Hartman v. Knudsen

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

KIP HARTMAN, Cause No. CV 21-146-M-DWM

Petitioner,

vs. ORDER DISMISSING PETITION

AND DENYING CERTIFICATE OF

AUSTIN KNUDSEN, et al., APPEALABILITY

Respondents.

This case comes before the Court on Petitioner Hartman’s application for

writ of habeas corpus under 28 U.S.C. § 2241. Hartman faces a second trial in

Montana’s Nineteenth Judicial District Court, Lincoln County, and asserts it is

precluded by the Double Jeopardy Clause. Respondents (“the State”) filed an

answer on December 21, 2021. Hartman replied on January 11, 2022.

I. Jurisdiction

The Court has jurisdiction pursuant to 28 U.S.C. § 2241 because Hartman

contends he is “in custody in violation of the Constitution . . . of the United

States.” 28 U.S.C. § 2241(c)(3). His conditional release and obligation to appear

for trial constitute “custody,” see, e.g., Hensley v. Municipal Court, 411 U.S. 345,

351–53 (1973), and he contends that continuing this custody violates the Fifth

Amendment’s guarantee against double jeopardy, see Benton v. Maryland, 395

U.S. 784, 793–96 (1969).

The more common jurisdictional statute, 28 U.S.C. § 2254, does not apply.

Hartman is not “in custody pursuant to a judgment.” 28 U.S.C. § 2254(a). Unlike

other constitutional claims, a double jeopardy claim may be heard in federal court

before entry of judgment because “the Double Jeopardy Clause protects an

individual against more than being subjected to double punishments. It is a

guarantee against being twice put to trial for the same offense.” Abney v. United

States, 431 U.S. 651, 660–61 (1977); see also, e.g., Dominguez v. Kernan, 906

F.3d 1127, 1132 n.7 (9th Cir. 2018); Brown v. Ahern, 676 F.3d 899, 901 (9th Cir.

2012); Stow v. Murashige, 389 F.3d 880, 885–88 (9th Cir. 2004).

II. Exhaustion

28 U.S.C. § 2254(b) and (c) require state prisoners to exhaust their claims in

state court before filing in federal court. As § 2254 does not apply, neither does its

exhaustion requirement. But the statute codifies longstanding case law requiring

persons in state custody to present their federal constitutional claims in state court

before proceeding in federal court. Regardless of the lack of statutory command,

the exhaustion requirement is essential to preserve comity between state and

federal courts. See, e.g., Rose v. Lundy, 455 U.S. 509, 520 (1982); Ex parte

Royall, 117 U.S. 241, 251 (1886). It applies here.

The State asserts that Hartman has not properly exhausted his claim in state

court. See Answer (Doc. 5) at 41–50. Hartman presented his double jeopardy

claim to the Montana Supreme Court on October 29, 2021, in a petition for writ of

supervisory control. See Hartman v. Nineteenth Jud. Dist. Court, No. OP 21-0536

(Mont. filed Oct. 29, 2021). The October petition happened to be Hartman’s fourth

application for supervisory control. The first three were filed before Hartman’s

first trial. His fourth petition was the first one he filed after the trial court declared

a mistrial and set a new trial. Thus, the fourth petition was Hartman’s first and

only one raising a claim of double jeopardy.

The Montana Supreme Court holds that “constitutional double jeopardy

rulings by a district court may be challenged prior to a final judgment only by way

of a petition for writ of supervisory control, as authorized by” Montana Rule of

Appellate Procedure 14(3). State v. Burton, 407 P.3d 280, 286 ¶ 18 (Mont. 2017).

Supervisory control, however, remains “an extraordinary remedy,” available only

on “a case-by-case basis.” Mont. R. App. P. 14(3).

The criteria governing such petitions are set forth in Montana Rule of

Appellate Procedure 14(3). A petitioner must meet three elements, the third of

which may be met by one or more of three alternatives:

Supervisory control . . . is sometimes justified when urgency or

emergency factors exist making the normal appeal process inadequate,

when the case involves purely legal questions, and when one or more

of the following circumstances exist:

(a) The other court is proceeding under a mistake of law and is

causing a gross injustice;

(b) Constitutional issues of state-wide importance are involved;

(c) The other court has granted or denied a motion for substitution of a

judge in a criminal case.

Mont. R. App. P. 14(3) (eff. Oct. 1, 2011).

In his fourth petition, Hartman asserted that the following criteria governed:

Original jurisdiction is appropriate under Mont. R. App. P. 14(2) and

14(3) because a writ of supervisory control is appropriate where the

case involves (1) constitutional issues of major statewide importance;

(2) purely legal questions of statutory/constitutional construction; or

(3) urgency and emergency factors make the normal appeal process

inadequate.

Pet. for Writ of Supervisory Control (Doc. 1-2) at 14, Hartman, No. OP 21-0536.

Hartman’s petition stated three elements, but it presented them as if meeting

one of them would suffice. Apart from misstating the elements, the petition did

not further address them. It proceeded directly, and exclusively, to an argument

showing why Hartman believed the trial court erred in declaring a mistrial. See id.

at 14–21.

The Montana Supreme Court held:

Because he has failed to meet the threshold procedural requirements

for this Court to consider whether the matter he seeks to raise is

appropriate for writ of supervisory control, we have not considered

the merits of Hartman’s substantive arguments.

Order at 3, Hartman, No. OP 21-0536 (Mont. Nov. 9, 2021); see also Mont. R.

App. P 14(5)(B)(i), (iii).

“[O]nce the state courts have ruled upon a claim,” the exhaustion

requirement is met. See Castille v. Peoples, 489 U.S. 346, 350 (1989) (discussing

Brown v. Allen, 344 U.S. 443, 447 (1953)). The requirement is also met if the

petitioner presents the claim in an appeal as of right, see, e.g., Mont. Code Ann. §§

46-20-101, -104, 46-21-203, but the claim is “ignored (and therefore impliedly

rejected)” by the state court. See Peoples, 489 U.S. at 351 (citing Smith v. Digmon,

434 U.S. 332, 333 (1978) (per curiam)).

But “where the claim has been presented for the first and only time in a

procedural context in which its merits will not be considered” unless the petitioner

meets exceptional criteria, see Peoples, 489 U.S. at 351 (describing Pennsylvania

law requiring “special and important reasons” to hear petition for writ of allocatur),

a state court’s decision not to address the claim is not an implied rejection of the

claim’s merits. It is only a decision that the petitioner failed to meet the

exceptional criteria. See id.; see also Pitchess v. Davis, 421 U.S. 482, 488 (1975)

(per curiam) (holding that denial of application for writ of prohibition under

California law “does not constitute, and cannot be fairly read as, an adjudication on

the merits of the claim presented.”); Ex parte Hawk, 321 U.S. 114, 116–17 (1944)

(per curiam).

The Montana Supreme Court did not rule on Hartman’s claim. It did not

ignore the claim. It held that Hartman “failed to meet the threshold procedural

requirements” applicable to a petition for writ of supervisory control and, as a

result, the court had “not considered the merits of Hartman’s substantive

arguments.” Order at 3, Hartman, No. OP 21-0536 (Mont. Nov. 9, 2021). This

decision cannot fairly be read as a ruling on the merits of Hartman’s claim that his

retrial is barred as double jeopardy. This Court can only conclude that Hartman

has not properly exhausted his federal constitutional claim in the courts of the State

of Montana.

Hartman resists this conclusion, arguing that he raised the claim and the

Montana Supreme Court simply failed to address it. See, e.g., Reply (Doc. 6) at 1–

4. In particular, he interprets the court’s opinion as ruling that he “‘fail[ed] to

explain why this issue cannot be adequately addressed on appeal.’” Id. at 3. But

this phrase and the others Hartman quotes in his reply brief, see id., appeared in the

Montana Supreme Court’s orders denying Hartman’s first three petitions for

supervisory control. None of them raised a double jeopardy claim. See Order at

1–2, Hartman v. Montana Nineteenth Jud. Dist. Court, No. OP 20-0017 (Mont.

Jan. 14, 2020) (Doc. 5-1); Order at 1–2, Hartman v. Montana Nineteenth Jud. Dist.

Court, No. OP 20-0027 (Mont. Jan. 21, 2020) (Doc. 5-2); Order at 1–2, Hartman v.

Montana Nineteenth Jud. Dist. Court, No. OP 20-0069 (Mont. Feb. 11, 2020)

(Doc. 5-3).

The Montana Supreme Court denied Hartman’s fourth petition “for the same

reason as the three petitions which preceded it[:] [b]ecause he has failed to meet

the threshold procedural requirements for this Court to consider whether the matter

he raises is appropriate for writ of supervisory control.” Order at 3, Hartman, No.

OP 21-0536 (Mont. Nov. 9, 2021). This Court cannot recast the plain meaning of

this decision or turn it into a ruling on the merits of Hartman’s double jeopardy

claim.

To “protect the integrity of the federal exhaustion rule,” federal courts “ask

not only whether a prisoner has exhausted his state remedies, but also whether he

has properly exhausted those remedies, i.e., whether he has fairly presented his

claims to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)

(emphasis in original). Hartman has not properly exhausted or fairly presented his

double jeopardy claim.

The Montana Supreme Court did not foreclose further filings. See Order at

4, Hartman, No. OP 21-0536. Neither party has argued that Hartman’s claim

cannot be presented again or is now procedurally defaulted. Because it is not

“clear” that he is now unable to present the claim in compliance with state law, see

Gray v. Netherland, 518 U.S. 152, 161–62 (1996), the Court will dismiss the

federal petition without prejudice for failure to exhaust state remedies.

III. Certificate of Appealability

“The district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254

Proceedings. A COA should issue as to those claims on which the petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). The standard is satisfied if “jurists of reason could disagree with the

district court’s resolution of [the] constitutional claims” or “conclude the issues

presented are adequate to deserve encouragement to proceed further.” Gonzalez v.

Thaler, 565 U.S. 134, 140 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)). Where a claim is dismissed on procedural grounds, the court must also

decide whether “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Id. at 140–41.

Hartman makes a substantial showing that retrial will violate the Fifth

Amendment’s double jeopardy clause. But reasonable jurists would not find that

he has met the exhaustion requirement. A COA is not warranted.

Accordingly, IT IS ORDERED:

1. Hartman’s petition (Doc. 1) is DISMISSED for failure to exhaust state

remedies.

2. The clerk shall enter, by separate document, a judgment of dismissal.

3. A certificate of appealability is DENIED.

DATED this 1 4 t h day of January, 2022.

0 9 : 5 7 AM

Donald W. Molloy

United States District Court