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Jody Carr v. Warden Carlin

March 1, 2012

JODY CARR, PETITIONER,
v.
WARDEN CARLIN, RESPONDENT.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court are various motions filed by the parties. Having reviewed the motions, responses, replies, and 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.

BACKGROUND

The Idaho Court of Appeals summarized the facts of Petitioner Jody Carr's case as follows:

According to the state's evidence presented at Carr's criminal trial, Carr met S.B. at a bar and the two drove to a secluded location to engage in intercourse. When S.B. exited to the front of the vehicle, Carr ran over her twice. Carr believed S.B. was dead, and left the scene. Carr returned the next morning to make sure he did not leave any evidence and ran over S.B.'s body a third time to make sure she was not still alive. Carr fled to California with his family and was later arrested and returned to Idaho. (State's Lodging D-4, p. 1.)

On February 4, 2004, a warrant was issued for the arrest of Petitioner for kidnaping and aggravated battery. Petitioner was arrested by San Bernardino County Deputy Sheriff Jerry Hughes. (State's Lodging A-4, pp. 2-3.) On February 5, 2004,Twin Falls Police Department Detective Curtis Gambrel arrived in California. He gave Petitioner a Miranda warning and interviewed him. At that time, Petitioner told Gambrel that, on the night in question, he was very drunk and had consensual sex with S.B. Afterward, S.B. exited the car and took off one leg of her pants and underwear to urinate. Petitioner revved up the car, but it lunged forward when his foot slipped off the clutch, whereupon he accidentally ran over S.B. Confused, he made a U-turn to try to find her, and accidentally ran over her again. At that time, he determined that she was dead, and he drove away. He returned to the scene the next morning, and, believing she might be still alive and suffering, ran over her a third time to liberate her spirit from her body. (Id., pp. 3-4 & Exhibit, Report of Jon F. Burke, Ph.D.)

On February 10, 2004, Gambrel interviewed Petitioner a second time in the San Bernardino County Jail. Petitioner related essentially the same story. (State's Lodging A-4, p. 4.) Petitioner was then transported to the Twin Falls County Jail.

On February 16, 2004, Gambrel interviewed Petitioner a third time, whereupon Petitioner substantially changed his story and said that his best friend, Caleb Casey, gave Petitioner and S.B. some methamphetamine because S.B. had requested drugs; Petitioner and S.B. had consensual sex; Casey then tried to rape S.B.; a small fight broke out; and then Casey pushed S.B. out the car door and ran over her twice. Petitioner said he returned to the scene the next day to look for bottles and evidence, and saw S.B. lying face up, but did not run over her. (Id., p. 5.)

Casey was interviewed by Detective Gambrel and Deputy Kelly Hassani on February 16, 2004, and Casey denied having anything to do with the death of S.B. (State's Lodging A-4.) Petitioner was re-interviewed on February 16, 2004, at which time he said he had lied about Casey and again told substantially the same story about the accidental death of S.B. and running over her three times. (Id.)

Petitioner told law enforcement officers where to search for S.B.'s body. She was found after several days, covered in snow, with her pants entirely off her left leg and bunched around her right ankle. (State's Lodging A-4, pp. 5-6.) S.B.'s autopsy revealed that she had several non-fatal blunt trauma wounds consistent with being hit and run over by a car, and that all of the wounds were suffered while she was alive. (State's Lodging A-2, p. 15. ) She was believed to have survived for several hours after the wounds were inflicted, because she died of exposure rather than trauma. (State's Lodging A-4 p. 6; A-2, p. 13.) She had no illegal drugs in her system. (State's Lodging A-4, p. 5.)

The car Petitioner was driving when he fled to California, was towed from California to Idaho, searched, inventoried, and held as evidence for a short time. (State's Lodgings A-1, pp.37-38; C-1, p.166.) When Petitioner's family attempted to retrieve or search the car several weeks later because Petitioner asserted he had hidden exculpatory evidence in it, they found it had been crushed at an Idaho junkyard. (State's Lodging C-1, p. 143.)

Petitioner was charged with first degree murder. The court originally appointed the public defender to represent Petitioner. (State's Lodging A-1, p.21.) However, private counsel Greg Fuller appeared on behalf of Petitioner on March 9, 2005, four months prior to trial. (State's lodging A-4, pp.5-6, 49.)

Petitioner remained in custody at the Twin Falls County Jail for approximately 15 months where he alleges the conditions of confinement were unbearably harsh. To try to reduce the possibility of a fixed life sentence, he pleaded guilty to the charge on June 24, 2005, under a plea agreement that limited the State to arguing that the maximum sentence should be thirty years fixed, with life indeterminate. (State's Lodging A-3, p. 8-9.) Judgment of conviction was entered on October 17, 2005, wherein Petitioner was sentenced to a unified life sentence with twenty-five years fixed. (State's Lodging A-1, pp. 92-93.)

On direct appeal, Petitioner challenged only his sentence, arguing that it was excessive. (State's Lodging B-1.) The Idaho Court of Appeals affirmed Petitioner's conviction and sentence. (State's Lodging B-4.) Petitioner did not file a petition for review with the Idaho Supreme Court, and the Idaho Court of Appeals issued its remittitur on November 16, 2006. (State's Lodging B-5.)

While his direct appeal was still pending, Petitioner filed a pro se application for post-conviction relief in which he asserted that his guilty plea was the product of extreme mistreatment at the Twin Falls County Jail, amounting to coercion; that numerous individuals conspired to cover up the wrongdoing; that his attorney was ineffective; and that various other constitutional violations occurred. He further alleged that he was innocent, but he pleaded guilty only to protect his family from the actual person who did commit the crime, his best friend, Caleb Casey. (State's Lodging C-1.) Petitioner's application was accompanied by a 92-page affidavit that primarily discussed the poor living conditions in the Twin Falls County Jail. (Id., pp.23-117.)

The State filed a motion for summary dismissal of the post-conviction action, contending Petitioner's petition was more properly characterized as a habeas corpus petition. (Id., pp.118-19.) In response, Petitioner filed a motion for counsel and a motion to strike the State's motion, contending his petition "clearly complied with Idaho Code §§19-4901 et seq." (Id., pp.121-24.) The court granted Petitioner's request for counsel and entered an order notifying Petitioner of its intent to dismiss the petition. (Id., pp.126-32.) Petitioner, through counsel, filed amendments to the application for post-conviction relief and responses to the notice of intent to dismiss. (Id., pp. 142-44 & 158- 69.)

A new attorney was appointed to represent Petitioner in the post-conviction matter after his original attorney was appointed as a magistrate judge, and a new district judge was assigned after the original presiding judge, the Honorable John Hohnhorst, passed away. (Id., pp.181-85.) The district court gave the newly-appointed attorney additional time to review the materials previously submitted to determine whether to file any other material. (Id., pp.184-85; C-2, pp.20-23.) Counsel for Petitioner subsequently advised the court "that he did not wish to submit any additional affidavits or briefing and that the Court should determine whether to dismiss the amended petition or grant an evidentiary hearing based upon the current record." (State's Lodging C-1, p.185.)

The court issued an order dismissing Petitioner's post-conviction application. (State's Lodging C-1, pp.181-97.) In its order of dismissal, the court concluded:

This Court has independently re-examined Judge Hohnhort's [sic] Orders and has considered all affidavits and arguments of counsel submitted subsequent to those orders, as well as the Plea Hearing Transcript, the Presentence Investigation, and the Sentencing Hearing Transcript. Having done so, this Court is satisfied that the previous Orders of the Court were properly entered, and, accordingly adopt them as part of its findings and conclusions herein. There is no evidence presented subsequent to these Orders which would alter the conclusion that this matter should not proceed to an evidentiary hearing. (Id., p.192.)

On appeal from the dismissal of his post-conviction petition, Petitioner's statement of issues (filed through counsel) challenged whether the trial court erred in summarily dismissing the post-conviction application without an evidentiary hearing on the following claims: (1) that Petitioner's guilty plea was involuntary; (2) that destruction of evidence by law enforcement officers violated Petitioner's due process rights; and (3) that Petitioner received effective assistance of counsel. (State's Lodging D-1, p. 4.) The Idaho Court of Appeals affirmed the summary dismissal of Petitioner's post-conviction petition. (State's Lodging D-4.) Petitioner filed a petition for review and supporting brief with the Idaho Supreme Court (State's Lodgings D-5, D-6), which the Idaho Supreme Court denied (State's Lodging D-7). The remittitur was issued on January 28, 2010. (State's Lodging D-8.)

The history of Petitioner's federal court actions is as follows. On October 17, 2008, while his post-conviction application was still pending in state court, Petitioner filed his first federal habeas petition, Carr v. Henry, Case No. 1:08-cv-00440-BLW. That petition was dismissed without prejudice after the Court concluded the petition contained only an unexhausted claim and that the appeal of his state post-conviction application was still pending. (Dkt. 22, 23 in Case No. 1:08-cv-00440-BLW.)

In 2009, Petitioner attempted to re-open that case by filing a pleading that was several hundred pages long, but he was directed instead "to file a new Petition for Writ of Habeas Corpus challenging his state court conviction under 28 U.S.C. § 2254." (Dkt. 32 in Case No. 1:08-cv-00440-BLW.)

Petitioner filed a new 133-page Petition for Writ of Habeas Corpus in the present action on May 10, 2010. (Dkt. 3.) In the Initial Review Order, the Court determined that the most efficient way to manage the case would be to allow Respondent to compare the pleading to the state court record to determine whether pre-answer motions on procedural grounds were appropriate. (Dkt. 9.) After reviewing the record, Respondent submitted a Motion for Partial Summary Dismissal, which is now ripe for adjudication. In response, Petitioner submitted a Motion for Summary Judgment. The parties have also submitted various other motions. The Court will first address the pending preliminary motions.

PRELIMINARY MOTIONS

Petitioner has filed a Motion Requesting Pro-Se Leniency. (Dkt. 21). The Motion will be granted, to the extent that Petitioner's filings have been liberally construed.

Petitioner has also filed a Motion Requesting Court Hold Exhibits (Dkt. 22), wherein he notifies the Court that only one copy of his exhibits has been made, and that copy was forwarded to the Court. He requests that the Court consider the one copy for each pending issue and motion, rather than require Petitioner to file multiple copies. Good cause appearing, the Motion will be granted. All of the exhibits have been considered and will remain a part of the official record in this case, though some for a limited purpose, as described herein below.

Petitioner also filed two Motions Requesting Reconsideration of Counsel. (Dkt. 23, 39.) Petitioner argues that a mistake was made because his case was initially assigned to a United States Magistrate Judge. However, in the District of Idaho, all habeas corpus cases begin in the Magistrate Court, pursuant to General Order 237. If the parties do not consent, the case is reassigned to a District Judge, which is what happened in this matter. In any event, the initial assignment of Petitioner's case to a Magistrate Judge has nothing to do with whether Petitioner should be appointed counsel. Having reviewed the record, the Court finds that the claims are not particularly meritorious under the high standard of law governing habeas corpus, and that counsel would not be helpful to the Court in determining the claims and issues at hand. As a result, the Motions will be denied.

Petitioner has filed a Motion Requesting Leave of the Court to Allow Petitioner to File Exhibit 6000-A-1 into the Court. (Dkt. 24.) Petitioner wishes to have this Court consider a state district court minute entry regarding the 2009 criminal conviction of Detective Curtis Warren Gambrel, to whom Petitioner gave various inculpatory statements after arrest. The minute entry documents Gambrel's guilty plea to felonies arising from incidents involving a Twin Falls area nurse, Jan Sund, who wrote prescriptions of Hydrocodone and Oxycodone to patients, including Gambrel, after which the patients would keep half of the medication and return half to Sund. Gambrel was accused of, and pled guilty to, criminal charges related to his part in the prescription drug fraud scheme. (Dkt. 34, Exhibit 2000-A.)

Petitioner states that evidence of Detective Gambrel's 2009 conviction is newly discovered, as he did not learn of the conviction until February 2011, and he could not have accessed the record at an earlier date, due to Petitioner's imprisonment.

The record of Detective Gambrel's conviction was never presented to the state court in support of Petitioner's claims during state court post-conviction proceedings, which concluded in late 2009. The United States Supreme Court has recently clarified "that 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). The Court rejected, as an unwarranted "assumption," that if a petitioner could overcome the restrictions on evidentiary hearings in § 2254(e)(2) and then present new evidence in federal court, the deferential standards in § 2254(d)(1) do not apply. Id. at 1400. The Court held instead that "that evidence introduced in federal court has no bearing on § 2254(d)(1) review." Id.

Based on Pinholster, Petitioner may not bring forward new evidence for the federal court to review on any claims the Idaho Supreme Court adjudicated on the merits. However, because this case is at the procedural default stage, where evidence may be presented on the preliminary issues of procedural default, cause and prejudice, or miscarriage of justice, the evidence will be admitted for those limited purposes only. Accordingly, Petitioner's Motion will be granted in part and denied in part. The Court has reviewed Petitioner's large box of exhibits and did not find Exhibit 6000-A-1. Therefore, Petitioner may file a new copy with the Court. The Court recognizes, for purposes of the Motion for Partial Summary Dismissal, that the exhibit is a state district court minute entry regarding the criminal conviction of Detective Curtis Gambrel, and the Court has reviewed the submitted news article containing the details of the Sund-Gambrel fraud scheme. (Dkt. 34, Exhibit 2000-A.)

Petitioner has also filed a Motion for Extension of Time to Produce Evidence in Support of All Documents Filed to this Court on 4/18/11 (Dkt. 27). This will be granted, to the extent that (1) Petitioner may rely on any new exhibits for the limited purposes of procedural default, cause and prejudice, and miscarriage of justice; and (2) Petitioner may rely on documents that were properly submitted to the state courts during post-conviction review for any claims to be adjudicated on the merits in state court and to be adjudicated on the merits in federal court. For example, Petitioner has submitted his state habeas corpus pleadings as exhibits. (Dkt. 24.) Because state habeas corpus is for the purpose of challenging conditions of confinement in a jail or prison, and not for challenging criminal convictions and sentences, it may be used for issues of procedural default, cause and prejudice, and miscarriage of justice, but not for issues on the merits. In addition, Petitioner's Motion for Leave to File Excess Pages (Dkt. 37) will be granted.

Respondent has filed a Motion to Strike Petitioner's Exhibits. (Dkt. 36.) Respondent agrees that Petitioner's documents can be used to show cause and prejudice or a miscarriage of justice, but they should not be used in an analysis of the merits of the claims, because Petitioner has not shown that such items were presented to the state courts in the post-conviction matter. The Court agrees. The exhibits will not be stricken, but, as noted above, will be used for a limited purpose only in this preliminary stage of Petitioner's habeas corpus case.

RESPONDENT'S MOTION FOR PARTIAL SUMMARY DISMISSAL

Respondent argues that the following claims are procedurally defaulted or non-cognizable and therefore subject to dismissal: 1, 2 (in part), 3 (in part), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 (in part), 22, 23, 24 (in part), 25, 26, 27, 28, 29, and 30.

1. Standard of Law Governing Summary Dismissal and Procedural Default

Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In such case, the Court construes the facts in a light most favorable to the petitioner. In considering dismissal, it is appropriate for the Court to take judicial notice of court dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

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 there remains no opportunity 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 there remains no opportunity 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)).

2. Discussion

Petitioner's State Habeas Corpus Actions

Petitioner generally argues that he exhausted his claims through his state habeas corpus action. However, Idaho law is clear that convictions cannot be challenged through state habeas corpus. Eubank v. State, 949 P.2d 1068, 1070 (Idaho Ct. App. 1997) (the Uniform Post-Conviction Procedure Act comprehends and replaces all other common law, statutory or other remedies, including the writ of habeas corpus, that were previously available to collaterally challenge the validity of a conviction or sentence). Petitioner may have properly brought his conditions-of-confinement claims to the attention of the Idaho courts--the remedy for which is injunctive relief to cure the deficient conditions--but he could not, by definition of law, bring challenges to his conviction, a cause of action that must be asserted through a post-conviction application. Accordingly, Petitioner is mistaken in asserting that a state habeas corpus action can exhaust federal habeas corpus claims and in asserting that Respondent is falsifying the lodging of the state court record by omitting the state habeas corpus action.

Claim 1

Claim 1 is that post-conviction counsel was ineffective due to an alleged conflict of interest, because counsel was being paid by Sheriff Tousley and because counsel allegedly stole Petitioner's legal documents and abandoned Petitioner's case. (Petition, Dkt. 3, p. 2.)

This claim is not cognizable. In a federal habeas corpus action, a petitioner cannot bring a claim that post-conviction counsel performed ineffectively, because there is no constitutional right to counsel in a post-conviction action. See Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). This claim is subject to dismissal with prejudice.

Claim 2

Claim 2 is that (a) the lead detective was involved in a drug ring, a fraud ring, and a conspiracy ring (Dkt. 3, pp. 7 & 14); (b) that the investigating detective concealed exculpatory evidence given to him by Petitioner's parents after his arrest that would have proven that Caleb Casey killed S.B.; and (c) that the prosecuting attorney was involved in the conspiracy. (Dkt 3, pp. 9-13.)

The only part of this claim that was included in the post-conviction brief in support of the petition for review before the Idaho Supreme Court is 2(b), that Petitioner's due process rights were violated when the investigating detective concealed exculpatory evidence given to him by Petitioner's parents that would have proven that Caleb Casey killed S.B. (State's Lodging D-6, p. 11.) Accordingly, Claims 2(a) and 2(c) are procedurally defaulted.

Claim 3

Claim 3 is that the lead detective (a) was involved in a drug, fraud, and conspiracy ring and (b) concealed exculpatory evidence, including an alleged videotape of Caleb Casey confessing to the murder. The only part of this claim included in the post-conviction appellate brief in support of the petition for review before the Idaho Supreme Court was 3(b), that Petitioner's due process rights were violated when the lead detective concealed exculpatory evidence, including an alleged videotape of Caleb Casey confessing to the murder; 3(a) was not included and is procedurally defaulted. (State's Lodging D-6, p. 11.)

Claim 4

Claim 4 is that Petitioner's due process rights were violated when the detective and a sheriff's deputy (a) violated Petitioner's right to an initial appearance, (b) used delay as a tactic to coerce a confession, and (c) incited other inmates to assault Petitioner by telling the inmates that Petitioner "ratted" on the Caleb Casey conspiracy members.

The only parts of this claim that were presented to the Idaho Supreme Court in the brief supporting the petition for review are 4(b), that Petitioner's guilty plea was rendered involuntary under the due process clause as a result of the detective/jailors using delay as a tactic to coerce a confession, and 4(c), inciting other inmates to assault Petitioner by telling the inmates that Petitioner "ratted" on someone. (State's Lodging D-6, pp. 5-6.) Claim 4(a) is procedurally defaulted.

Claim 5

Claim 5 is that Petitioner's (a) right to due process and (b) right to be free from cruel and unusual punishment were violated when his cell lights were left on 24 hours a day for 21 months in order to coerce him into pleading guilty. (Dkt. 3, pp. 38-39.)

The Eighth Amendment's prohibition of "cruel and unusual punishments" applies only "after conviction and sentence." Graham v. Connor, 490 U.S. 386, 393 & n. 6 (1989). Therefore, Claim 5(b), under the Eighth Amendment claim is subject to dismissal for failure to state a claim upon which relief can be granted.

The due process/involuntary guilty plea claim based on poor conditions of confinement, particularly lighting, was presented in the post-conviction application. (State's Lodging C-1, p. 11.) The Idaho Court of Appeals addressed this claim. (State's Lodging D-4, p. 4-6.) This claim was also presented in the petition for review before the Idaho Supreme Court. (State's Lodging D-6, pp. 5-7.) Therefore, he may proceed upon this claim under a due process theory only.

Claim 6

Claim 6 is that Petitioner's due process rights were violated when he was denied warm clothing in winter and outdoor recreation in order to coerce him into pleading guilty. (Dkt. 3, p. 39.) This claim was included in the petition for review as part of the due process/involuntary guilty plea claim. (State's Lodging D-6, pp. 5-7.) Therefore, he may proceed on this claim.

Claim 7

Claim 7 is that Petitioner's due process rights were violated when he was refused recreation, including outdoor recreation for weeks and months at a time in order to coerce him into pleading guilty. (Dkt. 3, p. 40.) This claim was included in the petition for review as part of the due process/involuntary guilty plea claim. (State's Lodging D-6, pp. 5-7.) Therefore, he may proceed on this claim.

Claim 8

Claim 8 is that Petitioner was brutally beaten by inmates after he was labeled a "rat" and a "snitch" due to his attempts at pro se litigation and filing grievances, violating his rights against coercion and retaliation. (Dkt. 3, p. 42 & 3-1, p. 2.)

To the extent that Petitioner is alleging that his plea was involuntary because jailors caused him to be beaten by other inmates after being called a "rat" and "snitch," that claim is already included in Claim 4, and cannot be duplicated in another separate claim. His other theories were not included in his briefing in support of the petition for review on ...


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