Rose v. Kirkegard et al
Filing
42
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 27 in full. All of Rose's claims are DENIED for lack of merit, except Claim 2, alleging violation of the right to the effective assistance of counsel in plea negotiations in late May 2003, and Claim 6, alleging violations of Rose's right to a speedy trial, which are subject to further proceedings. Signed by Judge Donald W. Molloy on 4/21/2015. (TAG, )
,li{LED
AP~ 2 7 2015
c~l~'
1
-rt
Cleli:!~-· Coun
·~· District
.c
Diatri .
M
ISSOula
-
tana
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ROBERT L. ROSE,
CV 13-156-M-DWM-JCL
Petitioner,
ORDER
vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
This matter comes before this Court on Petitioner Robert L. Rose's writ of
habeas corpus under 28 U.S.C. § 2254. United States Magistrate Judge Lynch
entered findings and recommendations on January 6, 2015, recommending all of
Rose's claims be denied for lack of merit except Claim 2, alleging violation of the
right to the effective assistance of counsel in plea negotiations in late May 2003,
and Claim 6, alleging violation ofRose's right to a speedy trial. (Doc. 27.) The
Court agrees.
1
••
The Court reviews findings and recommendations not specifically objected
to for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656
F.2d 1309, 1313 (9th Cir. 1981). Clear error exists ifthe Court is left with a
"definite and firm conviction that a mistake has been committed." Concrete Pipe
& Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602,
623 (1993) (internal quotation marks omitted). Following two extensions of time,
Rose filed his objections on March 30, 2015. (Doc. 41.) The findings and
recommendation to which Rose specifically objects are reviewed de novo. 28
U.S.C. § 636(b)(l). Because the parties are familiar with the factual and
procedural background of this case, it is presented only in the context of the
Court's analysis.
I.
Rose has limited his objections to Judge Lynch's findings and
recommendations as to Claims 1, 2, 3, 5, 10, and 12; these objections are discussed
below. The Court finds no clear error with Judge Lynch's analysis and
conclusions as to Rose's remaining claims, which are denied for lack of merit.
A.
Claim 1: Overnight Recess
Rose's objections regarding the overnight recess relate to the perceived
inability to pursue further factual development at the state court. These objections
2
do nothing to controvert Judge Lynch's conclusion that "[t]here is simply no
reason to think that Rose could, by adducing additional facts, prove the Strickland
claim he alleges." (Doc. 27 at 17.) Rose has failed to show the facts of this case
rise to the level of constructive denial of counsel by the government at a critical
stage. See United States v. Cronic, 466 U.S. 648, 658-59 (1984) (holding that
"trial is unfair if the accused is denied counsel at a critical stage of his trial"). In
Geders v. United States, 425 U.S. 80 (1976), the Supreme Court held that the trial
court's order preventing the defendant from consulting his counsel about anything
during the 17-hour overnight recess in the trial between his direct and crossexamination deprived him of his right to effective assistance of counsel. In Perry
v. Leeke, 488 U.S. 272 (1989), the Supreme Court held the same right was not
violated by a state trial court's order directing the petitioner not to consult his
attorney during a 15-minute afternoon recess. Rose insists that the situation here
is more like Geders and distinguishable from Leeke. Unlike both situations,
however, the Court did not order Rose to be sequestered and neither the Court nor
the prosecutor acted to prevent Rose from meeting with Sather; the two did, in
fact, meet. (See Trial Tr., Doc. 8-39 at 307:23-25.) Further, Rose exhibited no
concern at the time regarding his inability to meet at length with counsel over the
recess, but instead focused on his desire for self-representation. (Doc. 8-22 at 2:33
4:11.) Rose's Claim 1 is denied for lack of merit.
B.
Claim 2: Plea Offer
Rose's objection as it relates to Claim 2, which is one of the claims Judge
Lynch recommends for further proceedings, is limited to footnote 6, where Judge
Lynch provides analysis as to why the offered plea was illegal in its form. (See
Doc. 27 at 33 n. 6). Rose states that "[w]ithout this rectification, [he] believes Ms.
Sather' s IAC during plea negotiations might escape proper weight during
upcoming proceedings in this case." (Doc. 41 at 2.) Rose insists that the terms of
the agreement which Sather believed to be illegal, were not. (Id. at 21.) At the
time the plea offer was made in 2003, it was unclear whether a persistent felony
offender ("PFO") sentence could be imposed in addition to those imposed for the
actual offenses of conviction. See State v. Robinson, 177 P.3d 488, 495 (Mont.
2008) (holding that where a PFO sentence is imposed in addition to the sentence
for the offense itself, if "the sentences imposed, in total, are well below the
maximum provided for by [Mont. Code Ann.] § 46-18-502(2)" the sentence is not
illegal "because, in total, they are within statutory parameters") overruled by State
v. Gunderson (Gunderson!!), 237 P.3d 74, 83 (Mont. 2010) (holding "that
sentences imposed based on an offender's status as a persistent felony offender
replace the sentence for the underlying felony"). As there was no definitive state
4
law on the issue in 2003, it is possible that Com's alleged offer may have been
legal at the time and may have been accepted by the trial court. Judge Lynch
correctly determined Claim 2 should move forward for further proceedings. (See
Doc. 27 at 34 ("[I]t is not clear whether Sather performed in a professionally
unreasonable manner or whether Rose suffered prejudice as a result.").) Footnote
6, which merely explains the sentencing structure present in the plea agreement,
does not affect that determination. Rose's objection is overruled.
C.
Claim 3: Presence at Plea Negotiations
In Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012), the Supreme Court
applied the standards of Stricklandv. Washington, 466 U.S. 668 (1984), to plea
negotiations, holding "as a general rule, defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused." 1 Rose presents no cases, and
this Court is not aware of any, that specifically require the defendant to be
physically present during this process. Strickland concerns in the plea bargaining
process regard defense counsel's failure to communicate with his client and a
Even though Frye post-dates the state court adjudication in this case, it may be
properly considered as illustrative of the proper application of Strickland. See Wiggins v. Smith,
539 U.S. 510, 522 (2003) (holding that courts can look to cases that post-dates the state
adjudication as long as the cited case does not create new law, but rather is "squarely governed"
by existing Supreme Court precedent).
5
showing by "reasonable probability that the end result of the criminal process
would have bee more favorable by reason of a plea to a lesser charge or a sentence
of less prison time." Frye, 132 S. Ct. 1408-09. These concerns are addressed in
Rose's Claim 2, which is to proceed. Rose's Claim 3 is denied for lack of merit.
D.
Claim 5: Waiver of Counsel
Rose maintains that "his Sixth Amendment right to counsel was
violated/deprived during trial when the Judge impermissibly allowed waiver of
counsel." (Objs., Doc. 41 at 23.) Rose argues that the trial court erred in
permitting him to represent himself because: (1) the wavier was not timely, (2) the
trial judge failed to ensure he was aware of the "three elements" of selfrepresentation, and (3) the waiver was not equivocal. Under the standards
outlined by the Supreme Court, Rose "knowingly and intelligently" waived his
right to assistance of counsel.
"When an accused manages his own defense, he relinquishes, as a purely
factual matter, many of the traditional benefits associated with the right to counsel.
For this reason, in order to represent himself, the accused must knowingly and
intelligently forgo those relinquished benefits." Faretta v. Cal., 422 U.S. 806, 835
(1975) (internal quotation marks omitted). The defendant "should be made aware
of the dangers and disadvantages of self-representation, so that the record will
6
establish that he knows what he is doing and his choice is made with eyes open."
Id. (internal quotation marks omitted). Such is the case here.
Here, following an extensive conversation regarding Rose's understanding
of the case, Rose informed the trial judge that he wanted to represent himself. The
record affirmatively shows that Rose was literate, competent, and understanding,
and that he was voluntarily exercising his informed free will. The trial judge had
Rose file a waiver of counsel and asked,"you're doing this freely and voluntarily,
after having given it sufficient thought?" (Trial Tr., Doc. 8-39 at 314:5-7.) Rose
answered in the affirmative. (Id. at 314:8.) During that colloquy, the judge also
emphasized the seriousness of the charge, stating "you understand there's an awful
lot more at stake here than there is on a criminal trespass charge?"2 (Id. at 289:35.) Rose once again answered in the affirmative. (Id. at 289:6.) Rose knowingly
and intelligently waived his right to counsel. "It is the defendant [] who must be
free personally to decide whether in his particular case counsel is to his advantage.
And although he may conduct his own defense ultimately to his own detriment, his
choice must be honored out of 'that respect for the individual which is the
lifeblood of the law."' Faretta, 422 U.S. at 834 (quoting Ill. v. Allen, 397 U.S.
2
This was in reference to a case in Justice Court in which Rose represented himself
and was acquitted.
7
337, 350-51 (1970) (Brennan, J., concurring)).
The only other possible waiver issue implicated by the facts of this case is
Rose's competency to waive counsel and proceed to trial. In Indiana v. Edwards,
554 U.S. 164, 177-78 (2008), the Supreme Court held that "the Constitution
permits States to insist upon representation by counsel for those competent enough
to stand trial under Dusky but who still suffer from severe mental illness to the
point where they are not competent to conduct trial proceedings by themselves."3
The fact Rose underwent a psychological evaluation and intended to proceed on a
mental defect defense does not show that Rose lacked the mental capacity to
conduct his trial defense unless represented. In fact, his extensive knowledge of
the proceedings and what was expected of him during trial, as discussed above,
conveys the very opposite. The trial court here reasonably concluded that Rose
was aware of the serious nature of the proceedings and was able to proceed at trial
without the assistance of counsel. Even if Rose's mental state was sufficiently in
question to raise an Edwards concern-which it was not-the Supreme Court has
merely held that states may impose counsel in such circumstances, not that the
failure to do so is of-and-in-itself a constitutional violation. Edwards, 554 U.S. at
3
Dusky v. United States, 362 U.S. 402 (1960) (establishing the standard for
competency to stand trial).
8
178 (expressly refusing to overrule Faretta). Rose's Claim 5 lacks merit.
E.
Claim 10: Judicial Bias
Rose insists that his constitutional rights were violated because the trial
judge, Judge Langton, was biased and Rose was not afforded a fair hearing.
"[T]he floor established by the Due Process Clause clearly requires a fair trial in a
fair tribunal, before a judge with no actual bias against the defendant or interest in
the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 904 (1997)
(internal quotation marks and citations omitted). As noted by Judge Lynch, the
Supreme Court has been careful to distinguish "extreme facts" under which
judicial bias may be found from those "that would not rise to a constitutional
level." Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 887 (2009). Rose
has not presented facts or information indicating Judge Langton's conduct rose to
the extreme level required for finding a constitutional violation based on judicial
bias. Rose's claim is without merit.
F.
Claim 12: Ineffective Assistance of Appellate Counsel
Claims of ineffective assistance of appellate counsel are reviewed according
to the same Strickland standard as those governing claims of ineffective assistance
of trial counsel. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Rose maintains
that appellate counsel, Chad Wright, was ineffective for failing present sufficient
9
facts on the speedy trial issue, especially in light of the change in Montana's
speedy trial analysis. See State v. Ariegwe, 167 P.3d 815 (Mont. 2007) (clarifying
and modifying Montana's speedy trial analysis). However, there is no indication
Wright performed unreasonably either at the evidentiary hearing or on appeal.
Rose's claim that Wright was ineffective in connection with his speedy trial claim
is denied for lack of merit. To the extent Rose has concerns regarding whether his
right to a speedy trial was in fact violated, Judge Lynch has recommended further
proceedings on that issue.
II.
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 27) is ADOPTED IN FULL. All of Rose's claims are DENIED for lack of
merit, except Claim 2, alleging violation of the right to the effective assistance of
counsel in plea negotiations in late May 2003, and Claim 6, alleging violations of
Rose's right to a speedy trial, which are subject to further proceedings.
Ahr
Dated this ~ day of April, 2015.
loy, District Judge
·strict Court
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?