The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Currently pending in this habeas corpus matter are Petitioner's Motion for Appointment of Counsel (Dkt. 17) and Respondents' Motion for Partial Summary Dismissal. (Dkt. 8.) 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 set forth below, the Court will deny Petitioner's Motion for Appointment of Counsel, and it will grant Respondents' Motion for Partial Summary Dismissal.
In 2004, Petitioner and a co-defendant, Brandon Hussey, were charged with attempting to rob a taxi driver at gunpoint and shooting at the driver. (State's Lodging A-1, p. 7.) The driver testified that two men approached him, one of whom stuck a gun in the window and demanded money. (State's Lodging A-2, p. 30.) When he saw the gun, the driver sped away and heard gunshots before crashing his taxi into a cement post. (Id. at 34.) The driver later identified Petitioner as the man who had threatened him with a gun and demanded money. (State's Lodging A-2, p. 30.) Petitioner testified at his trial, however, that Hussey brandished the gun and fired the shots. (State's Lodging A-2, pp. 177-78.) Petitioner was found guilty as charged, and the state trial court sentenced him to a unified term of 25 years, with a minimum period of confinement of 10 years, for attempted robbery, and a concurrent term of five years for aggravated assault. (State's Lodging A-1, pp. 127-30.)
Before the direct appeal, Petitioner's counsel filed a motion for new trial based on comments that he had overhead from Hussey's attorney, Stewart Morris, who allegedly said that "he had resolved a case in which his client had shot up a taxicab in an attempted robbery." (State's Lodging A-1, p. 140.) When asked, Morris told Petitioner's counsel that Hussey was the client about whom he was speaking. (Id.) The trial court scheduled a hearing on the motion, but Petitioner's counsel failed to subpoena Morris to testify. (State's Lodging A-5.) The trial court then denied the motion after concluding that the statement attributed to Morris was unreliable and would not be admissible at a trial. (State's Lodging A-5, pp. 56-57.)
On direct appeal, Petitioner raised a single claim, that the trial court abused its discretion in sentencing him. (State's Lodging C-2.) The Idaho Court of Appeals affirmed, and Petitioner's Petition for Review was denied by the Idaho Supreme Court. (State's Lodgings C-5, C-8.)
Petitioner next filed a pro se Petition for Post-Conviction Relief, which he amended with the assistance of counsel, raising numerous claims of ineffective assistance of counsel. (State's Lodging D-1, pp. 1-15, 125-30.) The State filed a motion to summarily dismiss the Petition, and the state court dismissed all but six of the claims. (State's Lodging D-2, pp. 38-45.) After an evidentiary hearing on the remaining claims, the court denied relief. (State's Lodging D-1, pp. 140-150.)
Petitioner appealed, but the Idaho Court of Appeals affirmed. (State's Lodging E-1.) The Court of Appeals noted that because post-conviction counsel had conceded that several claims were meritless or could not be proven at an evidentiary hearing, "of the thirteen claims which were summarily dismissed, we need only address four." (State's Lodging E-4, pp. 2-3.) The summarily dismissed ineffective assistance of counsel claims that the Court of Appeals reviewed were (a) trial counsel's failure to advise Petitioner of trial strategies and instruct him on how to testify, (b) trial counsel's failure to recall a defense witness in surrebuttal, and (c) two ineffective assistance of appellate counsel claims. (State's Lodging E-1, pp. 6-8.) These claims were rejected. (Id.)
The Court of Appeals also addressed, and rejected, one claim that was resolved after the evidentiary hearing; that is, Petitioner's claim that his trial counsel was ineffective at the hearing on the motion for new trial because he failed to subpoena Hussey's trial counsel, Stewart Morris, to testify in support of the motion. (State's Lodging E-1, pp. 8-11.)
Petitioner was granted permission to file a late Petition for Review in the Idaho Supreme Court. In his Brief in Support, he argued only that "the petition should have been granted based on the proof of ineffective assistance of counsel at the new trial motion." (State's Lodging E-8, p. 8.) The Idaho Supreme Court declined to review the case. (State's Lodging E-10.)
On February 23, 2010, Petitioner filed his Petition for Writ of Habeas Corpus in this Court, alleging (1) that he was denied his right to due process of law under the Fifth and Fourteenth Amendments when the state court "summarily and absent adequate notice dismissed several of his post-conviction claims without an evidentiary hearing," and (2) that he was deprived of his Sixth Amendment right to the effective assistance of trial counsel on various grounds. (Dkt. 1, p. 4.) Chief Magistrate Judge Candy W. Dale conducted an initial review of the Petition and ordered the Clerk to serve it on Respondents. (Dkt. 6.)
Respondents have now filed their Motion for Partial Summary Dismissal, in which they argue that Petitioner's first claim is not cognizable in a federal habeas corpus matter and that the second claim is properly exhausted only to the extent that it raises the same claim that was presented to the Idaho Supreme Court. (Dkt. 8, pp. 1-2.) Petitioner has responded to the Motion. (Dkt. 16.) Because not all parties consented to a Magistrate Judge exercising jurisdiction under 28 U.S.C. § 636(c), the case has since been reassigned to the undersigned District Judge. (Dkt. 19.) Petitioner has also filed a Motion for Appointment of Counsel. (Dkt. 17.)
The Court has reviewed the parties' written submissions and the record, and it is now prepared ...