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David Dutt v. Timothy Wengler and Johanna Smith

February 13, 2012


The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge


In his federal Habeas Corpus Petition, filed on November 29, 2010, Petitioner asserts that his trial counsel, Dennis Weigt, performed ineffectively when he failed to call witness "Bob" Canada to testify for the defense at trial. (Dkt. 1.) Pending before the Court are the parties' cross-motions for summary judgment. (Dkt. 11, 13.) The motions are now fully briefed and ripe for adjudication. Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 5, 6.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

Having fully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.


On January 30, 2001, Petitioner David Dutt, then twenty-seven years old, was charged by indictment with three counts of lewd conduct with a minor under sixteen, in violation of Idaho Code § 19-1508, for incidents of manual/genital contact, oral/genital contact, and genital/genital contact with his twelve-year-old stepdaughter, S.T., all occurring in 1999. S.T.'s mother, Terry Dutt, who was nine years older than Petitioner (her husband), was charged with one count of sexual abuse of a child under sixteen in violation of I.C. § 19-1506 and one count of failing to report child abuse in violation of I.C. § 16-1619. (State's Lodging A-1, pp.7-10; A-2, p. 607.)

Petitioner was represented by Attorney Dennis Weigt at trial, and Terry Dutt was represented by Attorney Kerri Cobb-Hamilton. The Dutts were tried together in the Fourth Judicial District Court in Boise, Idaho, before the Honorable Thomas F. Neville.

S.T., fifteen years old and in the tenth grade in high school at the time of the trial, testified in great detail about the sexual contact she had with Petitioner. (State's Lodging A-2, pp. 531-692.) Respondent has outlined the details of S.T.'s testimony accurately in the Statement of Material Facts, and the Court will not repeat the details here, except regarding the "Kuna Caves" incident which is the subject of Petitioner's claims. (Dkt. 13-1.)

S.T. testified that, in the summer of 1999, she and Petitioner went to Meridian to get a man named Bob and his son to travel to the Kuna Caves with them. (State's Lodging A-2, pp. 563-66.) S.T. and Petitioner rode together, while Bob and his son followed behind them in a separate vehicle. (Id.) They never found the Kuna Caves, but instead stopped at a lake or river. (Id., p. 567.) On the drive home, Bob and his son again followed S.T. and Petitioner in a separate car. (Id.)

At trial, S.T. testified that, during the return trip from the Kuna Caves, Petitioner said that he wanted her to "give him head," and he "put his hands down [her] pants and [she] put [her] mouth on his penis." (Id., p. 568.) She testified that, prior to this incident, Petitioner had ejaculated in her mouth in the bathroom of their home. (Id.) S.T. testified that, during the Kuna Caves trip, she "gagged" because "it went down too far," and she "threw up," with most of the vomit going outside the car, which she later cleaned, telling her mom she had been carsick. (Id., p. 569.) Petitioner testified at trial that he and S.T. had taken a trip searching for the Kuna Caves with Bob and his son, but Petitioner denied the sexual allegations and the vomiting. (Id., pp. 929-34.)

After a jury trial lasting from November 6, 2001, to November 9, 2001, Petitioner was found guilty of the three counts of lewd conduct, and Terry Dutt was found guilty of failing to report child abuse. Petitioner's judgment of conviction was entered on December 24, 2001. (State's Lodging A-1, pp. 81-84.) Petitioner completed a direct appeal, with the Idaho Court of Appeals affirming the convictions and sentences, and the Idaho Supreme Court denying the petition for review. (State's Lodgings B-1 to B-8.)

On December 8, 2003, Petitioner filed a pro se post-conviction relief application that included a claim of ineffective assistance of counsel, based on his allegation that his trial counsel failed to "bring germane witnesses." (State's Lodging, C-1, pp. 4-9.) Judge Neville also presided over the post-conviction matter. In that action, Petitioner offered two slightly different affidavits from John R. "Bob" Canada, a lay witness who had not been called at trial. In the First Affidavit, Canada stated, in pertinent part:

On or about the 7th of November 2001[,] the Ada County Prosecuting Attorney's investigator telephoned me and questioned me about David Dutt. He asked me several personal questions about David's character and what type of person I thought he was. (State's Lodging C-1, pp. 14-15, emphasis added.)

Petitioner later submitted the Second Affidavit, wherein Canada stated:

On or about the 7th of November 2001[,] the Ada County Prosecuting Attorney's Investigator telephoned me and questioned me about David Dutt.

On or about November 8, 2001[,] the Prosecutor's investigator showed up at my house with a subpoena to appear in court the next day; he told me that he wanted me to testify. I complained to the man that I would have to miss work and who was going to pay me for the time off.

I was contacted later that same evening by David Dutt's attorney, who asked me what questions the prosecutor's investigator asked me, thanked me for my time and ended the call.

I reported to the court house the next morning[.] [T]he Prosecutor's investigator who served me the original papers was waiting for me at the entrance of the Courthouse and then escorted me to a room and asked me to collaborate [sic] the Victim's testimony about a trip to Kuna that I took with (my step son) along with David Dutt and his stepdaughter, [S.T.]. I told him that nothing out of the ordinary happened during that day. This disputed the Victim's testimony[.] He left the room, stating he would be back shortly. He came back with Jean Fisher, the Prosecuting Attorney, who asked me what I knew about the trial, I told her I didn't have any information about the trail [sic], I worked and didn't attend. She then began to question me about the Kuna trip, I told her that nothing happened; she asked if I have seen [S.T.] vomit or was aware of oral sex being performed in the car. I told her again that nothing like that happened. I know this because my son who was 15 and myself was [sic] following the car David and [S.T.] were riding in with my 4x4 Blazer, we had a totally clear view into the vehicle and they were not out of our sight for any length of time. Ms. Fisher seemed irritated and started asking me the same questions in different ways, and I continued to tell her that nothing that she was talking about was ever seen by my son and me. Ms. Fisher stopped abruptly, and then stated that she didn't need my testimony, and that I would be sent a check for $7.00 for my time, which I have never received. I was then escorted to my car by two Prosecutor's people, whom were told by Ms. Fisher not to let me talk with anyone, and to make sure I left the premises immediately. As I was being escorted to my car, I ran into Dale Dutt father of David Dutt, I was immediately pushed through the door and was not allowed to converse with Dale Dutt. When I came to the car these escorts demanded my copies of the subpoena paperwork back, which I thought was strange. (State's Lodging C-1, pp.91-92.)

Initially, the state district court denied Petitioner's request for appointment of counsel and dismissed Petitioner's post-conviction application after the State's answer, without an evidentiary hearing. (State's Lodging C-1, pp. 107-09.) On appeal, the Idaho Court of Appeals reversed and remanded the case for appointment of counsel and further proceedings because "Dutt has at least raised the possibility of a valid post-conviction claim, and thus should have been appointed an attorney to assist him." (State's Lodging D-11, p.6.)

After remand, the Ada County Public Defender was appointed counsel for Petitioner. (State's Lodging E-1, pp. 24-27.) Petitioner's counsel filed an amended post-conviction relief application, containing, among other claims, an ineffective assistance of counsel claim arising from trial counsel's failure to present the exculpatory testimony of witness John R. "Bob" Canada. (Id., pp. 37-42.)

The State filed an answer and a motion for partial summary dismissal. (Id., pp. 340-48.) The state district court denied the motion for partial summary dismissal, finding all of the new claims in the amended application properly related back to the original application, but the court issued a notice of intent to dismiss on the merits. (Id., pp. 349-60.) The state district court specifically provided the following notice to Petitioner: Several of Petitioner's claims of ineffective assistance of counsel fall into the category of trial strategy. The fact that defense counsel did not call John R. Canada to the witness stand falls within the category of trial strategy. The decision to call or not call witnesses is within the purview of counsel as a strategic decision. (Id., pp. 353-54.)

Petitioner did not file a response to the notice of intent to dismiss. Thereafter, the state district court dismissed the post-conviction action without an evidentiary hearing. (Id., pp. 361-63.) Petitioner filed a notice of appeal. The case was assigned to the Idaho Court of Appeals. (State's Lodging F-4.)

On appeal, Dutt argued that his post-conviction case should not have been summarily dismissed because "there is a factual issue as to whether counsel's failure to present Canada's testimony was a tactical decision or instead is attributable to inadequate investigation or other deficiency on the part of counsel." (State's lodging F-4, p. 6.) The Idaho Court of Appeals agreed with the district court, citing Petitioner's failure to meet his burden to show the decision about "Bob" Canada was not tactical:

In order to avoid summary dismissal it was Dutt's burden to affirmatively put in evidence that his attorney's decision not to call Canada as a witness was not a legitimate strategy. It is insufficient for Dutt to merely show that his counsel failed to use material impeachment evidence that was readily available. Only Dutt's counsel knows the reason for not using Canada as a defense witness. In circumstances such as this, an affidavit is necessary in order to determine exactly what counsel was thinking when certain decisions were made. Bringing forth an affidavit from Dutt's counsel or some other form of evidence to prove that the decision was not strategic was a responsibility that belonged to Dutt.

Canada's affidavit does not establish that Dutt's trial counsel had inadequate knowledge to make a strategic choice about whether or not to call Canada as a witness. Therefore, the district court did not err when it determined that it was a tactical decision as to whether or not to call Canada as a witness. Dutt has failed to show that there was a genuine issue of material fact as to deficient performance by his trial counsel. Accordingly the district court did not err when it summarily dismissed Dutt's claim of ineffective assistance of counsel. (State's Lodging F-4, pp.6-7) (internal citation omitted).

Petitioner filed a petition for review with the Idaho Supreme Court. That petition was denied, and the remittitur issued on August 17, 2010. (State's Lodging F-8.) Petitioner next filed the Writ of Habeas Corpus in this federal action. There are no disputed material facts, and both parties assert entitlement to summary judgment.


1. Standard of Law

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).

Federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment only when the federal court determines that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances where the state-courts adjudication of the merits:*fn2

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.

When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the "contrary to" test and the "unreasonable application" test. Under the first test, for a decision to be "contrary to" clearly established federal law, the petitioner must show 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).

Under the second test, to satisfy the "unreasonable application" clause of ยง 2254(d)(1), 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 ...

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