Stewart v. Green et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 18 in full. Petition for writ of habeas corpus 1 DENIED. Motion to Supplement objections 22 DENIED. Certificate of appealability DENIED. Signed by Judge Dana L. Christensen on 9/19/2016. Mailed to Stewart. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
TOM GREEN, ATTORNEY
GENERAL OF THE STATE OF
MONTANA, et al.,
United States Magistrate Judge Jeremiah C. Lynch entered findings and
recommendations in this matter on August 9, 2016, recommending dismissal of
Petitioner Benny Stewart's ("Stewart'') petition for writ of habeas corpus, pursuant
to 28 U.S.C. § 2254. Stewart filed objections to the findings and
recommendations on August 29, 2016, and so is entitled to de novo review of
those findings and recommendations to which he specifically objects. 28 U.S.C.
§ 636(b)(1 )(C). This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). "Clear error exists if 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).
Notwithstanding the above, "[w]here a petitioner's objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original habeas petition, the
applicable portions of the findings and recommendations will be reviewed for
clear error." Roslingv. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21,
2014) (citations omitted).
Stewart raised ten claims in his habeas petition that were addressed in detail
and on the merits in Judge Lynch's findings and recommendations. Having
reviewed Stewart's objections, the Court finds that he makes five specific
contentions to the findings and recommendations. The Court will address each
The proper subject matter jurisdiction over Stewart's state case.
Stewart first objects that within his original habeas petition, "Ground 5" is
clear and undisputable. Stewart alleges that his right to due process was violated
when he was denied the Fifth Amendment's "guarantee of the minimum level. of
probable cause." (Doc. 21 at 2.) Stewart further contends that Judge Lynch's
reliance on Gerstein v. Pugh, 420 U.S. 103 (1975) is "misplaced" and "only relates
to arrest and detention and makes no mention of subject matter jurisdiction."
(Doc. 21 at 3.) The Court does not agree. Subject matter jurisdiction involves a
court's power to hear a case and it can never be forfeited or waived. United States
v. Cotton, 535 U.S. 625, 625 (2002). In Gerstein, the United States Supreme
Court discusses how various states have jurisdiction over defendants and the
necessary pretrial procedures used in each state to determine probable cause.
Gerstein, 420 U.S. at 123.
Judge Lynch correctly concludes that Stewart's entire pretrial procedure was
proper under Montana's Constitution and charging statutes. The Montana Second
Judicial District had power over Stewart's case from the outset given that
Stewart's conduct occurred within that county and he was charged under Montana
statutes. Thus, what Stewart fails to understand is that his arrest and detention are
incorporated within the subject matter jurisdiction of his case, and there was no
impropriety in the manner in which Stewart was charged .. His contention here is
not in violation of the Fifth Amendment and is without merit. 1
Stewart filed a correction to this subject matter jurisdiction objection to add "key facts
that were mistakenly omitted." (Doc. 22.) The Court will treat this as a motion to supplement
his objections. However, Stewart incorrectly cites to the Federal Rules of Criminal Procedure
regarding his right to waive indictment. lhe Federal Rules of Criminal Procedure do not apply
because he was charged and convicted under Montana law; thus, the Montana Rules of Criminal
Procedure apply. Consequently, his argument is without merit and the motion will be denied.
The wiretap on Stewart's phone.
Here, Stewart's objection adds to his "Ground 1" claim relating to an illegal
search using a wiretap. Stewart contends that the detective's use of the "recorded
telephone calls reached across state line into Idaho and Wyoming which qualifies
as interstate commerce." (Doc. 21 at 4.) First and foremost, Stewart was
convicted under Montana law, not federal law. But, even if federal law applied,
the facts here do not constitute a violation of the Fourth Amendment sufficient to
grant a petition for habeas corpus. Not only were the intercepted phone calls
consented to by A.S., one of the parties to the communication, the Montana
Supreme Court has already accurately addressed in Stewart's state appeal that
additional evidence-aside from the phone calls-overwhelmingly determined
Stewart's guilt and that the wiretap was harmless error. See 18 U.S.C. §
2511(2)(c); Montana v. Stewart, 291P.3d1187, 1201-1203 (Mont. 2012).
Therefore, under both Montana or federal law, Stewart's objections are without
Legality of the search warrants.
Stewart makes two contentions regarding the illegal search and seizure of
his home, computers, and electronic devices: one alleging that the first search
warrant was overly broad, and the second alleging the seizure of his electronically
stored data was without a warrant. (Doc. 21 at 5-7.) In regards to the first search
warrant of his home, Judge Lynch is correct that under Stone v. Powell, 428 U.S.
465, 494 ( 197 6), challenges to the legality of search warrants via habeas relief are
But, even if this standard did not apply, Stewart's constitutional rights were
not violated when the warrant stated "including but not limited to," and then listed
various items and locations in his home. (Doc. 17-2 at 1-2.) A warrantless search
is reasonable only if it falls within a specific exception to the Fourth Amendment's
warrant requirement. See, e.g., Horton v. California, 496 U.S. 128 (2002)
(exception to seize property when the officer observes it in plain view); Chime/ v.
California, 395 U.S. 752 (1969) (exception for search incident to lawful arrest).
However, none of the exceptions apply here and Stewart's claim is without merit
because the search warrant at issue stated with particularity all of the evidence that
was actually seized in the search. (Compare Doc. 17-2 at 1-2, with 17-2 at 3-4.)
Therefore, the search did not go beyond the scope of the warrant.
As to the second warrant at issue, Stewart's objection is more contentious.
(Doc. 21 at 6.) A warrant is generally necessary to search the electronically stored
data within an electronic device. Fed. R. Crim. P. 41(e)(2); see also United States
v. Comprehensive Drug Testing, Inc., 621F.3d1162, 1175-1177 (9th Cir. 2010);
Riley v. California, 134 S. Ct. 2473, 2493 (2014). The Court is unable to find any_
document within the record that amounts to a warrant to search the data located
within all of Stewart's electronics. However, as Judge Lynch indicates, it appears
a second search warrant was sought and ultimately granted. (See Doc.14-36 at 5.)
Furthermore, Stewart moved to continue his trial in order to receive the results of
the forensic analysis of his electronics' data. (Doc. 14-2.) Thus, Stewart
consented to the search of the electronically stored data and cannot now raise the
argument in his request for habeas relief.
Ineffective assistance of counsel.
Stewart's fourth objection which relates to his ineffective assistance of
counsel claim does not articulate any specific issue with Judge Lynch's reasoning,
and instead reiterates his perception that his constitutional rights have been
violated in some manner. (Doc. 21at7.) Thus, Stewart has not met the standards
needed to prevail on an ineffective assistance of counsel claim and his objection is
without merit. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Additional objections to Grounds 4, 6, 7, 8, and 10.
Stewart also objects to Judge Lynch's findings on "Grounds 4, 6, 7, 8, and
1O" within his habeas petition. (Doc. 21 at 7.) Again, Stewart fails to articulate
any specific issue with Judge Lynch's reasoning, but alternatively requests that the
Court grant his petition on these grounds as they relate to subject matter
jurisdiction. Pursuant to the Court's analysis above, Stewart's subject matter
jurisdiction contention is without merit. Thus, this argument also fails.
Accordingly, the Court reviews Judge Lynch's findings and.
recommendations for clear error and, finding none,
IT IS ORDERED that Judge Lynch's Findings and Recommendations
(Doc. 18) are ADOPTED IN FULL. Stewart's petition for writ of habeas corpus
(Doc. 1) is DENIED for lack or merit.
IT IS FURTHER ORDERED that Stewart's Motion to Supplement his
objections to the findings and recommendations (Doc. 22) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter by separate
document a judgment ofDISMISSAL.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED this _l_ day of September, 016.
Dana L. Christensen, Chief Judge
United States District Court
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