Banghart v. Clark et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MARTY JOE BANGHART,
Petitioner,
vs.
DOUG CLARK, ACTING WARDEN; and
the ATTORNEY GENERAL OF THE
STATE OF SOUTH DAKOTA,
Respondents.
4:21-CV-04066-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING PETITION
Movant, Marty Joe Banghart, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254 alleging that his trial counsel was ineffective for
multiple reasons. Docket 1. Now pending are petitioner’s motion for summary
judgment and respondents’ motion to dismiss Banghart’s petition without
holding an evidentiary hearing. Dockets 5 & 9. The matter was referred to
United States Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B) and this court’s October 16, 2014 standing order. Magistrate
Judge Duffy recommends that Banghart’s motion for summary judgment be
denied, respondents’ motion to dismiss be granted in its entirety, and
Banghart’s habeas petition be dismissed with prejudice. Docket 20 at 47.
Banghart timely filed objections to the report and recommendation. Docket 29.
For the following reasons, the court adopts Magistrate Judge Duffy’s report and
recommendation in full and dismisses Banghart’s petition.
Case 4:21-cv-04066-KES Document 30 Filed 02/23/22 Page 1 of 7 PageID #: <pageID>

2
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations as to dispositive matters that are timely made and specific.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In conducting its de novo review,
this court may then “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994). Magistrate Judge
Duffy provided a full, complete and well-analyzed report and recommendation
addressing all the issues raised by Banghart. The court adopts the
recommendations in full and addresses briefly the issues raised by Banghart in
his objections.
FACTUAL BACKGROUND
A full factual and procedural background was provided by the magistrate
judge in her report and recommendation. Docket 20 at 2-9. Banghart states
that he objects to the facts in the report and recommendation, but he does not
identify any specific facts that were in error. See Docket 29 at 1. This court has
reviewed the facts and finds that they are all supported by the record. Thus,
the full factual and procedural background as set forth in the report and
recommendation is adopted.
Case 4:21-cv-04066-KES Document 30 Filed 02/23/22 Page 2 of 7 PageID #: <pageID>

3
DISCUSSION
In his objections, Banghart alleges that because he was denied a copy of
his complete case file, he is unable to show prejudice—as is necessary for him
to establish ineffective assistance of counsel. Id. at 2. He alleges that he was
unable to file an informed response with the court because he was not provided
the required records. Id. He states that prejudice is shown because Magistrate
Judge Duffy stated that “speculation, however, is insufficient to establish
prejudice.” Id. (quoting Docket 20 at 45). Banghart argues that without the
record, he is unable to identify evidence within the record that support his
claim and he is left with mere speculation. Id.
In the portion of the report and recommendation that is referenced by
Banghart, Magistrate Judge Duffy was discussing the alleged failure of trial
counsel “to call their own expert to challenge the credentials of [the State’s
expert], to address the proper procedures of conducting a forensic interview of
a child sexual assault victim, and to counter the investigator’s use of the
alleged child victim in attempting to elicit incriminating statement from him.”
Docket 20 at 44. She noted that Banghart does not identify specific testimony
or opinions which would have had a reasonable probability of changing the
outcome of his trial. Id. Instead, she states that Banghart merely speculates
that such an expert could be found. Id. at 46.
Banghart argues that because he was not provided with a copy of the
trial court record, all he could do was speculate. Docket 29 at 2. But as
Magistrate Judge Duffy notes, there is nothing in the trial record to support
Case 4:21-cv-04066-KES Document 30 Filed 02/23/22 Page 3 of 7 PageID #: <pageID>

4
Banghart’s claim. Docket 20 at 46. At no time has Banghart identified an
expert who would testify that the State’s expert was not qualified to give an
opinion, challenge the forensic interview procedures that were used, or counter
the investigator’s use of the alleged child victim in attempting to elicit
incriminating statements from Banghart. Id. Because a defense expert was not
identified either now or at the trial level, a copy of the record from below would
not assist Banghart in being able to show prejudice.
To establish ineffective assistance of counsel, a petitioner must meet the
two-pronged standard articulated by the United States Supreme Court in
Strickland v. Washington. See 466 U.S. 668, 687 (1984). “First, the [petitioner]
must show that counsel’s performance was deficient.” Id. This “performance
prong” requires the petitioner to show that counsel’s representation “fell below
an objective standard of reasonableness.” Id. at 688. To show deficiency, the
petitioner must show “that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. This court must assess “whether counsel’s assistance
was reasonable considering all the circumstances.” Id. at 688.
There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). “Thus, a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged
Case 4:21-cv-04066-KES Document 30 Filed 02/23/22 Page 4 of 7 PageID #: <pageID>

5
conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690. Ordinarily, the Eighth Circuit “consider[s] strategic
decisions to be virtually unchallengeable unless they are based on deficient
investigation[.]” Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006).
“Second, the [petitioner] must show that the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. This “prejudice prong”
requires the petitioner to “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. In other words, “[i]t is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693. Thus, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Id. at 691.
As the report and recommendation notes, Banghart has failed to show
that “an expert witness (1) would have been willing to testify on his behalf; (2)
what specifically their testimony would have been or, most importantly; (3) that
such testimony would have a reasonable probability of changing the trial’s
outcome.” Docket 20 at 46. Even if Banghart had received a copy of the state
court record, it does not include this information. Because Banghart has not
shown that his trial counsel’s performance was constitutionally deficient in
dealing with the State’s expert and not calling their own expert and has failed
Case 4:21-cv-04066-KES Document 30 Filed 02/23/22 Page 5 of 7 PageID #: <pageID>

6
to demonstrate how that failure has prejudiced his defendant, he is not entitled
to federal habeas relief.
Here, an evidentiary hearing is not required because Banghart failed to
demonstrate both prongs of the Strickland test for his claims. Thus, Banghart’s
request for an evidentiary hearing is denied.
CERTIFICATE OF APPEALABILITY
When a district court denies a petitioner’s § 2254 motion, the petitioner
must first obtain a certificate of appealability before an appeal of that denial
may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This
certificate may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial
showing” is one that proves “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a
showing that issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). Banghart has not made a
substantial showing that his claims are debatable among reasonable jurists,
that another court could resolve the issues raised in his claims differently, or
that a question raised by his claims deserves additional proceedings. Thus, a
certificate of appealability is not issued.
Case 4:21-cv-04066-KES Document 30 Filed 02/23/22 Page 6 of 7 PageID #: <pageID>

7
CONCLUSION
It is ORDERED:
1. Banghart’s objections to the report and recommendation (Docket 29)
are overruled.
2. The report and recommendation (Docket 20) is adopted.
3. Respondents’ motion to dismiss (Docket 9) is granted. Banghart’s
habeas petition (Docket 1) is dismissed with prejudice.
4. Banghart’s motion for summary judgment (Docket 5) is denied.
5. A certificate of appealability is denied.
Dated February 23, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:21-cv-04066-KES Document 30 Filed 02/23/22 Page 7 of 7 PageID #: <pageID>