, et aI.,
Cieri<, u.s. District Court
District Of Montana
Missoula
Respondents.
Cause No. CV 14-164-BLG-DLC
TWAIN NEWMAN AYERS,
Petitioner,
vs.
DAVID BERKEBILE, et aI.,
Respondents.
ORDER DENYING PETITIONS AND
DENYING CERTIFICATES OF APPEALABILITY
These cases come before the Court on two applications by Petitioner Twain
Newman Ayers for writ of habeas corpus under 28 U.S.C. § 2254. Ayers is a state
prisoner proceeding pro se. The two cases were assigned to the undersigned
because, in No. CV 14-164-BLG, Ayers challenges a conviction in Yellowstone
County, where Judge Watters, now of the Billings Division of this Court, was a
state trial judge for many years; and because the petition in each case raises
1
virtually identical issues. Although each case was referred on opening to a United
States Magistrate Judge, see D. Mont. L.R. 72.2(a)(1), it is clear the proceedings
need not be protracted. Referral is terminated. See L.R. 72.2(c).
In No. CV 14-110-BLG, Ayers states that he was convicted and sentenced in
Dawson County on October 7,2011, for a fourth or subsequent offense of driving
under the influence of alcohoL See 14-110 Pet. (Doc. 1) at 3. The judge who took
his guilty plea and sentenced him also presided over an earlier proceeding in which
she "allowed" Ayers's "driving suspension to remain in force." ld. at 4. Ayers
claims that the judge's presiding in both the criminal case and in the matter of the
license suspension created a conflict of interest and mandated her sua sponte
recusal.ld. at 4-11. Ayers also contends that his current custody is unlawful
because the felony DUI charge was initiated when another judge found probable
cause to believe he committed the crime and granted the prosecutor's motion for
leave to file an Information; in this case, the judge apparently took no other action
in the case. See 14-110 Pet. at 12-13; see also Mont. Code Ann. §§ 46-11-101,
201.1 Finally, Ayers claims all four of his lawyers violated his right to the effective
I Ayers believes the judge's role in initiating a prosecution contravenes the Montana
Constitutions of 1889 and 1972. This claim cannot support federal habeas relief, which "does not
lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Wilson v.
Corcoran, 562 U.S. 1, _, 131 S. Ct. 13, 16 (2010) (per curiam). But, at any rate, there was no
error of state law. Montana's Constitution expressly authorizes initiation of criminal proceedings
"either by information, after examination and commitment by a magistrate or after leave granted
by the court, or by indictment without such examination, commitment or leave." Mont. Const.
Art. II, § 20(1) (1972). By extension, any allegation that counsel was ineffective for failing to
2
assistance of counsel because they did not raise these issues or seek the judges'
recusal or disqualification. 14-110 Pet. at 12-13.
In No. CV 14-164-BLG, similarly, Ayers states that he was convicted and
sentenced in Yellowstone County on October 28, 2011, for issuing a bad check.
See 14-164 Pet. (Doc. 1) at 4. Again, Ayers alleges that his current custody is
unlawful because the charge was initiated when the same judge who eventually
took his guilty plea and sentenced him found probable cause to believe he
committed the crime and granted the prosecutor's motion for leave to file an
Information.ld. at 3-12. Ayers also claims his lawyer violated his right to the
effective assistance of counsel because she did not raise the issue or seek the
judges' recusal or disqualification on grounds of bias. Id. at 12-13.
Ayers relies on ajudge's finding of probable cause to argue that any further
participation by that judge in the case is a violation of constitutional due process.
But "opinions held by judges as a result of what they learned in earlier
proceedings" are "not subject to deprecatory characterization as 'bias' or
'prejudice.'" Liteky v. United States, 510 U.S. 540, 551 (1994). Even a judge who
is "exceedingly ill disposed towards the defendant" after presiding at trial "is not
thereby recusable for bias or prejudice, since his knowledge and the opinion it
produced were properly and necessarily acquired in the course of the proceedings."
raise an objection based on the Montana Constitution is meritless. E.g., Juan H. v. Allen, 408
F.3d 1262, 1273 (9th Cir. 2005).
3
Id. at 550-51.
If a judge's formation of an opinion of a defendant in the course of a
criminal case does not violate constitutional due process, certainly reviewing an
affidavit, finding mere probable cause to believe the defendant has committed a
crime, and authorizing the filing of an Information does not. This procedure does
not make a judge part of the accusatory process any more than issuing a search
warrant makes a judge part of the investigative process. Or, to look at it another
way, when a judge finds a warrant application is not supported by facts sufficient
to show probable cause, she is not thereby disqualified from reviewing another
application on the grounds that she previously ruled against the State. Likewise,
deciding whether suspension of a driver's license should be lifted or continued
does not disqualify a judge from further proceedings any more than deciding
whether bail should be granted, or whether a motion to suppress or a motion in
limine should be granted or denied, or whether evidence should or should not be
admitted under Fed. R. Evid. 104(a) or 801(d)(2)(C), (D), or (E).
Ayers relies on Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868
(2009), to claim that the probability of bias in the judicial actions taken in his cases
was so high as to mandate recusal. But the Caperton Court said it was
"address[ing] an extraordinary situation" that was "extreme by any measure." Id. at
887. Neither the parties nor the Court could identify any "other instance involving
4
judicial campaign contributions that presents a potential for bias comparable to the
circumstances in this case." Id. Ayers's reasoning, pressed to its logical conclusion,
would hold that virtually every exercise ofjudgment by a judge mandates the
judge's recusal from further proceedings. That proposition is not remotely
supported by Caperton or any other precedent of which the Court is aware.
Judges routinely make fine-grained distinctions among burdens of proof,
factual findings, and correct or appropriate legal consequences. To accept Ayers's
arguments, the Court would have to find that judges are incapable of fairly making
even broad, categorical distinctions. Further, an exponentially greater number of
these incompetent judges would have to be seated to handle the current volume of
cases filed. The allegations in these petitions are frivolous. The petitions are denied
because all claims are conclusively lacking in merit. Rule 4, Rules Governing §
2254 Cases.
Ayers does not make any showing that he was deprived of a constitutional
right. A certificate of appealability is not warranted. 28 U.S.C. § 2253(c)(2).
Based on the foregoing, the Court enters the following:
ORDER
1. Ayers's Petitions are DENIED for lack of merit.
2. The Clerk of Court is directed to enter judgment in each case, by separate
document, against Petitioner and in favor of Respondents.
5
3. A certificate of appealability is DENIED on all issues in each case.
4. In the event Ayers seeks leave to pursue an appeal in forma pauperis, the
Court CERTIFIES that any appeal would not be taken in good faith. Fed. R. App.
P.24(a)(4)(B).
5. These cases are CLOSED. Other than a notice of appeal, no further filings
will be accepted.
DATED this
21 t;\ay of January,
Dana L. Christensen, Chief Ju ge
United States District Court
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?