Garcia v. Bertsch

Filing 9

ORDER by Magistrate Judge Charles S. Miller, Jr. dismissing without prejudice 6 WRIT OF HABEAS CORPUS (State). (KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Barry C. Garcia,

)
)
Petitioner,
)
)
ORDER DISMISSING § 2254
vs.
)
PETITION WITHOUT PREJUDICE
)
Leann K. Bertsch, Director of the
)
North Dakota Department of Corrections, )
Case No. 1:13-cv-021
)
Respondent.
)
______________________________________________________________________________
On February 11, 2013, the petitioner, Barry C. Garcia (“Garcia”), filed a Petition under 28
U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. On March 5, 2013, Garcia
filed an amended petition. For the reasons set forth below, the court orders that the amended petition
be dismissed without prejudice for lack of jurisdiction.1
I.

BACKGROUND
A.

Prior state proceedings

Garcia was charged in state court with two offenses alleged to have occurred in West Fargo,
North Dakota, on November 15, 1995: (1) aggravated assault; and (2) the murder of Cherryl
Tendeland. Although Garcia was sixteen years old at the time, he was tried as an adult. The jury
found him guilty of all charges. On July 2, 1996, the state district court sentenced him to life
imprisonment without parole on the murder charge and a concurrent five-year term of imprisonment
on the assault charge.

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Garcia filed a consent to the handling of his petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
(Doc. Nos. 3-4).

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Garcia appealed his conviction and sentence to the North Dakota Supreme Court. In his
appeal, he raised two challenges to his sentence of life without parole. His first argument was that:
A sentence of life without the possibility of parole constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment where no statutory
standards exist to provide a meaningful basis for imposing the more severe sentence
as opposed to life with the possibility for parole.
State v. Garcia, Supreme Court No. 960180, Appellant’s Brief filed Oct. 18, 1996, p. 21 (“Garcia
State Appellate Brief”) (copy filed with this court in Garcia v. Bertsch, No. A3-04-075, as Ex. 2 at
Doc. No. 21). Notably, Garcia did not explicitly argue that his sentence of life without parole was
categorically unconstitutional because he was juvenile. Id. Further, this is how the North Dakota
Supreme Court understood Garcia’s argument, when it characterized his first grounds for challenge
of his sentence as follows:
[¶ 48] Here, Garcia does not assert the maximum punishment of a life
sentence without the possibility of parole is disproportional to the crime of class AA
felony murder. Compare People v. Launsburry, 217 Mich.App. 358, 551 N.W.2d
460, 463-464 (1996) (life sentence without possibility of parole for 16-year-old
defendant was not cruel or unusual punishment). Nor does Garcia assert, assuming
for purposes of argument that Solem remains good law, see Harmelin v. Michigan,
501 U.S. 957, 994-996, 111 S.Ct. 2680, 2701-2702, 115 L.Ed.2d 836 (1991), that his
sentence fails the proportionality requirement. Rather, Garcia argues the Eighth
Amendment is violated here because, in authorizing the maximum penalty of life
imprisonment without parole for class AA felonies, see NDCC 12.1-32-01(1), the
legislature “failed to provide any guidelines or criteria to guide a judge in
determining whether the most severe penalty should be imposed.”
[¶ 49] Garcia seeks to inject all capital punishment standards into non-capital
crimes. He relies on two capital punishment cases for his argument. In McCleskey
v. Kemp, 481 U.S. 279, 303, 107 S.Ct. 1756, 1773, 95 L.Ed.2d 262 (1987), the
Supreme Court said, to impose the death penalty, a state must narrow the class of
murderers subject to capital punishment by giving specific and detailed guidance for
the sentence. The McCleskey Court held the discretion allowed decisionmakers in
the Georgia capital sentencing scheme did not violate the Eighth Amendment by
leaving a constitutionally significant risk of racial bias. In the other case, California
v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987), the
Supreme Court said the “Constitution . . . requires that death penalty statutes be
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structured so as to prevent the penalty from being administered in an arbitrary and
unpredictable fashion.” In Brown, 479 U.S. at 540, 107 S.Ct. at 838, the Court held
that, during the penalty phase of a capital murder trial, an instruction requiring that
jurors “ ‘not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice,
public opinion or public feeling’ ” did not violate the defendant’s Eighth Amendment
rights.
State v. Garcia, 1997 ND 60, ¶¶ 48-49, 561 N.W.2d 599.
The North Dakota Supreme Court rejected Garcia’s first argument for why his sentence
violated the Eighth Amendment, concluding that it ignored the “clear holding” of the United States
Supreme Court in Harmelin v. Michigan, 501 U.S. 957 (1991), that any standards required by the
cases Garcia relied upon were limited to death penalty cases. State v. Garcia, 1997 ND 60, ¶ 50.
And, while that may have disposed of the claim, the court went on to discuss the statutory factors
that North Dakota courts are permitted to consider in sentencing in any criminal case and concluded
that they had not been misapplied by the trial court. Id. at ¶¶ 51-52. The court then stated in
conclusion:
[¶ 53] A sentence within the minimum and maximum statutory limits is
within the discretion of the trial court, and it will not be set aside unless it exceeds
the statutory limit or unless the trial court substantially relied on an impermissible
sentencing factor. State v. Jacobson, 419 N.W.2d 899, 903 (N.D.1988). This
sentence is within the statutory range, and Garcia has not shown the trial court
substantially relied on an impermissible factor in sentencing him. See State v.
Manhattan, 453 N.W.2d 758, 760 (N.D.1990). We conclude Garcia’s sentence to life
imprisonment without parole is not cruel and unusual punishment within the meaning
of the Eighth Amendment.
Id. at ¶ 53.
The second challenge that Garcia raised to his sentence on direct appeal was that the trial
judge should have required a presentation of mitigating sentencing information before sentencing
him to life without parole, particularly since he was juvenile. Garcia contended that sentencing him
to life without parole in the absence of consideration of any mitigating sentencing information
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violated due process and resulted in a sentence that was cruel and unusual under the Eighth
Amendment. Garcia State Appellate Brief, pp. 26-29.
In considering this argument, the North Dakota Supreme Court agreed that neither Garcia
(who was still a juvenile) nor his lawyer presented any evidence of mitigating circumstances and
that the presentence report mentioned none. State v. Garcia, 1997 ND 60, ¶ 55. Nevertheless, the
court rejected this challenge to Garcia’s sentence, holding that neither the Fourteenth Amendment
nor the Eighth Amendment required the trial court to affirmatively seek out mitigating sentencing
information. In reaching this conclusion, the court relied upon case law placing the burden of
presenting mitigating sentencing information upon the defendant, but without any discussion of
whether the requirements should be different in the case of a juvenile, particularly one that is
sentenced to life without parole. Id. at ¶¶ 54-59.
Following the state court denial of his direct appeal, Garcia filed a petition for writ of
certiorari with the United States Supreme Court. Garcia’s petition was denied on October 6, 1997.
Garcia v. North Dakota, 522 U.S. 874 (1997).
On March 20, 1998, Garcia filed an application for post-conviction relief in state district
court in which he asserted, among other things, that his attorney was ineffective at the time of
sentencing due to the failure to present mitigating sentencing information in the form of testimony
from persons willing to express an opinion as to Garcia’s otherwise good character and information
about his troubled upbringing, including his growing up in poverty and lack of a stable family
environment. In addition, he also repeated the earlier claim made on direct appeal that the trial
court had erred in not inquiring about mitigating information. The district court, in a series of

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rulings, dismissed both of these claims as well as the rest of Garcia’s petition. See Garcia v.
Bertsch, No. A3-04-075, 2005 WL 4717675, at *4 (D.N.D. Sept. 12, 2005).
Garcia appealed the denial of his petition for post-conviction relief. After additional
proceedings before the district court, the North Dakota Supreme Court affirmed the district court’s
denial of Garcia’s petition for post-conviction relief. Garcia v. State, 2004 ND 81, 678 N.W.2d
568. With respect to the ineffective assistance claim, the North Dakota Supreme Court concluded,
somewhat contrary to what it had stated in its earlier opinion on direct appeal, that there was some
mitigating information presented in the presentence report. Id. at ¶20. The court then went on to
conclude that, even if counsel was ineffective in not presenting more, it would not have made a
difference since the record was clear that the sentencing judge, in not providing an opportunity for
parole in Garcia’s sentence, focused primarily upon the heinous nature of the offense and the lack
of any apology or acceptance of responsibility by Garcia. Id. at ¶¶ 18-20.
B.

Garcia’s first § 2254 petition

On May 3, 2004, Garcia filed a petition for habeas corpus relief in the United States District
Court for the Southern District of Illinois. He asserted eight grounds for relief, including (1) the
claim of ineffective assistance of counsel in failing to present mitigating sentencing information
asserted in his state postconviction proceeding and (2) the claim that his sentence of life without
parole violated the Eighth Amendment based on the twin arguments asserted in his state direct
appeal, i.e., the lack of statutory standards for the imposition of such a sentence and the failure of
the sentencing judge to seek out mitigating sentencing information.
Garcia’s petition was transferred to this court, which dismissed Garcia’s petition on the
merits with prejudice. See Garcia v. Bertsch, Case No. 3:04-cv-075, Doc. No. 40 (adopting Report

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and Recommendation at Doc. No. 34 and reported at Garcia v. Bertsch, 2005 WL 4717675). With
respect to the ineffective assistance claim, the court concluded that the North Dakota Supreme
Court’s determination that Garcia had not proved prejudice was not an unreasonable one, given the
reasons expressed by the trial judge for his sentence. Garcia v. Bertsch, 2005 WL 4717675, at ¶¶
22-24. The court did, however, grant a certificate of appealability on the issue. As for the Eighth
Amendment claim, the court concluded that the North Dakota Supreme Court’s denial of Garcia’s
two arguments was neither contrary to nor an unreasonable application of prior United States
Supreme Court precedent and did not grant a certificate appealability as to that claim. Id. at ¶¶ 3233.
Garcia appealed on the points for which the court granted a certificate appealability, and the
Eighth Circuit affirmed the court’s dismissal of his habeas petition. Garcia v. Bertsch, 470 F.3d 748
(8th Cir. 2006). With respect to the ineffective assistance claim, the Eighth Circuit agreed that the
North Dakota Supreme Court’s resolution of that issue based on lack of prejudice was not
objectively unreasonable. Id. at 756-57.
Garcia next filed a petition for writ of certiorari, which was denied by the United States
Supreme Court on June 11, 2007. Garcia v. Bertsch, 551 U.S. 1116 (2007).
C.

Garcia’s present (second) petition for § 2254 relief

On February11, 2013, Garcia, proceeding pro se, commenced this proceeding by filing a
second petition for § 2254 relief. (Doc. No. 2). In the petition, Garcia appears to have claimed that
his sentence of life without parole was cruel and unusual because he was juvenile, citing Miller v.
Alabama, __ U.S. __, 132 S.Ct. 2455 (2012).2
2

In Miller v. Alabama, the majority applied the Eighth Amendment categorical proportionality analysis that
the Supreme Court had previously reserved for death-penalty cases, and more recently applied in Graham v. Florida, __

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In addition, Garcia went on to express his belief that the sentencing judge did not allow for
the possibility of parole in his sentence because he had failed at the time of sentencing to speak out
and express remorse for what he had done. He stated the reasons why he did not speak out were his
youth and that he was advised by his attorney not to speak. Because of these additional allegations,
it was unclear whether Garcia was attempting to assert a Sixth Amendment claim of ineffective
assistance of counsel in addition to the Eighth Amendment claim that his sentence was cruel and
unusual because he was juvenile.
Before the court could screen Garcia’s petition, he filed an amended petition, which is even
more problematic in terms of what is being claimed. (Doc. No. 6). Based on its particular wording,
it is now unclear whether Garcia is claiming that his sentence of life without parole was
categorically cruel and unusual because he was juvenile and if not, what exactly his Eighth
Amendment claim is based on his citation to Miller v. Alabama, supra. Also, it remains unclear
whether Garcia is attempting to make any other claims, including a claim of ineffective assistance
of counsel at the time of sentencing.3

U.S.__, 130 S.Ct. 2011 (2010), to sentences of life without parole for juveniles convicted of non-homicide offenses, to
mandatory sentences of life without parole for juveniles in homicide cases. This case is different from Miller v. Alabama
in that the sentencing judge here was not required by state law to impose a sentence that denied the possibility of parole
when he sentenced Garcia, i.e., he could have sentenced him to life imprisonment with the possibility of parole. See
N.D.C.C. § 12.1-32-01. That being said, the reasons given by the controlling opinions in Graham and Miller for why
juveniles should be treated differently from adults in this context arguably could be extended to life sentences for
juveniles in homicide cases that foreclose a later opportunity for parole and whether the Supreme Court so concludes
in future cases remains to be seen. E.g., Miller v. Alabama, 132 S.Ct. at 2489-90 (Alito & Scalia, JJ., dissenting)
(“Having held in Graham that a trial judge with discretionary sentencing authority may not impose a sentence of life
without parole on a minor who has committed a nonhomicide offense, the Justices in the majority may soon extend that
holding to minors who commit murder. We will see.”).
3

If at some point, Garcia intends to make an additional claim, such as for ineffective assistance of counsel,
he would need to be more specific, including alleging his Sixth Amendment rights were violated or citing to a case that
invokes the governing federal constitutional right.

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II.

DISCUSSION

The court must determine as a threshold matter whether it has jurisdiction to hear Garcia’s
current amended § 2254 petition given his earlier 2004 petition and the requirements of 28 U.S.C.
§ 2244(b)(3)(A), which is a part of the Antiterrorism and Effective Death Penalty Act or “AEDPA.”
Under § 2244(b)(3)(A), any petition that is “second or successive” must be approved by the
appropriate federal court of appeals (in this case the Eighth Circuit) before the petition can be
considered by a federal district court.4 See e.g., Bell v. North Dakota, 567 F. Supp. 2d 1130, 1135
(D.N.D. 2008) (“It is well-established that if a prisoner files a successive habeas corpus petition in
federal district court without having obtained authorization to do so from the Court of Appeals, the
district court must dismiss the case for want of subject matter jurisdiction.”); cf. Felker v. Turpin,
518 U.S. 651, 656-58 (1996).
Because AEDPA does not define “second or successive,” a number of federal circuit courts,
including the Eighth Circuit, have held that courts must look to pre-AEDPA abuse-of-writ
principles. Crouch v. Norris, 251 F.3d 720, 723-725 (8th Cir. 2001); Vancleave v. Norris, 150 F.3d

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Section 2244(b), Title 28, reads as follows:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was
not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through
the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application.
(italics added).

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926, 927-928 & n.2 (8th Cir. 1998); see generally Benchoff v. Colleran, 404 F.3d 812, 815-817 (3d
Cir. 2005). Applying these principles, a habeas petition will generally be considered “second or
successive” if the claims were presented or could have been presented in an earlier petition that has
been denied on the merits. Crouch v. Norris, 251 F.3d at 725; see also Benton v. Washington, 106
F.3d 162, 164 (7th Cir. 1996). However, a habeas petition will generally not be considered “second
or successive” when the prior petition has been dismissed without prejudice for non-merit reasons
(e.g., failure to exhaust state remedies, failure to comply with technical requirements, rejection of
the petition because it is unintelligible, etc.) or when the claims could not have been included in the
prior petition because the challenged conduct had not yet occurred. Id.
In this case, the claims asserted by Garcia in his 2004 petition were denied on the merits.
Furthermore, at the time he filed his 2004 petition, Garcia knew that he had been sentenced to life
without the possibility of parole for conduct that occurred when he was juvenile and knew the trial
court’s reasoning for imposing that sentence. Thus, for AEDPA purposes, Garcia’s instant claim
or claims were ripe at the time he filed his initial petition. Riley v. Palakovich, No. 05-CV-4541,
2012 WL 4473207, at **3-4 (E.D. Pa. Aug. 30, 2012) (“Although the United States Supreme Court
did not declare mandatory sentences of life without parole for juveniles unconstitutional until June
25, 2012, a change in controlling law does not make a previously known, but unasserted claim
unripe.”). Consequently, the amended petition now before the court is clearly a “second or
successive” petition within the meaning of § 2244(b), and the court is required to dismiss it. See id.;
see also Lohnes v. Weber, No. CIV. 12-4196, 2013 WL 164243, at *1 (D.S.D. Jan. 15, 2013)
(adopting magistrate judge’s recommendation at 2012 WL 6863212 (D.S.D. Dec. 3, 2012), and
dismissing a defendant’s habeas petition without prejudice pursuant to 28 U.S.C. § 2244(b)). In

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other words, if Garcia wishes to proceed with a second petition for habeas relief, he must first obtain
federal circuit court approval, which for him here would be the United States Court of Appeals for
the Eighth Circuit.
III.

CONCLUSION
Garcia’s amended petition seeking relief pursuant to 28 U.S.C. § 2254 (Doc. No. 6) is

DISMISSED WITHOUT PREJUDICE because of lack of subject matter jurisdiction. 5 Further,
if Garcia does proceed to seek the Eighth Circuit’s permission, he may want to consider preparing
a new petition that more clearly expresses what his claims are, including whether he is arguing that
a discretionary sentence of life without parole for a juvenile violates the Eighth Amendment based
on an extension of the reasoning employed in Miller v. Alabama, supra, and the cases cited in that
opinion, and/or whether he is also attempting to bring a new claim of ineffective assistance of
counsel at the time of sentencing in violation of the Sixth Amendment based on the alleged advice
to remain silent at sentencing.
IT IS SO ORDERED.

5

Based on the history of Garcia’s prior proceedings as set forth earlier, there may be some question whether
he has properly exhausted in the state courts the claims he may be attempting to assert in his present petition. See e.g.,
Lohnes v. Weber, 2013 WL 164243 at *1 (finding two procedural barriers preventing the court’s consideration of a
petitioner’s Miller v. Alabama claim: (1) his failure to exhaust his state remedies; and (2) his failure to obtain the Eighth
Circuit’s permission to file a second or successive petition). As a general rule, a petitioner seeking a writ of habeas
corpus under § 2254 must first exhaust his available state remedies. 28 U.S.C. § 2254(b)(1)(A); see Cone v. Bell, 556
U.S. 449, 465 (2009). The doctrine of exhaustion requires “as a matter of comity, federal courts should not consider a
claim in a habeas corpus petition until after the state courts have had an opportunity to act.” Mellott v. Purkett, 63 F.3d
781, 784 (8th Cir. 1995) (quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)). Further, while the defenses of res judicata
and misuse of process under N.D.C.C. § 29-32.1-12(2)-(3) are generally invoked to bar the filing of multiple state
petitions for postconviction relief in North Dakota, there is an exception under the statute if the petitioner has a justifiable
excuse for not having raised a claim earlier. And, it may be that the North Dakota Supreme Court would consider as
a justifiable excuse the change in landscape governing the criminal sentencing of juveniles as enunciated by the United
States Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 130 S.Ct. 2011 (2010), and Miller
v. Alabama, supra, all of which were decided after the North Dakota Supreme Court denied Garcia’s direct and postconviction appeals.

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Dated this 12th day of April, 2013.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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