Belgarde v. State of Mont., 96-35447

• Decision Date: 09 January 1997
• Docket Number: No. 96-35447,96-35447
• Citation: 123 F.3d 1210
• Parties: 97 Cal. Daily Op. Serv. 6576, 97 Daily Journal D.A.R. 10,740 Gilbert BELGARDE, Petitioner-Appellant, v. STATE OF MONTANA; Montana Supreme Court; Yellowstone County, Thirteenth Judicial District Court, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1210

123 F.3d 1210

97 Cal. Daily Op. Serv. 6576, 97 Daily Journal

D.A.R. 10,740

Gilbert BELGARDE, Petitioner-Appellant, v. STATE OF MONTANA; Montana Supreme Court; Yellowstone County, Thirteenth Judicial District Court Respondents-Appellees.

No. 96-35447.

United States Court of Appeals Ninth Circuit.

Submitted Jan. 9, 1997. ^*

Decided Aug. 19, 1997.

Gilbert Belgarde, Box Elder, MT, pro se.

Jennifer M. Anders, Assistant Attorney General, Helena, MT, for respondents-appellees.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CV-94-00149-JDS.

Before: CHOY, FERGUSON, and WIGGINS, Circuit Judges.

CHOY, Circuit Judge:

Gilbert Belgarde appeals pro se the district court's grant of summary judgment in favor of the State of Montana, et al., in his 28 U.S.C. § 2254 petition for writ of habeas corpus. While we hold that Belgarde's constitutional claims are meritless, we write to emphasize that the district court properly exercised jurisdiction over Belgarde's habeas petition.

Factual and Procedural Background

Gilbert Belgarde was involved in a single-car accident on August 12, 1992, in which his vehicle crashed into a concrete barrier and guardrail at the end of a dead-end street. As a result of the accident, Belgarde was rendered unconscious, and he did not regain consciousness until after he was admitted to the hospital. While Belgarde was unconscious, a police officer requested that a sample of Belgarde's blood be taken by a nurse, so that it could be examined to determine whether alcohol was present. The nurse complied. Belgarde's blood alcohol content was .24 percent.

A jury convicted Belgarde of driving under the influence of alcohol ("D.U.I.") and failure to wear a seatbelt. This conviction was Belgarde's second for the offense of D.U.I. Belgarde appealed to the state district court, and, following a de novo bench trial, was again convicted of the same offenses. The state district court sentenced Belgarde to six months in jail with all but seven days suspended, conditional upon Belgarde's attendance at an alcohol dependency treatment program. The court also fined Belgarde $500. The district court stayed the execution of Belgarde's sentence pending the outcome of his habeas petition. ¹

Belgarde appealed his conviction and sentence directly to the Montana Supreme Court, raising the issues in this habeas petition. The court affirmed Belgarde's conviction and sentence in an unpublished decision.

Belgarde then filed a petition for a writ of habeas corpus in the district court. The district court granted respondents' motion for summary judgment. Belgarde now appeals this decision of the district court, alleging that 1) taking his blood while he was unconscious and using the blood test results to convict him violated his Fifth Amendment privilege against self-incrimination; 2) Montana's "implied consent" law violates the Fourteenth Amendment because it takes away his right to refuse a blood test; 3) Belgarde's sentence of jail time, a fine, and attendance at an alcohol dependency treatment program violates the Eighth Amendment and the prohibition against double jeopardy; and 4) his Fourth and Sixth Amendment rights were violated.

Analysis

I. Personal Jurisdiction in Section 2254 Petitions

The district court did not expressly address the question of whether it had jurisdiction over Belgarde's petition. Nor do the parties question this court's jurisdiction. However, we must raise the issue of jurisdiction sua sponte. WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.1997) (en banc).

A petitioner for habeas relief under Section 2254 must name the state officer having custody of him or her as a respondent. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). "Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction." Id. As an applicant for a writ of habeas corpus who is not currently in custody, but who is subject to future custody, Belgarde must name as the respondents to his petition 1) the attorney general of the State of Montana, and 2) the officer having present custody over Belgarde. See 28 U.S.C. foll. § 2254, Rule 2(b). ²

Belgarde used AO Form 241 (Rev.5/85), "PETITION UNDER 28 USC § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY," to file his pro se habeas petition. In his petition, Belgarde expressly named the State of Montana, the Montana Supreme Court, and the Yellowstone County Thirteenth Judicial District Court as respondents. Thus, Belgarde apparently failed to name the Attorney General of the State of Montana as a respondent. Indeed, the Montana Attorney General was not listed as a respondent on our docket sheet, or on the district court's docket sheet. ³ There is no notation on the district court docket sheet indicating that the Attorney General responded to the petition as a named respondent; rather, the response filed by a Montana Assistant Attorney General was on behalf of the other three named respondents only. Under Stanley, then, it would appear that the federal courts lack jurisdiction over Belgarde's petition. See Stanley, 21 F.3d at 360.

However, upon closer examination of Belgarde's habeas petition, it seems as though the jurisdictional requirement was in fact met. On the habeas petition (which is a pre-printed form on which Belgarde filled in the blanks), there is space labeled "Name of Petitioner (include name under which convicted)" in which Belgarde filled in his own name. This space is separated by a "v." from another area labeled "Name of Respondent (authorized person having custody of petitioner)." Here, Belgarde wrote, "State of Montana,State of Montana Supreme Court. 13th Judicial Dist. Court (Yellowstone) Billings Montana," but did not include the Attorney General of Montana. However, underneath the "Name of Petitioner/Name of Respondent" section on the form is separate section, labeled "The Attorney General of the State of:" in which Belgarde filled in "Montana." See AO Form 241 (Rev.5/85), "PETITION UNDER 28 USC § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY," at 2.

The "Attorney General" section, as it exists on the Belgarde's form, seems to stand in isolation. However, following Section 2254 in the United States Code there exists an Appendix of Forms to 28 U.S.C. § 2254. In that Appendix, a "MODEL FORM FOR USE IN APPLICATIONS FOR HABEAS CORPUS UNDER 28 U.S.C. § 2254" can be found. On the model form, the "Attorney General" section is different from that on Belgarde's pre-printed form. Specifically, the model form appears in relevant part as follows:

____________, PETITIONER

(Full name)

v.

____________, RESPONDENT

(Name of Warden, Superintendent, Jailor, or authorized person having custody

of petitioner)

and

THE ATTORNEY GENERAL OF THE STATE OF ____________,

ADDITIONAL RESPONDENT.

See 28 U.S.C. foll. § 2254, Appendix of Forms (emphasis added). The additional words on the model form are crucial; they suggest that the purpose of the "Attorney General" space is to ensure that the Attorney General of the state specified by the petitioner is automatically named as a respondent to a Section 2254 habeas petition.

Belgarde is a pro se petitioner. We construe a pro se litigant's habeas petition with deference. Maleng v. Cook, 490 U.S. 488, 493, 109 S.Ct. 1923, 1926-27, 104 L.Ed.2d 540 (1989), see also Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (1990). The similarity between Belgarde's habeas form and the sample form is such that, if Belgarde were aware of the rule that he name the Attorney General as a respondent, he may in all likelihood have thought that he was complying with that requirement by writing "Montana" in the space following "Attorney General of the State of:" on the form. This case raises an important jurisdictional issue about how habeas petitions are being treated in lower courts. If the district courts do not treat the "Attorney General" space as a respondent space, as it is intended to be, then petitions over which the federal court may rightly have jurisdiction could be dismissed due to a semantic technicality on the form, or due to the lack of knowledge about purpose of the space on the form. ⁴ The "Attorney General" space on AO Form 241 is to be construed as naming the Attorney General of the state indicated in the space as a respondent to that habeas petition. The district court's exercise of jurisdiction in this case was proper.

II. Belgarde's Constitutional Claims

The district court's grant of summary judgment in a habeas proceeding is reviewed de novo. Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir.1992) (en banc). ⁵ The factual findings underlying that conclusion are reviewed for clear error. Riley v. Deeds, 56 F.3d 1117, 1119 (9th Cir.1995).

A. Privilege Against Self-Incrimination

Belgarde claims that his Fifth Amendment privilege against self-incrimination was violated through the taking of his blood without his consent, and the use of the blood test results at trial to convict him. This argument has no merit.

The Fifth Amendment protects Belgarde from "being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966), see also Deering v. Brown, 839 F.2d 539, 541 (9th Cir.1988). However, "the withdrawal of blood and use of the analysis ... did not involve compulsion to these ends." Schmerber, 384 U.S. at 761, 86 S.Ct. at 1830-31.

The blood test results, which were based upon blood drawn from Belgarde without his consent, and which ultimately led to his conviction, do not constitute testimonial or communicative evidence that would be inadmissable under the Fifth Amendment. Blood test evidence is "neither petitioner's testimony nor evidence relating to some communicative act...