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Wacht v. Braun

United States District Court, D. North Dakota

March 25, 2016

Daniel Evan Wacht, Petitioner,
Colby Braun, Warden, NDSP, Respondent.


CHARLES S. MILLER, Jr., Magistrate Judge.

Before the court is a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner, Daniel Evan Wacht ("Wacht") and respondent's Motion to Dismiss. For the reasons set forth below, the undersigned recommends that Wacht's petition be denied and respondent's motion be granted.[1]


A. Trial

On January 7, 2011 a Criminal Complaint was filed in the district court for Griggs County, North Dakota, charging Wacht with Murder, a class AA felony. (Ex. 2). A Criminal Information was subsequently filed on May 27, 2011. (Ex. 1). An Amended Criminal Information was filed on January 30, 2012. (Ex. 7). A Second Amended Criminal Information was filed on February 3, 2012.

On November 30, 2011, Wacht filed a motion and brief to suppress evidence obtained pursuant to the search warrants dated January 5, 2011. (Ex. 6). A hearing on Wacht's motion to suppress was held on January 19, 2012. (Ex. 10). On January 24, 2012, the district court filed a memorandum and order denying Wacht's motion to suppress. (Ex. 11).

On April 24, 2012, the jury found Wacht guilty of Murder. (Ex. 19). Wacht was sentenced to life without parole on August 1, 2012. (Ex. 20).

B. Direct appeal

Wacht appealed his conviction to the North Dakota Supreme Court on August 13, 2012. (Ex. 21). Wacht raised several issues on appeal, some of which were presented by appellate counsel and some of which Wacht raised in a pro se supplemental brief. (Exs. 23 and 24). Wacht argued: (1) the trial court erred in denying Wacht's motion to suppress evidence obtained from the illegal searches of Wacht's van and residence; (2) the trial court erred in denying Wacht's motion to exclude evidence under Rule 404(b) of the North Dakota Rules of Evidence; (3) there was insufficient evidence on which to find Wacht guilty beyond a reasonable doubt; (4) evidence was admitted in violation of Rule 16(c) N.D.R.Crim.P. and/or without foundation; and (5) Wacht's constitutional right to a fair and impartial jury was violated. (Id.). On July 18, 2013, the North Dakota Supreme Court rejected Wacht's claims and affirmed his conviction. State v. Wacht, 2013 ND 126, 833 N.W.2d 455 ("Wacht I").

C. State postconviction proceedings

Wacht next filed an application for postconviction relief with the district court on January 15, 2014, claiming that (1) newly discovered evidence showed a State's witness fabricated his trial testimony, and (2) his counsel was ineffective. (Ex. 27). The State filed an answer to Wacht's application for postconviction relief and also moved for summary disposition. (Exs. 28 and 33). On October 1, 2014, the district court summarily dismissed Wacht's application for postconviction relief. (Ex. 37).

Wacht appealed the order dismissing his postconviction application. (Ex. 38). On June 11, 2015, the North Dakota Supreme Court affirmed the district court's dismissal of the postconviction application. Wacht v. State, 2015 ND 154, 864 N.W.2d 740 ("Wacht II").

D. Federal habeas petition

After exhausting his state-court remedies, Wacht filed his § 2254 petition with this court. Wacht's petition raises five different grounds for relief. In his first and second grounds for relief, he alleges that his Fourth Amendment rights were violated because there were illegal searches of his vehicle and residence and surrounding property. (Doc. No. 1 at 5-6). In his third ground for relief, he alleges that his Sixth Amendment right to a fair and impartial jury was violated. (Doc. No. 1 at 8). In his fourth ground for relief, he alleges that evidence was presented in violation of state and federal criminal procedure rules and in violation of his right to due process. (Doc. No. 1 at 9). In his fifth and final ground for relief, he alleges that his trial attorney was ineffective for multiple reasons. (Doc. No. 1 at 11).

E. Evidence supporting Wacht's conviction

The following factual summary, taken verbatim from the decision of the North Dakota Supreme Court on direct appeal, is set forth below:

[¶ 2] Kurt Douglas Johnson was reported missing to Griggs County Sheriff Robert Hook on January 4, 2011 by his cousin, Murray Stokka. After determining that Johnson was last seen on December 31, 2010 with Daniel Evan Wacht, Sheriff Hook obtained a search warrant to search Wacht's van on January 5, 2011 at 12:25 a.m. The evidence presented to the district judge to obtain the search warrant was contained in affidavits from Sheriff Hook and Bureau of Criminal Investigation Agent Arnie Rummel.
[¶ 3] Sheriff Hook's affidavit set forth the events leading up to the night Johnson was reported missing. Murray Stokka, Johnson's cousin, contacted Hook to report that Johnson was missing. The last time anyone had seen Johnson was at the Oasis bar in Cooperstown on December 31, 2010. Johnson appeared to be drunk and was causing a disturbance at the bar. The bartender threatened to call the sheriff. Wacht was also at the Oasis, and offered to give Johnson a ride home. Tim Vincent, later identified as a patron of the Oasis bar on December 31, 2010, told the sheriff that he helped Wacht get Johnson out of the bar, and Wacht proceeded to throw Johnson into the van. Johnson was never seen again. Johnson's family thoroughly searched his house for him, including inside the cupboards, but did not find him. Sheriff Hook also searched Johnson's house and did not find him. The person who does Johnson's snow removal said there were no footprints in the snow when he came to shovel on January 1, 2011. Wacht is employed by Sheyenne Tooling in Cooperstown, and Tim James, his supervisor, stated Wacht had not reported for work since December 23, 2010 because his mother had died in California. An informant said Wacht told the informant he was shopping in Fargo. Sheriff Hook called Wacht's cell phone and it sounded like Wacht was driving. Wacht stated that he dropped Johnson off at the Fish Bowl bar in Cooperstown at 11:30 p.m. on December 31, 2010, and "[n]o one saw me do it." Ron Berge Jr. stated that Wacht told him Wacht took Johnson to Wacht's own home and was there for some time while Johnson was passed out in Wacht's van, then dropped Johnson off at the Fish Bowl bar. No one saw Johnson at the Fish Bowl bar that night. Sheriff Hook spoke with his deputies and they stated they received a call requesting assistance because Wacht was stuck in a ditch. Wacht reported he had been at his buddy's place, gesturing toward the Richard Sutcliffe farm. Wacht adamantly refused to allow the deputies anywhere near his van, which was the same van where Johnson was last seen. The deputies gave Wacht a ride home.
[¶ 4] Agent Rummel's affidavit recited Wacht's criminal background since 2001, including charges of grand theft auto, burglary, force with a dangerous weapon, use of a firearm or animal during a theft, taking a vehicle without owner's consent, possession and transport of a controlled substance, parole and probation violations, felon in possession of a firearm, willful discharge of a firearm with gross negligence, and manufacture or possession of a dangerous weapon. Agent Rummel also stated Wacht had an outstanding warrant in California for [a] probation violation, and that he believed Wacht has violent tendencies.
[¶ 5] After staking out Wacht's home and work, law enforcement arrested Wacht pursuant to the California warrant outside Sheyenne Tooling on the morning of January 5, 2011. When Wacht was arrested, he was in possession of a stolen Glock 9mm handgun. Wacht was interviewed by Agent Rummel, and he admitted Johnson was in his van on New Year's Eve. Wacht also stated that he believed he had a Second Amendment right to possess firearms regardless of his probation conditions. The police towed Wacht's van to a local body shop and sealed it to preserve the evidence. When they searched the van, they found an envelope containing five spent rifle shells and ammunition for a rifle. Agent Rummel then applied for a search warrant to search Wacht's home for firearms, weapons, and ammunition. His affidavit stated they found ammunition for a rifle in Wacht's van, that Wacht had told officers he believed he had a constitutional right to possess firearms despite his criminal convictions and probation conditions, and that an informant told Rummel about an incident in which Wacht had shot through a coffee table inside Wacht's house. The affidavit also stated that Wacht was under surveillance from the time he left his home to the time he arrived at work, and that Wacht admitted that he brought a gun to work on a regular basis. The search warrant was granted.
[¶ 6] Law enforcement searched Wacht's house, discovering more firearms and ammunition. They also found a blood stained couch cushion in a garbage bag in Wacht's laundry room. Law enforcement applied for and obtained another warrant to search the house for evidence of Johnson. That search uncovered Johnson's decapitated head buried in the crawl space under Wacht's house, as well as a bullet casing, bloody pillow, and several items with Johnson's DNA on them. Wacht was charged with the murder of Kurt Johnson.

Wacht I, 2013 ND 126, ¶¶ 2-6.


A. Scope of review

Under 28 U.S.C. § 2254, a federal court may review state-court criminal proceedings to determine whether a person is being held in custody in violation of the United States Constitution or other federal law. However, where the state court has adjudicated the federal claim on the merits, this court's review is limited by 28 U.S.C. § 2254(d) to a determination of whether the state court's decision is (1) directly contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) based on an unreasonable determination of the facts based on the evidence presented in the state-court proceeding. See 28 U.S.C. § 2254(d); see generally Harrington v. Richter, 562 U.S. 86, 97-100 (2011) ("Richter"); Williams v. Taylor, 529 U.S. 362, 399-413 (2000).

This highly deferential standard of review is often referred to as "AEDPA deference" because it was enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). E.g., Pederson v. Fabian, 491 F.3d 816, 824-25 (8th Cir. 2007); see generally Renico v. Lett, 559 U.S. 766 & 773 & n.1 (2010). The reasons for the limited review are ones of federalism and comity that arise as a consequence of the state courts having primary responsibility for ensuring compliance with federal law in state criminal proceedings. See, e.g., Richter, 562 U.S. at 103.

B. The exhaustion requirements

The exhaustion doctrine codified at 28 U.S.C. § 2254(b)-(c) precludes granting habeas relief for claims that have not been properly exhausted in the state courts. E.g., Rhines v. Weber, 544 U.S. 269, 274 (2005); Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). Proper exhaustion has two components. First, the claim must be "fairly presented, " which requires that the petitioner present both the factual and legal premises for the claim, with the latter being satisfied if there is a reference to the particular federal constitutional right or a citation to a state or federal case that raises the constitutional issue. Dansby v. Norris, 682 F.3d 711, 722-23 (8th Cir. 2012), vacated on other grounds, Dansby v. Hobbs, No. 12-8582, 2013 WL 506561 (U.S. June 3, 2013); Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007). Second, the petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addition, there are three other aspects of the exhaustion doctrine that are important. The first is that the exhaustion doctrine is satisfied if there are no state-court remedies available and exhaustion would be futile, such as when the claim has been procedurally defaulted at the state-court level. E.g., Armstrong v. Iowa, 418 F.3d 924, 926-27 (8th Cir. 2005). The second is that Rose v. Lundy, 455 U.S. 509 (1982), prohibits a petitioner from proceeding with a "mixed petition" of exhausted and unexhausted claims. See also Rhines v. Weber, 544 U.S. at 273-74. The third is that § 2254(b)(2) authorizes the court to deny a claim on the merits notwithstanding a failure to exhaust. E.g., Gringas v. Weber, 543 F.3d 1001, 1003 (8th Cir. 2008).

C. Procedural default

A federal district court is precluded from substantively considering a habeas claim that has been procedurally defaulted at the state level on independent and adequate state grounds. E.g., Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). State procedural grounds are independent and adequate if they are firmly established, readily ascertainable, and regularly followed. Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008); Franklin v. Luebbers, 494 F.3d 744, 750 (8th Cir. 2007). They must also further a legitimate state interest and not be applied in an exorbitant manner. Barnett, 541 F.3d at 808.

The rule barring procedurally-defaulted claims is nearly absolute. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007). The only exceptions are the rare instances when a prisoner is able to meet the strict cause and prejudice or actual innocence standards. E.g., Dretke v. Haley, 541 U.S. 386, 392-93 (2004); Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012).

D. State defenses of res judicata and misuse of process

Under N.D.C.C. § 29-32.1-12, res judicata and misuse of process are affirmative defenses in state proceedings for postconviction relief. Res judicata is defined in subsection (1) to be a claim that was fully and finally determined in a prior proceeding. Misuse of process is defined in subsection (2)(a) to include any "claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to a judgment of conviction and sentence or in a previous postconviction proceeding[.]" These defenses are regularly enforced by the North Dakota courts. E.g., Tweed v. State, 2011 ND 228, ¶ 12, 807 N.W.2d 599; Steen v. State, 2007 ND 123, ¶¶ 13-17, 736 N.W.2d 457; Laib v. State, 2005 ND 187, ¶¶ 6-7, 705 N.W.2d 845.


A. Grounds one and two: illegal searches and seizures

In his first and second grounds for relief, Wacht claims that his Fourth Amendment rights were violated because the search warrant issued for his vehicle and the search warrant issued for his residence were not supported by probable cause. (Doc. No. 1 at 5-6).

The State objects to the consideration of these claims, arguing it is barred under the doctrine established by Stone v. Powell, which held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. 465, 494 (1976) (footnote omitted).

The State's objection is well-taken. Under the Court's holding in Stone, a state court's disposition of a Fourth Amendment claim is barred from federal habeas review unless: (1) "the state provided no procedure by which the prisoner could raise his Fourth Amendment claim;" or (2) "the prisoner was foreclosed from using that procedure because of an unconscionable breakdown in the system." Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994). "[A] mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process.'" Chavez v. Weber, 497 F.3d 796, 802 (8th Cir. 2007) (quoting Capellan v. Riley, 975 F.2d 67, 71 (2nd Cir. 1992)).

On November 30, 2011 Wacht filed a motion to suppress the evidence seized pursuant to the search warrants issued for his vehicle and residence. (Ex. 6). A hearing on the motion to suppress was held on January 19, 2012. (Ex. 10). Subsequently, the trial court filed a memorandum and order denying Wacht's motion to suppress, finding that there was probable cause to support the search warrants for Wacht's van and residence. (Ex. 11). Wacht then appealed the trial court's decision to the North Dakota Supreme Court, which concluded that the trial court did not error by * refusing to suppress evidence found in Wacht's van and residence. Wacht I, ND 126, ¶¶ 10-21.

Wacht does not allege nor does the record reflect that he was precluded from using the state's corrective process or that there was a breakdown in the process. The court held a full hearing on Wacht's motion to suppress where his attorney extensively cross-examined the State's witnesses. (Ex. 10). Wacht's argument is simply that he disagrees with the trial court's decision not to suppress the evidence. The record is clear that the State provided Wacht opportunity for full and fair litigation of his Fourth Amendment claims. Consequently, they must be denied.

B. Ground three: denial of the right to a fair trial and impartial jury

The third allegation in Wacht's habeas petition is that his right to a fair and impartial jury trial was violated because the trial judge did not remove for cause several potential jurors whose personal circumstances/relationships would lead a reasonable person to believe that a significant risk of bias was possible, including one juror who was a distant collateral relative of the victim. (Doc. No. 1 at 8).

Wacht's appeal counsel did not present this issue to the North Dakota Supreme Court in the appellant's brief on direct appeal. However, Wacht raised the issue himself in his supplemental pro se brief. (Ex. 24). Wacht argued that fifteen potential jurors were not excused for cause who "clearly stated their prejudice towards him." (Id. at 10). Of these fifteen potential jurors, only five of them were seated on the jury and one was seated as an alternate. (Ex. 43 at 364).[2] And, of these five, Wacht's trial counsel challenged only Juror W*** for cause, which challenge was denied.

The Sixth Amendment guarantees all those accused of a crime the right to be tried by an impartial jury. "This constitutional guarantee has not been granted if any member of the jury was biased.'" U.S. v. Johnson, 688 F.3d 494, 500 (8th Cir. 2012) (quoting Johnson v. Armontrout, 961 F.2d 748, 751 (8th Cir. 1992)). "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." (Id. at 752). "For habeas corpus purposes, such bias may be found either by an express admission, or by proof of specific facts which show such a close connection to the facts at trial that bias is presumed.'" Fuller v. Bowersox, 202 F.3d 1053, 1056 (8th Cir. 2000) (quoting Burton v. Johnson, 948 F.2d 1150, 1158 n. 10 (10th Cir. 1991). Whether a juror is biased against the defendant is a question of fact, and [a habeas court] will defer to the state court's finding "if it is fairly supported by the record." Williams v. Norris, 612 F.3d 941, 954 (8th Cir. 2010); Green v. Norris, 394 F.3d 1027, 1029 (8th Cir. 2005); Mack v. Caspari, 92 F.3d 637, 642 (8th Cir. 1996). A demonstration of actual bias requires an impermissible affirmative statement; an "equivocal" statement is insufficient. Norris, 612 F.3d at 954-955; Mack, 92 F.3d at 642.

With respect to Juror W*** the North Dakota Supreme Court concluded that:

Of the five members of the jury Wacht challenges on appeal, he challenged one for cause at trial. That juror was challenged for cause at trial because one of his siblings was murdered. He was also distantly related to Johnson through marriage, but did not know Johnson personally. The juror's answers to questions did not indicate he held any actual or implied bias against Wacht. Furthermore, "[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." State v. Olson, 290 N.W.2d 664, 667 (N.D. 1980) (quoting Irvin ...

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