DaSilva v. District Court of the Eight Judicial District, Cascade et al

Filing 34

ORDER adopting in part 32 Findings and Recommendations. The Findings and Recommendation are ADOPTED to the extent they are consistent with this Order and REJECTED in all other respects. DaSilva's petition 1 is CONDITIONALLY GRANTED as to his claim under Count III and his claims under Counts I, II, and IV are DISMISSED WITH PREJUDICE. Certificate of appealability is denied as to DaSilva's claims under Counts I, II, and IV. The judgment entered in Cascade County Cause No. DDC 09-117 on April 30, 2010 is VACATED. Within sixty (60) days of the date of this Order, the State may renew proceedings against DaSilva in the trial court. If the State renews the proceedings, it must timely file a Notice stating that it has done s o. If the State does not timely file notice of the renewal of proceedings in the trial court, this Court will order DaSilva's unconditional release from all custody based on the vacated conviction, and he may not be retried.The motion to appoint counsel 33 -1 is DENIED. The motion for rehearing 33 -2) is DENIED. Signed by Judge Donald W. Molloy on 5/15/2014. Mailed to DaSilva. (TAG, )

FILED

MAY, 5 201~
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

ROBERT AYRES DASILVA, JR.,

CIeI!<.l:/.S. District Court

District Of Montana

Missoula

CV 13-25-GF-DWM-RKS

Petitioner,
ORDER

vs.
WARDEN SAM LAW; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

Robert Ayres DaSilva, Jr. is a state prisoner proceeding pro se. He petitions
this Court for a writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge
Keith Strong recommends denying the petition. (Doc. 32.) DaSilva filed
objections to Judge Strong's Findings and Recommendation, (Doc. 33), and is
therefore entitled to de novo review of the specified findings or recommendations
to which he objects. 28 U.S.C. § 636(b)(1). The Court reviews the Findings and
Recommendations not specifically objected to for clear error. McDonnell Douglas

Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

1

SCANNED

DaSilva objects to Judge Strong's Findings and Recommendation on the
grounds that he was wrongfully convicted because the trial court incorrectly
determined that his prior conviction was for a "sexual offense" as defined by
Montana statute. DaSilva contends Judge Strong misstated certain facts,
improperly characterized his arguments, and improperly analyzed the statutes in
question. Having considered these objections, the Court agrees with Judge
Strong's analysis regarding the state court's jury instruction, but finds that the
state court precluded defense counsel from arguing reasonable doubt as to an
essential element of the offense charged. Therefore, DaSilva's habeas petition as
to Count III is conditionally granted. Because the parties are familiar with the
factual and procedural background, it will not be restated here.

I.

Factual Objection
DaSilva first contends that he was arrested in February 2009-and not

March 2009-for failing to update his sex offender registration in violation of
Mont. Code Ann. § 46-23-507 (2007). Although the charging document was filed
in March 2009, (Doc. 21-6), DaSilva was arrested in February of2009, (see Doc.
21-20 at 3 (stating that "DaSilva ran and was arrested after pursuit" in February of
2009)). Although this fact stands corrected, it does not impact the Court's
analysis.
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II.

Count III
Although the state court reasonably determined and instructed the jury that

Assault in the Second Degree with Sexual Motivation is a "sexual offense" under
Montana law, the state court's decision to prevent DaSilva from presenting
evidence as to the ambiguity of the 1998 Washington judgment denied his right to
fair trial. DaSilva's theory of the case was that he had not been convicted of a
"sexual offense" as required by Montana law. DaSilva attempted to argue this
matter as a legal consideration on a motion to dismiss and then as a question of
fact to be submitted to the jury. The state court denied the motion to dismiss and,
directly prior to trial, the trial judge determined that:
[A]ny alleged defect as to the form or content of the Washington
judgment of conviction is a matter that Mr. DaSilva could have and
should have taken up on appeal, or otherwise, under Washington law.
There is no indication or assertion in this record that he has done that.
And therefore, that matter has been previously adjudicated under
Washington law; that is the legal effect of the Washington judgment.
And this Court is not going to allow Mr. DaSilva to argue, either as a
matter of fact or law to this jury, that that ambiguity or argue, or
apparent ambiguity on the face of the Washington judgment, is a basis
for the jury to conclude that he was not convicted of a sexual offense
under Washington law and as applicable under Montana law as charged
in this case.
(Doc. 21-32 at 11-12.)
During the discussion regarding jury instructions, the same issues were
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raised by DaSilva. He maintained that whether he was convicted of a "sexual
offense" was a question of fact and the ambiguity in the 1998 Washington
judgment supported his contention. Ultimately, the following jury instructions
were gIven:
Instruction 10: Under Montana law, a person who has been convicted
of a sexual offense is required to register as a sex offender.
Instruction 11: As a matter of law, the Washington offense of Assault
in the Second Degree with Sexual Motivation, as defined by Section
9.94A.030 and 9A.36.021 (1)(a), Revised Code Washington, also
referenced as RCW, is a "sexual offense."
(Doc. 21-35 at 4.)
A criminal defendant is entitled to "a jury determination that [he] is guilty of
every element of the crime with which he is charged, beyond a reasonable doubt."

United States v. Gaudin, 515 U.S. 506, 510 (1995). Here, the definition of "sexual
offense" is a legal, not factual, one and providing the definition as part of the jury
instructions did not, by itself, prevent the jury from making a determination as to
every element of the offense charged. Id. at 513 ("[T]hejudge must be permitted
to instruct the jury on the law and to insist that the jury follow his instructions.").
However, the trial court did not give DaSilva a fair chance to present evidence on
that instruction. By not allowing DaSilva to present evidence as to the ambiguity
of the 1998 Washington judgment, the state trial court unconstitutionally
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precluded defense counsel from arguing reasonable doubt as to an essential
element of the offense charged. l See In re Winship, 397 U.S. 358 (1970) ("[T]he
Due Process Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged."); Crane v. Kentucky, 476 U.S. 683,690 (1986) ("[T]he
Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense."); Frost v. VanBoening, _

F.3d _,2014 WL 1677820 **3,

8 (9th Cir. Apr. 29,2014) (en banc) (finding the state trial court unconstitutionally
precluded defense counsel from arguing reasonable doubt when it would not allow
argument on the defense's theory of the case during closing).
As the Ninth Circuit recently held in Frost, "[p]recluding defense counsel
from arguing a legitimate defense theory would, by itself, constitute structural
error." 2014 WL 1677820 at *5. Although the Frost court focuses on a state
court not allowing a defendant to argue a defense theory in closing argument, the
violation here is equally problematic. DaSilva was prevented from putting the
State to its proof not only in closing, as was the case in Frost, but during the
course of the entire trial. (Doc. 21-32 at 11-12.) DaSilva wanted to argue that the

The state court even notes that the judgment is not entirely clear. (Doc. 21 at 11
("notwithstanding the apparent imprecision on the face ofthe Washington judgment").)

5

State had not satisfied its burden of proving beyond a reasonable doubt that he was
a "person convicted of a sexual offense" by presenting evidence as to the
ambiguity of the 1998 Washington judgment. But he was deprived of this
fundamental right. Instead, the trial court instructed defense counsel that the
Washington judgment conclusively showed DaSilva's prior conviction.
In sum, there is no question that the trial court violated DaSilva's due
process rights under a long line of clearly established Supreme Court precedent.
DaSilva was deprived of his right to demand that a jury find him guilty of all the
elements of a crime with which he was charged under Winship and Gaudin.
"These types of errors strike at the heart ofthe presumption of innocence and the
defendant's right to contest that the State prove its case beyond a reasonable
doubt." Frost, 2014 WL 1677820 at *6. As such, the state court's error was
structural and is not subject to harmless error review.

III.

Count II
DaSilva does not raise any specific objections to Judge Strong's

determination that his claim under Count II is procedurally barred as it was not
presented on direct appeal. The Court finds no clear error with Judge Strong's
analysis or conclusion as to this matter.

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IV.

Conclusion
Accordingly, IT IS ORDERED as follows:
1.

The Findings and Recommendation (Doc. 32) are ADOPTED to the

extent they are consistent with this Order and REJECTED in all other respects.
2.

DaSilva's petition (Doc. 1) is CONDITIONALLY GRANTED as to

his claim under Count III and his claims under Counts I, II, and IV are
DISMISSED WITH PREJUDICE.
3.

Certificate of appealability is denied as to DaSilva's claims under

Counts I, II, and IV.
4.

The judgment entered in Cascade County Cause No. DDC 09-117 on

April 30, 2010 is VACATED.
5.

Within sixty (60) days of the date of this Order, the State may renew

proceedings against DaSilva in the trial court on the charge of "Failure of Sex
Offender to Provide Notice of Address Change." As the sentence imposed in
DDC 09-117 does not distinguish between the above-mentioned charge and the
charge for "Resisting Arrest," the State must renew state proceedings for re­
sentencing for the "Resisting Arrest" charge or it is also subject to (7) as discussed
below.
6.

If the State renews the proceedings, it must timely file a Notice

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stating that it has done so.
7.

Ifthe State does not timely file notice of the renewal of proceedings

in the trial court, this Court will order DaSilva's unconditional release from all
custody based on the vacated conviction, and he may not be retried.
8.

The Clerk is directed to enter judgment, by separate document, in

favor of Petitioner and against Respondents on Count III and against Petitioner
and in favor of Respondents on Counts I, II, and IV.
9.

The attached motion to appoint counsel (Doc. 33-1) is DENIED.

10.

The attached motion for rehearing (Doc. 33-2) is DENIED.

Dated this

If;~y of May, 2014.

olloy, District Judge
District Court

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