Payne v. Frink et al
Filing
60
ORDER ADOPTING 56 FINDINGS AND RECOMMENDATIONS. Payne's petition 1 is CONDITIONALLY GRANTED as to the Crawford claim. The Jackson claim and the Lambert claim are DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED as to the Ja ckson and Lambert claims.The judgment entered in Missoula County Cause No. DC-09-174 on February 10, 2010, is VACATED. Within 45 days of the date of this Order, the State may renew proceedings against Payne in the trial court. If the State renews th e proceedings, it must timely file a Notice stating that it has done so. If the State does not timely file notice of the renewal of proceedings in the trial court, this Court will order Paynes unconditional release from all custody based on the vacated conviction, and he may not be retried. Signed by Judge Donald W. Molloy on 5/10/2013. Mailed to Payne. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
______________________________
TYRONE EVERETT PAYNE,
Cause No. CV 11-42-M-DWM
Petitioner,
vs.
ORDER CONDITIONALLY
GRANTING WRIT OF
HABEAS CORPUS
WARDEN MARTIN FRINK;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
Respondents.
______________________________
On April 23, 2013, United States Magistrate Judge Jeremiah Lynch issued
Findings and Recommendation. He concluded that Tyrone Payne’s petition for writ
of habeas corpus under 28 U.S.C. § 2254 should be conditionally granted as to one
claim and that two other claims should be dismissed with prejudice. Neither party
filed objections.
Reviewing for clear error, 28 U.S.C. § 636(b); McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), I find none.
Payne was convicted of failing to register as a sex offender. By soliciting testimony
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from an officer that she was told Payne was not in compliance with his registration
requirements in Connecticut, the State violated Crawford v. Washington, 541 U.S. 36
(2004). The constitutional violation had a substantial and injurious effect on the
jury’s verdict, and a new trial is the appropriate remedy. Payne’s other two claims,
alleging that the evidence was insufficient to support the conviction, see Jackson v.
Virginia, 443 U.S. 307 (1979), and that the conviction was obtained in violation of
Lambert v. California, 355 U.S. 225 (1957), are procedurally defaulted without
excuse and must be dismissed with prejudice.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Payne’s petition (doc. 1) is CONDITIONALLY GRANTED as to the
Crawford claim. The Jackson claim and the Lambert claim are DISMISSED WITH
PREJUDICE.
2. A certificate of appealability is DENIED as to the Jackson and Lambert
claims.
3. The judgment entered in Missoula County Cause No. DC-09-174 on
February 10, 2010, is VACATED.
4. Within forty-five (45) days of the date of this Order, the State may renew
proceedings against Payne in the trial court.
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5. If the State renews the proceedings, it must timely file a Notice stating that
it has done so.
6. If the State does not timely file notice of the renewal of proceedings in the
trial court, this Court will order Payne’s unconditional release from all custody based
on the vacated conviction, and he may not be retried.
7. The Clerk shall enter judgment, by separate document, in favor of Payne and
against Respondents on the Crawford claim and against Payne and in favor of
Respondents on the Jackson and Lambert claims.
DATED this 10th day of May, 2013.
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