Burns v. Kirkegard et al
Filing
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ORDER DENYING 1 PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Magistrate Keith Strong on 6/6/2013. Mailed to Burns. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
______________________________
DAN BURNS,
Cause No. CV 12-51-GF-RKS
Petitioner,
vs.
LEROY KIRKEGARD, Warden, Montana
State Prison; ATTORNEY GENERAL
OF THE STATE OF MONTANA,
ORDER DENYING PETITION
AND DENYING CERTIFICATE
OF APPEALABILITY
Respondents.
______________________________
Synopsis
Mr. Burns petitioned for habeas relief, alleging his trial attorney was ineffective
in giving him advice that led him to accept a plea agreement. He also alleges he was
improperly deprived of counsel after his unsuccessful appeal. Mr. Burns is not
entitled to habeas relief. His trial attorney gave him accurate, competent advice, and
he was not entitled to appointed counsel after his appeal. The petition is denied.
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Status
On July 16, 2012, Petitioner Dan Burns filed this action seeking a writ of
habeas corpus under 28 U.S.C. § 2254. Mr. Burns is a state prisoner proceeding pro
se. On December 14, 2012, Respondents (“the State”) filed an Answer. Mr. Burns
filed a reply on January 2, 2013. On November 15, 2012, based on each party’s
written consent, the case was assigned to the undersigned for all further proceedings,
including entry of judgment. 28 U.S.C. § 636(c)(1); Consents (docs. 10, 10-1).
Facts
Mr. Burns pled guilty to one count of sexual abuse of a child. Pet. (doc. 1) at
2. He was sentenced to serve sixty years in prison, with thirty-five suspended. Id.
After appeal on an unrelated issue, he moved to withdraw his guilty plea. The trial
court denied the motion, and the Montana Supreme Court affirmed its decision. State
v. Burns, 277 P.3d 1238, 1241 ¶ 14 (Mont. 2012).
In this Court, Mr. Burns asserts two claims for relief. First, he contends that
counsel wrongly advised him that the State would introduce into evidence against him
an alleged prior bad act, dating from thirty years earlier, and that this evidence would
materially increase the likelihood of conviction. Second, he asserts that his Sixth
Amendment right to the assistance of counsel was violated because he was compelled
to represent himself in his motion to withdraw his guilty plea and on appeal from the
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trial court’s denial of that motion.
Analysis
A. Claim 1
Mr. Burns was charged with one count of sexual abuse of a child, a violation
of Mont. Code Ann. § 45-5-625, based on an allegation that he gave a teenage boy a
vibrator and told him how to use it. Pet. (doc. 1) at 2. Mr. Burns’s attorney, Olivia
Norlin, advised him the State would attempt to introduce at trial testimony that Mr.
Burns engaged in a similar act thirty years earlier. Mr. Burns asserts he chose to plead
guilty because the testimony1 would be highly prejudicial, but he later discovered its
admission might have been so limited that he would instead have gone to trial. Pet.
at 8.
Claims of ineffective assistance of trial counsel are governed by Strickland v.
Washington, 466 U.S. 668 (1984). Mr. Burns 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 her errors, “he would not have pleaded
guilty and would have insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59
(1985).
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Other witnesses, too, were apparently prepared to testify, e.g., Norlin Aff.
(doc. 14-5) at 6 ¶ 4.
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Further, because the Montana Supreme Court considered this claim on the
merits, Mr. Burns may obtain federal habeas relief only if the state court’s denial of
his claims “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” or if the state court’s denial was “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (2). The federal court considers whether the
reasoning and result of the state court’s opinion are objectively unreasonable, not the
specificity of the state courts’ analysis. Williams v. Taylor, 529 U.S. 362, 405-07
(2000); see also Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam). When §
2254(d) and the deferential standard of Strickland combine, as they do here, the
federal court is “doubly deferential” to the state court’s decision. Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). Even on a de novo standard, however, the
result in Mr. Burns’s case would be the same. See id. at 124.
Ms. Norlin advised Mr. Burns that testimony regarding a prior act could
become admissible either if she called witnesses to testify about his good character or
if he chose to testify and made statements such as “I am not into sexual activity,” “sex
has never been a part of my life,” or “I have had no interest in sex throughout my
lifetime and do not masturbate.” Burns Letter to Norlin Jan. 21, 2009, at 3 (doc. 14-5
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at 18). Counsel also explained to Mr. Burns that she was concerned he would not be
able to resist making such statements, Norlin Letter to Burns Jan. 23, 2009, at 1 (doc.
14-5 at 22) (referring to statements made in Letter of Jan. 21, 2009); Change of Plea
Tr. (doc. 14-1) at 13:10-14:12. Therefore, she recommended Mr. Burns forego the
opportunity to present evidence of his good character and exercise his right not to
testify.
Mr. Burns contends, however, that Ms. Norlin did not “adequately advise[] him
regarding the limited use of other crimes evidence.” Pet. at 8. He refers, as he did in
the state court proceedings, to Mont. R. Evid. 403, 404(b), and 608(b). E.g., Pet. at
6-7; Reply (doc. 15) at 3-4 (referring to Reply re: Mot. to Withdraw Plea (doc. 14-6)
at 6-7).
Mr. Burns misapprehends the applicable rule. Rules 403, 404(b), and 608(b)
were not likely to come into play. Rule 404(a)(1) was the controlling rule. See, e.g.,
State v. Baker, 815 P.2d 587, 159 (Mont. 1991) (holding that, notwithstanding Rule
404(b), “[c]haracter having been put in issue, it was properly rebutted by the
prosecution under Rule 404(a)(1)”). Rule 608 concerns impeachment of witnesses.
The prior-acts testimony would not have been directed at Mr. Burns’s witnesses’
character for truthfulness but at Mr. Burns’s character. Rule 608 was not relevant.
Rule 403 always requires a balancing test to ascertain that evidence is not more
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unduly prejudicial than probative, but evidence introduced to rebut an accused’s
asserted character defense is clearly probative. It is unlikely that Rule 403 would
preclude such relevant testimony. And evidence admitted under Rule 404(a)(1) is
substantive evidence of innocence or guilt. State v. Gowan, 13 P.3d 376, 380 ¶¶ 23
(Mont. 2000). It is not limited to the purposes specified in Rule 404(b). Finally, the
entire issue was not one on which a motion in limine was likely to be productive, see
Reply at 4, because the admissibility of the testimony would depend exclusively on
what witnesses actually said at trial.
Ms. Norlin reasonably considered the admissibility of the prior act, correctly
advised Mr. Burns, and had no reason to file a pretrial motion in limine. Mr. Burns’s
“supposed choice ‘not’ to testify was a direct result of that advice,” Reply at 4, and
was logical considering the law and facts of the case. He has failed to show deficient
performance by counsel. “[T]here is no reason . . . to address both components of the
inquiry,” that is, deficient performance and prejudice, if the defendant makes an
insufficient showing on one.” Strickland, 466 U.S. at 697. This claim is denied.
B. Claim 2
Relief is available under 28 U.S.C. § 2254 if a state prisoner shows that he is
in custody “in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). Where the federal right to counsel applies, see Scott v. Illinois,
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440 U.S. 367, 374 (1979), it extends through the first appeal as of right and no farther.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Mr. Burns filed his motion to
withdraw his guilty plea after the conclusion of his first appeal as of right. See Pet.
(doc. 1) at 3. He no longer had a federal constitutional right to the assistance of
counsel at that time. This claim is denied.
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 (2000)).
The allegations of Mr. Burns’s petition met the low threshold necessary to
require an answer, but in light of the state court record, they no longer have any
substance. Defense counsel’s advice about the admissibility of the prior-act testimony
was competent. Mr. Burns was not entitled to counsel at public expense in postconviction proceedings.
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Mr. Burns presents no open questions and nothing on which reasonable jurists
could disagree. The law underlying denial of his claims is well-established. A
certificate of appealability is not warranted.
Based on the foregoing, the Court enters the following:
ORDER
1. Mr. Burns’s petition (doc. 1) is DENIED on the merits;
2. The Clerk of Court shall enter, by separate document, judgment in favor of
the State and against Mr. Burns;
3. A certificate of appealability is DENIED.
DATED this 6th day of June, 2013.
/s/ Keith Strong
Keith Strong
United States Magistrate Judge
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