Caswell v. Kirkegard et al
Filing
46
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 42 in full. Petition is DENIED and DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 7/19/2016. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV 14-4 7-M-DLC-JCL
PETER EARL CASWELL,
Petitioner,
ORDER
vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered Findings and a
Recommendation in this matter on February 3, 2016, recommending dismissal of
Petitioner Peter Caswell' s ("Caswell") application for writ of habeas corpus under
28 U.S.C. § 2254. Caswell timely filed objections and is therefore entitled to de
novo review of those Findings and Recommendation to which he specifically
objects. 28 U.S.C. § 636(b)(l)(C). This Court reviews for clear error those
findings and recommendations to which no party objects. See McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981);
Thomas v. Arn, 474 U.S. 140, 149 (1985). "Clear error exists ifthe Court is left
with a definite and firm conviction that a mistake has been committed." United
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States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Caswell objects to Judge Lynch's conclusion that the reconstructed record
in this case was sufficiently complete to provide for effective appellate review.
Caswell also maintains that the United States Supreme Court has specifically
rejected the contention that counsel's memory and notes qualify as an equivalent
alternative to a trial transcript. The Court disagrees with Caswell and will adopt
the Findings and Recommendation in full.
As discussed by Judge Lynch, when the state provides for appellate review,
an indigent defendant must be provided with a "record of sufficient completeness
to permit proper consideration of (his) claims." Mayer v. City of Chicago, 404
U.S. 189, 194 (1971) (citations omitted). However, this does not mean a state
must provide a verbatim transcript. Id. Indeed, the need for the transcripts is
evaluated under two factors: "(1) the value of the transcript to the defendant in
connection with the appeal or trial for which it is sought, and (2) the availability of
alternative devices that would fulfill the same functions as a transcript." Madera
v. Risley, 885 F .2d 646, 648 (9th Cir. 1989) (quoting Britt v. North Carolina, 404
U.S. 226, 227 (1971). A due process violation only occurs if a defendant is
prejudiced by a reconstructed record that is inadequate. See Madera, 885 F.2d at
648-649 (defendant was not prejudiced by lack of complete transcript and thus
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entitled to habeas relief).
Here, as noted in the Findings and Recommendation, approximately fifteen
to twenty minutes of Officer Pitman's testimony was not recorded at Caswell's
trial. Upon discovery of this error during Caswell' s initial appeal, the State
attempted to reconstruct this testimony through the "prosecutor's handwritten trial
notes, the recording log, exhibit logs, the partial transcript, and a consultation with
Captain Pitman." State v. Caswell, 295 P.3d 1063, 1067 (Mont. 2013). Caswell's
trial attorney filed a response to the State's reconstructed record providing that he
did "not have any independent recollection of the specifics of the missing
testimony[,] ... [but] believes objections were made during the course of the
arresting officer's testimony." Id. Caswell also filed a response to the State's
reconstructed record where he argued that the missing portion of testimony
contained "proof that [he] was not drinking, was cooperative, was forthcoming,
and that Ian and Beth had lied in their testimony and in their statements to law
enforcement." Caswell, 295 P.3d at 1067. 1
Turning to the Findings and Recommendation, Judge Lynch found that the
unrecorded portion of the testimony revolved primarily around the introduction of
1
Due to the relatively short period of missing testimony, and given defense counsel's
response to the reconstructed record, the Court takes Caswell' s argument for what it is worth.
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roughly thirty exhibits in the form of photographs. Judge Lynch then throughly
reviewed the substance of these photographs and analyzed any possible objections
that could arise from their introduction. (See Doc. 42 at 28-29.) The Court agrees
with Judge Lynch that it is highly unlikely that anything said during this portion of
the testimony would now prejudice Caswell because he lacks access to the
verbatim transcript for this habeas proceeding.
Further noted by Judge Lynch was the improbability that Officer Pitman
made some statement exonerating Caswell during his unrecorded testimony.
Multiple reasons back this finding, including: (1) Judge Wheelis's failure to
acknowledge such a statement in the order adopting the State's reconstructed
testimony; 2 (2) defense counsel's failure to recall this statement in his response to
the State's reconstructed testimony; and (3) defense counsel's failure to highlight
this statement at some other point in the trial, such as during closing arguments.
The Court agrees with the Findings and Recommendation that Caswell has failed
to show prejudice as result of the lack of a complete trial transcript.
Additionally, Caswell argues that controlling authority mandates that
counsel's memory and notes cannot qualify as an equivalent alternative to a trial
2
Judge Wheelis referred to Caswell's contention that Officer Pitman made an
exonerating statement as "nothing more than fantasy." (Doc. 36-29 at 2.)
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transcript. Caswell cites to Britt v. North Carolina, 404 U.S. 226 (1971), among
others, for this argument. 3 The Court disagrees with Caswell on two points. First,
nowhere in Britt does the high Court establish a bright line test on what qualifies
as an adequate substitute for a complete transcript. Britt merely stands for the
proposition that a court must weigh two factors in determining whether a state's
denial of transcripts to an indigent defendant violates due process: (1) the value of
the transcript to the defendant; and (2) whether there is an adequate alternative to
the transcript. Id. at 227.
Second, contrary to Caswell' s argument, the Britt Court noted that "trial
notes might well provide an adequate substitute for a transcript[.]" Id. at 229 n. 4. 4
Here, in addition to the prosecutor's detailed trial notes, the reconstructed record
contained "the recording log, exhibit logs, the partial transcript, and a consultation
with Captain Pitman." Caswell, 295 P.3d at 1067. Further, the trial judge
reviewed the reconstructed record, with comments from defense counsel, and
ultimately adopted this record. As such, the Court agrees with the Montana
3
Caswell provides a pinpoint citation to Britt, 404 U.S. at 224 for this contention. The
Court has reviewed Britt and notes that this page does not exist in this decision. Further, the
Court has read the entirety of this decision and cannot find any specific support for this
argument.
4
The Court recognizes that the Britt Court was referring to the trial judge's notes.
However, as described irifra, the reconstructed record was not solely based on the prosecutor's
detailed trial notes and included other sources of independent information.
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Supreme Court and Judge Lynch that the record in this case "is of sufficient
completeness to afford effective appellate review." Id. at 1069. The Court further
agrees with Judge Lynch that Caswell has failed to show that this finding is
unreasonable. As such, the Court will adopt Judge Lynch's Findings and
Recommendation in full.
Lastly, Caswell provides that, should the Court adopt the recommendation
to dismiss his petition, it should grant him a certificate of appealability because he
has made a "substantial showing of the denial of a constitutional right." (Doc. 45
at 4 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).) The Court disagrees with
Caswell, primarily, because the issues in this case are not "adequate to deserve
encouragement to proceed further." Miller-El, 537 U.S. at 336 (citations omitted).
Further, the Court does not believe "that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different
manner." Id. Caswell's request for a certificate of appealability will be denied.
Accordingly, the Court reviews the remainder of Judge Lynch's Findings
and Recommendation for clear error and, finding none,
IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendation (Doc. 42) is ADOPTED
IN FULL.
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(2) Caswell's petition is DENIED and DISMISSED WITH PREJUDICE;
his claim is without merit.
(3) The Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
(4) A certificate of appealability is DENIED.
DATED this
'q .U..day of July, 2016.
Dana L. Christensen, Chief Judge
United States District Court
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