Vondal v. Kirkegard et al

Filing 5

ORDER STAYING CASE. Status Report due by 7/15/2015. Signed by Magistrate Judge John Johnston on 6/10/2015. Mailed to Vondal. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

LAVERNE J. VONDAL,

Cause No. CV 15-41-GF-BMM-JTJ

Petitioner,
vs.

ORDER

LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

On May 6, 2015, LaVerne J. Vondal filed a petition seeking a writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 1). Vondal is a state prisoner proceeding
pro se. On May 11, 2015, Vondal filed a “Motion for Stay and Abeyance” (Doc.
3), asking this Court to stay his habeas petition while he pursues an appeal in the
Montana Supreme Court from the denial of his postconviction petition.1
I. Vondal’s Allegations/Procedural History
Vondal’s petition contains four claims for relief. First, he contends that he
received ineffective assistance of counsel when his attorney: abandoned him, failed
to investigate his case, coerced him, and continued representation despite a conflict

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A review of the Montana Supreme Court Docket confirms that Vondal has an active case
pending: DA 15-0282, Vondal v. State (filed 5/6/15). The Montana Supreme Court has not yet
set a briefing schedule. Available at: http://supremecourtdocket.mt.gov (accessed June 4, 2015).

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of interest. Pet. (Doc 1) at 4 ¶ 13A. Second, Vondal claims that there was an
illegal search and seizure because:
Sanitation employee [sic] were acting as agents of the state when they
entered the property and seized garbage from behind the house without
permission or a warrant and they turned garbage over to Sheriff’s deputy
who was standing by watching. All this activity was performed on a nonscheduled pick up day.
Id. at 5 ¶ 13B.
Next, Vondal alleges judicial misconduct because the trial judge made
himself “a witness for the state when he testified in court, without being sworn in,
as to the chain of custody of a search warrant issued by him.” Id. at 9. Vondal
also asserts that the trial judge made an unnecessary trip to the crime scene to see if
the search warrant he signed had been executed. Id. Finally, Vondal claims that,
collectively, these claims violated his right to due process under the Fourteenth
Amendment. Id. at 9-10.
Notably, these allegations are substantially similar to those raised by Vondal
in a prior habeas proceeding. See Vondal v. Frink, CV 11-42-GF-SEH-RKS, Pet.
(Doc. 1) ¶15A1, ¶15B1, ¶15C. There, United States Magistrate Judge Keith
Strong ultimately found that Vondal’s petition should be dismissed with prejudice
as time barred and procedurally defaulted without excuse. Vondal v. Frink, CV
11-42-GF-SEH-RKS, (Doc. 12) at 5 (Aug. 29, 2011). After de novo review by the
District Court, Judge Strong’s findings were adopted in full. Order, Vondal v.
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Frink, CV 11-42-GF-SEH-RKS (Sept. 14, 2011).
Following the denial of his 2011 federal habeas petition, Vondal filed a
petition for an out of time appeal with the Montana Supreme Court. See, State v.
Vondal, No. DA 13-0417. The Court denied Vondal’s request as time-barred.
Order, State v. Vondal, No. DA 13-0417 (Mont. July 13, 2013).
On January 31, 2014, Vondal filed a state habeas petition, arguing that his
original sentence was facially invalid and that his due process rights were violated
by the trial court’s imposition of conditions on his parole eligibility. See, Vondal v.
Frink, No. OP 14-0079 (Mont. January 31, 2014). The State conceded that the trial
court purported to impose conditions for which it lacked authority; the Court
granted Vondal’s petition. Order, Vondal v. Frink, No. OP 14-0079 (Mont. April
16, 2014). The Court directed the trial court to issue an amended judgment and
sentence to clarify that the probation/parole conditions not expressly authorized by
statute were instead recommendations to the parole board. Id. The challenge to
the terms of his sentence was the only issue Vondal raised in his state habeas
petition.
According to Vondal, the trial court amended the judgment on May 9, 2014.
Pet. (Doc. 1) at 4 ¶2. Vondal did not file a direct appeal from the amended
judgment; thus, his conviction became final 60 days after entry of the written
judgment, that is, on July 8, 2014. See, Mont. R. App.P. 4(5)(b)(i)(2014);
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Gonzalez v. Thaler, __ U.S. __, 132 S. Ct. 641, 653-54 (2012).
Vondal filed a petition for postconviction relief following the amendment of
his judgment. The petition was denied, and Vondal subsequently appealed the
denial of the petition to the Montana Supreme Court. Notice of Appeal, Vondal v.
State, No. DA 15-0282 (Mont. May 6, 2015). Contemporaneously, Vondal filed
the habeas petition in this Court (Doc. 1), as well as the Motion for Stay and
Abeyance (Doc. 3).
II. Second or Successive
Vondal’s case is unique. At first glance, it appears the claims Vondal now
raises are either time-barred and procedurally defaulted, or that the current petition
is second or successive under 28 U.S.C. § 2244(b)(1). Between the filing of the
2011 federal habeas petition and the current petition, Vondal obtained an amended
judgment, via habeas relief, from the Montana Supreme Court. In the Ninth
Circuit, the latter of two petitions is not “second or successive” if there is a “new
judgment intervening between the two habeas petitions.” Wentzell v. Neven, 674
F. 3d 1124 (9th Cir. 2012) (citing Magwood v. Patterson, __ U.S. __, 130 S. Ct.
2788, 2802 (2010)). Relying upon Johnson v. United States, 623 F. 3d 41 (2d Cir.
2010), the Wentzell court reasoned “where a first habeas petition results in an
amended judgment, a subsequent petition is not successive, even if its claims could
have been raised in a prior petition or the petitioner ‘effectively challenges and
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unamended component of the judgment.’ ” Wentzell, 674 F. 3d at 1127 (citing
Johnson, 623 F. 3d at 46). Thus, Vondal’s petition is properly before the Court
and should not be dismissed as a second or successive petition even though it may
appear that his claim challenges an unamended portion of the judgment.
III.

Exhaustion and Stay

Vondal requests that this court stay his petition so that he may pursue his
postconviction appeal in state court. Pursuant to Rhines v. Weber, 544 U.S. 269
(2005), the Court has the ability to stay a mixed federal habeas petition to permit
exhaustion of additional claims in state court.
Vondal did not previously present the claims raised now to the state court.
In fact, it was observed that the “Montana Supreme Court has never even laid eyes
on [Vondal’s] claims.” Vondal v. Frink, CV 11-42-GF-SEH-RKS (Doc. 12) at 7.
By virtue of Vondal’s state filings following the dismissal of his 2011 federal
habeas petition, the state court now has the opportunity to review Vondal’s claims.
For this Court to determine whether Vondal is entitled to a stay while that occurs,
it is necessary to determine which, if any, of Vondal’s claims are exhausted and
which remain unexhausted.
The exhaustion requirement is a “simple and clear instruction to potential
litigants: before you bring any claims to federal court, be sure that you first have
taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520 (1982). To meet
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the exhaustion requirement, a petitioner must: (1) use the “remedies available,” 28
§ 2254(b)(1)(A), through the State’s established procedures for appellate review,
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); (2) describe “the federal legal
theory on which his claim is based,” Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.
2008); and (3) describe “the operative facts . . . necessary to give application to the
constitutional principle upon which the petitioner relies,” id. A petitioner must
meet all three prongs of the test in one proceeding.
In the law of habeas, “state-court remedies are described as having been
‘exhausted’ when they are no longer available, regardless of the reason for their
unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). “[I]f state-court
remedies are no longer available because the prisoner failed to comply with the
deadline for seeking state-court review or for taking an appeal, those remedies are
technically exhausted.” Id. at 93.
The challenge in the instant case is that the Court does not know exactly
what claims Vondal intends to raise in the state court. Since filing his state habeas
petition in 2014, which was granted, Vondal timely filed a postconviction petition
and a subsequent appeal from that proceeding. See, Vondal v. State, DA 15-0282.
Vondal did not, however, file a direct appeal following the issuance of the
amended judgment. Vondal’s failure to file a direct appeal created at least one
exhausted claim: his third claim for judicial misconduct. Additionally, it appears
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that Vondal’s first claim, stemming from ineffective assistance of trial counsel is
not yet exhausted.
i.

Exhaustion analysis

Vondal’s first claim involving allegations relating to the ineffective
assistance of trial counsel remains unexhausted. Pursuant to Montana Code
Annotated § 46-21-105(2) (2015), grounds for relief that a petitioner reasonably
could have raised on direct appeal may not be raised thereafter in a petition for
postconviction relief. The allegations Vondal makes in regard to ineffective
assistance are most likely not documented in the record, therefore they could not
have been raised on direct appeal. Ineffective assistance of counsel is a claim that
may be raised in a postconviction proceeding. Thus, Vondal’s first claim is not yet
exhausted because he may properly present the IATC claim on the post-conviction
appeal to the Montana Supreme Court.
The second claim Vondal raises in this petition pertains to an illegal search
and seizure. Generally, a federal district court cannot grant habeas corpus relief on
the ground that evidence was obtained by an unconstitutional search and seizure if
the state provided the prisoner a full and fair opportunity to litigate the Fourth
Amendment claim. Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037, 49 L. Ed.
2d 1067 (1976); Moormann v. Schiriro, 426 F. 3d 1044, 1053 (9th Cir. 2005).
Because Vondal did not raise this claim on direct appeal, it is exhausted.
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Woodford, 548 U.S. at 93.
Vondal’s third claim, pertaining to judicial misconduct, is record based and
should have been raised on direct appeal. It appears that when Vondal became
aware of the trial court’s involvement and commentary on the search warrant, he
attempted to withdraw his guilty plea. See, Vondal v. Frink, CV 11-42-GF-SEHRKS (Doc. 12) at 2. Due to the nature of this claim, Vondal should have pursued it
in a direct appeal, either from the conviction or from the amended judgment,
because he did neither, there is now no “established state remedy available” to him
to seek review of the claim. Thus, this claim is exhausted. Because Vondal’s
petition appears to be mixed, this Court has the ability to grant a stay.
ii.

Stay

Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), the Court may stay a
mixed federal habeas petition to permit exhaustion of additional claims “if the
petitioner had good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Id. at 278.
Following the denial of his 2011 habeas petition in this Court, Vondal
appears to have been diligent in his subsequent attempts to obtain relief in state
court. Vondal’s current federal petition was timely filed within the Anti-Terrorism
and Effective Death Penalty Act’s one-year statute of limitations following the
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issuance of the amended judgment on May 9, 2014, which became final on July 8,
2014. The present petition was filed on May 6, 2015. Vondal’s appeal from the
postconviction proceeding was likewise filed on May 6, 2015. Dismissing
Vondal’s claim now, rather than imposing a stay, would potentially result in the
imposition of a time bar against Vondal’s petition, should he attempt to return to
federal court after presenting his claims to the Montana Supreme Court. The
petition was timely when Vondal filed it in this Court.
Whether the Montana Supreme Court will hear any of Vondal’s claims on
the merits or deem them time-barred and/or defaulted remains to be seen. The
doctrine of comity and the discretion afforded this Court by Rhines both weigh in
favor of granting a stay to allow Vondal to attempt to pursue his claims in the state
court. This is why the Rhines Court recognized the legitimacy of a stay to allow
further exhaustion in state court. See, Rhines, 544 U.S. at 272-73. This decision,
however, should not be read to mean that the Court finds the claims Vondal now
raises to be meritorious. Rather, it is in an abundance of caution that this Court is
granting a stay.
Under the unique circumstances here, “the petitioner’s interest in obtaining
federal review of his claims outweighs the competing interests in finality and
speedy resolution of federal petitions.” Rhines, 544 U.S. at 278. This matter will
be stayed to permit Vondal to continue pursuing the pending appeal in the Montana
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Supreme Court.
Based on the foregoing, the Court enters the following:
ORDER
1. This matter is STAYED to allow Vondal to proceed with his
postconviction appeal currently pending in the Montana Supreme Court.
2. Vondal must file a status report in this Court on or before July 15, 2015,
to advise the Court of any filing he has made in state court. Provided Vondal
timely files his appellate brief in state court, the stay in this Court will be continued
pending disposition of Vondal’s action in state court. If Vondal does not continue
to pursue relief in state court in compliance with this Order, his claims will be
subject to dismissal with prejudice.
3. Vondal must immediately notify the Court of any change in his mailing
address by filing a “Notice of Change of Address.” Failure to do so may result in
dismissal of this case without notice to him.
DATED this 10th day of June, 2015.

/s/ John Johnston
John Johnston
United States Magistrate Judge

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