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James E. Hebert v. Isci Warden Johanna Smith

July 18, 2011


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


Petitioner filed an appeal of the United States Magistrate Judge's decision of September 24, 2010, to the United States District Court, based on lack of consent, whereupon the Clerk of Court reassigned this case to this Court. Thereafter, the Court informed the parties that the Memorandum Decision and Order of September 24, 2010 (Dkt. 27) would be deemed a Report and Recommendation, and permitted the parties to file objections within twenty (20) days after entry of this Order. Petitioner has filed a Notice of Objection (Dkt. 32), which the Court now reviews.


In the Motion for Partial Summary Dismissal at issue, Respondent argued that a number of Petitioner's claims were procedurally defaulted: Claim One; Claim Two; Claim Three, with the exception of the two sub-parts addressing investigation of defense witnesses; and Claim Four, with the exception of the portion involving the trial judge entering the jury room.

In objection, Petitioner generally argues that he has afforded the state courts many opportunities to correct the constitutional errors in his case, but they have refused to do so. (Objection, Dkt. 32, pp. 2-4.) However, this broad statement is not enough. Rather, the federal habeas corpus statute mandates that Petitioner show each claim was properly exhausted as a federal claim through the level of the Idaho Supreme Court in the manner required by the state court system. 28 U.S.C. § 2254(b)(1).

Claim One

Claim One is that "Petitioner was given an attorney that would not be my voice in court," in violation of the right to access the courts for the redress of grievances, a First Amendment claim. (Petition, Dkt. 3, p. 2.) Having reviewed the state court record, this Court agrees with Judge Boyle's analysis that Petitioner's pro se post-conviction application did not contain this First Amendment claim, and that this claim was not presented by Petitioner's later-appointed counsel to the state district court. (State's Lodging C-1, pp. 1-12 & 40-46.)

The issue was included in Petitioner's pro se appellate brief. (State's Lodging D-5, p. 49.) However, there is no evidence in the record that the Court of Appeals decided the First Amendment claim on the merits on appeal, because the issue was not properly presented or argued to the state district court. (State's Lodging D-8.) Before addressing some of Petitioner's claims on the merits, the Idaho Court of Appeals stated in its opinion, as to the claims it would not address:

Some of Hebert's assignments of error were not alleged in his original post-conviction application or in his amended post-conviction application or were not argued before the district court. See Small v. State, 132 Idaho 327, 332, 971 P.2d 1151, 156 (Ct. App. 1998) (refusing to address post-conviction claims on appeal that were not presented first before the district court). Therefore, we will address only Hebert's assignments of error that are legitimate, supported by argument and authority, and properly preserved for appellate review. (D-8, p. 3.)

Claims that are not properly presented to the state district court and are rejected by the state appellate courts on adequate and independent procedural grounds are deemed procedurally defaulted on federal habeas corpus review. Ford v. Georgia, 498 U.S. 411, 422-24 (1991). See Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). If the procedural bar rests on federal grounds or is intertwined with federal grounds, it is not an "independent" state ground, and a federal court may properly review the matter. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.), cert. denied, 540 U.S. 938 (2003). "A state law ground is so interwoven if the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed." Id. at 581 (internal citations and punctuation omitted).

To be an "adequate" state ground, the procedural bar must be one that is "'clear, consistently applied, and well-established at the time of the petitioner's purported default." Martinez v. Klauser, 266 F.3d at 1093-94 (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)); see also Lee v. Kemna, 534 U.S. 362 (2002).

The Martinez Court explained that when there is "an absence of prior authority supporting the [state court's] decision" and the decision appears "contrary to [state] law," such a decision does not rest on a "clear, consistently applied, and well-established" state procedural rule, and the procedural default may not be applied to bar consideration of the merits of a petitioner's claim in a federal habeas corpus action. Id.

A state procedural rule is not automatically "inadequate" under the adequate state ground doctrine-and therefore unenforceable on federal habeas review-because the state rule is discretionary rather than mandatory. Beard v. Kindler, 130 S.Ct. 612, 618 (2009); Walker v. Martin, 131 S.Ct. 1120, 1125 (2011). The Walker Court reiterated that a "rule can be 'firmly established' and 'regularly followed' . . . even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." 131 S.Ct. at 1128 (citing Kindler, 130 S.Ct. at 618). However, a "state ground, no doubt, may be found inadequate when 'discretion has been exercised to impose novel and unforeseeable requirements without fair or substantial support in prior state law,'" or, in other words, "in a surprising or unfair manner." Walker, 131 S.Ct. at 1130 (citation omitted).

In Petitioner's case, the Idaho Court of Appeals cited to Small v. State for the principle that the appellate courts could properly refuse to address post-conviction claims on appeal that were not presented to the district court. There is nothing in the record or in its independent research of this issue that convinces the Court that this ground cited by the Court of Appeals is not adequate. In Person v. State, 210 P.3d 561 (Idaho Ct. App. 2009), the Idaho Court of Appeals described the Small rule as "the general rule that issues ...

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