Rose v. Kirkegard et al

Filing 107

ORDER. Certificate of appealability DENIED as to clamis A, B, C, and D. Signed by Judge Donald W. Molloy on 11/2/2016. (TAG, )

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

ROBERT L. ROSE,

NOV 02 2016
Clerk. u.s Courts
District Of Montana
Missoula Division

Cause No. CV 13-156-M-DWM-JCL

Petitioner,
vs.

ORDER

LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

Rose seeks a certificate of appealability for the following: Claim A, a
violation of Rose's Sixth Amendment right to counsel under United States v.

Cronic, 466 U.S. 648 (1984); Claim B, this Court's remedy for Rose's ineffective
assistance of counsel claim was inadequate; Claim C, a violation of Rose's Sixth
Amendment under Faretta v. California, 422 U.S. 806 (1975); and, Claim D,
judicial bias. For the reasons discussed herein, Rose is denied a certificate of
appealability on each claim.
In relation to Claim B, Rose believes he is entitled to a certificate of
appealability, because the remedy granted by this Court for his ineffective
assistance of counsel claim, specifically, remand to the trial court to consider the
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equivalent terms of the plea offer that was never conveyed to Rose, is inadequate.
Rose seems to argue that he is entitled either to release or to a new trial following
the trial court's rejection of the newly proffered plea agreement. Rose asserts that
a reasonable jurist could disagree with the chosen remedy, thus, a certificate of
appealability is appropriate.
As a preliminary matter, this Court agrees that Rose made a substantial
showing of ineffective assistance of counsel, which is precisely why this Court
granted Rose habeas relief for the ineffective assistance rendered by trial counsel.
But that showing does not automatically mean Rose is entitled to a certificate of
appealability relative to the remedy granted.
The language of 28 U.S.C. § 2253( c)(2) is permissive. ("A certificate of
appealability may issue under paragraph ( 1) only if the applicant has made a
substantial showing of the denial of a constitutional right.")(emphasis added).
Moreover, this Court has addressed Rose's claim that the remedy imposed for the
Sixth Amendment violation was inadequate. (Doc. 94 at 4-5).
Previously, Rose requested a remedy this Court deemed would result in a
windfall to Rose and was not part of the remedy contemplated in Lafler v. Cooper,
132 S. Ct. 1376, 1389 (2012). This Court determined that Lafler "plainly provides
that when inadequate assistance of counsel causes non acceptance of a plea offer
and further proceedings led to a less favorable outcome, the conviction is to be left
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undisturbed ifthe trial court decides to reject the plea agreement." (Doc. 94 at 5).
Because Rose already had a jury trial, free of constitutional error, the proper
remedy was to reoffer the substantial terms of the previous plea agreement that was
not conveyed to Rose and allow him to return to the trial court. The fact that the
trial court, after considering both the Lafler decision and this Court's remand
order, chose not to accept the plea agreement, does not entitle Rose to a new trial.
Nor does it entitle him to a certificate of appealability relative to his objection to
the remedy that was previously overruled. A certificate of appealability for Rose's
Claim B is denied.
Rose then cites to three additional claims: a Cronic claim, a Faretta claim,
and a claim of judicial bias, for which he believes he is entitled to certificates of
appealability. Presumably, Rose now advances these three claims from the thirteen
he originally raised in his habeas petition, because they are not subject to harmless
error review on appeal. As to each of these claims, Rose is not entitled to a
certificate of appealability.
All three of these constitutional claims were considered and rejected on their
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merits. Rose has not demonstrated that reasonable jurists would find this Court's
assessment of the constitutional claims debatable or wrong. Slack v. McDaniel,
529 U.S. 473, 484 (2000); 28 U.S.C. § 2253 (c). Each of these three claims was
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See, (Doc. 27)(recommending denial of: Claim A, at 11-17; Claim C, at18; and, Claim D, at 25-29).;and, (Doc.
42)(denying: Claim A, at 2-4; Claim C, at 6-9; and, Claim D, at 9).

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analyzed on its merits and it was determined Rose failed to make a substantial
showing of the denial of a constitutional right. See, 28 U.S.C. § 2253 (c)(2). Rose
has not demonstrated that jurists of reason could disagree with the resolution of
these constitutional claims or that the issues deserve encouragement to proceed
further. Slack, 529 U.S. at 484; Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
A certificate of appealability is denied for Claims A, C, and D.

~J

DATED this )

,
day of November, 2016.

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