The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus action is a Motion for Partial Summary Dismissal filed by Respondent Johanna Smith ("Respondent"). (Dkt. 16.) Petitioner James E. Hebert ("Petitioner") requested two additional extensions of time in which to file his Response. (Dkt. 18 & 23.) Good cause appearing, those motions are granted, and Petitioner's Response is considered timely filed.
The Motion for Partial Summary Dismissal is now fully briefed and ripe for adjudication. Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 9 & 12.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
The Court has considered the parties' arguments contained in the briefing, and has reviewed the record in this matter, including the portions of the state court record provided by the parties. Oral argument is unnecessary. Accordingly, the following Order is entered, granting part and denying in part the Motion for Partial Summary Dismissal. The Court also dismisses other claims and sub-issues pursuant to its authority under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases, because it is clear from the face of the state court record that the claims or sub-issues are procedurally defaulted. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998).
In August 2002, Petitioner was charged with lewd conduct with a minor under sixteen, involving his teenaged step-daughter, S.E. (State's Lodging A-1, pp. 17-18.) In October 2002, Petitioner was charged with sexual battery of a minor child under sixteen with the same victim. (A-1, pp. 28-29.) The cases were consolidated for jury trial in the Second Judicial District Court, Clearwater County, Idaho.
Petitioner was represented by a series of three attorneys during the case: Charles Kovis, Duane Golden, and Jack Hathaway. Mr. Hathaway represented Petitioner at trial. A jury convicted Petitioner of both charges. The trial court then sentenced Petitioner to thirty years fixed with ten indeterminate for the lewd conduct crime, and ten years indeterminate for the sexual battery crime, to be served consecutively. (A-1, pp. 165-67.)
Petitioner filed a direct appeal, raising the issue of whether the trial court erred by denying his motion in limine to exclude testimony regarding uncharged sexual contact between him and the victim. The Idaho Court of Appeals affirmed the conviction, concluding that the evidence was properly admitted under the Idaho Rules of Evidence and that a limiting instruction was properly given. Petitioner filed a petition for review before the Supreme Court of Idaho, which was denied on June 28, 2005, with the remittitur issuing the same day. (B-1 through B-9.)
Petitioner then filed a pro se petition for post-conviction relief, raising twenty-two claims and requesting appointment of counsel. (C-1, pp. 1-13.) Petitioner's appointed counsel filed a motion to amend the petition, which was granted. (C-1, pp. 25-27 & 28.) An amended petition was not filed, but the claims to be presented are set forth in the motion to amend and a pretrial brief that focused on a reduced number of claims. (C-1, pp. 25-27.) Pursuant to the parties' stipulation, the state district court entered a pretrial order ("stipulated order") outlining Petitioner's claims as follows: (1) ineffective assistance of trial counsel for (a) failing to object to the court granting seven rather than ten peremptory challenges during jury selection, (b) failing to file a motion to dismiss on speedy trial grounds under the Constitution and statute, (c) failing to spend sufficient trial preparation time with Petitioner, and (d) failing to object to the trial judge entering the jury room on two occasions; and (2) ineffective assistance of appellate counsel for failing to challenge (a) the length of Petitioner's sentence, (b) the seven peremptory challenge limit, and (c) the speedy trial issue. (C-1, pp. 41-42.) The trial court held an evidentiary hearing, and thereafter relief was denied.
On appeal, Petitioner's appointed conflict counsel, Dennis Benjamin, withdrew from the case because he believed there was only one appealable issue, and Petitioner wished to present additional issues. (D-1 to D-3.) Petitioner then proceeded pro se and filed a brief addressing twenty-two issues. (D-5.) The Idaho Court of Appeals affirmed denial of post-conviction relief, addressing some claims on the merits in detail, and addressing or refusing to address others for lack of merit or on procedural grounds in a more conclusory manner. (D-8.) Petitioner filed a pro se petition for review, which the Supreme Court of Idaho denied. (D-9 & D-10.)
RESPONDENT'S MOTION FOR PARTIAL SUMMARY DISMISSAL
Respondent argues that the following claims are procedurally defaulted and therefore subject to dismissal: Claim One; Claim Two; Claim Three, with the exception of the two sub-parts addressing investigation of defense witnesses; and Claim Four with the exception of the portion involving the trial judge entering the jury room.
A. Standard of Law Governing Summary Dismissal and Procedural Default
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In such case, the Court construes the facts in a light most favorable to the petitioner. In considering dismissal, it is appropriate for the Court to take judicial notice of court dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Habeas corpus law requires that a petitioner "exhaust" his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it as a federal claim to the highest state court for review in the manner prescribed by state law. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court cannot grant relief on that claim, although it does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).
State remedies are considered technically exhausted, but not properly exhausted, if a petitioner failed to pursue a federal claim in state court and there are no remedies now available. O'Sullivan, 526 U.S. at 848. A claim may also be considered exhausted, though not properly exhausted, if a petitioner pursued a federal claim in state court, but the state court rejected the claim on an independent and adequate state law procedural ground. Coleman v. Thompson, 501 U.S. 722, 731-732 (1991). Under these circumstances, the claim is considered "procedurally defaulted." Coleman, 501 U.S. at 731.
B. Discussion of Procedural Default
This Court finds, and thus concludes, that several of Petitioner's claims are procedurally defaulted, meaning that they were not fairly presented at each level of the Idaho state court system. Several of these procedural defaults result from the fact that Petitioner requested, and was granted, counsel in the post-conviction review matter, who then employed a strategy that limited the claims presented. Petitioner originally filed a pro se petition raising twenty-two issues. As memorialized in the stipulated order, Petitioner's counsel appropriately narrowed the claims to be addressed at the evidentiary hearing to four ineffective assistance of trial counsel claims and three ineffective assistance of appellate counsel claims. At the level of the state district court, Petitioner acquiesced to this particular presentation of claims and he did not file an objection with the state district court. As a result, Petitioner is bound by the claims reasonably chosen by his post-conviction counsel.
Petitioner took a different approach before the Idaho Court of Appeals. He was unhappy with the claims selected for appeal by his counsel, and thus his counsel withdrew. As a result of that withdrawal of counsel, Petitioner filed his appellate brief pro se. Therein, he tried to raise some of his original claims that had been "amended out" of the petition by his counsel. However, because they had not been argued to and addressed by the state district court as a result of Petitioner's decision to proceed through counsel, the claims were not properly brought before, or addressed by, the Idaho Court of Appeals.
Other courts, facing similar circumstances where counsel and client do not agree on the claims to be presented to the state courts, have issued well-reasoned opinions addressing how that later affects whether the claims are procedurally defaulted on federal habeas corpus review. To fairly present claims in a circumstance where the petitioner disagrees with counsel's narrowing of claims, a petitioner must take steps on his own, such as seeking leave of court to introduce a supplemental pro se filing containing the additional claims counsel refused to present. See Custer v. Hill, 378 F.3d 968 (9th Cir. 2004) (relying on Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997) (petitioner did not take steps to present his supplemental claims at every level of the state court); Holloway v. Horn, 355 F.3d 707, 715-16 (3d Cir. 2004) (pro se brief, which was supplemental to brief filed by counsel, fairly presented a claim to the state court); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir 1997) ("A petitioner may satisfy the exhaustion requirement by presenting his federal claim in a pro se supplemental brief, even if he has an attorney."); McBride v. Estelle, 507 F.2d 903, 904 (5th Cir. 1975) (a petitioner's filing of a supplemental pro se brief in addition to the opening brief filed by counsel satisfied § 2254's "presentation" requirement, but affirming dismissal on other grounds); Reeves v. Belleque, 2010 WL 3418121 (D.Or. 2010).
Against this backdrop of the applicable law, each claim Respondent argues is procedurally defaulted will ...