Evans v. Fink et al

Filing 44

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 41 in full to the extent not inconsistent with this Order. Claim G presented in the Petition is DISMISSED WITH PREJUDICE. Claim J is DISMISSED for failure to state a claim. The state's Motion to Dismiss 31 is DISMISSED as MOOT. Mr. Evans's 1 Petition is DENIED. A Certificate of Appealability is DENIED. Signed by Judge Donald W. Molloy on 8/30/2013. Mailed to Evans. (TAG, )

FILED

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

MARTY EVANS,

AUG 30 2013
Cieri<,

us.

DistriCt cJ>A:trict COUrt
M;sSOUI~ntana

CV 11-112-M-DWM
Petitioner,
ORDER

vs.
LEROY KIRKEGARD, Warden,
Montana State Prison; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

INTRODUCTION

Petitioner Marty Evans is a state prisoner proceeding pro se. He petitions
for a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Evans was convicted by
jury trial in Montana's Twentieth Judicial District Court, Lake County of one
count of attempted sexual assault on a minor, in violation of Montana Code
Annotated § 45-4-103(1) and § 45-5-502, and one count of indecent exposure, in
violation of Montana Code Annotated § 45-5-504(1). For the attempted sexual
assault, Mr. Evans was sentenced to fifty years in prison with twenty years
suspended. On the indecent exposure charge, he was sentenced to six months, to

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run concurrent with his prison term for the attempted sexual assault. Mr. Evans
appealed to the Montana Supreme Court, but decided to voluntarily dismiss his
appeal on April 7, 2010. He sought post-conviction relief in the trial court on June
10,2010. That petition was denied September 10,2010 and Mr. Evans did not
elect to appeal that judgment to the Montana Supreme Court. Mr. Evans sought
review of his sentence before the Montana Supreme Court Sentence Review
Division on October 21,2010. His sentence was affirmed on June 2, 2011. Other
pertinent facts are set forth in this Court's previous Order adopting Findings and
Recommendations, (doc. 33), and will be recited here only as necessary.
Mr. Evans filed this petition on August 15,2011. Pursuant to Local Rule,
the petition was referred to United States Magistrate Judge Jeremiah C. Lynch.

See D. Mont. L. R. 73.1(a)(I) (Dec. 1,2010). Judge Lynch ordered Mr. Evans to
show cause why the claims in his petition should not be dismissed for procedural
default. (Doc. 11.) Mr. Evans responded, (docs. 18, 19), and most of his claims
were then addressed on the merits. On October 31,2012, the Court adopted Judge
Lynch's findings and recommendation that all but two of Mr. Evans' claims be
denied. (Doc. 33.) The state was required to file an Answer regarding two claims
related to Mr. Evans'sentence. The state filed its Answer and also moved to
dismiss the claims. (Docs. 30, 31.) Mr. Evans filed a Reply and Response on
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November 5, 2012. (Doc. 34.) The state filed a Reply in support of its Motion to
Dismiss on November 15,2012. (Doc. 35.)
A consent election was conducted after the state filed its Answer and
Motion to Dismiss, (see doc. 39), but one or the other party, or both, objected, so
the matter was re-referred to Judge Lynch for Findings and Recommendations,

(see doc. 40). While consent is required to refer dispositive matters to a United
States Magistrate Judge for final judgment, referral for consideration and
submission to an Article III Judge on Findings and Recommendations does not
require consent of the parties. 28 U.S.C. § 636(b)(1). The case now before the
Court for de novo review of the portions of Judge Lynch's Findings and
Recommendations to which Mr. Evans objects, pursuant to 28 U.S.C. § 636(b)(1).
The state was ordered to answer Claims G and J presented in Mr. Evans'
petition. (See doc. 22 at 24.) In Claim G, Mr. Evans seeks a writ of habeas

corpus based on the alleged disproportionality of his sentence, in violation of the
Eighth Amendment. Specifically, he argues that the sentence imposed by the state
district court is overly excessive in light of the crimes with which he was charged
and of which he was convicted. In Claim J, Mr. Evans seeks the writ because he
was allegedly forced to incriminate himself while his case was on appeal and
while he was contemplating collateral attack to the judgment, in violation of the
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Fifth Amendment. Specifically, he argues his participation in sex offender
treatment, as ordered by the judgment of the state district court, required him to
admit his guilt of the crimes with which he was charged and of which he was
convicted. Following review of the state's Answer and Motion to Dismiss and
Mr. Evans' response, Judge Lynch recommends both claims be dismissed. (See
doc. 41 at 9-10.)
Mr. Evans timely filed Objections, (doc. 42), to Judge Lynch's Findings
and Recommendations. His Objections relate to the claims addressed in Judge
Lynch's Findings and Recommendations and present new arguments not found in
the Petition. Mr. Evans' Objections are now considered in tum.
ANALYSIS

I.

The Court exercises its discretion to address, but not consider on­
merits, new arguments raised by Petitioner in his Objections.
Mr. Evans asserts that the counsel appointed for direct review of his state

conviction and for his sentence review proceedings provided ineffective
assistance. (Doc. 42 at 1-2.) He also claims he has been denied access to an
adequate law library. (Doc. 42 at 7.) These lines of argument are independent
claims for relief not raised in Mr. Evans' original Petition. These claims do not
relate to either Claim G (proportionality) or Claim J (self-incrimination) now at

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issue. 1
While a court is not required to consider evidence or argument presented for
the first time in objections to a United States Magistrate Judge's Findings and
Recommendations, it must actually confront the new argument and decide whether
it is appropriate to entertain it. Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002).
Pursuant to United States v. Howell, a court reviewing objections must exercise
its discretion to consider new arguments. 231 F.3d 615,621 (9th Cir. 2000).
Reasoned application of this discretion demands consideration of a litigant's pro
se status. Akhtar v. Mesa, 698 F.3d 1202, 1208-09 (9th Cir. 2012). "Prisoner pro
se pleadings are given the benefit of liberal construction." Porter v. Ollison, 620

F.3d 952,958 (9th Cir. 2010) (citing Erickson v. Pardus, 551 U.S. 89,94 (2007)
(per curiam)).
Mr. Evans is a state prisoner proceeding pro se. In light of his status as a
pro se litigant, the Court exercises its discretion and will consider new arguments

1 Mr. Evans attempts to link the ineffective assistance claim presented in his Objections
to the proportionality argument he asserts in Claim G in his original Petition. (See doc. 42 at 2.)
The conclusion that he is entitled to relief from his sentence because it is disproportionate, in
violation of the Eighth Amendment, does not follow from the premise that his counsel on direct
review and sentence review was ineffective. Even if his counsel's performance was deficient on
direct review and sentence review and such deficiency prejudiced Mr. Evans, these ineffective
assistance claims relate to proceedings that took place after his sentence was imposed. Questions
related to the proportionality of the sentence actually imposed are unrelated to the performance of
Mr. Evans' counsel appointed for post-trial proceedings.

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presented for the first time in his Objections. Leave to amend the Petition to assert
these claims will not be granted, however, as amendment to assert this claim
would be futile. See Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d
980, 986 (9th Cir. 1999) ("Where the legal basis for a cause of action is tenuous,
futility supports the refusal to grant leave to amend."). 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. The United States Supreme
Court's strict interpretation of the exhaustion requirement in Rose v. Lundy is
illustrative:
[O]ur interpretation of §§ 2254(b), (c) provides a simple
and clear instruction to potential litigants: before you
bring any claims to federal court, be sure that you first
have taken each one to state court. Just as pro se
petitioners have managed to use the federal habeas
machinery, so too should they be able to master this
straightforward exhaustion requirement. Those prisoners
who misunderstand this requirement and submit mixed
petitions nevertheless are entitled to resubmit a petition
with only exhausted claims or to exhaust the remainder
of their claims.
455 U.S. 509, 520 (1982). Mr. Evans has not affirmatively stated that state
remedies for these claims have been exhausted. A review of the docket of the
Montana Supreme Court reveals that he apparently has not filed these claims with
the Montana Supreme Court. Amendment of the petition to assert these claims
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would be futile, as they have not met the exhaustion requirement. Accordingly,
Mr. Evans' claims raised for the first time in his Objections, claiming ineffective
assistance of counsel on direct review and sentence review and lack of access to
an adequate law library are dismissed.

II.

Petitioner's claim regarding effectiveness of trial counsel has already
been litigated and decided.
Mr. Evans claims his trial counsel provided ineffective assistance, in

violation of his rights under the Assistance of Counsel Clause of the Sixth
Amendment. (Doc. 42 at 2-3.) While not directly raised in his petition, this claim
for relief was addressed by the Court's adjudication of Claim Rl. (See doc. 33 at
26-27.) Mr. Evans has not alleged, nor does the record reveal, facts sufficient to
meet his burden under Strickland v. Washington to demonstrate counsel's
performance was deficient and that the alleged deficiency resulted in prejudice to
his case. 466 U.S. 668,687 (1984). His claim that he was coerced into waiver of
a preliminary examination of evidence against him lacks specificity and merit.
Such a waiver is contemplated by Montana Code Annotated § 46-10-106. He has
not shown that his waiver of preliminary examination gave rise to prejudice to his
case. As stated in earlier adjudication of Mr. Evans' ineffective assistance claim
as to his trial counsel, his trial counsel did not fail to object at trial. (See, e.g., doc.

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10-2 at 142:16, 143:14; doc. 10-4 at 2:9.) Mr. Evans' counsel did not object
regarding his client's desire to confront the victim of the offense because the
victim did not appear as a witness at trial. Such an objection would have been
wholly without merit as the Confrontation Clause of the Sixth Amendment
protects a defendant's right to confront witnesses appearing before the trier of fact,
not necessarily the victims of the crime alleged. Petitioner's claims regarding the
effectiveness of trial counsel were rejected in the trial court's decision of his
petition for post-conviction relief from the judgment, (doc. 10-14 at 76-78), and
were previously adjudicated and rejected by this Court, (doc. 33 at 26-27).

III. Petitioner presents no germane objection to findings and
recommendations regarding his proportionality claim.
Mr. Evans attempts to link: his ineffective assistance claims to Judge
Lynch's Findings and Recommendations regarding Claim G, where he asserts his
sentence is not proportional and therefore in violation of the Eighth Amendment.
See supra note 1. These claims are unrelated to the proportionality arguments
presented in Claim G. Since there is no germane objection to this portion of Judge
Lynch's report, it is reviewed only for clear error. See McDonnell Douglas Corp.
v. Commodore Bus. 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

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been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
After reviewing Judge Lynch's Findings and Recommendations regarding
Claim G, the Court is in agreement with his conclusion that the claim is subject to
dismissal with prejudice as his state remedies with respect to that claim are
exhausted, but the claim is defaulted. Judge Lynch's finding that the claim of
ineffective assistance was not presented to in state court is correct as to Mr.
Evans' proceedings before the Sentence Review Division and the Montana
Supreme Court. While, Mr. Evans did present an ineffective assistance claim as
to trial counsel in his petition for post-conviction relief presented to the trial court,

(see doc. 10-14 at 76-78), this claim cannot conceivably relate to his claim that
his sentence is disproportionate. His failure to present this claim in state court as
to his appellate and sentence review counsel does not excuse default of his Eighth
Amendment proportionality claim. Edwards v. Carpenter, 529 U.S. 446, 451-52
(2000). His default of the proportionality claim presented in Claim G is not
excused and the claim is subject to dismissal with prejudice.

IV. Participation in a sex offender treatment program does not violate
Petitioner's right to be free from compelled self-incrimination.
In Claim J of the Petition, Mr. Evans argues that his required participation
in sex offender treatment in prison while his case was on appeal and while he

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contemplated collateral attack violated his Fifth Amendment right to be free from
compelled self-incrimination. (Doc. 1 at 11.) Judge Lynch ordered the state to
answer this claim. (Doc. 22.) In his Response to the state's Answer, Mr. Evans
added allegations that the terms of his judgment regarding sex offender treatment
are contradictory under the heading of Claim J. (Doc. 34 at 6,9.) Judge Lynch
finds that the state court's judgment plainly requires Mr. Evans to participate in
sex offender treatment while in prison and upon release. He also finds, pursuant
to Neal v. Shimoda, the requirement that Mr. Evans admit guilt as part of his
treatment does not violate his Fifth Amendment right to be free from compelled
self-incrimination. Judge Lynch recommends Claim J be dismissed for failure to
state a claim on which relief might be granted.
After reviewing Judge Lynch's findings and recommendation regarding
Claim J and Mr. Evans' objections to the same, the Court agrees that Mr. Evans'
self-incrimination claims are subject to dismissal. His participation in court­
ordered sex offender treatment while incarcerated does not violate his Fifth
Amendment right to be free from compelled self-incrimination because no
admission made by Mr. Evans could be used against him in a future criminal
proceeding. See Allen v. Illinois, 478 U.S. 364, 368 (1986); Neal v. Shimoda,
131 F.3d 818,832-33 (9th Cir. 1997). The Judgment contains no contradiction or
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confusion regarding the requirement that Mr. Evans participate in sexual offender
treatment. (See doc. 10-8 at 8.)

Mr. Evans raises new arguments regarding Claim J in his Objections.
These arguments are recognized and the Court exercises its discretion to consider
them for the reasons stated in Part I supra. Mr. Evans claims that the existence of
community outpatient sexual offender treatment programs which do not require
admission of guilt proves there is no nexus between the admission of guilt and
rehabilitation. (Doc. 42 at 4.) This argument is without merit. Rehabilitation,
including acceptance of responsibility is a legitimate penological objective.

McKune v. Life, 536 U.S. 24,36-37 (2002) (plurality) (citing Brady v. United
States, 397 U.S. 742, 753 (1970)). His removal from the program, and other
treatment programs, for failing to admit responsibility are not compulsive of self­
incrimination. See id. at 53 (O'Connor, J., concurring). His argument that his
conviction of attempted sexual assault on a minor should negate the imposition of
a treatment requirement is also without merit. It is unrelated to the self­
incrimination claim asserted in Claim J in the Petition. And if the state may
impose sexual offender treatment as a part of the judgment for a sexual offense, it
may also do so for an attempted sexual offense. See Neal, 131 F3d at 831. Mr.
Evans does not present a viable objection to Judge Lynch's findings and
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recommendations on Claim J. Accordingly, Claim J is subject to dismissal for
failure to state a claim upon which relief might be granted.
CONCLUSION

The new arguments presented in Mr. Evans' Objections are without merit.
His claims regarding effectiveness of counsel have been litigated and decided. His
self-incrimination and proportionality claims are subject to dismissal.
In accordance with the foregoing, IT IS ORDERED that Judge Lynch's
Findings and Recommendations (doc. 41) are ADOPTED IN FULL to the extent
not inconsistent with this Order.
IT IS FURTHER ORDERED that Claim G presented in the Petition,
asserting Mr. Evans' sentence is disproportionate and in violation of the Eighth
Amendment is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Claim J presented in the Petition,
asserting Mr. Evans' participation in sex offender treatment compels self­
incrimination in violation of the Fifth Amendment is DISMISSED for failure to
state a claim on which relief might be granted.
IT IS FURTHER ORDERED that all claims having been dismissed or
denied on the merits, the state's Motion to Dismiss (doc. 31) is DISMISSED as
MOOT.
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IT IS FURTHER ORDERED that all claims having been dismissed or
denied on the merits, Mr. Evans' Petition is DENIED. The Clerk of Court shall
enter judgment by a separate document in favor of Respondents and against
Petitioner and close the case.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
If Mr. Evams 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.
DATED this .jb"day of August, 2013.

Hoy, District Judge
istrict Court

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