Payne v. Frink
| Decision Date | 10 May 2013 |
| Docket Number | No. CV 11–42–M–DWM.,CV 11–42–M–DWM. |
| Citation | 944 F.Supp.2d 967 |
| Parties | Tyrone Everett PAYNE, Petitioner, v. Warden Martin FRINK; Attorney General of the State of Montana, Respondents. |
| Court | U.S. District Court — District of Montana |
OPINION TEXT STARTS HERE
Tyrone Everett Payne, Shelby, MT, pro se.
Jonathan M. Krauss, Montana Department of Justice, Helena, MT, for Respondents.
ORDER CONDITIONALLY GRANTING WRIT OF HABEAS CORPUS
On April 23, 2013, United States Magistrate Judge Jeremiah Lynch issued Findings and Recommendation. He concluded that Tyrone Payne's petition for writ of habeas corpus under 28 U.S.C. § 2254 should be conditionally granted as to one claim and that two other claims should be dismissed with prejudice. Neither party filed objections.
Reviewing for clear error, 28 U.S.C. § 636(b); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981), I find none. Payne was convicted of failing to register as a sex offender. By soliciting testimony from an officer that she was told Payne was not in compliance with his registration requirements in Connecticut, the State violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The constitutional violation had a substantial and injurious effect on the jury's verdict, and a new trial is the appropriate remedy. Payne's other two claims, alleging that the evidence was insufficient to support the conviction, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and that the conviction was obtained in violation of Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), are procedurally defaulted without excuse and must be dismissed with prejudice.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Payne's petition (doc. 1) is CONDITIONALLY GRANTED as to the Crawford claim. The Jackson claim and the Lambert claim are DISMISSED WITH PREJUDICE.
2. A certificate of appealability is DENIED as to the Jackson and Lambert claims.
3. The judgment entered in Missoula County Cause No. DC–09–174 on February 10, 2010, is VACATED.
4. Within forty-five (45) days of the date of this Order, the State may renew proceedings against Payne in the trial court.
5. If the State renews the proceedings, it must timely file a Notice stating that it has done so.
6. If the State does not timely file notice of the renewal of proceedings in the trial court, this Court will order Payne's unconditional release from all custody based on the vacated conviction, and he may not be retried.
7. The Clerk shall enter judgment, by separate document, in favor of Payne and against Respondents on the Crawford claim and against Payne and in favor of Respondents on the Jackson and Lambert claims.
This petition for writ of habeas corpus under 28 U.S.C. § 2254 is before the Court on remand from the Ninth Circuit Court of Appeals. Payne is a state prisoner proceeding pro se.
The Court of Appeals directed this Court to consider Payne's claim under the Confrontation Clause and to determine whether another claim is procedurally barred by an adequate and independent state rule. Those are the issues addressed here.
Payne was convicted by a jury of failing to register as a sex offender, a violation of Mont. Code Ann. § 46–23–507 (2007). On February 10, 2010, he was designated a persistent felony offender and sentenced to serve ten years in prison, with five suspended. Pet. (doc. 1) at 2–3 ¶¶ 1–6; Judgment at 1–2 (doc. 1–1 at 77–78).
Payne appealed, arguing that the State violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), when it permitted an officer to testify that she was told Payne was not in compliance with his registration requirements in Connecticut. Payne also claimed the evidence was not sufficient to support his conviction. The Montana Supreme Court rejected his arguments and affirmed his conviction. State v. Payne, 359 Mont. 270, 248 P.3d 842, 849 ¶ 44 (Mont.2011). On March 22, 2011, the court denied rehearing. Order, State v. Payne, No. DA 10–0178 (Mont. Mar. 22, 2011) (doc. 46–7). Payne's conviction became final 90 days later, on June 20, 2011. Gonzalez v. Thaler, ––– U.S. ––––, 132 S.Ct. 641, 653–54, 181 L.Ed.2d 619 (2012); U.S. Sup.Ct. R. 13(1), (3).
Payne filed his habeas petition in this Court before his conviction was final, on March 7, 2011. Pet. at 13, Pet'r Decl. ¶ C; 28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).
Payne contends, first, that his conviction was obtained in violation of the Confrontation Clause, Pet. (doc. 1) at 5–8, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and second, that the evidence was not sufficient to support his conviction, id. at 9–11, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a post-petition filing, he also alleged that his conviction was obtained in violation of Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). Although Payne set forth the Lambert claim to support his second claim regarding sufficiency of the evidence, it is appropriate and, given the Court's recommendation on the Jackson claim, will not prejudice Payne to construe it as a freestanding claim for relief. See, e.g., Woods v. Carey, 525 F.3d 886, 890 (9th Cir.2008).
Thus, although the petition raises only two claims, three are addressed here: a Crawford claim, a Lambert claim, and a Jackson claim.
A. Confrontation Clause
The Montana Supreme Court decided this claim on the merits.
Before trial, Payne moved in limine to exclude a document from Connecticut purportedly signed by Payne and concerned in some way with his registration as a sex offender in Connecticut. (Because the document was excluded, this Court does not know what it was.) The State originally objected, then withdrew its objection. The trial court granted the defense motion in limine and excluded the document. Trial Tr. (doc. 11–1) at 123:7–18.
At trial, instead of relying on the document, the State asked Detective Merifield whether Payne was in compliance with Connecticut's registration requirements. The defense objected, stating that the question “goes to the motion in limine.” The trial court heard off-the-record argument at sidebar. Then the detective was allowed to answer. She said that “when [she] checked with the Connecticut registration authorities,” she was told that Payne was not in compliance with his registration duties in Connecticut. Trial Tr. at 145:23–146:14.
The Montana Supreme Court found Merifield's testimony was based on what an unidentified declarant in Connecticut told her over the phone while she was investigating Payne's case. “[T]he statement of the Connecticut official during the inquiry ... was made knowingly to a government official for the purpose of creating evidence, and then presented at trial for the truth of the matter asserted.” Payne, 248 P.3d at 847 ¶ 30. The Montana Supreme Court held the admission of this evidence violated the Confrontation Clause. Id. at 848 ¶ 31. The State concedes that Merifield's testimony violated Payne's Sixth Amendment right to confrontation. Answer (doc. 46) at 16–17 ¶ 23.
Although it found a federal constitutional violation, the Montana Supreme Court denied relief because it found the error did not prejudice Payne. In doing so, it applied its own harmless-error test. See Payne, 248 P.3d at 848–49 ¶¶ 37–40 (applying State v. Van Kirk, 306 Mont. 215, 32 P.3d 735, 745 ¶ 47 (Mont.2001)). As applied here, that test does not appear to meet the standards set by “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). See Delaware v. Van Arsdall, 475 U.S. 673, 681–84, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). But a federal habeas court “need not conduct an analysis ... of whether the state court's harmlessness determination on direct review—which is governed by the ‘harmless beyond a reasonable doubt’ test set forth in Chapman—was contrary to or an unreasonable application of clearly established federal law.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.2010) (internal citation omitted) (discussing 28 U.S.C. § 2254(d)(1) and Fry v. Pliler, 551 U.S. 112, 119–20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)). That is, when prejudice is the only question, the standards of § 2254(d) need not be met.
The reason for omitting that step is that the “objectively unreasonable” standard of § 2254(d), Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), is, in a sense, “built in” to the traditional prejudice test in federal habeas proceedings. A federal habeas court “must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard ... whether or not the state appellate court recognized the error and reviewed it for harmlessness.” Fry v. Pliler, 551 U.S. 112, 121–22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). If the constitutional error had a “substantial and injurious effect or influence in determining the jury's verdict,” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (), then a state court's finding the same error harmless beyond a reasonable doubt must have been objectively unreasonable, 28 U.S.C. § 2254(d). On the other hand, if the Brecht standard is not met, then the petitioner is not entitled to federal habeas relief regardless of the state court's harmless...
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