Shearer v. Kirkegard
1:16-cv-00004
D. Mont.Mar 28, 2016Background
- Petitioner Edwin A. Shearer, convicted by a jury in Montana of sexual intercourse without consent and sentenced to 40 years (20 suspended).
- Shearer appealed to the Montana Supreme Court raising a jury-instruction claim; the conviction was affirmed.
- Shearer filed a federal habeas petition under 28 U.S.C. § 2254 raising multiple new claims (warrantless searches, lack of grand jury/preliminary hearing, exclusionary evidentiary rulings under the rape-shield statute and Confrontation/Brady theories, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel).
- Shearer had not pursued postconviction relief in Montana state court and did not present Grounds 1–6 on direct appeal.
- The magistrate judge found all claims unexhausted or, where state remedies were no longer available, exhausted but procedurally defaulted; Shearer did not show cause and prejudice or actual innocence to excuse default.
- Recommendation: dismiss the § 2254 petition with prejudice as procedurally defaulted and deny a certificate of appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion / Procedural default | Shearer asserts merits of six grounds and requests federal review now | Respondents (and court) argue claims were not presented in state court and are unexhausted or procedurally defaulted | All claims are procedurally defaulted; dismissal with prejudice because Shearer failed to excuse default |
| Warrantless searches used at trial | Evidence from searches of home, property, person was unlawful and tainted conviction | State relies on trial record and procedural posture; court treats claim as unpresented to state courts | Claim dismissed as procedurally defaulted |
| Lack of grand jury / preliminary hearing — jurisdiction | Trial court lacked jurisdiction because Shearer was denied grand jury/prelim hearing | State maintains proper charging and trial procedures; issue not raised in state court | Claim dismissed as procedurally defaulted |
| Exclusion of evidence (rape-shield, counselor reports) & Confrontation/Brady | Exclusion prevented complete defense; violated Confrontation Clause and Brady; amounted to vindictive prosecution | State contends evidentiary rulings were proper and not reviewed in state courts | Claim dismissed as procedurally defaulted |
| Prosecutorial misconduct (comments before jury) | Prosecutor expressed personal opinions and acted vindictively, denying fair trial | State points to record and lack of state-court presentation | Claim dismissed as procedurally defaulted |
| Ineffective assistance of counsel (trial & appellate) | Counsel failed to identify/correct constitutional errors | State notes this was not raised on direct appeal; could be raised in state postconviction but was not | Claim unexhausted and, because not pursued in state court, petition dismissed; Shearer withdrew intent to pursue one such claim but failed to exhaust others |
Key Cases Cited
- Rose v. Lundy, 455 U.S. 509 (establishes federal habeas exhaustion requirement)
- Gray v. Netherland, 518 U.S. 152 (discusses exhaustion and procedural default)
- Smith v. Baldwin, 510 F.3d 1127 (9th Cir.) (procedural default principles)
- Boyd v. Thompson, 147 F.3d 1124 (9th Cir.) (procedural default/exhaustion analysis)
- Miller-El v. Cockrell, 537 U.S. 322 (COA standard for habeas claims)
- Slack v. McDaniel, 529 U.S. 473 (COA when claim is dismissed on procedural grounds)