The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus matter is Respondent's Motion for Partial Summary Dismissal. (Dkt. 14.) Also pending are Petitioner's Motion Requesting Leave to File a Response Brief to Respondent's Reply (Dkt. 22) and Petitioner's Motion for Appointment of Counsel (Dkt. 24). The parties have consented to a United States Magistrate Judge conducting all proceedings, in accordance with 28 U.S.C. § 636(c). (Dkt. 12.) The Court finds that decisional process would not be aided by oral argument, and it will resolve these matters on the record after consideration of the parties' written submissions. D. Idaho L. Civ. R. 7.1(d).
For the reasons that follow, the Court will deny Petitioner's Motion for Appointment of Attorney and Motion Requesting Leave to File a Response Brief to Respondent's Reply. The Court will grant in part and deny in part Respondent's Motion for Partial Summary Dismissal, and Claims 1 - 3 will be dismissed with prejudice.
The Idaho Court of Appeals recited the factual background of this case as follows:
During the very early hours of August 20, 1992, a Shoshone County emergency medical technician responded to a report of an automobile accident in which Sheahan had been the driver. According to the emergency technician, Sheahan was aggressive and uncooperative at the scene, and got back into his car and sped away down the Coeur d'Alene River Road. In the car with Sheahan were his brother, Bill, who was in the front passenger seat, and Keith Olson and Perry Padley, who were in the back seat.
Only four minutes later Deputy Sheriff Mitch Alexander encountered Sheahan's car, which had been nearly ripped in two after crashing into a lane barrier. Alexander testified that when he stopped at the scene, he observed Sheahan in the driver's seat of the car and Sheahan's brother in the front passenger seat; both were unconscious. Olson had been partly ejected from the car and was dead. Padley had been completely ejected from the car and was found in the middle of the road. He, too, was dead.
Sheahan and his brother soon regained consciousness; they were stumbling and exuded a strong odor of alcohol. John Rose, who was the Prosecuting Attorney for Shoshone County at the time, arrived at the scene in response to a call from the county sheriff's dispatcher. Rose spoke to deputy Alexander, who identified Sheahan as the person who had been unconscious behind the wheel of the vehicle when he arrived. Rose then directed deputy Alexander to obtain a search warrant to test the blood of Sheahan and his brother. A laboratory analysis of the blood taken showed an alcohol concentration of.16 in each of the men. The presence of marijuana was also detected. (State's Lodging B-4, p.2.)
Based on these events, the State charged Thomas Sheahan with two counts of vehicular manslaughter. He was convicted after a jury trial, and the state court sentenced him to ten years fixed on each count, running consecutively, for a total controlling term of 20 years fixed. (State's Lodging A-1, p. 15.) Sheahan appealed, raising the single issue that the district court erred in allowing former prosecuting attorney John Rose to testify at trial. (State's Lodging B-1, p. 2.) The Idaho Court of Appeals rejected that argument and affirmed the judgment. (State's Lodging B-4.) Sheahan did not seek review in the Idaho Supreme Court.
Sheahan next submitted an application for post-conviction relief in the district court on July 20, 1995, which he later amended, but due to several changes in appointed counsel and other procedural issues the application was not finally resolved until November 2004, when the district court entered an order of dismissal. (State's Lodging C-1, p. 4; C-2, pp. 259-60.) The Idaho Court of Appeals affirmed the dismissal, and the Idaho Supreme Court declined to review the case. (State's Lodgings D-4; D-7.)
Sheahan filed the current Petition for Writ of Habeas Corpus, raising twelve claims for relief, on April 23, 2009. Respondent has responded to the Petition by filing a Motion for Partial Summary Dismissal. (Dkt. 14.) In his Motion, Respondent contends that Claims 1 through 4 were not properly exhausted in the state courts and are now procedurally defaulted. (Dkt. 14-1, p. 6.) Sheahan has responded (Dkt. 17), and the Court is now prepared to rule.
MOTION FOR THE APPOINTMENT OF COUNSEL
As a preliminary matter, Sheahan has requested the Court to appoint counsel to assist him. There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, only if an evidentiary hearing is required in his case, see Rule 8(c) of the Rules Governing Section 2254 Cases, but the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner's ability to ...