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Eugene Ray Cobell v. Warden Johanna Smith

July 18, 2011

EUGENE RAY COBELL PETITIONER,
v.
WARDEN JOHANNA SMITH, RESPONDENT.



The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Currently pending before the Court in this habeas corpus matter is Respondent's Motion for Partial Summary Dismissal.*fn1 (Dkt. 15.) The parties have consented to a United States Magistrate Judge conducting all proceedings, in accordance with 28 U.S.C. § 636(c). (Dkt. 8.) The Court finds that decisional process would not be aided by oral argument, and it will resolve this matter 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 grant Respondent's Motion and dismiss Claim 3 in the original Petition and all of the claims in the Supplemental Petition as procedurally defaulted.

BACKGROUND

In the early morning hours of November 12, 2007, Petitioner, then 72 years of age, forced his 20-year-old grand-niece to engage in sexual activity with him. (State's Lodging B-4, pp. 1-2.) Based on this incident, the State charged Petitioner with one count of rape and one count of penetration by a foreign object, and he was convicted on both counts after a jury trial. The district court sentenced him to concurrent terms of life in prison, with the first ten years fixed. (State's Lodging A-1, pp. 80-81.)

On direct appeal, Petitioner argued that (1) the district court violated his Fifth Amendment rights when it allowed the prosecutor to cross-examine him in a manner that permitted the jury to infer guilt from his previous silence, (2) prosecutorial misconduct deprived him of his Fourteenth Amendment right to due process of law, (3) cumulative error rendered the trial fundamentally unfair, and (4) the district court abused its discretion under state law in sentencing Petitioner to life in prison with ten years fixed. (State's Lodging B-1, pp. 8-32.) The Idaho Court of Appeals found no reversible error and affirmed Petitioner's convictions and sentences. (State's Lodging B-4.) The Idaho Supreme Court declined to review the case. (State's Lodgings B-7.)

Petitioner next filed a Petition for Writ of Habeas Corpus in this Court, raising three claims of constitutional error. (Dkt. 1.) Claims 1 and 2 in the Petition generally correspond to the first two claims that Petitioner raised during his direct appeal in state court. (Dkt. 1, pp. 2-3.) In his third claim, Petitioner contends that his concurrent sentences of ten years to life amount to cruel and unusual punishment, in violation of the Eighth Amendment. (Dkt. 1, p. 3.) This Court conducted an initial review of the Petition and ordered Respondent to submit a response. (Dkt. 5.)

While the federal matter was pending, Petitioner returned to state court and raised numerous claims in a petition for post-conviction relief. (State's Lodging C-5.) The state court eventually dismissed the petition without an evidentiary hearing, and Petitioner did not appeal from that decision. (State's Lodging C-5, p. 3; State's Lodging C-6.) Instead, he lodged a Supplemental Petition in this Court, in which he reiterates the allegations in the original Petition and includes new claims of ineffective assistance of trial and appellate counsel. (Dkt. 12.)

Respondent has now responded to the Petition and the Supplemental Petition by filing the pending Motion for Partial Summary Dismissal. (Dkt. 15.) Respondent claims that Petitioner did not properly exhaust the Eighth Amendment claim in the original Petition (Claim 3) or any of the new claims in the Supplemental Petition in the state courts, and that these claims must be dismissed as procedurally defaulted. (Dkt. 11-1, pp. 5-10.)

Petitioner has filed a response to the Motion (Dkt. 17), which the Court has considered, and the Court is prepared to issue its ruling.

STANDARD OF LAW

Habeas relief is available to prisoners who are being held in custody pursuant to a state court judgment in violation of the Constitution, laws, or treaties of the United States, see 28 U.S.C. § 2254(a), but a habeas petitioner must exhaust all of his remedies in the state courts before a federal court can grant relief on a federal claim. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This means that the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Baldwin v. Reese, 541 U.S. 27 (2004). In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Boerckel, 526 U.S. at 845.

The mere similarity between a state law claim and a federal claim does not constitute fair presentation of the federal claim, and general references in state court to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are likewise insufficient. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (similarity of claims is insufficient); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (appeal to broad principles insufficient).

When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and it is clear that the state court now would refuse to consider it because of the state's procedural rules, the claim is said to be "procedurally defaulted." Gray v. Netherland, 518 U.S. 152, 161 (1996). A habeas claim is also procedurally defaulted when the petitioner actually raised the claim in state court, but the state court denied or dismissed the claim after invoking a state law ground ...


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