Woods v. Kirkegard et al

Filing 10

ORDER. This matter is STAYED. Woods must file a status report in this Court on or before March 13, 2015, to advise the Court of any filing he has made in state court. Signed by Magistrate Judge Jeremiah C. Lynch on 2/9/2015. Mailed to Woods. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DANIEL J. WOODS,

Cause No. CV 13-194-M-DWM-JCL

Petitioner,
vs.

ORDER

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

On September 23, 2013, Daniel J. Woods filed a petition seeking a writ of
habeas corpus under 28 U.S.C. § 2254. Woods is a state prisoner proceeding pro
se.
On January 27, 2014, Woods was ordered to clarify what constitutional
violations he intended to allege as to each of his two claims. He responded on
February 13, 2014. Thereafter, the Court ordered Respondents (“the State”) to file
various records from the proceedings in state court.
I. Woods’s Allegations
Woods’s petition contains two claims for relief. First, he contends that his
Confrontation Clause right to confront the witnesses against him was violated
when “[a]llegations made by unknown parties” were included in the presentence
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report. He explains:
A co-worker of the victim’s mother, who remains unnamed, contacted
counsel for the State and was given contact information for the PSI
[presentence investigation report] writer. The writer was called by an
unknown party and allegations were made. I denied what was told the
PSI writer ever happened and all efforts to identify this unknown
accuser were dismissed so I was never allowed to challenge those
allegations.
Pet. (Doc. 1) at 4 ¶ 13A.
Second, Woods claims he was “[n]ot afforded an opportunity to withdraw or
amend any of the Plea Agreement.”
The plea agreement did not include any parole restrictions. The
mandatory sentence for the crime was 100 years, no parole
consideration for the first 25 years. The agreement was for 40 years,
by all accounts, an exception to the mandatory. [Nineteen] days after
sentencing an amendment was made to include the 25 year parole
restriction.
Id. at 5 ¶ 13B.
II. Exhaustion
State prisoners who apply for federal habeas relief are required first to
present their claims in state court. Rose v. Lundy, 455 U.S. 509, 520 (1982). To
meet the exhaustion requirement, a petitioner must (1) use the “remedies
available,” § 2254(b)(1)(A), through the State’s established procedures for
appellate review, O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); (2) describe
“the federal legal theory on which his claim is based,” Davis v. Silva, 511 F.3d
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1005, 1009 (9th Cir. 2008); and (3) describe “the operative facts . . . necessary to
give application to the constitutional principle upon which the petitioner relies,”
id. A petitioner must meet all three prongs of the test in one proceeding.
Woods presented his first claim in his state postconviction petition. The trial
court held, and the Montana Supreme Court agreed, that the issue could have been
raised on direct appeal. As it was not raised at that time, it was barred in
postconviction proceedings. Appellant Br. at 2, 3-4, Woods v. State, No. DA 120558 (Mont. filed Feb. 6, 2013), available at http://supremecourtdocket.mt.gov
(accessed Feb. 6, 2015); Order at 3 ¶ 5, Woods, No. DA 12-0558 (Mont. July 30,
2013); Mont. Code Ann. § 46-21-105(2). 1 To the extent Woods failed to allege in
state court a violation at sentencing of his rights under the Confrontation Clause,
no further avenue remains available in state court for him to present that claim
now. In sum, Woods’s first claim for relief is either technically exhausted but
procedurally defaulted or simply procedurally defaulted.
Woods did not properly exhaust in state court his claim that his federal right
to due process was violated because the only way the sentencing court had the
authority to impose a 40-year sentence was by finding an exception to the
mandatory sentence, and therefore, a 25-year parole restriction was not mandatory.

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Woods also asserted counsel was ineffective, but he does not raise that claim in this

Court.

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But Woods may still be able to present this claim in state court. Generally, a
Montana prisoner may not file a petition for writ of habeas corpus in state court
for the purpose of challenging the validity of a conviction or sentence. Mont. Code
Ann. § 46-22-101(2). An exception is made, however, where the prisoner alleges
that he is in custody based on “a facially invalid sentence – a sentence which, as a
matter of law, the court had no authority to impose.” Lott v. State, 150 P.3d 337,
342 ¶ 22 (Mont. 2006). Under Montana law, “district courts do not have the power
to impose a sentence unless authorized by a specific grant of statutory authority.”
State v. Burch, 182 P.3d 66, 72 ¶ 23 (Mont. 2008) (citing cases).
This Court has found no Montana case interpreting Mont. Code Ann. § 4618-222 in a manner consistent with the district court’s implicit finding here of an
exception under § 222 as to the mandatory 100-year sentence under § 45-5507(5)(a)(i) while also not finding an exception under § 222 as to the mandatory
no-parole restriction in § 45-5-507(5)(a)(i). Moreover, the record suggests that
each party and the court were confused as to what the statutory penalty actually
was. Compare, e.g., Information (Doc. 9-8) at 1; Post-Judgment Order (Doc. 9-6)
at 9 (asserting that sentence deviated from “statutory maximum of 100 years”)
(emphasis added), with Mont. Code Ann. § 45-5-507(5)(a)(i) (2007) (“shall be
punished by imprisonment . . . for a term of 100 years.”). The record also suggests
the terms of the court’s judgment changed after sentencing. Compare Sentencing
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Tr. at 39:20-41:18, 44:2-9; Judgment (Doc. 9-4) at 2, with Post-Judgment Order
(Doc. 9-6) at 1. Whether the parties intended the 25-year mathematical difference
between the total sentence of 40 years and the suspended term of 15 years to be
the equivalent of the 25-year no-parole term in Mont. Code Ann. § 45-5507(5)(a)(i) – the very same provision that mandated a sentence, not a maximum,
of 100 years – is as unclear as the legal foundation for the total 40-year term and
25-year no-parole restriction imposed by the sentencing court.
Although the Montana Supreme Court may conclude otherwise, it is
possible that Woods’s sentence is illegal. Consequently, this Court cannot deem
his second claim for relief technically exhausted. The Montana Supreme Court
might entertain a habeas petition under Mont. Code Ann. § 46-22-101 and Lott.
Because Woods may be able to return with his second claim to state court,
he must do so. See Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
While his first claim is exhausted, his second is unexhausted. Accordingly, his
federal petition is “mixed.”
III. Stay
Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), the Court may stay a
mixed federal habeas petition to permit exhaustion of additional claims “if the
petitioner had good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the petitioner engaged in
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intentionally dilatory litigation tactics.” Id. at 278. Woods has been diligent in
attempting to obtain relief against the no-parole restriction in the post-judgment
order. His claim is potentially meritorious.
As to good cause, three factors support finding it here. First, Woods’s claim
regarding the court’s authority to impose the sentence it did should have been
raised on direct appeal. While the prosecutor, too, misstated the penalty in the
Information and voluntarily entered into a potentially illegal plea agreement,
defense counsel at trial and on appeal should have spotted the issue as well.
Deficient performance by counsel is cause to excuse procedural default, cf.
Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012); see also Murray v. Carrier,
477 U.S. 478, 496 (1986), so it should support a finding of cause to impose a stay.
Second, because the scope of the writ of habeas corpus in state court is very
limited, it is difficult to characterize it as a normal step in State collateral review.
Imposing a stay when an otherwise-diligent petitioner may be able to obtain the
writ in state court is better policy than compelling state prisoners to test the
availability of the writ in every case. Moreover, habeas is generally a speedy
remedy, because an application is filed directly in the Montana Supreme Court.
Finally, despite Woods’s diligence, dismissing his second claim now, rather
than imposing a stay, would result in imposition of a time bar against Woods’s
second claim, should he attempt to return to federal court after presenting the
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claim to the Montana Supreme Court. But the claim was timely when Woods filed
it in this Court. This situation is why the Rhines Court recognized the legitimacy
of a stay to allow further exhaustion in state court. See Rhines, 544 U.S. at 272-73.
Under the unique circumstances here, “the petitioner’s interest in obtaining
federal review of his claims outweighs the competing interests in finality and
speedy resolution of federal petitions.” Rhines, 544 U.S. at 278. This matter will
be stayed to permit Woods to file a petition for writ of habeas corpus in the
Montana Supreme Court to present to that court the second of the two claims he
presents in this Court.

Based on the foregoing, the Court enters the following:
ORDER
1. This matter is STAYED to allow Woods to exhaust his second claim for
relief.
2. Woods must file a status report in this Court on or before March 13,
2015, to advise the Court of any filing he has made in state court. Provided Woods
timely files in state court, the stay in this Court will be continued pending
disposition of Woods’s action in state court. If Woods does not pursue relief in
state court in compliance with this Order, his second claim for relief will be held
procedurally defaulted and will be subject to dismissal with prejudice.
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Woods must immediately notify the Court of any change in his mailing
address by filing a “Notice of Change of Address.” Failure to do so may result in
dismissal of this case without notice to him.
DATED this 9th day of February, 2015.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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