Appendix — Hagen v. MacDonald (No. 07-1580)

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APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE HOLTE HAGEN,

Petitioner - Appellant/

Cross-Appellee,

JAMES MACDONALD;

MIKE MCGRATH,

Respondents -

Appellees/Cross-Appellants

Nos. 04-35906, 04-36051

D.C. No. CV-02-00147-LBE

MEMORANDUM*

FILED

JUL 12 2007

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

Appeal from the United States District Court

for the District of Montana

Leif B. Erickson, Magistrate Judge, Presiding

Argued and Submitted June 4, 2007

Seattle, Washington

Before: PREGERSON, FERGUSON, and IKUTA,

Circuit Judges.

This deposition is not appropriate for publication

and is not precedent as provided by 9" Cir. R. 36-3.

We are presented with cross appeals from the

district court’s partial grant and partial denial of

habeas relief to Bruce Holte Hagen. We uphold the

partial denial and reverse the partial grant. We

uphold the partial denial and reverse the partial grant.

We review Hagen’s petition under the provisions

of Antiterrorism and Effective Death Penalty Act

(“AEDPA”). Under AEDPA, a federal court may grant

a petition for writ of habeas corpus with respect to a

claim adjudicated on the merits in state court only if

the state court’s ruling “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 “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). We look to “the last

reasoned decision of the state court as the basis of the

state court's judgment.” Franklin v. Johnson, 290

F.3d 1223, 1233 n.3 (9th Cir. 2002).

Hagen’s contention that he is entitled to habeas

relief is based on an ineffective assistance of counsel

claim under Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland,

[a] convicted defendant’s claim that counsel’s

assistance was so defective as to require reversal of

a conviction or death sentence has two components.

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient

performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose

result is reliable.

Id, at 687. Prejudice is shown when “there is

a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

Hagen first argues that he is entitled to habeas

reliefbecause the state court's rulingthattrialcounsel’s

defects caused “some prejudice,” but did not deprive

him of effective assistance of counsel, “was contrary

to, or involved an unreasonable application of’ the

Supreme Court’s decision in Strickland. In brief, the

state trial court held that Hagen “may have suffered

some prejudice as a result of his counsel's deficiencies”

(emphasis added) and thus “pursuant to the authority

of § 46-21-201(6) [of the Montana Code Annotated]” it

amended Hagen’s aggravated assault sentence to run

concurrently with his deliberate homicide sentence. At

the same time, the state trial court held that Hagen’s

counsel provided reasonably effective assistance

and Hagen “failed to show in these postconviction

proceedings that there [wa]s a reasonable probability

that but for the deficiencies complained of on the part

of [his] trial and appellate counsel the results would

have been different.” The Montana Supreme Court

rejected Hagen’s argument that the trial court’s

ruling was internally inconsistent, and thus contrary

to or an unreasonable application of Strickland. See

Montana v. Hagen, 53 P.3d 885, 891 (Mont. 2002)

(hereinafter Hagen III) (“A finding that an attorney

could have done a ‘better’ or ‘more thorough’ job and

that a defendant may have suffered some prejudice as

a result is not the equivalent of ineffective assistance

of counsel pursuant to Strickland.”). !

We agree with the Montana Supreme Court’s

analysis. The state trial court’s decision to amend

Hagen’s sentence under state law due to Hagen’s trial

counsel's minor deficiencies is not inconsistent with

its determination that Hagen did not suffer ineffective

assistance of counsel for purposes of Strickland.

Accordingly, the Montana Supreme Court’s rejection

of Hagen’s argument on this issue was not contrary

to or an unreasonable application of Strickland. The

district court erred in granting Hagen relief on the

ground that it “was unreasonable for the trial court

to find that there was enough prejudice to change the

sentence on the aggravated assault conviction but not -

the verdict.” !

l As we now reserve the grant of relief on this ground, there is no

need to address the state’s further arguments, including its procedural at-

tack

Second, Hagen contends he 1s entitled to habeas relief

based on trial counsel’s mishandling of the evidence

related to Jim Enger’s reputation for violence. The

state trial court stated that “[Hagen] testified at the

[evidentiary] hearing that because he did not know who

was attacking, his trial counsel advised that Enger’s

reputation could not be introduced.” Hagen claims

that under Montana law, trial counsel could have

introduced evidence regarding Enger’s reputation for

violence, and trial counsel’s failure to do so deprived

Hagen of a fair trial.

The Montana Supreme Court implicitly

determined that Hagen’s testimony, standing alone,

did not establish that trial counsel failed to introduce

reputation evidence solely because of trial counsel’s

misunderstanding of the law. The Montana Supreme

Court noted that the trial counsel had not testified at

the evidentiary hearing on this ineffectiveness claim,

and the court could not “determine from the record

whether Hagen’s trial counsel investigated Hagen’s

assertions, and, if he did, what tactical reasons were

considered for not introducing that information at

trial.” Hagen II], 53 P.3d at 892. Concluding that

Hagen had not carried his burden to demonstrate the

ineffectiveness of his counsel, the Montana Supreme

Court stated that “[a] silent record cannot rebut the

‘strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”

Id. (quoting State v. Langford, 813 P.2d 936, 946

(Mont. 1991) (applying Strickland to an ineffective

assistance of counsel claim).

The Montana Supreme Court’s determination that

Hagen had not carried his burden of demonstrating

that his counsel was deficient was not contiary to

or an unreasonable application of Strickland. The

district court’s grant of habeas relief on the ground

that the Montana Supreme Court’s determination

“was an unreasonable application of the law to the

facts” is an error. Even if the district court would have

given greater weight to Hagen’s testimony, “a federal

habeas court may not issue the writ simply because

that court concludes in its independent judgment

that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.”

Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495,

146 L.Ed.2d 389 (2000). Further, even if Hagen had

demonstrated that trial counsel’s decision not to

introduce reputation evidence was a deficiency for

purposes of Strickland, Hagen did not show prejudice

from this error, 1.e., he did not show that there was

a reasonable probability that the outcome of the

trial would have been different had trial counsel

introduced evidence of Enger’s reputation for violence.

Accordingly, Hagen is not entitled to habeas relief on

this ground, and the district court erred in concluding

otherwise.

Third, Hagen claims that he was deprived of effective

assistance of counsel because his lawyer failed to call

a witness who was prepared to testify that Reece

Cobeen gave conflicting stories about his distance from

the Hagen residence at the time of the shooting. The

Montana Supreme Court assumed without deciding

that trial counsel's failure to call the witness “resulted

in deficient representation,” but held there was no

prejudice. The state supreme court held that even

had the witness testified and completely discredited

Cobeen - effectively removing his testimony from

trial - there was not a reasonable probability that the

outcome would have been different.

The Montana Supreme Court’s conclusion that

there was no prejudice was not an unreasonable

application of Strickland. As stated above, Hagen

admitted shooting Enger and his wife but claimed he

thought they were strangers attacking him in his home.

Cobeen undermined Hagen’s stranger-self-defense

theory by testifying that Hagen verbally identified

and threatened Enger before shooting him. But even

absent Cobeen’s testimony, other evidence would have

filled the gap because Enger similarly testified.

In concluding that it could grant the writ based on

this ineffective assistance of counsel claim, the district

court made a number of errors, including re-weighing

the evidence relating to prejudice and granting relief

under 28 U.S.C § 2254(d)(2) (which is limited to those

circumstances in which a state court’s factual findings

are objectively unreasonable, See Taylor v. Maddox, 366

F.3d 992, 999 (9th Cir.2004)). As noted above, “a federal

habeas court may not issue the writ simply because

that court concludes in its independent judgment

that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.”

Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495,

146 L.Ed.2d 389 (2000). Rather, a federal court must

be “highly deferential” in determining whether a state

court’s decision involved an unreasonable application

of Supreme Court precedent. Lindh v. Murphy, 521

U.S. 320, 333 n. 7, 117 S.Ct. 2059 1388 L.Ed.2d 481

(1997), and state court decisions must “be given the

benefit of the doubt.” Woodford v. Visciotti, 537 U.S.

19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per

curiam).

Fourth, Hagen asserts that his appellate counsel was

ineffective for failing to raise on direct

appeal his trial counsel’s failure to object to the

prosecutor’s alleged improper reference to Mrs.

Hagen’s exercise of Montana’s spousal privilege, see

MONT. CODE. ANN. § 26-1-802. According to Hagen,

“the prosecution clearly questioned Gabby Hagen

about why she would not offer a statement about her

husband, in contravention of Rule 505 [of the Montana

Rules of Evidence},” Hagen ITI, 53 P.3d at 894-95. The

Montana Supreme Court disagreed. It first determined

that the prosecutor’s conduct did not violate Rule 505

as a matter of state law. Id. at 895 (citing State v.

Dawson, 761 P.2d 352, 359 (Mont. 1988)). It then held

that because there was no prosecutorial misconduct,

appellate counsel was not ineffective for failing to

raise the issue. Id.

The Montana Supreme Court’s decision that

the prosecutor did not violate Montana law is not

reviewable on habeas. See Lewis v. Jeffers, 497 U.S.

764, 780 (1990) (“[F]Jederal habeas corpus relief does

not lie for errors of state law.”). Because there was no

prosecutorial misconduct, appellate counsel was not

deficient for failing to challenge trial counsel’s failure

to object to the prosecutor's comments. Therefore,

the Montana Supreme Court’s determination that

Hagen had not established ineffective assistance of

counsel based on this claim was not an unreasonable

application of Strickland. The district court erred in

revisiting this question.

II.

The district court did not err in denying habeas relief

on the remainder of Hagen’s claims.

Hagen’s claim that his trial counsel was ineffective for

failing to request a psychiatric evaluation in a manner

that would ensure its confidentiality is procedurally

barred because the Montana Supreme Court offered an

independent and adequate ground for refusing relief,

namely that the claim should have been raise on direct

appeal. See Coleman v. Thompson, 501 U.S. 722, 750

(1991). Hagen has not claimed, let alone shown, cause

and prejudice or a fundamental miscarriage of justice

as a result of this bar. Id.

Further, Hagen’s claim that his appellate counsel

was ineffective for failing to raise the issue on direct

appeal was not within the district court’s Certificate

of Appealability (“COA”) and Hagen did not request

an expansion of the COA. 28 U.S.C. § 2253(c). Even

were this latter claim properly before us, however, we

would affirm the district court’s denial because Hagen

cannot show that the state court’s determination

poe

By:

that he was not prejudiced was an unreasonable

application of Supreme Court authority. Hagen claims

he was prejudiced at both trial and sentencing, but his

arguments relate solely to sentencing. As we recently

noted, “the Supreme Court has not delineated a

standard which should apply to ineffective assistance

of counsel claims in noncapital sentencing cases.

Therefore, .. . there is no clearly established federal

law as determined by the Supreme Court in this

context.” Davis v. Grigas, 443 F.3d 1155, 1158 (9th

Cir. 2006) (internal citation omitted).

Hagen also challenges the-denial of relief on his

claim that his trial counsel was ineffective for failing to

request an instruction on the lesser offense of negligent

homicide. The Montana Supreme Court held that

counsel’s failure to request the instruction was not

deficient. Trial counsel’s decision not to request the

instruction was not deficient. Trial counsel’s decision

not to request the instruction was a reasonable

trial tactic given that an instruction on negligence

may have jeopardized Hagen’s contention that he

deliberately acted in self defense. See United States

v. Span, 75 F.3d 1383, 1389-90 (9th Cir. 1996). This

was a reasonable application of Strickland because

“strategic choices made after thorough investigation

of law and facts relevant to plausible options are

virtually unchallengeable.” Strickland, 466 U.S. at

690.

Finally, Hagen argues that “he district court erred

in granting habeas relief on his aggravated assault

conviction while denying it on his deliberate homicide

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conviction, arguing that the claims are inextricably

intertwined. As already stated above, however, the

district court erred in granting relief on the aggravated

assault conviction and this argument is moot.

AFFIRMED in part, REVERSED in part, and

REMANDED.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE HOLTE HAGEN, No. 04-35906

Petitioner - Appellant, D.C. No. CV-02-00147-LBE

District of Montana,

Vv. Missoula

JAMES MACDONALD; MIKE

MCGRATH, ORDER

Respondents - Appellees.

BRUCE HOLTE HAGEN, No. 04-36051

Petitioner - Appellee, D.C. No, CV-02-00147-LBE

District of Montana,

Vv. Missoula

JAMES MACDONALD; MIKE

MCGRATH, FILED

JAN 18, 2008

Respondents - Appellants.

CATHY A. CATTERSON,

CLERK

U.S. COURT OF APPEALS

Before: PREGERSON, FERGUSON, and IKUTA,

Circuit Judges.

The panel has voted to deny Hagen’s Petition

for Rehearing. Judge Ferguson has recommended

denying Hagen’s Petition for Rehearing En Banc, and

Judges Pregerson and Ikuta have voted to deny the en

banc petition.

The full court has been advised of the Petition for

Rehearing En Banc and no Judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App.

P. 36.

The Petition for Rehearing and the Petition for

Rehearing En Banc are DENIED.

I3a

APPENDIX C

C. B. McNeil

District Judge

Lake County Courthouse

106 Fourth Avenue East

Polson, MT 59860-2171

Telephone: (406) 883-7250

MONTANA TWENTIETH JUDICIAL DISTRICT

COURT, SANDERS COUNTY

STATE OF MONTANA, CAUSE NO. DC-93-23

Plaintiff,

FINDINGS OF FACT,

on CONCLUSIONS OF LAW

and

BRUCE HOLTE HAGEN, | 4MENDED SENTENCE

Defendant.

The above cause came before the Court, March

13, 2000, for hearing upon Defendant’s Petition for

Postconviction Relief; Plaintiffappeared by the Sanders

County Attorney, Robert L. Zimmerman; Defendant

appeared personally and by his attorney, Wendy Lee

Holton; witnesses were sworn and testified, exhibits

were introduced, and the Court having considered the

parties’ proposed findings and conclusions filed May

30, 2000, Defendant’s post-hearing brief filed May 31,

i4a

2000, Defendant's post-hearing response brief filed

June 23, 2000, and good cause appearing therefore,

makes the following:

FINDINGS OF FACT

Findings of Fact First Issue - Claim B(4)(a):

Whether trial counsel rendered ineffective assistance

by failing to investigate, or present testimony,

regarding Jim Enger’s reputation for violence.

That no evidence was introduced at trial

of any reputation of Enger for violence.

That at trial Defendant testified he did not

know who his alleged “attacker” was.

. That at the postconviction hearing, Defendant

testified that he told his trial counsel that

Defendant knew Enger had a reputation for

fighting and bullying.

. That at the postconviction hearing, Defendant’s

daughter, Kendra Hagen, testified that her

father, the Defendant, had told her that Enger

has a reputation for violence and that she had

told such to Defendant’s trial counsel.

That Defendant testified at the postconviction

hearing that because he did not know who was

attacking, his trial counsel advised that Enger’s

reputation could not be introduced.

. That no issue has ever been raised by Defendant

of any reputation for violence on the part of the

victim Alice Goodrich.

Findings of Fact Second Issue - Claim 3(4)(b):

Whether failure to investigate Jim Enger’s prior

criminal acts potentially impacted Enger’s credibility

1Sa

as a witness.

That at the postconviction hearing, Exhibit “L”

was introduced which shows that Enger has a

1986 criminal trespass conviction and a 1987

disorderly conduct conviction, and Exhibit

“L” was introduced which shows that Enger

has misdemeanor convictions for theft and a

concealed weapon (knife).

. That no evidence was introduced at the

postconviction hearing as to what effect, if any,

evidence of Enger’s prior criminal record may

have had upon his credibility as a witness.

Findings of Fact Third Issue - Claim B(4)(c):

Whether trial counsel was ineffective in interviewing

and preparing witnesses for trial.

That Defendant’s trial counsel did not interview

the State’s witness Reese Cobeen prior to trial;

that said counsel did cross examine Cobeen

at trial and did use one of Cobeen’s pre-trial

statements in said cross examination.

10. That Defendant’s trial counsel did not interview

11.

Marvin Gezman as a potential witness; that

there was no evidence introduced at the

postconviction hearing as to what his testimony

may have established.

That Defendant’s trial counsel had Defendant’s

ophthalmologist testify as to Defendant’s

corrected vision but did not testify as to

Defeniant’s uncorrected vision (Defendant

was not wearing his glasses at the time of the

shooting); that no evidence was introduced at

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the postconviction hearing as to Defendant’s

uncorrected vision.

Finding of Fact Fourth Issue - Claim B(5):

A. Whether appellate counsel was ineffective

in raising an issue on direct appeal (failure to

request a lesser included offense instruction)

that was more properly raised in a petition for

postconviction relief.

12. That the Curt instructed the jury on the offense

charged, Deliberate Homicide, and on the

lesser included offense of Mitigated Deliberate

Homicide.

13. That the Court did not instruct on the offense of

Negligen’: Homicide.

14.That the record is void of any evidence of

any negligence on the part of Defendant; the

uncontradicted evidence, including Defendant’s

own testimony, is that he fired three shots

from his 12-gauge sump shotgun with one shot

striking the victim Jim Enger, who was on

one side of the room after entry from the front

door, and another shot striking the victim Alice

Goodrich on the other side after entry.

.That no trial evidence and no _ evidence

introduced at the postconviction hearing

supports a negligent homicide instruction.

B. Whether appellate counsel rendered

ineffective assistance to the extent that any

of Defendant’s ineffective assistance of trial

counsel claims are now procedurally barred

because they could have been raised on direct

17a

appeal but were not.

16. That Defendant’s trial counsel obtained a pre-

trial order for a psychological examination of

Defendant to be used in consideration of the

possible use of a mental disease or defect defense

and for the possible purposes of bail reduction

and consideration in a possible plea bargain.

17.That the report of the examination was made

available to the prosecution and to the Court and

reference thereto was made in the Presentence

Investigation Report.

18.That there was no evidence introduced at the

postconviction hearing that making the report

of the psychological evaluation available to

either the county attorney or to the Court

had any effect on either the prosecution of the

Defendant or his sentencing.

19.That the autopsy report of the state medical

examiner, Defendant's postconviction hearing

Exhibit “O,” was introduced at trial without

objection by Defendant’s trial counsel and

appellate counsel did not raise the issue of such

failure to object in Defendant’s direct appeal.

20.That said autopsy report states that the

manner of death was homicide; that Black’s law

dictionary defines homicide as the killing of one

person by another; that Defendant admitted

in his testimony at trial that he killed Alice

Gooarich by shooting her with a 12-gauge pump

shotgun loaded with 00 Buck shot.

21. That Gabrielle Hagen, spouse of the Defendant,

18a

was present during the shooting and did not

make a statement to law enforcement officers

until several months after the shootings.

22.That the prosecutor and Defendant’s own

counsel mede comments during the trial

concerning Mrs. Hagen’s silence.

23.That the record does not reflect that either Mrs.

Hagen or the Defendant invoked the spousal

privilege as to communications between them,

and no comments were made in the record

regarding any invocation of spousal privilege.

24.That Officer Kirby described interviews

of Defendant to the jury and described

inconsistencies in Defendant’s statements to

the jury but did not express any opinion as to

Defendant’s credibility.

25. That Defendant’s trial counsel elicited testimony

from Deputy Hansen that he had known the

State witness Cobeen to drink but had not

known Cobeen to be a criminal or violent.

26.That Deputy Hanson did not comment on

Cobeen’s credibility.

27.That Defendant’s counsel did comment in

closing argument that the defense had to prove

that the motive was self defense.

28.That the jury was instructed that the State

had the burden of proving every element of the

offenses charged, and that the Defendant was

not required to prove his innocence or present

any evidence.

19a

Based upon the foregoing Findings of Fact, the

Court makes the following:

CONCLUSION OF LAW

1. That the U. S. And Montana Constitutions

guarantee the right to counsel in a criminal

proceeding.

2. That the U. S. And Montana Supreme Courts

have interpreted the right to counsel to mean

the right to effective assistance of counsel.

3. That all of Defendant’s claims in his Petition for

Postconviction Relief are premised on alleged

denials of effective assistance of counsel.

4. That the Defendant has the burden of showing

that counsels’ performance was deficient and

that such deficient performance prejudiced the

defense.

5. That said burden applies to claims of alleged

ineffective assistance of either or both

Defendant's trial counsel and Defendant’s

appellate counsel.

6. That the Court holds that Defendant's

trial counsel provided reasonably effective

assistance.

7. That the Court holds that Defendant's

appellate counsel provided reasonably effective

assistance.

8. That Defendant’s trial counsel could have done

a better job of investigating and presenting

testimony regarding an alleged reputation for

violence and a prior criminal record on the

part of Jim Enger, the victim of the aggravated

20a

assault charge.

9. That the Defendant may have suffered some

prejudice as a result of Conclusion No. 8 with

respect to defendant’s claim of self defense of the

aggravated assault charge involving Enger.

10.That Defendant has never raised any issue of

reputation for violence or criminal record on

the part of Alice Goodrich, the victim of the

deliberate homicide.

11.That the jury was properly instructed on

the Defendant's defense of self defense and

Defendant's burden of producing sufficient

evidence on that issue to raise a reasonable

doubt of his guilt; that the jury had ample

evidence to support its guilty verdicts on both

the deliberate homicide of Alice Goodrich count

and the aggravated assault of James Enger

count as affirmed by the Montana Supreme

Court in Defendant’s direct appeal.

12.That Defendant’s trial counsel could have

done a more thorough job of interviewing and

preparing witnesses, and Defendant may have

suffered some prejudice as a result thereof.

13. That Defendant did receive a fair trial and that

the result and jury verdict are reliable.

14.That Defendant was _ provided effective

assistance of appellate counsel for his first

appeal of right and that the Defendant was

not prejudiced by any ineffective assistance of

appellate counsel.

15. That the most difficult conclusion of law for this

21a

Court to make, pursuant to the Supreme Court

Remittiture filed February 10, 1999, relates to

a “Catch-22” dichotomy in its January 22, 1999

Opinion:

Was appellate counsel’s performance

deficient in raising an issue on direct

appeal that was more properly raised in a

petition for postconviction relief?

The postconviction relief statute, §46-21-105

(2), MCA, provides that a petitioner may not

raise in a postconviction proceeding a ground for

relief that was raised or could reasonably have

been raised on direct appeal. In Defendant's

direct appeal, his appellate counsel raised the

issue of failure of Defendant’s trial counsel to

offer an instruction on Negligent Homicide

as a lesser included offense to the Deliberate

Homicide charge. By affirming Defendant's

conviction and sentence in its opinion on

Defendant’s direct appeal, the Supreme Court

made said issue resjudicata. This Court is now

directed to determine whether it was ineffective

assistance of appellate counsel to have included

said issue on direct appeal rather than reserve

it to be raised in postconviction proceedings

in order to be entitled to a hearing thereon as

argued by Defendant’s postconviction counsel.

This Court concludes that it was not ineffective

assistance of appellate counsel to have included

on direct. appeal an issue which by statute had

22a

to have been addressed on direct appeal or be

precluded from postconviction consideration by

the postconviction-relief statute.

16.That it was not ineffective assistance of

Defendant’s trial counsel to fail to offer an

instruction on Negligent Homicide as a lesser

included offense to the Deliberate Homicide

charge.

17.That the record is void of any evidence of

negligence sufficient to support an instruction

of Negligent Homicide, even if one had been

offered.

18.That it was not ineffective assistance of

Defendant’s appellate counsel to have raised

the issue on direct appeal of the failure of

Defendant’s trial counsel to offer a Negligent

Homicide instruction as a lesser included

offense to the Deliberate Homicide charge.

19.That Defendant’s appellate counsel did not

render ineffective assistance to the extent that

any of Defendant’s ineffective assistance of trial

counsel claims are now procedurally barred

because they could have been raised on direct

appeal but were not.

20.That Defendant’s trial counsel’s performance

may have been deficient in making Defendant’s

pre-trial psychological examination report

available to the prosecution and to the Court,

but that no prejudice resulted to the defense.

21.That in making its conclusions of law in these

postconviction proceedings, the Court does not

23a

review the entire trial proceedings; but there

was overwhelming evidence put before the jury

to support its verdicts of guilty of Deliberate

Homicide and Aggravated Assault and confirmed

by the affirmance of the Montana Supreme

Court upon Defendant’s direct appeal.

22.That Defendant has failed to show in this

postconviction proceedings that there is

a reasonable probability that but for the

deficiencies complained of on the part of

Defendant’s trial and appellate counsel the

results would have been different. This Court

expressly hold that the results would not have

been different.

23.That the Defendant received a fair trial and

that the trial result is reliable and that the

Defendant received a fair direct appeal, and

that the direct appeal result is fair and just.

24.That this Court’s conclusion that Defendant

may have suffered some prejudice as a result

of his counsel’s deficiencies relate solely to the

aggravated assault of James Enger and not to

the deliberate homicide of Alice Goodrich.

25.That any and all such prejudice can be

eliminated by the entry by this Court pursuant

to the authority of §46-21-210(6), MCA, of an

amended sentence which would provide that

the sentence imposed in Twentieth Judicial

District, Sanders County Cause No. DC-03-23,

filed June 20,1994, be amended to provide

that the sentence for aggravated assault run

24a

concurrent with the sentence imposed for the

deliberate homicide sentence.

26.That Defendant’s Petition for Postconviction

Relief should be granted in part and denied in

part; by amending the Defendant’s sentence to

provide that the sentence for aggravated assault

run concurrent with the deliberate homicide

conviction, any and all prejudice to Defendant

which may have arisen out of his counsel’s

deficiencies relating to the aggravated assault

conviction will be eliminated.

Based upon the foregoing Findings of Fact and

Conclusions of Law, the Court enters the following:

AMENDED SENTENCE

It is HEREBY ORDERED, ADJUDGED AND

DECREED that the sentence imposed in Sanders

County Cause No. DC-93-23, filed June 20, 1994, is

hereby amended to provide that the sentence imposed

for Aggravated Assault shall run concurrent with the

sentence imposed for Deliberate Homicide.

DATED this 29th day of June, 2000.

C.B. McNeil

C. B. McNeil

6/29/00

pe: Robert L. Zimmerman

Wendy Lee Holton

APPENDIX D

No, 00-482

IN THE SUPREME COURT OF THE STATE OF

MONTANA

2002 MT 190

STATE OF MONTANA,

Plaintiff and Respondent,

FILED

Aug 29 2002

BRUCE HOLTE HAGEN,

Ed Smith

Clerk of Supreme Court

Defendant and Appellate. State of Montana

APPEAL FROM: District Court of the Twentieth Judicial

District, In and for the County of Sanders,

The Honorable C. B. McNeil, Judge

presiding.

COUNSEL OF RECORD:

For Appellant:

Wendy Holton, Attorney at Law,

Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General;

C. Mark Fowler, Assistant Attorney

General, Helena, Montana

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Robert Zimmerman, Sanders County

Attorney, Thompson Falls, Montana

Submitted on Briefs: September 6, 2001

Decided: August 29, 2002

Clerk

Justice Terry N. Trieweiler delivered the Opinion of

the Court,

ql The Defendant, Bruce Holte Hagen, filed a

petition for postconviction relief in the DistrictCourt

for the Twentieth Judicial District in Sanders County

to have his 1994 conviction for deliberate homicide

and aggravated assault set aside based on ineffective

assistance of counsel. The District Court dismissed

the petition and on appeal, this Court affirmed impart,

reversed impart, and remanded for an evidentiary

hearing to consider those allegations not based on facts

in the record. Following that hearing, the District

Court issued its Findings of Fact, Conclusions of Law,

and Amended Sentence, in which it granted in part

and denied in part Hagen’s petition for postconviction

relief by affirming his conviction but amending

his sentence. Hagen appeals the District Court's

judgment. We affirm the District Court.

42 The following issues are presented on appeal:

43 1. Did the District Court err when it failed

to review the entire record prior to entering

its Findings of Fact, Conclusions of Law and Amended

Sentence?

27a

i. eae Did the District Court err when it

concluded that Hagen’s trial counsel provided

reasonably effective assistance?

, | ee Did the District Court err when it

concluded that Hagen’s appellate counsel provided

reasonably effective assistance?

FACTUAL AND PROCEDURAL BACKGROUND

16 On May 12, 1994, Bruce Holte Hagen was

convicted by a jury in the Twentieth Judicial Court in

Sanders County of deliberate homicide in violation of

§ 45-5-102, MCA, and aggravated assault in violation

of § 45-5-202, MCA. The charges arose from an

incident at Hagen’s home in which Alice Goodrich was

shot and killed and James Enger was wounded. The

District Court sentenced Hagen to life in prison for the

deliberate homicide conviction and twenty years for

the aggravated assault convict, with ten years added

to each sentence for use of a dangerous weapon. The

District Court ordered that the sentences be served

consecutively. Hagen’s appointed trial counsel, Matt

Pavelich, filed a motion for a new trial based on his

failure to call a witness. The District Court denied

Hagen’s motion for a new trial. Hagen appealed

the District Court’s judgment. Stephen Nardi was

appointed to represent him on appeal.

17 InStatev. Hagen (1995), 273 Mont. 432, 434, 903

P.2d 1381, 1382 (“Hagen I’), Hagen raised two issues

for review: (1) whether the District Court erred when

it refused to give Hagen’s proposed jury instruction

on the justifiable use of force in defense of an occupied

structure; and (2) whether Hagen was denied effective

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assistance of counsel. The ineffective assistance of

counsel claim was predicated on four alleged failings

by his trial counsel: (1) failure to object to a remark by

the prosecutor during voir dire; (2) failure to request

an instruction on Hagen’s right to rely on appearances

in support of his justifiable use of force defense; (3)

failure to request an instruction on negligent homicide

as a lesser offense; and (4) failure to call a witness who

would have testified to prior inconsistent statements

by a key State witness. We affirmed the District

Court on all issues. Hagen I, 273 Mont. At 445, 903

P.2d at 13889. A more detailed recitation of the factual

background in this case can be found in Hagen I.

{8 On April 14,1997, Hagen filed a petition for

postconviction relief, and alleged that both his trial

counsel, Matt Pavelich, and appellate counsel,

Stephen Nardi, were ineffective. The District Court

dismissed all claims in the petition on June 13, 1997.

Hagen appealed the dismissal, and in Hagen v. State,

1999 MT 8, 293 Mont. 60,973 P.2d 233 (“Hagen II’),

this Court affirmed in part and reversed in part. We

held that certain allegations of ineffective assistance

of counsel were not based on facts in the record, were

properly raised in the petition for postconviction relief,

and, therefore, an evidentiary hearing was necessary.

All other allegations of ineffective assistance of

counsel which were record-based were dismissed on

procedural grounds.

q9 On March 13, 2000, the District Court Held an

evidentiary hearing. On June 29, 2000, the District

Court issued its Findings of Fact, Conclusions of

Law and Amended Sentence. The District Court

denied Hagen a new trial, but granted him partial

postconviction relief by ordering that his aggravated

assault sentence run concurrently with his deliberate

homicide sentence. On July 11, 2000, Hagen appealed

the District Court’s judgment.

STANDARD OF REVIEW

410 The standard of review of a district court’s

denial of a petition for postconviction relief is whether

the trial court’s findings of fact are clearly erroneous

and whether its conclusions of law are correct. State

v. Hanson (1999), 1999 MT 226, 4 9, 296 Mont. 82, 4

9, 988 P.2d 299, ¥ 9.

ISSUE 1

411 Did the District Court err when it failed to

review the entire record prior to entering its Findings

of Fact, Conclusions of Law and Amended Sentence?

$12 In Conclusion of Law No. 21, the District Court

stated: “That in making its conclusions of law in these

postconviction proceedings, the Court does not review

the entire trial proceedings;......” Hagen contends that

the District Court had an obligation to review the

trial record since his claims were record-based, and

its failure to review the entire record deprived him

of due process and resulted in erroneous finds and

conclusion.

413 Due process is “not a fixed concept but, rather,

is one which must be tailored to each situation in

such a way that it meets the needs and protects the

interests of the various parties involved.” Small v.

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McRae (1982), 200 Mont. 497, 507, 651 P.2d 982, 988.

The fundament?! requirement of due process is the

opportunity to be heard “at a meaningful time and ina

meaningful manwer.” Connell v. State, Dept of Social

Services (1997), 280 Mont. 491, 496, 930 P.2d 88, 91.

The concept of due process is a flexible one calling for

such procedural protections as the particular situation

demands. Sage v. Gamble (1996), 279 Mont. 459,

464-65, 929 P.2d 822, 825.

414 Postconviction relief statutes, found in Title

46, Chapter 21, MCA, do not explicitly require that

a district court review the entire record. Here, the

District Judge who presided over the postconviction

hearing was the same judge who presided at trial.

Review of the relevant portions of the court record is

of importance when a judge other than the trial judge

presides over the postconviction hearing. However,

that was not the case here.

"15 Furthermore, we refuse to impose on district

courts a full-fledged duty to review the entire record

in every situation. District courts maintain a duty

to review those portions of the record which are at

issue !n the postconviction proceeding. For a district

court which presided over the trial phase of a criminal

proceeding, that duty likely does not extend to the

entire record. The scope of the duty is determined on

a case by case basis. Here, because the petition for

postconviction relief was before the same judge who

listened to the trial testimony when, it was presented,

and give» the extensive nature of the District Court’s

findings of fact and conclusions of law, we conclude

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that Hagen was not deprived of due process, and that

the District Court did not err when it made its decision

without reviewing the entire trial record.

ISSUE 2

{16 Didthe District Court err when it concluded that

Hagen’s trial counsel provided reasonably effective

assistance?

{17 A petitioner seeking to reverse a district court’s

denial of a petition for postconviction relief based on

a claim of ineffective assistance of counsel bears a

heavy burden. Dawson v. State, 2000 MT 219 ¥ 20,

301 Mont. 135, § 20, 10 P.38d 49, § 20. In evaluating

claims of ineffective assistance of counsel, this Court

has adopted the two-part test set forth in Strictland

v. Washington (1984), 466 U.S. 668, 104 S.Ct 2052,

80 L.Ed.2d 674. See Hagen II, 410; Dawson, { 20.

The defendant bears the burden of first showing that

his counsel’s performance was deficient, which entails

“showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” Strickland,

466 U.S. at 687, 104 S.Ct. at 2064. To assess deficient

performance, we apply the “reasonably effective

assistance” test for whether a defendant’s counsel

acted within the range of competence demanded of

attorneys in criminal cases. State v. Leavens (1986),

222 Mont. 473, 475, 723 P.2d 236, 237.

#18 Second, the defendant must show that the

deficient performance “so prejudiced the defendant as

to deprive the defendant of a fair trial, a trial whose

result is reliable....” Strickland, 466 U.S. at 694, 104

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S.Ct. at 2068; Dawson, 4 20; State v. Allen, 2001 MT

266, 4 27, 307 Mont. 253, 4 27, 37 P.3d 655, § 27.

419 In Strickland, the U.S. Supreme Court

stated:

Although we have discussed the

performance component of an ineffectiveness

claim prior to the prejudice component, there

is no reason for a court deciding an ineffective

assistance claim to approach the inquiry in the

same order or even to address both components

of the inquiry if the defendant makes an

insufficient showing on one. In particular, a

court need not determine whether counsel’s

performance was a result of the alleged

deficiencies. The object of an ineffectiveness

claim is not to grade counsel’s performance. If

it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice,

which we expect will often be so, that course

should be followed.

466 U.S. at 697, 104 S.Ct. at 2069. Finally, a claim

of ineffective assistance of counsel must be grounded

in facts found in the record, not on “mere conclusory

allegations.” State v. Hurlbert (1988), 232 Mont. 115,

120, 756 P.2d 1110, 1113 (citing State v. Tome (1987),

228 Mont. 398, 403, 742 P.2d 479, 482).

20 Before addressing the merits of Hagen’s

ineffective assistance claims, it is necessary that

we address Hagen’s claim that the District Court’s

findings and conclusions regarding prejudice from

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trial counsel’s performance were inconsistent.

$21 In Hagen IJ, this Court remanded to the

District Court for an evidentiary hearing to consider

three issues: (1) whether trial counsel was ineffective

for failing to investigate James Enger’s reputation for

turbulence, violence and trouble-making; (2) whether

trial counsel was ineffective for failing to investigate or

present significant impeachment testimony regarding

Enger’s credibility; and (3) whether trial counsel

was ineffective for failing to interview and prepare

witnesses prior to trial. The evidentiary hearing was

held on March 13, 2000, and Bruce Hagen, Kendra

Hagen (Bruce’s daughter), and Reece Cobeen, a key

prosecution witness, testified. Hagen’s trial counsel

did not testify. The District Court issued its Findings

of Fact, Conclusions of Law, and Amended Sentence,

and with respect to Hagen’s trial counsel, made the

following conclusions of law:

8. That Defendant’s trial counsel could have

done a better job of investigating and presenting

testimony regarding an alleged reputation for

violence and prior criminal record on the part of

Jim Enger, the victim of the aggravated assault

charge.

9. That the Defendant may have suffered

some prejudice as a result of Conclusion No. 8

with respect to defendant’s claim of self defense

of the aggravated assault charge involving

Enger.

34a

{22

12. That Defendant’s trial counsel could have

done a more thorough job of interviewing and

preparing witnesses, and Defendant may have

suffered some prejudice as a result thereof.

While the District Court concluded that Hagen’:

trial counsel could have done a “better” and “more

thorough” job and, as a result, “may have suffered

some prejudice as a result,” the District Court also

made the following Conclusions of Law:

123

6. That the Court holds that Defendant’s

trial counsel provided reasonably effective

assistance.

22. That the Defendant has failed to show

in these postconviction proceedings that

there is a reasonable probability that but for

the deficiencies complained of on the part of

Defendant’s trial and appellate counsel the

results would have been different. This Court

expressly holds that the results would not have

been different.

23. That the Defendant received a fair trial

and that the trial result is reliable.

Therefore, it appears that the District Court

concluded that Hagen’s trial counsel’s performance was

in part deficient, but that the deficient performance did

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not so prejudice Hagen that it deprived him of a fair

trial. Hagen contends these findings and conclusions

are inconsistent and that the judgment that followed

must be reversed. However, it is entirely possible

within the framework of Strickland to find attorney

error which possibly prejudiced the defendant, yet:

conclude that such error did not rise to a level serious

enough to result in a verdict unworthy of confidence.

Such was the case here. The burden on the defendant

under Strickland is a heavy one. The defendant must

show that “counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed by the

Sixth Amendment,” which also showing that counsel’s

deficient performance was so prejudicial that he was

denied a fair trial. Strickland, 466 U.S. at 687, 104S.Ct.

at 2064. The District Court concluded that Hagen’s

trial counsel’s errors did not rise to that level. The

controlling language of the District Court’s conclusions

of law are those that track the dispositive elements of

the Strickland analysis. A finding that an attorney

could have done a “better” or “more thorough” job and

that a defendant nay have suffered some prejudice as

a result is not the equivalent of ineffective assistance

of counsel pursuant to Strickland. Therefore, we

conclude that the District Court’s findings and

conclusions are not substantively inconsistent and do

not require reversal of the District Court’s judgment.

A. Failure to Investigate Enger’s Reputation

424 Hagen contends that his trial counsel failed

to investigate or offer evidence of James Enger’s

reputation for violence, heavy drinking and trouble-

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gl 2

making. Hagen asserts that the introduction of such

evidence would have impacted Enger’s credibility as

a witness. According to Hagen, his trial counsel’s

decision not to pursue an investigation of Enger was

based solely on his misunderstanding of the law

and mistaken belief that such evidence would be

inadmissible. Based on that error, Hagen asserts

that his trial counsel rendered ineffective assistance

of counsel.

425 The State, on the other hand, argues that while

Hagen may have informed his trial counsel of Enger’s

reputation, the record is silent as to whether Hagen’s

trial counsel conducted any investigation into the

matter. The State also contends that any assertion

that Hagen’s trial counsel misunderstood the law is

mere speculation, and that Hagen’s trial counsel had

sufficient tactical reasons to avoid introducing any

evidence of Enger’s reputation. The State’s contentions

are well taken.

{26 Trial counsel has a duty to either conduct

a reasonable investigation or make a reasonable

decision that a particular investigation 1s unnecessary.

Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Here,

however, we cannot determine from the record whether

Hagen’s trial counsel investigated Hagen’s assertions,

and, if he did, what tactical reasons were considered for

not introducing that information at trial. The burden

was on Hagen to demonstrate ineffectiveness and

Hagen’s trial counsel did not testify at the evidentiary

hearing. A silent record cannot rebut the “strong

presumption that counsel’s conduct falls within the

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wide range of reasonable professional assistance.”

State v. Langford (1991), 248 Mont. 420, 432, 813 P.2d

936, 946 (quoting Strickland, 466 U.S. at 689, 104

S.Ct. at 2065). Therefore, we conclude that ineffective

assistance for failure to investigate or prove Enger’s

reputation has not been established.

B. Failure to Investigate Enger’s Prior Criminal

Acts

427 Hagen next contends that had his trial counsel

investigated Enger’s background, he would have

discovered a history of disorderly conduct. Evidence

was introduced at the hearing that Enger was convicted

of criminal trepass in 1986 and disorderly conduct in

1987, in addition to misdemeanor convictions for theft

and possession of a concealed weapon. The District

Court found that no evidence had been introduced

as to what effect, if any, such evidence would have

had on Enger’s credibility as a witness. We agree

that the relevancy of Hagen’s criminal background

was questionable considering the remoteness of his

convictions and the fact that he was invited tothe Hagen

property by the Defendant’s wife. Most importantly,

however, the record indicates that Hagen’s trial

counsel did conduct some sort of investigation into

Enger’s background. At the hearing, Hagen himself

testified as follows:

Q: Did you tell Mr. Pavelich anything

about Jim Enger’s reputation for

violence and troublemaking?

Hagen: Yes, I did.

Q: And what did you tell him?

38a

Hagen: I told him that he had a reputation for

fighting and picking on people instead

of - trying to be a bully, especially

when he had been drinking. And

I also heard from Matt [Pavelich]

himself that he had a criminal record,

that they were checking on him in

Plains for stealing from mailboxes

[Emphasis added. ]

Therefore, Hagen’s trial counsel did perform some type

of investigation into Enger’s criminal record. Based on

all the foregoing considerations, we conclude Hagen

has not proven ineffective assistance of counsel for

failure to investigate Enger’s criminal background.

NM Enger’s Civil Lawsuit

{28 Hagen asserts that further investigation would

have revealed that Enger had filed a civil lawsuit

against Hagen which was pending at the time of

Hagen’s trial. As a result of that lawsuit, Hagen

contends that Enger had a financial stake in the

outcome of the trial. The State contends that the jury

was aware that Enger suffered significant physical

injuries from the shooting and could reasonably

infer that Enger would seek monetary redress for his

medical injuries.

429 We agree that disclosing a civil suit would have

demonstrated a financial interest in the outcome of this

prosecution and would have been relevant. However,

the record does not disclose that counsel failed to

investigate the suit or why counsel chose not to offer

evidence of the suit, if he knew of it. Most critically,

39a

however, we are unable to conclude that evidence of

the suit would have produced a different result in the

context of all the evidence offered at Hagen’s trial.

Therefore, we conclude that the District Court did not

err by its resolution of this claim.

D. Failure to Interview and Present Impeaching

Testimony of a Critical Prosecution Witness

130 Hagen asserts that his trial counsel failed

to interview Reece Cobeen, a critical prosecution

witness. In addition, Hagen contends that his trial

counsel failed to bring to the jury’s attention a pretrial

statement that would have contradicted Cobeen’s

testimony, or offer any other evidence to impeach him.

The State, on the other hand, contends that this issue

was previously decided in Hagen II.

{31 The issue presented to this Court in Hagen II

was whether Hagen’s trial counsel was ineffective for

failing to investigate or present testimony to impeach

both Cobeen and Enger. With regard to Cobeen,

we stated: “We agree with the State that Bruce’s

ineffective assistance of counsel claim with regard to

counsel’s failure to investigate or present testimony

impeaching Reece was raised and resolved during

Bruce’s direct appeal.” Hagen II, | 32 (citing Hagen

I, 273 Mont. at 444, 903 P.2d at 1388). Therefore, we

conclude that this claim is barred by principles of res

judicata.

E. 911 Transcript

‘| 32 Hagen also contends that his trial counsel was

ineffective for his failure to present evidence of Hagen’s

call to the 911 dispatcher immediately following the

40a

shootings. Hagen asserts that the transcript of the

phone call was the best evidence of his state of mind at

the time of the incident. The 911 transcript revealed

that Hagen told the dispatcher, “I was attacked in

“my house and I - I - | don’t (?) like that. We need

an ambulance and we need the police.” The State

contends that the best evidence of Hagen’s state of

mind at trial was from Hagen’s own testimony.

4/33 The 911 transcript would have corroborated

Hagen’s testimony and may have been admissible

as a prior consistent statement. See Rule 801(d)(1),

M.R.Evid. However, we have previously stated that

counsel has not obligation to present cumulative

evidence. State v. Allen, 2001 MT 266, 4 29, 307 Mont

253 37 P.3d 655, 4] 29. Furthermore, we are unable to

speculate why the evidence was not offered. Finally,

even if there was no sound tactical reason for not

offering the evidence, we are unable to conclude that

its presentation would have led to a different result.

Therefore, we conclude that the failure to offer the

transcript is not a sufficient basis on which to set aside

Hagen’s conviction.

34 Weconclude that the District Court did not err

when it concluded that trial counsel’s performance

was reasonably effective and that any omissions of

counsel were not sufficient to undermine confidence

in the trial’s outcome.

ISSUE 3

435 Did the District Court err when it concluded

that Hagen’s appellate counsel provided reasonably

effective assistance?

36 Hagen contends that his appellate counsel was

ineffective for the following reasons: (1) he failed to

raise issues regarding the manner in which Hagen’s

mental health evaluations were obtained, the nature

of those evaluations, and the dissemination of the

evaluations to the District Court and the prosecution;

(2) he failed to raise trial counsel’s failure to object to

the introduction of an autopsy report which referred to

the cause of death as a “homicide”; (3) he failed to raise

trial counsel’s failure to object to the State’s comments

on Hagen’s wife’s invocation of spousal privilege; (4)

he failed to raise trial counsel’s failure to object to

improper comments about Hagen’s wife’s credibility;

(5) he failed to raise trial counsel’s improper vouching

for a prosecution witness during the cross-examination

of another prosecution witness; (6) he failed to raise

trial counsel’s shifting of the burden of proof during

closing argument; and (7) he raised trial counsel’s

failure te request a lesser included offense instruction

on direct appeal rather than on postconviction relief.

We will address each allegation in turn.

137 Claims of ineffective assistance of appellate

counsel are analyzed, like those of trial counsel,

according to the standard set forth in Strickland.

Dawson, 4 147. “The petitioner must show that

counsel’s advice fell below an objective standard

[of] reasonableness and that there is a reasonable

probability that, but for counsel’s unprofessional

errors, the petitioner would have prevailed on appeal.”

Dawson, § 147.

A. The Mental Health Examination

42a

{38 On October 25, 1993, Hagen’s trial counsel

moved the District Court for an order pursuant to §

46-14-202, MCA, to require Hagen be examined by a

licensed psychologist or psychiatrist to determine his

fitness to proceed. Hagen was examined by William

Stratford, M.D., and Herman Walters, Ph.D. Hagen

alleges that prior to the examination, he was informed

by his trial counsel that the District Court had ordered

him to see a psychiatrist before the bond hearing.’

However, Hagen alleges he was not informed of his

right to a confidential examination at the State’s

expense, or that his examination results could be used

against him at sentencing. The evaluation results

of both Dr. Stratford and Dr. Walters were shared

with the District Court and the State. The District

Court referred to the psychological reports and the

presentence investigation report in the sentencing

order.

439 Although the District Court concluded that the

trial counsel’s performance “may have been deficient

in making Defendant’s pre-trial psychological

examination available to the prosecution and to the

Court,” it also concluded that “no prejudice resulted to

the defense.” The District Court also found that “there

was no evidence introduced at the postconviction

hearing that making the report of the psychological

evaluation available .. . . had any effect on either

the prosecution of the Defendant or his sentencing,”

Without such evidence, the District Court concluded

that Hagen’s appellate counsel was not ineffective for

failing to raise the issue on direct appeal.

43a

40 As the defendant, Hagen carries the burden of

showing that but for appellate counsel’s performance,

the result of the proceeding would have been

different. Here, however, Hagen has not identified

what information in the doctors’ evaluations was

damaging to his defense. Furthermore, we cannot

conclude, based on facts before us, that Hagen’s

sentence was somehow lengthened based solely on

the doctors’s evaluation. While Hagen’s psychological

evaluation results deserved better protection, we

cannot determine what prejudice occurred as a result

of appellate counsel’s failure and, therefore, conclude

that the District Court did not err by rejecting Hagen’s

claim made on this basis.

B. The Autopsy Report

{41 Hagen contends that his appellate counsel

should have attacked his trial counsel’s failure to object

to the State’s introduction of an autopsy report which

characterized the nature of the case as a “homicide.”

According to Hagen, the medical examiner’s report

amounted to expert testimony that the cause of death

was murder, which would have directly contravened

his affirmative defense ofjustifiable use of force. Hagen

contends that permitting such information without an

objection or limiting instruction was a record-based

error of his trial counsel that should have been raised

on appeal by his appellate counsel.

442 However, it was an uncontroverted fact that

Hagen killed Alice Goodrich. That killing qualifies

as a homicide based on the general definition of the

term. As the District Court found, “Black’s [L]aw [D]

44a

ictionary defines homicide as the killing of one person

by another.” Following that definition, Black’s Law

Dictionary goes on to quote a criminal law treatise

which states, “The legal term for killing a man,

whether lawfully or unlawfully, is ‘homicide.’ There

is no crime of ‘homicide” Black’s Law Dictionary 739

(7 ed. 1999) (quoting Glanville Williams, Textbook

on Criminal Law 2: 4 (1978)). Furthermore, trial

counsel explained the difference between “homicide”

and the legal term “deliberate homicide” in his closing

argument. We conclude that failure to object to use of

the term in the report or request a limiting instruction

was not ineffective and, therefore, we conclude Hagen’s

appellate counsel had no responsibility to raise the

issue on appeal.

t. Invocation of Spousal Privilege

443 Next, Hagen contends that his appellate counsel

should have raised on direct appeal his trial counsel’s

failure to object to the State’s comments on Hagen’s

spouse’s invocation of spousal privilege. Hagen asserts

that the prosecution clearly questioned Gabby Hagen

about why she would not offer a statement about her

husband, in contravention of Rule 505, M.R.Evid.

Those actions, according to Hagen were patently

improper because of the inferences that could be

drawn from Gabby’s decision not to offer a statement.

44 We analyze alleged prosecutorial misconduct

incases such as this to determine whether the language

used was manifestly intended or of such a character

that a jury would naturally and necessarily take it as

a comment on the failure of the privileged individual

4Sa

to testify, See State v. Dawson (1988), 233 Mont. 345,

356, 721 P.2d 352, 359. After review of the record

in this case, we cannot conclude that the jury would

“naturai!y and necessarily” have interpreted the

comments of the prosecutor as comments on Gabby

Hagen’s invocation of spousal privilege. Therefore, we

conclude that Hagen’s appellate counsel did not err by

failing to raise the issue on appeal

D. Inappropriate Opinion Testumony

Credibility

145 The State introduced two videotapes which

recorded police interviews of Hagen. After the first

tape was shown to the jury, the prosecutor asked Office

Larry Kirby to describe inconsistencies he believed to

exist between the two interviews, in an attempt to

show that Hagen had changed his story to fabricate

a defense. Hagen contends that this testimony

amounted to a comment on Hagen’s credibility which

was inadmissible pursuant to the Montana Rules

of Evidence and applicable case law. See Rules 701

and 702, M.R.Evid.; State v. Webb (1990), 243 Mont.

368, 792 P.2d 1097. 46 However, pointing

out inconsistencies in a person’s statements is not

the equivalent of expressing an opinion on credibility.

Furthermore, it is difficult to infer prejudice since

the jury had the independent opportunity to review

the same statements. Therefore, we conclude that

appellate counsel was not ineffective for failing to

raise this issue on appeal.

E. Improper Vouching for a Prosecution Witness

947 Hagen’s trial counsel elicited the following

46a

testimony of Deputy Jonathan Hansen on cross

examination:

Q: While you had encountered them in the

bar and some talk about a shooting, did

you feel Punky Cobeen was the kind of

person who would keep them out of trouble

later in the evening?

I have never known him to be violent. I’ve

known him to drink, but I’ve never known

him to be a criminal or be violent.

Hagen contends that no competent, experienced

defense attorney would deliberately introduce evidence

of a police officer's personal opinion regarding the

character of a key prosecution witness. That attorney

error, Hagen contends, was prejudicial to his defense,

and should have been raised on appeal. Because it

was not, Hagen asserts his appellate counsel was

ineffective. The State contends that Hagen’s charge

is meritless because Officer Hansen’s statement that

Cobeen was neither violent nor a criminal was not

indicative of Cobeen’s truthfulness. According to the

State, it was not vouching testimony. The District

Court found that “Deputy Hansen did not comment

on Cobeen’s credibility.”

48 While this Court has warned against the

introduction of improper vouching testimony,

particularly by the prosecution, we conclude that

the above-cited testimony does not constitute

vouching testimony. As the Ninth Circuit has stated,

47a

“introducing bolstering evidence is not the same as

vouching for the witness;. . . ." United States v. Meling

(9. Cir. 1995), 47 F.3d 1546, 1558. The testimony cited

above was more an example of character-bolstering

evidence, not vouching. Furthermore, there was only

one instance cited and we simply cannot conclude

based on that isolated instance that Hagen’s trial

counsel was ineffective or that Hagen was prejudiced

by the remark. Accordingly, we conclude that appellate

counsel was not ineffective for failing to raise this

issue on appeal.

F. Closing Argument

{49 Hagen asserts that his appellate counsel erred

when he failed to raise his trial counsel’s comments

during closing argument which purportedly

misinformed the jury that the burden of proof had

shifted to the defense. During closing argument,

Hagen’s trial counsel stated: |

I know that the State is going to say,

“Hey, you look at the elements of these crimes

charged. We don’t need to prove motive. We

don’t need to prove motive at all,” and which

is true. Motive is not an element of either of

the crimes charged. As a matter of fact, we

have to prove motive. We have to prove that

the motive was self-defense. Well, so be it. If

it wasn’t self-defense, what was it?”

Based on the above statement, Hagen contends the

jury was erroneously led to believe that the defense

48a

had the burden of proof and, in effect, had to disprove

the State’s allegations. The State, on the other hand,

asserts Hagen’s trial counsel was correct in noting that

when self-defense is raised as an affirmative defense,

the defendant does not assume the burden of showing

that the self-defense was justified and reasonable.

450 In State v. Daniels (1984), 210 Mont. 1, 16, 682

P.2d 173, 181, we stated the general rule with regard

to burden-shifting as a result of a defendant raising

an affirmative defense:

The State has the burden of proving

beyond a reasonable doubt every element of

the offense charged, or any lesser-included

crime within such charge; the defendant if

he raises the affirmative defense [such as

self-defense] has the burden of producing

sufficient evidence on the issue to raise

reasonable doubt of his guilt,.....

Therefore, in this case, the burden did shift to Hagen to

produce sufficient evidence to raise reasonable doubt

of his guilt based on his justifiable use of force defense.

Hagen’s trial counsel’s comments were consistent with

that shift of the burden. Furthermore, we presume

that the jury follows the law as it is given, and in Jury

Instruction No. 21, the jury was correctly instructed:

The defendant has pleaded justification

in the use of force in this case. The defendant

has the burden of producing sufficient

49a

evidence of justification in the use of force to

raise a reasonable doubt of his guilt. Your

are to consider the following requirements

of the law in determining whether the use of

force claimed by defendant was justified:

You are further advised that even if

you determine the use of force by defendant

was not justified, the state still has the duty

to prove each of the elements of the crime

charged beyond a reasonable doubt.

Based on the foregoing, we presume that the jury was

correctly informed of the law, and further conclude

that Hagen’s trial counsel was not ineffective based

on the comments he made during closing argument.

Therefore, we conclude that Hagen’s appellate counsel

was not ineffective for raising the issue on direct appeal.

G. The Instruction on Negligent Homicide

{51 Hagen next contends that his appellate counsel

was ineffective for raising his trial counsel’s failure to

request a lesser included offense instruction on direct

appeal rather than by postconviction relief. Appellate

counsel, according to Hagen, should have recognized

that an evidentiary hearing was necessary, and,

50a

therefore, should have raised the issue by way of a

postconviction proceeding. While Hagen contends

that evidence in support of his claim would have

been presented at a postconviction hearing, he failed

to establish what that evidence would have shown.

Furthermore, claims which can reasonably be raised

on direct appeal “may not be raised, considered,

or decided” in a postconviction relief proceeding. §

46-21-105(2), MCA. Had Hagen’s appellate counsel

not raised the claim, Hagen would have, in all

likelihood, been procedurally barred from raising it by

postconviction relief. Therefore, we conclude that he

was not ineffective for raising it on appeal.

H. Cumulative Error

52 Finally, Hagen contends that the cumulative

effect of appellate counsel’s alleged errors caused him

prejudice, even if any of the errors standing alone

would not be sufficiently prejudicial. However, having

analyzed each of Hagen’s allegations separately, we

have concluded that in each situation, counsel either

acted reasonably or his omission did not undermine

confidence in the outcome. We also conclude that the

combined effect of all the acts or omissions complained

of did not undermine confidence in the outcome of

Hagen’s trial.

453 For the foregoing reasons, the judgment of the

District Court is affirmed. :

Sla

Terry Trieweiler

Justice

We Concur:

Patricia Cotter

James C. Nelson

W.. William Langhart

Jim Rice

S2a

7 Sos

APPENDIX E

Honorable Leif B. Erickson

Federal Magistrate Judge

Missoula Division

Russell E. Smith Courthouse

201 East Broadway, Room 370

Missoula, MT 59802

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

BRUCE HOLTE HAGEN, Cause No. CV 02-147-M-LBE

Petitioner,

vs. FINDINGS AND

RECOMMENDATION

OF U.S. MAGISTRATE JUDGE

JAMES MACDONALD,

Warden, Crossroads

Correctional Center,

MIKE MCGRATH,

Montana Attorney

General,

Respondents.

I. NATURE OF THE CASE

This is a petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254 challenging Petitioner's

1994 conviction for deliberate homicide and aggravated

assault.

Sja

II. PARTIES

Petitioner is a state prisoner currently

incarcerated at Crossroads Correctional] Center.

The named Respondents are James MacDonald,

Warden at Crossroads Correctional Center and Mike

McGrath, Montana Attorney General.

III. FACTUAL BACKGROUND

The shooting incident giving rise to the charges

in this case occurred in the early morning hours

of October 2, 1993. The events leading up to the

shooting began on the evening of October 1, 1993 when

Petitioner's wife, Gabby Hagen, and a guest of the

Hagens, Steve Jennette, left the Hagen residence and

went into town. While in town Gabby and Steve met

up with the victims, James Enger and Alice Goodrich.

All four individuals had been drinking and eventually

sought the assistance of Reece (Punky) Cobeen to give

them a ride back to the Hagen residence.

When they arrived at the Hagen residence, Mr.

Cobeen and Mr. Jennette began unloading some of Mr.

Jennette’s personal belongings from Mr. Cobeen’s truck

while Mr. Enger and Gabby Hagen began knocking

and pounding on the front door. The Hagens secured

their front door using a two-by-four propped against

the door handle. Eventually Mrs. Hagen and her

visitors were able to awaken Mr. Hagen. Mr. Hagen

had been drinking during the day and was asleep

when the visitors arrived. On his way to the door,

Mr. Hagen picked up his .12 gauge shotgun which he

routinely kept halfway between the front door and the

bedroom. (Trial Transcript, Vol. IV, p. 30). Mr. Hagen

S4a

testified at trial that he awoke to loud banging on his

front door and when he asked who was there, he heard

someone say “open up” but did not recognize the voice.

(Trial Transcript, Vol. IV, pp. 34, 35, 54, 55).

The testimony about what occurred next varies

between the witnesses. Mr. Hagen testified that when

he opened the front door, he was suddenly attacked.

(Trial Transcript, Vol. [V, p. 34). Mr. Hagen contends

that he did not know who was attacking him but that

he managed to hit the assailant on the head with the

gun. The struggle continued and Mr. Hagen believed

the man was renewing his attack. (Trial Transcript,

Vol. IV, p. 35). Mr. Hagen shot his gun and hit Mr.

Enger in the left arm. (Trial Transcript, Vol. IV, pp.

35, 84). Mr. Hagen then heard footsteps to his left and

believed that someone else was coming toward him.

(Trial Transcript, Vol. IV, pp. 39, 60-62). He did not

know who the person was and shot in that direction

killing Alice Goodrich. (Trial Transcript, Vol. IV, p.

36).

The testimony of Mr. Enger and Mr. Cobeen

differ from that of Mr. Hagen. Specifically, Mr.

Cobeen testified that when the door to the home

opened, Alice, Gabby and Jim walked inside. Then

Mr. Hagen escorted Gabby outside onto the porch and

said in an angry tone, “Just go.” (Trial Transcript,

Vol. III, p. 173). Then Mr. Cobeen heard a loud noise

like a man hitting the floor and then he heard a man

55a

say, “Now, Jim, don’t fuck with me or I will kill you.”

(Trial Transcript, Vol. ITI, p. 175).' Mr. Cobeen then

heard two more gunshots.

Mr. Enger testified that when the door opened

he went in, got hit over the head twice and then he

went to leave. (Trial Transcript, Vol. III, p. 126). As he

was trying to leave he testified that Bruce said, “Jim,

get out or I’m going to kill you.” (Trial Transcript, Vol.

III, p. 182). He was then shot in the left arm.

Gabby Hagen’s testimony differs somewhat

from that of Mr. Cobeen in that she testified that

when the door opened she went into the home with

Mr. Enger and a struggle ensued between Jim and her

husband. Not liking violence and having imbibed that

evening she immediately went back to the restroom

and got sick. (Trial Transcript, Vol. III, pp. 72-75).

Steve Jennette did not testify at trial.

IV. PROCEDURAL BACKGROUND

In 1993, Petitioner was char,ed with deliberate

homicide for the death of Alice Goodrich and aggravated

assault for the injury of Jim Enger. Petitioner pled

not guilty to the charges and asserted the defenses

of justifiable use of force and defense of an occupied

structure. The case was tried to a jury in 1994 and

Petitioner was convicted and sentenced to life for

'Mr. Cobeen’s testimony at trial differed somewhat from

his written statement made immediately following the events.

In his written statement, Mr. Cobeen stated that he “heard a

struggle and heard Bruce say to Jim don’t mess with me or I'll

kill you.”

deliberate homicide and 20 years for aggravated

assault.

Petitioner appealed his conviction raising

two issues: 1) whether the District Court erred in

refusing Petitioner's proposed jury instruction on

the justifiable use of force in defense of an occupied

structure; and 2) whether Petitioner was denied

effective assistance of counsel. State v. Hagen, 903

P.2d 1381, 1386 (Mont. 1995)(hereinafter “Hagen

I’). The ineffective assistance of counsel issue was

predicated on four alleged failings by trial counsel: (1)

failure to object to the prosecutor’s reference to missing

witness Steve Jennette during voir dire; (2) failure to

request an instruction on Petitioner’s right to rely on

appearances when asserting the defense of justifiable

use of force; (3) failure to request an instruction on

negligent homicide as a lesser offense; and (4) failure

to call a witness whose testimony tended to impeach

the credibility and accuracy of the testimony of Reece

Cobeen. Hagen I, 903 P.2d at 1386-88. The Montana

Supreme Court affirmed the conviction on all issues.

Hagen I, 903 P.2d at 1389.

On April 14, 1997, Petitioner filed a petition for

post-conviction relief in state district court and raised

nine claims of ineffective assistance of trial counsel.

Petitioner asserted that none of his claims could have

been raised on direct appeal because they required

an evidentiary hearing. Petitioner also contended

that appellate counsel was ineffective for raising his

lesser included instruction claim on direct appeal

when it required an evidentiary hearing. Finally,

57a

Petitioner alleged that, in the event some or all of the

claims relating to trial counsel’s ineffective assistance

were barred as a result of not being raised on direct

appeal, his appellate counsel had provided ineffective

assistance in failing to present significant and obvious

issues on appeal.

The District Court dismissed all claims in the

petition on June 13, 1997 and Petitioner appealed the

dismissal. In Hagen v. State, 973 P.2d 233 (Mont. 1999)

(hereinafter “Hagen IT’), the Montana Supreme Court

affirmed in part and reversed in part holding that

certain allegations of ineffective assistance of counsel

were not based on facts in the record, were properly

raised in the petition for post-conviction relief, and,

therefore, an evidentiary hearing was necessary. All

other allegations of ineffective assistance of counsel

which were record based were dismissed on procedural

grounds.

On March 13, 2000, the District Court held an

evidentiary hearing and on June 29, 2000 issued its

Findings of Fact, Conclusions of Law and Amended

Sentence. (Dkt. #8, Exh. O, pp. 286-295).* The District

Court denied Petitioner a new trial, but granted him

partial post-conviction relief by ordering that his

aggravated assault sentence run concurrently with

his deliberate homicide sentence. On July 11, 2000,

Petitioner appealed the District Court’s judgment

which was affirmed by the Montana Supreme Court on

*The Court notes the parties compliance with new Local

Rule 7.1(k) requiring the numbering of all pages in all exhibits.

This has made the Court’s job easier and it is much appreciated.

58a

August 29, 2002. State v. Hagen, 53 P.3d 885 (Mont.

2002)(hereinafter “Hagen LI’).

V. PETITIONER’S ALLEGATIONS

Petitioner has raised the following grounds for

relief in this his federal petition for writ of habeas

corpus. For purposes of clarity, the Court will also

note when each claim was raised and the basis of its

denial by the Montana Supreme Court.*

1. That his right to due process of law was

violated when the state district court failed to review

the entire record prior to entering its findings of fact,

conclusions of law and amended sentence. This claim

was raised in Petitioner’s second appeal of his petition

for post-conviction relief and the Montana Supreme

Court denied this issue on the merits. (Hagen III).

2. That Petitioner’s due process rights were

violated when his convictions were not reversed

despite the district court’s conclusions that his

trial counsel’s performance was deficient, that the

deficient performance affected the guilt/innocence

determination and that he was entitled to a remedy.

To the extent this claim was raised under Strickland

v. Washington, 466 U.S. 668 (1984) it was raised in

Petitioner’s second appeal of his petition for post-

conviction relief and the Montana Supreme Court

denied the claim on the merits. (Hagen IIJ).

*This list of claims is based on Petitioner's original

petition (Dkt. # 1). Petitioner changed the order of his claims,

added some claims and did not address some claims in his brief

filed in support of his petition. (Dkt. # 22).

5Ya

3. That Petitioner was denied his right to

effective assistance of trial counsel for the following

reasons:

A. Trial counsel failed to interview

witnesses and to investigate the facts of the case in

that he:

i. Failed to investigate Jim Enger’s

reputation for violence, heavy drinking and tumultuous

conduct. This claim was raised in Petitioner's first

petition for post-conviction relief and dismissed on the

merits by the Montana Supreme Court in Hagen III,

53 P.3d at 891-892.

u1. Failed to interview and properly

cross-examine Reece Cobeen, a critical prosecution

witness. This claim was raised in Petitioner’s first

petition for post-conviction relief and dismissed on the

merits by the Montana Supreme Court in Hagen II,

53 P.3d at 892-893.

ili. Failed to introduce the

transcript of the 911 call which Petitioner placed on

the date of the incident. This issue was denied on the

merits by the Montana Supreme Court in Hagen III,

53 P.3d at 893.

iv. Failed to call witnesses

to testify to the inconsistences in Reece Cobecen’s

testimony. This claim was raised on direct appeal and

in Petitioner's first petition for post-conviction relief.

It was denied on the xu. 2rits on the direct appeal (Hagen

JD) and denied on the basis of res judicata in the appeal

of the denial of the first petition for post-conviction

relief (Hagen IT).

v. Failed to question Petitioner’s

ophthalmologist regarding Petitioner’s uncorrected

vision. This issue was raised in Petitioner’s first

petition for post-conviction relief and decided by the

Montana Supreme Court on the merits in Hagen 1/1.

B. Trial counsel failed to call Marvin

Geyman to rebut the testimony of Reece Cobeen. This

claim was raised on direct appeal and in Petitioner’s

first petition for post-conviction relief. It was denied

on the merits on the direct appeal (Hagen J) and denied

on the basis of res judicata in the appeal of the denial

of the petition for post-conviction relief. (Hagen IJ).

C. During voir dire, trial counsel

permitted the jury to be exposed to prejudicial

references to the statements of a missing eyewitness.

This claim was raised on direct appeal and dismissed

on the merits by the Montana Supreme Court. (Hagen

dD.

D. Trial counsel failed to object to the

State’s comments on Gabriel Hagen’s invocation of

spousal privilege. This claim was raised for the first

time in Petitioner's first petition for post-conviction

relief. The Montana Supreme Court determined that

it was a record based issue which should have been

raised on direct appeal. It therefore found the issue

to be procedurally barred under Mont. Code Ann.

46-21-105(2). (Hagen II). Petitioner later raised this

issue as a basis of his claim that appellate counsel

was ineffective. In Hagen III, the Montana Supreme

Court disagreed concluding that appellate counsel did

not err by failing to raise the issue on appeal.

6la

E. Trial counsel failed to object to

inappropriate opinion testimony regarding Petitioner’s

credibility based upon two videotapes of Petitioner’s

interviews with the police. This claim was raised

for the first time in Petitioner’s first petition for

post-conviction relief. The Montana Supreme Court

determined that it was a record based issue which

should have been raised on direct appeal. It therefore

found the issue to be procedurally barred under Mont.

Code Ann. § 46-21-105(2). (Hagen IT). Petitioner later

raised this issue as a basis of his claim that appellate

counsel was ineffective. The Montana Supreme Court

disagreed. (Hagen III).

F. Trial counsel improperly elicited

vouching testimony from Deputy Hansen regarding

Reece Cobeen. This claim was raised for the first

time in Petitioner’s first petition for post-conviction

relief. The Montana Supreme Court determined that

it was a record based issue which should have been

raised on direct appeal. It therefore found the issue

to be procedurally barred under Mont. Code Ann. §

46-21-105(2). (Hagen IJ). Petitioner later raised this

issue as a basis of his claim that appellate counsel was

ineffective. The Montana Supreme Court disagreed

and declined to find ineffective assistance of counsel

based on this single instance. (Hagen III).

G. Trial counsel failed to object to the

State’s introduction of the autopsy report which

indicated the cause of death was homicide. This

claim was raised for the first time in Petitioner's

first petition for post-conviction relief. The Montana

62a

Supreme Court determined that it was a record based

issue which should have been raised on direct appeal.

It therefore found the issue to be procedurally barred

under Mont. Code Ann. § 46-21-105(2). (Hagen ID.

Petitioner later raised this issue as a basis of his claim

that appellate counsel was ineffective. The Montana

Supreme Court disagreed concluding that appellate

counsel did not err by failing to raise the issue on

appeal. (Hagen III).

H. Trial counsel failed to request a

specific jury instruction on Defendant’s right to rely

On appearances in connection with the defense of

justifiable use of force. This claim was raised on direct

appeal and dismissed on the merits by the Montana

Supreme Court in Hagen I.

I. Trial counsel failed to request an

instruction on the lesser included offense of negligent

homicide. This claim was raised on direct appeal and

dismissed on the merits by the Montana Supreme

Court in Hagen J. Petitioner then complained in his

first petition for post-conviction relief that appellate

counsel had erred in raising this issue on appeal as

it required an evidentiary hearing. The Montana

Supreme Court disagreed and dismissed the claim in

Hagen IIT, 53 P.3d at 896.

J. Trial counsel inappropriately shifted

the burden of proof during closing argument. This

claim was raised in Petitioner’s first petition for

post-conviction relief. The Montana Supreme Court

determined that it was a record based issue which

should have been raised on direct appeal. It therefore

63a

Pe ee een

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found the issue to be procedurally barred under Mont.

Code Ann. § 46-21-105(2). (Hagen IJ). Petitioner later

raised this issue as a basis of his claim that appellate -

counsel was ineffective. The Montana Supreme Court

disagreed finding that the jury was correctly informed

about the law and appellate counsel was not ineffective

for failing to raise the issue on appeal. Hagen III, 53

P.3d at 896.

K. Trial counsel was ineffective in the

manner in which he obtained and disseminated

mental health evaluations of Petitioner to the Court

and the prosecution. This claim was raised for the first

time in Petitioner’s first petition for post-conviction

relief. The Montana Supreme Court determined that

it was a record based issue which should have been

raised on direct appeal. It therefore found the issue

to be procedurally barred under Mont. Code Ann. §

46-21-105(2). (Hagen II). Petitioner later raised this

issue as a basis of his claim that appellate counsel was

ineffective. The Montana Supreme Court disagreed

finding that Petitioner had not demonstrated how the

information from the evaluations dam aged his defense

or lengthened his sentence. Hagen III, 53 P.3d at

894.

L. The cumulative errors of trial counsel

constituted ineffective assistance of counsel. The

Court could not find where this issue was raised.

Although Petitioner complained in his second appeal

of his petition for post-conviction relief regarding the

cumulative effect of the errors of his appellate counsel,

there is no such similar allegation regarding his trial

64a

counsel.

4. Appellate counsel failed to raise significant,

record based, errors on appeal. This issue was raised

in Petitioner’s second appeal of his petition for post-

conviction relief and was denied on the merits. Hagen

IT, 53 P.3d at 896.

Petitioner briefed two additional claims in

his brief in support of his habeas petition filed after

Respondent’s Answer to the petition. Neither of these

claims was raised in Petitioner's original petition. The

first new claim raised in his brief, claim Clb, discusses

how Petitioner’s counsel was ineffective for failing to

cross-exam Jim Enger about the civil suit that Mr.

Enger had filed against Mr. Hagen. This claim was

raised in the state courts below in the second appeal

of Petitioner’s petition for post-conviction relief.

The second new claim, claim C4, was that

Petitioner’s counsel asked the county coroner, Mark

Denke to comment on the credibility of Petitioner’s

wife, Gabby Hagen. In his second appeal of the denial

of his petition for post-conviction relief, Petitioner

merely discussed the facts regarding Mr. Denke’s

comments in his argument regarding his spousal

privilege claim. (Dkt. # 9, pp. 356-357). Petitioner did

not specifically raise this issue as a claim and did not

fairly present it to the state courts. Accordingly, this

claim is not exhausted, it is procedurally defaulted

and will not be reviewed by this Court.

VI. ANALYSIS

A. Claim 3L-Cumulative Effect of Trial

Counsel’s Errors

65a

Before a federal court can entertain a petition

for writ of habeas corpus filed by a state prisoner, the

petitioner must exhaust available state remedies with

respect to claims he seeks to raise in federal court.

28 U.S.C. § 2254/b)(1)(A), (c); Rose v. Lundy, 455

U.S. 509, 522 (1982). The exhaustion requirement is

grounded in principles of comity; that is, it avoids the

“unseemliness” of a federal court’s overturning of a

state conviction or decision, and it reflects a desire to

protect the state courts’ role in the development and

enforcement of federal law. Young v. Kenny, 907 F.2d

874, 876 (9th Cir. 1989) (citing Preiser v. Rodriguez,

411 U.S. 475, 491-92 (1973)).

Consequently, the federal court must dismiss

the federal petition if the petitioner has failed to

exhaust the available state remedies. 28 U.S.C. §

2254(b); Wasko v. Vasquez, 820 F.2d 1090, 1092 (9th

Cir. 1987).

The exhaustion requirement means that

“state prisoners must give the state courts one full

opportunity to resolve any [federal] issues by invoking

one complete round of the State’s established appellate

review process.” O'Sullivan vu. Boerckel, 526 U.S. 838,

845 (1999) (emphasis added).

Claim 3L is a claim regarding the cumulative

effect of trial counsel's errors. - As pointed out by

Respondent, this claim was not raised in any of

Petitioner’s underlying state court actions. Although

Petitioner did raise a claim in state court regarding

the cumulative effect of appellate counsel’s errors, no

such claim was raised regarding trial counsel's alleged

66a

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errors. As such, this claim has not been exhausted.

Exceptions to the exhaustion doctrine exist. See

28 U.S.C. § 2254(b). For example, where requiring

exhaustion would be futile because a petitioner is

procedurally barred from seeking state remedies, the

petitioner is not required to return to state court. In

such a case, the unexhausted claims could be deemed

exhausted.

Here, Petitioner would be procedurally barred

from raising his cumulative ineffectiveness of trial

counsel claim. Petitioner cannot file another petition

for post-conviction relef because it would be banned as

a second or successive petition. See Mont. Code Ann.

§ 46-21-105(1)(b) (barring second petitions unless it

raises grounds for relief that could not reasonably

have been raised in the first petition). Moreover,

habeas relief is not available under Montana state

law to challenge a conviction or sentence. Mont. Code

Ann. § 46-22-101(2) (2001).

The Court must conclude that Petitioner is

precluded from further proceedings in state court.

Accordingly, the Court deems Claim 3L exhausted but

procedurally defaulted.

B. Procedural Default

In general, federal courts cannot review a

decision of a state court on an issue of federal law if

the decision was based on a provision of state law “that

is independent of the federal question and adequate to

support the judgment.” Coleman v. Thompson, 501

U.S. 722, 729 (1991). The adequate and independent

state grounds doctrine arises from concerns for comity

67a

and federalism. Jd. at 730.

Generally, a state’s procedural bar is an

adequate and independent ground for the preclusion

of relief and is not subject to federal review. Harris

v. Reed, 489 U.S. 255, 263 (1989). In such cases, a

petitioner is said to have procedurally defaulted on

his claims for relief.

Respondent argues that Claims 3D, E, F, G, J,

K and L are procedurally defaulted. The Montana

Supreme Court found that claims 3D, E, F, G, J, and

K were ineffective assistance of counsel claims raised

by Petitioner which were record based claims that

should have been raised on direct appeal. Accordingly,

the Montana Supreme Court determined that each of

these claims was procedurally barred on the basis of

Mont. Code Ann. § 46-21-105(2) and on the doctrine of

res judicata because they reasonably could have been

raised on direct appeal and were not. Hagen II, 973

P.2d at 237 (citing State v. Bromgard, 901 P.2d 611,

613 (Mont. 1995)).

The Court concludes that Mont. Code Ann.

46-21-105(2) and the doctrine of res judicata are both

adequate and independent grounds for the preclusion

of relief. Therefore, Petitioner has procedurally

defaulted on his ineffective assistance of counsel

claims 3 D, E, F, G, J, K and L.

As set forth above, claim 3L is procedurally

defaulted because it has not been raised and Petitioner

is precluded from further state court proceedings on

this issue.

While there are exceptions to the general

68a

rule of dismissal for procedural default, none have

been asserted in this case. Respondent argued that

each of these claims was procedurally defaulted and

Petitioner, represented by counsel, does not argue,

that there was cause and prejudice attendant to his

failure to raise these claims on appeal in state court.

Once a procedural default is found to exist,

then:

federal habeas review of the claims

is barred unless the prisoner can

demonstrate cause for the default and

actual prejudice as a result of the alleged

violation of federal law, or demonstrate

that failure to consider the claims will

result in a fundamental miscarriage of

justice.

Coleman, 501 U.S. at 750. Accordingly, Petitioner

needed to demonstrate either (1) cause, and (2)

prejudice; OR that this Court’s failure to consider his

claims would result in a fundamental miscarriage of

justice.

“Cause” must be a legitimate excuse for the

procedural default in the state courts. See Thomas v.

Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). “A showing

of cause [for procedural default] ‘must ordinarily turn

on whether the prisoner can show that some objective

factor external to the defense impeded counsel’s efforts

to comply with the State’s procedural rule.” Poland v.

Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997) (emphasis

added) (quoting Murray v. Carrier, 477 U.S. 478, 488

(1986)). “Prejudice” must be actual harm resulting

69a

from the constitutional violation alleged as grounds

for relief in the petition. Thomas, 945 F.2d at 1123.

The “fundamental miscarriage of justice”

exception requires a showing that “it is more likely

than not that no reasonable juror would have found

{him} guilty beyond a reasonable doubt” if the errors of

which he complains had not been committed. Schlup

v. Delo, 513 U.S. 298, 327 (1995); see also Majoy uv.

Roe, 296 F.3d 770 (9th Cir. 2002). This exception is

commonly called the “actual innocence” exception.

Constitutionally ineffective assistance under

the Sixth Amendment constitutes cause sufficient to

excuse a procedural default. Murray v. Carrier, 477

U.S. 478, 488 (1986). As discussed below, Petitioner’s

assertion that his appellate counselrendered ineffective

assistance of counsel by failing to raise claims 3 FE,

F, G, J, K, and L on appeal is not supported by the

record.‘

Petitioner's procedural default could also be

excused if he could show actual, factual innocence,

not just legal insufficiency of the evidence. To

establish actual innocence, Petitioner would need to

demonstrate in light of all the evidence, including new

evidence that might be introduced by both sides, that

“it is more likely than not that no reasonable juror

would have convicted him.” Bousley, 523 U.S. at 623

(internal quotation marks and citations omitted).

‘As set forth below, the Court finds that Petitioner’s

appellate counsel did render ineffective assistance of counsel

by failing to raise claim 3D regarding Mrs. Hagen’s invocation

of spousal privilege. Therefore, Claim 3D is not procedurally

defaulted.

70a

Petitioner has not, however, attempted to show that

he is actually innocent of the crimes charged.

Petitioner has, therefore, failed to show that he

should be excused from his procedural default.

Accordingly, Claims 3 E, F, G, J, K, and Lshould

be dismissed for being procedurally defaulted.

C. Do Claims 1 and 2 raise a federal

right?

Respondent contends that grounds 1 and 2 are

conclusory and fail to state a federal question. The

Court disagrees. With regard to Petitioner’s first claim,

it is true that Petitioner did not cite to a federal case

in his actual petition filed with this Court. However,

Petitioner does discuss in both his state court briefs

and in his brief in support of his petition (Dkt. # 22)

that once a state has “chosen to provide collateral

post-conviction procedures for convicted prisoners,

those procedures must, at least, comport with the

base-line of due process —i.e., they must comport with

‘fundamental’ fairness.” Jackson v. Duckworth, 844

F.Supp. 460, 464 (N.D.Ind. 1994); Easter v. Endell,

37 F.3d 1343 (8th Cir. 1994). Petitioner also cited to

Evitts v. Lucey, 469 U.S. 387, 401 (1985) in support

of this contention. (Dkt. # 22, pp. 10-11; Dkt. # 8, pp.

327-328).

Accordingly, Ground 1 presents a federal

question which was fairly presented to the state courts

for review.

Petitioner’s second ground for relief is similar

but presents somewhat of a different situation.

Respondent is correct that Petitioner mentioned a

Tila

due process violation for the first time in his federal

petition. This claim was not raised in the state court,

is unexhausted, procedurally defaulted and should be

dismissed.

Nevertheless, in his Brief in Support of his

Petition (Dkt. # 22), Petitioner presents the same

federa! claim that was presented in the state court.

(Dkt. # 22, pp. 12-16; Dkt. # 8, pp. 338-42). The Court

construes this claim as an ineffective assistance of

counselclaim submitted under Strickland. Petitioner’s

second claim is an allegation that the trial court erred

in its analysis under the Sixth Amendment when it

found that there was deficient performance and that

the deficient performance prejudiced the defense yet

only adjusted Petitioner’s sentence and did not order

a new trial.

This claim was sufficiently exhausted, it raises

a federal claim under the Sixth Amendment and the

Court will review the merits of this claim.

D. Legal Standard

This action is subject to the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), which became effective on April 24, 1996.

Lindh v. Murphy, 521 U.S. 320, 326 (1997); Weaver v.

Thompson, 197 F.3d 359, 362 (9th Cir. 1999).

AEDPA“modifiesthe role offederalhabeascourts

in reviewing” habeas petitions. Williams v. Taylor, 529

U.S. 362, 403 (2000)(O’Connor, J., concurring). “The

Supreme Court has said that § 2254(d)(1) imposes a

‘highly deferential standard for evaluating state-court

rulings,’ and ‘demands that state court decisions be

72a

given the benefit of the doubt.” Clark uv. Murphy, 331

F.3d 1062, 1067 (9th Cir. 2003)(citing Lindh, 521 U.S.

at 333 n.7 and Woodford v. Visciotti, 537 U.S. 19, 123

S.Ct 357, 360 (2003)(per curiam)).

Following the AEDPA’s enactment, 28 U.S.C. §

2254(d) now reads as follows:

(d) An application for a writ of habeas corpus

on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the 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.

“A state court’s decision is ‘contrary to’ federal

law if the state court (1) ‘applies a rule that contradicts

the governing law’ set forth in Supreme Court case

authority or (2) applies controlling law to a set of facts

that are ‘materially indistinguishable’ from a Supreme

Court decision but nevertheless reaches a different

result.” Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1169

(9th Cir. 2003)(citing Lockyer v. Andrade, 538 U.S. 63,

73 (2003)).

73a

“A state court’s decision is an ‘unreasonable

application’ of federal law if it is ‘objectively

unreasonable,’ which ‘requires the state court decision

to be more than incorrect or erroneous. Thus, ‘an

unreasonable application is different from an incorrect

one.” Id. at 1169-1170 (citing Lockyer, 538 U.S. at 75

and Bell v. Cone, 535 U.S. 685, 122 S.Ct. 18438, 1850

(2002)).

With regard to factual issues, habeas relief

can only be granted if the adjudication of the

claim 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)(2). “As to more debatable factual

determinations, the care with which the state court

considered the subject may be important.” Jeffries v.

Wood, 114 F.3d 1484, 1500 (9th Cir. 1997)(en banc)

cert. denied 522 U.S. 1008 (1997) overruled on other

grounds by Lindh, 521 U.S. 320. Further, AEDPA

directs that factual findings of the state court be

granted a presumption of correctness that can only be

rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1); Jeffries, 114 F.3d at 1499-1500.

Based on the foregoing statutory structure

for granting habeas relief, the Court will analyze

Petitioner's contentions in light of the applicable

federal law and the Montana Supreme Court’s

decisions on Petitioner's claims for relief.

74a

E. Merits of Claims 1, 2, 3A, B, C, H, J

and 4

1. Due Process Violation—Not Reviewing

Entire Record

The state district court made a_e specific

conclusion of law that in making its conclusions, it did

“net review the entire trial proceedings.” Petitioner

contends that the district court had an obligation to

review the trial record since his claims were record

based and that its failure to do so deprived him of

due process. The Montana Supreme Court found that

the post-conviction statutes (which Petitioner rehed

upon to establish a due process claim) do not explicitly

require that a district court review the entire record.

It pointed out that in a situation such as this where the

district judge who presided over the post-conviction

hearing was the same judge who presided at trial, it

was less important to review the entire trial record.

The Montana Supreme Court held that the district

court had a duty to review those parts of the record

which were at issue in the post-conviction proceedings

but would not require a court to review the entire

record in every case.

This Court cannot say that state court's

determination was contrary to or involved an

unreasonable application of clearly established federal

law or was based on an unreasonable determination of

the facts in light of the evidence presented.

2. Ineffective Assistance of Counsel

elas 2.

Petitioner's second, third and fourth grounds

7Sa

for rehef all raiwe iwevues of ineffective assistance

of counsel, To demonstrate iueffective assistance

of counsel a petitioner must ahow that (1) counsel's

performance was deficient in that uw fell below an

objective standand of reasonableness, and (Y) there

is a reasonable probability that, but tor counsel's

unprofessional errore, the reault of the proceeding

would have been different, Streotland vo. Washington,

466 U.S. G68, BS7-88 (LPS4), However, just showing

a different result ia insufficient. Steotlaed mandates

a showing of conduct that i “so serous as to deprive

the defendant of a faw tral, a teal whose result is

rehable.” Jd. at G87, Reeause both prongs of the

Sinekiond test muet be met, the court need not

analyse whether counsels performance was deficient

if the petitioner fails to ahow actual prepadiwe trom the

alleged deficiency. Simoklond, 466 US. at BO. “Lt at

is easier fo dispose of an ineffectiveness claim on the

ground of lack of suffierent premidie, which we expect

will offen be eo, that course should be followed.” Jad

The Supreme Court has also cautioned that

‘Sudieial serutiny of counsela performance must be

highly deferential’ because “Mt i all too tempting for

a defendant to second puiess Counsel's assistance alter

a conviction or adverae aentence, and iti all (00 easy

for a court, examiuunge counsels defense after it has

proved unsuccessful, to conclide that a particular act

or omission of counsel Was unreasonable” Jd. at GSD

The Supreme Court further cautioned that “a court

must indulge a strong presumption Chat counsel's

conduct falls within the wide range of reasonable

professional assistance.” Id.

Under the prejudice prong, a _ reasonable

probability of a different result is one sufficient to

undermine confidence in the outcome. Strickland, 466

U.S. at 694. In determining the existence of prejudice,

the court “must consider the totality of the evidence

before the judge or jury.” Id. at 695.

The Montana Supreme Court utilized the two

prong test set forth in Strickland and considered

whether counsel’s performance was deficient and

whether that deficiency was “so serious as to deprive

the defendant of a fair trial.” Id. at 687.

a. 2--Whe he district

court’s findings and conclusions

were inconsistent?

Petitioner's second claim is that his Sixth

Amendment rights were violated when the trial

court did not reverse his conviction after finding that

trial counsel’s performance was deficient, that the

deficient performance affected the guilt/innocence

determination and that Petitioner was entitled to a

remedy.

The Montana Supreme Court reviewed the

district court's findings and disagreed with Petitioner’s

contention that the findings and conclusions were

inconsistent. The Montana Supreme Court held

that “it is entirely possible within the framework

of Strickland to find attorney error which possibly

prejudiced the defendant, yet conclude that such error

did not rise to a level serious enough to result in a

77a

verdict unworthy of confidence.” Hagen III, 53 P.3d

at 891, 423. The Montana Supreme Court found

that the “controlling language of the District Court’s

conclusions of law are those that track the dispositive

elements of the Strickland analysis.” Id.

The trial court found and the supreme court

agreed that there was some prejudice but not enough

prejudice to undermine confidence in the jury’s

verdict. It is not unreasonable to determine that

although there was some prejudice, such prejudice

was not sufficient to undermine the confidence in the

jury’s verdict. U.S. v. Walters, 904 F.2d 765, 771-772

(1st Cir. 1990). However, the district court’s ultimate

conclusion was contradictory because after making

this finding the district court nevertheless amended

Petitioner's sentence on the aggravated assault charge

to have it run concurrent with the deliberate homicide

sentence. The court determined that any prejudice

only applied to the aggravated assault charge and not

the deliberate homicide charge.

Based upon the record of this case, it was

unreasonable for the trial court to find that there

was enough prejudice to change the sentence on the

aggravated assault conviction but not the verdict.

If the trial court determined that the prejudice was

sufficient to adjust the sentence then it presumably

found that the prejudice undermined confidence in the

jury’s verdict on the aggravated assault conviction.

What is at issue is more than how much time Mr. Hagen

must serve in prison. It also involves the propriety of

the actual convictions against him. If trial counsel’s

78a

errors undermine confidence in the jury’s verdict on

the aggravated assault conviction, then the remedy

must be to overturn that conviction. The state court’s

determination to uphold the district court’s remedy of

adjusting the sentence was unreasonable.

Petitionercontendsthatthe ineffective assistance

of counsel in this regard not only goes to aggravated

assault conviction but also to the deliberate homicide

conviction. The Court cannot agree. Petitioner argues

that the shooting of Jim Enger and Alice Goodrich were

part of a single, continuous event and that “under the

circumstances of this case, a legitimate self-defense

claim regarding Hagen’s assault on Enger also applies

to the deliberate homicide charge regarding Goodrich.”

(Dkt. # 22, p. 15).

A review of the record indicates that even if the

shooting of Mr. Enger was justified by self defense it

was unreasonable of Petitioner to then turn around

and begin shooting without any indication who was

approaching him from behind or if they were going

to attack him. Mr. Hagen testified that he “could see

legs coming at me and | turned and fired. I backed

away and I turned and fired. I thought it was someone

else attacking from the same cohort companion of this

person that attacked me. ... I think I would have

shot my mother. I would have shot anybody. I just

reacted.” (Trial Transcript, Vol. IV, p. 36, lines 6-19,

19-20).

Mont. Code Ann. § 45-3-102 provides that:

[a] person is justified in the use of force or

79a

threat te use force against another when and

to the extent that he reasonably believes that

such conduct is necessary to defend himself or

another against such other’s imminent use of

unlawful force. However, he is justified in the

use of force likely to cause death or serious bodily

harm only if he reasonably believes that such

force is necessary to prevent imminent death

or serious bodily harm to himself or another or

to prevent the commission of a forcible felony.

The jury could have easily concluded, even

if Mr. Hagen was justified in shooting Mr. Enger,

that his belief that deadly force was necessary with

regard to Ms. Goodrich was unreasonable. He

shot indiscriminately without regard for who was

approaching him and without any indication that the

person intended to cause him harm.

Therefore, it was not an _ unreasonable

determination of the facts in hight of the evidence to

find that there was not enough prejudice to undermine

confidence in the deliberate homicide conviction.

b. Claims 3Ai(petition) and C4 (brief):

Failure to present evidence about

Jim_ Enger

Petitioner contends that his trial counsel failed

to investigate or offer evidence of James Enger’s

reputation for violence, heavy drinking and trouble-

making. He also asserts that trial counsel should have

cross-examined Mr. Enger about the civil lawsuit he

filed against Mr. Hagen. Petitioner alleges that the

introduction of such evidence would have impacted

Enger’s credibility as a witness.

Both Mr. Hagen and his daughter Kendra

testified at the post-conviction evidentiary hearing

that counsel independently explained to each of them

that because Mr. Hagen was unable to identify his

attackers at the time of the shootings, evidence of the

violent propensities of Mr. Enger would be inadmissible

at trial. (Evidentiary Hearing Transcript, pp. 7, 8, 16,

17).

Petitioner submits that evidence of Mr. Enger’s

reputation for violence was admissible as evidence

identifying the aggressor in the incident. (Dkt. # 22,

p. 20 citing State v. Sattler, 956 P.2d 54, 64 (Mont.

1998); Fed. Rule. Evid. 405(a); M.R.Evid 405; State

v. Jones, 139 P.441 (Mont. 1914); State v. Benton,

825 P.2d 565 (Mont. 1991)). See also State v. Logan,

473 P.2d 833 (Mont. 1970). The Court agrees that

this authority supports Petitioner’s contention that

evidence of Mr. Enger’s reputation for violence could

have been admissible as evidence that Mr. Enger was

the aggressor in this incident.

The State, argues that the record was silent as

to whether trial counsel conducted any investigation,

that the assertion that counsel misunderstood the law

was speculation and that there were tactical reasons

to avoid introducing this evidence.

$la

The Montana Supreme Court found that,

we cannot determine from the record whether

Hagen’s trial counsel investigated Hagen’s

assertions, and, if he did, what tactical reasons

were considered for not introducing that

information at trial. The burden was on Hagen

to demonstrate ineffectiveness and Hagen’s

trial counsel did not testify at the evidentiary

hearing. A silent record cannot rebut the

‘strong presumption that counsel's conduct falls

within the wide range of reasonable professional

assistance.’

Hagen ITI, 53 P.3d at 892, 4 26.

Based upon the record before this Court it

appears the above finding of the Montana Supreme

Court was an unreasonable application of the law

to the facts. Federal law only requires a defendant

to show that counsel’s performance was deficient

and that the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687. Contrary to

the state court’s finding that the record was silent

on this issue, Petitioner presented unrebutted

testimony that his counsel did not introduce evidence

of Mr. Enger’s violent propensities (whether it be by

reputation, background or criminal history) because

of his misunderstanding of the law. The state could

have attempted to rebut the testimony of Mr. Hagen

and his daughter by presenting the testimony of trial

counsel, but they did not do so. Strickland instructs

82a

that a defendant “must overcome the presumption

that, under the circumstances, the challenged action

‘might be considered sound trial strategy.” Strickland,

466 U.S. at 689 (quoting Michel v. Louisiana, 350

U.S. at 101). Petitioner overcame this presumption

by presenting unrebutted testimony that counsel’s

decision to not investigate or introduce any such

evidence was made based upon a misunderstanding

of state law. Thus the state court’s finding that there

was a “silent record” on this issue was unreasonable.

However, as discussed above, any error

regarding the failure to introduce evidence regarding

Mr. Enger’s violent propensities only affects the

verdict regarding the aggravated assault charge, not

the deliberate homicide charge.

c. Claims 3Aii, 3Aiv, 3Bregardingthe

Testimony of Reece Cobeen

Petitioner argues that his trial counsel’s

performance was deficient with respect to the testimony

of Reece Cobeen. Petitioner contends that his counsel

failed to interview Cobeen, failed to cross-examine

Cobeen regarding his pre-trial statement and failed

to offer other evidence (including rebuttal witnesses)

to impeach Mr. Cobeen. Respondent argues that this

issue was barred by the doctrine of res judicata and

therefore is procedurally defaulted. The Court agrees

that the Montana Supreme Court found this claim to

be barred by res judicata. Hagen II, 973 P.2d at 239;

Hagen III, 53 P.3d at 893. However, the state court

found that it was barred because this issue was raised

83a

and resolved in Petitioner's direct appeal. Therefore,

it was only barred from consideration in Hagen IJ and

Hagen IIT because the state court had decided the

merits of the claim in Hagen I. It is not barred from

review in this Court. Petitioner’s claim 3B has been

exhausted, it has not been procedurally defaulted and

the Court will examine this claim on its merits.

In Hagen I, the Montana Supreme Court

presumed that defense counsel’s failure to call a

relevant witness regarding Mr. Cobeen’s location

at the time of the shooting resulted in deficient

representation and considered therefore, “whether a

reasonable probability exists that but for counsel’s

deficient performance, the trial’s outcome would have

been different.” Hagen I, 903 P.2d at 1389 (quoting

State v. Sheppard, 890 P.2d 754, 757 (Mont. 1995)).

The Montana Supreme Court concluded that “Cobeen’s

location in relationship to the front porch, wiiile

relevant to this case, is not dispositive. A review of

the record reveals, absent Cobeen’s testimony in its

entirety, substantial evidence to support the jury’s

verdict.” Id.

As set forth above, the Court must consider

the state court’s factual findings and grant habeas

relief only if the adjudication of the claim resulted

-in a decision that was based on an unreasonable

determination of the facts in hght of the evidence

presented in the state court proceeding. 28 U.S.C. §

2254(d)(2).

The state district court made findings of

fact and conclusions of law regarding this issue.

84a

Specifically, the trial court found that trial counsel did

not interview Mr. Cobeen prior to trial but did cross-

examine Mr. Cobeen and did use one of Mr. Cobeen’s

pre-trial statements in said cross-examination. The

trial court further found that trial counsel did not

interview Marvin Geyman as a potential witness

to impeach Mr. Cobeen but there was no evidence

introduced regarding what that testimony may have

established. (Dkt. # 8, Exhibit 0, p. 287)

Based upon these findings the trial court

concluded that, “counsel could have done a more

thorough job of interviewing and preparing witnesses,

and Defendant may have suffered some prejudice as

a result thereof.” However, the trial court also found

that counsel provided reasonably effective assistance

and that Petitioner received a fair trial and the result

and jury verdict are reliable. (Dkt. # 8, Exhibit O, pp.

6-7).

Accordingly, both the state district court and

the Montana Supreme Court found that there was

substantial evidence to support the jury’s verdict.

AEDPA directs that factual findings of the state court

be granted a presumption of correctness that can only

be rebutted by clear and convincing evidence. 28

U.S.C. § 2254(e)(1); Jeffries, 114 F.3d at 1499-1500.

Petitioner faults his counsel in a number of

respects. First, he contends that counsel should

have cross-examined Mr. Cobeen about his location

at the time of the shooting because of Mr. Cobeen’s

testimony about petting a goat at the time of the

incident. Petitioner argues that the goat was tethered

85a

a significant distance from the Hagen residence and

therefore Mr. Cobeen would not have been able to

hear the voices and other sounds about which he

testified. However, the testimony of Mr. Hagen at

the evidentiary hearing indicates that the goat was

chained near the house.° Specifically, Mr. Hagen

testified that they kept the goat on a chain “because

it would eat through a rope. And right there at the

house, it can go underneath the house for shelter.”

(Evidentiary Hearing Transcript, p. 25).

Petitioner also finds fault with counsel’s failure

to cross-examine Mr. Cobeen about not seeing Ms.

Goodrich’s body. However, it seems entirely plausible

that Mr. Cobeen who ran away from the scene after

hearing the shots did not see Ms. Goodrich’s body.

Therefore, the state court’s conclusion that counsel

was not ineffective for failing to cross-examine on this

point was not objectively unreasonable.

Petitioner also faults counsel for failing to

impeach Mr. Cobeen with his written pre-trial

statement which varied slightly from his trial

testimony. The Court recognizes the difference in

Mr. Cobeen’s testimony. Mr. Cobeen testified at trial

that he heard Petitioner say to Mr. Enger, “Don’t fuck

with me, Jim, or | will kill you.” (Trial Transcript,

Vol. IV, p. 9). In Mr. Cobeen’s first written statement

he wrote that he “heard a struggle and heard Bruce

5Although Mr. Hagen was referring to a photograph at

the evidentiary hearing, no such photograph was presented to

this Court. Therefore, the Court must rely on the transcribed

testimony of Mr. Hagen which indicates that the goat was teth-

ered so that the goat could go under the house for shelter.

86a

say to Jim don’t mess with me or [ll kill you.” (Dkt.

# 23, Appendix B—App-82-83). The distinction being

that at trial, Mr. Cobeen included the name Jim in

his quotation of Petitioner’s statement, but in the

written statement he did not include the name Jim.

However, counsel cross-examined Mr. Cobeen about

this distinction. (Trial Transcript, Vol. IV, pp. 9-10).

Moreover, the Ninth Circuit has held that

counsel’s decision not to use prior inconsistent

statements for impeachment purposes is a matter

of trial tactics and is not ineffective assistance. See

Gustave uv. United States, 627 F.2d 901, 905 (9th Cir.

1980) (addressing a counsel’s failure “to utilize prior

sworn testimony of various witnesses in an effort

to destroy their in-court identification with alleged

inconsistencies” and concluding failure was “obviously

a matter of trial tactics and falls far short of ineffective

counsel”).

The Court finds that the state court’s factual

findings with regard to the above stated issues were

not objectively unreasonable.

Petitioner next contends that two witnesses

were available to impeach Mr. Cobeen regarding

his location at the time of the shooting. Specifically,

Petitioners daughter testified at the evidentiary

hearing that Mr. Cobeen told her he was at a different

location at the time of the shooting than what he

testified to at trial. (Evidentiary Hearing Transcript,

p. 11). In addition, Petitioner argues that another

witness, Marvin Geyman, was available to testify

that Mr. Cobeen had told him he was some distance

87a

from the Hagen residence at the time of the shooting.

However, as the trial court found, no evidence was

introduced at the evidentiary hearing or to this Court

regarding what Mr. Geyman’s testimony may have

established. (Dkt. # 8, Exhibit O, p. 287). Petitioner

also argues that trial counsel compounded the issue

with Mr. Cobeen’s credibility when he sought and

receive “vouching” testimony about Mr. Cobeen from

a law enforcement officer.

The state court made a specific finding that

Mr. Cobeen’s location at the time of the shootings

was relevant but not dispositive. The court found

even without Mr. Cobeen’s testimony, there was

substantial evidence to support the jury’s verdict.

This Court cannot say that this was an unreasonable

determination of the facts in light of the evidence

presented with regards to the deliberate homicide

conviction but that it is unreasonable with regard to

the aggravated assault conviction.

As Petitioner points out, Mr. Cobeen’s testimony

was important to the prosecution because he testified

that he heard Petitioner shout, “Now Jim, don’t fuck

with me or [| will kill you.” (Trial Transcript, Vol.

III, p. 175). According to Petitioner, this testimony

undermined Petitioner’s affirmative defense by

showing if true, that Petitioner identified his primary

assailant before shooting and wounding him. (Dkt. #

22, p. 23). However, as the state supreme court pointed

out, Mr. Enger also testified at trial that Petitioner

said, “Jim, get out or I’m going to kill you. Get out of

my house or I’m going to kill you.” (Trial Transcript,

88a

Vol. III, p. 132). The state supreme court also relied

on the testimony of Petitioner’s wife who testified

that she had invited the victims to her home. The

state court additionally focused on the facts that the

victims were unarmed at the time of the incident and

Petitioner himself testified that he turned and shot

Ms. Goodrich without regard at whom he was firing.

Hagen I, 903 P.2d at 1389.

The Court does not agree with the state court’s

conclusion that even without Mr. Cobeen’s testimony,

there was substantial evidence to support the jury’s

verdict on the aggravated assault charge. Reece

Cobeen was the only sober witness to this incident,

therefore, it is highly probable that the jury gave his

testimony substantially more weight than the other

witnesses who were all intoxicated.

Without the testimony of Mr. Cobeen, the only

testimony which contradicts Mr. Hagen’s self-defense

theory was the testimony of Mr. Enger that Mr. Hagen

said to him, “Jim, get out or I’m going to kill you.”

(Trial Transcript, Vol. III, p. 132). The trial court

already determined that there was some prejudice

regarding counsel’s failure to impeach the credibility

of Mr. Enger. Given the lack of impeachment of Mr.

Enger, the supreme court’s finding that there was

substantial evidence to support the conviction without

Mr. Cobeen’s testimony is unreasonable. Mr. Cobeen

was the key prosecution witness. His location at the

time of the shooting was very relevant to the outcome

of this case, as was his credibility. Given Kendra

Hagen’s testimony, a jury would have been free to

89a

way

Bak

conclude that af Me. Cobeen wan not being completely

honest about his location at the time of the shooting,

he may not have been honest im other aapecta of his

testimony.

The state courta concluaon that there was

substantial evidence to support the pury’a verdict on

the aggravated assault charge without the teatimony

of Mr. Cobeen was an unreasonable determination of

the facts in hght of the evidence presented in the state

court proceeding, PRU S.C. § Beha?)

However, Mr. Cobeen’s teatumony regarding

hearing a struggle and Petitioner's statements prior

to shooting Mr. Enger only support the conviction

on the aggravated assault charge. Mr, Cobeen gave

no testimony regarding the ahooting of Ma, Goodrich

except for hearme the ahota, A review of the record

indicates that even uf the shooting of Mr, Enger

war justified by self defense i wan unreasonable of

Petitioner to then turn around and begin shooting

indiscriminately without any andieation that the

individual approaching him from behind was attacking

him.

Accordingly, this Court cannot say that the state

court’s adjudication of this claim aa at apples to the

deliberate homicide conviction resulted i a decimion

that.was based on an unreasonable determination of

the facts in light of the evidence presented in the state

court proceeding, 2&8 USC. & Beha)

d. Claam GAmi Oil Transeript

Petitioner contends that hia counsel was

ineffective for not introducing into evidence at trial

the transcript of his call to 911 in which he stated

that he was attacked in his house. The state supreme

court found that while the transcript may have been

admissible and may have corroborated Petitioner’s

testimony, counsel was not obligated to introduce

cumulative evidence. Hagen III, 53 P.3d at 893 (citing

State v. Allen, 37 P.3d 655 (Mont. 2001)).

Although not mentioned by the state courts,

petitioner or respondent in this matter, the 911

operator was called as a witness, she described the

911 call and the 911 tape was played to the jury and

introduced into evidence. (Trial Transcript, Vol. I,

pp. 157-164). Petitioner argues that his counsel was

ineffective for not introducing the transcript of the 911

call because it constituted highly probative evidence

of Mr. Hagen’s state of mind immediately following

the shootings. Clearly, playing the 911 call for the

jury provided this evidence to the jury in a better form

than merely introducing the transcript of the call as

it would have demonstrated Mr. Hagen’s demeanor at

the time of the call. Given the fact that the 911 call

was played to the jury and introduced into evidence,

this claim seems frivolous.

The Court does note that in its analysis of this

issue the Montana Supreme Court cited the incorrect

standard by stating that they were “unable to conclude

that its [the 911 transcript’s] presentation would have

led to a different result.” The correct standard is

whether there was a reasonable probability that the

introduction of the 911 transcript would have led to

a different result. Nevertheless, utilizing the correct

9la

standard it is clear that Petitioner failed to show

“a reasonable probability that ... the result of the

proceeding would have been different” had the 911

transcript been introduced since the 911 tape itself

was played for the jury and introduced into evidence.

See United States v. Schaflander, 743 F.2d 714, 719

(9th Cir. 1984) (where defendant's counsel had no

obligation to present cumulative evidence).

e. Claim 3Av: Failure to Prepare

Ophthalmologist

Petitioner argues that his counsel failed to

adequately prepare Paul Overland, M.D., one of his

own witnesses for Dr. Overland’s trial testimony.

Dr. Overland testified at trial regarding Petitioner's

corrected vision but did not testify regarding his

uncorrected vision. Petitioner was not wearing his

glasses at the time of the shootings but the jury was

never told what Petitioner’s uncorrected vision was or

how it would have affected his ability to recognize the

people who came knocking at his door.

The state supreme court did not directly

address this issue. However, as Respondent argues,

Petitioner introduced no evidence in any of his post-

conviction proceedings or in this Court to demonstrate

what that uncorrected vision was or how #t affected

his ability to recognize the people at his door. This

Court cannot say without any such evidence that

counsel was ineffective for not introducing that

evidence. The Montana Supreme Court affirmed the

state district court's finding that trial counsel could

have done a better job of preparing witnesses but that

92a

any resulting prejudice did not rise to a level serious

enough to result in a verdict unworthy of confidence.

This Court does not find that this decision was

contrary to federal law, involved an unreasonable

application of federal law, or an unreasonable

determination of the facts in light of the evidence

presented.

f. Claim 3C: Voir Dire

The issue of whether counsel was ineffective for

failing to object to the prosecutor’s reference during

jury voir dire to a witness who was not called at

trial was addressed by the Montana Supreme Court

on direct appeal. During voir dire a potential juror

was questioned regarding his knowledge of the case

based on the potential juror’s conversations with

Steve Jennette, a witness at the scene who was not

produced at trial. In response to questioning, the

potential juror stated that he knew Steve Jennette,

that he had counseled him after the shootings and

that he received “first hand” information about the

shootings. Ultimately this juror stated that he would

be uncomfortable serving as a juror based upon his

knowledge of the case. Defense counsel did not object

during this line of questioning.

The Montana Supreme Court found that counsel

was not ineffective because no evidence concerning

the substance of these conversations was presented.

The supreme court determined that it may have been

reasonable for defense counsel to object to the line of

questioning or request an in camera inspection of the

potential juror but such actions were not mandated.

93a

Hagen I, 903 P.2d at 1387.

A criminal defendant in a state court is

guaranteed an “impartial jury” by the Sixth

Amendment as applicable to the States through

the Fourteenth Amendment. Duncan v. Louisiana,

391 U.S. 145 (1968). Principles of due process also

guarantee a defendant an impartial jury. See, e.g.,

Irvin v. Dowd, 366 U.S. 717, 722 (1961).

A rebuttable presumption of prejudice arises

from the introduction of extraneous information into

the trial process. Dickson v. Sullivan, 849 F.2d 403,

406 (9th Cir. 1988). The ultimate question is what

was the potential effect of the information upon the

jury. Jd. This inquiry is linked to the harmless error

standard and the Court must ask whether the error

had a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson,

507 U.S. 619, 623 (1993).

Although the Montana Supreme Court did not

specifically refer to this standard, they considered

what information was presented and determined that

counsel was not deficient for failing to object to the

line of questioning.

Upon review of the record and utilizing the

standard set forth by the United States Supreme Court,

this Court finds that the venireman’s comments about

the absent witness did not substantially affect the

jury’s decision. As the state court found, no evidence

concerning the substance of the potential juror’s

conversations with Mr. Jennette was presented. The

only information was that the potential juror received

94a

knowledge about the case from an absent witness and

he would not be comfortable in sitting as a juror. What

this Court finds significant is the manner in which

the potential juror expressed his reluctance to sit.

Specifically the potential juror stated, “Probably, in all

fairness to the defendant, | would be uncomfortable.”

There is nothing in this statement which would

substantially affect the jury’s decision.

This Court does not find that this decision was

contrary to federal law, involved an unreasonable

application of federal law, or an unreasonable

determination of the facts in light of the evidence

presented.

g. Claim 3H: Instruction on

Appearances

Petitioner contends that the trial court

failed to request a_ specific instruction on

Petitioner's right to rely on appearances in

connection with the defense of justifiable use

of force. Petitioner argues in his petition® that

justification defenses are to be judged in light of the

appearance of danger facing the defendant, rather

than by the actuality of that danger. However,

Petitioner cites no case law (state or federal) indicating

that Petitioner would have been entitled to any such

defense.

Moreover, as Respondent points out the failure

to request a particular instruction is not ineffective

‘This claim is raised in Mr. Hagen’s Petition for Writ of Ha-

beas Corpus (Dkt. #1) but it was not briefed by Petitioner in his Brief

in Support of his petition. (Dkt. # 22).

95a

where those instructions that are given by the court

are adequate. U.S. v. Feldman, 853 F.2d 648, 666 (9th

Cir. 1988).

The Montana Supreme Court found that the

jury was sufficiently instructed on the defense of

justifiable use of force and therefore found that trial

counsel’s performance was not deficient.

This Court does not find that this decision was

contrary to federal law, involved an unreasonable

application of federal law, or an unreasonable

determination of the facts in light of the evidence

presented.

h. Claim 31: Instruction on Negligent

Homicid

In his petition, Mr. Hagen argued that his

counsel’s failure to request a negligent homicide

instruction constituted ineffective assistance of

counsel. (Claim 3], Petition, p. 22). Petitioner did not

cite any case law to support this contention and did

not argue this ground for relief in his brief.

Respondent argues that the Montana Supreme

Court reasonably decided that trial counsel's failure

to request instructions on negligent homicide was

not deficient attorney-performance. Respondent cites

the Montana Supreme Court’s reasoning that not

requesting an instruction on negligent homicide could

easily be viewed as a legitimate trial tactic. Further,

Respondent argues that it was a reasonable tactic for

trial counsel to avoid a negligent homicide instruction

for “fear of undercutting Hagen’s self-defense claim.”

(Dkt. #8, p. 40 citing Casale v. Fair, 833 F.2d 386, 392

96a

(1st Cir. 1987)).

The Ninth Circuit has upheld trial decisions

which fall “well within the bounds of reasonable trial

tactics.” Beaty v. Stewart, 303 F.3d 975,984 (9th Cir.

2002). Counsel’s decision not to request an instruction

on negligent homicide, although somewhat surprising

given the facts of this case, does fall within the realm of

a reasonable trial tactic. From this record, this Court

cannot find “clear error” with the state court’s decision

and does not find that it was contrary to federal law or

involved an unreasonable application of federal law.

‘ rrorofAppellate

Counsel

Petitioner’s fourth ground for relief is that his

appellate counsel failed to raise issues 3D, E, F, G, J,

and K on direct appeal even though they were record

based claims. He contends that appellate counsel

was ineffective in failing to recognize the difference

between ineffective claims that were record based

and therefore appropriately raised on direct appeal

and those that should have been reserved for post-

conviction.

The Montana Supreme Court addressed the

merits of each of these claims.

i. Spousal privilege

Petitioner contends that his appellate counsel

should have raised on direct appeal his trial counsel’s

failure to object to the prosecutor's comments on

Petitioner's wife’s invocation of spousal privilege.

Mrs. Hagen refused to give a statement until several

months after the incident on the basis of spousal

97a

immunity. Ultimately she did provide a statement to

law enforcement and was called as a witness for the

state at trial.

The Montana Supreme Court analyzed this

claim as one of prosecutorial misconduct and discussed

whether the prosecutor's questions were “manifestly

intended or of such a character that a jury would

naturally and necessarily take it as a comment on the

failure of the privileged individual to testify.” Hagen

IIT, 538 P.3d at 895. Ultimately, the Montana court

concluded that the jury would not “naturally and

necessarily” have interpreted the comments of the

prosecutor as comments on Gabby Hagen’s invocation

of spousal privilege. Therefore, they found no error

with appellate counsel’s failure to raise this issue on

direct appeal. Jd.

By statute in Montana, a wife cannot be

examined for or against her husband without his

consent. Mont. Code Ann. §26-1-802. Rule 505 of the

Montana Rules of Evidence provides that “the claim of

a privilege, whether in the present proceeding or upon

a prior occasion, is not a proper subject of comment by

the court or counsel.”

Under both state and federal law the appropriate

standard for evaluating whether a comment on

spousal immunity is error is whether the statement

“is manifestly intended to call attention to the

defendant’s failure to testify, or is of such a character

that the jury would naturally and necessarily take it

to be a comment on the failure to testify.” Lincoln v.

Sunn, 807 F.2d 805, 809 (9th Cir. 1987); see also State

98a

v. Dawson, 233 Mont. 345, 356, 761 P.2d 352, 359

(1988).

Respondent argues that the prosecutor did

not comment on Mrs. Hagen’s exercise of her spousal

privilege. The Court disagrees. The prosecutor

specifically inquired at least five times during trial

that the police tried to question Mrs. Hagen and Mrs.

Hagen refused on two occasions to give a statement.

(Trial Transcript, Vol. I, p. 142; Vol. II, p. 54; Vol. II,

p. 111; Vol. III, p. 93; and Vol. III, p. 97). Mrs. Hagen

testified that she did not think she had to talk to the

police because she understood that she did not have to

say anything against her husband.

The clear “adverse inference” and presumably

the prosecutor's goal in this line of questioning was

to discredit Mrs. Hagen and suggest that she waited

to make a statement for improper reasons, possibly

as Petitioner suggests to allow the jury to infer that

Petitioner and his wife were colluding to hide evidence

of Petitioner’s guilt. This inference was so obvious

that Petitioner’s trial counsel discussed it during

his closing argument. (Trial Transcript, Vol. IV,

pp. 127-128). There does not appear to be any other

reasons for this line of questioning except to imply a

negative inference on Mrs. Hagen’s refusal to give a

statement against her husband.

Mrs. Hagen did eventually make a statement

and testified at trial. However, in the Fifth Amendment

context it is reversible error to permit evidence of a

refusal to talk on arrest to be used for the purpose of

impeachment even if the defendant testifies at trial.

99a

See Fowle v. U.S., 410 F.2d 48 (9th Cir. 1969) (citing

Grunewald v. U.S., 353 U.S. 391 (1957)).

Thus, there does appear to be deficient

performance by trial counsel and therefore appellate

counsel in failing to raise this issue on appeal. The

question then becomes whether Petitioner suffered

any prejudice as a result of counsel’s failure. Mrs.

Hagen’s testimony supported her husband’s theory

of the case because it was consistent with the theory

that Mr. Hagen did not know who was coming into his

house. Mrs. Hagen testified that Mr. Enger “kind of

fell” into the house and Mr. Hagen yanked him into

the house by his shirt. She then said that there was a

struggle. She testified that she thought her husband

yanked Jim into the house because “he thought it

was an intruder because of the loud banging.” (Trial

Transcript, Vol. III, p. 75). She also testified that she

did not hear her husband refer to Mr. Enger by name

before he shot him.

Finally, Mrs. Hagen’s testimony contradicts

that of Mr. Cobeen. Mr. Cobeen testified that he saw

Mr. Enger and Mrs. Hagen enter the home and that

then Mr. Hagen took Mrs. Hagen by the arm and

pushed her out onto the porch saying get out. Mrs.

Hagen testified that she followed Mr. Enger into the

house and then went to the bathroom where she got

sick. By discrediting Mrs. Hagen the prosecution was

bolstering the testimony of Mr. Cobeen.

However, as with the other errors discussed

herein, the prejudice caused by the prosecution's

attempt to discredit Mrs. Hagen oniy applies to the

100a

conviction on aggravated assault. As with Mr. Cobeen,

Mrs. Hagen gave no testimony regarding the shooting

of Ms. Goodrich. Accordingly, although there was

deficient performance, the prejudice only goes to the

aggravated assault conviction.

Thus, the state court's finding that the

jury would not have “naturally and necessarily”

interpreted the prosecutor’s comments as comments

on Mrs. Hagen’s invocation of spousal privilege was

an unreasonable determination of the facts in light of

the evidence presented with regard to the aggravated

assault conviction.

ii. Comments on Witness

Credibility

During the testimony of Officer Larry Kirby,

the State introduced two videotapes of Petitioner’s

interviews with the police. Both videos were shown

to the jury and the prosecutor asked Officer Kirby to

point out inconsistencies between the first and second

interview. Petitioner argues that the “gist of Officer

Kirby’s testimony was that Hagen changed his story

between the first and second interviews for the purpose

of fabricating a defense.”

The Montana Supreme Court determined that

“pointing out inconsistencies in a person’s statements

is not the equivalent of expressing an opinion on

credibility.” Hagen ITI, 53 P.3d at 895.

Based upon the record in this case, the

Court cannot say that this holding is contrary to

federal law or objectively unreasonable especially in

light of Petitioner’s counsel’s cross-examination of

10la

Officer Kirby whereby he discredited several of the

inconsistencies pointed out by the officer. Counsel’s

cross examination of this officer dispelled any prejudice

which may have potentially arisen by the officer’s

testimony regarding the perceived inconsistencies in

Mr. Hagen’s statement.

ii. Vouching Testimony

Petitioner argues that his trial counsel provided

ineffective assistance of counsel when he elicited the

following testimony from Deputy Jonathan Hansen, a

witness for the prosecution:

Q: While you had encountered them in the

bar and some talk about a shooting, did

you feel] Punky Cobeen was the kind

of person, who would keep them out of

trouble later in the evening?

A: I have never known him to be violent.

I've known him to drink, but I’ve never

known him to be a criminal or violent.

(Trial Transcript Vol. II, p. 133). Petitioner argues

that this cross examination bolstered Reece Cobeen’s

character and credibility. Petitioner contends that no

competent defense attorney would have deliberately

introduced evidence of a police officer’s personal

opinion regarding the character of a key prosecution

witness. The Montana Supreme Court determined

that this testimony did not constitute vouching

testimony and was more of an example of character-

bolstering evidence. It held that only one incident was

102a

cited and that they could not conclude that based on

that isolated instance that Hagen’s trial counsel was

ineffective or that Mr. Hagen was prejudiced by the

remark.

This Court does not find that this decision was

contrary to federal law, involved an unreasonable

application of federal law, or an unreasonable

determination of the facts in light of the evidence

presented. Whether or not Mr. Cobeen was violent

does not seem relevant to any of the issues at hand

and would not have prejudiced Mr. Hagen’s defense.

iv. Autopsy Report

Petitioner also faults appellate counsel for

failing to raise his claim on direct appeal that trial

counsel did not object to the use of the word “homicide”

in the autopsy report. The Montana Supreme Court

found that it was uncontroverted that Petitioner had

killed Alice Goodrich and that killing qualifies as a

homicide based on the general definition of the term.

Furthermore, trial counsel explained the difference

between “homicide” and the legal term of “deliberate

homicide” in his closing argument. Under these

facts, the Montana Court determined that it was

not ineffective to not object to the use of the term or

request a limiting instruction and therefore it was not

ineffective of appellate counsel to not raise this issue

on appeal.

Based upon this record, this Court cannot say

that the state court’s finding was contrary to federal

law, involved an unreasonable application of federal

law, or an unreasonable determination of the facts

103a

in light of the evidence presented, Tt appeara that

counsel made a choice to discuss the iaue in closing

rather than object to the term or requeat a limiting

instruction. This court agrees with the atate courts that

such actions do not constitute deficient performc nce

v. Closing

Petitioner contends that durnng closmeg

arguments, trial counsel erroneously informed the yury

that the defense “had to prove that Hagen’s motive

was self-defense.” Petitioner argues that a criminal

defendant does not have to “prove” selfdefense

Rather, he must only establish sufficient facts to raise

a reasonable doubt of his guilt.

The Montana Supreme Court held that under

Montana law the state has the burden of proving

beyond a reasonable doubt every clement of the offense

charged, and the defendant if he raises an affirmative

defense (such as self-defense) haa the burden of

producing sufficient evidence on the iaaue to raise

reasonable doubt of his guilt. Therefore, the burden

did shift to Petitioner to produce sufficient evidence

to raise reasonable doubt of hia guilt based on his

justifiable use of force defense. The atate court found

that trial counsel's comments were conmiatent with

that shift of burden. In addition, the jury received

an instruction which correctly set forth Petitioner's

burden. Hagen I1/, 53 P.3d at 896, 4 50

The United States Supreme Court has

specifically upheld a state law that placed on the

14a

defendant the burden of proving self-defense by a

preponderance ofthe evidence. Martin v. Ohio, 480 U.S.

228 (1987). Thus, this Court cannot say that the state

court's determination was contrary to or involved an

unreasonable application of clearly established federal

law or was based on an unreasonable determination of

the facts in light of the evidence presented.

vi. Mental Health Exams

Petitioner claims that his counsel erred by not

informing him that he had a right to a confidential

examination at the State’s expense, as set forth by Ake

v. Oklahoma, 470 U.S. 68 (1985) and Estelle v. Smith,

451 U.S. 454 (1981) and failed to inform him prior to

his participation in the mental health examination

that the results of the evaluations could be used

against him at sentencing. Petitioner claims this was

error for several reasons. First, he contends that the

Montana Supreme Court utilized the wrong standard

when it stated that, “As the defendant, Hagen carries

the burden of showing that but for appellate counsel’s

performance, the result of the proceeding would have

been different.” Hagen ILI, 53 P.3d at 894. Strickland

only requires that a defendant demonstrate a

“reasonable probability” that the outcome would have

been different had counsel been effective.

Secondly, Petitioner contends that Montana

court erred in its final conclusicn that “Hagen has not

identified what information in the doctor’s evaluations

was damaging to his defense.” Hagen III, 53 P.3d

at $94. Petitioner counters that the results of the

psychiatric examinations are of record and that the

105a

trial court specifically stated that he had considered

those reports in imposing the sentence. Petitioner

argues that the contents ofthe reports provided “highly

damaging information about Hagen to the prosecution

and the court.” Specifically, Petitioner points to the

reports of persistent alcohol abuse, undocumented

violent altercations involving Hagen, reports of being

untrustworthy, resistant to prescriptive medication

for his diagnosed manic-depressive disorder and his

tendency to behave in highly threatening and violent

ways, including discharging firearms, when he was

intoxicated.

Respondent argues that the claim is conclusory

and does not state a valid constitutional claim. (Dkt. #

8, p. 48).

Although the Montana Supreme Court cited

the incorrect standard in its discussion of this issue, it

set forth the correct standard in two previous sections

in its opinion. First, it initially discussed Strickland

with regard to the effectiveness of trial counsel and

cited the appropriate standard being whether “there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Hagen III, 53 P.3d at 890,

{ 18 (citing Strickland, 466 U.S. at 694). Secondly,

the Montana Supreme Court again stated the proper

standard when discussing the standard to analyze

claims of ineffective assistance of appellate counsel.

Hagen III, 53 P.3d at 893, 4 37.

In Woodford v. Visciotti, 537 U.S. 19 (2002),

the United States Supreme Court reversed the Ninth

106a

Circuit for overturning the California Supreme Court

for using the term “probable” without the modifier

“reasonably” in four places in its opinion despite the

fact that it had correctly set forth the Strickland

criterion in several other places in its opinion. The

Supreme Court held that the California Supreme

Court’s

occasional shorthand reference to that standard

by use of the term “probable” without the

modifier may perhaps be imprecise, but if so it

can no more be considered a repudiation of the

standard than can this Court’s own occasional

indulgence in the same imprecision.

Id. at 24-25.

This Court finds that the Montana Supreme

Court’s shorthand citation to Strickland, although

imprecise, is not sufficient justification to overcome

§2254(d)’s “highly deferential standard for evaluating

state-court rulings.” Woodford, 537 U.S. at 24 (citing

Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997)).

The trial court found that the availability

of the pre-trial psychological examinations to the

prosecution and the Court was deficient performance

but that “no prejudice resulted in the defense.” The

Montana Supreme Court similarly found that they

could not conclude that the information in the doctors’

evaluations was damaging to his defense or that his

sentence was somehow lengthened based solely on the

doctors’ evaluation.

107a

eae

This Court does not find that this decision was

contrary to federal law, involved an unreasonable

application of federal law, or an _ unreasonable

determination of the facts in light of the evidence

presented.

VII. CERTIFICATE OF APPEALABILITY

Petitioner cannot appeal the dismissal of a

federal habeas petition unless the Court’ issues a

certificate of appealability (COA) as required by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). 28 U.S.C. § 2253. The COA requirements

would apply in this case if Petitioner sought to appeal

the denial of his habeas corpus petition since any such

appeal would occur after the April 24, 1996 effective

date of the AEDPA. Slack v. McDaniel, 529 U.S. 473,

478 (2000); Lambright v. Stewart, 220 F.3d 1022, 1024

(9th Cir. 2000).

Pursuant to 28 U.S.C. § 2253(c), as amended by

the AEDPA, “[a] certificate of appealability may issue .

.. only ifthe applicant has made a substantial showing

of the denial of a constitutional right.” See Hohn v.

United States, 524 U.S. 236, 240 (1998); Lambright,

220 F.3d at 1024. The “substantial showing” standard

can be satisfied on an issue-by-issue basis. Lambright,

220 F.3d at 1024 (citing 28 U.S.C. § 2253(c)(3)).

The United States Supreme Court has defined

the standard of issuance for a COA as follows:

'The district court judge may issue the certificate. U.S.

v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997).

108a

To obtain a COA under §§ 2253(c), a habeas

prisoner must make a substantial showing of the

denial of a constitutional right, a demonstration

that, under Barefoot, includes showing that

reasonable jurists could debate whether (or,

for that matter agree that) the petition should

have been resolved in a different manner or that

the issues presented were ‘adequate to deserve

encouragement to proceed further.’

Slack, 529 U.S. at 483-484 (citing Barefoot v. Estelle,

463 U.S. 880, 893 (1983)).

“The court must resolve doubts about the

propriety of a COA in the petitioner’s favor.” Jennings

v. Woodford, 290 F.3d 1006 (9th Cir. 2002) (citing

Lambright, 220 F.3d at 1025 (9th Cir. 2000)). In

addition, Petitioner is not required to establish that

he will prevail on the merits. Lambright, 220 F.3d at

1025 (citing Barefoot, 463 U.S. at 893 n.4). Rather,

the COA requirement seeks only to prevent frivolous

appeals from wasting judicial resources, while still

affording petitioners an opportunity to show potential

for merit. Lambright, 220 F.3d at 1025.

The COA must indicate which issues satisfy the

required showing. 28 U.S.C. § 2253(c)(3). Additionally,

the district judge must “state why a certificate should

not issue.” Fed. R. App. P. 22(b)(1).

The Court concedes that this is a difficult case

as to many of the issues raised by Petitioner and that

reasonable jurists could debate whether the petition

should have been resolved in a different manner with

109a

regard to at least the following issues:

1. Claim 2--Whether the district court’s findings

and conclusions were inconsistent?

2. Claims 3Ai (petition) and C4 (brief): Failure

to present evidence about Jim Enger

3. Claims 3Aii, 3Aiv, 3Bregarding the Testimony

of Reece Cobeen

4. Claim 31: Instruction on Negligent

Homicide

5. Claim 3D: Spousal privilege

6. Claim 3K: Mental Health Exam

VIII. CONCLUSION

In sum, the Court finds that the Montana

Supreme Court decision was contrary to and/or

involved an unreasonable application of clearly

established federal law as determined by the

Supreme Court of the United States or was based

on an unreasonable determination of the facts in

light of the evidence presented in the state court

proceeding. (See claims 2 (inconsistent findings and

conclusions); 3Ai (Enger’s credibility); 3Aii, 3Aiv, 3B

and 4iii (Cobeen’s credibility); 41 (spousal privilege);

and 4vi (admission of mental health evaluations).

These errors are of sufficient consequence to have

undermined the confidence in the jury’s verdict in

Petitioner's conviction for aggravated assault but not

in his conviction for deliberate homicide.

Based on the foregoing, the Court enters the

following:

10a

RECOMMENDATION

1. The petition for writ of habeas corpus

should be GRANTED as to Petitioner’s conviction for

aggravated assault. Respondent should be directed to

return Mr. Hagen to the custody of the state district

court for retrial on the aggravated assault charge or

other proceedings consistent with the Court’s Order.

2. The petition for writ of habeas corpus should

be DENIED as to Petitioner’s conviction for deliberate

homicide.

3. That the Court grant a Certificate of

Appealability at least as to following six issues:

a. Claim 2--Whether the district court’s

findings and conclusions were inconsistent?

b. Claims 3Ai (petition) and C4 (brief):

Failure to present evidence about Jim Enger

c. Claims 3Aii, 3Aiv, 3B regarding the

Testimony of Reece Cobeen

d. Claim 3I: Instruction on Negligent

Homicide

e. Claim 3D: Spousal privilege

f. Claim 3K: Mental Health Exam

NOTICE OF RIGHT TO OBJECT TO FINDINGS

& RECOMMENDATION AND CONSEQUENCES

OF FAILURE TO OBJECT

The Clerk of Court shall serve a copy of these

Findings and Recommendation on the parties. The

parties are advised that, pursuant to 28 U.S.C. § 636(b)

(1), they have the right to file written objections to this

Illa

Findings and Recommendation. Any objections to the

Findings and Recommendation must be filed with

the Clerk of Court within ten (10) days after receipt

hereof, or objection is waived.

DATED this 1* day of September, 2004.

Leif B. Erickson

United States Magistrate Judge

112a

APPENDIX F

Honorable Leif B. Erickson

Federal Magistrate Judge

Missoula Division

Russell E. Smith Courthouse

201 East Broadway, Room 370

Missoula, MT 59802

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

BRUCE HOLTE HAGEN, Cause No. CV 02-147-M-LBE

Petitioner,

vs. ORDER

JAMES MACDONALD,

Warden, Crossroads

Correctional Center,

MIKE MCGRATH,

Montana Attorney

General,

Respondents.

On September 1, 2004, the undersigned issued a

Findings and Recommendation granting in part

and denying in part Mr. Hagen’s Petition for Writ of

Habeas Corpus. While the findings of the Court remain

the same, the Recommendation was improvidently

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issued as the undersigned has the consent of the

parties. Accordingly, it is hereby ORDERED that

the Recommendation issued September 1, 2001

is withdrawn and in its place and stead I issue the

following Order:

1. Bruce Hagen’s petition for writ of habeas

corpusisGRANTEDas to his conviction for aggravated

assault. Respondent is directed to return Mr. Hagen

to the custody of the state district court for retrial on

the aggravated assault charge or other proceedings

consistent with the Court’s Order.

2. Bruce Hagen’s petition for writ of habeas

corpus is DENIED as to his conviction for deliberate

homicide.

3. Mr. Hagen is granted a Certificate of

Appealability with regard to the following six issues:

a. Claim 2--Whether the district court’s

findings and conclusions were inconsistent?

b. Claims 3Ai (petition) and C4 (brief):

Failure to present evidence about Jim Enger

c. Claims 3Aii, 3Aiv, 3B regarding the

Testimony of Reece Cobeen

d. Claim 31: Instruction on Negligent

Homicide

e. Claim 3D: Spousal privilege

f. Claim 3K: Mental Health Exam

Should either party want a Certificate of

Appealatrility on any other issue they should file a

motion requesting such.

4. The Clerk is directed to enter judgment as

set forth above.

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DATED this 7" day of September, 2004.

Leif B. Erickson

United States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.