DeRosier v. Kirkegard et al

Filing 20

ORDER adopting in full 14 FINDINGS AND RECOMMENDATIONS. 1 Petition for Writ of Habeas Corpus is DENIED. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 1/9/2015. Miled to DeRosier. (TAG, )

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

LOUIS DeROSIER,

JAN 0 9 2015
Cieri<, U.S. District Court
District Of Montana
Missoula

CV 13-215-M-DWM-JCL
Petitioner,
ORDER

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

This matter comes before this Court on Petitioner Louis DeRosier' s writ of
habeas corpus under 28 U.S.C. § 2254. DeRosier is a state prison proceeding pro
se. United States Magistrate Judge Lynch recommends denying the petition on the
merits and denying a certificate of appealability. (Doc. 14.)
DeRosier is entitled to de nova review of the specified findings or
recommendations to which he objects. 28 U.S.C. § 636(b)(1 ). The Court reviews
the 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 if the Court is left with a "definite and firm

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conviction that a mistake has been committed." United States v. Syrax, 235 F .3d
422, 427 (9th Cir. 2000). On November 25, 2014, having received no objections
from DeRosier, this Court reviewed Judge Lynch's Findings and
Recommendations for clear error and adopted them in full. (Doc. 15.) DeRosier' s
petition was denied and judgment was entered in favor of the respondents. (Docs.
15 and 16.) On December 15, 2014, DeRosier filed a Rule 60 motion, alleging he
never received Judge Lynch's Findings and Recommendations and requesting an
opportunity to object. (Doc. 17.) That motion was granted, (Doc. 18), and on
January 5, 2015, DeRosier filed his objections, (Doc. 19).
In his objections, DeRosier insists his constitutional due process rights were
violated by both defense counsel and the State in that both failed to put on expert
testimony as to how his pre-existing knee condition could have caused his poor
performance on the "standing leg raise" and "walk and tum" tests. DeRosier
further contends defense counsel was ineffective for not objecting to the admission
of his pre- and post-Miranda statements. Finally, DeRosier insists that he has
made "a substantial showing of the denial of a constitutional right," and, therefore,
a certificate of appealability should be granted.
As to his statements, DeRosier's objections fail to address any of the
analysis provided by Judge Lynch. Most importantly, even if his statements were
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suppressed, DeRosier has failed to show a reasonable probability that a reasonable
jury would have retained reasonable doubt. Even if the jury did not hear DeRosier
testify to the fact that he had four Twisted Teas, see Trial Tr. at 231 :7-8, the State
put on additional evidence to support a finding that DeRosier was driving under
the influence of alcohol. This evidence included Sergeant's Hildenstab's
observations at the time, Trial Tr. at 201: 1-12, as well on DeRosier' s performance
on numerous sobriety tests, see Booking DVD at 15:41:32-15:46:14. DeRosier
has failed to show that the Montana Supreme Court's consideration of this issue,
and its potential prejudice, was unreasonable.
DeRosier further argues that an expert should have been required to testify
as to how the condition of his knees may have impacted his performance on
certain sobriety tests. Even though this issue was not raised in his federal petition,
it will be construed as a claim. Woods v. Carey, 525 F.3d 886 (9th Cir. 2008).
Construing this as a claim, the Court must consider the issues of exhaustion and
procedural default. Having reviewed the state court record, it is clear DeRosier
did not raise this claim in state court. But even if his claim is correct and an expert
would have given an opinion that some of the evidence of intoxication was related
to the condition of his knees rather than his blood alcohol content, that opinion
would not be sufficient to establish actual innocence. Schlup v. Delo, 513 U.S.
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298, 329 (1995) (requiring a showing that "no reasonable juror would have found
the defendant guilty" in light of the new evidence). Nor could it show sufficient
prejudice to warrant a new trial. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
As discussed above, the prosecution presented a diverse array of evidence that
would support a finding that DeRosier was driving under the influence, including
Sergeant Hildenstab's testimony and the portions of the Booking Video not related
to the two standing tests.
Further, the record indicates that the jury had the opportunity to consider
whether the condition of DeRosier' s knees impacted his ability to perform the
sobriety tests. The Booking Video includes a discussion at the very beginning
between Sergeant Hildenstab and DeRosier regarding whether DeRosier had any
disabilities and the condition of his knees. Booking DVD, 15:39:20-15:40:00.
The prosecutor expounded on this discussion in his direct examination of Sergeant
Hildenstab, highlighting the portion of the video where DeRosier agreed with
Sergeant's Hildenstab's assessment of the condition of his knees as "normal wear
and tear." Trial Tr. at 216:10-25. Defense counsel also questioned DeRosier
about his knees, and DeRosier testified that he believed their condition interfered
with is ability to perform the "walk and tum" and the "one leg stand" tests. Id. at
234:2-17.
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Finally, DeRosier fails to show how, even ifhe has met the low threshold of
showing he was deprived of a constitutional right, 28 U.S.C. § 2253(c)(2), any
doubt remains as to the Montana Supreme Court's procedural ruling, Gonzalez v.

Thaler, 132 S. Ct. 641, 648 (2012).
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 14) are ADOPTED IN FULL. DeRosier' s petition for writ of habeas corpus
(Doc. 1) is DENIED for lack of merit.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter by
separate document a judgment in favor of Respondents and against Petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

Dated this

~day of January, 2015.
Donald W.
lloy, District Judge
United Stales istrict Court

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