The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus case is Respondent's Motion for Summary Dismissal. (Docket No. 12.) Petitioner has filed two responses. (Docket Nos. 23 & 37.) Also pending are several other motions filed by the parties. (Docket Nos. 24, 31, 25 & 37.)
Having reviewed the record, including the state court record, and having considered the arguments of the parties, the Court now enters the following Order granting in part and denying in part the Motion for Summary Dismissal.
This is Petitioner's second federal habeas corpus action. Petitioner's previous action, Olsen v. State of Idaho, CV05-0014-S-EJL, was dismissed without prejudice because he had pending state court proceedings. Petitioner completed his state court actions and re-filed his petition in the present case.
The underlying state criminal case arose when Petitioner, a college engineering student, attended a party where he and another college student he had never met, Cameron Davis ("Davis"), had a confrontation, which ended in Petitioner shooting and killing Davis. Petitioner was later charged by indictment with second degree murder and possession of a deadly weapon in the commission of a felony. (State's Lodging C-1, p. 155.)
Petitioner asserted that the killing was in self-defense and/or a mistake. Prior to trial, Petitioner entered an Alford plea and, as a result, was convicted of one count of voluntary manslaughter and a weapon enhancement. He was sentenced to ten years fixed, with fifteen years indeterminate. Judgment was entered on December 4, 2003. (State's Lodging A-1, pp. 82-84.)
Petitioner filed a state post-conviction action alleging, among other claims, ten claims of ineffective assistance of counsel. All but three claims were summarily dismissed. (State's Lodging C-14.) The state district court held an evidentiary hearing on Petitioner's three remaining claims: that counsel failed to advise him of the elements of the crime, that counsel failed to file a motion to withdraw the guilty plea, and that counsel failed to file a direct appeal and Rule 35 motion upon Petitioner's request. The Court denied relief on the first two claims, but granted partial relief on the third, entering a new order denying Petitioner's Rule 35 motion for reduction of sentence that permitted Petitioner's appeal time to start again. (State's Lodging D-6, pp. 1-2; A-1, pp. 107-110.)
Petitioner appealed the portion of the state court's order denying him relief. Petitioner presented seven issues on appeal before the Idaho Court of Appeals, and, after dismissal was affirmed, Petitioner presented only five issues in his petition for review before the Idaho Supreme Court. (State's Lodgings D-6 through 11.)
As a result of obtaining partial relief in the post-conviction action, Petitioner took advantage of the re-opened appeal time period and raised a claim that the trial court erred in denying his Rule 35 motion for reduction of sentence. The Idaho Court of Appeals affirmed denial of the motion. Petitioner filed a petition for review, which was denied by the Idaho Supreme Court. (State's Lodgings B-1 through B-8.)
Petitioner filed a second Rule 35 motion, this time to correct an illegal sentence. The motion was denied. (State's Lodging E-1.) Petitioner also filed a motion to withdraw his guilty plea under Rule 33, arguing that the plea agreement had been breached by the State, the plea was rendered involuntary when the State requested restitution, the prosecution's witnesses lied to police and the grand jury, and Sarah Moriarity had changed her testimony at sentencing. (State's Lodging E-1.) The state district court denied the motion for lack of jurisdiction. Petitioner appealed denial of both motions, and the Idaho Court of Appeals affirmed denial. Petitioner filed a petition for review with the Idaho Supreme Court, which was denied. (State's Lodgings F-1 through F-7.)
The claims presented in Petitioner's current federal Habeas Corpus Petition are as follows:
1. Trial counsel was ineffective for not investigating false statements and perjured grand jury testimony of state witnesses Brent Leonard and Sarah Moriarity.
2. Trial counsel was ineffective for failing to move to withdraw the guilty plea during sentencing (grounds: false testimony of Leonard and Moriarity), as requested by Petitioner.
3. Trial counsel was ineffective for not informing Petitioner during sentencing or after of the possibility of withdrawing his plea after Moriarity's testimony.
4. The state district court erred in not halting the sentencing hearing to investigate further after Moriarity allegedly falsely testified.
5. Prosecutorial misconduct for using falsified evidence and perjured testimony, and for withholding exculpatory evidence to acquire an indictment and coerce an involuntary plea.
6. Selective and vindictive prosecution for prosecuting Petitioner but not the state witnesses who committed perjury.
7. Trial counsel was ineffective for failing to inform Petitioner of the direct consequences of restitution that accompanied a plea of guilty.
8. The prosecution breached the plea agreement by unilaterally adding a restitution term after the guilty plea had been entered.
9. The state district court erred by breaching the plea agreement by ordering restitution.
10. Counsel was ineffective for coercing an involuntary plea by telling Petitioner that if he pled guilty, he would likely receive a 6-month sentence, and at worst, not more than a 7-year sentence.
11. Counsel was ineffective for failing to inform Petitioner of the elements necessary to provide the crimes he was charged with and those to which he pled guilty.
12. Petitioner's plea was made unknowingly and involuntarily because he never read the indictment, it was never read to him, and he did not know the correct description of the charges to which he pled.
13. The indictment was fatally flawed since it was based on the falsified and perjured testimony of state witnesses Sarah Moriarity and Brent Leonard, and thus the plea was involuntary and invalid.
14. Counsel was ineffective for failing to file an appeal of the sentence when requested.
15. Counsel was ineffective for failing to file an appeal of the conviction when requested.
16. Counsel was ineffective for not moving to withdraw the guilty plea and not moving for a new trial when requested by Petitioner, based on the false statements and perjured grand jury testimony of state witnesses Brent Leonard and Sarah Moriarity.
17. Counsel was ineffective for failing to inform Petitioner of appealable issues that could have been raised on appeal of the sentence and conviction.
18. Counsel was ineffective for failing to inform petitioner of collateral attacks on the conviction including appeal of the conviction, a Rule 33 motion to withdraw the guilty plea, and a Rule 34 motion for a new trial.
19. The conviction is invalid because the strong factual basis the state district court relied upon for an Alford plea was the grand jury transcript which contained the falsified and perjured testimony of state witnesses Moriarity and Leonard.
20. Counsel was ineffective for failing to file a motion for a change of venue despite extensive negative pretrial publicity.
21. Counsel was ineffective for failing to investigate, interview and subpoena witnesses requested by Petitioner, including Andre Lopez, Deangelo Norwood, Heather Woods, and Saam Motlagh.
22. Counsel was ineffective for failing to permit Petitioner to view or hear recordings of interviews conducted by the defense or tapes of police interviews.
23. Counsel was ineffective for failing to submit Petitioner to a psychological evaluation prior to sentencing, despite Petitioner's request.
24. Counsel was ineffective for not objecting to the indictment when Petitioner told him that Moriarity and Leonard had lied during the grand jury hearing; counsel was ineffective for not objecting to the indictment after Moriarity testified at the sentencing hearing that she and Leonard had conspired to lie to police and the grand jury.
25. The prosecution failed to disclose witnesses Dustin Wiekewicz, Nichols McElrea, and Josh Hendrickson, who had been interviewed by police officers and who could provide testimony proving Petitioner's innocence.
26. The prosecution engaged in misconduct by withholding from the defense exculpatory evidence including the testimony of Moriarity that state witnesses colluded to lie to police and the grand jury and not disclosing witnesses Nichols McElrea and Josh Hendrickson.
27. The prosecution's entry of evidence of Petitioner's bad acts deprived Petitioner of a fair trial and sentencing hearing.
28. The firearm enhancement constitutes double jeopardy.
29. Counsel was ineffective for not fully preparing a defense to the State's witness Jade Bowen.
30. Counsel was ineffective for failing to object to continuing with the sentencing hearing after the prosecution's request for restitution and after Moriarity's testimony.
31. Petitioner is actually innocent of his conviction because he did not intend to harm or kill the victim, and he did not act willfully in a heat of passion or upon a sudden quarrel.
32. The sentence is flawed and illegal because the sentence is for a crime that does not literally exist within the Idaho Code, and thus, the court lacked jurisdiction to enter it.
Petitioner filed a Motion for Extension of Time to Respond to Respondent's Motion for Partial Summary Judgment. (Docket No. 24.) Good cause appearing, the Motion is granted. Petitioner's Response filed at Docket No. 23 is considered timely.
Respondent filed two Motions for Leave to File Excess Pages, based on the large number of claims that needed to be addressed. (Docket Nos. 31 & 35.) Good cause appearing, the Motions are granted. The Court has ...