Aker v. Fletcher
| Docket Number | CV 17-86-H-JTJ |
| Decision Date | 22 August 2022 |
| Parties | JIMMIE LEE AKER, Petitioner, v. MICHAEL FLETCHER; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents. |
| Court | U.S. District Court — District of Montana |
This case comes before the Court on Petitioner Jimmie Lee Aker's application for writ of habeas corpus under 28 U.S.C. § 2254. A jury convicted Aker of sexually assaulting a 12-year-old girl by inserting his fingers in her vagina. He is serving a mandatory sentence of 100 years in prison. Fifty of those years were suspended. Aker must serve 25 years before he is eligible for parole. See State Crim. Judgment (Doc. 9-8) at 4, State v. Aker, No DC-10-32 (Mont. Third Jud. Dist. Court Oct. 17, 2011).
Respondents (“the State”) and Aker each move for summary judgment. Based on their written consent, this matter is assigned to me for all proceedings, including entry of judgment. See Clerk's Notice (Doc. 28); Consents (Doc. 28-1 at 1-2).
On June 10, 2010, Aker was charged in Montana's Third Judicial District Court, Powell County, with one count of sexual intercourse without consent, a violation of Mont. Code Ann. § 45-5-503(1) (2009).[1] In mid-February 2011, new counsel appeared for Aker and represented him through trial and sentencing.
Trial commenced on May 16, 2011. The victim-C., a 12-year-old girl who was 13 years old at the time of trial-testified as the first witness. Several prosecution witnesses testified to what C. told them about the incident. Aker presented witnesses and testified himself. On May 19, 2011, the jury found Aker guilty.
Aker appealed. He asked the Montana Supreme Court to review the prosecutors' closing arguments for plain error. He also asserted that trial counsel were ineffective because they failed to object to the State's introduction of hearsay testimony. The Montana Supreme Court declined to exercise plain-error review concerning the State's closing argument. As to the hearsay claim, the court found the record was not sufficiently developed to show why trial counsel did not object. It dismissed the ineffective assistance claim without prejudice so that Aker could pursue it in postconviction proceedings. See State v. Aker (“Aker I”), 2013 MT 253 ¶¶ 31, 37.[2]
Justice McKinnon, joined by Justice Cotter, dissented on both issues. She contended that the prosecutor plainly erred in his closing argument and caused sufficient prejudice to Aker to warrant a new trial. See Aker I ¶¶ 39-45. She also asserted that trial counsel could not have had a strategic reason not to object to inadmissible hearsay testimony from five witnesses. See id. ¶¶ 46-65.
On October 8, 2013, Aker, acting pro se, initiated collateral review in the trial court. He filed a petition for postconviction relief and a motion for the appointment of new counsel to represent him. The State filed a response and an affidavit from trial counsel. On April 8, 2015, the trial court denied the petition.
Again, Aker appealed. The Montana Supreme Court affirmed the trial court's denial of postconviction relief, stating that “Aker's petition . . . lacks the required elements of [Mont. Code Ann.] § 46-21-104(1)(c).” Aker v. State (“Aker II”), 2016 MT 236N ¶ 12. Subsection 104(1)(c) requires postconviction petitioners to “identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts.” Mont. Code Ann. § 46-21-104(1)(c) (1997).
Again, Justice McKinnon dissented as to both issues, arguing that Aker should be allowed to proceed on his claims. See Aker II ¶ 14.
Aker timely filed his federal petition on August 4, 2017. See 28 U.S.C. § 2244(d)(1)(A), (2); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). After this Court appointed counsel to represent him, see Order (Doc. 13), Aker filed an amended petition raising five claims. In a previous order, the Court found all claims defaulted but excused the defaults under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). See Order (Doc. 33) at 5-14 (default), 1424 (excuse).
Aker does not oppose the State's motion for summary judgment on Claims 3 and 4. Three claims remain at issue:
See Am. Pet. (Doc. 18) at 18-33, 39-40.
Because the Montana Supreme Court did not issue a decision on the merits of Aker's ineffective assistance claims, they are reviewed de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009); Rompilla v. Beard, 545 U.S. 374, 390 (2005); Rogers v. Dzurenda, 25 F.4th 1171, 1181 (9th Cir. 2022); Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016).
Aker claims counsel violated his Sixth Amendment right to effective assistance by failing to object to the State's use of hearsay prior consistent statements and to the State's closing arguments.
Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). Aker must prove (1) that counsel's performance fell below an objective standard of reasonableness, id. at 687-88, and (2) that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” id. at 694. When a petitioner asserts ineffective assistance of trial counsel, “the proceeding” is the trial, not a subsequent appeal. See Dickinson v. Shinn, 2 F.4th 851, 860 (9th Cir. 2021) (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Walker v. Martel, 709 F.3d 925, 941 (9th Cir. 2013)).
As the State points out, counsel's performance is presumed reasonable. Aker must prove it unreasonable. Especially after a long time has passed and counsel have represented other clients at other trials, counsels' inability to remember why they did or did not do something is not evidence of unreasonable performance. “[T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Burt v. Titlow, 571 U.S. 12, 23 (2013) (quoting Strickland, 466 U.S. at 689) (internal quotation marks and brackets omitted). On the other hand, when the Court cannot perceive counsel's conduct as reasonable, relief is justified if counsel's performance caused the defendant adequate prejudice. See, e.g., Staten v. Davis, 962 F.3d 487, 495-96, 497-99 (9th Cir. 2020); Vega v. Ryan, 757 F.3d 960, 967-68 (9th Cir. 2014) (per curiam).
Aker's claims are addressed in the order they arose at trial.
The State presented compelling evidence that C. was sexually assaulted in late November or early December, 2009. Her persistence in relaying her account to others over time was one reason the State urged the jury to believe her testimony. See, e.g., 2 Trial Tr. (Doc. 9-4) at 255:18-256:7 (opening statement); id. at 304:821, 305:14-306:13, 309:6-17 (direct examination of C.); 4 Trial Tr. (Doc. 9-6) at 831:13-832:3, 844:7-24, 884:3-16 (closing argument). C. testified as the first witness at trial. In direct examination of five subsequent witnesses, the State introduced prior consistent statements by her.
Aker's counsel have not explained a strategic reason not to object to the State's use of C.'s prior consistent statements. In view of Montana case law, however, the Court finds that counsel could reasonably believe that objection would be fruitless.
Montana Rule of Evidence 801 defines hearsay as a statement made by a witness outside of a trial or hearing and offered “to prove the truth of the matter asserted.” Mont. R. Evid. 801(c). Hearsay is generally inadmissible. See Mont. R. Evid. 802. But a statement “is not hearsay” if:
“[A] witness could not be supported by evidence of prior consistent statements because no amount of repetition makes the story more probable.” 1977 Commission Comments, Mont. R. Evid. 801, subsection (d), para. six (internal citation omitted). A person who says the same thing at trial and before trial might be repeating the truth. But he might also be doggedly lying or simply mistaken. “[M]ere repetition does not imply veracity.” State v. Scheffelman, 820 P.2d 1293, 1297 (Mont. 1991) (quoting Weinstein & Berger, Weinstein's Evidence, 801-105 to -151 (1988)).
The Montana Supreme Court uniformly holds that trial courts err by admitting a testifying declarant's prior consistent statement if it does not meet the limiting criteria of Rule 801(d)(1)(B).[4] Nonetheless, with near-uniformity, the court finds inadmissible prior consistent statements harmless.
The Montana Supreme Court uses one of two different tests to determine whether inadmissible hearsay is harmless. One is a generally applicable test for harmless error. See State v. Van Kirk, ...
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