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Daniel M. Deisz v. Idaho Department of Correction

March 22, 2011


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge


Before the Court in this habeas corpus matter is Respondents' Motion for Summary Judgment (Dkt. 15). Respondents have also filed a Motion for Petitioner to Verify Petition for Writ of Habeas Corpus (Dkt. 12) and a Motion for Petitioner to Name Proper Respondent (Dkt. 13). 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 Respondents' motions to verify the Petition and name the proper Respondent, but will grant Respondents' Motion for Summary Judgment, and the case will be dismissed.


On July 19, 2005, four officers with the Kootenai County Sheriff's Department went to Petitioner's home to assist Petitioner's soon-to-be ex-wife in retrieving some of her personal property. (State's Lodging B-4, pp. 1-2.) They announced their presence and attempted, unsuccessfully, to get Petitioner to come out of the house. (Id. at 2.) Two officers then used a key that Petitioner's wife had given them to gain entrance to the home through the garage. When they opened the door, Petitioner shot one officer and pointed his gun at the other, though the officer who was shot was not seriously hurt because he was wearing a bullet proof vest. (Id. at 2-3.)

The State charged Petitioner with attempted first degree murder, aggravated assault, and the use of a deadly weapon in committing these crimes. (State's Lodging A-1, pp. 65-66.) Petitioner filed a motion to suppress, which was denied, and he agreed to plead guilty to a reduced charges of aggravated battery and aggravated assault while reserving the right to appeal the denial of the suppression motion. (State's Lodging A-1, p. 236; State's Lodging A-5, pp. 17-27.) The case proceeded to sentencing. Included within the presentence investigation report was a sentencing recommendation from the victim of Petitioner's aggravated assault. (State's Lodging A-7, p. 2.) He asked the trial court to double the sentence, and he indicated that "fifteen years in prison would be an appropriate sentence." (Id.) The officer who had been shot did not provide a recommendation. (Id.)

At sentencing, Petitioner objected to the trial court's consideration of the victim's recommendation. The court overruled the objection, indicating that it generally construed victim impact statements as merely "input," but noted that it would not consider the victim's attempt to "interpret the law of what the court should do." (State's Lodging A-5, pp. 52-53.) The court then examined the factors for sentencing and concluded that Petitioner was a risk to the public, sentencing him to fifteen years for aggravated battery, with the first ten years fixed, and to a concurrent five years, with two years fixed, for aggravated assault. (State's Lodging A-5, pp. 81-82.)

On appeal, Petitioner argued that the trial court erred in denying his motion to suppress and that the Eighth Amendment prohibited a trial court from considering a victim's recommendation as to the appropriate sentence. (State's Lodging B-1, pp. 3-8.) The Idaho Court Appeals affirmed the trial court's ruling on the motion to suppress and held that while the Eighth Amendment places boundaries on the consideration of victim impact testimony in death penalty cases, that rule did not extend to sentencing by a judge in non-capital cases. (State's Lodging B-4, pp. 9-10.) Petitioner did not seek review of the Court of Appeals' decision in the Idaho Supreme Court.

In his Petition, Petitioner alleges again that "his sentence violates the proscription against victim recommendations on punishment acknowledged in Booth v. Maryland, 482 U.S. 496, 509-09 [sic] (1987); Payne v. Tennessee, 501 U.S. 808, 830 (1991); and their progeny." (Dkt. 1, p. 2.)


Initially, Respondents contend that Petitioner should be required to verify the contents of his Petition. The Petition was signed under penalty of perjury by an attorney, Douglas Phelps, who claims that he is "the attorney representing [Petitioner], and that he is acting on the behalf of [Petitioner] pursuant to 28 U.S.C. § 2242, and that the information contained in this petition is true and correct to the best of his knowledge and belief." (Dkt. 1, p. 2.) Rule 2 of the Rules Governing Section 2254 Cases requires that a petition be "signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242." Habeas Rule 2(c)(5). In the absence of any evidence that Petitioner did not authorize the filing of the Petition, the Court concludes that counsel's verification satisfies the requirements in Habeas Rule 2 and 28 U.S.C. § 2242.

Respondents next argue that Petitioner failed to name a proper respondent. A proper respondent in a habeas action is the petitioner's custodian, unusually the warden, who has the authority to release him if the writ is issued. See Habeas Rule 2(a); Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). The Idaho Department of Correction and the Idaho State Correctional Institution (ISCI) are not proper respondents, but Petitioner also listed the "warden thereof," presumably meaning the warden of ISCI. This Court takes judicial notice that the warden at that institution is Johanna Smith. Because Petitioner named the warden, his Petition does not fail for lack of a proper respondent.


Respondents seek dismissal of Petitioner's habeas claim, arguing that it is untimely, procedurally defaulted, would require the retroactive application of a new rule, and fails on the merits. (Dkt. 15.) Because the Court agrees that Petitioner would be unable to meet the standards for habeas relief on the merits, it will ...

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