The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus action is Respondent's Motion for Summary Judgment. (Dkt. 19.) The Motion is now fully briefed. Having reviewed the briefing of the parties and the record in this matter, including the state court record, the Court finds that oral argument is unnecessary. Accordingly, the Court enters the following Order denying and dismissing the Petition for Writ of Habeas Corpus with prejudice.
Petitioner's arrest, conviction, and sentence arise from the following set of facts set forth in the Idaho Court of Appeals' opinion on direct appeal, as repeated by the Idaho Supreme Court in its opinion on the petition for review on direct appeal.
Sheahan was arrested for misdemeanor offenses in Shoshone and Kootenai Counties. Fernquist, as co-owner of Access Bail Bonds, posted bail for Sheahan in the aggregate amount of $2800 for Sheahan's release. Sheahan thereafter failed to appear at a pretrial conference for the offenses. The district court issued two bench warrants for Sheahan's apprehension. Under the terms of Idaho's bail statutes, Fernquist was required to have Sheahan appear before the district court within ninety days after Sheahan's missed appearance or risk permanent forfeiture of the posted bail amount.
Fernquist contacted a recovery agent to try to apprehend Sheahan. Fernquist also stopped at Shehan's residence in Pinehurst, Idaho several times searching for Sheahan and left business cards with Sheahan's neighbor. Prior to his attempts to apprehend Sheahan, Fernquist had never attempted to apprehend a bail jumper.
Approximately ten days before the bond's permanent forfeiture, Fernquist made an early morning trip to Sheahan's residence. On this visit, Sheahan shot and killed Fernquist inside the residence. After the shooting, Sheahan eventually went to a friend's house, called 911 and told the dispatcher that he had shot someone who was breaking into his house.
The details of Fernquist's death were disputed at trial. The state's theory of the case was that Sheahan knew that someone would be looking for him because he had failed to appear in court. As Sheahan saw Fernquist coming to apprehend him, Sheahan decided to kill Fernquist. A piece of pipe broken off from other pipe located in Sheahan's garage was found near Fernquist's body. However, it had no fingerprints. Thus, the state suggested that Sheahan placed the pipe near Fernquist to bolster his justifiable homicide claim. Additionally, the state presented evidence that in an incident about five weeks before the shooting, Sheahan had pointed a gun where an officer stood at the threshold of his residence.
Sheahan's theory of the case was that the shooting was justifiable. He stressed that Fernquist was not wearing official clothing that would identify him as an authority figure coming to apprehend Sheahan. Nor did neighbors hear Fernquist announce his presence at the residence. Also, the window in the front door had been broken from the outside. Fernquist had small slivers of glass on his body while Sheahan had none. Thus, Sheahan argued that Fernquist broke in to his residence. (State's Exhibit B-12; State v. Sheahan, 77 P.3d 956, 961 (Idaho 2003)).
At trial, the jury convicted Petitioner of first degree murder. Petitioner was sentenced to a twenty-year fixed term with life indeterminate. Judgment was entered on November 29, 1999.
On direct appeal, Petitioner presented 13 claims of error. (State's Lodging B-1.) The Idaho Court of Appeals vacated the conviction, determining: (1) the jury instruction for "proof beyond a reasonable doubt" misstated the law and was not harmless error; (2) the district court erroneously admitted irrelevant evidence that five and a half weeks before Fernquist was shot, Petitioner had pointed a gun at Officer McDevitt in the doorway of Petitioner's home (the evidence has been admitted to show that Petitioner had a predetermined plan to resist arrest by shooting anyone who came to his home to take him into custody); but (3) the district court properly denied the motion for change of venue. (State's Lodging B-4.)
The State filed a petition for review, asking the Idaho Supreme Court to affirm the original conviction. (State's Lodging B-6.) Petitioner also filed a petition for review asking the Idaho Supreme Court to revisit the district court's denial of the motion for change of venue. (State's Lodging B-5.) Petitioner also sought review of various other claims presented to, but not addressed by, the Idaho Court of Appeals. After granting both petitions for review, the Idaho Supreme Court unanimously affirmed the conviction in State v. Sheahan, 77 P.3d 956 (Idaho 2003). (State's Lodging B-12.)
After direct appeal, Petitioner filed an application for post-conviction relief in the state district court. (State's Lodging C-1, pp. 5-19.) The state district court granted the State's motion for summary dismissal of the application. (Id., pp. 170-76.) Petitioner appealed, and the Idaho Court of Appeals affirmed summary dismissal. (State's Lodging D-4.) The Idaho Supreme Court denied the petition for review and issued its remittitur. (State's Lodgings D-7 & D-8.)
Petitioner next filed a federal pro se Petition for Writ of Habeas Corpus in this action. (Dkt. 3.) The Court appointed counsel Dennis Benjamin to represent Petitioner, who filed an Amended Petition. (Dkt. 5 & 12.)
Currently at issue is Respondent's Motion for Summary Judgment, where Respondent asserts that Claims One and Five are procedurally defaulted (and alternatively subject to denial on the merits), and that Claims Two, Three, Four, and Six were properly exhausted but should be denied on the merits. Petitioner's counsel filed a selective response to the Motion for Summary Judgment, addressing the merits of Claims Three, Four, and Six.
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
A. Standard of Law Governing Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(1)(a). The Federal Rules of Civil Procedure apply to habeas corpus actions except where application of the rules would be inconsistent with established habeas practice and procedure. Rule 11, Rules Governing Section 2254 Cases. Accordingly, summary judgment motions are appropriate in habeas corpus proceedings where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Blackledge v. Allison, 431 U.S. 63, 80-81 (1977).
1. Standard of Law Governing Procedural Default
A federal habeas petitioner must first exhaust his state court remedies as to all of his constitutional claims before presenting them to the federal court on habeas corpus review. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (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 the claim to the highest state court, but no state court remedy is available when he arrives in federal. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To exhaust a habeas claim properly in the state courts, a petitioner must "invok[e] one complete round of the State's established appellate review process," O'Sullivan v. Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the alleged constitutional error at each level of appellate review, see Baldwin v. Reese, 541 U.S. 27, 29 (2004). Improperly exhausted claims are deemed "procedurally defaulted." Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts; or (3) when the Idaho courts have rejected a claim on an independent and adequate state procedural ground.*fn1
If a petitioner's claim is procedurally defaulted, the federal district court cannot hear the merits of the claim unless a petitioner meets one of two exceptions: a showing of adequate legal cause for the default and prejudice arising from the default; or a showing of actual innocence, which means that a miscarriage of justice will occur if the claim is not heard in federal court. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).
2. Discussion of Claim One
Claim One is that Petitioner's Fourteenth Amendment due process rights were violated when the trial court admitted testimony from Officer Todd McDevitt that Petitioner had pointed a gun at McDevitt several weeks prior to the Fernquist killing, even though the court gave a limiting instruction explaining how the evidence was to be considered. On direct appeal, Petitioner raised this issue on state-law grounds only. (State's Lodging B-1, pp. 6-7, 26-31, 48-49; B-7, pp. 36-37; B-10, pp. 27-40). The Idaho Supreme Court likewise addressed the claim as an abuse-of-discretion issue under state evidentiary law. (State's Lodging B-12, pp. 6-8.)
Accordingly, this Court concludes that Petitioner's claim is procedurally defaulted because Petitioner failed to present the claim to the Idaho Supreme Court on federal grounds. Because there has been no showing of cause and prejudice for the default of this claim, nor any showing of actual (factual) innocence, the claim is procedurally defaulted and cannot be heard.*fn2
3. Discussion of Claim Five
Claim Five is that Petitioner was denied his Fifth and Fourteenth Amendment right to due process when the prosecutor repeatedly referred to defense counsel's arguments as misleading, evasive, and untrue in closing argument. Respondent argues that because trial counsel failed to object to the comments, the Idaho Supreme Court was limited to reviewing the statements under its fundamental error doctrine. (State's Exhibit B-12, pp. 14-17.)
Petitioner admitted in his appellate briefing that trial counsel had not objected to the prosecutor's comments, but argued that the comments amounted to fundamental error that denied Petitioner his right to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
At the time Petitioner's case was pending before the Idaho appellate courts, a state court's review of a claim under the fundamental error doctrine can be based on state or federal grounds, see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005).*fn3 Petitioner clearly raised federal grounds in his state appellate briefing. Therefore, the question becomes whether the failure to object at trial is an adequate state procedural bar resulting in procedural default on federal review, or whether a fundamental error review is the equivalent of a review of the claim on its merits. See id. This claim is more efficiently resolved by setting aside the procedural issue and going to the merits, which the Court will address below.
C. Merits of Remaining Claims
Under the Anti-terrorism and Effective Death Penalty Act (AEDPA), the Court cannot grant habeas relief on any federal claim that the state court adjudicated on the merits unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Section 2254(d)(1) has two clauses, each with independent meaning. For a decision to be "contrary to" clearly established federal law, the petitioner must establish that the state court applied "a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Court's precedent." Williams v. Taylor, 529 U.S. 362, 404-06 (2000).
To satisfy the "unreasonable application" clause, the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Williams, 529 U.S. at 413. A federal court cannot grant relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; the state court's application of federal law must be objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). The state court need not cite or even be aware of the controlling United States Supreme Court decision to be entitled to AEDPA deference. Early v. Packer, 537 U.S. 3, 8 (2002).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id.
Under all circumstances, state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Discussion of Claim Two: Reasonable Doubt Instruction
Claim Two is that the reasonable doubt instruction violated Petitioner's Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. The jury instruction at issue stated:
"Proof beyond a reasonable doubt" is proof that leaves you with an abiding conviction of the truth of the charge against the defendant. An abiding conviction is one that would make an ordinary person willing to act in the most important affairs of his or her own life. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof which overcomes every possible doubt. If, based upon your consideration of the evidence, you have an abiding conviction that the defendant is guilty of the crime charged, you must find the defendant guilty. If, on the other hand, you think there is a reasonable doubt as to the defendant's guilt, you must give the defendant the benefit of the doubt and find the defendant not guilty.
(State's Lodging A-2, p. 305.)
To obtain federal habeas corpus relief for errors in the jury charge, a petitioner must show that the ailing instruction so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). In reviewing an ambiguous instruction, the Court inquires "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Boyde v. California, 494 U.S. 370, 380 (1990).
The Supreme Court explained how to apply this standard in Victor v. Nebraska, 511 U.S. 1 (1994):
[T]he proper inquiry is not whether the instruction "could have" been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it. The constitutional question in the present cases, therefore, is whether there is a reasonable likelihood that the jury understood the instruction to allow conviction based on proof insufficient to meet the Winship standard.*fn4 Id. at 6 (emphasis in original; internal citation omitted).
It is well established that an instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record. Cupp v. Naughten, 414 U.S. 141 (1973). This means:
In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would--with a "commonsense understanding of the instructions in the light of all that has taken place at the trial."
Johnson v. Texas, 509 U.S. 350, 367 (1993) (citing Boyde v. California, 494 U.S. 370, 381 (1990)).
In rejecting the reasonable doubt instruction claim in Petitioner's direct appeal, the Idaho Supreme Court relied on State v. Gleason, 944 P.2d 721 (Idaho Ct. App. 1997) (quoting Holland v. United States, 348 U.S. 121, 140 (1954)), for the principle that "[w]hen reviewing a 'reasonable doubt' instruction, '[t]he Constitution does not dictate that any particular form of words be used in advising the jury of the State's burden of proof, so long as 'taken as a whole, the instructions correctly conve[y] the concept of reasonable doubt.'" (State's Lodging No. B-12, p. 4.) The Court found the instruction adequate, reasoning:
The instruction given by the district court adequately states the law for reasonable doubt. The sentence in which the possible doubt language is found states, "There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof which overcomes every possible doubt." In context, the phrase "every possible doubt" is clearly linked to the idea of "absolute certainty." The message to the jury is that doubts that are possible, although not at all reasonable, and that prevent a knowledge to an absolute certainty, do not preclude a juror finding a defendant guilty. The first and last sentence of the paragraph also refer to "reasonable" doubts as those doubts that exonerate a defendant, reinforcing the proper interpretation of the word "possible." This instruction, when taken as a whole, does not lessen the State's burden of proof. (Id. at p. 6.)
Petitioner has made no convincing argument that there is a reasonable likelihood that the jury applied the reasonable doubt instruction in an unconstitutional manner, lessening the State's burden of proof. The Idaho Supreme Court's reasoning is a practical, contextual reading of the instruction, consistent with the mandates of Cupp v.Naughten and Johnson v. Texas.
The Idaho Supreme Court noted in its opinion that the instruction given closely resembles the Federal Judicial Center's Pattern Criminal Jury Instruction 28 (1988).*fn5 The United States Court of Appeals for the Ninth Circuit recently acknowledged that, while other circuits have criticized the Pattern Instruction containing the language Petitioner finds objectionable, no court has "in fact held the use of the instruction to be reversible error." See United States v. Mejia, 597 F.3d 1329, 1340 (9th Cir. 2010). Circuit cases aid a federal district court in whether a state court decision is within the scope of "reasonable" applications of Supreme Court law. Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 1999). Further, the United States Supreme Court has noted that "the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." Victor v. Nebraska, 511 U.S. 1, 5 (1994).
For all of the foregoing reasons, Petitioner has not shown that the Idaho Supreme Court's decision concluding that the reasonable doubt instruction was adequate and appropriate is contrary to, or involved an unreasonable application of, clearly established Federal ...