McGarvey v. Laughlin et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 20 in full. Petition 1 is DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 3/22/2017. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MAR 22 2017
Clet'k, U.S Courts
Oiatrlet Of Montana
VANCE LAUGHLIN; ATTORNEY
GENERAL OF THE STATE OF
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations in this case on December 21, 2016, recommending that
Petitioner Troy McGarvey's Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254 be dismissed. (Doc. 20.) McGarvey timely objected to the Findings and
Recommendations. (Doc. 21.) The government then responded to McGarvey's
objections. (Doc. 22.)
The facts, which Judge Lynch described in full, are incorporated throughout
this Order as necessary. Following a three-day trial in November 2013, McGarvey
was convicted on two counts of deliberate homicide for the murders of Clifford
Grant and Norman Nelson. Before, during, and after the state court proceedings,
McGarvey has consistently maintained his innocence. He appealed his initial
conviction to the Montana Supreme Court, which affirmed the trial court. Later,
his appeal for post-conviction relief through the state court system was denied.
In his petition for writ of habeas corpus, brought under 28 U.S.C. § 2254,
McGarvey argues that he is entitled to a new trial under three theories: (1) Brady;
(2) ineffective assistance of counsel; and (3) cumulative error. The magistrate
judge considered McGarvey's arguments, and he recommends that the Court
dismiss the petition. McGarvey objects, claiming that the magistrate judge erred
in analyzing each of his claims for relief. The Court dismisses McGarvey's
petition, adopting the Findings and Recommendations in full.
McGarvey argues that the State failed to disclose critical evidence and that
the Montana Supreme Court erred in analyzing his claims under Brady. Judge
Lynch agreed-and the State conceded-that the Montana Supreme Court failed
to apply the correct Brady standard, but he nonetheless determined that the no
Brady violation occurred. McGarvey now argues that the magistrate judge erred
by finding that he has no Brady claim arising from the State's failure to disclose
four pieces of evidence: (1) the jail notes of Robert Armstrong, one of two key
witnesses 1; (2) a drug connection between the other key witness, Stan Edwardson,
and another individual, Rod Monroe; (3) information regarding Tony Sanchez,
who McGarvey suggests was the true perpetrator; and (4) a letter written by
Armstrong's mother questioning Armstrong's mental state. The Court discusses
each alleged error in turn, ultimately agreeing with the magistrate judge that
McGarvey did not suffer prejudice as a result of the State's failure to disclose
Robert Armstrong's Jail Notes
While in jail, Armstrong made notes which call into question his mental and
emotional stability. He wrote:
Nervous tension, stress, crippling anxiety, inability to concentrate,
unable to enjoy relaxed though or anything for that matter. Good
meds. Possibly skip alcohol treatment center. Noises in head sound
like the pressurized sound you get when you dive deep in water.
Afraid of God listening to conscience. Got over paranoia. Now
occasionally get discouraged when I can't think clearly because of
agitation to the motherfuckers trying to hear my conscious. New
form of defense and inevitable discovery, step toward the future.
Identifying mood signals or sound waves associated with
conversation and identifying thought based conversation and the
signals the mind is giving off and must be very patient schizo.
During discovery, the State informed McGarvey that it had these notes in its
As Judge Lynch discussed in his Findings and Recommendations, the State's case
against McGarvey was based primarily on the testimony of Armstrong and Edwardson, both of
whom testified that they had heard McGarvey confess to the murders.
possession but that Armstrong's handwritten notes "are voluminous and serve no
evidentiary value nor are they exculpatory in nature." It also stated that it had
consulted with McGarvey's trial counsel and that the parties had agreed that the
notes would be available to the defense during trial. It is unclear whether
McGarvey's trial counsel reviewed the notes at any time, but the State offered
them to the defense for review at trial.
The Montana Supreme Court concluded that the State did not suppress
Armstrong's jail notes, and Judge Lynch determined that the decision was neither
an unreasonable application of clearly established federal law nor based on an
unreasonable determination of the facts in light of the evidence presented. The
Court agrees. The State's characterization of the notes was not unfair, and the
State did not fail to disclose the existence or nature of the notes to the defense.
Edwardson's Connection to Monroe
Edwardson initially denied knowing anything about the murders, but-after
conversations with his sister and with Monroe-he told law enforcement that he
heard McGarvey confess to the crime. In the months following Edwardson' s
statement implicating McGarvey, Edwardson and Monroe manufactured
methamphetamine together, and the State charged both of them for their
participation in the operation. The State did not disclose the drug connection
between Edwardson and Monroe.
During the state post-conviction hearing, the trial court determined that this
information was irrelevant because Edwardson and Monroe did not produce
methamphetamine together until after Edwardson informed law enforcement about
McGarvey's confession. The Montana Supreme Court agreed, and Judge Lynch
found no error, applying the deference required under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"). The Court finds McGarvey's
objections unpersuasive because McGarvey has presented no evidence
demonstrating that Monroe and Edwardson had even discussed a plan to
manufacture before Edwardson came forward with his story. McGarvey's
argument is merely speculative, and it is insufficient to defeat the deference this
Court must apply in reviewing the State court decision.
Lake County Information
The murder occurred in Flathead County, and Flathead County personnel
investigated and prosecuted the crime. Law enforcement officers in neighboring
Lake County interviewed a woman, Mary Leiptich, who had a "gut instinct" that
another individual, Tony Sanchez, had killed Grant and Nelson. Leiptich gave
some more specific information about Sanchez, too, including his involvement in
dealing drugs, his propensity for violence when a debt was owed to him, and her
fear of him. Lake County officers also interviewed the mother of Sanchez's
children, who told them that Sanchez had threatened to kill her and intimated that
Sanchez may have put another individual in the hospital for that individual's
failure to pay a debt. Nothing in the record indicates that Flathead County
personnel were aware of this evidence, but the two counties did coordinate on the
case to some degree.
The Montana Supreme Court determined that Flathead County personnel
did not fail to disclose any evidence because it did not have this evidence within
its control. It also noted that-even ifthe evidence had been suppressedMcGarvey suffered no prejudice because the evidence was too vague to be
valuable. Judge Lynch found that the Montana Supreme Court's opinion was not
contrary to and did not involve an unreasonable application of clearly established
federal law. The Court agrees.
Neither party is able to definitively support its position regarding Flathead
County's obligation to procure information in the possession of a different county.
Under Kyles v. Whitley, "the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's behalf in the
case, including the police." 514 U.S. 419, 437. The Ninth Circuit has gone a step
further, holding that a federal prosecutor has "possession and control" over
information held by other federal agencies, even when the agency did not
participate in the investigation. United States v. Santiago, 46 F.3d 885, 894. On
the other hand, a federal prosecutor does not have the same control over
information held by state agencies. Id. However, the Ninth Circuit has not
addressed whether a state prosecutor has possession and control over information
held by investigators in another county.
Resolution of this issue hinges on the deferential standard that this Court
must apply under AEDPA. Federal law, as determined by the United States
Supreme Court, does not clearly establish that a state prosecutor in one county has
a duty to discover and disclose evidence held by investigators in another county,
and so the Montana Supreme Court cannot be found to have erred in its analysis.
Moreover, much-though not all-of the information was vague and/or unlikely
to be admissible.
Susan Fox's Letter
Armstrong's mother, Susan Fox, wrote a letter regarding Armstrong's
mental state and sent a copy to the prosecutor who worked on both Armstrong's
and McGarvey's cases. Fox wrote that Armstrong showed signs of damage caused
by electroshock treatment, particularly forgetfulness and inability to handle stress.
She also testified at Armstrong's sentencing, consistent with her letter. Neither
the letter nor the transcript were disclosed to McGarvey.
The Montana Supreme Court determined that no Brady violation occurred
because McGarvey's trial counsel could have found this information on its own.
Judge Lynch found error in that Court's standard, as Brady does not require a
defendant to exercise diligence in finding exculpatory evidence available to the
prosecutor. However, Judge Lynch determined that the error was inconsequential
because no prejudice occurred when the letter would have been unlikely to affect
the resolution of the trial. McGarvey's trial counsel painted Armstrong as a liar,
thief, extortionist, and drunk; they thoroughly impeached Armstrong's credibility,
but the jury believed him nonetheless. Although this evidence was suppressed, the
Court agrees with Judge Lynch that it is unlikely that disclosure would have
affected the trial in such a way as to create a reasonable probability of a different
result at trial. See United States v. Bagley, 473 U.S. 667, 682 (1985).
Ineffective Assistance of Counsel
McGarvey next argues that he received ineffective assistance of counsel at
trial. Judge Lynch determined that the Montana Supreme Court did not err in its
dismissal ofMcGarvey's claims. McGarvey now argues that the magistrate judge
erred by finding that he has no habeas claim arising from his trial counsel's
deficiencies in two areas: (1) their impeachment of Armstrong and Edwardson;
and (2) their failure to hire a forensic expert. The Court discusses both alleged
errors, ultimately agreeing with the magistrate judge that McGarvey has not
demonstrated that the State Court's adjudication of his claims was erroneous.
Impeachment of Armstrong and Edwardson
Neither Armstrong nor Edwardson was an ideal witness. As McGarvey has
argued at each step following trial, each witness failed to come forward with his
story initially, and it would have been reasonable for the jury to discredit the
testimony of each. McGarvey points out that Armstrong gave seven different
versions ofMcGarvey's confession, and each time he told the story, he claimed
that a different group of people had been present to hear McGarvey describe the
murders. Similarly, McGarvey points to Edwardson' s various stories, most
notably that told during his first interview with law enforcement, at which time he
claimed to have heard no confession at all. Edwardson' s recollection was
refreshed only after talking to his sister-who, he claims, told him to do the right
thing-and Monroe-who, he admits, asked him to tell the police that Monroe had
been present for McGarvey's confession. McGarvey argues that his trial counsel
were ineffective in failing to draw out these inconsistencies during crossexamination.
The Montana Supreme Court determined that trial counsel's cross
examination of these two witnesses was attributable to reasonable trial strategy
rather than incompetence. Judge Lynch, applying the deferential standard required
under AEDPA, found no error. As the Montana Supreme Court determined, trial
counsel could reasonably have chosen to avoid the risks of in-depth crossexamination, including repetition of inculpatory and consistent details in
Armstrong's testimony and exposure to McGarvey's wife by Edwardson. The
Court agrees with Judge Lynch, determining that McGarvey has not shown that
"there was no reasonable basis for the state court to deny relief." See Harrington
v. Richter, 562 U.S. 86, 98 (2011).
Failure to Hire a Forensic Expert
At trial, McGarvey's counsel did not call an expert witness to testify about
the forensic evidence. During the post-conviction state proceeding, McGarvey
introduced the evidence of a forensic expert who suggested that Grant's face,
which was badly mangled, was cut off with a knife and not, as the State's expert
claimed, ravaged by one or more of the many pit bulls living on Grant's property.
McGarvey's expert also testified that Grant and Nelson had likely been shot from
different locations, implying that two shooters were present on the scene. If this
testimony had been offered at trial and believed by the jury, it would have refuted
the State's theory regarding how the murders occurred.
The Montana Supreme Court held that McGarvey's trial counsel acted
reasonably in determining that they could present the necessary evidence by crossexamining the State's expert rather than hiring their own. The Court found that,
through cross, McGarvey showed that two shooters could have been on the scene
and effectively highlighted the ambiguity in the testimony of the state's expert. It
also determined that the defense expert's testimony regarding cuts to Grant's face
was not credible, as the state trial court found during the post-conviction hearing.
Judge Lynch recommends that the Court dismiss this claim, finding that,
even if a defense expert could have conceivably made the defense's position
stronger, the Montana Supreme Court did not unreasonably determine that trial
counsel reasonably chose to present their theory through cross rather than direct
examination. Federal law does not clearly require that trial counsel present expert
testimony whenever the state puts an expert on the stand; in fact, the Supreme
Court has refuted that very argument. Harrington v. Richter, 562 U.S. 86,
106-111 (2011 ). The Montana Supreme Court was not unreasonable in denying
McGarvey's claim based on this theory.
Finally, McGarvey argues that, even if no individual error mandates that the
Court to grant his claim for habeas relief, together, the Montana Supreme Court's
errors require reversal of his conviction. However, here no constitutional error
occurred, and reversal is unwarranted.
Certificate of Appealability
McGarvey has not "made substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253. Although the Montana Supreme Court
applied the wrong Brady analysis when it considered the letter written by
Armstrong's mother regarding Armstrong's mental state, there was ultimately no
constitutional error. Additionally, while it is not clearly established whether the
Flathead County prosecutor had any duty to discover information held by Lake
County law enforcement, under AEDPA, the lack of clearly established federal
law requires deference to the State Court's post-conviction opinion. Here, there
are neither close questions nor reason to encourage further proceedings. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A certificate of appealability is
Accordingly, IT IS ORDERED:
The Findings and Recommendations (Doc. 20) is ADOPTED in full.
McGarvey's Petition (Doc. 1) is DENIED for lack of merit.
A certificate of appealability is DENIED.
22~ay ofMarch, 2017.
Dana L. Christensen, Chief Judge
United States District Court
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