United States District Court, D. North Dakota
REPORT AND RECOMMENDATION
ALICE R. SENECHAL, Magistrate Judge.
Shane Phillip Peterka (Peterka) petitioned for habeas relief under 28 U.S.C. § 2254. (Doc. #1). After preliminary review, the court ordered service on the respondent. (Doc. #3). The respondent has moved to dismiss the habeas petition, (Doc. #7), and the parties have fully briefed that motion.
Summary of Recommendation
The primary premise of Peterka's petition is that he should have been charged with only two counts, rather than 119 counts, of possession of child pornography. Based on that premise, he alleges ineffective assistance of counsel, violation of the Due Process Clause, and violation of the Double Jeopardy Clause. Peterka also alleges ineffective assistance of counsel on grounds independent of that premise.
More specifically, Peterka alleges that he was subjected to double jeopardy because he was prosecuted for and convicted of 119 counts of possession of videos depicting minors engaged in sexual conduct. Peterka's double jeopardy claim is without merit because, under the state statute, an individual can be separately charged with and convicted of possession of each individual image rather than of each device containing multiple images. Peterka's due process claim and most of his ineffective assistance of counsel claims relate to his double jeopardy claim. Since his double jeopardy claim is without merit, the prosecutor did not violate Peterka's due process rights by charging him with 119 counts of possession of prohibited images, and his trial counsel was not ineffective in failing to discuss, research, or raise a double jeopardy issue. Additionally, Peterka failed to establish that his counsel was ineffective by failing to request a change of venue or a change of judge. Peterka is not entitled to habeas relief on any of these claims, since the North Dakota Supreme Court's decision was neither contrary to clearly established federal law nor an unreasonable application of federal law. Nor was the decision an unreasonable determination of the facts in light of the evidence presented to the state court.
The North Dakota Supreme Court determined that the state statute under which Peterka was convicted is unambiguous and that the legislative intent is clear with regard to that statute; therefore, contrary to Peterka's assertion, the North Dakota Supreme Court was not required to apply the rule of lenity in construing the state statute. This court is bound by the state court's determination of state law, so Peterka is not entitled to habeas relief on his statutory construction claim.
Peterka asserted one of his ineffective assistance of counsel claims-that his counsel failed to determine whether there was prosecutorial misconduct-only in response to the motion to dismiss, and not in his habeas petition. Since Peterka failed to comply with Rule 2 of the Federal Rules Governing Section 2254 Cases, that claim should not be considered. Alternatively, because he did not fairly present that claim to the state courts, it is procedurally defaulted and is barred from federal review. Peterka is therefore not entitled to habeas relief on that ineffective assistance of counsel claim.
Finally, Peterka is not entitled to habeas relief on his claim that the state district court should have held an evidentiary hearing on his post-conviction relief application, or on any claim alleging ineffective assistance of post-conviction counsel, since neither of those claims is cognizable in a federal habeas petition. Since he has not demonstrated entitlement to relief on any of his claims, the respondent's motion to dismiss should be granted and Peterka's habeas petition should be dismissed with prejudice.
A March 7, 2012 Information charged Peterka with fifteen counts of unlawful possession of images depicting sexual conduct by a minor, pursuant to North Dakota Century Code section 12.1-27.2-04.1, which provides, "A person is guilty of a class C felony if, knowing of its character and content, that person knowingly possesses any motion picture, photograph, or other visual representation that includes sexual conduct by a minor." (Resp. Ex. #2). An April 5, 2012 Amended Information charged him with 119 counts under that same statute. (Resp. Ex. #3). Specifically, Peterka was alleged to have possessed 119 videos showing minor children engaged in sexual conduct. Id . Each of the children depicted in the videos had been identified by the National Center for Missing and Exploited Children as a victim of sexual exploitation. Id.
On October 9, 2012, the parties filed a plea agreement with the court, under which Peterka would have been sentenced to a seven year prison term. (Resp. Ex. #4). The court rejected the plea agreement. (Resp. Ex. #1, p. 44, Doc. ID# 16).
On October 24, 2012, Peterka entered an open plea of guilty to all 119 counts. (Resp. Exs. #5-9). The court ordered imprisonment for a total term of fourteen years, followed by 55 years of supervised probation. The sentence also required that Peterka register as a sex offender for the duration of his life. Id . Judgment was entered on January 8, 2013. Id . Peterka did not appeal from the convictions.
On approximately April 29, 2013, Peterka submitted, for filing, a motion for reduction of sentence pursuant to North Dakota Rule of Criminal Procedure 35. (Resp. Ex. #20). The Clerk rejected that motion for filing, because Peterka had not submitted a proposed order or proof of service. Id . Despite the Clerk's rejection, the state responded to the motion on May 10, 2013. (Resp. Ex. #1, p. 44, Doc. ID# 29). But, the district court did not rule on the motion.
On November 22, 2013, Peterka filed a post-conviction relief application, in which he alleged that the prosecutor violated his due process rights and that he had received ineffective assistance of counsel. (Resp. Ex. #18). The court appointed counsel to represent him, and Peterka then filed an amended application for post-conviction relief. (Resp. Ex. #20). The amended application included, in addition to those claims alleged in the original application, additional ineffective assistance of counsel claims, a claim that Peterka's probation sentences violated state law, a claim that he should not be required to register as a sex offender for life, and a claim that the court should have considered his Rule 35 motion. Id.
The state moved to dismiss the amended post-conviction relief application. (Resp. Ex. #21). After Peterka responded to that motion, (Resp. Ex. #24), the state district court notified the parties that it would consider the motion to dismiss as one for summary judgment, (Resp. Ex. #25). The parties were allowed to submit additional affidavits and references to the record in support of their respective positions. Id. at 2. Both parties submitted affidavits, (Resp. Exs. #26-28), and Peterka also submitted a supplemental brief, (Resp. Ex. #29). On November 13, 2014, the state district court granted summary judgment in part to the state and in part to Peterka. (Resp. Ex. #30). The state district court ruled in Peterka's favor on his claim that the consecutive probationary sentences violated state law, and on his claim that he should not have been required to register as a sex offender for life. Id.
On December 1, 2014, the court entered amended criminal judgments, reflecting that Peterka was no longer required to register as a sex offender for the duration of his life. (Resp. Exs. 11-15). Rather, he was required to register as a sex offender for not less than fifteen years and up to the duration of his life, subject to the level of risk assessed by the Attorney General's Office prior to Peterka's release from custody. Id . Additionally, the amended criminal judgments reflected that Peterka's probationary sentences would run concurrently. Id . In total, the December 1, 2014 amended criminal judgments required Peterka to serve fourteen years of imprisonment, followed by five years of supervised probation. Id.
Peterka appealed from the state district court's decision. (Resp. Ex. #33). The North Dakota Supreme Court affirmed in part and reversed in part. Peterka v. State, 2015 ND 156, 864 N.W.2d 746. The North Dakota Supreme Court concluded that the "district court erred by not granting postconviction relief for the sentencing court's failure to file Peterka's Rule 35 motion, " and that the "district court also erred in concluding the sentencing court could not timely consider Peterka's Rule 35 motion." Id. at 755-56. The state supreme court affirmed the district court's order in all other aspects. The case was reversed and remanded "for entry of an order requiring the sentencing court to proceed under N.D.R.Crim.P. 35." Id. at 756.
On July 30, 2015, the state district court entered an order allowing supplemental briefing on Peterka's Rule 35 motion. (Resp. Ex. #1, p. 45, Doc. ID# 38). The state district court denied that motion on September 15, 2015. State v. Peterka, Walsh County Case No. 50-2012-CR-00089, Doc. ID# 39.
Allegations of the Federal Habeas Petition
Peterka alleges that the prosecutor violated his due process rights "by employing improper methods calculated to produce a wrongful conviction." (Doc. #1, p. 7) (capitalization altered). In support of that allegation, Peterka contends that he "was improperly or illegally charged" with 119 counts of possession of images of sexual conduct by a minor, and that his multiple prosecutions and convictions violate double jeopardy principles. Id . Peterka further alleges that the state statute under which he was charged is ambiguous and that under the "rule of lenity" he should have been charged with only two counts, since he possessed only two devices containing the prohibited images. Id. at 7-8.
Peterka also raises several ineffective assistance of counsel claims. Specifically, he alleges that his trial counsel (1) failed to "challenge the charging documents" which subjected him to prosecution on 119 counts, (2) failed to research whether convictions on all 119 counts constituted double jeopardy, (3) failed to discuss the double jeopardy issue with him, (4) failed to file a motion for a change of venue, and (5) failed to "demand [a] change of judge." Id. at 5-6.
Peterka's final claim in his habeas petition is that the state district court should have conducted an evidentiary hearing on his post-conviction relief application, so that he could question his trial counsel on the record. Id. at 6.
In Peterka's response to the motion to dismiss, he asserts a sixth ineffective of counsel claim-that counsel failed to determine whether the prosecutor violated "Rule 3.8 of the North Dakota Rules of Professional Conduct" by charging him with "119 offenses when it [was] unclear whether North Dakota State Law supported multiple offenses of Possession of Certain Materials Prohibited." (Doc. #10, p. 15).
Law and Discussion
Under the Antiterrorism and Effective Death Penalty Act, a federal court cannot grant habeas relief on any claim adjudicated on the merits in state court proceedings, unless 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 ...