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Clark v. Bertsch

United States District Court, Eighth Circuit

September 27, 2013

Branden T. Clark, Petitioner,
v.
Leann K. Bertsch, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

RALPH R. ERICKSON, Chief District Judge.

The Court has received a Report and Recommendation from the Honorable Karen K. Klein, United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending that Respondent Leann K. Bertsch's motion to dismiss be granted; that Petitioner Branden T. Clark's (hereafter "Clark") amended petition for habeas relief be dismissed with prejudice; and that Clark's motion for an evidentiary hearing be denied (Doc. #43). Clark has filed objections to the Report and Recommendation, essentially asserting that the magistrate judge erred in her analysis of all issues. The Court, therefore, has conducted a de novo review of all issues raised by Clark, and reaches the same result as the magistrate judge.

I. Background

The State of North Dakota charged Clark with felony theft of property and issuing a check without an account. In 2009, he was sentenced to four years' incarceration for the felony theft and a concurrent thirty days for the misdemeanor bad check conviction. In 2011, this Court vacated these convictions on the ground that the Due Process Clause of the Fourteenth Amendment prohibits a court from imprisoning a person who has not entered a guilty plea or been convicted following a trial. The Court directed that Clark be released from custody upon completion of his other sentence, or be retried within 90 days of the date of the Court's order vacating the convictions.

The State retried Clark for theft of property. The jury found Clark guilty. The State requested a habitual offender sentence enhancement, which the judge applied when he sentenced Clark to eight years of incarceration. Clark appealed his conviction to the North Dakota Supreme Court. The Supreme Court affirmed the conviction and sentence, concluding (1) the trial court did not err in refusing to give Clark's proposed honest-belief-defense jury instruction; (2) the trial court did not err in instructing the jury on the elements of theft of property by mistake; (3) there was sufficient evidence to support the conviction; (4) the eight year sentence was not improper or excessive; and (5) there was no Brady v. Maryland , 373 U.S. 83 (1963) violation or error in admitting the original, unmarked copies of the sales invoices. State v. Clark , 818 N.W.2d 739, 742-46 (N.D. 2012). The Supreme Court also rejected Clark's supplemental issues that were not raised before the trial court, concluding the additional issues raised by Clark did not rise to the level of obvious error. Id. at 746-47.

Before the Court is Clark's amended petition for habeas corpus relief under 28 U.S.C. § 2254. Clark alleges ten grounds for relief: (1) the state violated Brady v. Maryland , 373 U.S. 83 (1963) when it disclosed redacted invoices instead of the original invoices introduced at trial; (2) the state violated his constitutional right to a speedy trial because of the amount of time that passed between Clark's original conviction in 2009 and the retrial in 2011; (3) the trial court improperly instructed the jury and failed to give Clark's proposed jury instruction, which violated his right to due process; (4) the state statute under which Clark was convicted is unconstitutional as applied to him; (5) an improper jury instruction forced Clark to give up his Fifth Amendment right to remain silent; (6) there was insufficient evidence to support the jury's verdict; (7) the prosecution and Clark stipulated to resolution of the case but the state district judge unilaterally, unfairly, and with bias required there be a trial; (8) the state prosecutor was vindictive in seeking an enhanced sentence under the habitual offender statute and the state district judge was vindictive in sentencing Clark to a harsher sentence; (9) Clark was denied access to the Court and access to legal materials while awaiting retrial; and (10) the state district judge violated the Eighth Amendment's prohibition against excessive bail (Docs. #18, 19).

II. Analysis

A. "Fairly Presented" Claims

"When a claim has been adjudicated on the merits in state court, habeas corpus relief is warranted only if the state court proceeding resulted in (1) a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the [United States] Supreme Court, or (2) a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Musser v. Mapes, 718 F.3d 996, 999 (8th Cir. 2013) (quotation and citation omitted).

1. Brady Claim

Clark has failed to articulate how the State's copies of the invoices are exculpatory or favorable to him. Moreover, the State's copies of the invoices were authenticated at trial and Clark had an opportunity to question the witnesses about the invoices and the handwritten notes. There is nothing in the record to suggest the North Dakota Supreme Court's decision was contrary to or an unreasonable application of federal law, or the decision was based on an unreasonable determination of the facts. Clark's alleged claim of a Brady violation lacks merit.

2. Sufficiency of the Evidence

Clark contends it was not his "intent to deprive ACME Tools of the generator." He asserts that the jury could convict him on evidence that someone else made a mistake by mistakenly ringing up the purchase under the wrong account. Upon review of the trial court transcript, there was no evidence that Clark attempted to pay for the generator or clear up a billing error. Acme was unable to contact Clark using the phone number on the check and two law enforcement officers tried unsuccessfully to contact Clark. A rational trier of fact could have found that after Clark purchased the tools through the Clark Construction account which he was not authorized to use, he knowingly charged the generator to the same account in an effort to avoid paying for the generator. In doing so, Clark took unauthorized ...


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