The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Respondent's Motion for Summary Judgment, filed on May 23, 2011 (Dkt. 26.) The Clerk of Court sent Petitioner the Notice to Pro Se Litigants of the Summary Judgment Rule Requirements (Dkt. 27.) The Court has given Petitioner additional time to file a response (Dkt. 28), but Petitioner has failed to do so. Accordingly, having reviewed the state court record and briefing of Respondent, the Court now considers Respondent's Motion for Summary Judgment.
Petitioner Flavio Rojas, his girlfriend (Ms. Juarez), and Ms. Juarez's daughter (Erika, the victim) lived together during the incidents of lewd conduct that underlie Petitioner's conviction. The incidents occurred during the time span of May 2001 through April 2003. Erika reported the incidents to her mother and to a neighbor, Desiree Hruska. The incidents stopped when Ms. Juarez installed a lock on Erika's door. However, when Erika failed to lock her door one evening, another incident occurred.
After an investigation, an indictment was filed charging Petitioner with two counts of lewd conduct with a minor under sixteen and one count of sexual abuse of a child under the age of 16, and charging Ms. Juarez with failing to report abuse or neglect. (State's Lodging A-1 at 6-9.) An amended indictment was filed during trial, changing some of the dates of the alleged occurrences. (Id. at 74-77.)
Petitioner and Ms. Juarez retained a private attorney, Jon Cox, and they proceeded to jury trial together. (State's Lodgings A-1 to A-5.) Petitioner testified at the trial, but Ms. Juarez did not. Petitioner was found guilty of one count of lewd conduct with a minor under sixteen and one count of sexual abuse of a child under the age of 16, and Ms. Juarez was found guilty of failing to report abuse or neglect. (Id. at 83-86.)
Petitioner's judgment of conviction was entered on July 16, 2004. (State's Lodging A-1 at 105-07.) He was sentenced to nine years fixed with nine years indeterminate on the first count, and five years fixed with five years indeterminate on the second count, with the sentences running concurrently. (Id.)
Petitioner filed a direct appeal, but it was dismissed pursuant to the stipulation of the parties. (State's Lodgings B-2 to B-4.) Petitioner alleges that he did not receive any information from appellate counsel about why the case was dismissed.
Petitioner also pursued a motion for reduction of sentence, which was filed on November 16, 2004. (See reference in State's Supplemental Lodging, Dkt. 15 at 2.) That motion was denied on January 11, 2005. (Id.)
Petitioner filed a post-conviction petition, which was denied by the state district court after an evidentiary hearing. (State's Lodgings C-1 to C-3.) Petitioner filed an appeal that was heard by the Idaho Court of Appeals. (State's Lodgings D-1 to D-4.) The Idaho Court of Appeals affirmed dismissal of the post-conviction action, although part of the opinion relies upon a mistake of fact--that the co-defendants were tried separately--when, in fact, they were tried together. (State's Lodging D-4 at 6-7.) The mistake of fact arises from Petitioner's failure to augment the appellate record with the trial transcript; the only record before the appellate courts was the post-conviction record. (Id. at 1n.1.)
A petition for review and a memorandum were filed with the Idaho Supreme Court, wherein the mistake of fact was not addressed (State's Lodgings D-5, D-6.) The petition for review was subsequently denied by the Idaho Supreme Court. (State's Lodging D-7.) Petitioner alleges that his appellate counsel never sent him a copy of the court's decision when the case was completed.
Petitioner also pursued a second post-conviction action in the state district court (State's Lodging E-1), during which time this federal case was stayed. When that action concluded (State's Supplemental Lodging, Dkt. 15), this case was re-opened. Respondent's Motion for Summary Judgment seeking denial or dismissal of all of Petitioner's claims is now at issue.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriately granted where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Federal Rules of Civil Procedure apply to habeas corpus actions except where application of the rules would be inconsistent with established habeas practice and procedure. Rule 11, Rules Governing Section 2254 Cases. Accordingly, summary judgment motions are appropriate in habeas corpus proceedings where there are no genuine disputes as to any material facts and the moving party is entitled to judgment as a matter of law. Blackledge v. Allison, 431 U.S. 63, 80-81 (1977). Judicial notice will be taken of the court docket in the underlying state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner brings three claims in his Petition for Writ of Habeas Corpus. Respondent argues that the second and third claim are procedurally defaulted, an issue that the Court will address first, because procedural default is a preliminary issue. Respondent also argues that the first claim is subject to dismissal on the merits, which the Court will address last.
PROCEDURAL DEFAULT: CLAIMS TWO AND THREE
Petitioner's second claim is that his trial attorney was ineffective under the Sixth, Fifth, and Fourteenth Amendments "for failing to call numerous key witnesses to testify" on Petitioner's behalf at trial. (Dkt. 1 at 2.) Petitioner's third claim is that his trial attorney was ineffective and he was denied his right to due process when trial counsel failed to advise Petitioner of his right to refuse a psychosexual evaluation at sentencing. (Dkt. 1 at 3.) Respondent argues that both of these claims are procedurally defaulted and subject to dismissal.
Habeas corpus law requires that a petitioner "exhaust" his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it to the highest state court for review in the manner prescribed by state law. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court may deny the claim on its merits, but it cannot otherwise grant relief on unexhausted claims. 28 U.S.C. § 2254(b). The petitioner can satisfy the exhaustion requirement by showing that (1) he has "fairly presented" his federal claim to the highest state court with jurisdiction to consider it, or (2) that he did not present the claim to the highest state court, but no state court remedy is available when he arrives in federal court (improper exhaustion). Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To exhaust a habeas claim properly, a habeas petitioner must "invok[e] one complete round of the State's established appellate review process," O'Sullivan v. Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the alleged constitutional error at each level of appellate review. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Improperly exhausted claims are deemed "procedurally defaulted." Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a particular claim before the Idaho courts, and it is now too late to do so; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts, and it is now too late to do so; or (3) when the Idaho courts have rejected a claim on an independent and adequate state procedural ground. 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)).
Respondent argues that Petitioner did not raise in the Idaho Supreme Court the claim that trial counsel failed to call numerous key witnesses to testify at trial. The only claim raised in the post-conviction appeal brief was an ineffective assistance of counsel claim based on a conflict of interest--that trial counsel, Jon Cox, represented both Petitioner and Ms. Juarez. One of the factual bases for the conflict of interest claim was the allegation that counsel allegedly failed to call key witnesses that would have been helpful to Petitioner's case (State's Lodging D-1 at 15-17), but Petitioner did not present that issue as an independent claim to the Idaho Supreme Court. Accordingly, he cannot do so here. Thus, the Court concludes that this claim is procedurally defaulted.
Respondent argues that Petitioner raised the third claim in a successive post-conviction action, but the claim was dismissed by the state district court because it should have been raised in the first post-conviction action. Petitioner did not appeal dismissal of the claim (State's Lodging E-1 through E-5.) As a result, the Court finds that the third claim is procedurally defaulted, both because the state court found that it was not properly presented, and because it was never appealed.
4. Exceptions to Procedural Default Rule
If a petitioner's claim is procedurally defaulted, the federal district court cannot hear the merits of the claim unless a petitioner meets one of two exceptions: a showing of adequate legal cause for the default and prejudice arising from the default; or a showing of actual innocence, which means that a miscarriage of justice will occur if the claim is not heard in federal court. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).
To show "cause" for a procedural default, a petitioner must ordinarily demonstrate that some objective factor external to the defense impeded his or his counsel's efforts to comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488 (1986). To show "prejudice," a petitioner bears "the burden of showing not merely that the errors [in his proceeding] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." United States v. Frady, 456 U.S. 152, 170 (1982).
If a petitioner cannot show cause and prejudice, he can still bring the claim in a federal habeas petition if he demonstrates that failure to consider the claim will result in a "fundamental miscarriage of justice." McCleskey v. Zant, 499 U.S. 467, 494 (1991). A miscarriage of justice means that a constitutional violation has probably resulted in the ...