The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Respondent Johanna Smith's Motion to Dismiss. (Dkt. 36.) Petitioner Dennis Hugill has filed an Objection to Incomplete Lodged Record and a Response to the Motion to Dismiss. (Dkt. 38 & 39.) Having reviewed the record, including the state court record, the Court finds that oral argument is unnecessary. Accordingly, the Court enters the following Order.
PETITIONER'S OBJECTION TO INCOMPLETE LODGED RECORD
Petitioner asks the Court to expand the record with items from the state court record that Respondent did not lodge. Respondent points out that because Petitioner did not file an appeal from his unsuccessful post-conviction application, there is not a formal "Clerk's record" in the case. Rather, Respondent compiled and submitted only those items that she considered relevant to the question of procedural default, cause and prejudice, and miscarriage of justice.
Petitioner asserts that "the complete case file, and all transcripts and Clerk's records in Bonneville County Case No. CV-2007-2769 and in Case No. CV2004-333, and all appellate court files related to his criminal case" should be lodged with the Court. Petitioner also requests that the original police report be made a part of the record. Petitioner further requests that a copy of the entire record be provided to him, including the order to permit Attorney Rocky Wixom to withdraw from his criminal case.
Because other portions of the post-conviction record that have not been lodged may be relevant to Petitioner's cause and prejudice arguments that his counsel had conflicts of interest or performed ineffectively, as discussed more fully below, the Court will order Respondent to lodge the remainder of the post-conviction record that has been transcribed and provide a copy to Petitioner, and Petitioner will be permitted time to review the record and file a supplement to support his cause and prejudice arguments. Respondent shall also lodge a copy of the original police report and provide a copy to Petitioner if that document is in Respondent's possession.
The Court will also provide the previously-lodged state court records to Petitioner, with the exception of the presentence investigation report, which is not relevant to the preliminary procedural issues at hand. Idaho Criminal Rule 32 prohibits convicted persons from possessing their presentence investigation reports. Because some of Petitioner's claims involve the presentence investigation report, if the case proceeds to the merits, Court will order that the PSI be produced for Petitioner's inspection (rather than possession), and Respondent may argue at that time that the PSI should be produced in redacted form for confidentiality and security purposes.
RESPONDENT'S MOTION TO DISMISS
Petitioner's federal habeas corpus action was previously stayed to permit Petitioner to complete his final state post-conviction action. After doing so, Petitioner filed an Amended Petition and this case was re-opened on December 8, 2009.
Upon review of Petitioner's Amended Petition, the Court dismissed
three of Petitioner's claims for the following reasons: (1) the Second
Amendment right to bear arms is not implicated by Petitioner's
participation in a presentence investigation; (2) the Ninth Amendment
does not provide for an independent cause of action;*fn1
and (3) the Eighth Amendment applies only after conviction,
and, further, the Eighth Amendment is not implicated by Petitioner's
participation in a presentence investigation after
On March 29, 2010, Respondent filed the Motion to Dismiss, contending that all of Petitioner's remaining claims are procedurally defaulted. Respondent characterizes Petitioner's claims as follows: (1) ineffective assistance of trial counsel for failing to advise Petitioner of his constitutional rights, specifically, the right to have a competency hearing; (2)(a) lack of a competency hearing because the trial court allegedly knew Petitioner was under a doctor's care and was placed on medication by the county jail prior to trial that was different than his medication from the doctor; (2)(b) Petitioner's trial attorney failed to seek a psychiatric evaluation of Petitioner; (3) Petitioner's trial counsel was ineffective for failing to advise Petitioner of his Fifth Amendment rights and right not to participate in a pre-sentence investigation; (4) Petitioner's plea was not knowing and voluntary because he was taking medication at the time he pleaded guilty; and (5) trial counsel was ineffective for not advising the trial court that Petitioner could not plead guilty because of his use of medications.
2. Standard of Law Governing Procedural Default
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 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 may deny the claim on its merits, but it cannot otherwise grant relief on unexhausted claims. 28 U.S.C. § 2254(b). The petitioner can satisfy the exhaustion requirement by showing that (1) he has "fairly presented" his federal claim to the highest state court with jurisdiction to consider it, or (2) that he did not present ...