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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

APPENDIX A

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRUCE HOLTE HAGEN,

Petitioner - Appellant/
Cross-Appellee,

V.

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.

la

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).

A.

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

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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

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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

B.

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

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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.

C.
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

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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.”

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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).

D.

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.

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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

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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.

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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,

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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.

1.

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

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as a witness.

7.

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.

9.

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

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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,

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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.

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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

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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

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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

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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

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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

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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?

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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.

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{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
y
*e
4

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?

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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,

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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

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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

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{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.

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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]

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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

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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

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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

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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.

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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,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1031%3A2. Public record. Not legal advice.