Griffin v. Kirkegard et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 6 in full. Claims 4 and 5 are DISMISSED for lack of jurisdiction. Claims 1, 2, 3, and 6 are DENIED for lack of merit. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 11/18/2015. Mailed to Griffin. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

JACK GRIFFIN,

NOV 1 8 2015
Clerk, U.S. District Court
District Of Montana
Missoula

CV 15-24-BU-DLC-JCL
Petitioner,
ORDER

vs.
LEROY KIREKEGARD;
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation in this case on August 12, 2015, recommending that Petitioner
Jack Griffin's petition for writ of habeas corpus under 28 U.S.C. § 2254 be
dismissed. Because Griffin timely objected to the Findings and Recommendation,
the Court will conduct de nova review of the record. 28 U.S.C. § 636(b)(l).
Those portions of the Findings and Recommendation to which Griffin has not
specifically objected will be reviewed for clear error. Id.; McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Additionally, "[w]here a petitioner's objections constitute 'perfunctory responses
argued in an attempt to engage the district court in a rehashing of the same

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arguments set forth in the original habeas petition,' the applicable portions of the
findings and recommendations will be reviewed for clear error." Rosling v.

Kirkegard, 2014 WL 693315, at *3 (D. Mont. Feb. 21, 2014) (quotingRamirezv.
United States, 898 F. Supp. 2d 659, 663 (S.D.N.Y. 2012)). For the reasons listed
below, the Court adopts Judge Lynch's Findings and Recommendation in full.
In 1984, Griffin was convicted in Montana state court of sexual intercourse
without consent and sentenced to thirty years with fifteen years suspended. In
1998, while on probation, Griffin was convicted of incest and sentenced to an
additional thirty years with fifteen years suspended. He was released on February
6, 2006. In response to a petition filed by the state, the state district court partially
revoked Griffin's suspended sentence, imposing a term of eleven years, 285 days
with six years, 281 days suspended. When Griffin was released, the state filed
another petition to revoke. The court denied that petition, but it sanctioned Griffin
for failing to attend sexual offender therapy. On May 7, 2014, following the
state's third petition, the district court revoked the remainder of Griffin's
suspended sentence, finding Griffin had violated the conditions of his probation.
Griffin is now serving the reinstated sentence of six years, 281 days. Griffin v.

Strutzel, No. OP-14-0819 (Mont. March 17, 2015).
Griffin has proven a prodigious litigant, filing frequently in both the state
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and federal systems. 1 Two of Griffin's prior state proceedings are relevant here.
In Griffin v. Strutzal, the Montana Supreme Court upheld the legality of Griffin's
original sentence and the revocation of his suspended sentence. No. OP 14-0819
(Mont. 2015). In Griffin v. Kirkegard, Griffin raised six claims identical to those
raised here, and the Montana Supreme Court dismissed each on state grounds. No.
OP 15-0265 (Mont. 2015). Because Judge Lynch very clearly detailed the factual
and procedural background in his Findings and Recommendation, the Court will
further discuss the facts and procedural history only as they become relevant to its
analysis of Griffin's claims.
Griffin's claims are as follows:
( 1) That the trial court exceeded its authority by imposing a sentence to the
Department of Corrections of six years, 281 days, in violation of Montana statutes
and the ex post facto clause;
(2) That the sentence of six years, 281 days is an illegal sentence in
contravention of Griffin's right to due process of law, right to be free of cruel and
unusual punishment, and right to equal protection;

1

See State v. Griffin, 172 P.3d 1223 (Mont. 2007); Griffin v. State, No. OP 11-0377
(Mont. 2011); Griffin v. Kirkegard, No. OP 12-0254 (Mont. 2012); Griffin v. Strutzel, No. OP
14-0819 (Mont. 2015); Griffin v. Kirkegard, No. OP 15-0265 (Mont. 2015); Griffin v. Mahoney,
No. CV-02-21-H-DWM-LBE (D. Mont. Mar. 19, 2004); Griffin v. Mahoney, No.
CV-09-90-BU-SEH-CSO (D. Mont. July 5, 2005).

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(3) That the trial court violated Griffin's due process rights by not
considering alternatives to incarceration;
(4) That the trial court exceeded its authority by imposing restrictions upon
his probation not authorized by statute;
(5) That the trial court acted unlawfully by modifying Griffin's conditions
of release without holding a hearing at which Griffin was present; and
(6) That the trial court unlawfully delegated its authority to the Department
of Corrections which resulted in a violation of the Eighth Amendment.
Judge Lynch finds claims (4) and (5) do not assert a violation of a federal
constitutional right, recommending that each be dismissed for lack of jurisdiction.
Griffin objects, asserting that claims (4) and (5) raise federal due process concerns
such that this Court has jurisdiction. Judge Lynch recommends that, although
claims (1), (2), (3), and (6) are grounded in federal constitutional rights, each
should be denied on the merits. Griffin's objections to Judge Lynch's analysis of
claims (1), (2), (3), and (6) are addressed below within the Court's discussion of
each.

I.

Claims (4) and (5)
The Court first considers Griffin's objections relevant to claims (4) and (5)

because its determination of each claim requires resolution of the same threshold
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issue, whether Griffin's federal due process rights may be implicated when
conditions are imposed on his probation. The federal Constitution gives Griffin
no due process guarantee to release "before the expiration of a valid sentence."
Greenholtz v. Inmates ofNeb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
Griffin has no federal liberty interest in his probation beyond that created by the
state. Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curium). Where there is
no federal liberty right except what the state has created, it follows that the state
may draw the boundaries of that right as it sees fit.
Here, the state limited Griffin's liberty interest by placing conditions on his
probation. State law governs the nature of those conditions and the process by
which they are guaranteed. The conditions were imposed pursuant to Montana
law, and "[i]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68
( 1991 ). Claims (4) and ( 5) are dismissed for lack of jurisdiction.
II.

Claims (1) and (2)
Judge Lynch analyzed claims (1) and (2) in tandem, recommending denial

of each based on his finding that the state district court lawfully revoked Griffin's
sentence. In his petition, Griffin asserted the district court was limited by a fiveyear sentencing cap. Griffin claimed that the court, in revoking his suspended
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sentence, exceeded its authority by requiring that he serve out the six years and
281 days remaining on his original sentence. Because the court awarded Griffin
credit for time served, Judge Lynch determined Griffin's revoked sentence of six
years and 281 days did not exceed the five-year statutory cap. Griffin raises a
single objection to Judge Lynch's analysis, claiming that the five-year cap applied
to the entire revocation, including his time served. Griffin's objection fails for two
reasons: first, the district court did not sentence him when it revoked his sentence;
and second, no five-year cap applies to either the imposition or revocation of a
sentence.
Griffin's claims stem from a 2014 state proceeding in which the state
district court did not impose a sentence but revoked a sentence previously
imposed. Griffin's probationary release from a lawfully imposed sentence was a
privilege, not a right. The state district court lawfully revoked that privilege when
it found that Griffin had failed to meet conditions appropriately imposed upon his
probation. The statute relevant to revocation of a suspended sentence provides:

"If the judge finds that the offender has violated the terms and conditions of the
suspended or deferred sentence, the judge may ... revoke the suspension of
sentence and require the offender to serve either the sentence imposed or any
sentence that could have been imposed that does not include a longer
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imprisonment or commitment term than the original sentence[.]" Mont. Code
Ann. § 46-18-203(7)(a), (a)(iii) (2013).
The statute upon which Griffin relies, which outlines sentences that may be
imposed, applies only upon initial sentencing. It is irrelevant to the district court's
revocation of his sentence. Because Griffin relies so heavily on this statute,
however, the Court will briefly address his contentions. The statute is permissive,
not mandatory; it provides that "a sentencing judge may impose a sentence that

may include" one or more listed measures. Mont. Code Ann.§ 46-18-201(3)(a)
(emphasis added). One of those measures is "referr[al] to the department of
corrections, with a recommendation for placement in an appropriate correctional
facility or program [with] all but the first 5 years of the commitment ...
suspended[.]" § 46-18-201(3)(iv)(A). This is the provision upon which Griffin
bases his argument that the district court exceeded its authority by ordering his
return to state custody. Griffin reads the statute to constructively say that a
sentencing court may never sentence any offender to more than five years. When
read in its entirety, however, the statute also provides that a court may impose "a
term of incarceration, as provided in Title 45 for the offense, at a county detention
center or at a state prison to be designated by the department of corrections[.]"§
46-18-201(3)(a)(iii). Not only was the revocation lawful, but under this statute,
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the original sentence was as well.

III.

Claim (3) 2
Judge Lynch determined that the district court did not violate due process

when it did not discuss alternatives to incarceration in revoking his sentence.
Griffin objects, arguing: (1) because he is a nonviolent offender without a serious
criminal record, alternatives should have been considered; and (2) the revocation
of his suspended sentence violates due process because conditions were imposed
upon his suspended sentence following a 2006 hearing despite his physical
absence from the hearing. Both arguments fail.
Convicted of felony sexual intercourse without consent and felony incest,
Griffin is a violent offender with a substantial criminal record. Griffin cites to
Montana Code Annotated§ 46-18-101, which provides both: "[s]entencing
practices must include punishing violent and serious repeat felony offenders with
incarceration"; and "[s]entencing practices must provide alternatives to
imprisonment for the punishment of those nonviolent felony offenders who do not
have serious criminal records." This statute applies only to the imposition of
Griffin's initial sentence, not to revocation of his suspended sentence. As to the
original sentence, Griffin falls into the category of violent and serious repeat
2

Claim (3) is mistakenly referred to as claim (4) in the Findings and Recommendation.

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felony offenders, and incarceration was appropriate.
Additionally, even if the procedure followed in 2006 regarding the
conditions of Griffin's suspended sentence were relevant to Griffin's challenge of
the 2014 revocation, the procedure violated neither Montana law nor federal due
process. The order entered in 2006 clarified rather than changed the original
conditions of Griffin's suspended sentence. In fact, the court never conducted a
hearing because none was required. Order, Griffin v. Kirkegard, No. OP 15-00265
(2015) at 3. The Montana Supreme Court determined that the district court
complied with the statutory requirements. State v. Griffin, 172 P.3d 1223,
1224-25. Finally, the Court cannot hear an argument grounded solely in an
alleged failure to meet state statutory requirements because "it is not the province
of a federal habeas court to reexamine state-court determinations on state-law
questions." Estelle, 502 U.S. at 67-68. Griffin's objections as to claim (3) are
without merit.

IV.

Claim (6)
Judge Lynch found that the Montana Department of Corrections' addition

of electronic monitoring violated neither the Due Process Clause nor the Eighth
Amendment. Griffin objects, asserting that only the court may require electronic
monitoring. His objection fails. Griffin voluntarily assented to participation in the

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Department of Corrections' monitoring program. Further, requiring electronic
monitoring during the term of a lawfully imposed sentence does not violate the
prohibition on cruel and unusual punishment.
Griffin has not "made substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253. Here, there are neither close questions nor reason to
encourage further proceedings. Slackv. McDaniel, 529 U.S. 473, 484 (2000). A
certificate of appealability is unwarranted.
There being no clear error in the remainder of Judge Lynch's Findings and
Recommendation,
IT IS ORDERED that:

1.

Judge Lynch's Findings and Recommendation (Doc. 16) are

ADOPTED IN FULL.
2.

Griffin's claims 4 and 5 are DISMISSED for lack of jurisdiction.

3.

Griffin's claims 1, 2, 3, and 6 are DENIED for lack of merit.

4.

The Clerk of Court shall enter by separate document a judgment of

dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.

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Dated this~ day of November,

Dana L. Christensen, Chief Judge
United States District Court

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