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Rhoades v. Arave

March 28, 2007

PAUL EZRA RHOADES, PETITIONER,
v.
A.J. ARAVE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

(Bonneville County)

CAPITAL CASE MEMORANDUM DECISION AND ORDER

Paul Ezra Rhoades has been convicted of murder, and other associated felonies, for the shooting deaths of Stacy Baldwin, Susan Michelbacher, and Nolan Haddon, all of which occurred in eastern Idaho during an approximately three week period in February and March of 1987. After separate jury trials, Petitioner was sentenced to death in both the Michelbacher and Baldwin cases. Petitioner entered a conditional guilty plea in the Haddon case, and he received two indeterminate life sentences. The present habeas case arises from the state court's judgment in the Michelbacher matter.

The Court previously dismissed several claims as procedurally defaulted. (Docket No. 95.) Currently at issue are the merits of the following claims in the Second Amended Petition: 1-5, 7-10, 12, 14, 17, and 18.*fn1 After considering the pleadings, briefing, and record, the Court concludes that Petitioner is not entitled to relief. The Court further concludes that an evidentiary hearing will not be conducted on any remaining claims of ineffective assistance of counsel. Accordingly, the Petition shall be denied and this cause of action shall be dismissed.

I. FACTUAL BACKGROUND

Early in the morning of March 19, 1987, Susan Michelbacher was feeling ill and decided to take the day off from her job as a special education teacher in Idaho Falls. She left home around 6:30 a.m., telling her husband that she intended to drop off her lesson plans at school and then return home to rest.

Around 7:30 a.m., Valerie Stapf was looking for a place to park in a grocery store parking lot when she nearly collided head-on with a large, amber-colored van very similar to the one Michelbacher was driving that morning. Two people were sitting in the front seat. Stapf was never able to identify the driver, other than to note that it was a young woman who was similar in appearance to Susan Michelbacher, but Stapf would later testify that the passenger -- whom she described as having long dark hair and being "real big, real kind of rough and dirty looking"-- was Paul Rhoades, the Petitioner in this case. The female driver and Petitioner appeared to be agitated, and after a short stand-off, the van backed up and drove toward a bank at the far end of the parking lot.

As soon as the bank opened, the van pulled up to the drive-in window. The teller recognized Michelbacher, who presented her with a check already made out for $1,000, which the teller cashed. Within a matter of minutes, Michelbacher arrived at a different drive-in branch of the same bank and again cashed a check for $1,000.

That same day, Susan Browning was preparing to leave her residence in a rural area west of Idaho Falls when she observed this same amber-colored van come to a stop on the shoulder of the highway, blocking her driveway. Browning claimed to see three people in the van, one of whom she later positively identified as Petitioner. She would also identify the other two individuals as Harry Burke, Petitioner's cousin, and Teresa Rhoades, Petitioner's sister, but she did not see anyone who matched Susan Michelbacher's description. After a few minutes, the van drove away. Two other witnesses would come forward and claim to have seen Petitioner, or someone matching his appearance, either driving or riding in the Michelbacher van.

The van was discovered the next day in the same grocery store parking lot in which Valerie Stapf saw it the day before, but with an additional 150 to 200 miles on the odometer and a scratched exterior. Long brown hair consistent with Petitioner's hair was discovered inside.

On March 21, Michelbacher's body was found in a remote area west of Idaho Falls. She had been raped, shot nine times, and her assailant had also ejaculated in her mouth, either as she was lingering near death or after she had already died. According to a State's serological expert, Petitioner could not be excluded as a source of the semen that was retrieved from the body, while Harry Burke and Michelbacher's husband could be excluded.

The next day, when Petitioner arrived at an acquaintance's house with a large amount of cash, he remarked that he had just "come into some money" and was on his way to Jackpot, Nevada to gamble. A few hours later, he was spotted at a gas station between Idaho Falls and Jackpot, again with a roll of cash. Also around this time, Petitioner's mother, Pauline Rhoades, reported to police that her green Ford LTD had been stolen.

On March 24, two truck drivers saw the Rhoades vehicle parked on a highway median in northern Nevada. A person matching Petitioner's description hurriedly exited the car, fumbled with something brown in his hands, and then jogged off into the sagebrush. A highway patrolman who responded to the accident scene found a.38 caliber handgun laying on the ground near the open door of the car, and ballistics testing would soon confirm that this weapon had fired the bullets that killed Michelbacher.

Idaho authorities were notified that Pauline Rhoades's car had been discovered, and officers proceeded to Nevada armed with a warrant for Petitioner's arrest for an unrelated burglary. Once there, they processed the car for evidence and found, among other items, ammunition that matched the type used in the homicide.

The day after Petitioner abandoned his mother's car, Nevada law enforcement officers arrested him while he gambled at a casino in Wells. Idaho officers Victor Rodriguez and Dennis Shaw arrived shortly thereafter, and as they approached, Petitioner blurted out, "I did it." Upon hearing this, Rodriguez read Petitioner his Miranda warnings. After Petitioner had been transported to a highway patrol substation for processing, Detective Shaw mentioned that if he had arrested Petitioner sooner, three murder victims might still be alive. Petitioner responded to this comment by again saying, "I did it."

The State ultimately charged Petitioner with murder in the first degree, kidnapping in the first degree, rape, robbery, and the infamous crime against nature. A jury found him guilty as charged, and the state court sentenced him to death for murder, death for kidnapping, and fixed life in prison for rape, robbery, and the infamous crime. The court enhanced the sentences by an additional fifteen years for the use of a firearm during the commission of the crimes.

II. STATE AND FEDERAL PROCEDURAL BACKGROUND

In accordance with Idaho's special post-conviction procedure applicable to capital cases, Petitioner sought post-conviction relief before completing the direct appeal. The district court ultimately held an evidentiary hearing and denied relief. The Idaho Supreme Court consolidated the appeal from that decision with the direct appeal and affirmed in all respects. State v. Rhoades, 822 P.2d 960 (Idaho 1992).

Petitioner filed a Petition for Writ of Habeas Corpus in this Court in 1994, which he amended two years later, raising eighteen habeas claims. On March 21, 1997, this Court entered an order dismissing all or part of ten claims, including all claims of ineffective assistance of counsel. (Docket No. 95.) At the same time, the Court entered a separate order denying Petitioner's request for an evidentiary hearing. (Docket No. 94.) Subsequently, the Court permitted Petitioner to delete and replace his second claim, add a new factual allegation to his fourteenth claim, and add an entirely new claim based upon an alleged violation of Petitioner's Fifth and Sixth Amendment rights during the presentence investigation interview (now Claim 18). (Docket Nos. 174, 200.) These amendments are included within the Second Amended Petition, which was filed on September 27, 2001.*fn2 (Docket No. 175.)

While this case was pending, the Ninth Circuit Court of Appeals decided Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001). In that case, the Court of Appeals held that Idaho's forty-two day time limitation for bringing all post-conviction claims, coupled with the state court's failure to appoint new counsel during that time, frustrated the petitioner's right to raise claims of ineffective assistance of counsel in state court. Id. at 535. The Court of Appeals determined that the procedural default of such claims under those circumstances would be excused. In light of Hoffman, this Court reconsidered its earlier decision to dismiss Petitioner's claims of ineffective assistance of counsel, and the parties were allowed to submit supplemental briefing to separate triable issues from issues that could be decided as a matter of law. (Docket No. 222.)

On May 18, 2006, the Court issued a Memorandum Decision and Order denying an evidentiary hearing on most allegations of ineffective assistance of counsel, but the Court reserved its decision in two limited areas. (Docket No. 246, p. 1.) The Court then ordered supplemental briefing on the merits of all non-dismissed habeas claims. The parties have now submitted their supplemental briefing, and Petitioner has lodged numerous documents that he intends to comprise a factual proffer in support of his allegations of ineffective assistance of counsel.

The Court has considered the pleadings, the record, and the parties' briefing, and it is now prepared to rule.

III. HABEAS STANDARDS

Because this case was initiated before the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), it is not governed by AEDPA's provisions. Lindh v. Murphy, 521 U.S. 320, 327 (1997).

Under pre-AEDPA law, the Court must presume that the state court's findings of historical fact are correct and defer to those findings unless there is convincing evidence to the contrary or a lack of fair support in the record. 28 U.S.C. § 2254(d) (1994); Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001). The Court exercises its independent judgment over questions of federal law and must resolve legal issues on the merits under ordinary rules. Summerlin v. Schriro, 427 F.3d 623, 628-29 (9th Cir. 2005).

IV. ANALYSIS OF CLAIMS

Claim 1: Griffin Error

For his first claim, Petitioner alleges that the prosecutor impermissibly commented on his choice not to testify in his own defense. Petitioner contends that these comments violated his privilege against self-incrimination under the Fifth Amendment. Petitioner is not entitled to relief on this claim.

1. Facts

On the day that she was killed, Susan Michelbacher was forced to cash two checks, for a total of $2,000. Within a few days, Petitioner was seen with a substantial amount of cash, and he boasted to friends that he had just "come into some money." In an apparent effort to explain this windfall, Petitioner's counsel presented two witnesses at trial who each testified that Petitioner was employed in the months before the Michelbacher homicide. (Tr. Vol. VIII, pp. 2015-2024.)

While commenting on Petitioner's statement that he had "come into some money," the prosecutor made the following remarks:

When I get paid, when you get paid is that how you describe it that you came into some money? That's the phrase that you use when you inherit some money or come into some other windfall. In today's world when money changes hands legitimately there's generally a document that documents that transaction. A receipt, a check, a passbook saving's account that indicates that transfer of those funds. What did we hear from the defendant yesterday?

[DEFENSE COUNSEL]: Excuse me, Your Honor --

[PROSECUTOR]: I'm sorry --

[DEFENSE COUNSEL]: I'm going to object.

[PROSECUTOR]: I'm sorry, what did we hear from defense counsel in the case-in-chief yesterday? We heard the defendant's uncle take the stand and say, "Well I hired him on occasion to plow snow." [Defense counsel] asked him, "In January or February did you pay him?" "Well, yeah that was a down year, I paid his father fifteen hundred dollars." Not a word about what the defendant may or may not have received, not one word, and no sentence about the month of February. The weekend of the 20th, 18th, 19th, 20th. Not one word. (Tr. Vol. VIII, pp. 2127-2028.) (Emphasis added.)

In addition to these comments, the prosecutor devoted a portion of his closing argument to asking the jury to consider that the defense had failed to explain, rebut, or contradict the evidence that incriminated Petitioner.

Petitioner contends that the prosecutor's statement, "what did we hear from the defendant yesterday," was an impermissible comment on his Fifth Amendment privilege not to testify. He further argues that the prosecutor's more general remarks throughout his closing argument about the failure of the defense to explain or contradict the State's incriminating evidence also amounted to commentary on his silence.

Respondent counters that the prosecutor's isolated reference to "the defendant" was a slip of the tongue that was immediately corrected, and that his other statements were not improper. Respondent contends that even if error occurred, it was harmless. This Court agrees.

2. Standard of Law

In Griffin v. California, 380 U.S. 609, 615 (1965), the United States Supreme Court held that the Fifth Amendment prohibits a prosecutor from asking a jury to infer a defendant's guilt based upon his decision not to testify. Such commentary impermissibly burdens the defendant's exercise of his privilege against self-incrimination. Id. A constitutional violation only occurs, however, when a prosecutor's comment was "manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987). A prosecutor is generally free to argue that the "defense" or "defense counsel"failed to explain away incriminating facts, as long as the defendant is not the only witness who could have provided the missing testimony. Id. at 810; see also United States v. Aldaco, 201 F.3d 979, 989 (7th Cir. 2000). In other words, a "prosecutor may properly comment upon a defendant's failure to present witnesses so long as it is not phrased to call attention to defendant's own failure to testify." United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir. 1982); United States v. Wasserteil, 641 F.2d 704, 709-10 (9th Cir. 1981).

3. Discussion

Initially, this Court concludes that the prosecutor did not violate Griffin or its progeny when he argued that the certain incriminating evidence had not been rebutted, contradicted, or explained. With the exception noted above, these comments were directed at the failure of "the defense" or "defense counsel" to provide a contrary explanation. The prosecutor did not expressly or directly call attention to Petitioner's failure to testify, and Petitioner has not shown that in any of the instances only he could have provided the missing testimony. Therefore, this line of argument would not have naturally and necessarily been taken by the jury as commentary on Petitioner's failure to testify, and his assertions to the contrary are not persuasive.*fn3

This Court also concurs with the state trial court's finding that the prosecutor likely misspoke one time when he said, "what did we hear from the defendant yesterday." (Tr. Vol. VIII, p.2167.) A slip of the tongue does not amount to an intent to call attention to Petitioner's decision to remain silent at trial.

More importantly, the jury had actually heard testimony from the defense on the precise point that the prosecutor was then discussing. Defense counsel called witnesses during their case-in-chief precisely to show how Petitioner might have "come into some money," and the prosecutor's comment was embedded within a discussion about why that testimony was not persuasive. As the Idaho Supreme Court recognized, it is not improper for a prosecutor to point out inconsistencies or weakness in the defendant's evidence. Rhoades, 822 P.2d at 968 (citations omitted).

It is for this reason that the present case is distinguishable from the primary case upon which Petitioner relies, United States v. Sigal, 572 F.2d 1320 (9th Cir. 1978). In Sigal, the defendants did not testify, and the prosecutor thereafter argued that "the defendants did not deny" that they were in charge of the alleged conspiracy. Id. at n.2. On appeal, the Government contended that the prosecutor meant to say "defense attorneys" instead of "the defendants." Id. at 1322-23. The Ninth Circuit noted that the Government's construction "appears to be both logical and consistent when viewed in hindsight," but it concluded that the statement "taken at its face value, as we must assume the jury took it, constituted a comment on the failure of the defendants to testify, and thus was error of constitutional dimension." Id. at 1323. The Court ultimately found that error to be harmless. Id.

Unlike Sigal, the prosecutor in the present case immediately changed his statement in front of the jury from "defendant" to "defense counsel," which was consistent with his other statements throughout the closing argument. Also unlike Sigal, at the time that the statement was made in this case, the prosecutor was discussing infirmities in the evidence that the defense had actually produced. Taken at its "face value," then, the jury in this case would not have naturally understood the prosecutor's comment to relate to Petitioner's failure to testify.

To the extent that any error may have occurred, Petitioner has not carried his burden to show that it had a "substantial and injurious effect or influence on determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 626, 638 (1993); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000). When addressing Griffin claims in a habeas context, the Ninth Circuit has noted that prejudicial error will be found only when the impermissible comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for conviction, and where the evidence could have supported an acquittal. Beardslee v. Woodford, 358 F.3d 560, 587 (9th Cir. 2004).

The prosecutor's comment, "what did we hear from the defendant yesterday," if improper, was not extensive, and rather than stress to the jury that it should infer Petitioner's guilt because of his failure to testify, the prosecutor argued that Petitioner's evidence was not persuasive. As an added protection against prejudice, the trial court instructed the jury that a defendant need not testify and that the jury should draw no adverse inference from the defendant's decision not to take the witness stand. (R. Vol. II, p. 577.) Additionally, though the State's case was based on circumstantial evidence, it was quite strong, and Petitioner has not pointed to compelling evidence that could have supported an acquittal.

In an apparent effort to show prejudice, Petitioner relies on juror affidavits that were filed during the post-conviction proceeding in state court. This reliance is misplaced. Under Rule 606(b) of the Federal Rules of Evidence, juror testimony is admissible only as to (1) whether extraneous prejudicial information was improperly brought to the jury's attention, or (2) whether any outside influence was improperly brought to bear upon any juror. United States v. Rutherford, 371 F.3d 634, 640 (9th Cir. 2004). A court may not consider testimony about the subjective effect that extraneous contact or information may have had on a particular juror or on the decision-making process generally. Sassounian v. Roe, 230 F.3d 1097, 1108-09 (9th Cir. 2000). Therefore, if Petitioner intends for the jurors' affidavits to show the subjective effect that the prosecutor's statement had on their deliberations, this Court is barred from considering it.

At any rate, the affidavits would not help Petitioner. Only three of the non-alternate jurors who agreed to be interviewed recalled the prosecutor's comment; one juror did not believe that it had "big influence," another claimed that it "wasn't much of a factor," and the third did not believe it had any impact. (PCR Vol. I, pp. 203-31; Tr. Vol. I, pp. 170-71.) Yet another juror indicated that he thought he remembered hearing the statement but was unsure. (PCR Vol. I, pp. 239-40.) This is not the kind of compelling evidence upon which this Court could find that Petitioner was prejudiced.

Based on the foregoing, the first claim for relief will be denied.

Claim 2: Right to Jury Factfinding

Petitioner next contends that his Sixth and Fourteenth Amendment rights were violated because a judge, rather than a jury, decided the additional facts that increased his maximum punishment from life to death. This claim is based upon Apprendi v. New Jersey, 530 U.S. 466 (2000), and, more particularly, Ring v. Arizona, 536 U.S. 584 (2002). The Supreme Court has since determined that Ring announced a new rule of constitutional law that is not retroactive to cases that became final before it was decided. Schriro v. Summerlin, 542 U.S. 348, 358 (2004). Because Petitioner's convictions became final nearly eight years before Apprendi and ten years before Ring, this claim is clearly barred under Summerlin, and it will be dismissed on that basis. See Teague v. Lane, 489 U.S. 288 (1989).

Petitioner also alleges that he was deprived of due process and equal protection of the law because the Idaho state courts have not applied the jury trial right from Idaho's constitution to capital defendants. The interpretation of a state constitution is solely a matter of state law, and Petitioner's attempt to transform this issue into a federal question is unavailing. Thus, this aspect of the claim is not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Claim 3: Alleged Brady Violations

Relying on Brady v. Maryland, 373 U.S. 83 (1963), Petitioner next asserts that his constitutional right to due process of law under the Fourteenth Amendment was violated when the prosecution withheld certain evidentiary items from the defense. These items fall into two general categories: (1) material related to an individual named Kevin Buchholz, who had made, and then retracted, incriminating statements about the murder of Stacy Baldwin in Bingham County; and (2) purported impeachment material related to State's trial witness Susan Browning. The Court concludes that Petitioner has not shown a Brady violation.

1. Standard of Law

It is well established that the prosecution has a duty under the due process clause of the Fourteenth Amendment to disclose exculpatory evidence to the defense that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley, 473 U.S. 667, 676 (1985). A meritorious Brady claim contains three essential components: (1) the evidence must be favorable to the accused, either because it is exculpatory or impeaching; (2) the prosecution must have withheld the evidence, either intentionally or inadvertently; and (3) the evidence must be material to guilt or punishment. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Suppressed evidence is material, and its non-disclosure is prejudicial, when there is a reasonable probability that had the evidence been disclosed, the result of the trial would have been different. Bagley, 473 U.S. at 682; Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).

2. Kevin Buchholz

(a) Background

In the early morning hours of February 28, 1987, Stacy Baldwin was abducted from her job as a clerk at the Red Mini Barn convenience store, taken to a remote location, and shot several times, where she eventually bled to death.

Two weeks later, Kevin Buchholz was arrested on a drunk and disorderly charge. As he was being transported to the county jail, Buchholz told the arresting officer, Joseph Love, "I don't care, I was the one who killed the girl at the Mini Barn, why don't you pin that on me--I did it." (Exhibit D admitted at the Post-Conviction Relief Hearing, 1-11-1989.)*fn4 Love prepared a written statement that included this information.

After he had been placed in a holding cell, Buchholz continued his tirade, informing Officer Larry Christian that he had shot the "girl from the Mini Barn" twice in the back, though he had fired at her several times with a.38 caliber or a nine millimeter handgun. (PCR Exhibit A.) He also claimed to have stolen a green pickup, which he abandoned after committing the crime. (PCR Exhibit A.) Some of these details were roughly consistent with other evidence in the case.

Detective Paul Newbold was informed of Buchholz's comments to Officer Christian. Newbold told Officer Christian to prepare a written statement that included Buchholz's confession, which he did. Detective Newbold also related the incident in his own police report:

[A]ccording to Christian, Buchholz stated that he shot the girl at the Mini Barn twice in the back. He also stated that he shot at her several times and hit her in the back twice. Christian also stated that Buchholz further stated that he had stolen a green pickup from Pocatello and that the gun used was either a.38 or 9mm. Larry Christian wrote a statement in regard to this. (PCR Exhibit C.) In his report, Newbold further indicated that Buchholz had recanted his statements, which he claimed had been made out of anger because he believed that Officer Love was "piling up charges." Buchholz also provided the officers with an alibi. (PCR Exhibit C.) The police ultimately did not believe that Buchholz was a viable suspect in the Baldwin homicide. Altogether, at least three police reports were generated in relation to this matter; one each by Love, Christian, and Newbold.

The State prosecuted separate murder cases against Petitioner in Bonneville and Bingham Counties. Before trial in the Bonneville County matters, Petitioner's attorneys requested all police reports pertaining to the Baldwin homicide in Bingham County. As part of discovery, the State turned over Detective Newbold's report, which included the Buchholz "confession," but apparently did not disclose the two additional reports of Love and Christian.

The trial court in Bonneville County eventually ruled that the Michelbacher and Haddon charges would be tried separately. The court also ruled, at Petitioner's request, that evidence related solely to the Baldwin homicide would not be introduced at the Michelbacher trial, and that each case would rise or fall on its own merits. Buchholz was listed as a potential defense witness, but he was in California by the time of trial and did not testify.

When it became apparent during post-conviction proceedings that the additional police reports existed, and that Buchholz had taken and allegedly failed a polygraph examination, Petitioner claimed that the State had not complied with its duty to disclose exculpatory evidence. During an evidentiary hearing, one of Petitioner's trial attorneys, Stephen Hart, testified that although Newbold's report had been disclosed, he had not seen the written statements from Love and Christian until after trial. (PCR Tr. Vol. I, pp. 210, 213.) Buchholz also testified at the hearing. He admitted making some of the comments that had been attributed to him, but he denied others. (PCR Tr. Vol. II, pp. 364-66.) He reiterated that he fabricated the entire confession because he was simply intoxicated and angry at being arrested on what he perceived to be bogus charges. (PCR Tr. Vol. II, pp. 365, 374-75.)

The trial court denied relief, noting that Petitioner had vigorously opposed the admission of evidence from the Baldwin matter and that his new position was inconsistent with that previous stance. The court also determined that the Buchholz confession would have been inadmissible because it was "irrelevant to the criminal proceedings in the Michelbacher matter." (PCR R. Vol. I, pp. 268-69.) On appeal, the Idaho Supreme Court affirmed, concluding that because the State had disclosed the Newbold report, the defense could have conducted additional inquiry into the matter had it chosen to do so. Rhoades, 822 P.2d at 972.

(b) Discussion

Petitioner nearly stumbles out of the gate on the initial requirement that the evidence that was allegedly withheld must be exculpatory or favorable to him in this case. See Strickler, 527 U.S. at 281-82. Aside from the failed polygraph, the Buchholz material relates entirely to the Baldwin homicide, not the Michelbacher case. Petitioner argues that the material is still exculpatory because ballistics tests tended to show that the same person -- or at least bullets fired from the same handgun -- killed both Baldwin and Michelbacher. Thus, according to Petitioner, an alternate suspect in the Baldwin matter would have necessarily been an alternate suspect for the jury to consider at the Michelbacher trial.

Though the Court is skeptical of this argument, it need not ponder the matter for long, as Petitioner's claim fails because he has not shown that any of this allegedly withheld information would have been admissible at the Michelbacher trial, or that its disclosure could have at least led to the discovery of admissible evidence or impeachment material. To the contrary, the state trial court had ruled that evidence that related solely to Baldwin matter would not be introduced at the Michelbacher trial, and the court later specifically found that Buchholz's purported confession to the Baldwin crimes would have been excluded as irrelevant. (PCR R., p. 209.) Likewise, absent a stipulation, polygraph results are inadmissible under Idaho law. State v. Fain, 774 P.2d 254, 256-57 (Idaho 1989). Information that a jury would never hear cannot be material or prejudicial for Brady purposes because, by definition, there is no possibility of a different outcome. See United States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. 1989) (citing United States v. Ranney, 719 F.2d 1183, 1190 (1st Cir.1983)). Petitioner's suggestion that disclosure of the additional police reports and the polygraph result would have triggered a deeper investigation into Buchholz as a possible suspect is speculative. Such speculation will not support a Brady claim. See Wood v. Bartholomew, 516 U.S. 1, 7-8 (1995).

Additionally, while it may be true that the prosecution did not disclose the reports of officers Love and Christian, it did turn over Newbold's report. That report included Buchholz's detailed assertions to Officer Christian that he (Buchholz) shot at "the girl at the Mini Barn" several times with a ".38 or a 9mm," hitting her twice in the back, and that he abandoned a green pickup truck after the crime. (PCR Exhibit C.) It also alerted the defense that "Larry Christian wrote a statement in regard to this." (PCR Exhibit C.) The only missing information is Buchholz's more general statement to Officer Love that he "killed the girl at the Mini Barn," but Petitioner has not explained how this information adds anything of substance to that which the defense already knew. When, as here, the defense is already aware of the essential facts that comprise the allegedly exculpatory information, the prosecution has not committed a Brady violation. Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (citations omitted); Lambert v. Blackwell, 387 F.3d 210, 265 (3d Cir. 2005); Spirko v. Mitchell, 368 F.3d 603, 611 (6th Cir. 2004).

3. Susan Browning

Petitioner next contends that the prosecution failed to turn over Brady material related to the unusual circumstances surrounding vehicle accidents involving one of its trial witnesses, Susan Browning.

Browning was one of several trial witnesses who claimed to have seen Petitioner in the Michelbacher van on the day of her death. During the post-conviction proceeding, defense counsel learned for the first time that Browning had reported a mysterious highway accident that had occurred the day before Petitioner's preliminary hearing. She claimed that as she was driving he car outside of town, the window on the passenger side of her car "exploded" as a "dirty looking green Jeep" passed her. Browning suspected that a gunshot had caused the explosion, and she was afraid that the incident might have been related to her status as a witness in Petitioner's case. Eventually, she stopped at a farmhouse and called a law enforcement officer to report the incident.

Browning also claimed that a similar incident happened about a year later, after Petitioner's trial. This time, however, it was her rear window that shattered and she did not see a vehicle. She called the Idaho State Police to determine if anyone had been firing a weapon in the vicinity on that day, but she did not report the incident to local law enforcement. Defense counsel did not learn about Browning's highway travails until the post-conviction proceeding.

This Court finds Browning's out of court experiences to be extremely tangential to this case. Though it is true that a witness's credibility is always at issue in a trial, Petitioner has not demonstrated how he could have used Browning's statements about these matters as impeachment material. His claim that her bias would have been established by her ill-defined fear that the highway incidents may have somehow been related to this case is equally tenuous. Further, the second incident did not occur until long after the trial, so it could not have been disclosed or used before that time.

Yet even if the Court assumes that the information was favorable to Petitioner in some way and had been withheld by the prosecution or its agents, the Court concludes, for the reasons that follow, that ...


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