Clark v. Bertsch

Filing 48

ORDER ADOPTING 43 REPORT AND RECOMMENDATIONS; granting 23 Motion to Dismiss; and denying 26 Motion for Hearing by Chief Judge Ralph R. Erickson.(SH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
Branden T. Clark,
Petitioner,
-vsLeann K. Bertsch,
Respondent.

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Case No. 3:12-cv-02

ORDER ADOPTING REPORT AND
RECOMMENDATION

The Court has received a Report and Recommendation from the Honorable Karen K. Klein,
United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending that Respondent Leann
K. Bertsch’s motion to dismiss be granted; that Petitioner Branden T. Clark’s (hereafter “Clark”)
amended petition for habeas relief be dismissed with prejudice; and that Clark’s motion for an
evidentiary hearing be denied (Doc. #43). Clark has filed objections to the Report and
Recommendation, essentially asserting that the magistrate judge erred in her analysis of all issues.
The Court, therefore, has conducted a de novo review of all issues raised by Clark, and reaches the
same result as the magistrate judge.
I.

Background
The State of North Dakota charged Clark with felony theft of property and issuing a check

without an account. In 2009, he was sentenced to four years’ incarceration for the felony theft and
a concurrent thirty days for the misdemeanor bad check conviction. In 2011, this Court vacated these
convictions on the ground that the Due Process Clause of the Fourteenth Amendment prohibits a
court from imprisoning a person who has not entered a guilty plea or been convicted following a
trial. The Court directed that Clark be released from custody upon completion of his other sentence,

or be retried within 90 days of the date of the Court’s order vacating the convictions.
The State retried Clark for theft of property. The jury found Clark guilty. The State
requested a habitual offender sentence enhancement, which the judge applied when he sentenced
Clark to eight years of incarceration. Clark appealed his conviction to the North Dakota Supreme
Court. The Supreme Court affirmed the conviction and sentence, concluding (1) the trial court did
not err in refusing to give Clark’s proposed honest-belief-defense jury instruction; (2) the trial court
did not err in instructing the jury on the elements of theft of property by mistake; (3) there was
sufficient evidence to support the conviction; (4) the eight year sentence was not improper or
excessive; and (5) there was no Brady v. Maryland, 373 U.S. 83 (1963) violation or error in
admitting the original, unmarked copies of the sales invoices. State v. Clark, 818 N.W.2d 739, 74246 (N.D. 2012). The Supreme Court also rejected Clark’s supplemental issues that were not raised
before the trial court, concluding the additional issues raised by Clark did not rise to the level of
obvious error. Id. at 746-47.
Before the Court is Clark’s amended petition for habeas corpus relief under 28 U.S.C. §
2254. Clark alleges ten grounds for relief: (1) the state violated Brady v. Maryland, 373 U.S. 83
(1963) when it disclosed redacted invoices instead of the original invoices introduced at trial; (2) the
state violated his constitutional right to a speedy trial because of the amount of time that passed
between Clark’s original conviction in 2009 and the retrial in 2011; (3) the trial court improperly
instructed the jury and failed to give Clark’s proposed jury instruction, which violated his right to
due process; (4) the state statute under which Clark was convicted is unconstitutional as applied to
him; (5) an improper jury instruction forced Clark to give up his Fifth Amendment right to remain
silent; (6) there was insufficient evidence to support the jury’s verdict; (7) the prosecution and Clark
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stipulated to resolution of the case but the state district judge unilaterally, unfairly, and with bias
required there be a trial; (8) the state prosecutor was vindictive in seeking an enhanced sentence
under the habitual offender statute and the state district judge was vindictive in sentencing Clark to
a harsher sentence; (9) Clark was denied access to the Court and access to legal materials while
awaiting retrial; and (10) the state district judge violated the Eighth Amendment’s prohibition against
excessive bail (Docs. #18, 19).
II.

Analysis
A.

“Fairly Presented” Claims

“When a claim has been adjudicated on the merits in state court, habeas corpus relief is
warranted only if the state court proceeding resulted in (1) a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law, as determined by the
[United States] Supreme Court, or (2) a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.”
Musser v. Mapes, 718 F.3d 996, 999 (8th Cir. 2013) (quotation and citation omitted).
1.

Brady Claim

Clark has failed to articulate how the State’s copies of the invoices are exculpatory or
favorable to him. Moreover, the State’s copies of the invoices were authenticated at trial and
Clark had an opportunity to question the witnesses about the invoices and the handwritten notes.
There is nothing in the record to suggest the North Dakota Supreme Court’s decision was
contrary to or an unreasonable application of federal law, or the decision was based on an
unreasonable determination of the facts. Clark’s alleged claim of a Brady violation lacks merit.

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2.

Sufficiency of the Evidence

Clark contends it was not his “intent to deprive ACME Tools of the generator.” He
asserts that the jury could convict him on evidence that someone else made a mistake by
mistakenly ringing up the purchase under the wrong account. Upon review of the trial court
transcript, there was no evidence that Clark attempted to pay for the generator or clear up a
billing error. Acme was unable to contact Clark using the phone number on the check and two
law enforcement officers tried unsuccessfully to contact Clark. A rational trier of fact could have
found that after Clark purchased the tools through the Clark Construction account which he was
not authorized to use, he knowingly charged the generator to the same account in an effort to
avoid paying for the generator. In doing so, Clark took unauthorized control of the generator
with the intent to deprive Acme. There is sufficient evidence to sustain Clark’s conviction, and
no evidence demonstrating that he was convicted because of someone else’s mistake.
3.

Judicial Vindictiveness

Clark contends the North Dakota Supreme Court’s analysis is defective because the
sentencing transcript was not before the appellate court. Even assuming the court did not have
the sentencing transcript, Clark has failed to articulate how or why the sentencing transcript
makes a difference. The undisputed evidence in the record demonstrates that Clark’s sentence
was greater after his trial because he was sentenced under North Dakota’s habitual offender
statute, which the state had not requested at the first sentencing hearing. Clark was informed at
his arraignment that the state would seek application of the habitual offender statute in the
absence of a plea agreement. Clark responded to the notice. Clark was well aware that he faced
an increased sentence if he was convicted following a trial. Clark cannot show that the
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sentencing judge was vindictive in sentencing him to a harsher sentence. Rather, the state elected
to proceed under the habitual offender statute, which the Court applied at the time of sentencing.
Clark has failed to demonstrate that the North Dakota Supreme Court’s decision is contrary to or
an unreasonable application of federal law, or the decision is based on an unreasonable
determination of the facts. Clark is not entitled to habeas relief for his judicial vindictiveness
claim.
4.

Jury Instructions

Clark claims that the jury instruction for theft of property by mistake was erroneous. To
the extent that Clark has raised the same claim before the state court, Clark has pointed to no
evidence upon which this Court can find that the North Dakota Supreme Court’s decision
regarding the jury instructions is contrary to or an unreasonable application of federal law, or the
decision is based on an unreasonable determination of the facts. Clark is not entitled to habeas
relief on the ground that the jury instruction for theft of property by mistake was erroneous.
B.

Claims Procedurally Defaulted
1.

Jury Instructions

Clark asserts that the jury instruction for theft of property violates due process. While
Clark’s claim might rest upon the same “facts and legal theories” that he presented to the state
court, he failed to “fairly present” his claim to the North Dakota Supreme Court. In order to
“fairly present” a claim, a petitioner must refer to a specific constitutional right, a particular
constitutional provision, a federal constitutional case, or a state case raising a pertinent federal
constitutional issue when raising the issue in the state court. Martin v. Solem, 801 F.2d 324, 330
(8th Cir. 1986). Clark did not articulate a due process claim to the North Dakota Supreme Court,
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and, therefore, he is not entitled to federal habeas relief on his claim. See Murphy v. King, 652
F.3d 845, 848 (8th Cir. 2011) (before seeking federal habeas relief, a petitioner must fairly
present his federal claim to the state courts).
2.

Constitutionality of State Statute

Clark did not present to the North Dakota Supreme Court his claim that the state statute
for theft of property by mistake is unconstitutional as applied to him. Clark asserts that he raised
this claim in his appellate brief (Doc. #45, p. 5). The Court has reviewed Clark’s brief and finds
no reference to this claim. Rather, Clark argues in a footnote that the statute for theft of property
by mistake does not apply to his case (Exh. 7, p. 15 of 27 n.9). He makes no mention of the
alleged unconstitutionality of the statute. Clark did not fairly present his constitutional claim,
and, therefore, he is not entitled to federal habeas relief on his claim. See Murphy, 652 F.3d at
848.
3.

Other Procedurally Defaulted Claims

Clark asserts a number of claims that were first raised before the state court in a
supplemental brief. These claims include grounds two, five, seven, eight (prosecutorial
vindictiveness), nine, and ten. The North Dakota Supreme declined to address issues raised for
the first time on appeal and determined that none of the claims rose to the level of obvious error.
Clark contends this Court’s failure to consider the claims will result in “a miscarriage of justice.”
(Doc. #45, p. 6).
Clark contends this Court can review procedurally defaulted claims for obvious error.
The Eighth Circuit has noted the split of authority on whether plain error review “cures” a
procedural default. Shelton v. Purkett, 563 F.3d 404, 408 (8th Cir. 2008). The North Dakota
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Supreme Court did not analyze the merits of Clark’s “supplemental” claims and it did not rely on
federal law when rejecting his claims. Under the circumstances, the Court finds Clark’s claims
are procedurally defaulted and not entitled to plain error review.
Federal habeas review of defaulted claims is barred unless the petitioner can demonstrate
“cause for the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.” Murphy, 652 F.3d at 849. Clark has not even attempted to show cause for the default,
and there is no evidence in the record from which this Court can find cause. Because he has not
established cause for the default, the question of prejudice need not be reached. Id.
Turning to the second avenue for relief–the miscarriage-of-justice- exception–“a habeas
petitioner must present new evidence that affirmatively demonstrates that he is innocent of the
crime for which he was convicted.” Id. (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir.
2006)). There is sufficient evidence in the record to support the conviction and Clark has failed
to present any new evidence that affirmatively demonstrates his innocence. Clark’s claims raised
in grounds two, five, seven, eight (prosecutorial vindictiveness), nine, and ten are procedurally
defaulted and he has not demonstrated cause to excuse the default or a miscarriage of justice.
Clark is not entitled to federal habeas relief on these claims.
C.

Evidentiary Hearing

Clark contends he is entitled to an evidentiary hearing on claims seven and eight. He
contends “an evidentiary examination of Clark’s trial counsel will reveal statements made by the
state district court judge, during impromptu meetings in chambers, that shows bias and that Clark
did not receive a fair trial.” (Doc. #45, p. 8). Section 2254(e)(2), with limited exceptions,
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requires a habeas petitioner to develop the factual basis of his claims in the state court
proceedings. Clark has not demonstrated an impediment that prevented him from developing the
facts underlying his claims in state court. Moreover, Clark has not shown that in the absence of
the alleged constitutional errors, no reasonable factfinder would have found him guilty. The
Court finds Clark is not entitled to an evidentiary hearing. His motion for a hearing is DENIED.
III.

Decision
After considering the magistrate judge’s Report and Recommendation, conducting a de

novo review of Clark’s objections, and reviewing the entire file, the Court finds the magistrate
judge’s analysis is correct and hereby adopts the Report and recommendation in its entirety. For
the reasons set forth therein as well as in this Order, IT IS HEREBY ORDERED as follows:
(1)

Respondent’s motion to dismiss (Doc. #23) is GRANTED.

(2)

Clark’s motion for a hearing (Doc. #26) is DENIED.

(3)

Clark’s petition for habeas relief (Doc. #18) is DISMISSED WITH
PREJUDICE.

(4)

Clark may appeal in forma pauperis because such an appeal would not be
frivolous.

(5)

Clark is granted a certificate of appealability as to claims in grounds two, five,
seven, eight (prosecutorial vindictiveness), nine, and ten because there is a split in
the Eighth Circuit on whether plain error review cures procedural default.

IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 27th day of September, 2013.
/s/ Ralph R. Erickson
Ralph R. Erickson, Chief Judge
United States District Court
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