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Cherry v. Kempf

September 24, 2010


The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge



Pending before the Court in this habeas corpus matter is Respondent's Motion for Summary Judgment. (Dkt. 68.) The parties have consented to a United States Magistrate Judge conducting all proceedings, in accordance with 28 U.S.C. § 636(c). (Dkt. 18.) The Court finds that decisional process would not be aided by oral argument, and it will resolve this matter on the record after consideration of the parties' written submissions.

D. Idaho L. Civ. R. 7.1(d).

For the reasons set forth in this Order, Respondent's Motion for Summary Judgment will be granted and this case will be dismissed.


After a jury trial in state district court, Petitioner was convicted of first-degree murder, aggravated battery, and aggravated assault. (State's Lodging A-3, pp. 545-47.)

The Idaho Court of Appeals recited the pertinent facts supporting these convictions as follows:

According to the State's evidence at trial, [Petitioner] went to the home of his former girlfriend, Susan Foutz, and shot her three times with a rifle as she was sitting in the driver's seat of her car in front of her house. Charles Babb, who was sitting in the passenger's seat, was also injured by one of the bullets. [Petitioner] then entered Foutz's house by shooting the lock off the door. He chased Foutz's roommate out of the house, threatening to shoot her as she ran. Thereafter, [Petitioner] shot himself in the chest [but survived]. (State's Lodging B-11, p. 2.)

The state district court sentenced Petitioner to life in prison without the possibility of parole for murder, thirty years determinate for aggravated battery, and twenty years determinate for aggravated assault. (State's Lodging A-24, pp. 15-17.) These sentences are being served concurrently.

Petitioner filed a timely notice of appeal, but the court reporter failed to complete the trial transcripts for over four years, and the case sat idle in the appellate courts during that time. (State's Lodging B-3.) Petitioner eventually filed a motion to dismiss in the Idaho Supreme Court based on an unreasonable delay in processing his appeal, which was denied. (State's Lodging B-6.) The district court's judgment was affirmed by the Idaho Court of Appeals, and the Idaho Supreme Court denied Petitioner's Petition for Review. (State's Lodgings B-11 and B-15.)

Petitioner next returned to the state district court with an application for post-conviction relief, claiming, among other things, that he was deprived of his right to the effective assistance of counsel. (State's Lodgings C-2, C-8.) The district court summarily dismissed the post-conviction action and thereafter declined to grant Petitioner's request for the appointment of counsel on appeal or to proceed in forma pauperis, concluding that an appellate proceeding would be frivolous. (State's Lodging C-13, p. 1.) The Idaho Supreme Court later dismissed the appeal based on Petitioner's failure to pay the fee for the preparation of the clerk's record. (State's Lodgings D-2, D-3.)

Petitioner initiated the present federal habeas action on October 6, 2005, but the Court stayed the federal matter after Petitioner indicated that he had a second post-conviction action then pending in state court. (Dkt. 10.) In fact, Petitioner waited for nearly another year to submit a second post-conviction petition, which the state court quickly dismissed as successive and untimely. (State's Lodging C-15.) The state court again refused to allow Petitioner to waive the necessary fees to appeal, and the Idaho Supreme Court dismissed the appeal based on Petitioner's failure to pay the necessary fees. (State's Lodging D-10.)

On October 15, 2007, Petitioner submitted an Amended Petition for Writ of Habeas Corpus. (Dkt. 15.) The Court lifted the stay of the federal case, and Respondent filed a Motion for Partial Summary Dismissal. (Dkt. 21.) The Court granted Respondent's Motion, and all claims in the Amended Petition were dismissed as either procedurally defaulted or untimely, except the following claims: (1) Petitioner's Sixth and Fourteenth Amendment rights were violated due to a conflict of interest when one of his appointed attorneys went to work for the county prosecutor's office; (2) Petitioner's statements to police officers were involuntary and should have been excluded even for impeachment purposes; (3) the trial court's admission of prior bad acts evidence violated Petitioner's right to a fair trial and due process; (4) the delay in processing the direct appeal denied Petitioner's right to due process of law under the Fourteenth Amendment; and (5) Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel because (a) counsel failed to meet with Petitioner or discuss the evidence with him sufficiently, and (b) counsel did not subpoena witnesses whom Petitioner wanted to testify on his behalf. (Dkt. 46, p. 13.)

Currently pending is Respondent's Motion for Summary Judgment, in which Respondent argues that he is entitled to judgment as a matter of law because certain remaining claims are procedurally barred and because all claims fail on the merits. (Dkt. 68.) Petitioner has responded to the Motion, and the issues are now ready for adjudication.


1. Exhaustion and Procedural Default

A habeas petitioner must have exhausted his state court remedies with respect to all of his constitutional claims before the federal court can grant relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is designed to promote comity and federalism by giving the state courts an initial opportunity to correct constitutional errors before a state prisoner turns to the federal courts for relief. Duncan v. Walker, 513 U.S. 364, 365 (1995). State court remedies are exhausted when no avenues for relief remain open to the petitioner, but the federal court must also ask whether the petitioner satisfied the exhaustion requirement properly. Boerckel, 526 U.S. at 848. To do so, he must have "fairly presented" his federal claims at each level of the state's appellate review process, giving the state courts a full opportunity to pass on and correct the alleged constitutional errors. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

When a petitioner attempted to raise a constitutional claim in state court, but the state court denied or dismissed the claim after invoking a ground that is independent of federal law and adequate to support the judgment, the claim is considered to be procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A procedural default also occurs when the petitioner never raised the claim in the highest state court and it is now clear that the state court would dismiss any new action on a procedural basis. Gray v. Netherland, 518 U.S. 152, 161 (1996). A federal court cannot hear a defaulted claim absent a showing of legal cause ...

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