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Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
LIONEL SCOTT ELLISON, CV 21–26–BLG–DLC
Petitioner,
vs. ORDER
JAMES SALMONSEN; STATE OF
MONTANA,
Respondents.
Before the Court is United States Magistrate Judge Timothy J. Cavan’s
Order and Findings and Recommendation (Doc. 35) and Petitioner Ellison’s
pending motions: Motion for Emergency Stay and Injunctive Relief (Doc. 36);
Motion for Cease-and-Desist Order (Doc. 42); Motion to Alter Judgment (Doc.
46); Motions to Stay (Doc. 47, 63); Motion to Dismiss the Underlying Indictment
(Doc. 57); and Motion to Compel (Doc. 62). For the reasons stated below, Judge
Cavan’s Findings and Recommendation will be adopted in full and Ellison’s
remaining motions will be denied. Because the factual background is detailed in
the Findings and Recommendation (Doc. 35 at 2–11), it will not be restated here.
Judge Cavan recommended that the Court deny and dismiss Ellison’s
Petition (Doc. 1) and deny Ellison’s Motions for Recusal as they relate to Judge
Christensen (Docs. 17, 30). (Doc. 35 at 1). Ellison timely filed objections to the
Findings and Recommendation. (Doc. 38.) Consequently, Ellison is entitled to de
novo review of those findings and recommendations to which he has specifically
objected. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Absent objection, this Court reviews findings and
recommendations for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is
left with a “definite and firm conviction that a mistake has been committed.”
United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
ANALYSIS
I. Petition for Writ of Habeas Corpus (28 U.S.C. § 2254)
The Court is required to screen all actions brought by prisoners who seek
relief. 28 U.S.C. § 1915(a). The Court must dismiss a habeas petition or portion
thereof if the prisoner raises claims that are legally frivolous or fails to state a basis
upon which relief may be granted. 28 U.S.C. §§ 1915A(b)(1), (2). Ellison’s
Petition before this Court includes a combination of claims already considered by
the state courts of Montana and new claims, or at least variations on those claims
already resolved in the state courts.
For those claims already “adjudicated on the merits” in state court, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “bars
relitigation . . . subject only to the exceptions listed in §§ 2254(d)(1) and (d)(2).”
Harrington v. Richter, 562 U.S. 86, 89 (2011). Accordingly, this Court cannot
grant habeas relief under AEDPA unless the state court’s analysis:
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 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)(1)–(2). “This is a difficult to meet and highly deferential
standard for evaluating state-court rulings, which demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (internal citation and quotations omitted); see also Mendez v. Small,
298 F.3d 1154, 1158 (9th Cir. 2002) (“To warrant habeas relief, the state court's
application of Supreme Court authority must be objectively unreasonable, not just
an incorrect application of federal law.”).
For those claims that have not been fairly presented to the highest state
court, the claim is said to be procedurally defaulted if the state court would now
refuse to consider it because of the state’s procedural rules. Gray v. Netherland,
518 U.S. 152, 161–62 (1996). Generally, federal courts will not hear such claims
unless the petitioner can demonstrate cause for his noncompliance and actual
prejudice or establish that a miscarriage of justice would result from the lack of
review. See Schlup v. Delo, 513 U.S. 298, 321 (1995); see also McKinney v. Ryan,
730 F.3d 903, 913 (9th Cir. 2013). However, the Court is empowered to bypass a
procedural default issue in the interest of judicial economy when the claim clearly
fails on the merits. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir.
2012); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2001) (“appeals
courts are empowered to, and in some cases should, reach the merits of habeas
petitions if they are, on their face and without regard to any facts that could be
developed below, clearly not meritorious despite an asserted procedural bar”);
Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (noting that, in the interest of
judicial economy, courts may proceed to the merits, in the face of procedural
default issues).
Federal courts look to the “last reasoned decision” from a lower state court
to determine the rationale for the state courts’ denial of a claim. Cannedy v.
Adams, 706 F.3d 1148, 1156 (9th Cir. 2013); see also Ylst v. Nunnemaker, 501
U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the
same claim rest upon the same ground."). Here, the Montana Supreme Court
reviewed the record and found no error with the state district court’s decision
denying the merits of Ellison’s petition. Ellison v. State, 477 P.3d 1123 (Mont.
2020). Accordingly, this Court must presume that the Montana Supreme Court
adopted the state district court’s reasoning.
In the Petition presently before the Court, Ellison presents the following
claims: (1) actual innocence, insufficient evidence, lack of probable cause; (2)
judicial bias; (3) forced mental incoherence at trial; (4) malicious prosecutorial
misconduct; (5) ineffective assistance of counsel; (6) perjury by public officials;
(7) collateral estoppel/double jeopardy; (8) violation of due process; and (9)
violation of equal protection. (Doc. 1.)
Claims 8 and 9 were never presented to the state courts. Additionally,
Ellison has changed the nature of the claims and/or added additional considerations
to portions of his judicial bias claim (Claim 2) and prosecutorial misconduct claim
(Claim 4) that were not presented to the state courts. Judge Cavan elected to
address the merits of Claims 8 and 9, as well as those portions of claims outlined
above that were not presented to the state courts. Accordingly, the Court will
address those claims in this Order as well.
a. Actual Innocence, Sufficiency of the Evidence, Lack of
Probable Cause (Claim 1)
In Claim 1, Ellison argues his actual innocence to the charges of tampering
with or fabricating evidence (Count II) and impersonating a public official (Count
IV). (Doc. 1 at 24–30.) Ellison’s claim of actual innocence rests entirely on his
arguments regarding insufficient evidence and lack of probable cause.
Accordingly, all three arguments are addressed together.
In his Petition for Writ of Habeas Corpus, Ellison argues that the DNA
evidence introduced against him at trial was “without legal merit” and “could not
be used as legal Probable Cause [sic].” (Doc. 1 at 22.) The DNA evidence Ellison
is referring to was found on ropes that had been used to tie the doors of Ellison’s
home shut during a staged crime scene on March 14, 2013. State v. Ellison, 428,
P.3d 826, 828–29 (Mont. 2018). The Montana State Crime Lab determined that
the DNA found on the ropes matched Ellison’s DNA. Id. Ellison argues that
“secondary DNA transfer” of his DNA from the doorknobs of his home onto the
ropes rendered the evidence “unreliable” and insufficient for probable cause,
making his conviction infirm. (Doc. 1 at 23–24.)
In his Petition for Post-Conviction Relief filed with the state district court,
Ellison raised this same argument. The district court dismissed Ellison’s claim,
holding both that Ellison’s claims were procedurally barred and that they lacked
merit. (Doc. 2-1 at 374.)
Judge Cavan found that there was no legal basis under AEDPA to disturb the
state court’s ruling on this claim because Ellison “failed to demonstrate that the
jury’s findings were unsupported or fell below the threshold of “bare rationality.”
(Doc. 35 at 28.) Ellison objects, stating that these findings “are not consistent
with the authoritative binding United States Supreme Court’s ‘Clearly Established’
Laws and Principles of Law [sic],” repeating the same arguments found in his
Petition. (Doc. 38 at 19.) Reviewing this claim de novo, the Court concludes that
Ellison has presented no legal basis under AEDPA to disturb the state court’s
ruling.
To support his argument, Ellison cites to DA’s Office v. Osborne, 557 U.S.
52 (2009); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); and Thompson
v. City of New York, 2 F. Supp. 3d 374 (E.D.N.Y. 2014), aff’d, 592 Fed. Appx. 36
(2d Cir. 2015) (unpublished). (Doc. 1 at 23, 27–28.) However, Ellison’s argument
does not find support in the cases cited or elsewhere in the law.
In Osborne, the Supreme Court discussed how “DNA testing has an
unparalleled ability both to exonerate the wrongly convicted and to identify the
guilty.” 557 U.S. at 52. The Court’s holding, however, pertained only to whether
a defendant has “a right to access state evidence for DNA testing that might prove
innocence.” Id. at 53. Nowhere in the Osborne opinion does the Court hold that
DNA evidence is now an insufficient basis for probable cause or de facto
unreliable evidence. In fact, the Court holds that a defendant “has no constitutional
right to obtain postconviction access to the State’s evidence for DNA testing,”
despite the fact that “modern DNA testing technology is so powerful that it
actually increases the risks associated with mishandling evidence.” Id. at 52, 82.
In Melendez-Diaz, the court addressed whether the Confrontation Clause
prohibits the admission of a forensic report prepared by an analyst who swore to
the truth of the reported test results before a notary public. 557 U.S. at 307–08.
Ellison’s case is distinguishable from Melendez-Diaz because the forensic analysts
from the Montana State Crime Lab testified at Ellison’s trial and were subject to
cross-examination.1
In Thompson, the court rejected the argument Ellison advances in his
petition as it relates to probable cause and DNA evidence. In that case, the court
ruled there was probable cause, based in part on DNA evidence, even where an
officer “had not ruled out innocent explanations [including secondary DNA
transfer] for why [the suspect’s] DNA was on the [evidence].” 2 F. Supp. 3d at
377.
As already identified by the state district court, Ellison has provided no
caselaw or other authority that supports his argument. The cases Ellison cites to in
his Petition do not add any credibility to his argument. Thus, Ellison has failed to
establish that the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Because Ellison also argues in his Petition that the evidence was insufficient
to convict him, the Court must also apply 28 U.S.C. § 2254(d)(2). This section
1 Lacey Van Grinsven is a serologist who collected DNA samples from: the knots of the ropes found at the crime
scene, the lighter, and the pocketknife for DNA analysis. (See Trial Tr. 397:16-417:16, Doc. 2-1 at 507–12.)
Jennifer Revis-Siegfried performed DNA analysis on the collected items. On one of the ropes, she identified the
major DNA profile as a mix of two contributors, with the major profile being that of an unknown male. (See Trial
Tr. 417:23–43:19, Id. at 512–18.) Megan Ashton is a forensic scientist who matched a buccal swab provided by
Lionel Ellison to the DNA profile that was obtained from the swabs taken from the rope knots. (See Trial Tr. 444:3–
71:16, Id. at 518–25.) Judith Hoffman analyzed items for possible ignitable liquid residue. (See Trial Tr. 472:5–
82:11, Id. at 525–28.)
applies “where the petitioner challenges the state court’s findings based entirely on
the state record,” including where “the finding is unsupported by sufficient
evidence . . . the process employed by the state court is defective . . . or [where] no
finding was made by the state court at all.” Taylor v. Maddox, 336 F.3d 992, 999
(9th Cir. 2004), overruled on other grounds by Murray v. Schiro, 745 F.3d 984,
999–1000 (9th Cir. 2014).
The question when reviewing the sufficiency of the evidence in a habeas
corpus proceeding is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012)
(per curiam) (“[T]he only question under Jackson is whether [the jury’s] finding
was so insupportable as to fall below the threshold of bare rationality.”).
Ellison states “[t]he State of Montana’s case relied exclusively on the
presumption that the DNA found on the rope, [sic] was evidence of a crime.”
(Doc. 1 at 26.) This is simply not true. Trial testimony revealed that on the
morning of March 14, 2013—the day of the staged crime scene—Ellison’s mother
had placed a 911 call reporting that the doors of the Ellison family home had been
tied shut from the outside and that the house was on fire. (Trial Tr. 146:4–11, Doc.
2-1 at 444.) When law enforcement and the fire department official arrived, they
found that the fire had already been extinguished and there were black marks on
the outside of the house that looked like a fire had burned. (Trial Tr. 148:6–8, id.)
Ellison told officers he had broken out glass in a door, cut a rope to open the door,
and used a fire extinguisher to put out the fire. (Trial Tr. 148:19–50:12, id. at 444–
45.)
Deputy Fire Marshall Schilling investigated the scene and testified that it
had been staged to look as though a Molotov-cocktail type bomb had started the
fire. Deputy Schilling reached this conclusion after discovering that someone had
embedded glass fragments in the window screen to create the appearance that a
Molotov-cocktail had exploded, yet only a small fire had been lit and caused no
actual damage to the house. (See Trial Tr. 280:1–81:20, id. at 477–78; Trial Tr.
310:13–23, id. at 485.)
Deputy Schilling also testified that one of the ropes tied to a doorknob had
slack in it and the door could still be opened. (Trial Tr. 296:8–20, id. at 481.)
Another rope was tied between a door and a wagon wheel, which if pulled hard
enough would have tipped over allowing the door to open. (Trial Tr. 297:13–
98:10, id. at 482.) Finally, another door was tied shut toward the hinges, allowing
the door to still be opened. (Trial Tr. 311:10–13:3, id. at 485–86.)
Additional evidence refuting Ellison’s version of events include the Ellisons’
apparent lack of concern over the incident when talking with officers (see, e.g.,
Trial Tr. 365:14–68:14, id. at 499), inconsistent statements about what transpired
after Ellison noticed the fire (see, e.g., Trial Tr. 222:2–8, 224:5–12, Id. at 463), and
the DNA evidence found on the ropes matching Ellison’s DNA. In summary,
Ellison has failed to demonstrate that the state court’s findings regarding the
sufficiency of the evidence and the existence of probable cause were not supported
by sufficient evidence in the court record.
Ellison advances other theories which have no basis in law or fact to support
his claim. The Court will briefly dispel of these arguments. First, Ellison argues
that his acquittal for arson must mean that the jury did not believe he set the fire.
(Doc. 1 at 64–65.) Ellison’s logic is not sound. Under Montana law, to be guilty
of arson, one must cause damage to the property of another exceeding $1,500.
Mont. Code Ann. § 45-6-103(1)(a) (2021). However, as already discussed, there
was no damage to the Ellison’s home caused by the staged fire. This is just one
possible explanation for why Ellison may have been acquitted of arson but not the
Tampering with Evidence and Impersonation charges.
Second, Ellison attempts to string together several disconnected events,
alleging a broad conspiracy against him initiated by Detective Fritz years before
the criminal case at issue. The Court fails to see how these baseless claims lend
any strength to Ellison’s argument that there was insufficient evidence and no
probable cause to charge him in the underlying criminal matter.
In conclusion, Ellison has failed to provide even a modicum of evidence
demonstrating that the jury’s findings were unsupported or fell below “bare
rationality.” Coleman, 566 U.S. at 656. Accordingly, there is no basis under
Jackson or AEDPA to disturb the state court’s ruling and Ellison’s first claim is
denied.
b. Judicial Bias (Claim 2)
In Claim 2, Ellison alleges judicial bias and misconduct extending from the
state district court to the Montana Supreme Court. (Doc. 1 at 31.) Ellison raises
these claims against Judge Jones, who presided over his trial and sentencing, and
Judge Wald, who presided over his post-conviction relief proceeding. (Id.)
Additionally, Ellison claims that the Montana Supreme Court violated his due
process rights by failing to adjudicate Claim 7 on appeal, and that the Justices of
the Montana Supreme Court are prejudiced against him. (Id.)
First, Ellison’s claims regarding Judge Jones stem from an alleged dispute
between Judge Jones and Ellison’s father, Claude Ellison, over construction work
performed by Claude’s company at the Special K Ranch. (Id. at 36.) The district
court determined that the alleged business dealing was an “invention” of Ellison’s,
not supported by the evidence, and in fact Ellison’s story had “shifted according to
what benefits him at the time.” (Doc. 2-1 at 375–76.)
The district court noted that Ellison had already raised this same issue in a
motion to disqualify Judge Jones for cause file prior to his resentencing hearing,
which was denied. (Doc. 2-1 at 376.) The Montana Supreme Court had also
addressed Ellison’s claims of bias, stating that “Ellison’s bias claims are based on
conjecture, and he has not provided evidence substantiating bias on the part of the
District Court.” (Id. (citing State v. Ellison, 455 P.3d 447, 447 (Mont. 2019).) The
district court noted that “nothing has changed since the Supreme Court made these
observations. Ellison has not provided any ‘documents and exhibits demonstrating
Judge Jones’ bias.’” (Id.) In fact, Judge Jones went on the record to correct
Ellison’s claims that there were any dealings between himself and Claude Ellison
or Special K Ranch. (Id.)
Ellison offered no new evidence in his Petition to support his claims against
Judge Jones. (Doc. 1 at 31–34.) Judge Cavan reviewed the district court’s
decision and found that “Ellison has presented no facts to support a claim of actual
bias” and “because Ellison offers only speculation for his claim of bias [against
Judge Jones], and an unreliable affidavit from Claude regarding a purported
business dealing that occurred years earlier, Ellison fails to demonstrate actual bias
or the appearance of impropriety.” (Doc. 35 at 32, 34.) Judge Cavan concluded
that this Court “must afford deference under AEDPA,” and “Ellison is not entitled
to relief. (Id. at 34.)
Ellison has not raised any new arguments relating to Judge Jones in his
objections. (Doc. 38 at 20.) Because the district court addressed Ellison’s judicial
bias claim as it pertains to Judge Jones, this court will review the district court’s
findings on that issue under the AEDPA standard.
A criminal defendant is guaranteed the right to a fair and impartial judge by
the Due Process Clause. See In re Murchison, 349 U.S. 133, 136 (1955). A
petitioner claiming judicial bias must overcome a “presumption of honesty and
integrity” on the part of the judge. Withrow v. Larkin, 421 U.S. 35, 47 (1975). In
the context of federal habeas review of whether a state court judge’s conduct was
proper, the question is whether the state judge’s conduct “rendered the trial so
fundamentally unfair as to violate federal due process under the United States
Constitution.” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995).
As already stated, Ellison provided no new evidence to support his claim
against Judge Jones. Ellison relies on two affidavits from Claude Ellison outlining
the alleged business dealings between Judge Jones and Claude’s business. (Doc. 1
at 36; Doc. 2-1 at 681–84, 694.) These same affidavits were provided in the prior
proceedings where this issue was addressed.
The second of these affidavits describes an “argument” which ensued
“between the Ellison’s [sic] and Mike Dooley, the [Special K] ranch manager, with
Judge Jones present.” (Doc. 1 at 36; Doc. 2-1 at 694.) Ellison derives from this
alleged series of events that “bias is present and implied.” (Doc. 1 at 36.) Judge
Jones has denied any memory of the event or dealing between himself and Special
K Ranch and Claude Ellison. (Doc. 2-1 at 375 (citing Resentencing Tr. 35:15–
36:13).) Even assuming this event had occurred, it is not clear to the Court how
the events, as described in the affidavit, raise issues of bias.
The appearance of bias, alone, has been deemed sufficient to require recusal
in only a few, narrow circumstances. Due process requires recusal where (1) a
judge “has a direct, personal, substantial pecuniary interest in reaching a
conclusion against [a litigant],” (2) “a judge becomes ‘embroiled in a running,
bitter controversy’ with one of the litigants,” or (3) “the judge acts as ‘part of the
accusatory process.’” Carter v. Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007)
(citations omitted). Ellison has not presented any evidence to suggest that Judge
Jones would fall into any of these three categories or anything comparable.
Accordingly, the Court finds no basis under AEDPA to overturn the state district
court’s ruling on this issue.
Ellison also raised new judicial bias claims in his Petition to this Court.
Those claims include allegations against Judge Wald, who presided over his post-
conviction relief hearing, and the Montana Supreme Court. 2 (Doc. 1 at 36.) First,
Ellison appears to allege that Judge Wald was biased during the post-conviction
2 Ellison also asserts collateral estoppel and double jeopardy violations and the violation of his due process rights.
The Court will address Ellison’s judicial bias and misconduct claims here and the merits of his collateral estoppel
and double jeopardy claims below.
relief proceedings. (Id.) Judge Jones retired before the post-conviction relief
proceedings and was replaced by Judge Wald. Ellison states that Judge Wald came
from Judge Jones’ district prosecutor’s office. (Id.) This statement is false as
Judge Wald was previously a criminal defense attorney. See 2015 John Adams
Award – Matt Wald, MONT. ASS’N OF CRIM. DEF. LAWS. (Mar. 12, 2015),
https://www.mtacdl.org/lawyers/lawyers-of-the-year/380-2015-john-adams-award-
matt-wald.
Second, Ellison alleges that the district court is biased against him because
the court failed to adjudicate Claim 7 during post-conviction relief proceedings.
(Doc. 1 at 31–32.) Further, Ellison alleges that the Montana Supreme Court is
biased against him because that court held, on appeal, that Claim 7 lacked merit.
(Id.) Claim 7 concerns collateral estoppel and double jeopardy. Connecting this
procedural history to the claim of judicial bias, Ellison presents his allegations in
the form of a question to this Court: “What other officials, Judicial [sic] members
of the bar were involved and why would the court refuse to rule on Ellison’s Claim
#7? Was Money [sic] involved?” (Id. at 33.)
Ellison also alleges judicial misconduct stemming from Ellison’s appeal to
the Montana Supreme Court, where Justice Rice mistakenly stated that Ellison had
been charged with the offense of sex without consent. (Id. at 35.) Ellison
subsequently filed a judicial misconduct claim with the Montana Judicial
Standards Commission against Justice Rice for “plac[ing] a [sic] out right lie onto
that opinion.” (Doc. 2-1 at 1040–43.) Ellison goes on to state, without any factual
support, that Justice Rice “clearly prejudiced the other Justices in [his later] appeal,
Chief Justice McGrath, Justice Baker, Justice San[d]efur, and Justice James
Jeremiah Shea.” (Doc. 1 at 35.) Ellison then further claims that these Justices
were prejudiced by the “false narrative from the State Prosecutors in Yellowstone
Count, Linneweber and Mees.” (Id.) Ellison concludes “The four named Justices,
especially Justice Rice[,] should have rightly recused themselves per State and
Federal Law.” (Id.)
Ellison provides no facts demonstrating that Judge Wald or the Justices of
the Montana Supreme Court acted without their presumed honesty or integrity.
Withrow, 421 U.S. at 47. Ellison relies solely upon conjecture and a narrative
describing a far reaching and elaborate conspiracy against him, again without any
evidentiary support. Accordingly, there is no constitutional violation, and the
Court denies these remaining portions of Ellison’s second claim that had not been
presented to the state court.
c. Forced Mental Incoherence at Trial (Claim 3)
In Claim 3, Ellison alleges that “the State knowingly and then [sic]
purposely withheld food from Ellison the final two days of the [state] trial,” which
had the effect of rendering him incoherent at trial due to hypoglycemia. (Doc. 1 at
39.) Ellison asserts that this violated his Eight Amendment right to be free from
cruel and unusual punishment and his Fifth and Fourteenth Amendment rights to
due process. (Id.)
The district court dismissed the claim, finding that (1) there was substantial
evidence contradicting Ellison’s version of events, (2) Ellison relied on an
inaccurate interpretation of this Court’s earlier Order related to this matter (Ellison
v. Washington, 2019 U.S. Dist. LEXIS 224348, at *21–22 (D. Mont. 2019)), and
(3) “Ellison failed to explain what impact his being ‘more coherent’ would have
had on the trial.” (Doc. 2-1 at 377–80.) Judge Cavan, likewise, reviewed Ellison’s
claims and concluded that “Ellison has failed to show that the state courts denial of
this claim ‘was contrary to, or involved an unreasonable application of, clearly
established Federal law, . . . or ‘was based on an unreasonable determination of the
facts.’” (Doc. 35 at 40.)
Ellison objects to the Findings and Recommendation and repeats the same
arguments presented to the district court. (Doc. 38 at 21.) Ellison again argues
that this Court ruled in his favor regarding this claim in Ellison v. Washington.
(Id.) Ellison provides no new evidence to support his claim. Reviewing this claim
de novo, the Court concludes that Ellison has presented no legal basis under
AEDPA to disturb the state court’s ruling.
Ellison’s claim of forced mental incoherence is not supported by the
evidence before the Court—the same evidence that was before the district court.
Ellison’s trial attorney, Michael Kakuk, denied that Ellison was deprived of food
during his trial. (Doc. 2-1 at 378.) Mr. Kakuk also stated that “Ellison was always
coherent and actively involved in the defense of his case. He was never not fed. I
bought him lunch during the trial.” (Id.) Ellison elected not to take the stand on
advice of counsel and so informed the court, stating explicitly that he was “waiving
the right to take the stand.” (Id.) This evidence contradicts Ellison’s claims that he
was not fed and therefore suffered mental incoherence.
Ellison repeatedly and incorrectly states that this Court ruled in his favor on
his mental incoherence claim in Ellison v. Washington. (Doc. 1 at 41; Doc. 38 at
21.) Ellison states that Judge Johnson’s Findings and Recommendation in that
case concluded “it is undisputed fact” that the “Yellowstone County Detention
Facility Segregation guards . . . did not feed Ellison the last two days of trial,
intentionally, to knowingly make Ellison incoherent, and unable to object when his
attorney did not present a defense.” (Doc. 1 at 41; Doc 38 at 21.) In reality, Judge
Johnson’s Findings and Recommendation merely found that “there is a genuine
issue of material fact regarding whether [a Yellowstone County Detention Facility
Segregation guard] made an intentional decision to deny Mr. Ellison food knowing
that denial of such food would place Mr. Ellison at a substantial risk of suffering
serious harm.” Ellison, 2019 U.S. Dist. LEXIS 224348, at *22.
Ellison has failed to show that the state court’s denial of this claim “was
contrary to, or involved an unreasonable application of, clearly established Federal
law,” 28 U.S.C. § 2254(d)(1), or it “was based on an unreasonable determination
of the facts,” id. § 2254(d)(2). Claim 3 is therefore denied.
d. Malicious Prosecutorial Misconduct (Claim 4)
In Claim 4, Ellison asserts that “his due process rights have been violated by
the malicious prosecutorial misconduct of the two Yellowstone County prosecutors
who knowingly and purposely violated Ellison’s First, Fourth, Fifth, Eighth and
Fourteenth Amendments Rights.” (Doc. 1 at 42.) These assertions raise two
distinct issues: Brady violations and prosecutorial misconduct.
On appeal to the Montana Supreme Court from the denial of his post-
conviction claim, Ellison altered the nature of his claims, thereby denying the
district court an opportunity to adjudicate their merit. Accordingly, the State did
not respond to three of the arguments made by Ellison, specifically issues one,
three, and four below.3 Ellison now asserts that the State’s failure to respond
constitutes the State “conced[ing] and abandon[ing] these issues by law.” (Doc. 1
at 42, 49, 51.)
Ellison’s Claim 4 now includes four “issues” that allegedly constitute
3 Generally, the Montana Supreme Court will not address an issue raised for the first time on appeal or a party’s
change in legal theory because it is fundamentally unfair to fault the trial court for failing to rule correctly on an
issue it was never given the opportunity to consider. See Day v. Payne, 929 P.2d 864, 866 (Mont. 1996).
“malicious prosecutorial misconduct.” These are: (1) filing of the affidavit and
information to charge despite knowing it lacked merit and was based on
“illegitimate and fabricated probable cause;” (2) “the arresting detective . . .
knowingly and purposely supress[ing] and with[holding] exculpatory evidence,”
specifically “an audio recording of the eye-witnesses and the petitioner the day of
the bombing of the Ellison home” and a photo depicting a cut on Ellison’s hand;
(3) “knowingly making false statements concerning the Park County charges;” and
(4) making “false statements at trial, and . . . deliberately attack[ing] the credibility
of the eyewitness.” (Doc. 1 at 42.)
i. Brady Violation by Law Enforcement
In his Petition, Ellison claims that the state committed Brady violations by
withholding a taped statement that he and his parents made to Billings Police
Department Detective Richardson the morning of the fire that would have
supported his testimony that Detective Fritz was present at the scene of the fire.
(Doc. 1 at 44.) Ellison also alleges that the State hid a photo showing a cut on
Ellison’s hand that would have impeached Detective Richardson’s testimony that
there had been no injury to Ellison’s hand. (Id. at 46.) This same claim was raised
in state court. (Doc. 2-1 at 381.) Ellison claims that had the jury heard this
evidence, “the credibility of the State’s case would have been impeached as well as
Fritz’s credibility, which more probably than not would have resulted in acquittal
of all charges.” (Doc. 1 at 45.)
The district court found that none of this alleged evidence existed, and even
if it did exist, its exclusion did not prejudice Ellison. (Doc. 2-1 at 381.) The
district court also noted that Ellison attempted to enter irrelevant evidence during
his resentencing for Tampering and Impersonation. This evidence related to
Ellison’s alleged 2010 “abduction.”
Judge Cavan assessed the findings of the state court in addition to Ellison’s
modified claims and found Ellison’s Claim 4 “does not survive deferential review
and should be denied in its entirety.” (Doc. 35 at 53.) Ellison objected to Judge
Cavan’s findings and recommendation as to Claim 4 but offered no new evidence
or arguments. (Doc. 38 at 22–27.)
A Brady violation occurs when the State fails to disclose any evidence that is
material to a defendant’s guilt or punishment. “There are three components of a
true Brady violation: The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). When
determining whether a Brady violation has occurred, the question for the Court is
“not whether the defendant would more likely than not have received a different
verdict with the evidence,” but whether, despite the evidence’s absence, the trial
resulted in a “verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434
(1995).
The district court’s findings are supported by the trial testimony of Marlene
and Claude Ellison, Detective Richardson, and Fire Marshall Schilling. Regarding
the alleged recordings, Claude Ellison testified that he did not give formal a
statement to authorities, but instead was advised by his attorney to tell authorities
they would have to seek a subpoena and take his deposition. (Trial Tr. 213:5–15,
Doc. 2-1 at 461.) Detective Richardson confirmed that neither Claude nor Marlene
provided formal statements. (Trial Tr. 366:23–67:25, id. at 499.) Even if the tapes
did exist, Ellison’s parents testified during the State’s case-in-chief and repeated
the same story that Ellison claims was on the tapes, thereby making their alleged
exclusion immaterial. (Id. at 381.)
Regarding the photo depicting a cut on Ellison’s hand, both Detective
Richardson and Fire Marshall Schilling testified that they observed no injury on
Ellison’s hand after responding to the fire at the Ellison home. (Trial Tr. 340:9–21,
341:5–12, Doc. 2-1 at 492; Trial Tr. 271:2–20, Id. at 475.) Moreover, testimony
by Claude Ellison was inconsistent with Ellison’s description of the photo, with
Claude stating that he believed the hand to be bruised in the photo but was unsure
if it had been cut. (Trial Tr. 222:2–8, 224:5–12, Id. at 463.) There is also no
evidence that the State ever possessed such a photo. Ellison claims that the photo
was taken by Marlene Ellison at the direction of Ellison’s attorney at that time,
Elizabeth Honaker, but does not claim to have provided the photo to the State.
(Doc. 1 at 46.)
Ellison fails to meet the necessary showing required to establish a Brady
violation. Accordingly, the Court must afford AEDPA deference to the state
court’s decision and Ellison’s Brady claim is denied.
ii. Prosecutorial Misconduct
Issues one, three, and four fall under the “prosecutorial misconduct”
umbrella. In those issues, Ellison claims a conspiracy against him by prosecutors
Mees and Linneweber, in concert with Detective Fritz. Ellison alleges that these
individuals worked together to fabricate probable cause for the Yellowstone
County offense and prevented Ellison from seeking redress for the wrongs
stemming from his alleged abduction in 2010. (Doc. 1 at 43.) Ellison states that
Linneweber was fired from his position as Park County prosecutor after the Park
County Commissioners learned that Linneweber had suppressed a 40-minute dash
camera video of law enforcement locating Ellison. (Id. at 43–44.) Ellison claims
that the video contained proof that Detective Fritz was responsible for his 2010
abduction. (Id. at 44.) Ellison also argues that Linneweber presented false
statements about Ellison’s Park County charges to the trial court during a pretrial
hearing, prejudicing Ellison in subsequent proceedings. (Id. at 49.) Last, Ellison
argues that Mees acted improperly by suggesting that the jury take the testimony of
Claude and Marlene Ellison “with a grain of salt.” (Id. at 50).
As previously stated, Ellison has altered the nature of these claims following
state court proceedings. To the extent Ellison alleges a wide-ranging conspiracy
against him consisting of prosecutors, police, and government officials, the state
district court has already addressed these claims. Regarding the alleged
conspiracy, the district court found that “Ellison has not provided any evidence of
the existence of this conspiracy and who is involved appears to shift over time.”
(Doc. 2-1 at 383.) The court went on to state that Ellison’s “evidence” of this
alleged conspiracy consists of “no more than conclusory statements that are not
supported by evidence and thus do not justify post-conviction relief.” (Id.)
Judge Cavan addressed the new claims raised by Ellison in his Petition, in
addition to those claims presented to the state courts. Judge Cavan concurred with
the district court’s conclusion regarding the alleged conspiracy and further
determined that “to the extent Ellison believes the state courts’ adjudication of his
prosecutorial misconduct claim is ‘contrary to existing and established United
States Supreme Court law’ . . . he is incorrect.” (Doc. 35 at 53.) Ellison objected
to these findings and recommendations but made no new arguments and presented
no new evidence. The Court reviews this claim de novo and finds that there are no
grounds to disturb the district court’s ruling. The Court further concludes that
Ellison’s altered claims are without merit, and therefore are denied.
A petitioner is entitled to habeas corpus relief if the prosecutor’s misconduct
constitutes a violation of due process. See Greer v. Miller, 483 U.S. 756, 765
(1987) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “To
constitute a due process violation, the prosecutorial misconduct must be ‘of
sufficient significance to result in the denial of the defendant’s right to a fair trial.’”
Id. (quoting United State v. Bagley, 473 U.S. 667, 676 (1985)). The Court is to
review the claim of prosecutorial misconduct within the context of the entire trial.
Id. at 765–66. Where the claim of prosecutorial misconduct is based on remarks
made by a prosecutor, the test is whether “the prosecutor’s comments ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process,’” not merely whether the remarks “were undesirable or even universally
condemned.” Darden v. Wainright, 477 U.S. 168, 181 (1986) (quoting,
DeChristoforo, 416 U.S. at 643.)
As the district court and Montana Supreme Court found, there is no
evidentiary support for Ellison’s claims. First, there is no indication Linneweber
was fired from his position as Park County Attorney. Instead, it appears that
Linneweber voluntarily left this position after being offered employment with
Yellowstone County. As noted by this Court in 2020, Ellison’s version of events
and the conspiracy against him evolved over time to serve Ellison’s needs. See
Order and Findings and Recommendations at 9 n.10, Ellison v. Fletcher, No. 17–
cv–168 (D. Mont. Jan. 7, 2020). The Court has also reviewed the 40-minute dash
camera recording and finds that the video contains no information that would
support Ellison’s contention that Detective Fritz orchestrated his abduction.
Ellison’s concern regarding the statements made by Linneweber during
Ellison’s pretrial hearing also lack merit. During that hearing, the State and Mr.
Kakuk argued as to whether each of Ellison’s prior convictions and past acts
should be excluded as irrelevant or prejudicial. (Omnibus Hr’g Tr. 13:23–29:4,
Doc. 2-1 at 403–07.) During this exchange, the State sought to introduce the 2010
Park County abduction and explained why it believed the information to be
relevant for trial and how it related to the Arson, Tampering, and Impersonation
charges. (Omnibus Hr’g Tr. 20:4–27, id. at 405.) Ellison’s cherry-picking of
certain comments made by Linneweber, which were part of a much larger
conversation held outside the presence of the jury regarding the admissibility of
certain evidence at trial, is not availing. Moreover, there has been no evidence
provided by Ellison demonstrating these comments prejudiced his right to a fair
trial.
Ellison presents a similar argument regarding Mees’s closing argument at
trial. Ellison takes issue with Mees’s statement that the jury should take Claude
and Marlene Ellison’s testimony “with a grain of salt.” (Doc. 1 at 50.) This
statement was made only once during closing and was made in conjunction with a
discussion of matters that affected the witnesses’ credibility. (See Trial Tr. 575–
602, Doc. 2-1 at 551–58.) Notably, the defense did not object to the grain of salt
reference. (See Trial Tr. 610–21, id. at 560–63.) The jury was properly instructed
regarding the credibility of witnesses, the presumption of innocence, and the
applicable legal standards. Therefore, the Court finds that Mees’s comment,
viewed in the context in which it was said and the closing arguments as a whole,
clearly falls short of the Darden standard and did not deny Ellison due process.4
Accordingly, there are no grounds under AEDPA to disturb the state district
court’s ruling and Claim 4 is clearly without merit; therefore, Claim 4 is denied.
e. Ineffective Assistance of Counsel (Claim 5)
In Claim 5, Ellison alleges that his right to the effective assistance of counsel
was violated at both the trial and appellate level in the state courts of Montana.
(Doc. 1 at 52.) Ellison alleges that his trial counsel, Mr. Kakuk, was ineffective
by: instructing his parents not to testify that they saw Detective Fritz at their house
the morning of the house fire; failing to properly investigate Detective Fritz’s alibi
for the morning of the fire; refusing to communicate with Ellison; and abandoning
basic defense counsel duties by refusing to cross-examine Fritz or impeach him
4 See Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004))
(noting that the Darden standard leaves “more leeway . . . in reaching outcomes in case-by-case determinations”).
using Claude and Marlene Ellison’s suit against him, refusing to recall Claude and
Marlene Ellison during the defense’s case-in-chief, refusing to present a cell phone
received from Ellison’s former attorney, refusing to present a letter from Ellison’s
former attorney purporting to impeach the alibi of Detective Fritz, refusing to
consult a DNA expert or investigate secondary DNA transfer; and preventing
Ellison from testifying in his own defense. (Doc. 1 at 53–54.) Ellison also alleges
that both trial and appellate counsel should have identified the multiple prosecution
statute and raised that issue at trial and on appeal respectively. (Id. at 52–53.)
Ellison raised substantively the same arguments in the district court.5 (Doc. 2-1 at
384–85.)
Applying the two-prong test established in Strickland v. Washington, 466
U.S. 668 (1984), to analyze ineffective assistance of counsel claims, the district
court found that Mr. Kakuk’s performance did not fall below an objective standard
of reasonableness and that none of the complained of conduct would have changed
the outcome of the proceedings. (Doc. 2-1 at 385–89.) Judge Cavan found that the
state court reasonably rejected Ellison’s ineffective assistance of counsel claims.
5 In the district court, Ellison’s IAC claims included: (1) instructing his parents not to testify that they saw Detective
Fritz at their house the morning of the house fire; (2) failing to conduct an adequate pretrial investigation; (3) not
adequately communicating with Ellison; (3) possessing a phone that allegedly contained a picture of Ellison’s
bloody hand and electing not to show it to the jury; (4) conducting a second omnibus hearing without Ellison’s
knowledge where the “rules at trial changed;” (5) abandoning the defense trial strategy and refusing to allow Ellison
to testify; (6) not cross-examining Detective Fritz; (7) not ensuring Ellison was adequately fed, leading to his mental
impairment during trial and inability to assist in his own defense; and, (8) failing to argue that no witness identified
Ellison on the phone call relative to his Impersonation of a Public Servant conviction. (Doc. 2-1 at 384.) Ellison
also alleged that his appellate counsel was ineffective for failing to present his PCR claims on direct appeal. (Id. at
385.)
In his objections, Ellison did not raise any new arguments, instead “firmly
stand[ing] on this claim in it’s [sic] entirety, as presented in his Petition.” (Doc. 38
at 28). After reviewing this claims de novo, the Court finds that there is no basis
under AEDPA to disturb the state court’s ruling.
As the district court identified, the proper analysis for ineffective assistance
of counsel claims is derived from Strickland. Strickland’s two-prong test requires
a defendant to establish: (1) that counsel’s performance was objectively deficient,
and (2) that counsel’s deficient performance prejudiced the defendant. 466 U.S. at
687. Any review must be “highly deferential” and must adopt counsel’s
perspective at the time of the challenged conduct. Id. at 689; see also Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (stating that federal review of a state court’s
decision on an ineffective assistance of counsel claim is “doubly deferential”). The
burden is on the petitioner to overcome the presumption that counsel’s actions
constitute sound trial strategy. Id. Applying this analysis to each of Ellison’s
allegations of ineffective assistance, the Court concurs with the district court that
Ellison’s claim has no merit.
The argument that Mr. Kakuk perform deficiently by attempting to persuade
Claude and Marlene from identifying Fritz as present at the scene of the home fire
is without merit. As the district court noted, even if this were true, Claude and
Marlene clearly did not heed Mr. Kakuk’s advice because both testified that they
saw Fritz flee from scene. (Doc. 2-1 at 386.) Mr. Kakuk denies the allegation and
states that he merely cautioned the Claude and Marlene not to testify about
Ellison’s history because it may open the door to Ellison’s history of staging crime
scenes. (Id.) In any event, such advice would have been reasonable and had no
impact on the outcome of the trial.
Ellison’s claims regarding inadequate investigation are without merit. As
the district court determined, it was undisputed that Ellison had touched the ropes,
and no blood was found on the ropes, so the DNA/blood issues were immaterial as
discussed above. Ellison’s claim that the serologist was advised not to test for
blood is undermined by the serologist’s own testimony that she did not see any
blood, and if she had she would have tested for it. (Trial Tr. 412:8–19, Doc. 2-1 at
510.)
Ellison’s argument on the abandonment of defense counsel duties also lacks
merit. Mr. Kakuk explained that his decision not to recall Claude or Marlene was
due to the “problematic” theories that both had presented and his desire to prevent
inadvertently opening the door to any prior bad acts by Ellison. (Doc. 2-1 at 386.)
Similarly, Mr. Kakuk’s decision not to cross-examine Detective Fritz was intended
to avoid reinforcing elements of the State’s theory. (Doc. 2-1 at 388.) The “alibi”
letter, which was not discussed in the district court, does not establish that
Detective Fritz lacked an alibi for the early morning hours of March 14, 2014.
(See Doc. 1 at 53.) Ellison again raises the alleged recording of Claude and
Marlene Ellison, but as discussed above, such evidence has not been proven to
exist and would have been duplicitous of trial testimony.
Ellison’s allegation that Mr. Kakuk prevented him or somehow coerced him
into not testifying is not supported by the record. Ellison met with Mr. Kakuk after
the court went into recess following the close of the State’s case-in-chief. (Trial
Tr. 570:8–11, Doc. 2-1 at 550.) Ellison informed the court that he had been
advised by his attorney not to take the stand. (Trial Tr. 570:24–571:3, Id.) The
court then advised Ellison that it was ultimately his decision whether to testify and
Ellison subsequently waived his right to testify. (571:4–15, Id.) There is no
indication that Ellison was incoherent at that time and Ellison fails to explain how
his testifying would have affected the trial.
Ellison also claims Mr. Kakuk refused to present a cell phone containing a
photograph of Ellison’s bloody hand. Mr. Kakuk explained that he received the
phone from Greg Stovall, the investigator for Ellison’s former attorney, Elizabeth
Honaker. (Id. at 386.) Mr. Kakuk stated that he viewed the photos personally and
did not see a photo of Ellison’s hand. (Id.) Ellison further claims that this same
phone was in Stovall or Honaker’s possession at the time when certain phone calls
were made for which Ellison was charged with Impersonation. (Doc. 1 at 54.)
However, records show that the phone from which the Impersonation calls were
made had not been purchased until August 19, 2014, whereas the house fire
occurred on March 14, 2013. So, the same phone could not have been used to take
a photo of Ellison’s hand the same day as the house fire and subsequently to make
the Impersonation phone calls. In total, there is no showing that Mr. Kakuk
performed deficiently by failing to present the phone as evidence of either the
bloody hand or that Ellison did not make the Impersonation calls.
The claim that Mr. Kakuk failed to communicate with Ellison was addressed
by the trial court during the August 10, 2015, hearing. (Omnibus Hr’g Tr. 1–12,
Doc. 2-1 at 400–03.) Mr. Kakuk acknowledge difficulty reaching Ellison via
phone while he was in jail, but those issues were resolved. (Id. at 387.) Ellison
has not offered any argument that these communication difficulties had any
adverse impact on his trial.
Finally, Ellison’s claim regarding trial and appellate counsel’s failure to
raise the multiple prosecution statute has already been addressed on direct appeal,
where the Montana Supreme Court reversed Ellison’s conviction for the second
count of Tampering with Evidence and found that trial counsel had been
ineffective for failing to object to the second count under the statute. State v.
Ellison, 428 P.3d 826, 833 (Mont. 2018). The Court need not re-address this issue.
In summary, the district court’s analysis of Ellison’s ineffective assistance of
counsel claim was not contrary to, or an unreasonable application of, Strickland.
Therefore, there is no basis for the Court to disturb the district court’s ruling and
Ellison’s Claim 5 is denied.
f. Perjury by Public Officials (Claim 6)
In Claim 6, Ellison alleges that the “prosecutors [sic] witness knowingly
committed perjury” during Ellison’s state court trial and that the state knowingly
allowed this “in order to cover up for their criminal deeds” and to escape a § 1983
civil suit. (Doc. 1 at 60.) Specifically, Ellison claims that “[Detective] Richardson
deliberately falsely stat[ed] that the ropes tying the doors shut were loose” and that
Ellison hadn’t cut his hand. (Id.) Ellison also claims that “Detective Frank Fritz[]
falsely stated . . . that he had only seen Ellison twice.” (Id.)
The district court found that the statements Ellison took issue with were
“matters of opinion, not material, or statements that are in the province of the jury
to assess and thus insufficient to warrant post-conviction relief.” (Doc. 2-1 at 383.)
The court also pointed out that “the jury had access to the ropes and the items the
doors were tied to and could give proper weight to both Detective Richardson’s
testimony and the physical evidence.” (Id.) Regarding Detective Fritz’s
testimony, the court noted that Detective Fritz testified he “believed” he had two
“face-to-face” interactions, “which is distinct from simply seeing Ellison” and
otherwise immaterial. (Doc. 2-1 at 384.) The court therefore denied relief.
Judge Cavan agreed with the assessment of the state court that the
statements were “immaterial and insufficient to warrant relief.” (Doc. 35 at 71.)
Ellison objected to the findings and recommendations but offered no new
evidence. (Doc. 38 at 29.) After reviewing these claims de novo, this Court finds
that there is no basis under AEDPA to disturb the state court’s ruling.
“‘[A] conviction obtained through use of false evidence, known to be such
by representatives of the State, must fall under the Fourteenth Amendment’ . . .
only if three elements are satisfied[:]” (1) “the testimony or evidence in question
must have been false or misleading,” (2) “the State must have known that it was
false or misleading,” and (3) “the testimony or evidence in question must be
material." Panah v. Chappell, 935 F.3d 657, 664 (9th Cir. 2019) (citing Napue v.
Illinois, 360 U.S. 264, 269 (1959)) (other citations omitted).
With regard to the allegation against Detective Richardson, his statements
that the ropes were loose cannot be said to be “false or misleading,” but was
simply his opinion derived from his assessment of the scene, which was supported
by the opinion of Deputy Fire Marshall Schilling. (Trial Tr. 296:19–20, Doc. 2-1
at 481.) Regarding Detective Richardson’s statements about Ellison’s hand being
cut, this information is both immaterial and consistent with other trial testimony,
such as that of Deputy Fire Marshall Schilling. (Trial Tr. 269:24–272:2, Id. at
475.) Additionally, Ellison has failed to provide evidence tending to show that the
State knew this testimony to be false or misleading.
Second, Ellison’s claims mischaracterize Detective Fritz’s testimony and fail
to meet the three necessary prongs. When asked at trial whether he knew Lionel
Ellison, Detective Fritz stated that he had “conducted several investigations into
Mr. Ellison,” including one in September 2009 and a second in October or
November 2009. (Trial Tr. 550:21–558:8, Id. at 545–47.) Then, when asked how
many “face-to-face” interactions he had with Ellison, Detective Fritz responded
that he “believe[d]” there had been two: when he conducted the initial interview of
Ellison in September 2009 and when he arrested Ellison in 2009. (Trial Tr. 557:5–
13, Id. at 547.)
Ellison does not offer any evidence proving additional “face-to-face”
interactions with Detective Fritz, which the state court accurately pointed out are
distinct from merely seeing Ellison. (Id. at 384.) Additionally, Detective Fritz
only testified that he believed he had two face-to-face interactions, so if he was
mistaken, his statements would not amount to being false. Moreover, any
possibility that Detective Fritz had more than two face-to-face interactions with
Ellison is immaterial. And finally, Ellison offers no evidence that the State knew
Detective Fritz’s statements were false.
Ellison also takes the opportunity to make further accusations against
Detective Fritz. (See Doc. 1 at 60.) However, these accusations have no bearing
on whether perjury occurred, and therefore the Court will not address them.
Accordingly, finding that there is no basis under AEDPA to disrupt the district
court’s ruling, Ellison’s Claim 6 is denied.
g. Collateral Estoppel/Double Jeopardy (Claim 7)
Ellison makes two arguments in Claim 7. First, Ellison argues that the State
erred by not briefing his double jeopardy/collateral estoppel claim during PCR
proceedings, and the district court erred by not addressing the claim in its order.
(Doc. 1 at 61). Second, Ellison argues that once he was acquitted of the crime of
arson (Count I), the doctrine of collateral estoppel precluded the state from
pursuing the tampering charges (Counts II and III). (Doc. 1 at 61, 64–65.)
Contrary to Ellison’s claim, the State did brief the claim on appeal from the
PCR proceedings. (Doc. 2-1 at 80–83.) In that briefing, the State argued that
Ellison’s double jeopardy claim was not cognizable because the doctrine of res
judicata “prohibited reconsideration in a PCR proceeding of claims previously
raised and considered on direct appeal.” (Id. at 80–81) (citing Mont. Code Ann. §
46-21-105(2) (2021)). Ellison’s claim had already been resolved on direct appeal,
where the Montana Supreme Court vacated Ellison’s second tampering conviction,
thereby determining that the second tampering conviction should remain in place.
(Id. at 81) (citing Ellison, 428 P.3d at 833). The State also addressed Ellison’s
argument that the application of collateral estoppel would apply to the tampering
charges, pointing out that overturning one of Ellison’s tampering convictions “does
not mean the remaining count can or should have been disposed in the same trial
proceeding.” (Id. at 81–82.)
The Montana Supreme Court addressed Ellison’s collateral estoppel/double
jeopardy claim and agreed with the State’s position, stating:
Ellison also faults the District Court for failing to address his double
jeopardy claim. Ellison alleges that the two charges of evidence
tampering violated his right to be free from double jeopardy.
Although the District Court did not address that issue, it lacks merit in
any event because we vacated the second evidence tamping charge in
Ellison’s first appeal.
Ellison v. State, 477 P.3d 1123, 1123 n.1 (Mont. 2020) (citing State v.
Ellison, 428 P.3d 826, 833 (Mont. 2018)).
Judge Cavan addressed both portions of Ellison’s claim, ultimately
finding that the Montana Supreme Court’s denial of this claim was
reasonable. (Doc. 35 at 72–76.) Ellison raised no new arguments in his
objections. (Doc. 38 at 29.) Reviewing this claim de novo, the Court
concludes that there are no grounds to overturn the decision of the state
court, and this claim is denied.
Ellison’s arguments have no merit. Ellison relies on the Montana
Supreme Court’s holding in State v. Tadewalt, 922 P.2d 463 (Mont. 1996),
to support his argument. (Doc. 1 at 61.) Tadewalt provides a three-part test
to determine whether a subsequent prosecution in a separate jurisdiction is
barred under state law.6 922 P.2d at 465. This test is inapplicable to
Ellison’s claim because Ellison was not prosecuted by two separate
jurisdictions for the same transaction. Ellison also cites to the state statute
barring subsequent prosecution based upon the same transaction, Mont.
Code Ann. § 46-11-503(1)(a) (2021), and the corresponding statutory
definition of “same transaction.” (Doc. 1 at 62). Again, this statute is
inapplicable because Ellison was not prosecuted multiple times for the same
transaction.7 Finally, as correctly identified by Judge Cavan, Ellison’s
argument would require this Court to review the Montana Supreme Court’s
application of state law, which is not cognizable under federal habeas
review. See Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1992) (“claim .
. . exclusively concerned with state law and therefore not cognizable in a
federal habeas corpus proceeding”); Mendez v. Small, 298 F.3d 1154, 1158
(9th Cir. 2002) (“A state court has the last word on the interpretation of state
law.”); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“it is not the
province of a federal habeas court to reexamine state-court determinations
6 “[A] subsequent prosecution is barred under this statute, by its terms, if the following three factors are met: (1) a
defendant's conduct constitutes an offense within the jurisdiction of the court where the first prosecution occurred
and within the jurisdiction of the court where the subsequent prosecution is pursued; (2) the first prosecution results
in an acquittal or a conviction; and (3) the subsequent prosecution is based on an offense arising out of the same
transaction.”
7 While the Montana Supreme Court determined Ellison was wrongly prosecuted for two counts of tampering when
the events arose out of the same transaction, at no point did the Montana Supreme Court determine that, under state
law, the charge of arson and the charge of tampering arose out of the same transaction.
on state-law questions”).
Accordingly, this Court finds no grounds under AEDPA to disturb the
state court’s ruling. Claim 7 is therefore denied.
h. Due Process & Equal Protection (Claims 8 and 9)
As explained above, Claims 8 and 9 are procedurally defaulted because
Ellison failed to present these claims in state court. Nonetheless, this Court has
exercised its discretion to review these claims in the interest of judicial economy.
Lambrix, 520 U.S. at 525.
First, in Claim 8 Ellison alleges that the State courts, and by extension this
Court, violated his “right to the due process of law” by refusing to admit evidence
that “links the petitioners [sic] two recent petitions for post conviction relief, and
proves beyond doubt the existence of the ‘bounty’ placed on Ellison.” (Doc. 1 at
66.) The evidence Ellison sought to admit was transcripts of two recorded video
statements taken in 2008 from Justin and Aaron Stevens, whom Ellison describes
as “admitted ‘gangsters’” from Seattle. (Id.) According to Ellison, these
transcripts support his theory that there is a wide-spread conspiracy against him
and that someone affiliated with Detective Fritz was paying for others to terrorize
and conspire against Ellison. (Doc. 1 at 68–70; Doc. 2-1 at 41; Doc. 38 at 30.)
Ellison believes that this evidence proves his “innocence of the car fire ‘Arson’”
charge and exonerates him of staging his own abduction and tampering with
evidence in 2010. (Doc. 1 at 68–70; Doc. 2-1 at 41; Doc. 38 at 30.)
Next, in Claim 9, Ellison alleges that his sentence of 15 years for vehicular
arson was fundamentally unfair and violated his Due Process rights. (Doc. 1 at
69–70). Ellison ties this claim back to the broad conspiracy he believes exists
against him, stating the following:
[T]he fact that the Courts of Montana [sic] would exclude evidence of
a ‘Bounty’ [sic] by a private individual and corporation being placed
upon Ellison; and the proven involvement of State Public officials
who have weaponized the Montana Judicial system as a whole, to
protect each other from culpability of criminal . . . acts [the alleged
abduction, torture, and rape of Ellison and the alleged attempt by
Detective Fritz to burn down the Ellison home], and the resultant
criminal and civil wrongdoings by the State of Montana at the district
court level, and up.
(Doc. 1 at 71.)
Ellison goes on to claim that he “was mislead by a Billings attorney that the
car fire would only be a deferred misdemeanor, if he plead guilty,” and that his
“attorney Jeff Michael lied to Ellison” causing Ellison to “unknowingly and
unintentionally plead guilty to a felony.” (Id. at 72.) Ellison extends these
allegations to Judge Watters, who subsequently refused to allow Ellison to
withdraw his Alford plea. (Id. at 73.) Going further, Ellison claims that this Court
compounded the constitutional violation by finding his habeas petition challenging
the vehicular arson to be untimely and finding that Ellison had not met the
necessary showing required to excuse his late filing in Ellison v. Fletcher, No. 17–
cv–168. (Id.) Based on these arguments, Ellison asks this Court to reopen Ellison
v. Fletcher and argues that the judges of this Court should not be allowed to
preside over the re-opened proceedings. (Id. at 78.)
Finally, Ellison claims that “his First Amendment right against retaliation
has been violated by public officials, and their misuse of the courts for their
personal protection and interest.” (Doc. 1 at 71, 75.) Ellison cites Lozman v. City
of Riviera Beach, 138 S. Ct. 1945, 1947 (2018) (citing Harmtan v. Moore, 547
U.S. 250, 265–66 (2006)), for the premise that “a plaintiff alleging a retaliatory
prosecution must show the absence of probable cause for the underlying criminal
charge.” (Doc. 1 at 75.) Ellison then states the “State of Montana admitted it
lacked probable cause in the present matter, and Ellison has proven that the State
lacked it in DC–07–0907 by virtue of the States own expert analysis of the video
that the state claimed to be probable cause.” (Doc. 1 at 75.)
Judge Cavan reviewed Ellison’s Claims 8 and 9 and found that they had no
merit. (Doc. 25 at 83.) In his objections, Ellison raised no new arguments. (Doc.
38 at 30.) This Court reviews these claims de novo and concludes that there was
no due process nor equal protection clause violations and Ellison’s Claim 8 and 9
have no merit.
Ellison’s claims fail for several reasons. First, this Court did consider the
transcripts in Ellison v. Fletcher, despite the fact that the documents were filed
nearly four months after the matter was closed. Order Denying Motion for
Rehearing, Ellison v., Fletcher, No. 17–cv–168 (D. Mont. June 9, 2020). There,
this Court explained:
Ellison seems to argue that the information contained in the two 2008
depositions should alter this Court’s prior finding that his federal
habeas petition was untimely. But Ellison fails to make the requisite
showing of a convincing nature that would compel this Court to alter
its prior decision. The deposition evidence at issue is not newly
discovered. Although Ellison may have not had the physical
deposition transcripts in his possession, he knew of their existence and
the information they contained. See, (Doc. 40 at 3.) Moreover, upon
review of the deposition, there is nothing in either document which
would establish that Ellison was actually innocent of the crime of
Arson. Ellison has not submitted evidence to demonstrate clear
error exists. Likewise, he has not established this case presents the
rare circumstance in which extraordinary relief should be afforded.
Therefore, Ellison’s motion for reconsideration shall be denied.
Ellison’s remedy, if any, lies in appeal.
Id. at 2–3. So, contrary to Ellison’s assertions, this Court did consider the
transcripts he claims exonerate him and determined they would not have
altered the original finding.
Second, a claim of state sentencing error is generally not cognizable
on federal habeas review unless the “error was ‘so arbitrary and capricious
as to constitute an independent due process or Eight Amendment violation.’”
Richmond v. Lewis, 506 U.S. 40, 50 (1992) (citing Lewis v. Jeffers, 497 U.S.
764, 780 (1990)); see also Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir.
2010); Makal v. State of Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976) (“So
long as the type of punishment is not based upon any proscribed federal
grounds such as being cruel and unusual, racially or ethnically motivated, or
enhanced by indigency, the penalties for violations of state statutes are
matters of state concern.”).
Ellison was sentenced as a Persistent Felony Offender (“PFO”), which
is “a procedural sentence enhancement required by statute” that replaces the
sentence for the underlying felony. State v. DeWitt, 149 P.3d 549, 551
(Mont. 2006); see also State v. Gunderson, 237 P.3d 74, 84 (Mont. 2010).
The PFO statute provides that “a persistent felony offender shall be
imprisoned in the state prison for a term of not less than 5 years or more than
100 years.” Mont. Code Ann. § 46-18-502 (2021). Because Ellison’s
sentence was within the statutorily proscribed 5- to 100-year range, Ellison
cannot demonstrate that the sentence is arbitrary or capricious.
Although Ellison claims that his sentence violates the Equal
Protection Clause, this issue has already been litigated and deemed
meritless. Ellison’s argument rests on his repeated claims that he was
wrongfully convicted for vehicular arson, that he was wrongfully prosecuted
for the home arson, that he “has been convicted and imprisoned by the Court
of Montana based upon conjecture and presumption,” and that there is a
conspiracy against him. (Doc. 1 at 73.) As discussed throughout this Order,
there is no basis in fact or law to support Ellison’s claims. See Jones v.
Gomez, 66 F.3d 199, 204–05 (9th Cir. 1995) (“[C]onclusory allegations
which are not supported by a statement of specific facts do not warrant
habeas relief.”).
Finally, Lozman does not offer the support that Ellison believes it
does. In that case, the Supreme Court addressed the narrow issue of whether
the defendant’s admission that probable cause existed to arrest him barred a
First Amendment retaliation claim. 138 S. Ct. at 1947, 1955. Here, Ellison
claims that there was no probable cause to charge him. Moreover, Ellison
has failed to provide any actual evidence demonstrating that a retaliatory
motive existed or that the State lacked probable cause.
For these reasons, Ellison’s Claims 8 and 9 are without merit and are
denied in their entirety.
i. “Common Scheme” Claims
In his objections to Judge Cavan’s Findings and Recommendations Ellison
included an “Addendum of ‘Common Scheme’ Claims.” (Doc. 38 at 31.)
According to Ellison this is “new evidence” that proves Ellison’s actual innocence.
(Id.) The addendum consists of eighty pages of exhibits, none of which are “new
evidence” to this Court, and none of which prove actual innocence. (Doc. 38-1.)
Because there are no actual claims to address in these materials, there is nothing
for the Court to review for the purposes of this Order.
II. Motions for Recusal
Judge Cavan issued findings and recommendations on Ellison’s Motions for
Recusal (Docs. 17, 30) as they pertain to Judge Christensen. (Doc. 35 at 86–94.)
Ellison has objected. (Doc. 38 at 3–18.) The Court must review de novo those
findings and recommendations to which the petitioner has specifically objected.
28 U.S.C. § 636(b)(1)(C); Reyna-Tapia, 328 F.3d at 1121. Accordingly, the Court
reviews Judge Cavan’s findings and recommendations on these motions de novo.
Ellison moves for the recusal of the undersigned based upon the belief that
the undersigned could not be impartial or unbiased. (Doc. 17 at 1). Ellison’s
concerns regarding the undersigned are part of his broader belief that there is a
wide-spread conspiracy against him that precludes any judge in the District of
Montana from fairly presiding over his Petition for Writ of Habeas Corpus. (Id. at
2.) Ellison takes particular issue with the undersigned’s refusal to consider “the
sworn testimony of two known and admitted Seattle Organized [sic] crime
‘gangsters’” in Ellison’s prior habeas proceedings, Ellison v. Fletcher, No. 17–cv–
168. (Id.) In response, Ellison filed judicial complaints with the Ninth Circuit
against the undersigned for abuse of discretion. (Id. at 4–9; see also Doc. 33-1 at
9–14.)
Ellison also asserts that the undersigned committed perjury in a prior matter
by “knowingly and purposely falsely stat[ing] that ‘United States Magistrate Judge,
[sic] John T. Johnston handled pre-trial proceedings’” when it had been Judge
Cavan. (Doc. 30-1 at 3.) Ellison alleges that this was an effort to cover up for
Judge Cavan’s failure to recuse himself in that matter. (Id.) Ellison cites to 28
U.S.C. §§ 144, 455 as grounds for recusal. (Doc. 17 at 3; see also Doc. 6 at 4.)
When considering a motion under § 144, the Court should first evaluate
whether to grant recusal pursuant to § 455. If the Court determines that recusal is
inappropriate under § 455, then the Court should determine the legal sufficiency of
the affidavit filed pursuant to § 144. United States v. Sibla, 624 F.2d 864, 868 (9th
Cir. 1980). Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” Under 28
U.S.C. § 144 a party to a proceeding in a district court must file “a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse party, such judge
shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.”
“The standard for recusal under 28 U.S.C. §§ 144, 455 is ‘whether a
reasonable person with knowledge of all the facts would conclude that the judge's
impartiality might reasonably be questioned.’” United States v. Studley, 783 F.2d
934, 939 (9th Cir. 1986); see also United States v. Nelson, 718 F.2d 315, 321 (9th
Cir. 1983.) Both §§ 144 and 455 are limited by the “‘extrajudicial source’ factor
which generally requires as the basis for recusal something other than rulings,
opinions formed[,] or statements made by the judge during the course of trial.”
United States v. Holland, 519 F.3d 909, 913–14 (9th Cir. 2008); see also United
States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978) (noting that under § 144, the
affidavit “must state facts which if true fairly support the allegation that bias or
prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision
on the merits”).
Ellison’s argument for recusal under § 455 is based entirely on his
unsubstantiated and conclusory statements. Ellison’s allegation that the
undersigned was somehow covering up a conspiracy against him by mistakenly
naming Judge Johnston rather than Judge Cavan has no basis in fact or reason and
the mistake was immaterial to the overall analysis. Ellison is also simply incorrect
when he states that the undersigned refused to consider certain additional evidence,
specifically the deposition transcripts of the Seattle “gangsters.” The undersigned
did in fact consider those materials when denying Ellison’s Motion to Rehear at 2–
3, Ellison v. Fletcher, No. 17–cv–168 (D. Mont. June 9, 2020), where the
undersigned stated, “upon review of the depositions, there is nothing in either
document which would establish that Ellison was actually innocent of the crime of
Arson.” Accordingly, Ellison has relied solely upon “unsubstantiated suspicion of
personal bias or prejudice” which is insufficient for recusal under § 455. Holland,
519 F.3d at 909.
Looking next at § 144, Ellison again fails take make the requisite showing.
The only extrajudicial source Ellison provides for support is Ellison’s own
unsupported conclusion that there is a conspiracy against him that includes the
undersigned. Sibla, 624 F.2d at 868 (“An affidavit filed pursuant to [§ 144] is not
legally sufficient unless it specifically alleges facts that fairly support the
contention that the judge exhibits bias or prejudice directed toward a party that
stems from an extrajudicial source.”).
No reasonable person could find that the undersigned’s impartiality might
reasonably be questioned based solely on Ellison’s unsubstantiated allegations.
Accordingly, the Court adopts Judge Cavan’s recommendation and denies
Ellison’s Motions for Recusal (Docs. 17, 30) as they pertain to the undersigned.
III. Outstanding Motions
Ellison has filed seven additional motions since the filing of Judge Cavan’s
Findings and Recommendation: Motion for Emergency Stay and Injunctive Relief
(Doc. 36); Motion for Cease-and-Desist Order (Doc. 42); Motion to Alter
Judgment (Doc. 46); Motions to Stay (Docs. 47, 63); Motion to Dismiss the
Underlying Indictment (Doc. 57); and Motion to Compel (Doc. 62).
In these motions Ellison continues to present the same arguments as those
contained in his Petition or already presented to the court through Ellison’s various
motions. In some cases, Ellison recycles the exact motion that was denied on its
merits in another proceeding. (Compare Doc. 42, with Motion for Cease and
Desist Order, Ellison v. Washington, No. 18-cv-00056, (D. Mont. Apr. 15, 2022).)
Ellison apparently believes that by simply changing the title of the motions, or
filing them in this new proceeding, the Court is bound to reconsider his arguments
ad nauseam. This is not so. The Court holds the authority to “weed out frivolous
or simply repetitive motions” that waste public resources. Hoffman v.
Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010) (citing Knox v. Southwest
Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997); see also Jackson v. Arizona, 885
F.2d 639, 640 (9th Cir. 1989) (citing Neitzke v. Williams, 490 U.S. 319, 324
(1989)) (noting that “IFP litigants, unlike paying litigants, have little ‘economic
incentive to refrain from filing frivolous, malicious, or repetitive lawsuits,’ so “to
prevent such abusive litigation, [28 U.S.C § 1915(e)(2)] permits federal courts to
dismiss IFP claims ‘if satisfied that the action is frivolous or malicious.’”).
The Court finds that Ellison’s repeated filing of motions with this court—
totaling seventeen in the current action alone—that do not differ in substance,
evidence, or argument from one to the other, or which have been repeatedly and
consistently denied for lacking merit, constitutes frivolous, malicious, and
repetitive filing. Accordingly, the Court summarily denies these motions without
again reaching the merits of Ellison’s claims.
Accordingly, IT IS ORDERED that Judge Cavan’s Findings and
Recommendation (Doc. 35) is ADOPTED in full.
1. Ellison’s Petition (Doc. 1) is DISMISSED with prejudice.
2. Ellison’s Motions for Recusal (Docs. 17, 30) are DENIED as they relate
to the undersigned.
3. The Clerk of Court is directed to enter a judgment in favor of Respondent
against Petitioner.
4. A certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Ellison’s Motion for Emergency Stay and
Injunctive Relief (Doc. 36) is DENIED.
IT IS FURTHER ORDERED that Ellison’s Motion for Cease-and-Desist
Order (Doc. 42) is denied.
IT IS FURTHER ORDERED that Ellison’s Motion to Alter Judgment (Doc.
46) is denied.
IT IS FURTHER ORDERED that Ellison’s Motions to Stay (Docs. 47, 63)
are denied.
IT IS FURTHER ORDERED that Ellison’s Motion to Dismiss the
Underlying Indictment (Doc. 57) is denied.
IT IS FURTHER ORDERED that Ellison’s Motion to Compel (Doc. 62) is
denied.
DATED this 27th day of September, 2022.
Dana L. Christensen, District Judge
United States District Court
52 Case Information
- Court
- D. Mont.
- Decision Date
- September 27, 2022
- Status
- Precedential