Opinion
Cause No. CV-04-032-M-LBE.
May 24, 2006
ORDER AND FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Petitioner Ernest Wilcock's Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Dkt. # 1) and Respondent's Motion to File an Exhibit Under Seal. (Dkt. # 15). Petitioner is challenging the sentence he received based on his 1998 guilty plea to sexual intercourse without consent.
The Court previously determined that the procedural default issue coincided with the merits of Mr. Wilcock's underlying claims. The Court also examined the statute of limitations issue and concluded that to make a final determination on the issue would require an evidentiary hearing, the appointment of counsel, and the issuance of subpoenas to several persons, including inmates. Accordingly, the Court served the petition upon Respondent and required an Answer. Respondent has filed an Answer (Dkt. # 12) and Petitioner has filed a Traverse. (Dkt. # 14). The Court finds that this case can be decided on the merits and therefore will not address the procedural default or statute of limitations issues any further.
I. MOTION TO FILE EXHIBIT UNDER SEAL
Respondent has filed a motion to file the Pre-Sentence Investigation, Pre-Sentence Addendum and Petitioner's Sexual Offender Amenability Evaluation under seal. (Dkt. # 15). Respondent contends that these documents were deemed confidential and sealed from general public viewing in the state court.
The Court agrees this material should be filed confidentially and will direct the Clerk of Court to maintain these documents under seal.
II. FACTUAL AND PROCEDURAL HISTORY
In February 1998, Petitioner pled guilty and was convicted of sexual intercourse without consent. Petitioner was sentenced on May 18, 1998 to eighty years in prison with thirty years suspended.
On January 31, 2003, Petitioner filed a motion to file an out of time appeal and the Montana Supreme Court remanded the matter to the district court for an evidentiary hearing to determine why counsel had not filed an appeal. The district court found that trial counsel did not believe there were any obvious appealable issues, that counsel was responsive to Petitioner's inquiries and that no evidence existed that Petitioner requested in a timely fashion that counsel file an appeal on his behalf. (Dkt. # 12, Exhibit H). Based on these findings, the Montana Supreme Court on November 25, 2003 denied Petitioner's motion. (Dkt. # 12, Exhibit I).
III. LEGAL STANDARD
This action is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999).
AEDPA "modifies the role of federal habeas courts in reviewing" habeas petitions. Williams v. Taylor, 529 U.S. 362, 403 (2000) (O'Connor, J., concurring). "The Supreme Court has said that § 2254(d)(1) imposes a highly deferential standard for evaluating state-court rulings,' and demands that state court decisions be given the benefit of the doubt.'" Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (citing Lindh, 521 U.S. at 333 n. 7 and Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 360 (2002) (per curiam)).
Following the AEDPA's enactment, 28 U.S.C. § 2254(d) now reads as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"A state court's decision is `contrary to' federal law if the state court (1) applies a rule that contradicts the governing law' set forth in Supreme Court case authority or (2) applies controlling law to a set of facts that are materially indistinguishable' from a Supreme Court decision but nevertheless reaches a different result." Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1169 (9th Cir. 2003) (citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)).
"A state court's decision is an unreasonable application' of federal law if it is objectively unreasonable,' whichrequires the state court decision to be more than incorrect or erroneous.' Thus, an unreasonable application is different from an incorrect one.'" Id. at 1169-1170 (citing Lockyer, 538 U.S. at 75 and Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1850 (2002)).
With regard to factual issues, habeas relief can only be granted if the adjudication of the claim resulted in a decision that 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)(2). "As to more debatable factual determinations, the care with which the state court considered the subject may be important." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) (en banc) cert. denied 522 U.S. 1008 (1997) overruled on other grounds by Lindh, 521 U.S. 320. Further, AEDPA directs that factual findings of the state court be granted a presumption of correctness that can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);Jeffries, 114 F.3d at 1499-1500.
IV. ANALYSIS
Petitioner claims that his counsel's failure to file an appeal of Petitioner's sentence denied him effective assistance of counsel (Ground 1); denied him his right to access to the courts (Ground 2); and denied him his right to a direct appeal (Ground 3).
In its Order denying Petitioner's Motion for an Out of Time Appeal, the Montana Supreme Court recited the factual findings made by the district court and then ordered that the motion for out of time appeal was denied. Neither the district court nor the Montana Supreme Court provided any written legal analysis of Petitioner's claims.
A defendant claiming ineffective assistance of counsel must show (1) that counsel's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) that counsel's deficient performance prejudiced the defendant. Id., at 694, 104 S.Ct. 2052.
Counsel has "a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000).
Based upon the record of the evidentiary hearing in the state district court, it is clear that Mr. Wilcock did not reasonably demonstrate to counsel that he was interested in appealing in a timely fashion. Mr. Wilcock's judgment and sentence were entered in May 1998. According to Mr. Wilcock's testimony at the evidentiary hearing, he first contacted his counsel about filing an appeal in October 1998, well after the time for filing an appeal had expired. In that conversation, Mr. Wilcock asked his counsel about appealing his case and his counsel told him there was nothing in his case to appeal. (Dkt. # 12, Exhibit G, p. 30, lines 8-21). Wilcock later wrote several letters to counsel inquiring about a speedy trial issue, contact with his children, and obtaining a copy of his file. There is no evidence in the record that Petitioner made a timely request for an appeal.
Accordingly, counsel would only have been ineffective if there is reason to think that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal).Id. The state district court, as adopted by the Montana Supreme Court, found that counsel did not believe there were any obvious appealable issues in Petitioner's case. However, neither the district court nor the Montana Supreme Court discussed whether counsel's decision "fell below an objective standard of reasonableness." See Strickland, supra. However, the obvious implication from both the district court's and the Montana Supreme Court's rulings is that counsel's performance did not fall below an objective standard of reasonableness. This Court must determine whether that determination was unreasonable in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2).
Mr. Wilcock argues that his sentence should have been appealed because a polygraph exam was taken as part of the Sex Offender Amenability Evaluation which was, at least in part, the basis of the State's sentencing recommendation pursuant to the plea agreement.
Under Montana law, polygraph results, even if indirectly presented to a district court are inadmissible. State v. Anderson, 1999 MT 58, ¶ 12, 293 Mont. 472, ¶ 12, 977 P.2d 315, ¶ 12 (1999); see also State v. Staat, 248 Mont. 291, 293, 811 P.2d 1261, 1262 (1991). While Mr. Wilcock's trial counsel indicated at the evidentiary hearing that Anderson was decided after Mr. Wilcock's sentencing, there was Montana case law prior to Mr. Wilcock's sentencing which stated that polygraph evidence may not be used in any proceeding in a Montana court. See State v. Staat, 248 Mont. 291, 293, 811 P.2d 1261, 1262 (1991); State v. Hensley, 250 Mont. 478, 483, 821 P.2d 1029, 1032 (1991) (polygraph evidence may not be used during sentencing; In re Marriage of Njos, 270 Mont. 54, 61, 889 P.2d 1192, 1196 (1995) (polygraph results may not be introduced via court-ordered sex offender evaluations); State v. Craig, 262 Mont. 240, 242-43, 864 P.2d 1240, 1242-43 (1993) (any evidence which would otherwise be admissible may be rendered inadmissible where a polygraph is used in the production of or for the purpose of influencing the outcome of such evidence).
Respondent argues that the record does not definitively demonstrate that Mr. Wilcock even took a polygraph examination. (Dkt. # 12, p. 6). However, page 2 of Sex Offender Amenability Evaluation (attached to Dkt. # 12 — Respondent's Answer, Exhibit B), indicates that on March 22, 1998 a polygraph examination was administered, scored, and interpreted. Thus, the Court will assume that Mr. Wilcock did take a polygraph examination.
Respondent also argues that the results of the polygraph examination were not used during the sentencing proceedings as there is no reference to results from a polygraph examination. There is however, a section of the Sex Offender Amenability Evaluation entitled, "pre-poly disclosures." According to the evaluation report, Mr. Wilcock had a "pre-poly disclosure interview" on March 19, 1998, three days prior to the polygraph examination.
It is also reasonable to assume that the results of the polygraph examination were at least considered in the preparation of the Sex Offender Amenability Evaluation because the failure to pass a polygraph is considered a factor indicating whether Petitioner was at a low, moderate or high risk to re-offend.
Given the state of Montana law at the time of Mr. Wilcock's sentencing this appears to at least be a non-frivolous issue on which to appeal. The results of the polygraph exam were likely considered by the person preparing the Sex Offender Amenability Evaluation. Thereafter, the district court relied in part on that evaluation in the Judgment and Sentence as he stated,
Given the foregoing history, the nature of his abuse in this matter, and the findings and conclusions described in his recent Sex Offender Amenability Evaluation, this Court is satisfied that the Defendant is a danger to society with little, if any, chance of rehabilitation.
(Dkt. # 12, Exhibit C, p. 2, ¶ 5). Thus, technically, there may have been an arguable basis upon which to file an appeal.
However, even if there was an arguable basis for an appeal, this Court cannot say that counsel's failure to file such an appeal meant that his representation of Mr. Wilcock "fell below an objective standard of reasonableness," and prejudiced the defendant. Strickland, 466 U.S. at 688, 694.
Counsel testified that the polygraph results were favorable to Mr. Wilcock. This appears to be a reasonable conclusion given that the record reveals that the polygraph results were only used to indicate that Mr. Wilcock was at a low risk to reoffend. Thus, counsel's decision to not object or appeal the use of the polygraph in the Sex Offender Amenability Evaluation was not objectively unreasonable and did not prejudice Petitioner.
From this record, this Court does not find "clear error" with the district court or Montana Supreme Court's decisions and therefore does not find that those decisions were contrary to federal law. Furthermore, this Court cannot say that the state courts' adjudication of Petitioner's claim resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(2).
Based on the foregoing, the Court enters the following:
ORDER
Respondent's Motion to Leave Exhibit B Confidential (Dkt. # 15) is GRANTED. The Clerk of Court shall file and maintain Exhibit B to Respondent's Answer under seal.
Further, the Court enters the following:
RECOMMENDATION
Mr. Wilcock's Petition for Writ of Habeas Corpus should be DENIED WITH PREJUDICE.
NOTICE OF RIGHT TO OBJECT TO FINDINGS RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
The Clerk of Court shall serve a copy of this Findings and Recommendation of the United States Magistrate Judge upon the parties. The parties are advised that pursuant to 28 U.S.C. § 636(b)(1), they have the right to file written objections to this Findings and Recommendation. Any objections to the Findings and Recommendation must be filed with the Clerk of Court within twenty (20) days after the signing of this recommendation, or objection is waived.PETITIONER IS CAUTIONED THAT HE MUST KEEP THE COURT ADVISED OF ANY CHANGE OF ADDRESS AND A FAILURE TO DO SO COULD RESULT IN A RECOMMENDATION OF DISMISSAL OF THIS CAUSE OF ACTION.