Heavygun v. Fender et al

Filing 12

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 10 in full. Petition is DENIED. A certificate of appealability is DENIED. Request for the appointment of counsel is DENIED. Signed by Judge Dana L. Christensen on 5/31/2017. Mailed to Heavygun (TAG)

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

GARY DUANE HEAVYGUN,
Petitioner,
ORDER
vs.
LEROY KIRKEGARD, et al.,
Respondents.
United States Magistrate Judge John Johnston entered his Findings and
Recommendations in this matter on April 4, 2017, recommending denial of
Petitioner Gary Duane Heavygun's ("Heavygun") application for writ of habeas
corpus under 28 U.S.C. § 2254. Heavygun filed objections and is therefore
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 ifthe 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). Because the parties are
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familiar with the factual background of this case, it will not be repeated here.
Upon review of the objections, the Court finds that Heavygun fails to
articulate any specific objections to the Findings and Recommendations and,
instead, lodges a general objection to the conclusion that his petition should be
denied. However, because Heavygun fails to lay out specific objections to the
Findings and Recommendations, it will be reviewed for clear error. See 28 U.S.C.
§ 636(b)(l)(C) (stating that a judge shall make a de novo review of the "specified
proposed findings or recommendations to which objection is made"); see also L.R.
72.3(a) (mandating that objections to Findings and Recommendations "must
itemize ... each recommendation of the magistrate judge to which objection is
made, setting forth the authority the party relies on to contradict that
recommendation").
Consequently, the Court finds no clear error in Judge Johnston's
recommendation that Heavygun's petition should be denied. First, the Court
agrees with Judge Johnston that Heavygun's claim of ineffective assistance should
be denied on the merits because he cannot show that his trial counsel performed
deficiently during voir dire. Next, Heavygun's remaining claims pertaining to the
performance of his trial attorneys must also fail because he cannot establish that
the Montana Supreme Court's adjudication of his claims: (1) were contrary to or
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involved an unreasonable application of federal law as determined by the United
States Supreme Court; or (2) were based on unreasonable determination of the
facts. 28 U.S.C. § 2254(d). As such, this Court must defer to the determination of
the Montana Supreme Court that Heavygun's attorneys provided adequate
representation.
Lastly, Heavygun's objections request that an attorney be appointed to assist
him with his petition. "[T]he Sixth Amendment right to counsel does not apply in
habeas corpus actions." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).
Rather, a district court has the discretion to appoint counsel when it determines
"that the interests of justice so require." 18 U.S.C. § 3006A(a)(2). Here, the Court
finds that interests of justice do not require the appointment of an attorney.
Heavygun' s pleadings are clearly written and it is apparent that he is capable of
pursuing his petition prose. Lastly, this case does not present any unusual
circumstances which would warrant the appointment of counsel. Anderson v.

Heinze, 258 F.2d 479, 484 (9th Cir. 1958) ("Except under most unusual
circumstances, an attorney ought not to be appointed by a federal court for the
purpose of trying to find something wrong with a state judgment of conviction.").
Accordingly, there being no clear error in the Findings and
Recommendations, IT IS ORDERED that:
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(1) Judge Johnston's Findings and Recommendations (Doc. 10) are
ADOPTED IN FULL;
(2) The Petition (Doc. 1) is DENIED on the merits;
(3) The Clerk of Court is directed to enter by separate document a judgment
in favor of Respondents and against Petitioner;
(4) A certificate of appealability is DENIED; and
(5) Heavygun's request for the appointment of counsel is DENIED.
DATED this

~f $-l:day of May, 201

.

L.~

Dana L. Christensen, Chief Judge
United States District Court

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