Olson v. Frink et al
Filing
14
ORDER adopting Findings and Recommendations 12 in full. Findings and Recommendations. Petition for writ of habeas corpus 1 is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 9/28/2015. Mailed to Olson. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
SEP 2 8 2015
Clerk, U.S. District Court
D1stnct Of Montana
Missoula
CV 14-29-H-DLC-JTJ
BERNARD HUGH OLSON,
Petitioner,
ORDER
vs.
MARTINF~;ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations on June 24, 2015, recommending that Olson's petition for writ
of habeas corpus under 28 U.S.C. § 2254 be dismissed with prejudice and that a
certificate of appealability be denied. Because Olson timely objected to the
Findings and Recommendations, the Court will conduct de novo review of the
record. 28 U.S.C. § 636(b)(l). Those portions ofthe Findings and
Recommendations to which Olson has not specifically objected will be reviewed
for clear error. I d.; McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981). Additionally, "[w]here a petitioner's
objections constitute 'perfunctory responses argued in an attempt to engage the
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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." Rosling v. Kirkegard, 2014 WL 693315, at *3 (D.
Mont. Feb. 21, 2014) (quoting Ramirez v. United States, 898 F. Supp. 2d 659, 663
(S.D.N.Y. 2012)). For the reasons listed below, the Court adopts Judge Johnston's
Findings and Recommendations in full.
Olson was convicted of three felony counts of sexual assault and sentenced
to 30 years in prison and an additional15 years suspended following a bench trial
in 1996. His suspended sentence was ultimately revoked because he refused to
complete sex offender training, a condition of sentence suspension. Olson
petitioned the Montana Supreme Court for a writ of habeas corpus, claiming that
the revocation of his suspended sentence was miscalculated and unlawful such that
he should have been fully released from state custody on his scheduled release
date of January 19, 2011. 1 The state court dismissed his claims, finding that his
sentence was properly calculated and denying the remainder of his claims on
procedural grounds. Order at 2, Olson v. Frink, No. OP 13-0787 (Mont. Nov. 26,
2013). In his petition to this Court for writ of habeas corpus, Olson raised the
1
0lson's sentence was reduced by half for day-for-day good time, a practice
no longer authorized by Montana law. Mont. Code Ann.§ 53-30-105(1),
(repealed 1995).
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same general claims as he had in the state proceeding, asserting both that his
sentence was miscalculated and that the revocation of suspension violated his
rights.
Judge Johnston found that Olson's prison sentence was properly calculated
and that the Court may not hear the merits of his other claims because they are
barred by the procedural default doctrine. See Coleman v. Thompson, 501 U.S.
722, 729 (1991). Olson's objections to Judge Johnston's Findings and
Recommendations are essentially reiterations or factual expansions of his original
claims. Summarized and consolidated, his claims and objections are as follows:
( 1) his sentence was miscalculated because he was not released on the first
scheduled release date; (2) he has been denied the opportunity to prove to a
therapist that he does not require sex offender treatment; (3) he made a good-faith
effort to seek sex offender counseling; (4) revocation of his sentence suspension is
equivalent to an unlawful enhancement; and (5) he has cured the failures of the
claim brought before the state court.
The Court first considers Olson's objection to the calculation of his
sentence. The Court is limited to the question of whether the Montana Supreme
Court made "an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The Court finds
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that the Montana Supreme Court reasonably determined that the sentence was
properly calculated. The record shows Olson received credit for all time served.
Olson's term of imprisonment has not exceeded, nor is it scheduled to exceed, his
sentence. Olson's claim that his sentence was miscalculated is therefore without
merit.
The Court next considers whether the remainder of Olson's claims are
barred by the procedural default doctrine. Olson's remaining objections (2), (3),
(4), and (5) do not cure his failure to bring a cognizable claim before the Montana
Supreme Court. Thus, his claims are barred.
As required by law, Olson first sought federal habeas relief in state court.
28 U.S.C. § 2254(b)(l); Rose v. Lundy, 455 U.S. 509, 520 (1982). There, he failed
to raise the claim summarized above as objection (2), that he was denied an
opportunity to convince a therapist that he did not need counseling. This claim,
which may have been raised in state court, is therefore barred. 28 U.S.C. §
2254(b ), (c).
Olson did present the substance of objections (3) and (4) as claims before
the state court, but the Montana Supreme Court dismissed his petition on the
grounds that habeas relief is not available under state law to challenge a sentence
revocation. Mont. Code Ann.§ 46-22-101(2). Olson "failed to meet the State's
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procedural requirements" when he failed to bring a cognizable claim before the
state court, "depriv[ing] the state courts of an opportunity to address those claims
in the first instance." Coleman, 501 U.S. at 730. The Montana State Court's
decision disposed of Olson's federal habeas claims on "adequate and independent
state ground"; as such it will "bar federal habeas review ... unless the habeas
petitioner can show 'cause' for the default and 'prejudice attributable thereto, ...
or demonstrate that failure to consider the federal claim will result in a
'fundamental miscarriage of justice.' " Harris v. Reed, 489 U.S. 255, 262 (1989)
(citations omitted).
Olson presents objection (5) in an attempt to excuse his failure to bring a
cognizable claim before the state court. Prior to issuing his Findings and
Recommendations, Judge Johnston issued an Order to Show Cause (Doc. 10),
notifying Olson of possible ways in which he may be able to remedy his claims.
In his response, Olson merely asserted that his inability to procure a trial transcript
is proof in and of itself that he was wrongfully convicted and sentenced. (Doc.
11.) Olson now objects and argues further that his lack of legal sophistication
excuses his default. (E.g., Doc. 13 at 17.) Olson has not presented an "external
objective factor" that prevented Olson from raising his claims in state court. Smith
v. Baldwin, 510 F.3d 1127, 1146 (2007). Olson has not excused his failure to
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present a viable claim before the Montana Supreme Court, let alone demonstrated
resultant prejudice. Coleman, 501 U.S. at 750. Nor has Olson shown "that failure
to consider the federal claim will result in a 'fundamental miscarriage of justice.' "
Harris, 489 U.S. at 262. Olson's claims may not be heard by this Court.
Olson has not "made substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253. Here, there are neither close questions nor reason to
encourage further proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000). A
certificate of appealability is unwarranted.
There being no clear error in the remainder of Judge Johnston's Findings
and Recommendations,
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 12) are ADOPTED IN FULL. Olson's petition for writ of habeas corpus
(Doc. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court shall enter by
separate document a judgment of dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
Dated this
~day of September,
0 5.
Dana L. Christensen, Chief Judge
United States District Court
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