“If some relief can be granted, the case is not moot.”
How later courts described this case
- “If some relief can be granted, the case is not moot.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATIE GARDING, Nos. 23-35272
23-35327
Petitioner-Appellee /
Cross-Appellant, D.C. No.
v. 9:20-cv-00105-
DLC-KLD
MONTANA DEPARTMENT OF
CORRECTIONS,
OPINION
Respondent-Appellant /
Cross-Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted September 15, 2023
Seattle, Washington
Filed June 28, 2024
Before: William A. Fletcher, Ryan D. Nelson, and Daniel
P. Collins, Circuit Judges.
Opinion by Judge R. Nelson;
Dissent by Judge W. Fletcher
2 GARDING V. MONTANA DEP’T OF CORR.
SUMMARY *
Habeas Corpus
On cross-appeals from the district court’s partial denial
and partial grant of Katie Garding’s habeas petition, the
panel affirmed the district court’s order denying Garding’s
claims under Brady v. Maryland and reversed the district
court’s grant of Garding’s ineffective-assistance-of-counsel
claim.
A Montana jury convicted Garding of vehicular
homicide while under the influence, failure to stop
immediately at the scene of an accident involving an injured
person, and driving without a valid driver’s license.
The panel rejected Garding’s jurisdictional
arguments. The panel explained that the state court’s
vacatur of her conviction pursuant to the district court’s
habeas decision, and her release from custody, did not moot
this case. As the new trial against Garding has not yet begun,
this court can provide Montana with relief by reversing the
district court’s order. Because Garding was “in custody”
under the underlying state conviction when she filed her
habeas petition, jurisdiction attached at that time; binding
precedent forecloses her argument that AEDPA does not
give this court power to hear the case because she is no
longer in “custody.”
The panel held that the Montana Supreme Court’s
determination that Garding’s counsel’s performance was not
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARDING V. MONTANA DEP’T OF CORR. 3
deficient was reasonable. The Montana Supreme Court
reasonably held that Garding’s counsel’s decision not to hire
an accident reconstruction expert was within the wide range
of professionally competent assistance and reasonably
concluded that Garding’s claim would require the court to
engage in second-guessing with 20/20 hindsight her
counsel’s choices, which Strickland v. Washington
forbids. The Montana Supreme Court’s determination of the
facts supporting its holding was also reasonable.
The panel held that the Montana Supreme Court
reasonably rejected Garding’s Brady claims, and thus
deferred to the Montana Supreme Court as 28 U.S.C.
§ 2254(d) requires. The Montana Supreme Court
reasonably held that the state had not in any way suppressed
evidence concerning x-rays of the victim, reasonably held
that Garding did not show that the non-disclosure of photos
from a different car crash was material, and reasonably
concluded that the photos did not establish that Garding was
not involved in the accident.
Dissenting, Judge W. Fletcher wrote that it is clear from
the trial and postconviction record that Garding is innocent,
but her innocence is not the legal basis for his agreement
with the district court, which held that trial counsel provided
ineffective assistance in failing to present evidence from an
accident reconstruction expert. Judge Fletcher agreed with
the district court because Garding established both deficient
performance and prejudice under Strickland and is entitled
to relief under AEDPA.
4 GARDING V. MONTANA DEP’T OF CORR.
COUNSEL
E. Lars Phillps (argued), Crowley Fleck PLLP, Bozeman,
Montana, for Petitioner-Appellee.
Roy Brown (argued), Assistant Attorney General; Austin
Knudsen, Montana Attorney General; Office of the Montana
Attorney General, Helena, Montana; Brad Fjeldheim,
Assistant Attorney General, Montana Department of Justice,
Agency Legal Services, Helena, Montana; for Respondent-
Appellant.
OPINION
R. NELSON, Circuit Judge:
We review on cross-appeals the district court’s partial
denial and partial grant of Katie Garding’s habeas petition.
We hold that the Montana Supreme Court reasonably
determined that Garding’s trial counsel was not
constitutionally deficient and that her Brady claims lacked
merit. We thus affirm the district court’s order denying the
Brady claims and reverse its grant of the ineffective
assistance claim.
I
A
Early New Year’s Day 2008, a vehicle hit and killed
Bronson Parsons. Parsons and his friend, Daniel Barry, were
walking westbound on the righthand side of Highway 200 in
East Missoula. The two planned to stop by Ole’s
Convenience Store and then go to last call at The Reno, a
casino and bar across the street.
GARDING V. MONTANA DEP’T OF CORR. 5
At around 1:40 am, a vehicle struck Parsons from
behind. Barry stated that he “felt . . . a rush of wind,” and
then Parsons was gone. Parsons “stuck to the front of the
car,” and then “came to rest off [of it.]” The vehicle,
described as a dark-colored SUV or truck, fled.
Trooper Novak of the Montana Highway Patrol (MHP)
responded. He found Parsons “lying . . . sideways on his
back.” He investigated, including by collecting evidence
and interviewing Barry. He did not find any of the striking
vehicle’s debris.
Later that day, two other MHP officers—Troopers Hader
and Wolfe—stopped Garding’s vehicle, a dark Chevrolet S-
10 Blazer. At the time, they were looking for a car with
heavy front-end damage. Trooper Hader testified that
Garding’s windshield was visibly cracked. After stopping
Garding, the officers saw that her car did not have full-front-
end damage, so the officers let her go. Later that week,
however, while examining Parsons’s body, Trooper Hader
realized Parsons’s injuries did not suggest a “full-frontal
impact.” The State then changed its investigation to look for
a minimally damaged car.
Around that time, MHP received a tip about Garding. A
man reported a dark Blazer with front-end damage. MHP
ran a registration check, identifying it as Garding’s car.
Trooper Novak contacted Garding’s father, whom he knew
personally, but did not speak with Garding.
The case went cold for about a year. Then an inmate in
Missoula, Teuray Cornell, claimed to have information
about the crash. Trooper Hader met with Cornell, who
thought Garding was involved. He divulged that he had
“taped up” Garding’s bumper’s turn indicator light right after
the crash, suggesting that it had recently been damaged.
6 GARDING V. MONTANA DEP’T OF CORR.
Trooper Hader then interviewed Garding. Based on
further investigation, Garding was charged with Vehicular
Homicide While Under the Influence or Negligent
Homicide, Failure to Stop Immediately at Accident Scene,
Tampering With or Fabricating Physical Evidence, and
Driving Without a Valid Drivers License based on a “totality
of the evidence.”
B
Garding’s criminal trial was in June 2011. A public
defender represented Garding. Garding maintained her
innocence.
What matters for this appeal is the State’s crash theory,
or how Garding’s car caused Parsons’s injuries. Garding
claims that her counsel was not able to effectively push back
against the State’s theory because her counsel did not use an
accident reconstruction expert and that the State kept
evidence from her. Several State witnesses testified about
the crash, including the three investigating MHP Troopers—
Strauch, Hader, and Novak—and expert witness Dr. Gary
Dale, who medically examined Parsons’s body. We discuss
the salient parts of the trial.
1
Each of the three Troopers testified about the crash,
including how Garding’s vehicle was involved.
Trooper Strauch testified about how the crash might have
happened. He used a method called “total station,” relying
on “an electronic distance measuring instrument,” to help
him gauge how far Parsons might have traveled from impact.
He estimated this to be about ninety feet. That said, he could
not identify the location where Parsons had been hit and
could not estimate the vehicle’s speed. He said that tire
GARDING V. MONTANA DEP’T OF CORR. 7
marks might have helped him estimate, but didn’t recall if
any were found.
Trooper Hader testified about how the scene pointed to
Garding’s vehicle. He thought Parsons’s injuries, which
differed from full-frontal impact injuries, fit the Blazer’s
minimal damage. He reasoned that, if Parsons’s full body
had struck the vehicle, there should have been some greater
evidence of impact, such as broken ribs or more bruising, but
that there was not. Trooper Hader thought that the crash was
likely a “swerving-type impact,” consistent with minimal
damage. He also thought Garding’s big, steel, aftermarket
bumper could explain the minimal front-end damage.
Trooper Novak testified about his interview with Barry.
He stated that Barry described seeing Parsons “on the hood
. . . by the windshield” after he was struck. He stated that
Barry also described Parsons being “carried” by the car and
falling onto the road.
The Troopers did not provide a comprehensive theory of
how the crash happened. None of them claimed to be an
expert in accident reconstruction, nor were they offered as
experts.
2
Dr. Dale’s autopsy identified the cause of death as blunt
force head injuries, resulting from when Parsons hit the
asphalt. He testified that, in his opinion, Parsons’ other
upper body injuries resulted from impact with the asphalt as
well. Parsons also suffered faint bruising and crushed calf
muscles, which Dr. Dale thought Garding’s bumper could
have caused as well. That said, he admitted that any bumper
of a similar height could have caused Parsons’s injuries.
8 GARDING V. MONTANA DEP’T OF CORR.
3
Garding’s counsel pushed back against the State’s crash
testimony. She called Dr. Thomas Bennett, an expert witness
in forensic pathology to rebut the State’s theory. During voir
dire, Dr. Bennett clarified that he did not “do accident
reconstruction,” but “usually work[ed] with other accident
reconstructionists” in similar types of cases. In his opinion,
the bruises on the back of Parsons’s legs “would not [have
been] caused by a bumper like” Garding’s but were “more
consistent with a more rounded bumper.” He thus concluded
that Garding’s “bumper could not have caused [Parsons’s]
injuries.”
Garding’s counsel extensively critiqued the State’s
theory of the crash during closing argument. She noted the
inconsistencies with the State’s theory presented during
Trooper Novak’s testimony and argued that it was “not
possible” that “Parsons [was] struck from behind going
backwards,” but “g[ot] forward 150 feet.” She also
mentioned that “[Garding’s] vehicle d[id] not have heavy
front-end damage.”
The jury found Garding guilty on June 10, 2011.
Garding was sentenced to forty years in prison. She was
released on parole on February 3, 2022.
C
Garding moved for habeas relief in state court. She
alleged ineffective assistance, Brady violations, and newly
discovered evidence. We discuss the evidence supporting
those claims still on appeal—the ineffective assistance and
Brady claims. As for the ineffective assistance claim,
Garding’s counsel represented that she had been
“ineffective.” On her Brady claims, Garding argued that the
GARDING V. MONTANA DEP’T OF CORR. 9
State did not disclose exculpatory evidence: (1) photographs
of a 2005 hit-and-run collision and (2) x-rays of Parsons’s
lower legs.
In 2018, the state court granted the State’s motion for
partial summary judgment on Garding’s Brady claim related
to the x-rays and her newly discovered evidence claim. The
court scheduled a hearing for the ineffective assistance
claim.
1
The hearing lasted two days. The court listened to
evidence on whether Garding’s counsel was ineffective for
not securing an accident reconstruction expert or conducting
a reasonable investigation. Several witnesses testified,
including Garding’s counsel, two concurring attorney
witnesses, and accident reconstruction experts.
Garding’s counsel claimed that she was ineffective
because she did not take “necessary steps” to consult and
secure an accident reconstruction expert. She claimed to be
isolated, overwhelmed, and without adequate help. That
said, she admitted that she had used such an expert in a
similar case and knew they could offer “valuable insight.”
She also admitted that she had help, including co-counsel
and investigators.
Two expert attorney witnesses concurred that she was
ineffective. That said, both acknowledged that defense
counsel can prefer cross-examination over expert testimony,
and that this can be an effective strategy.
Accident reconstruction experts also testified. One
claimed that he could “[a]bsolutely” “refute the . . . theories
presented at trial.” But he admitted that other data, which
was unavailable, would be needed for a “precise
10 GARDING V. MONTANA DEP’T OF CORR.
reconstruction.” Another admitted that the state usually
provides a “counter expert” who typically reaches different
conclusions.
The State offered a rebuttal accident reconstruction
expert, Trooper Smart. He explained that there usually is not
enough data to do a “full accident reconstruction” when the
car flees the scene or the speed or impact point are unknown.
He said that Garding’s experts used “[g]arbage data,”
including an illogical assumed speed.
2
In 2019, the state court denied all Garding’s habeas
claims. The state court held that Garding’s counsel’s trial
performance was not constitutionally deficient because,
among other things, she “effectively cross examined the
State’s witnesses.” The court rejected her contradictory
testimony, characterizing it as “self-serving” and “not
credible.” Instead, the court thought Garding’s counsel’s
choice was strategy, not error.
The state court found that Garding’s counsel made a
strategic decision to not use an accident reconstructionist and
that this decision was “reasonable.” The court based this
conclusion on several considerations. For example, the state
court found a lack of evidence to precisely determine the
speed of the vehicle. So, according to the state court,
Garding’s experts relied on faulty assumptions. Concluding
that not enough data justified use of an accident
reconstruction expert, the court found that Garding’s counsel
made a “calculated decision” to rely instead on cross-
examination.
The court also rejected the Brady claim. It held that there
was not enough information about the crash photos to assess
GARDING V. MONTANA DEP’T OF CORR. 11
their “relevancy” or “exculpatory value” and that they were
“not material.”
3
The Montana Supreme Court affirmed. Garding v. State,
466 P.3d 501 (Mont. 2020). It first analyzed Garding’s
ineffective assistance of counsel claims under the first part
of the two-prong test in Strickland v. Washington, 466 U.S.
668 (1984)—whether counsel’s performance was deficient.
Garding, 466 P.3d at 506–09.
The court found that Garding’s counsel’s performance
was adequate. First, it rejected Garding’s counsel’s “self-
proclaimed inadequacies,” as those “do not hold great
persuasive value with this Court.” Id. at 507. It then
determined that Garding’s counsel provided an “extensive
and strong defense.” Id. She “countered or sought to
undermine virtually every evidentiary contention introduced
by the State, and the jury was left with the unenviable task
of making numerous credibility determinations in order to
resolve evidentiary conflicts necessary to reach a verdict.”
Id.
The court identified several ways Garding’s counsel
performed adequately. For example, Garding’s counsel
retained a forensic pathologist, Dr. Bennett, to counter the
State’s only expert testimony. He testified extensively that
Garding’s bumper could not have caused Parsons’ injuries.
Id. Garding’s counsel also “elicited multiple concessions”
from the State’s expert, Dr. Dale, that “any other vehicle with
a bumper the same height as Garding’s could have caused
Parsons’ injuries.” Id.
The court also squarely rejected Garding’s argument that
failure to hire an accident reconstruction expert was
12 GARDING V. MONTANA DEP’T OF CORR.
deficient. Id. at 508. “Notably,” it pointed out, “the State
did not pursue [one] either.” Id. The court also stated that
Garding’s counsel “presented a strong defense.” Id. To
otherwise find for Garding, the court concluded, it “would
[be] require[d] . . . to engage in second guessing with ‘20/20
hindsight’ of the choices made by her counsel,” even though
Strickland does not allow this analysis. Id. The court thus
affirmed the denial of habeas relief without reaching
Strickland’s second prong. Id.
The court also affirmed the denial of Garding’s Brady
claims. As to the x-rays, their existence was disclosed, the
state’s expert referenced them, and Garding’s expert noted
that reference. Given that Garding’s “expert referenced” the
x-ray result and her counsel “examined witnesses based on
it,” the state court held that “Garding was not only aware of
the evidence . . . she . . . actively used it.” Id. at 510. Thus,
no Brady violation could be found. Id. As to the crash
photos, the court disagreed that the prosecution suppressed
them, given that they were independently obtained by the
expert after his testimony and “placed within his own file.”
Id. at 510–11. Thus, “it is unlikely Garding could have used
the photos to directly impeach Dr. Dale at all.” Id. at 511.
Moreover, even if he had, “the many distinctives between
the photographs and this case” would have likely made them
inadmissible. Id. As a result, they were neither “suppressed,
material nor exculpatory.” Id.
Garding unsuccessfully sought review in the United
States Supreme Court. Garding v. Montana, 141 S. Ct. 1076
(2021).
D
Garding next sought federal habeas relief. She argued
that the Montana Supreme Court unreasonably applied
GARDING V. MONTANA DEP’T OF CORR. 13
Strickland and that habeas relief was therefore available
under 28 U.S.C. § 2254(d)(1). The district court partially
granted the habeas petition and partially denied it. Garding
v. Montana Dep’t of Corr., No. CV 20-105-M-DLC, 2023
WL 3086883 (D. Mont. Mar. 27, 2023).
On the Strickland claim, the district court held that there
was ineffective assistance. Id. at *10. It claimed that “there
[was] no scenario under which” Garding’s counsel could
have thought an accident reconstruction expert “could have
inculpated her client.” Id. at *9. Thus, her failure to use such
an expert was constitutionally deficient, failing to satisfy
Strickland’s objectively reasonable requirement. Id. at *10.
The district court denied the Brady claims. Id. at *17–
19. It determined that “[t]he Montana Supreme Court
reasonably rejected [them],” and so the court “must afford
deference under . . . § 2254(d).” Id. at *17.
Garding filed an appeal in 2023. Montana timely cross-
appealed.
II
Garding raises two jurisdictional issues, which we
address from the start. See, e.g., Great S. Fire Proof Hotel
Co. v. Jones, 177 U.S. 449, 453 (1900) (“On every writ of
error or appeal, the first and fundamental question is that of
jurisdiction.”). First, Garding argues that this appeal is moot
because we cannot reinstate her criminal conviction, and so
cannot give relief to the State. Second, she argues we do not
have statutory jurisdiction under AEDPA. We reject both
arguments.
14 GARDING V. MONTANA DEP’T OF CORR.
A
We assess mootness by whether there is “a present
controversy” for which we can grant relief. All. for the Wild
Rockies v. Petrick, 68 F.4th 475, 485–86 (9th Cir. 2023)
(citation omitted). The party claiming mootness has a heavy
burden of proof. Forest Guardians v. Johanns, 450 F.3d 455,
461 (9th Cir. 2006). And the remedy need not be “fully
satisfactory.” Calderon v. Moore, 518 U.S. 149, 150 (1996)
(per curiam). If some relief can be granted, the case is not
moot. Forest Guardians, 450 F.3d at 461.
Garding argues that the state trial court’s release of her
from custody and the vacatur of her conviction deprives this
court of jurisdiction over her habeas appeal. This is because,
Garding claims, this court “has [no] power to alter [the] state
court order.” Thus, Garding claims we can grant no effective
relief, and the case is moot.
Garding relies on Brown v. Vanihel, 7 F.4th 666 (7th Cir.
2021)—an out of circuit case. There, a federal district court
granted Brown habeas relief. Brown, 7 F.4th at 668. The
State then asked to vacate Brown’s conviction and retry him.
Id. The state court vacated the conviction. Id. at 668–69.
Brown asked to dismiss the appeal, arguing that the vacatur
order mooted the State’s appeal. Id. at 669. The Seventh
Circuit agreed, holding that the vacatur of the conviction
took away its power to hear the case because the State’s
appeal concerned a nonexistent judgment. Id. Thus, it
dismissed the case as moot. Id.
The problem is that Brown is contrary to the Supreme
Court’s decision in Moore, and thus wrong. In Moore, the
Court held that a factually similar habeas appeal was not
moot. 518 U.S. at 149–50. The petitioner challenged his
conviction, and the district court granted relief, directing that
GARDING V. MONTANA DEP’T OF CORR. 15
he be released, or that the State have a new trial. Id. at 149.
“The State . . . set Moore for retrial.” Id. at 150. We held
this mooted the case. Id. The Supreme Court reversed,
holding that the new trial order did not amount to a situation
in which, “by virtue of an intervening event, a court of
appeals cannot grant ‘any effectual relief whatever.’” Id.
Although “the administrative machinery necessary for a new
trial ha[d] been set in motion, that trial ha[d] not yet even
begun, let alone reached a point where the court could no
longer award any relief in the State’s favor.” Id. At a
minimum, “a decision in the State’s favor would release it
from the burden of [a] new trial.” Id. Thus, at least some
relief was available. Id. (citing Mills v. Green, 159 U.S. 651,
653 (1895)).
Here, just as in Moore, the state court judgment was set
aside only because of the district court’s habeas decision.
This started a process for a new trial in state court. True, the
district court below did not set aside the judgment directly.
But that does not justify ignoring Moore. The State here
moved for a new trial in state court only under compulsion
of the habeas order, which otherwise barred retrial. That was
when the state court vacated the conviction and set a new
trial. Indeed, the state court order vacated conviction
“[p]ursuant to the Order in the United States District Court
for the District of Montana, Missoula Division, cause
number CV-20-105-M-DLC and based upon the State’s
Motion to Renew Proceedings filed in compliance with that
order.” (emphasis added). Reversal of the district court’s
order would remove the current federal court impediment to
any state court reinstatement of the judgment and
cancellation of the new trial. Reversal would, as in Moore,
“release [the state of] the burden of the new trial itself.” 518
U.S. at 150.
16 GARDING V. MONTANA DEP’T OF CORR.
Brown conflicts with Moore and did not consider Moore.
In both Brown and Moore, the underlying conviction was
vacated. Moore, 518 U.S. at 149; Brown, 7 F.4th at 668–69.
Brown suggests that this was enough to take away our power
to hear the case, because “[i]f the state court vacates the
underlying judgment, there is usually nothing more for the
federal courts to do.” Id. at 669. But Moore held the
opposite; federal courts can relieve the state of the burden of
a new trial. 518 U.S. at 150.
Brown also conflicts with the Supreme Court’s holding
in Eagles v. U.S. ex rel. Samuels, 329 U.S. 304, 307–08
(1946). There, the Court held that even where “the writ has
been granted and the prisoner released,” an appellate court
can still “affect the litigants in the case before it” because
“[r]eversal undoes what the habeas corpus court did and
makes lawful a resumption of the custody.” Eagles, 329 U.S.
at 307–08. Brown sought to distinguish Eagles because the
latter did not involve a vacatur of an underlying conviction.
7 F.4th at 672. But that is a difference without a distinction.
Garding was formerly “in custody” as a state parolee before
the district court’s grant of habeas relief. See Thornton v.
Brown, 757 F.3d 834, 841 (9th Cir. 2013) (“A state parolee
is ‘in custody’ for purposes of the federal habeas statute.”).
Thus, just as in Eagles, a reversal would allow a “resumption
of the custody” that had been challenged in habeas corpus.
The state court’s vacatur of Garding’s conviction did not
moot this case. The new trial against Garding has not yet
begun, and by reversing the district court’s order, we can
provide Montana with relief.
B
Garding also argues that AEDPA does not give us power
to hear this case because she is no longer in “custody.”
GARDING V. MONTANA DEP’T OF CORR. 17
Binding precedent, however, forecloses this statutory
interpretation. The statute asks whether the petitioner was
“in custody” under the “judgment of a State court” when the
petition was filed. Stow v. Murashige, 389 F.3d 880, 885
(9th Cir. 2004) (quotations omitted); see Maleng v. Cook,
490 U.S. 488, 490–91 (1989) (“We have interpreted the
statutory language as requiring that the habeas petitioner be
‘in custody’ under the conviction or sentence under attack at
the time his petition is filed.”); Carafas v. LaVallee, 391 U.S.
at 234, 238 (1968) (“The federal habeas corpus statute
requires that the applicant must be ‘in custody’ when the
application for habeas corpus is filed.”). All agree that
Garding was “in custody” under the underlying state
conviction when she filed her habeas petition. Jurisdiction
attached at that time.
III
We turn to the merits. We review a district court’s grant
or denial of a habeas petition de novo. Earp v. Davis, 881
F.3d 1135, 1142 (9th Cir. 2018); Wilkinson v. Gingrich, 806
F.3d 511, 515 (9th Cir. 2015). We apply “AEDPA’s standard
of review to the ‘last reasoned state-court decision.’”
Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021)
(quoting Martinez v. Cate, 903 F.3d 982, 991 (9th Cir.
2018)). That standard is “highly deferential.” Davis v.
Ayala, 576 U.S. 257, 269 (2015). As relevant here, by
AEDPA’s terms, we can reverse a state court decision only if
the “decision . . . was contrary to, or involved an
unreasonable application of, clearly established” Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). Guided by these
principles, we defer to the Montana Supreme Court’s
application of Strickland and Brady.
18 GARDING V. MONTANA DEP’T OF CORR.
A
In reviewing an ineffective assistance claim, we ask
“whether the state court’s application of the Strickland
standard was unreasonable.” Harrington v. Richter, 562
U.S. 86, 101 (2011). “This is different from asking whether
defense counsel’s performance fell below Strickland’s
standard.” Id.
We first evaluate whether the Montana Supreme Court
reasonably applied Strickland when it held that Garding’s
counsel’s performance was not deficient. Strickland, 466
U.S. at 687. Because we hold that it did, we do not reach the
second part of the Strickland test. Id. at 697 (“[T]here is no
reason for a court deciding an ineffective assistance
claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”).
The Montana Supreme Court’s determination that
Garding’s counsel’s performance was not deficient was
reasonable. First, the state court reasonably held that
Garding’s counsel’s decision not to hire an expert was within
the “wide range of professionally competent assistance.”
Garding, 466 P.3d at 508 (citing Whitlow v. State, 183 P.3d
861, 866 (Mont. 2008) (quoting Strickland, 466 U.S. at
690)). It also reasonably held that Garding’s counsel’s
defense was strong, and that she effectively countered the
State’s case. Id. at 507. It further reasonably concluded that
Garding’s claim would require “the Court to engage in
second guessing with ‘20/20 hindsight’” her counsel’s
choices, which Strickland forbids. Id. at 508.
The district court held that because no reasonable
defense attorney would have failed to use an accident
reconstruction expert here, the Montana Supreme Court
unreasonably held that Garding’s counsel acted within the
GARDING V. MONTANA DEP’T OF CORR. 19
range of professional competence. See Garding, 2023 WL
3086883, at *8–10. We disagree. The Montana Supreme
Court reasonably applied Strickland to the facts as found by
the Montana Supreme Court. These facts included that at
trial, the State elected not to present any expert. Garding,
466 P.3d at 508 (“Notably, the State did not pursue an
accident reconstruction [expert] either.”) And, the state high
court concluded, Garding’s counsel “countered or sought to
undermine virtually every evidentiary contention introduced
by the State.” Id. at 507.
The state trial court also rejected Garding’s counsel’s
representations as “self-serving statements” contradicted by
other testimony. And then, holding that counsel’s testimony
was not credible, the state trial court reviewed the total
record, and concluded that counsel made a “strategic
decision” not to use an accident reconstruction expert. The
state trial court’s analysis is reasonable under our highly
deferential review.
The dissent faults the Montana Supreme Court for
relying too much on Garding’s counsel’s representations
while not discussing Garding’s post-conviction accident
reconstruction evidence. Dissent at 41. But the dissent’s
analysis is flawed. The postconviction accident
reconstruction experts’ evidence was considered by the trial
court but only related to the prejudice issue, not the
deficiency issue. The Montana Supreme Court’s decision to
deny Garding’s claims because her counsel’s performance
was not deficient was reasonable. Thus, the Montana
Supreme Court did not separately address the prejudice
issue. See Strickland, 466 U.S. at 697. The dissent collapses
these two inquiries by concluding that Garding’s counsel’s
performance was deficient because an accident
reconstruction expert’s “testimony would have been
20 GARDING V. MONTANA DEP’T OF CORR.
devastating to the State’s case.” Dissent at 40. Put
differently, the dissent argues that Garding’s counsel was
necessarily deficient because Garding was prejudiced. The
dissent’s argument violates Strickland’s very dictates that
“[a] fair assessment of attorney performance requires every
effort be made to eliminate the distorting effects of
hindsight.” See Strickland, 466 U.S. at 689.
Moreover, the Montana Supreme Court reasonably
concluded that Garding’s counsel mounted a strong defense.
And, as part of this defense, Garding’s counsel relied on the
State’s disjointed presentation to cast doubt on the State’s
case. The Montana Supreme Court’s conclusion that this
was a strategic decision over using an accident
reconstruction expert was reasonable, especially given that
Garding’s counsel had used an accident reconstruction
expert before.
This conclusion follows Richter. There, the petitioner
claimed his counsel was constitutionally deficient because
he failed to secure expert testimony on blood evidence.
Richter, 562 U.S. at 96. The Supreme Court disagreed,
holding that “[i]t was at least arguable that a reasonable
attorney could decide to forgo [the] inquiry.” Id. at 106.
This is because “making a central issue out of blood
evidence would have increased the likelihood of the
prosecution’s producing its own evidence on the blood
pool’s origins and compositions,” and “there was a serious
risk that expert evidence could destroy Richter’s case.” Id.
at 108.
The state courts reasonably concluded that a similar risk
was present here. As the state trial court noted, there was “a
counter-analysis” presented at the post-conviction hearing
that argued for a conclusion consistent with Garding’s guilt.
GARDING V. MONTANA DEP’T OF CORR. 21
The State’s expert presented a crash theory that tracked the
minimal injuries to Parsons, minimal damage to Garding’s
vehicle, and reflected the eyewitness testimony.
The dissent objects to the State’s use of the Troopers’
testimony about their investigation of the accident, claiming
that the Montana Supreme Court was wrong in stating that
the State did not pursue an accident reconstruction. Dissent
at 41. But the Troopers were never offered or formally
qualified as experts, and the Montana Supreme Court
reasonably concluded that whatever limited opinions they
offered did not amount to the sort of “accident
reconstruction” that Garding now contends that her counsel
should have done. See Garding, 466 P.2d at 504. This
reasonable finding is one that we may not second-guess on
AEDPA review. See 28 U.S.C. § 2254(d). The dissent’s
citation to Duncan v. Ornoski, 528 F.3d 1222, 1235 (9th Cir.
2008), Dissent at 41–42, does not change this. There, we
simply said it was possible that when the prosecution puts up
an expert witness, a defense counsel’s failure to put up their
own rebuttal expert may constitute deficient performance.
Ornoski, 528 F.3d at 1235. But the State did not offer expert
testimony. The dissent’s reinterpretation of the facts to
suggest they did is inappropriate under AEDPA review and
undermines Richter’s holding that it is sometimes strategic
for defense counsel not to pursue expert testimony. See 562
U.S. at 106.
The district court wrongly held that the Montana
Supreme Court unreasonably applied Strickland. Garding,
2023 WL 3086883, at *8. The Montana Supreme Court’s
decision was a reasonable application of Strickland. See
§ 2254(d). Likewise, its determination of the facts
supporting this holding was also reasonable. See id. The
22 GARDING V. MONTANA DEP’T OF CORR.
district court misapplied the law and misconstrued the record
in holding otherwise. 1
B
Garding claims that her constitutional rights were
violated because the prosecution failed to disclose evidence.
See Brady v. Maryland, 373 U.S. 83, 87 (1963). She has two
theories. First, the prosecution did not disclose x-rays of
Parsons’s leg. Second, they did not disclose unrelated crash
scene pictures. Garding claims that if she had had either, she
might have been found not guilty.
“A Brady violation occurs when the government fails to
disclose evidence materially favorable to the accused.”
Youngblood v. W. Virginia, 547 U.S. 867, 869 (2006).
Evidence is “material only if there is a reasonable probability
that, had [it] been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable
probability’ is [one] sufficient to undermine confidence in
the outcome.” Amado v. Gonzalez, 758 F.3d 1119, 1139 (9th
Cir. 2014) (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)).
1
The dissent concludes that, in light of the new evidence developed in
the state habeas proceedings, Garding’s showing of prejudice is strong
enough to conclude that she is “innocent.” Dissent at 43. But we cannot
reach the issue of prejudice unless we are able first to conclude, applying
the deference required by AEDPA, that the state court unreasonably
applied the “highly deferential” Strickland standard for assessing
“counsel’s performance.” Cullen v. Pinholster, 563 U.S. 170, 190
(2011). The dissent fails to apply this “doubly deferential” standard of
review. Id. It also relies extensively on “the distorting effects of
hindsight,” rather than assessing counsel’s performance “from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. We thus reiterate
that we cannot and do not reach the issue of prejudice.
GARDING V. MONTANA DEP’T OF CORR. 23
We agree with the district court that the Montana
Supreme Court reasonably rejected Garding’s Brady claims.
We thus defer to the Montana Supreme Court’s conclusions
as § 2254(d) requires.
1
Garding alleged that the State violated Brady by failing
to turn over x-rays of the victim. Dr. Dale, the State’s expert
and the medical examiner who performed the autopsy,
created an x-ray of Parsons’s injuries. The x-ray was never
provided to Garding’s counsel. That said, Garding’s counsel
received a summary of the x-ray, which she used effectively
at trial.
Garding relies on her expert, Dr. Bennett, to show that
the x-rays were “impeaching and exculpatory.” Dr. Bennett
explained that the x-rays showed a “slight hairline fracture,”
which would have “cast[] doubt upon and undermine[d] the
State’s case.” Dr. Bennett concluded that the x-ray confirms
that Garding’s Blazer was not involved because its custom
bumper would have caused more damage to Parsons’s leg.
Similarly, Garding argues that the x-ray would have
undermined Dr. Dale’s testimony that the injuries pointed to
the Blazer.
The Montana Supreme Court reasonably concluded that
Garding’s theory does not show a Brady violation. Brady
requires the disclosure of exculpatory or impeaching
evidence that, “if disclosed and used effectively, . . . may
make the difference between conviction and acquittal.”
Bagley, 473 U.S. at 676. As the Montana Supreme Court
noted, the existence of the x-rays was disclosed, a summary
of what was shown by the x-rays was discussed by both
experts, and defense counsel “examined witnesses based on
it.” Garding, 466 P.3d at 510. The Montana Supreme Court
24 GARDING V. MONTANA DEP’T OF CORR.
reasonably held that the state had not “in any way suppressed
the evidence.” Id.
2
Garding also argues that the State violated Brady by not
disclosing exculpatory pictures from a different car crash.
Three days after he testified, Dr. Dale discovered photos of
a victim and vehicle connected to a different crash. Garding,
466 P.3d at 510. These showed similar injuries to the victim,
but different damage to the vehicle. Dr. Dale explained that
he thought they might be helpful if he was called as a rebuttal
witness. But he never was. Id. He did not use the photos to
form his testimony. And after reviewing them, he did not
change his mind. Id.
The Montana Supreme Court reasonably held that
Garding did not show that the non-disclosure of these photos
was material. The photos were from a crash with “many
distinctives” from this case—differences that made the
Montana Supreme Court question the likelihood of the
photos’ admissibility. Id. at 511. More importantly, the
Montana Supreme Court reasonably concluded that the
photos did “not establish that Garding was not involved in
the accident.” Id.
IV
The Montana Supreme Court was objectively reasonable
in determining that Garding failed to establish an ineffective
assistance of counsel claim under Strickland or any Brady
violations.
AFFIRMED IN PART AND REVERSED IN PART.
GARDING V. MONTANA DEP’T OF CORR. 25
W. Fletcher, J., dissenting.
The district court granted petitioner Katie Garding’s
federal habeas petition, holding that her trial counsel
provided ineffective assistance in failing to present evidence
from an accident reconstruction expert. The majority
concludes that the district court erred. I disagree and would
affirm the district court.
This case is a miscarriage of justice. It is clear from the
trial and postconviction record that Garding is innocent.
I. Background
On January 1, 2008, at about 1:40 a.m., Bronson Parsons
was walking beside his friend Daniel Barry on the side of
Highway 200 in East Missoula, Montana. A vehicle struck
Parsons from behind. Barry told state troopers who arrived
on the scene that the vehicle had been a rounded, dark
colored SUV or truck. He testified at trial that the vehicle
had been traveling “extremely fast,” “too fast” for someone
to survive. Barry recounted, “[A]ll of a sudden [Parsons]
was gone. I felt like a rush of wind.” He told a trooper who
arrived at the scene that the vehicle had been traveling at
about 60 miles per hour, and that Parsons had been “on the
hood and up by the windshield.” He testified that when the
vehicle slowed down, Parsons slid off the hood onto the
ground.
Another eyewitness, Deborah Baylor, was driving in the
opposite direction on Highway 200 when Parsons was hit.
Baylor testified that she saw a dark colored vehicle hit
Parsons. “I think they were going regular speed.” The
vehicle, a “little bit smaller” than a Cadillac Escalade, had
“rounded edges.” “[I]t was so fast. . . . I saw something get
26 GARDING V. MONTANA DEP’T OF CORR.
hit and—and then I hear a—it’s like a pop, like a quick
bang.”
When State Trooper Andrew Novak arrived at the scene,
Parsons was on the ground and “agonally breathing.”
Parsons had blood coming “from his stomach area” and
“from his head, the back of his head, and his mouth.” Based
on Barry’s description of what had happened, Novak
believed that the striking vehicle would have sustained
“heavy, front-end damage.” Parsons was taken to the
hospital and was later pronounced dead. Windshield glass
was recovered from Parsons’ clothing.
Later that morning, Montana Highway Patrol troopers
were on the lookout for vehicles with broken windshields.
About twelve hours after Parsons was hit, Trooper Richard
Hader stopped Garding in East Missoula because she had a
cracked windshield. She was quickly released because the
crack in her windshield was old and there was no observable
damage to her vehicle.
About a year later, after the case had gone cold, a jail
inmate named Teuray Cornell contacted Trooper Hader,
saying he had information about who had hit Parsons.
Cornell made it clear that in exchange for his testimony he
wanted to get out of jail. Cornell’s call rekindled interest in
Garding. Garding was ultimately charged with having killed
Parsons.
According to the Montana Innocence Project, Garding
was offered an extremely favorable deal under which, in
return for a guilty plea, she would receive a suspended
sentence and no prison time. Montana Innocence Project,
Katie Garding, https://mtinnocenceproject.org/katie-
garding-2/ [https://perma.cc/NY4Y-BG5P]. Garding, who
has consistently said she was innocent, rejected the deal.
GARDING V. MONTANA DEP’T OF CORR. 27
The case was tried to a jury in June 2011. Garding was
represented by Jennifer Streano, a Montana Public Defender.
Streano had four-and-half years of criminal defense
experience and had previously been lead counsel in only one
homicide case.
The jury found Garding guilty of vehicular homicide,
failure to stop, and driving without a license. She was
sentenced to a term of 30 years for the homicide, a
consecutive term of 10 years for failure to stop, and a
concurrent term of 6 months for driving without a license.
The Montana Supreme Court affirmed. State v. Garding, 315
P.3d 912 (Mont. 2013). Montana trial court denied
Garding’s petition for postconviction relief, and the
Montana Supreme Court again affirmed. Garding v. State,
466 P.3d 501 (Mont. 2020).
Garding timely filed a federal habeas petition under 28
U.S.C. § 2254. After giving the deference required by the
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), the district court granted habeas relief, holding
that in denying Garding’s ineffective assistance of counsel
claim, the Montana Supreme Court had unreasonably
applied Strickland v. Washington, 466 U.S. 668 (1984).
A. Trial Court Evidence
The State’s case against Garding relied heavily on
testimony from James Bordeaux, Garding’s ex-boyfriend.
Bordeaux had been one of two passengers in Garding’s
vehicle on the night Parsons was killed. In exchange for his
testimony, Bordeaux obtained a favorable plea deal on an
unrelated burglary charge. The State had indicated that it
intended to pursue a persistent felony offender designation
against Bordeaux, exposing him to a potential sentence of up
28 GARDING V. MONTANA DEP’T OF CORR.
to 100 years. In exchange for Bordeaux’s testimony, the
State agreed to recommend a five-year suspended sentence.
Bordeaux testified at trial that on the night of the
accident, Garding had been driving and that he had been in
the front passenger seat. He testified that after he turned to
argue with Paul McFarling, who was in the back seat, about
McFarling’s handgun, he felt an impact and saw “[a] person
flying through the air.” Bordeaux was asked, “How do you
know it’s a person?” He answered, “I mean you can tell.
Two feet. Two arms.”
Before he testified at trial, Bordeaux’s story had changed
several times. After he agreed to a plea deal, Bordeaux was
unable to locate where the fatal accident had occurred.
Trooper Hader asked Bordeaux about the sequence of events
and the location of the accident six different times.
Bordeaux consistently denied traveling east from The Reno,
the bar where he, McFarling, and Garding had been drinking
before getting into Garding’s vehicle. Parsons was east of
The Reno when he was killed.
After Trooper Hader told Bordeaux where the accident
occurred, Bordeaux changed his story to match that location.
Bordeaux also changed his narrative of the evening several
times. For example, Bordeaux originally claimed that
Garding’s vehicle had “rolled over” something, and that
“Garding would have stopped if she knew she hit
something.” At trial, Trooper Novak was asked whether it
was his opinion that Bordeaux had made inconsistent
statements. Novak responded, “That would not be my
opinion. That would be fact.”
Bordeaux’s testimony conflicted with the testimony of
Barry, who had been walking beside Parsons. According to
Barry, Parsons had not flown through the air, with his arms
GARDING V. MONTANA DEP’T OF CORR. 29
and legs visible. Rather, Barry testified that after Parsons
was struck, he was carried by the vehicle across its hood and
windshield and that he slid off the hood when the vehicle
stopped.
Bordeaux’s testimony also conflicted with the testimony
of Paul McFarling, Garding’s back-seat passenger.
McFarling testified that he had spent the evening drinking at
The Reno with Garding and Bordeaux, and that the three of
them had left The Reno in Garding’s vehicle in search of
cocaine. He testified that when they were driving near the I-
90 underpass he had argued with Bordeaux about a handgun.
The underpass is a considerable distance from where Parsons
was killed. When Trooper Novak told McFarling that
Bordeaux had said that Garding had hit Parsons, McFarling
told Novak that Bordeaux’s story was “ridiculous” and “pure
fiction.” He told Novak that “there was not one cell or
molecule in his body that believed Katie Garding hit
anything that night.” The county attorney offered McFarling
an immunity deal on an unrelated charge if he testified
against Garding, but McFarling refused the deal. When
McFarling testified at trial, he was asked, “And without a
doubt, while you were in the vehicle with them, she hit
nothing that night[?]” He answered, “She hit nothing.”
Cornell, the jailhouse inmate who had rekindled interest
in Garding, was not called to testify by the State because his
story was replete with inconsistencies and contradictions.
Instead, Cornell was called by Garding to underline the
weakness of the State’s case.
Cornell had initially told Trooper Hader that he had
taped a light back onto the front of Garding’s vehicle the day
after Parsons was killed. Cornell’s statement conflicted with
Hader’s own observations. Hader had stopped Garding’s
30 GARDING V. MONTANA DEP’T OF CORR.
vehicle in the late morning the day of the accident because
of the crack in her windshield. Damage to the light, as
described by Cornell, would have been easily and
immediately visible. Yet Hader testified at trial that he had
observed no damage to the front of Garding’s vehicle.
Cornell had originally told the authorities that Bordeaux
was the driver and that Garding was performing a sexual act
on him when Parsons was hit. Later, after Bordeaux was
placed in a pod with Cornell at the Missoula County
Detention Center, Cornell changed his story to say that
Garding had been driving. Michael Crawford, Cornell’s
cellmate at the time, testified that Cornell had told him that
he was going to lie and say that Garding had been driving.
The prosecution called the state medical examiner, Dr.
Gary Dale, to testify about Parsons’ injuries. Dr. Dale
testified that the cause of death was a skull fracture caused
by contact with asphalt. He testified that the location of
injuries to both of Parson’s calves and a fracture of his left
fibula was consistent with the height of the bumper on
Garding’s vehicle. The prosecutor asked only about the
height of the bumper. He did not ask whether Garding’s
bumper, which was an unusual square-edged after-market
front bumper, could have caused the injuries to Parsons’
calves.
Garding called Dr. Thomas Bennett, a forensic
pathologist, who testified that the unusual bumper on
Garding’s vehicle could not have caused the injuries to
Parsons’ calves. Dr. Bennett testified, “This is not the mark
a square bumper like this would leave.” Rather, “these
bruises are more consistent with a rounded bumper.”
The State relied on Troopers Strauch, Hader, and Novak
to reconstruct the accident. Trooper Strauch testified that he
GARDING V. MONTANA DEP’T OF CORR. 31
had received over 160 hours of crash investigation training,
16 hours of training on forensic mapping software, and
another 80 hours of training in “reconstruction school.”
Strauch had drawn a map of the scene of the crash that was
introduced into evidence.
Trooper Hader testified that he had training as a
“technical crash investigator,” had completed over 240 hours
of “crash reconstruction” course work, and had responded to
1,600 crashes over sixteen years. Hader testified that he had
initially searched for a vehicle with heavy front-end damage
caused by a “full-frontal impact,” based on Barry’s
description of the crash. He testified that he changed his
mind about the nature of the impact after he personally
inspected Parsons’ body at the funeral home two days after
crash: “Upon examining the body, it was evident to me that
we didn’t have a full-frontal impact with the injuries that the
body showed to us. . . . Basically all I saw on Mr. Parsons
was a bruise on his left calf [in addition to] his head injury
that happened when he hit the pavement.” Based on what he
perceived as a minor injury only to Parsons’ left calf, Hader
concluded that the vehicle had not hit Parsons with “full-
frontal impact.” Rather, in Hader’s opinion, the vehicle had
swerved and merely clipped Parsons on his left side. Hader
discounted Barry’s eyewitness testimony that Parsons had
been on the vehicle’s hood as “pretty much . . . impossible.”
“I feel what he saw was Mr. Parsons being flipped by the
vehicle.”
Trooper Novak testified that he had worked for the
Montana Highway Patrol for about five years and that he had
been trained at the Advanced Traffic Enforcement Academy
and had received additional field training. Novak had been
the first trooper to arrive at the scene. He estimated the
distance between the point of impact and where Parsons was
32 GARDING V. MONTANA DEP’T OF CORR.
found as somewhere between 90 and 150 feet. He testified
that he had originally believed that the striking vehicle
would have sustained “heavy, front-end damage.” Novak
testified that he accompanied Trooper Hader to the funeral
home to examine Parsons’ body. After that visit and after
gathering “more information,” he concluded that he “should
be looking for a vehicle with minor front-end damage on the
right side.” Novak said that he described the impact to Dr.
Dale as “more of a clip.”
Streano was not prepared to refute the troopers’ accident
reconstruction testimony. She did not object to any of their
testimony on the ground that they had not been qualified as
experts. She had not consulted an accident reconstruction
expert and offered no expert testimony of her own.
B. Postconviction Evidence
In 2015, Garding sought postconviction relief in state
court. She was represented by the Montana Innocence
Project. Garding presented evidence from three accident-
reconstruction experts: Keith Friedman, an expert in
pedestrian impact crash reconstruction with over thirty-five
years of experience; David Rochford, an expert in a crash
reconstruction with over forty years of experience; and Dr.
Harry W. Townes, an expert in crash reconstruction with
over fifty years of experience. All three experts concluded
that the State’s theory of the accident was impossible. In
Friedman’s words, the State’s theory “violates the laws of
physics.”
The experts identified critical flaws with the State’s
theory. Most important was the fact that there was no
damage to Garding’s vehicle. Given the nature and extent
of Parsons’ injuries, the experts each concluded that the
impact would have caused significant damage to the bumper
GARDING V. MONTANA DEP’T OF CORR. 33
and the windshield. In addition to the injury to Parsons’ legs,
they pointed to an abrasion on his left shoulder consistent
with the size and shape of a windshield wiper and shards of
windshield glass on Parsons’ clothing. Further, if the
accident had occurred in the manner posited by the State,
Parsons would have struck a radio antenna at the base of the
windshield on the passenger side of Garding’s vehicle. The
antenna was undamaged.
The experts also all concluded that Parsons’ leg injuries
could not have been caused by Garding’s square-edged
bumper. Her bumper had no shock absorbing capacity.
Friedman concluded that Parsons’ leg injuries were instead
consistent with a modern rounded bumper with shock-
absorbing technology. Friedman’s simulations showed there
would have been “catastrophic fractures” to both of Parsons’
legs if Garding’s bumper had hit him, even if her vehicle had
only been going 15 mph. Rochford similarly concluded that
Garding’s bumper would have caused far more damage to
Parsons’ legs. Dr. Townes concluded that, given the nature
of the front bumper, if Garding’s vehicle had struck Parsons,
the tibias and fibulas in both of his legs would have been
broken.
KARCO Engineering LLC, an automotive and safety
testing firm, conducted a physical crash test using a nearly
exact replica of Garding’s vehicle, including her customized
bumper. The test vehicle traveled at 35 miles per hour (the
speed limit on Highway 200) and hit a stationary 198-pound
dummy. The dummy victim was hit in the legs by the front
of the test vehicle. The dummy’s head then struck the hood
and windshield. The vehicle’s grille and trim around the
passenger side headlight were broken in several places; the
hood was badly dented; and the windshield was broken and
dented by several inches. Two photographs were put into
34 GARDING V. MONTANA DEP’T OF CORR.
evidence, illustrating the difference between Garding’s
undamaged vehicle and the damaged test vehicle:
Garding’s Vehicle KARCO Test Vehicle: Post-
Crash
The three experts unanimously concluded that Garding’s
undamaged vehicle could not have possibly struck Parsons.
According to Friedman, the State’s theory of the case was a
“physical impossibility.” He concluded categorically,
“Systems analysis proves that Ms. Garding’s vehicle was not
involved in the death of Mr. Parsons.” Dr. Townes wrote
that it was “beyond a reasonable doubt” that Garding’s
vehicle did not strike Parsons. Rochford wrote that
Garding’s “Blazer was obviously not the vehicle that struck
Mr. Parsons.”
The State changed its theory in response to Garding’s
expert evidence. The State’s theory at trial had been that the
vehicle had been traveling somewhere between a high and
normal rate of speed, as Barry and Baylor had testified, and
that the right side of the vehicle had “clipped” Parsons, as
Troopers Hader and Novak had testified. Now, on
GARDING V. MONTANA DEP’T OF CORR. 35
postconviction review, in an unsigned and undated report by
Trooper Philip Smart, the State advanced an entirely new
theory.
Trooper Smart recounted in his report that he had
received “over 300 hours of instruction in crash
investigation” and was “an instructor a[t] the Montana Law
Enforcement Academy on the subject.” His report
concluded, contrary to the evidence the State had presented
and relied upon at trial, that Garding’s vehicle had been
traveling “below 20 mph,” perhaps as low as 12–16 mph.
Smart speculated, “If driven by a distracted and/or impaired
driver who may have intended to pull over, it might have
been going slowly and sneaked up behind Mr. Parsons and
Mr. Barry.”
Trooper Smart wrote, “Mr. Barry never said the vehicle
was going fast.” “[T]he collision was a low-speed carry.
This matches Barry’s description of the collision[.]”
Trooper Smart’s description of Barry’s evidence was flat
wrong. Barry had described the vehicle as traveling
“extremely fast.” He estimated its speed as 60 mph. Smart’s
description was also inconsistent with Baylor’s testimony.
Baylor, who had been on Highway 200 driving the other
direction, estimated the vehicle’s speed as “regular speed.”
Garding’s three experts disagreed vehemently with
Trooper Smart. Dr. Townes wrote that Smart had
misapplied scientific methods. Friedman wrote that Smart
provided “a deeply flawed analysis.” “His whole premise
relied on his misunderstanding of the injuries received and
then misusing a table in a paper with the erroneous injury
information.” Rochford criticized Smart for failing to
observe the appropriate professional standards of crash
reconstruction procedure, and accused Smart of failing to
36 GARDING V. MONTANA DEP’T OF CORR.
read or understand the articles cited in his report. Rochford
concluded, “It is astonishing that the state proceeded on a
vehicular manslaughter case, without first having an analysis
and reconstruction performed by an expert qualified in the
field of auto [v.] pedestrian crashes.”
Streano, Garding’s trial lawyer, testified during
postconviction proceedings that she had failed “to take
necessary steps to consult with an accident reconstruction
expert and secure appropriate testing,” “failed to request
funding to secure testing,” “failed to request more time to
secure testing,” and failed to make an investigation into the
use of accident reconstruction in support of Garding’s
defense. She testified that her “failure to take these steps had
nothing to do with strategy.” Defense investigator Mori
Woods also testified that she and Streano never discussed the
possibility of consulting with or procuring an accident
reconstructionist during the investigation leading up to
Garding’s trial.
Two experienced criminal defense attorneys testified
that Streano had provided ineffective assistance. David
Ness, who had been a criminal defense attorney for over 30
years, and Wendy Holton, who had practiced law in
Montana since 1989, testified that an accident reconstruction
was the most critical aspect of the case, and that Streano’s
failure to consider employing an expert in the field fell below
an objective standard of reasonableness under prevailing
professional norms.
II. Discussion
The Sixth Amendment guarantees a criminal defendant’s
right to effective assistance of counsel. This right is “beyond
question a fundamental right.” Kimmelman v. Morrison,
477 U.S. 365, 374 (1986). “[I]t assures the fairness, and thus
GARDING V. MONTANA DEP’T OF CORR. 37
the legitimacy, of our adversary process.” Id. at 378.
“[A]ccess to counsel’s skill and knowledge is necessary to
accord defendants the ‘ample opportunity to meet the case
of the prosecution’ to which they are entitled.” Strickland,
466 U.S. at 685. To prevail under Strickland, a defendant
must demonstrate, first, that counsel’s performance fell
below an objective standard of reasonableness and, second,
that the defendant was prejudiced by reason of counsel’s
actions. Kimmelman, 477 U.S. at 375.
The Montana Supreme Court denied Garding’s
ineffective assistance claim under Strickland’s first prong,
holding that Streano’s performance was professionally
competent. Garding, 466 P.3d at 507. The Court wrote,
“Our examination of the trial record ‘in light of all the
circumstances,’ leads us to the conclusion that Garding’s
trial counsel presented an extensive and strong defense.” Id.
(internal citation omitted). “Against the entirety of the trial
record, Garding claims ineffective assistance because her
counsel did not pursue another possible defense tactic—the
hiring of an accident reconstructionist. Notably, the State
did not pursue an accident reconstruction either. . . . [T]he
trial record here proves convincingly that Garding’s counsel
provided a strong defense.” Id. at 508. The Court did not
reach Strickland’s second prong.
Justice Gustafson dissented. She wrote, “[E]ffective
cross-examination did not and could not counter officer
testimony about the mechanics of the collision. Expert
testimony to explain why the scenario offered by the officers
violated the laws of physics and could not have occurred was
required.” Id. at 517 n. 4 (Gustafson, J., dissenting). “[I]t
was constitutionally deficient to allow the State to put on
non-expert opinions about the mechanics of the impact
without any counter. The officer[s’] testimony likely carried
38 GARDING V. MONTANA DEP’T OF CORR.
much weight with the jury and trial counsel failed to provide
expert evidence to support an alternative scenario or to
explain that the State’s theory violated the laws of physics
and was not physically possible.” Id. at 517.
Garding sought federal habeas under 28 U.S.C. § 2254.
Applying the deferential standard of AEDPA, the district
court granted relief, holding that Garding had received
ineffective assistance of counsel. Applying Strickland, the
court found, first, that Garding’s attorney performed
deficiently, and, second, that Garding was prejudiced. I
agree with the district court.
Garding is innocent, but her innocence is not the legal
basis for my agreement with the district court. Rather, I
agree with the district court because Garding has satisfied
both steps of the Strickland analysis and is entitled to relief
under AEDPA. In reaching both steps, I consider not only
evidence showing deficient performance but also evidence
showing prejudice.
A. Deficient Performance
To establish deficient performance under Strickland, a
petitioner must demonstrate that counsel’s representation
“fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. Counsel are constitutionally
deficient when their “unprofessional errors so upset the
adversarial balance between defense and prosecution that the
trial was rendered unfair and the verdict rendered suspect.”
Kimmelman v. Morrison, 477 U.S. 365, 374 (1986).
It is well established that Strickland imposes a “duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
466 U.S. at 691; Kimmelman, 477 U.S. at 384; Hinton v.
GARDING V. MONTANA DEP’T OF CORR. 39
Alabama, 571 U.S. 263, 274 (2014). An attorney’s
“performance at trial, while generally creditable enough,”
cannot justify the “apparent and pervasive failure to” uphold
this duty. Kimmelman, 477 U.S. at 386; see also United
States v. Cronic, 466 U.S. 648, 657, n. 20 (1984). The
Supreme Court has consistently held that a single, serious
error is sufficient to support a claim of ineffective assistance
of counsel. Kimmelman, 477 U.S. at 383; Murray v. Carrier,
477 U.S. 478, 496 (1986); Cronic, 466 U.S. at 657 n.20.
“Criminal cases will arise where the only reasonable and
available defense strategy requires consultation with experts
or introduction of expert evidence, whether pretrial, at trial,
or both.” Harrington v. Richter, 562 U.S. 86, 106 (2011);
see also ABA Criminal Justice Standards for the Defense
Function 4-4.1(d) (2017) (“Defense counsel should
determine whether the client’s interests would be served by
engaging fact investigators, forensic, accounting or other
experts.”).
Under AEDPA, a federal court may not grant habeas
relief to a state prisoner unless the state court’s adjudication
of the claim “(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
The Montana Supreme Court failed to recognize that
Streano’s failure to investigate accident reconstruction
constituted a single, serious error rising to the level of
ineffective assistance. The Court described the ways in
which Streano had performed at a professionally competent
level, and it is true that Streano provided effective assistance
40 GARDING V. MONTANA DEP’T OF CORR.
in some respects. Garding, 466 P.3d at 507–08. But the
Court failed to recognize the critical importance of the
accident reconstruction evidence that Streano could have
introduced but did not.
We know from Garding’s postconviction proceedings
that expert accident reconstruction testimony would have
been easy to obtain, and that such testimony would have
been devastating to the State’s case. Garding’s
postconviction counsel put on three experts who
unanimously concluded that the accident that killed Parsons
could not have occurred in the manner described by the
troopers. The State effectively conceded as much. Instead
of defending the accident reconstruction theory of Troopers
Strauch, Hader and Novak, the State advanced an entirely
different theory. With no supporting evidence, Trooper
Smart concluded that Garding’s vehicle had been traveling
at a speed of less than 20 mph, perhaps even as low as 12–
16 mph, and might have “sneaked up” on Parsons.
Garding’s three experts unanimously concluded that the
accident could not have happened in the way posited by
Smart.
The Montana Supreme Court said nothing about any of
this. The Court wrote only, “Garding argues, based
primarily on an affidavit provided by her trial counsel, that
the [Montana] District Court erred by concluding her trial
counsel did not render ineffective assistance by failing to
hire an accident reconstructionist.” Garding, 466 P.3d at 506
(emphasis added). And it wrote, “Notably, the State did not
pursue an accident reconstruction either.” Id. at 508.
Neither of the Court’s statements is true.
First, while Garding did rely on Streano’s affidavit, that
was not the primary basis for her argument in the
GARDING V. MONTANA DEP’T OF CORR. 41
postconviction proceedings. Rather, Garding’s argument
relied heavily on the failure of her counsel to present
accident reconstruction evidence at trial, and on the utterly
convincing accident reconstruction evidence introduced at
postconviction. The Montana Supreme Court failed to
acknowledge the ease with which accident reconstruction
evidence had been obtained from three unanimous experts
for postconviction proceedings, and the ease with which that
evidence could have been obtained for trial. It also failed to
acknowledge the devastating effect that this evidence would
have had on the State’s case against Garding. See Avila v.
Galaza, 297 F.3d 911, 919 (9th Cir. 2002) (noting that this
court has consistently held that a lawyer who fails to
investigate evidence that could demonstrate her client’s
factual innocence renders deficient performance); Rios v.
Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“The failure to
investigate is especially egregious when a defense attorney
fails to consider potentially exculpatory evidence.”); Hart v.
Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). Indeed, the
Court failed even to acknowledge the existence of the three
experts’ accident reconstruction evidence.
Second, contrary to the Montana Supreme Court’s
statement, the State did “pursue accident reconstruction” at
trial. It did so through Troopers Strauch, Hader and Novak.
The troopers were not qualified as experts, but they provided
accident reconstruction testimony as if they were experts.
Streano mounted no defense against the troopers’ testimony.
She did not challenge their qualifications and allowed them
to provide what was, in effect, expert testimony. Because
she had not investigated the possibility of expert accident
reconstruction testimony, she could not counter their
testimony with expert testimony of her own. See Duncan v.
Ornoski, 528 F.3d 1222, 1235 (9th Cir. 2008) (holding that
42 GARDING V. MONTANA DEP’T OF CORR.
the duty to consult with an expert is particularly important
“when the prosecutor’s expert witness testifies about pivotal
evidence” and when counsel “has no knowledge or expertise
about the field”).
I agree with the district court and conclude under
AEDPA that the decision of the Montana Supreme Court
majority that Streano provided professionally competent
assistance was error. The result was “a decision that . . .
involved an unreasonable application of” Strickland, and “a
decision . . . based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
B. Prejudice
For counsel’s inadequate performance to constitute a
Sixth Amendment violation, the petitioner must also show
that counsel’s failures prejudiced her defense. Strickland,
466 U.S. at 692. A petitioner “must show 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. Because the Montana Supreme Court
did not reach the question of prejudice, AEDPA deference is
not required. Rompilla v. Beard, 545 U.S. 374, 390 (2005);
Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005).
However, even if AEDPA were to apply, I would reach the
same result. The prejudice to Garding’s case is beyond
obvious.
The three accident reconstruction experts—with over a
century of combined experience—uniformly concluded that
Garding’s vehicle could not possibly have struck Parsons.
The experts disproved the state troopers’ theory at trial and
made a laughingstock of Trooper Smart’s theory at
postconviction. The weakness of the State’s case at trial
GARDING V. MONTANA DEP’T OF CORR. 43
makes prejudice all the more evident. See Strickland, 466
U.S. at 695–96. The only purported eyewitnesses
connecting Garding to the crime were Bordeaux and Cornell.
Bordeaux testified in return for a spectacularly good plea
deal. He provided a number of different stories before he
settled on the story he told on the stand. He could testify
accurately as to the location of the crash only because
Trooper Hader told him where it occurred. Cornell was so
unreliable that the State was unwilling to put him on the
stand.
The evidence now before us tells one story: Garding is
factually innocent. From the moment Garding was first
questioned by Trooper Hader until today, she has
consistently maintained her innocence. Had the
reconstruction evidence been presented at trial, the
“likelihood of a different result” is more than “substantial.”
Richter, 562 U.S. 86 at 112. It is a virtual certainty.
Conclusion
Garding has spent many years in prison for a crime she
did not commit.
In Garding’s own words, “When Bronson was hit that
night, not just one innocent life was taken but two.” Garding
has suffered a great injustice at the hands of the State of
Montana. Today, she suffers another injustice at the hands
of this court.
I dissent.