Buck v. Kirkegard et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. Richard Buck's petition for a writ of habeas corpus 1 is DENIED on the merits. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 3/7/2012. Mailed to Buck. (TAG, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
RICHARD FRANKLIN BUCK,
WARDEN LEROY KlRKEGARD;
ATTORNEY GENERAL OF
THE STATE OF MONTANA,
On January 25, 2012, Petitioner Richard Buck filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Buck is a state prisoner proceeding pro se.
Buck argues that his second criminal trial, which followed a mistrial ofthe first,
violated his constitutional protection against double jeopardy and his right to due
The matter was referred to Magistrate Judge Lynch under 28 U.S.C. §
636(b), and he entered his Findings and Recommendation on January 12,2012.
Judge Lynch noted that, while Buck's claims might be time-barred and/or
procedurally barred, the most efficient way to address Buck's claims is to address
their merits. See 28 U.S.C. § 2254(B)(2); Lambrix v. Singletary, 520 U.S. 518,
524-25 (1997) (making detailed analysis of constitutional issue despite
outstanding question as to procedural bar); Gutierrez v. Griggs, 695 F.2d 1195,
1198 (9th Cir. 1983). Judge Lynch recommends concluding that Buck's federal
constitutional rights were not violated.
Buck did not object to any portion of the Findings and Recommendation.
Thus, the Court reviews the Findings and Recommendation for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981).
The Court finds no clear error in Judge Lynch's Findings and
Recommendation and adopts them in full. Because the parties are familiar with the
facts, they are discussed here only as necessary to explain the Court's decision.
Due Process and Fair Trial
Buck first alleges that his due process rights were violated and that a second
trial could not have been fair because the illicit conversation that the three
witnesses had "tainted their credibility, and any testimony they might ever offer,
forever." Judge Lynch correctly noted that, by Mathias's testimony alone, Buck
committed at least negligent endangerment against Clary and possibly Atkinson,
as well. Mathias was not involved in the conversation at the first trial, which
violated the trial court's order. This illicit conversation had no influence on
Mathias' testimony, so his testimony was not tainted. Buck was not deprived of a
fair trial nor was he denied due process in any other respect. His due process claim
therefore fails on the merits.
Buck also claims that his constitutional protection against double jeopardy
was violated. Judge Lynch found that, although a "double jeopardy issue is fairly
raised" in Buck's case, the facts do not show that the prosecution intended to goad
Buck's counsel into moving for a mistrial. As a result, Judge Lynch recommends
concluding that Buck's double jeopardy claim fails.
The Double Jeopardy Clause prohibits "repeated prosecutions for the same
offense," Oregon v. Kennedy, 456 U.S. 667, 671 (1982) (citing United States v.
Dinitz, 424 U.S. 600, 606 (1976». Generally, a retrial is permitted when a mistrial
is declared at the request of the defendant. Id. at 670; United States v. Jam, 400
U.S. 470, 485 (1971). But a second trial is barred when "bad-faith conduct by
judge or prosecutor threatens the harassment of an accused by successive
prosecutions or declaration of a mistrial so as to afford the prosecution a more
favorable opportunity to convict." Dinitz, 424 U.S. at 611 (internal citations,
quotation marks, and parentheses omitted).
Here, the illicit conversations do not trigger double jeopardy protection.
There was no "bad-faith conduct by the judge or prosecutor" that caused Buck to
move for a mistriaL Kennedy, 456 U.S. at 676.
Although the witnesses' conversation at Buck's first trial were flagrantly
inappropriate, the facts ofthe case do not support a finding that the prosecution
intended to provoke counsel into moving for a mistriaL Judge Lynch correctly
concluded that neither the illicit conversations nor the mistrial trigger double
The Court finds no clear error in Judge Lynch's fmdings and
recommendations and adopts them in full. A certificate of appealability is not
warranted for Buck's claims. 28 U.S.C. § 2253(c)(2).
IT IS ORDERED that Judge Lynch's Findings and Recommendation (dkt #
8) are adopted in fulL
IT IS FURTHER ORDERED that Richard Buck's petition for a writ of
habeas corpus (dkt # 1) is DENIED on the merits.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter, by
separate document, a judgment in favor of the respondents and against Buck.
IT IS FURTIIER ORDERED that a certificate of appealability is DENIED.
1~ay of March 2012.
olloy, District Judge
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