The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Currently pending before the Court in this habeas corpus matter is Respondent's Motion for Summary Judgment. (Dkt. 24.) Also pending is Petitioner's "Motion to Dismiss State Motion for Summary Judgment" (Dkt. 29), which the Court construes as a response to Respondent's Motion.*fn1
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 that follow, the Court will grant Respondent's Motion, and the Petition will be dismissed.
The Idaho Court of Appeals recited the relevant facts in this case as follows:
Montoya and his wife, Ina Montoya, had several children while living in Utah. The Montoyas' son, Michael Montoya, had a daughter, L.H., with Linda Hallett. In approximately 1995, Michael and Laura were taken into custody in Utah for drug-related charges. As a result, the Montoyas obtained physical custody of L.H., and her half-sister, C.H., from Utah's Health and Welfare Department, and took the girls to live with them in Heyburn, Idaho. The Montoyas eventually legally adopted L.H. and C.H.
In 2000, C.H. moved out of the Montoya household to live with Hallett, in Oregon. Shortly thereafter, Montoya was charged with lewd conduct involving C.H., based on events occurring in the Montoya household between January of 1997 and March of 2000. At trial, twelve-year-old C.H. testified that Montoya repeatedly sexually abused her when she lived in Heyburn. She stated that Montoya had abused her on several occasions, including penetrating her with his finger, forcing her to perform oral sex, and forcing sexual intercourse. (State's Lodging B-6, p. 2.)
The State charged Montoya with three counts of lewd conduct based specifically on alleged acts of manual-genital, oral-genital, and genital-genital contact with C.H. (State's Lodging A-1, pp. 22-23.) The only witnesses who testified at trial were C.H. and Montoya. (State's Lodging A-2.) Montoya denied that any sexual activity occurred, and implied that C.H. was coached by her mother, Linda Hallett, to fabricate the charges against him so that C.H. could live with Hallett. (State's Lodging A-2, pp. 167-72.)
At the close of the evidence, the trial court instructed the jury that for Montoya to be guilty, the jury must find, in relevant part, that he committed "an act of manual-genital contact or oral genital contact or genital-genital contact or any other lewd or lascivious act upon or with the body of [C.H.]." (State's Lodging B-1; Instruction No. 18.)
(Emphasis added.) Montoya was convicted on all three counts, and he was sentenced to three concurrent terms of life in prison without the possibility of parole. (State's Lodging A-1, pp. 48-64.)
On appeal, Montoya argued that Instruction No. 18 broadened the possible acts for which he could be convicted beyond those specified in the charging document, creating a variance between the charging document and the jury's instructions that deprived him of due process of law. (State's Lodging B-3, pp. 4-14.) The Idaho Court of Appeals agreed that the instruction was erroneous, but it found the error to be harmless after concluding that because of Montoya's general denial, "the jury would not have disagreed as to the commission of any of the acts . . . and would still have found Montoya guilty of each count of lewd conduct." (State's Lodging B-6, p. 8.) Montoya's Petition for Review in the Idaho Supreme Court was denied. (State's Lodgings B-7.)
Montoya next filed a Petition for Writ of Habeas Corpus in this Court, raising five claims for relief, and the Court stayed the case pending the completion of ongoing state court post-conviction matters. (Dkt. 8.) After the stay was lifted, the Court granted Respondent's Motion for Partial Summary Dismissal and dismissed, as procedurally defaulted, all claims in the Petition but the variance claim (Claim 5). (Dkt. 22.) Respondent has now submitted an Answer and a Motion for Summary Judgment as to that claim, and Montoya ...