The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The merits of the non-dismissed claims in Idaho state prisoner Robin Lee Row's Second Amended Petition for Writ of Habeas Corpus are currently before the Court. After considering the parties' written and oral arguments, and the record herein, the Court concludes that Row is not entitled to habeas relief, and this case will be dismissed.
On February 10, 1992, Robin Row's husband, Randy, and her two children, Joshua and Tabitha, died from carbon monoxide poisoning while they slept in their upstairs bedrooms during an early morning fire at their duplex on Seneca Street in Boise. Investigators would later conclude that the fire had been intentionally set downstairs with a flammable substance that likely burned slowly before igniting a much hotter burning petroleum product. (State's Lodging A-4, pp. 2285-87.) The circuit breaker for the smoke detector was shut off and the furnace fan was set to run continuously, feeding the flames and circulating smoke quickly through the home. (Id. at 2274-75.)
At the time, Row was staying at the home of her close friend, Joan McHugh, and she was not harmed. (State's Lodging A-4, pp. 1297-98, 1317-18.) For the previous several weeks, Row had been telling McHugh and others that Randy was physically abusing her, which she claimed involved serious beatings, kidnapping, and rape. (Id. at 1267-1307.) Row also told her friends that she intended to divorce Randy, and she had recently moved her possessions out of the family home and into a storage unit. (Id. at 1568-69.)
On the night of the fire, Row awakened McHugh around 3:00 a.m. to tell her that she had "a terrible feeling that there was something wrong at her house." (State's Lodging A-4, p. 1318.) McHugh agreed to check on the house with Row. As they approached Seneca Street in Row's car and saw the flashing lights of emergency vehicles, Row told McHugh that there must have been a fire, even though they could not yet see smoke. (Id. at 1322.) Once they arrived and saw that the house was burning, paramedics informed Row that her children and husband had been found dead. (Id. at 1331-32.)
2. The Investigation and Trial
Within days, law enforcement officers learned that Row had lost two other children under suspicious circumstances, and the arson investigation began to focus on her. (State's Lodging C-17, p. 2.) Officers obtained a search warrant for the burned Seneca Street residence, Row's car, her storage unit, and McHugh's home. Inside the storage unit, they uncovered evidence that Row had been embezzling money from the YWCA, where she had recently worked as the manager of a bingo game. (Id. at 2-3.) Officers also found insurance policies on the lives of Randy, Joshua, and Tabitha that totaled over $275,000; Robin Row was the beneficiary of these policies, the last of which had been purchased by her only a few weeks before the fire. (Id.)
It soon became apparent that Row's claims of abuse were either largely or entirely fabricated. For instance, there were no official reports of arrests or charges against Randy, and state welfare agents had never been to the home to give Randy tranquilizing shots after domestic disturbances, as Row had claimed. Investigators later discovered that Row had started a new sexual relationship with Joan McHugh's adult son, John Blackwell, in the weeks before the fire. (State's Lodging A-5, p. 2592.)
On February 13, 1992, Row was arrested and charged with grand theft for stealing from the YWCA. (State's Lodging C-17, p. 3.) She was not yet charged with any crimes associated with the suspected arson, but she remained incarcerated because she could not post a bond on the theft charge. (Id.) An attorney represented her on that charge.
Row soon began to call Joan McHugh from the county jail. During this time, McHugh was in contact with Ada County Sheriff's Detective Gary Raney, and Raney suggested that she should secretly tape her telephone conversations with Row. (State's Lodging C-17, p. 3.) She agreed, and the Sheriff's Office provided the equipment for her to do so. (Id.)
On March 18, Detective Raney suggested to McHugh that she should lie and tell Row that she woke up early on the morning of the fire and came downstairs to where Row was supposedly sleeping, but that she did not see Row. (State's Lodging C-17, p. 2.) When confronted with this scenario, Row said that she could not remember what she was doing at that time. Row v. State, 177 P.3d 382, 386 (Idaho 2008) ("Row III").
By March 20, law enforcement officers believed that they had sufficient evidence to charge Row with murder. At about 11:00 a.m. on that date, a deputy prosecuting attorney signed a criminal complaint charging Row with three counts of murder and presented the complaint to a magistrate judge, who issued a warrant for her arrest. (State's Lodging C-17, p. 12.) At 1:00 p.m., the Sheriff and prosecutors held a joint press conference to announce the filing of these charges. (Id.)
Row had learned that she was being charged with murder, and she called McHugh at about the same time as the press conference. (State's Lodging C-17, p. 12.) McHugh repeated the story about not finding Row in the home on the night of the fire. This time, Row responded that she had been outside speaking with her psychiatrist. (Id.) In a call later that day, McHugh pressed Row about this supposed late night/early morning meeting, but Row refused to say who the psychiatrist was. Row III, 177 P.3d at 386.
McHugh finally told Row that she was working with Detective Raney, and their conversations ceased.
Row was arrested on the murder charges the following Monday, March 23, and she made her initial appearance before a magistrate judge that day. (State's Lodging A-1, pp. 3-5.) The attorney who had been representing Row on the grand theft charge continued to represent her on the new charges at the magistrate court level. (Id. at 22.) After a preliminary hearing, Row was bound over for trial on three counts of first degree murder and one count of aggravated arson. (Id. at 36.) The trial court then appointed the Ada County Public Defender as counsel for Row, and August Cahill and Amil Myshin of that office were assigned to the case. (Id. at 36, 48.)
A jury trial was held from late January to early March of 1993, and the jury returned guilty verdicts on all charges. (State's Lodging A-5, pp. 3562-63.)
The sentencing hearing began on October 19, 1993. (State's Lodging A-6, p. 3672.) The State chose not to offer any additional evidence in aggravation. (State's Lodging A-6, pp. 3685-86.) Defense counsel Cahill and Myshin presented the testimony of three witnesses, in addition to letters written in support of Row, and Row gave an unsworn statement in court. (Id.)
At the conclusion of the hearing, the trial court found that four statutory aggravating circumstances had been proven by the evidence beyond a reasonable doubt:
(1) Row committed multiple murders at the same time, Idaho Code § 19-2515(g)(2); (2) the murders were committed during an arson, making them first degree felony murders, and were accompanied by a specific intent to kill, Idaho Code § 19-2515(g)(7); (3) the murders were committed for remuneration or the promise of remuneration, Idaho Code § 19-2515(g)(4); and (4) Row exhibited an "utter disregard for human life," Idaho Code § 19-2515(g)(6).
The trial court also found several facts in mitigation, including that Row had endured a difficult and abusive childhood, had shown responsibility in the past, did not have an extensive record of violent crimes, was involved in a mutually abusive relationship with Randy, and suffered from various mental, psychological, and personality problems. (State's Lodging A-2, pp. 423-37.) The court weighed all of the mitigating circumstances against the multiple murder aggravating factor and concluded that mitigation did not outweigh that single aggravating circumstance. (Id. at 428-32.) The court declined to engage in a formal weighing assessment for each of the other aggravating factors, concluding that it would be an exercise in futility. (Id. at 432.)
On December 16, 1993, the trial court sentenced Row to death for the murder convictions and to twenty years fixed for aggravated arson. (State's Lodging A-2, pp. 413-433.)
4. Post-Conviction and Direct Appeal
Two months after Row was sentenced, Rolf Kehne and John Adams substituted as conflict counsel for the Ada County Public Defender in the capital post-conviction and appellate proceeding. (State's Lodging A-6, p. 4065.) The trial court ordered the immediate filing of a "tentative or generic" post-conviction petition, as required by Idaho Code § 19-2719, but gave counsel a deadline of 42 days after the trial transcripts were completed to submit a finalized petition. (State's Lodging A-6, p. 4067; State's Lodging B-10, pp. 51, 56.) Kehne and Adams lodged an initial Petition for Post-Conviction Relief on March 17, 1994. (State's Lodging B-10, p. 56.)
Six months passed before the transcripts were finished, but counsel did not file an amended petition by the previously imposed deadline. (State's Lodging B-10, p. 66.) Instead, three months later, they requested another extension of time, which the court granted until June 15, 1995. (Id. at 68, 87.) Kehne and Adams also asked that the court appoint an independent "money judge" to review all motions for the appointment of experts. (State's Lodging B-10, p. 73.) The court denied the request for a money judge but left open the possibility that certain motions that contained privileged matters could be reviewed in camera. (State's Lodging B-12, pp. 15-19.)
In March 1995, counsel filed a motion for an order authorizing $5,000 for a "mitigation specialist," which was denied. (State's Lodging B-12, pp. 33-34.) The denial was without prejudice, however, and the court indicated that it was "willing at a future date to take another look at this if a special showing can be made to the Court with specificity, again within the framework and against the backdrop of a UPCPA hearing."
On June 16, 1995, over one year after they had been appointed, Kehne and Adams filed an Amended Petition on Row's behalf, which included claims that Row had been deprived of her right to the effective assistance of trial counsel. (State's Lodging B-10, p. 121-34.) Two weeks later, the court granted, in part, Row's request for limited discovery and set an evidentiary hearing on the Amended Petition for January 8, 1996, some six months hence. (Id. at 178-79.)
On the day that the hearing was set to begin, Kehne and Adams requested another continuance to follow-up on an earlier CT scan showing that Row's brain may have atrophied. (State's Lodging B-10, p. 85.) The court denied the continuance, and the hearing proceeded as scheduled. (Id.)
August Cahill and Amil Myshin testified about wide-ranging matters related to their representation, with a particular emphasis on the extent of their investigation into mitigating evidence. In an unusual twist, Kehne testified as an "expert" witness, questioned by Adams, and gave his opinion about the reasonableness of trial counsel's investigation. (State's Lodging B-12, pp. 133-177.)
In a Memorandum Decision, the trial court denied all relief. (State's Lodging B-12, pp. 282-297.) On March 18, 1998, the Idaho Supreme Court affirmed Row's convictions, sentences, and the trial court's order denying post-conviction relief. State v. Row, 955 P.2d 1082 (Idaho 1989) ("Row I").
5. The Federal Habeas Proceeding
Row filed a Petition for Writ of Habeas Corpus in this Court in 1999. The Court stayed the federal case, at her request, pending the outcome of a second post-conviction proceeding. That matter was eventually dismissed. Row v. State, 21 P.3d 895 (Idaho 2001) (Row II).*fn1
Row returned to federal court and filed a Second Amended Petition. (Dkt. 293.) The Court has since dismissed the following claims as either procedurally defaulted or Teague-barred: Claim 7 (in part), 13-20, 23-31, 33, 34, 38-41. (Docket No. 417, p. 41.) The Court later denied, in part, Row's Motion for an Evidentiary Hearing, but reserved its final ruling on whether Row would be entitled to a hearing on her claim of ineffective assistance of counsel at her capital sentencing hearing. (Dkt. 472.)
The parties submitted final briefing on the merits of the non-dismissed claims and presented oral argument. (Dkts. 480, 494, 503.) The Court took the matter under advisement, but determined that an evidentiary hearing was necessary on the limited issue of post-conviction counsel's diligence in developing the record on the ineffective assistance of sentencing counsel claim. (Dkt. 509.) The Court then intended to take up whether Row was entitled to a broader evidentiary hearing on the merits of the ineffective assistance of counsel claim. (Id.) In the interim, however, the United States Supreme Court decided Cullen v. Pinholster, 131 S.Ct. 1388 (2011), casting doubt on whether a hearing would be warranted under these circumstances. The Court ordered the parties to submit supplemental briefing on the Pinholster issue, and they have now done so. (Dkts. 538, 539, 542, 543.) For reasons set forth more fully below, the Court concludes that an evidentiary hearing is not necessary, and it will move directly to the merits of all claims.
LEGAL FRAMEWORK FOR HABEAS REVIEW
The provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) are applicable to this case. Under AEDPA, the Court cannot grant relief on any federal claim that the state court adjudicated on the merits, unless the state court's 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). Moreover, a federal habeas court's review under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court's decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id.
When the state court has not adjudicated a federal claim on the merits despite the petitioner's fair presentation of the claim, AEDPA deference is unwarranted and the Court's review is de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Under all circumstances, however, 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).
GUILT PHASE/POST-CONVICTION CLAIMS
The Massiah Claim (Claim 1)
In her first ground for relief, Row contends her recorded statements to Joan McHugh should have been suppressed because they were obtained "despite the commencement of formal criminal proceedings, the knowledge that [she] was represented by counsel and [her] request that counsel be present at any further interviews by the State." (Docket No. 293, p. 12.) The Court previously determined that this claim was properly exhausted only to the extent that Row alleged that her right to counsel had been violated under the Sixth Amendment and Fourteenth Amendments. (Dkt. 417, p. 9.) The Court now concludes that she is not entitled to relief on this claim.*fn2
Row started making calls to McHugh after she had been arrested on the unrelated theft charge, and McHugh taped the calls with the encouragement and assistance of law enforcement officers. See Row I, 955 P.2d at 1085. On March 18, she told Row the lie suggested by Detective Raney about not seeing Row on the morning of the fire, and Row initially said that she could not remember what she was doing at that time. Row I, 955 P.2d at 1085; Row III, 177 P.3d at 386.
Two days later, on March 20, the criminal complaint charging Row with three counts of murder was presented to a magistrate judge, who signed a warrant for Row's arrest. At 1:00 p.m., the prosecuting attorney held a press conference with the Sheriff to announce the filing of the charges. About that same time, Row called McHugh, and McHugh repeated the lie. Row responded that she had been outside speaking with a psychiatrist, whom she refused to name. Row III, 177 P.3d at 386. Row was arrested at the jail the following Monday morning, March 23, and she appeared before a magistrate judge.
Row challenged the admissibility of her statements to McHugh in a pretrial motion to suppress. The trial court denied the motion as it pertained to the "psychiatrist statements," and Row's implausible story that she was outside of McHugh's home speaking with a psychiatrist, whom she could not name, early on the morning of the fire was introduced into evidence against her at trial.
During the post-conviction action, Row claimed that her trial counsel were constitutionally ineffective, in part, because they failed to argue that the delay between the issuance of the arrest warrant on March 20 and Row's initial appearance on March 23 was unreasonable. The trial court denied the claim, and the Idaho Supreme Court affirmed on appeal. Row I, 955 P.2d at 1091.
Respondents have since conceded that Row also fairly presented and properly exhausted a claim that McHugh, acting as a state agent, elicited incriminating statements from Row after formal charging in the absence of Row's counsel (a "Massiah claim"). (Dkt. 409, p. 12; see also Motion Hearing, January 10, 2007.) Although the Idaho Supreme Court's opinion focuses mainly on Row's argument of unreasonable delay, Row must still demonstrate that its denial of relief under any theory is contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable interpretation of the facts in light of the evidence presented in state court. See Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (holding that AEDPA deference applies even to a state court's unexplained and summary denial).
2. Clearly Established Federal Law
A criminal defendant has a right under the Sixth Amendment to the assistance of counsel at all critical stages of a criminal prosecution. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to counsel does not attach, however, until the initiation of "adversary judicial proceedings," whether by way of formal charge, indictment, information, arraignment, or preliminary hearing. United States v. Gouveia, 467 U.S. 180, 187-89 (1984). Adversary criminal judicial proceedings begin only once "the government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified." Kirby v. Illinois, 406 U.S. 682, 689 (1972). This occurs, at the latest, when the defendant is brought before a judicial officer at an initial appearance and learns of charges against her. Rothgery v. Gillispie County, Tex., 554 U.S. 191, 213 (2008). The right is also "offense specific," meaning that it cannot be invoked for charges that have not yet been filed, even if the defendant is in custody and has invoked her right on a different charge. Texas v. Cobb, 532 U.S. 162, 173 (2001); McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).
Once the right to counsel has attached, it then applies to all post-charging interviews with law enforcement officers. Moran v. Burbine, 475 U.S. 412, 428 (1986) (citations omitted). The police cannot circumvent the defendant's right after formal charging by using an undercover agent to deliberately elicit incriminating information from the defendant in counsel's absence. Massiah v. United States, 377 U.S. 201, 206 (1964).
It is clear that Row's pre-existing relationship with an attorney on the unrelated theft charge did not confer a Sixth Amendment right to counsel as to the murder investigationand is therefore immaterial to any statements that she made to McHugh beforeadversary judicial proceedings officially began in this case. See Cobb, 532 U.S. at 173. Row made her incriminating "psychiatrist statements" to McHugh, however, a few hours after the prosecutor had presented a complaint to a magistrate judge charging her with three counts of murder, but before she had been arrested and brought before a magistrate judge for her initial appearance. McHugh was acting as an agent of the police at that time and she elicited the information from Row at Detective Raney's prompting.
The critical issue, then, is whether the Idaho Supreme Court's implicit determination that Row had failed to establish that her Sixth Amendment right to counsel attached before the conversation occurred was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable finding of fact in light of the evidence presented. This Court concludes that it was not.
As an initial matter, the parties appear to disagree about when a complaint was actually filed against Row. Respondents contend that although a complaint was presented to a magistrate judge on March 20, it was not filed with the Clerk of Court until March 23. In support, they point to a copy of a complaint that is included in the lodging of the state court record, which bears a district court file stamp of March 23, 1992 at 10:50 a.m. (State's Lodging A-1, p. 3.) Respondents claim that Row's right to counsel did not ripen under any theory until March 23 at the earliest, after she had made her statements to McHugh. (Dkt. 494, pp. 9-12.)
Row counters that the complaint charging her with murder was filed three days earlier, "at approximately 11:30 a.m. on March 20." (Dkt. 480, p. 59.) The Court finds this interpretation to be consistent with all other parts of the record. As one example, at the post-conviction evidentiary hearing the trial prosecutor admitted into evidence a "probable cause sheet," which he claimed showed on its face that it "was filed on March the 20th, which is the date the complaint was filed, 1992, at 11:29 a.m." (State's Lodging B-11, p. 339)(Emphasis added.)
The state courts also assumed that a complaint was active and pending by March 20. In denying post-conviction relief, the trial court noted that Row made her statements to McHugh "shortly after the time the formal Criminal Complaint charging her with Murder I had been authorized by a magistrate judge at the 'probable cause' hearing." (State's Lodging B-11, p. 289.) The court further indicated that prosecutorial officials held a press conference at "1:00 p.m. that afternoon announcing the filing of the criminal complaint," and that Row made her calls "in response to the knowledgethat a complaint had just been filed." (Id.) The Idaho Supreme Court mirrored the lower court's assessment that the press conference "announc[ed] the filing of a criminal complaint" and wrote that Row had earlier learned that "charges were going to be filedagainst her." Row I, 955 P.2d 1082. This view is further corroborated by the online register of actions from Ada County case of State v. Robin Row, Case No. CR-MD-1992-00002056, or M9202056, which reflects the filing of a criminal complaint and an arrest warrant on March 20, 1992. See www.idcourts.us/repository. It is therefore apparent that a complaint was "filed" in some recognizable form under state law before noon on March 20.
The greater problem for Row is the absence of clearly established federal law setting out a rule that the filing of a complaint in a criminal matter starts formal adversary judicial proceedings under the Sixth Amendment such that the right to counsel attaches at that time. Although the Supreme Court has drawn a bright line at the defendant's initial appearance before a judicial officer, see, e.g., Rothgery, 554 U.S. at 213, it has never squarely addressed whether the right to counsel can attach before then, and the law in the lower courts is not uniform.
On the one hand, the consensus in the federal courts is that the filing of a criminal complaint in the federal system does not initiate adversary judicial proceedings. See, e.g., United States v. Pace, 833 F.2d 1307, 1312 ("[w]e hold that Pace's sixth amendment right to counsel did not attach upon the filing of the complaint by the FBI, the issuance of the warrant of arrest, or Pace's arrest"); see also United States v. Bostic, 545 F.3d 69, 83 (1st Cir. 2008) (collecting and citing cases). This is so because a complaint in the federal system serves almost exclusively as the means of setting out probable cause to a magistrate judge to secure an arrest warrant. Bostic, 545 F.3d at 83. All felony prosecutions then proceed by way of indictment, or, if an indictment is waived, by information. Fed. R. Crim. P. 7.
On the other hand, criminal complaints often carry heavier weight in state prosecutions, and some state courts have concluded that a complaint is a formal charge that triggers the right to counsel under the Sixth Amendment. See People v. Viray, 36 Ca.Rptr.3d 693, 708 (Cal. Ct. App. 2005) (holding that "in this state [a complaint] commits the prosecutor to pursue a criminal conviction" and that the right to counsel attaches at that point); see also State v. Forbush, 796 N.W.2d 741, 747 (Wisc. 2011) (same). Yet other states take a different view. See, e.g., Commonwealth v. Holliday, 882 N.E.2d 309, 325 (Mass. 2008) (reaffirming that "the mere ex parte issuance of a complaint and arrest warrant by a magistrate does not trigger a defendant's Sixth Amendment right to counsel").
Given the lack of settled law, the Idaho Supreme Court was free to chart its own course within the broad parameters outlined by the United States Supreme Court without running the risk that its judgment would be overturned on habeas review. See Anderson v. Alameida, 397 F.3d 1175, 1180 (9th Cir. 2005) (finding the state court's determination that "a police inspector filing a complaint seeking an arrest warrant is not a critical stage that commits the prosecutor to trial" to be a reasonable one). As a result, Row cannot establish that the ...