The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Currently pending in this habeas corpus matter is Respondents' Motion for Summary Judgment. (Dkt. 26.) The Court finds that decisional process would not be aided by oral argument, and it will resolve this matter on the record after consideration of the parties' written submissions. D. Idaho L. Civ. R. 7.1(d).
For the reasons set forth below, the Court will grant Respondents' Motion for Summary Judgment, and this case will be dismissed.
In 2004, Petitioner and a co-defendant, Brandon Hussey, were charged with attempting to rob a taxi driver at gunpoint (attempted robbery, Idaho Code § 18-6501) and with shooting at the driver as he fled (aggravated assault, Idaho Code §§ 18-901(a), 18-905(a)). (State's Lodging A-1, p. 7.) The driver testified that two men approached him, one of whom stuck a gun in the window and demanded money. (State's Lodging A-2, p. 30.) When he saw the gun, the driver sped away and heard gunshots before crashing his taxi into a cement post. (Id. at 34.) The driver later identified Petitioner as the man who had threatened him with the gun and demanded money. (State's Lodging A-2, p. 30.) Petitioner testified at his trial, however, that Hussey brandished the gun and fired the shots. (State's Lodging A-2, pp. 177-78.) Petitioner was found guilty as charged, and the state trial court sentenced him to a unified term of 25 years, with a minimum period of confinement of 10 years, for attempted robbery, and a concurrent term of five years for aggravated assault. (State's Lodging A-1, pp. 127-30.)
Before the direct appeal, Petitioner's counsel filed a motion for a new trial based on comments that he had overhead from Hussey's attorney, Stewart Morris, who allegedly said that "he had resolved a case in which his client had shot up a taxicab in an attempted robbery." (State's Lodging A-1, p. 140.) When asked, Morris told Petitioner's counsel that Hussey was the client about whom he was speaking. (Id.) The trial court scheduled a hearing on the motion, but Petitioner's counsel failed to serve a subpoena on Morris to testify. (State's Lodging A-5.) The trial court denied the motion after concluding that the statement attributed to Morris was unreliable and would not be admissible at a trial. (State's Lodging A-5, pp. 56-57.)
On direct appeal, Petitioner raised a single claim, that the trial court abused its discretion in sentencing him. (State's Lodging C-2.) The Idaho Court of Appeals affirmed, and Petitioner's Petition for Review was denied by the Idaho Supreme Court. (State's Lodgings C-5, C-8.)
Petitioner next filed a pro se Petition for Post-Conviction Relief, which he amended with the assistance of counsel, raising numerous claims of ineffective assistance of counsel. (State's Lodging D-1, pp. 1-15, 125-30.) The State filed a motion to summarily dismiss the Petition, and the state court dismissed all but six of the claims. (State's Lodging D-2, pp. 38-45.) After an evidentiary hearing on the remaining claims, the court denied relief. (State's Lodging D-1, pp. 140-150.)
Petitioner appealed, but the Idaho Court of Appeals affirmed. (State's Lodging E-11.) In addition to affirming the summarily dismissed claims, the Court of Appeals addressed, in relevant part, Petitioner's claim that his trial counsel was ineffective at the hearing on the motion for new trial because he failed to subpoena Morris to testify in support of the motion. (Id. at pp. 8-11.) On that claim, the Court of Appeals concluded that Petitioner "failed to meet his burden of proving that trial counsel's performance was deficient and that he was prejudiced thereby." (Id. at 11.)
Petitioner was granted permission to file a late Petition for Review, which the Idaho Supreme Court denied. (State's Lodgings E-8, E-10.)
On February 23, 2010, Petitioner filed his Petition for Writ of Habeas Corpus in this Court, alleging (1) that he was denied his right to due process of law under the Fifth and Fourteenth Amendments when the state court "summarily and absent adequate notice dismissed several of his post-conviction claims without an evidentiary hearing" (Claim A), and (2) that he was deprived of his Sixth Amendment right to the effective assistance of trial counsel on various grounds (Claims B-1 and B-2). (Dkt. 1, p. 4.) Chief Magistrate Judge Candy W. Dale conducted an initial review of the Petition and ordered the Clerk to serve it on Respondents. (Dkt. 6.) Respondents filed a Motion for Partial Summary Dismissal, and the case was then reassigned to the undersigned District Judge due to lack of consent from all parties to proceed before a United States Magistrate Judge. (Dkt. 19.)
The Court thereafter granted Respondents' Motion and dismissed Petitioner's first claim as not cognizable in a federal habeas corpus matter and found that the second claim was properly exhausted only to the extent that it raised an ineffective assistance of trial counsel claim based on counsel's handling of the motion for a new trial (Claim B-1). (Dkt. 8, pp. 1-2.)
The Court ordered Respondents to file an Answer on the remaining claim, and they have done so. (Dkt. 21.) Respondents have also submitted a Motion for Summary Judgment in which they contend that relief should be denied. (Dkt. 22.) Petitioner has filed his ...