Ritchie v. Batista et al

Filing 115

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 111 in full. Petition 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 3/27/2017. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

CV 09-177-M-DWM-JCL

STEVEN RAY RITCHIE,
Plaintiff,
vs.

ORDER

FILED

MIKE BATISTA; LEROY
KIRKEGARD,

MAR 2 7 2017

Respondents.

Clerk, U S District Court
District Of Montana
Missoula

On November 25, 2009, Steven Ray Ritchie filed a petition seeking a writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On June 24, 2010, Ritchie's
claims were dismissed as time-barred on the recommendation of United States
Magistrate Judge Jeremiah C. Lynch. (Doc. 21.) On May 10, 2012 a Ninth
Circuit panel affirmed-in-part but remanded with instruction to consider whether
Ritchie's claims were equitably tolled under the subsequently-decided Bills v.

Clark, 628 F.3d 1092 (9th Cir. 2010). Judge Lynch held an evidentiary hearing
for that purpose on October 2, 2013. (Docs. 81, 85.) On June 18, 2014, Ritchie's
claims were again dismissed as time-barred on the recommendation of Judge
Lynch, and a certificate of appealability was granted. (Doc. 95.) On November 6,

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2015, a Ninth Circuit panel reversed and remanded after respondents conceded at
oral argument that Ritchie's petition was timely in light of the subsequentlydecided Rogers v. Ferriter, 796 F.3d 1009 (9th Cir. 2015). (Doc. 99.)
Judge Lynch now recommends denying Ritchie's claims. (Doc. 111.)
Ritchie is entitled to de nova review of those specific findings or
recommendations to which he objects, 28 U.S.C. § 636(b )(1 ), while those findings
and recommendations not specifically objected to are reviewed for clear error,

McDonnell Douglas Corp. v. Commodore Bush. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981 ). Clear error exists if the 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 familiar with the factual and
procedural background, it will not be further restated here.
Ritchie claims that: (1) trial counsel Keithi Worthington ("Worthington"),
violated his Sixth Amendment right to the effective assistance of counsel because
she did not adequately investigate his competency before negotiating a plea
agreement; (2) the trial court violated his right to due process by accepting his
guilty plea to burglary without ensuring he understood the elements of the offense;
(3) the trial court violated his right to due process by accepting his guilty plea to
theft without ensuring the factual basis was accurate; and (4) Worthington violated
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his Sixth Amendment right to effective assistance of counsel because she did not
file a motion to withdraw his guilty plea. (Doc. 1 at 1-2.) Judge Lynch concludes
that Ritchie's first three claims are procedurally defaulted without excuse, and that
his fourth claim does not allege a violation of federal law because Ritchie did not
have a cognizable Sixth Amendment right to counsel after his judgment became
final. (Doc. 111 at 2-3.) Ritchie objects, arguing he should prevail on his fourth
claim because trial counsel was ineffective for not filing a motion to withdraw his
guilty plea, and that trial counsel's ineffective assistance excuses procedural
default as to his remaining claims. (Doc. 114 at 2, 5.)
LEGAL STANDARD

To establish ineffective assistance of counsel, Ritchie must show that: ( 1)
"counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment," and (2) "the deficient
performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668,
687 (1984). Under the first prong of Strickland, an attorney's performance is
reviewed against an objective standard of reasonableness. Id. at 687-88. The
review is "highly deferential" and must avoid "the distorting effects of hindsight."
Id. at 689. "Because of the difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel's conduct falls within the range of
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reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy." Id. If a petitioner shows that counsel's
performance was deficient, the second Strickland prong requires a showing of
prejudice, meaning a petitioner "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 691, 694. A "reasonable probability" is a "probability
sufficient to undermine confidence in the outcome." Id. at 694 ..
ANALYSIS

I.

Claim 4
Because Ritchie's first three claims rely on the success of his fourth claim,

his fourth claim is considered first. Ritchie objects to Judge Lynch's conclusion
that his fourth claim does not allege a violation of a cognizable federal right
because Ritchie was not entitled to counsel once his judgment became final. (Doc.
114 at 2.) The federal constitutional right to the effective assistance of counsel
"extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481
U.S. 551, 555-57 (1987). Judgment in the underlying case was entered in the trial
court on August 29, 2005. (Doc. 38-1 at Entry 31.) Ritchie did not appeal, and his

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conviction became final on October 28, 2005. Mont. R. App. P. 5(b) (2005) 1;

Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Ritchie did not file his prose
motion to withdraw his guilty plea until December 14, 2005, after the deadline to
file his first appeal of right, at which point his Sixth Amendment right to the
effective assistance of counsel had expired. (Doc. 1-2 at 2.) Because Ritchie
cannot therefore allege he is being held in violation of a federal right, 28 U.S.C. §
2254 (a), his fourth claim fails.
Ritchie points out that the trial court refused to consider his pro se filing
because it determined he was still represented by Worthington at the time he filed
it, arguing the trial court forced Worthington's deficient performance on Ritchie
because she did not file a motion to withdraw his guilty plea. (Doc. 114 at 3.)
Even assuming this Catch-22 scenario implicated Ritchie's Sixth Amendment
right, however, Worthington's performance was not defective under the first prong
of Strickland. Ritchie faced a total of six counts, four of them felonies. (Doc. 1-1
at 3-8.) His plea agreement allowed him to avoid three felony counts and a
persistent felony offender designation. (Doc. 1-1 at 11-12.) On receiving
Ritchie's prose motion to withdraw his plea, the trial court directed Worthington
to review it and to "file the appropriate pleading with the appropriate court as

Now Mont. R. App. P. Rule 4(b)(i).
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determined necessary after consultation with her client." (Doc. 1-2 at 10.)
However, Ritchie subsequently stated clearly that he did not want his plea
withdrawn, (Doc. 105-2), and Worthington testified it was her practice to pursue
legal challenges she believed were valid, (Doc. 105 at 22 (Worthington Dep. 81 :26)). 2 The decision not to file therefore falls squarely within the range of
"reasonable professional assistance" guaranteed by the Sixth Amendment.
II.

Claims 1, 2, and 3
Judge Lynch concludes that Ritchie's first three claims are procedurally

defaulted without excuse. (Doc. 111 at 3.) Ritchie objects, arguing his procedural
default should be excused because the state trial court, by dismissing his pro

se motion, prevented him from raising his claims at the state level, and that
Worthington's failure to file a motion to withdraw Ritchie's guilty plea did the
same. (Doc. 114 at 6.)
A petitioner must exhaust his federal habeas claims at the state level before
he may bring them in federal court. 28 U.S.C. § 2254(b )(1 )(A); Rose v. Lundy,

2

"I don't specifically recall [the motion to withdraw]. I didn't have time to fully reveiw
my file. And I would generally say ifl felt the motion had merit, I would make it, I believe. I'd
have to go back and review my other files, but I made a number of motions at that same time. I
had a successful appeal to the Supreme Court challenging an investigation. So I mean, my
practice was, if there was a legal challenge that I felt was absolutely valid, I would have pursued
it. I don't know. I don't specifically recall this case and this particular issue." (Doc. 105 at 22
(Worthington Dep. 80:20-81:6).)
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455 U.S. 509, 520 (1982). Unexhausted claims are procedurally defaulted. Smith
v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (citing O'Sullivan v. Boerckel,
526 U.S. 838, 848 (1999)). Procedural default can be overcome by ifthe
petitioner can demonstrate either actual innocence or cause and prejudice. Smith,
510 F.3d at 1139. Actual innocence requires the petitioner "show that, in light of
all available evidence, it is more likely than not that no reasonable juror would
convict him of the relevant crime." Id. Alternatively, to establish cause and
prejudice, the petitioner must show that an objective, external factor prevented
him from presenting his claims in state court and that he was prejudiced thereby.

Cookv. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008).

a.

Procedural Default

Ritchie does not specifically challenge Judge Lynch's conclusion that he did
not properly exhaust his first three claims as required by 28 U.S.C. § 2254(b ).
There is no clear error in the finding that Ritchie's pro se motion to withdraw his
guilty plea, his November 2007 petition for postconviction relief in the trial court,
and his March, 2009 petition for writ of habeas corpus at the Montana Supreme
Court did not properly exhaust his current claims. (Doc. 111 at 5-6.) Claims 1, 2,
and 3 are thus procedurally defaulted, and cannot be considered by a federal court
unless Ritchie can demonstrate either actual innocence or cause and prejudice.
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Smith, 510 F.3d at 1139.
b.

Excuse

Ritchie does not argue his procedural default should be excused because he
is actually innocent, and, as Judge Lynch notes, he has offered no evidence
proving it is more likely than not no reasonable juror could find him guilty of the
six counts with which he was charged. Smith, 510 F.3d at 1140. (Doc. 111 at 6.)
Accordingly, actual innocence cannot excuse Ritchie's procedural default.
As to cause and prejudice, Ritchie argues Worthington abandoned him
during collateral review, obstructing his ability to pursue collateral relief and
causing him prejudice. (Doc. 1 at 45; Doc. 114 at 9.) He objects to Judge Lynch's
conclusion that Worthington did not interfere with Ritchie's pursuit of postconviction relief. (Doc. 114 at 5.) Specifically, Ritchie argues that Worthington
promised to file a motion to withdraw his guilty plea but never did, thereby
denying Ritchie "his opportunity to challenge the validity of his guilty plea." (Jd.)
Procedural default may be excused if a petitioner has been abandoned by
counsel. Maples v. Thomas, 565 U.S. 266, 280-83 (2012) (finding abandonment
where attorneys had, inter alia, failed to seek the trial court's permission to
terminate their representation of the petitioner before accepting jobs which made
further representation impossible). Representation by an attorney who interferes
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with a petitioner's ability to pursue collateral relief can also overcome the
procedural default bar. Manning v. Foster, 224 F.3d 1129, 1131-35 (9th Cir.
2000) (holding a petitioner's procedural default was excused where the attorney's
actions were "both unauthorized and tainted by a conflict of interest" because the
attorney did not inform his client of available post-conviction relief after failing to
file a timely appeal).
Here, the judgment became final on October 28, 2005, (Doc. 91 at 4), and
Worthington moved the state trial court to appoint the public defender's office to
represent Ritchie on January 4, 2007, as she wound up her private practice, (Doc.
38-27). Under Montana law, within 1 year after judgment becomes final, a "court
may, for good cause shown, permit the plea of guilty ... to be withdrawn and a
plea of not guilty substituted." Mont. Code Ann. § 46-16-105(2). Accordingly,
because Worthington continued to represent Ritchie during the year following the
final judgment, it is possible her presence could have interfered with Ritchie's
ability to withdraw his guilty plea.
However, as noted above, the record shows Ritchie did not want to
withdraw his guilty plea. His prose motion was a form motion entitled "Form to
Be Used by Prisoners Filing a Motion to Withdraw a Plea of Guilty Under Mont.
Code Ann. § 46-16-105," but that title was followed by the interlineation "In the
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Alternative to Strike the Parole Restriction," indicating Ritchie wished to insist on
what he apparently believed to be an enforceable provision of his plea agreement.
(Doc. 1-2 at 2.) Further, in response to a letter from Worthington in which,
presumably referring to the motion to withdraw, she stated she would be
"finalizing the motion to the District Court regarding these charges," (Doc. 1-2 at
15), Ritchie insisted "that the motion [he] made was not a withdrawal of plea-it
was a modification of sentence petition," and that with it he wanted to "[ t]orce
them to hold to the plea bargain," (Doc. 105-2) (emphasis original). Ritchie's
current argument that Worthington prevented him from filing a motion to
withdraw his plea of guilty is therefore undermined by Ritchie's documented
desire not to withdraw his plea. Even if Worthington's letter to Ritchie is
construed as a promise to file a motion to withdraw Ritchie's plea of guilty,
Ritchie's response demonstrates that was not what he wanted.
Worthington's deposition indicates she understood Ritchie's position. She
stated that "he never seemed to indicate he wasn't guilty," but rather that "he was
very frustrated with what he felt was a violation of the agreement," to wit, the 5year parole restriction he received. (Doc. 105 at 23, Worthington Dep. at 85:1123.) Importantly, Ritchie was not arguing he was not guilty of the crimes he
pleaded to. Worthington did not abandon Ritchie by failing to file a motion
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Ritchie did not want, and Ritchie's letter to Worthington insisting he did not wish
to withdraw his guilty plea undercuts his assertion that Worthington obstructed
him from filing. (Doc. 114 at 12.) In sum, Worthington's representation does not
provide cause and prejudice to excuse Ritchie's procedural default because
Worthington neither hindered nor abandoned Ritchie.
c.

Martinez v. Ryan

While a petitioner does not have a federal constitutional right to effective
assistance of counsel during state post-conviction proceedings, Pennsylvania v.
Finley, 481 U.S. 551, 554 (1987), inadequate assistance of post-conviction

counsel or lack of counsel at initial collateral proceedings "may establish cause for
a prisoner's procedural default of a claim of ineffective assistance at trial,"
Martinez v. Ryan, 556 U.S. 1, 9 (2012), or on direct appeal, Nguyen v. Curry, 736

F.3d 1287, 1293 (9th Cir. 2013). Ritchie's second and third claims are not
ineffective assistance claims, and so do not trigger the Martinez procedural default
excuse. Ritchie's first claim, however, alleges ineffective assistance of trial
counsel for failing to adequately investigate Ritchie's competency before
negotiating the plea agreement, and therefore Martinez applies. (Doc. 1 at 1.)
Ritchie does not object to Judge Lynch's conclusion that, because
Worthington did not perform unreasonably in any collateral proceeding, and
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because his first claim was not "substantial," Martinez does not save his first
claim from procedural default. Because there is no clear error in the finding that
Worthington reasonably considered Ritchie to be mentally competent, and that
Ritchie's claim of incompetency is insubstantial given Worthington's (and others)
impressions of his mental ability, Ritchie's first claim is procedurally defaulted as
well.

III.

Certificate of Appealability

Ritchie objects to the denial of a certificate of appealability "on the question
of whether Ritchie's apparent procedural default is excused by [the] external
circumstances which were entirely out of Ritchie's control," namely,
Worthington's representation following final judgment. (Doc. 114 at 10.) A
certificate of appealability "may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). A substantial showing exists 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). Dismissal of a claim on
procedural grounds also requires the court to decide whether "jurists of reason
would find it debatable whether the district court was correct in its procedural
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ruling." Gonzalez, 565 U.S. at 140-41. Ritchie has not made a substantial
showing of the denial of his Sixth Amendment right to counsel. In addition, Judge
Lynch's finding that Ritchie's first three claims are procedurally defaulted is not
one "jurists of reason would find debatable." Id. A certificate of appealability is
denied for all four of Ritchie's claims.
CONCLUSION

Ritchie's fourth claim fails because it does not assert a cognizable federal
right, Pennsylvania, 481 U.S. at 555-57, and his remaining claims are procedurally
defaulted without excuse, Smith, 510 F.3d at 1138. Accordingly,
IT IS ORDERED that the Findings and Recommendation of Judge Lynch
(Doc. 111) are ADOPTED-IN-FULL.
IT IS FURTHER ORDERED that the petition (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DE

~

DATED thist/,7 day of March, 2017.

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ED.