McClanahan v. State of Montana et al

Filing 65

ORDER. McClanahan's first, third, and fifth claims are DENIED. Respondents' Motion to Dismiss 49 is DISMISSED AS MOOT. McClanahan's Petition 8 is DENIED. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 8/23/2013. Mailed to McClanahan. (TAG, )

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

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AUG 2 3 2013
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District District C
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CV 11-92-M-DWM
CV 11-117-M-DWM

SHANE McCLANAHAN,
Petitioner,
vs.

ORDER
WARDEN LEROY KIRKEGARD and
ATTORNEY GENERAL OF THE
STATE OF MONTANA,
Respondents.

INTRODUCTION

Petitioner Shane McClanahan is a state prisoner proceeding prose. He
petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Because his petition
contained claims challenging two different judgments, two cases were opened
before this Court. The first judgment challenged, docketed in Cause No. CV
11-92-M-DWM, concerns a 2002 Montana state court conviction on two counts
of attempted deliberate homicide. The second judgment challenged, docketed in
Cause No. CV 11-117-M-DWM, concerns a 2006 Montana state court
conviction for sexual intercourse without consent. The parties are familiar with
the factual and procedural background so they will be recited only as necessary.
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On February 6, 2013, United States Magistrate Judge Jeremiah C. Lynch
entered Findings and Recommendations on the remaining claims in Petitioner
McClanahan's petition. Judge Lynch's Findings and Recommendations address
both actions together. Mr. McClanahan was duly served with a copy. 28 U.S.C.
§ 63 6(b)( 1) specifies a petitioner has 14 days from the filing of a United States
Magistrate Judge's Findings and Recommendations in which to file any
objections. The Court waited for nineteen days. Mr. McClanahan filed no
objections. On February 25, 2013, the Court adopted Judge Lynch's Findings and
Recommendations in full and denied a certificate of appealability as to all claims.
Judgment was entered the same day.
On March 4, 2013, the Clerk of Court filed a Notice of Appeal, and Mr.
McClanahan's appeals were duly processed. Federal district courts, of course, do
not review notices of appeal.
On June 14, 2013, the Court of Appeals dismissed Mr. McClanahan's
appeals for lack of jurisdiction. The Court of Appeals said:
A review of the record demonstrates that this court lacks
jurisdiction over these appeals because the orders
challenged in the appeals are not final or appealable. See
Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993)
(magistrate judge's findings and recommendations not
appealable; premature appeal not cured by subsequent
entry of final judgment by district court). Consequently,
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these appeals are dismissed for lack of jurisdiction.
McClanahan v. Atty. Gen., Cause Nos. 13-35156 & 13-35157 (9th Cir. June 13,

2013).
On August 7, 2013, Mr. McClanahan filed in this Court a Motion for
Appointment of Counsel with C.O.A. (Doc. 64.) Although Mr. McClanahan
asks that his Motion be presented to the "Chief Justice" of the federal court, the
document is simply a Motion. Mr. McClanahan states that his appeals were
dismissed for lack of jurisdiction. The Court of Appeals' lack of jurisdiction is not
apparent on the face of the docket. A closer review of Mr. McClanahan's filings
reveals that his Notice of Appeal (doc. 60) is actually titled Objection to Findings
and Orders by Magistrate Jeremiah C. Lynch. 1 Although this document was not
received by the Court until March 4, 2013, McClanahan represents he submitted it
on February 11, 2013. The Court of Appeals likely construed Mr. McClanahan's
purported submission of the document on February 11, 2013 as an averment that
he deposited the document in the prison mailing system on February 11, 2013. If
that is the case, then the prison mailbox rule applies. Houston v. Lack, 487 U.S.
266, 270-71 (1988). And ifthe prison mailbox rule applies, then Mr. McClanahan

1

To avoid confusion, this document (doc. 60), is referred to as docketed by the Clerk
(Notice of Appeal).

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timely filed Objections to Judge Lynch's Findings and Recommendations.
Consequently, it is now necessary to consider the objections to Judge Lynch's
Findings and Recommendations Mr. McClanahan presents in his Notice of
Appeal (doc. 60) as well as the arguments Mr. McClanahan makes in his Motion
for Appointment of Counsel with C.O.A. (doc. 64). See Woods v. Carey, 525
F.3d 886, 890 (9th Cir. 2008). Miscellaneous arguments raised in Mr.
McClanahan's two most recent filings are considered at the outset of this order,
followed by arguments pertaining to the now pending Findings and
Recommendations.
ANALYSIS

I.

Petitioner's objections to the adjudication of his petition by the
undersigned and United States Magistrate Judge Jeremiah C. Lynch
are without merit.
In his Notice of Appeal, Mr. McClanahan initially questions the jurisdiction

of the undersigned and Judge Lynch to hear claims presented in the abovecaptioned cases. When Mr. McClanahan filed his initial petition for the writ, his
case was assigned to the undersigned pursuant to United States District Court for
the District of Montana Standing Order DWM-47, In Re: Assignment of Cases
(Jan. 8, 2007). Mr. McClanahan's petitions were referred upon filing to Judge
Lynch pursuant to Local Rule. See D. Mont. L. R. 1.lO(c), (d), 73.l(a)(l) (Dec. 1,
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2010). A litigant's consent is not required to refer non-dispositive matters to a
United States Magistrate Judge. 28 U.S.C. § 636(b)(l). Nor is consent required to
refer dispositive matters to a United States Magistrate Judge for consideration and
submission to an Article III Judge on Findings and Recommendations. Id. A
consent election was conducted after Respondent filed an Answer, see Mailing of
Consent (doc. 44), but one or the other party, or both, objected, so the matter was
re-referred to Judge Lynch for Findings and Recommendations, see Order
Referring Case (doc. 45). The case now returns to the undersigned for de novo
adjudication of the portions of Judge Lynch's Findings and Recommendations to
which Mr. McClanahan objects. See 28 U.S.C. § 636(b)(l). The Honorable
Sidney R. Thomas is a judge on the Ninth Circuit Court of Appeals. The Ninth
Circuit Court of Appeals is a distinct entity from this Court, generally charged
with hearing appeals from final decisions of the United States District Courts. See
28 U.S.C. § 1291 et seq. Judges of the Ninth Circuit Court of Appeals play no
role in assigning judicial duties within the District of Montana. Assignment of
cases to judges of the United States District Court for the District of Montana
proceeds according to standing order of the Court. See Standing Order DWM-4 7,
In Re: Assignment of Cases (Jan. 8, 2007) (directing assignment of cases at the

time this action was filed). Mr. McClanahan's objections do not raise a
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meritorious issue related to the assignment of this action to Judge Lynch and the
undersigned.

II.

Petitioner's challenge to the denial of appointment of counsel in this
matter were resolved by prior Order and are without merit.
In his Notice of Appeal, Mr. McClanahan claims is entitled to appointment

of counsel to pursue his petitions. Mr. McClanahan previously moved for the
appointment of counsel. (See doc. 39.) That motion was denied on the grounds
that the interests of justice did not require appointment of counsel as there were
then no complex legal issues in the case and Mr. McClanahan was found capable
of pursuing the action prose. (See doc. 40 at 2-3.) Appointment of counsel is
only required "when the case is so complex that due process violations will occur
absent the presence of counsel." Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir.
1993) (discussing Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (per
curiam)). Judge Lynch's decision to deny appointment of counsel when Mr.
McClanahan initially raised the issue is well founded and still justified. Mr.
McClanahan's petitions do not present particularly complex legal issues and he
has demonstrated he can adeptly present his case pro se. The circumstances
surrounding this litigation have not changed to make the case so complex that Mr.
McClanahan's due process right is in question ifhe continues prose.

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III.

Petitioner's new claim related to his access to a law library is subject to
dismissal because it has not been exhausted.
Mr. McClanahan claims in his Notice of Appeal that he has been denied

access to a law library. This is a new claim not raised in either petition now before
the Court. 28 U.S.C. §§ 2254(b), (c) require a federal district court to dismiss
claims raised in a petition for habeas corpus that have not been exhausted in state
courts. A search of the records of the Montana Supreme Court confirms that Mr.
McClanahan has not presented this claim in state courts. He has not affirmatively
stated that state remedies for this claim have been exhausted. Therefore, his claim
asserting denial of access to a law library is dismissed.

IV.

Petitioner's objections to the denial of claims related to the
circumstances of his state appeal are not timely.
In his Notice of Appeal and Motion for Appointment of Counsel with

C.O.A., Mr. McClanahan asserts he was denied right to counsel for his state
appeals. He avers that his state appeals were handled by attorneys in the employ
of Missoula County and his actions were not referred to an independent appellate
attorney, in violation of his right to counsel. These claims were initially raised by
Mr. McClanahan in ground four of his petition. (See doc. 8 at 5.) They were
addressed by Judge Lynch, who found that Mr. McClanahan was not entitled to
federal relief on these claims as he was not deprived of a state appellate
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proceeding in either the homicide case or the rape case. (See doc. 36 at 22-25.)
Judge Lynch concluded that, although states are not required to provide direct
appeals, the Montana Supreme Court's granted Mr. McClanahan an of an out-oftime appeal on the homicide case and an Anders appeal on the rape case. Judge
Lynch found no constitutional defect with these appeals and recommended claims
raised in ground four of Mr. McClanahan's petition be dismissed. These findings
and Judge Lynch's recommendation were filed June 15, 2012. Mr. McClanahan
did not object within the fourteen day period prescribed by 28 U.S.C. § 636(b)(l).
The findings and the recommendation that this claim be denied were subsequently
adopted in full by this Court on July 12, 2012. (See doc. 38.) Mr. McClanahan's
objections to the denial of claims related to the provision of counsel for his state
appeal are not timely asserted and have been addressed by prior Order. Absent
cause for reconsidering the Court's earlier decision, they will not be relitigated at
this time.

V.

Petitioner's challenges to the circumstances of his arrest and the use of
his statements to law enforcement lack merit.
Mr. McClanahan's petition challenges the circumstances of his arrest and

statements he made to law enforcement officials. He contends his arrest in the
homicide case was illegal and statements made to officers at the time of his arrest

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were taken and used against him at trial in violation of his rights under the Fourth
and Fifth Amendments. Judge Lynch considered these claims and the state's
answer. He found the claims to lack merit and recommended they be denied. On
de novo review, Judge Lynch's findings and recommendations are adopted in full.
As to his arrest, Mr. McClanahan does not present a detailed objection to
Judge Lynch's finding that his arrest was not violative for the Fourth Amendment
and recommendation that his claim stemming from the circumstances of his arrest
be denied. Officers went to Mr. McClanahan's home the night of the events of
the homicide case because witnesses at the scene identified him as the person who
committed the crime. They also said Mr. McClanahan drove a white Izuzu
Trooper. When officers went to Mr. McClanahan's home, he willingly exited and
spoke to the deputies prior to his arrest. Officers saw Mr. McClanahan was
injured. They identified a white Izuzu Trooper at his home. They noticed that the
grill to the vehicle was warm. These facts coalesce to support the conclusion that
the officers acted on probable cause when they arrested Mr. McClanahan. While
the probable cause standard is not subject to precise definition or quantification, it
is grounded in the practical circumstances of the arrest, demanding a reasonable
belief that the person searched or seized is guilty. Maryland v. Pringle, 540 U.S.
366, 370-71 (2003). From these facts it is fair to surmise that the officers had a
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reasonable ground to believe that Mr. McClanahan was guilty of homicide.
Mr. McClanahan's allegation that the circumstances of his arrest violated
his Fourth Amendment right to be free from unreasonable search and seizure is
without merit. Furthermore, the writ of habeas corpus is not available where a
state prisoner had a full and fair opportunity to litigate his Fourth Amendment
claims in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). Mr.
McClanahan has not represented he had a less-than-fair opportunity to raise
objections to the circumstances of his arrest in state court. Accordingly, this claim
is barred by Stone. Judge Lynch's Findings and Recommendations are adopted in
full and Mr. McClanahan's Fourth Amendment claim is denied.
Mr. McClanahan contends his statements to officers outside of his home
were taken under coercion. Judge Lynch considered this claim and the state's
answer. He found the claim to lack merit and recommend it be denied. Mr.
McClanahan's recent filings indicate his statements to the officers preceding his
arrest were taken by exploiting his injuries and after he invoked his Fifth
Amendment protection from self-incrimination. These objections challenge Judge
Lynch's findings and recommendation. On de nova review, it is clear that Mr.
McClanahan's statements were not coerced or derived by exploiting his injuries.
Judge Lynch's findings and recommendations as to his Fifth Amendment claims
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are adopted in full and his claims are accordingly, denied.
The statements Mr. McClanahan made to officers took place after officers
noted his injuries and after he indicated he was not in need of immediate medical
attention. There is no evidence in the record that he requested medical assistance
prior to, or at the time of his arrest. There is similarly no factual basis for Mr.
McClanahan's claim in his Motion for Appointment of Counsel with C.O.A. that
he expressly invoked his Fifth Amendment rights at any time during his
interaction with the officers. All of the evidence indicates that Mr. McClanahan
willingly and voluntarily exited his home and spoke to officers prior to his arrest.
There is no factual support for the claim that his statements to officers were
obtained by exploitation or coercion, or over his invocation of his Fifth
Amendment right.
Mr. McClanahan's recent filings do not raise any issue related to Judge
Lynch's findings on the state's purported violation of an order in limine at trial.
Since no objections were lodged to these findings, they are subject to clear error
review. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Clear error is present only 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). There is no apparent error in Judge
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Lynch's conclusion that even ifthe state violated the order in limine, there is no
indication that such an act violated Mr. McClanahan's right to a fair trial.

VI.

Petitioner's challenge to the effectiveness of trial counsel in his
homicide case fails to shows neither unreasonable performance of
counsel nor prejudice.
Mr. McClanahan's petition challenges the conduct of his trial counsel. He

argues that his counsel's decision not to interview or seek testimony from his
medical doctor rendered his trial counsel's assistance ineffective. Judge Lynch
found that Mr. McClanahan failed to present sufficient evidence to support an
inference that his counsel's performance fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for these alleged
shortcomings, the result of the trial would have been different. After that finding,
Judge Lynch recommended that Mr. McClanahan's claim alleging ineffective
assistance of counsel at his homicide trial be denied. Mr. McClanahan does not
specifically object to these conclusions in his recent filings. He provides a bare
recitation that his counsel was ineffective but does not provide a warrant for that
argument. (See doc. 64 at 2.) He claims his trial counsel refused to answer his
questions, refused his telephone calls, and otherwise acted unprofessionally.
(Doc. 64 at 3.) None of these allegations challenge the specific findings and
recommendations Judge Lynch entered as to the effectiveness of the representation
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afforded Mr. McClanahan in state court. Even so, this portion of Judge Lynch's
report is reviewed de novo.
After such review, I conclude Judge Lynch's findings that trial counsel's
performance did not fall below an objective standard of reasonableness is wellfounded. Judge Lynch's conclusion that Mr. McClanahan was not prejudiced by
trial counsel's performance is uncontested and beyond dispute. Mr. McClanahan
concedes that his physician could only speak to his back and ankle wounds. Such
testimony would have been futile to his case, as there was no real dispute as to
how he sustained those injuries. Mr. McClanahan has not demonstrated that the
testimony of his physician would have been of such great benefit that it was
professionally unreasonable of his trial counsel not to call the physician to testify.
Furthermore, he has not made any attempt to show that the jury would have
entered an acquittal on either count of attempted deliberate homicide had his trial
counsel sought testimony from his physician. Mr. McClanahan' s claims of
ineffective assistance are without merit. Judge Lynch's Findings and
Recommendations are adopted in full on this point and petitioner's claim is
denied.

VII. Petitioner's speedy trial claims as to the rape case are without merit.
Mr. McClanahan's petition raises a claim that his right to a speedy trial was
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violated in the rape case. He argues the lengthy delay between the charge and trial
violated his constitutional right. Judge Lynch found this claim required an answer
from the state because it was possible that some periods of delay were not
attributable to Mr. McClanahan's conduct. The state, in its Answer, provided
briefing on the speedy trial issue raised in the proceedings in state court. There
the trial judge concluded that delays in the case were attributable to Mr.
McClanahan. In response, Mr. McClanahan argues his attorneys' conduct and
alleged misconduct caused delay in the rape case and that this delay should be
attributed to the state. Judge Lynch found this argument to ring hollow. The
United States rejected the reasoning Mr. McClanahan presented in Vermont v.

Brillon, 556 U.S. 81, 89-91 (2009), where the court held that delay caused by
defendant's counsel is charged to the defendant for speedy trial purposes because
the attorney is the defendant's agent when acting on the litigation. Furthermore,
Judge Lynch found that Mr. McClanahan has not made a sufficient showing that
his trial counsels' failure to ensure he received a speedy trial amounted to
ineffective assistance or prejudiced the outcome of his case. Judge Lynch
accordingly recommended this claim be denied.
Nothing in Mr. McClanahan's recent filings challenge Judge Lynch's
conclusion that the proceedings in the rape case did not violate Mr. McClanahan's
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Sixth Amendment right to a speedy trial. Mr. McClanahan restates the objections
raised in his petition but does not challenge the facts or legal conclusions on
which Judge Lynch based his Findings and Recommendations. Even so, after de
nova review, I conclude Judge Lynch's finding that there was no violation of Mr.
McClanahan's right to a speedy trial based on the Court's reasoning in Brillion is
sound. I further conclude that Judge Lynch did not err in finding that Mr.
McClanahan has not presented adequate grounds for an ineffective assistance of
counsel claim based on his speedy trial right. Judge Lynch's recommendation that
Mr. McClanahan's speedy trial claims be denied is the correct conclusion from
these findings. Accordingly, Judge Lynch's Findings and Recommendations are
adopted in full regarding Mr. McClanahan's speedy trial claim.

VIII. A certificate of appealability and appointed counsel are not warranted
in this action.
"The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant." Rule l l{a), Rules Governing§ 2254
Proceedings. A Certificate of Appealability should issue as to those claims on
which the petitioner makes "a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This standard is met if"jurists of reason could
disagree with the district court's resolution of the constitutional claims" or

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"conclude the issues presented are adequate to deserve encouragement to proceed
further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slackv.

McDaniel, 529 U.S. 473, 484 (2000)).
Mr. McClanahan has not presented a substantial showing of the denial of a
constitutional right. His arrest was based on probable cause. His voluntary
statements to officers prior to his arrest were not the result of exploitation or
coercion. His trial counsel provided professionally reasonable representation.
There is no evidence that Mr. McClanahan's trial counsel's decision not to call
his physician was of such consequence that the outcome of the trial would have
been different had the witness been called. Mr. McClanahan has a fair
opportunity to appeal the decision in both the rape case and the homicide case. He
has not demonstrated that the delay in the rape case was attributable to anything
other than his own conduct or his disagreements with his counsel. There are no
questions presenting a colorable constitutional claim. Encouragement of further
proceedings is not warranted. Accordingly, a Certificate of Appealability is
denied.

Mr. McClanahan seeks appointment of counsel to pursue his case with the
Court of Appeals. (See doc. 64 at 1.) For the reasons discussed in denying him a
Certificate of Appealability, and the analysis in part II supra and in prior orders
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denying appointment of counsel, (see docs. 21, 32, 40, 44), appointed counsel will
not be provided to facilitate Mr. McClanahan's appeal.
CONCLUSION

In accordance with the foregoing, IT IS ORDERED that Mr. McClanahan's
first claim as to his arrest and statements to officers is DENIED.
IT IS FURTHER ORDERED that Mr. McClanahan's third claim, regarding
ineffective assistance of counsel, is DENIED.
IT IS FURTHER ORDERED that Mr. McClanahan's fifth claim, asserting
speedy trial claims as to the rape case, is DENIED.
IT IS FURTHER ORDERED that all claims in both cases having been
denied on the merits, the state's Motion to Dismiss (doc. 49) is DISMISSED as
MOOT.
IT IS FURTHER ORDERED that McClanahan's petitions in both cases
(Cause No. 11-92, doc. 8; Cause No. 11-117, doc. 1) are DENIED. The Clerk
of Court shall enter judgment by a separate document in favor of Respondents and
against Petitioner and close these cases.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IfMr. McClanahan wishes to appeal, he must file a Notice of Appeal in this Court,
bearing this Court's caption, within thirty days of the entry of this Order.
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DATED this

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p)
day of August, 2013.

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