Bird v. Salmonsen

• Decision Date: 26 January 2022
• Docket Number: CV 21-103-M-DWM
• Parties: CLIFFORD BIRD, SR., Petitioner, v. JIM SALMONSEN, WARDEN OF MONTANA STATE PRISON; AUSTIN KNUDSEN, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.
• Court: U.S. District Court — District of Montana

CLIFFORD BIRD, SR., Petitioner, v. JIM SALMONSEN, WARDEN OF MONTANA STATE PRISON; AUSTIN KNUDSEN, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

No. CV 21-103-M-DWM

United States District Court, D. Montana, Missoula Division

January 26, 2022

ORDER

Donald W. Molloy United States District Court Judge

This matter comes before the Court on a petition filed by pro se state prisoner Clifford Bird, Sr., seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires courts to examine the petition before ordering the respondent to file an answer or any other pleading. The petition must be summarily dismissed "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Id. As explained below, Mr. Bird's petition will be dismissed.

I. Motion to Proceed in Forma Pauperis

Mr Bird seeks leave of the Court to proceed in forma pauperis but has not provided a copy of his Inmate Trust Account Statement. See, (Doc. 3.) The Court will take judicial notice of the fact that Mr. Bird was recently allowed to proceed without paying the filing in the Montana Supreme Court. See (Doc. 7 at 11 .)^[1]There is no reason to delay this matter; the motion to proceed in forma pauperis will be granted.

II. Background

The Montana Supreme Court has explained the procedural history of Mr. Bird's underlying criminal proceedings as follows:

[O]n November 10, 2009, Bird received a six-year suspended sentence to Montana State Prison (MSP) for issuing bad checks by common scheme. The Seventh Judicial District Court, Dawson County, also ordered him to attend and complete its Drug Treatment Court. In May 2010, the Drug Treatment Court terminated Bird because of failure to appear, noncompliance, and failure to complete his programming, including his recommended in-house treatment at a treatment center in North Dakota. On September 21, 2010, the District Court sentenced Bird upon revocation to a six-year MSP sentence. Bird did not appeal.

After sentencing, Bird remained in the Dawson County Correctional Facility. The State charged Bird with six offenses in February 2011, and in August 2011, the State amended the charges to three felonies, alleging criminal distribution of dangerous drugs with intent to distribute by accountability; transferring an illegal article by accountability; and transferring an illegal article by accountability, while he was incarcerated. On November 16, 2011, the District Court held a sentencing hearing, accepted Bird's guilty pleas, and sentenced Bird to concurrent, unsuspended MSP terms of seven years, three years, and thirteen months, respectively. This sentence was to run consecutively to his six-year MSP sentence upon revocation. Bird did not appeal his convictions or sentence.

Bird v. Salmonsen, OP 21-0220, 2021 WL 1991872, at *1 (Mont. May 18, 2021).^[2]

On September 9, 2016, Mr. Bird was granted parole. (Doc. 7 at 7.) He stopped reporting to Probation and Parole in May of 2017. Id. Mr. Bird then absconded from probation for more than three years. Id. at 10. On April 20, 2021, following a hearing in front of the Board of Pardons and Parole, Mr. Bird's parole was revoked. Id.

In May of 2021, Mr. Bird filed a petition for writ of habeas corpus and a motion to vacate his sentences in the Montana Supreme Court.^[3] There he alleged counsel provided ineffective assistance due to a purported conflict of interest. Bird v. Salmonsen, WL 1991872, at *1 Mr. Bird explained that his counsel in the original 2009 criminal case subsequently became the "head prosecuting attorney for Dawson County." Id. Bird believed a conflict existed because this same attorney represented then prosecuted him and his second defense counsel did not object. Id.

The Montana Supreme Court held that Bird brought his claims via the wrong remedy. Any challenge, such as the claimed conflict of interest should have been brought on appeal. Id., at *1, citing, State v. Deschon, 2002 MT 16, If 18, 308 Mont. 175, 40 P.3d 391. Additionally, because neither Bird nor counsel objected to the purported conflict, the challenge had been waived. Further, Bird failed to demonstrate that an actual conflict of interest existed under state law. Id., citing Deschon, ¶ 18 (additional citations omitted). The Court also noted that it was the Deputy County Attorney, and not the Dawson County Attorney, that prosecuted Bird's 2011 criminal case. Id. Finally, the Court noted that Bird's claims were untimely. Id. at *2. Given that the Bird pled guilty to the offenses over a decade prior, he had since waived any constitutional claims. Id., citing, Gates v. Missoula Co. Comm 'rs, 235 Mont. 261, 262, 766 P.2d 884, 884-85 (1988). Bird failed to demonstrate his incarceration was illegal; the petition and motion were denied.

III. Bird's Claims

Mr. Bird alleges a Fifth Amendment violation^[4] based upon the purported conflict of interest appointed counsel that occurred in conjunction with his 2011 prosecution in Dawson County. (Doc. 1 at 4, |f 13(A)). In support of his claim, Mr. Bird attaches a copy of the petition he filed with the Montana Supreme Court wherein he advanced a conflict of counsel claim premised upon Cuyler v. Sullivan, 446 U.S. 335 (1980). See, Pet. (Doc. 1-2 at 1-2.) Mr. Bird also asserts the State of Montana has unlawfully denied him medical parole. (Doc. 1 at 5, If 13(B)). Mr. Bird asks this Court to grant him medical parole or, alternatively, vacate his sentence and order his immediate release. Id. at 7, If 16.

IV. Analysis

As explained herein, Mr. Bird's first claim fails for lack of merit and his second claim is unexhausted. Because it plainly appears from the petition and the exhibits filed by Mr. Bird that he is not entitled to relief, this Court must dismiss the petition. See, Rule 4 Governing Section 2254 Cases.

To the extent that Mr. Bird seeks to challenge the Dawson County judgment in Claim 1, the appropriate venue for such a challenge, pursuant to this Court's Local Rules, is the Billings Division. D. Mont. L.R. 1.2(c)(1), 3.2(b)(2)(A). A challenge to the denial of parole conditions, such as Mr. Bird's Claim 2, is properly venued in the Helena Division. Mont. L.R. 3.2(b)(2)(B). But because this matter will be dismissed, in the interest of judicial economy, the Court declines to transfer venue to a different division.

i. Claim 1- Conflict of Interest

Mr. Bird explains that in 2009 he was represented by Olivia Norton Rieger on a charge of bad checks by common scheme. Mr. Bird's suspended sentence was eventually revoked and he was sent to Montana State Prison. He was later transferred to Glendive Regional Prison. While incarcerated at the Glendive Regional Prison, Mr. Bird was charged with criminal distribution of dangerous drugs with intent to distribute by accountability, transferring an illegal article by accountability, and transferring an illegal article by accountability. By that point in time, Ms. Rieger had become the Dawson County Attorney. See e.g., (Doc. 1 at 4, ¶ 13(A)); see also, (Doc. 1-2 at 1); Bird v. Salmonsen, WL 1991872, at *1. Mr. Bird apparently believes a conflict occurred when he was prosecuted by Dawson County for the 2011 drug-related offenses, by virtue of Ms. Rieger's position as the County Attorney. See, (Doc. 1-2 at 1.)

On its face this claim appears to be untimely. Federal habeas actions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 et seq. The AEDPA establishes a one-year limitation period for the filing of habeas petitions. § 2244(d); see also, Pliler v. Ford, 542 U.S. 225, 230 (2004). The limitation period generally begins to run when the state conviction and sentence becomes final by the expiration or conclusion of appellate review. § 2244(d)(1)(A). As observed by the Montana Supreme Court, Mr. Bird attempts to challenge events that occurred over a decade ago. While the Court is not finding Mr. Bird should be excused from his untimely filing, it is more efficient to proceed to the merits of this claim. See, Lambrix v. Singletary, 520 U.S. 518, 525 (1997); 28 U.S.C. § 2254(b)(1)(A); 28 U.S.C. § 2244(d)(1).

The Sixth Amendment's right to conflict-free counsel is violated only if the conflict "adversely affected" trial counsel's performance. Alberni v. McDaniel, 458 F.3d 860, 870 (9th Cir.2006). "[A]n actual conflict of interest mean[s] precisely a conflict that affected counsel's performance-as opposed to a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171 (2002) (citation omitted). A conflict of interest can arise when counsel represents multiple defendants whose interests are hostile to one another. In order to establish a violation of the Sixth Amendment, a petitioner "who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (footnote omitted); accord Mickens, 535 U.S. at 171; Paradis v. Arave, 130 F.3d 385, 391 (9th Cir.1997); United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir.1996). An "actual conflict" is not separate from an "adverse effect;" rather, it is defined as one which adversely affects the lawyer's performance. Earp v. Ornoski, 431 F.3d 1158, 1183 (9th Cir.2005) (quoting Mickens, 535 U.S. at 172 n. 5).

An "actual conflict of interest" only occurs when counsel "actively represented conflicting interests." Strickland, 466 U.S. at 692. A theoretical or potential conflict is insufficient to constitute actual conflict; instead counsel must have actively represented conflicting interests. Cuyler, 446 U.S. at...