Holm v. Kirkegard et al

Filing 55

ORDER Adopting Findings and Recommendations (Doc. 49)in Full. Claims 1 and 2 are DENIED for lack of merit; Because all claims have been decided, the Clerk of Court shall enter by separate document a judgment in favor of Respondents and against Petitioner; and A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 10/8/2019. (HEG)

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

FILED
OCT 09 2019
Clerk, U S Courts
District Of Montana
Missoula Division

BRIAN HOLM,
CV 16--100-M-DLC-JCL
Petitioner,
vs.

ORDER

LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondent.
On October 5, 2018, this Court entered an Order adopting United States
Magistrate Judge Jeremiah C. Lynch's recommendation to dismiss Claims 3, 4,
and 5 of Holm's amended habeas petition. (Doc. 48.) Judge Lynch entered his
Findings and Recommendation regarding Holm's surviving claims on June 6,
2019, recommending that Claims 1 and 2 of the amended petition be denied for
lack of merit. (Doc. 49 at 9.) Through counsel, Holm timely filed objections.
(Doc. 53.) Respondents also object. (Doc. 52.) Consequently, the parties are
entitled to de novo review of those findings and recommendations to which they
have specifically objected. 28 U.S.C. § 636(b)(l)(C). Absent objection, this Court
reviews findings and recommendations for clear error. United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane); Thomas v. Arn, 474 U.S.
140, 149 (1985). Clear error exists if the Court is left with a "definite and firm
conviction that a mistake has been committed." United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000) (citations omitted).
Holm alleges that he is entitled to relief under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"). His petition may be granted
only if the operative state court decision-in this instance, the opinion of the
Montana Supreme Court in Montana v. Holm, 304 P.3d 365 (Mont. 2013)-either:
( 1) "was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States";
or (2) "was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Holm
alleges that two of the Montana Supreme Court's decisions meet this high
standard, challenging that Court's affirmance of the state trial court's (1) denial of
Holm's request for new counsel, and (2) denial of his request for a continuance.
(Doc. 20 at 13, 17-18.)
Judge Lynch recommended denying Claims 1 and 2 for lack of merit. (Doc.
49.) Holm objects as to both claims. Although Judge Lynch recommended
granting relief to Respondents, they nonetheless object to the reasoning set forth in

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the Findings and Recommendation, arguing that Judge Lynch ought to have
applied AEDPA deference instead of looking strictly to the record created in the
state trial court. Given the breadth of the parties' objections-to both the standard
applied and Judge Lynch's analysis-the Court reviews Holm's entitlement to
habeas relief de novo.
FACTUAL BACKGROUND

On the night ofNovember 9, 2010, Holm drove his northbound vehicle
across the southbound lane of Missoula's Brooks Street and onto the sidewalk,
where his vehicle struck and killed pedestrian Brian Beaver. Holm, 304 P.3d at
367. Responding officers found evidence of Holm's consumption of alcohol,
Ambien, hydrocodone, and a prescription antidepressant. Id. At the time, Holm
said that he did not remember the accident. Id.
Public defender Scott Spencer was assigned to the case. Id. at 368. Trial
was initially set for April 13, 2011, but the trial court granted Holm's first motion
to continue and reset the start date for August 3, 2011. Id. On July 8, Holm
moved again to continue trial, citing medical issues, but he withdrew the motion on
July 19. Id. On July 26-just one week later and only eight days before trialHolm appeared in court with both Spencer and a new attorney, Richard Buley, and
requested another continuance to allow Buley to prepare. Id.

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The trial court denied Holm's third continuance request, noting his belief
that Holm was strategically seeking delay. Id. Three days later-now five days
before trial-Holm filed a pro se motion for appointment of different counsel and a
fourth motion for a continuance. Id. Holm argued that Spencer's representation
was ineffective. Id. After a hearing, the Court denied both motions, finding that
Spencer was providing adequate representation and that Holm did not seek a
continuance in good faith but only to delay trial. Id.
A jury convicted Holm of vehicular homicide under the influence on August
5, 2011. (Doc. 27-9.) He was sentenced to 30 years custody with fifteen years
suspended. (Doc. 27-12.)
DISCUSSION

The parties agree that the Court must give deference to the Montana
Supreme Court under AEDPA and may grant Holm's petition only if that Court's
decision: ( 1) "was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States";
or (2) "was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Applying
AEDPA deference, the Court finds that neither claim 1 nor 2 of the Amended
Petition may survive.

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I.

Claim 1: Substitution of Counsel

Holm claims that the Montana Supreme Court unreasonably interpreted the
facts and misapplied United States Supreme Court law when it held that the trial
court conducted an adequate colloquy as to Holm's request for counsel. (Doc. 20
at 13.) He argues that the United States Supreme Court has clearly established a
right to an attorney who "function[ s] in the active role of an advocate" and that the
Montana Supreme Court unreasonably determined that the trial court sufficiently
safeguarded that right. Entsiminger v. Iowa, 386 U.S. 748 (1967). (See id. at 1317.)
The Court assumes for the sake of argument that United States Supreme
Court law clearly establishes that a state trial court must fully investigate a
defendant's dissatisfaction with court-appointed counsel. See Martel v. Clair, 565
U.S. 648 (2012) (setting forth standard for federal habeas petitioners' motions to
substitute counsel). Even under this standard, however, Holm's claim fails.
The Montana Supreme Court held that the trial court "made an adequate
inquiry into [Holm's] claims" regarding Spencer's allegedly ineffective assistance.

Holm, 304 P.3d at 369. Citing to the state court record, it noted that "[t]he court
repeated Holm's concerns to Spencer and asked Spencer to respond." Id. The
Court concluded that, in light of the testimony presented at the hearing, the district

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court did not unreasonably "determin[e] that Holm's complaints about Spencer's
trial strategy were not seemingly substantial and that an additional hearing was
unnecessary." Id. at 370. The Court debunked Holm's claims regarding Spencer's
alleged inadequacy, noting, for example, that Spencer did not ineffectively fail to
subpoena fact witnesses when the state had already subpoenaed those same
witnesses. Id. at 369-70.
The Montana Supreme Court did not misapply or contradict law established
by the United States Supreme Court, and its decision finds adequate support in the
record. Thus, the Court agrees with Judge Lynch that Claim 1 should be denied.
II.

Claim 2: Continuance Request

Holm next argues that the Montana Supreme Court unreasonably interpreted
the facts and misapplied United States Supreme Court law when it held that the
trial court did not err in denying Holm's request for a continuance to retain private
counsel. (Doc. 20 at 17-18.) He contends that the trial judge "insiste[d] upon
expeditiousness in the face of a justifiable request for delay," violating his Sixth
Amendment right to counsel. Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting

Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). (See id. at 17-20.)
The Montana Supreme Court found that the district court did not err in
concluding that Holm had not, in fact, presented a justifiable request for a delay.

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Its decision is neither in conflict with United States Supreme Court law nor
contradicted by the record before it. The Montana Supreme Court reasoned: ( 1)
that Holm's explanation for his newly discovered need for new counsel-a delay
in learning of the time of his post-accident blood draw-was unreasonable; (2) that
Holm had previously moved, both successfully and unsuccessfully, for
continuances; and (3) that Holm had more than adequate time to seek new counsel
prior to his final continuance request. The Court cannot agree with Holm that the
Montana Supreme Court endorsed the trial court's "myopic insistence upon
expeditiousness in the face of a justifiable request for delay." Ungar, 376 U.S. at
589. Rather, that Court properly recognized the rights implicated by Holm's
request and, looking to the record before it, determined that the trial court's denial
of a last-minute continuance did not violate those rights.
The Court therefore agrees with Judge Lynch that Claim 2 should be denied
for lack of merit. Section 2254(d)' s high threshold for habeas relief is unmet.
Finally, Holm argues that he is "[a]t the very least" entitled to a certificate of
appealability. (Doc. 53 at 11.) The Court disagrees. As explained above,
§ 2254(d) squarely covers Holm's claims; applying the appropriate standard, the
Court finds that Holm has not "made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). "[J]urists of reason could [not]

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disagree with the ... resolution of [Holm's] constitutional claims" when those
claims are reviewed with the deference owed to the Montana Supreme Court.
Reviewing the remaining portions of Judge Lynch's Findings and
Recommendation for clear error and finding none,
IT IS ORDERED:
(1) Judge Lynch's Findings and Recommendation (Doc. 49) is ADOPTED
IN FULL;
(2) Claims 1 and 2 are DENIED for lack of merit;
(3) Because all claims have been decided, the Clerk of Court shall enter by
separate document a judgment in favor of Respondents and against
Petitioner; and
(4) A certificate of appealability is DENIED.
DATED this l!, ¼ day of October, 2019.

Dana L. Christensen, Chief Judge
United States District Court

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