The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Earlier in this matter, the Court granted in part Respondent's Motion to Dismiss (Dkt. 36) because Petitioner's claims are procedurally defaulted. The Court conditionally denied the motion in part to give Petitioner an opportunity to show that the cause and prejudice or miscarriage of justice exceptions should be applied to his case. Petitioner has been provided with an additional part of the state court record (Dkt. 48), and has filed his Response to the Court Order (Dkt. 49).
Having reviewed the parties' briefing, the record in this matter, and the state court record, the Court enters the following Order.
CAUSE AND PREJUDICE AND MISCARRIAGE OF JUSTICE
In his state appellate brief, Petitioner summarized the history of his case as follows:
Mr. Hugill [Petitioner] was charged with aggravated battery and burglary. (R., pp. 5-6.) Regarding the aggravated battery charge, the Information alleged that Mr. Hugill committed a battery and caused great bodily harm upon Todd McBride. (R., p. 5.) Mr. Hugill proceeded to trial, but the jury was deadlocked and unable to return a verdict. (R., p. 61.) Mr. Hugill subsequently entered an Alford plea to the aggravated battery charge. (R., pp. 90-91.) Mr. Hugill then moved to withdraw his plea, asserting that he maintained his innocence at the change of plea hearing by admitting only that there were facts sufficient to support a conviction, and that he was under the influence of medication that clouded his judgment at the time he entered his plea. (R., pp. 96-99.) The district court denied the motion. (Tr., p. 63, L.1.) The district court imposed a unified sentence of thirteen years, with five years fixed. (R. pp. 118-120.) Mr. Hugill timely appealed. (R., p. 124.) (State's Lodging D-23.)
The Idaho Court of Appeals affirmed the district court's denial of the motion to withdraw the guilty plea. (State's Lodging B-5 .) Petitioner filed a petition for review with the Idaho Supreme Court, which was denied on September 22, 2006. (Petition, Dkt. 3 at 3.)
Petitioner filed a state post-conviction application on May 14, 2007. (State's Lodging D-1.) During Petitioner's post-conviction matter, the Court appointed new conflict counsel, John Stosich, to represent Petitioner. At the time of the first hearing on the State's motion for summary dismissal, Mr. Stosich had not filed a notice of appearance and had not received notice of the hearing. As a result, the hearing was vacated and reset to November 2, 2007. (State's Lodging, D-21.) Mr. Stosich attended and argued on behalf of Petitioner at the November 2, 2007 hearing.
At the November 2 hearing on the motion to dismiss the post-conviction application, the State argued that (1) Petitioner had already made substantially the same argument in his prior motion to withdraw his guilty plea, (2) the state courts had found Petitioner had presented insufficient evidence to support a claim that he was incompetent based on his prescription medication argument, and, (3) as a result, Petitioner could not reassert the same argument on post-conviction review. (State's Lodging D-36.) At the end of oral argument, Judge Joel Tingey concluded:
I think I'm constrained to follow what's already happened both in district court and on the Court of appeals. That issue's been addressed. I don't think it's appropriate to be addressed again on a post-conviction petition. So on that basis the Court will grant the motion for summary dismissal. (State's Lodging D-36 at 8.)
Here, Petitioner alleges that his attorney, Mr. Stosich, did not give him notice of the November 2, 2007 motion to dismiss hearing, either before or after the hearing. On November 7, 2007, Judge Tingey entered an order granting the motion for summary dismissal. (State's Lodging D-26.) Because Petitioner had not received either the notice or the order of dismissal, he filed a motion to expedite the post-conviction hearing on December 19, 2007, stating "Petitioner has tried on several occasions to contact Court Appointed Counsel to No avail." (State's Lodging D-27.) He also filed a document entitled "Petition and Affidavit for Post Conviction Relief and Amend to Post Conviction." (State's Lodging D-28.)
On April 3, 2008, Petitioner filed a response to the motion to dismiss. (State's Lodging D-32.) On May 27, 2008, Petitioner wrote to the court requesting a reporter's transcript of the hearing. (Dkt. 49 at 23.) On June 2, 2008, the court reporter wrote to Petitioner stating that the court reporter had informed Mr. Stosich to send Petitioner a copy of the transcript, and the court reporter thought Petitioner had received a copy. The court reporter provided Petitioner with a new copy, writing, "It would be easier for me to just go ahead and send a free copy of the transcript to you, which is not the way it's normally done, rather than hassle with trying to get Mr. Stosich to send you a copy. That is HIS job as your attorney to deal with any concerns or requests that you have." (Dkt. 49 at 23, emphasis in original.)
On June 8, 2009, Judge Tingey issued an order stating that Petitioner's pro se petition filed on December 19, 2007, would be considered a motion to reconsider, and that the motion would be denied because it was filed too late. (State's Lodging D-35.) The petition remained dismissed as of November 7, 2007. No appeal was filed because of Petitioner's late notice of the state district court dismissal.
Petitioner filed his federal Petition for Writ of Habeas Corpus (this case) on August 1, 2008. The action was previously stayed to permit Petitioner to complete his final state post-conviction action, described above. After dismissal of that action, Petitioner filed an Amended Petition and this case was re-opened on December 8, 2009.
Upon review of Petitioner's Amended Petition, the Court dismissed
three of Petitioner's claims for the following reasons: (1) the Second
Amendment right to bear arms is not implicated by Petitioner's
participation in a presentence investigation; (2) the Ninth Amendment
does not provide for an independent cause of action;*fn1
and (3) the Eighth Amendment applies only after conviction,
and, further, the Eighth Amendment is not implicated by Petitioner's
participation in a presentence investigation after
On March 29, 2010, Respondent filed a Motion to Dismiss, contending that all of Petitioner's remaining claims are procedurally defaulted. Respondent characterizes Petitioner's claims as follows: (1) ineffective assistance of trial counsel for failing to advise Petitioner of his constitutional rights, specifically, the right to have a competency hearing; (2)(a) lack of a competency hearing because the trial court allegedly knew Petitioner was under a doctor's care and was placed on medication by the county jail prior to trial that was different from his medication from the doctor; (2)(b) Petitioner's trial attorney failed to seek a psychiatric evaluation of Petitioner; (3) Petitioner's trial counsel was ineffective for failing to advise Petitioner of his Fifth Amendment rights and right not to participate in a pre-sentence investigation; (4) Petitioner's plea was not knowing and voluntary because he was taking medication at the time he pleaded guilty; and (5) trial counsel was ineffective for ...