The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Respondents have filed their Response to the non-dismissed claims in this habeas corpus matter, Petitioner has submitted a Reply, and those claims are now at issue. (Dkts. 94, 100.) Also pending are Petitioner's second and third motions for discovery. (Dkts. 92, 104.) The parties have adequately stated the facts and the law in their briefing, and the Court will resolve these matters on the record without oral argument. D. Idaho L. Civ. R. 7.1(d)(1).
For the reasons set forth more fully below, the Court will deny relief on the remaining claims in the Amended Petition. The Court also concludes that further evidentiary development through additional discovery or an evidentiary hearing is not warranted. Finally, the Court will issue a certificate of appealability over its resolution of Claim C (ineffective assistance of counsel; limited to subpart 4) and its denial of discovery related to that claim.
In March of 1992, Leo and Mary Yvonne Downard were shot to death in their home in Ammon, Idaho. The Downards were most likely killed late night on March 21 or early in the morning on March 22, but their bodies were not discovered for another three days. Jeff Smith was the last person to be seen at the Downard's home on March 21, and the State initially charged him with first-degree murder, but the case was dismissed after a preliminary hearing. The investigation then shifted to Jeff's brother, Lanny (the "Petitioner" herein). After the State developed new evidence, Petitioner was charged and convicted of murdering the Downards.
Petitioner is currently serving a controlling sentence of life in prison without the possibility of parole. Because he continues to claim that he is innocent of these crimes and that Jeff is the more likely perpetrator, the factual background will be recited in detail here.
1. Petitioner's Possession of the Murder Weapon, and Jeff Smith's Whereabouts, on March 20, 21, and 22, 1992 In the 1980s, the Downwards lived with their children in a house on Sabin Drive in Ammon, which was one street over from Lynn and Julia Smith's home on Midway Drive. Lynn and Julia's sons -- Petitioner and Jeff -- knew the Downards and their children, and they visited the Downards' home often throughout their childhood years. (State's Lodging A-12, pp. 2125-27.)
Lynn and Julia divorced in 1988, and Lynn moved to nearby Idaho Falls, eventually marrying Sondra Genzinger, while Julia remained in the family home on Midway. (State's Lodging A-9, pp. 1390-91, 1479.) By then, Jeff had also moved out, but Petitioner still lived with his mother on Midway until late 1991, when he moved into a basement room in his father and step-mother's home in Idaho Falls. (State's Lodgings A-9, p. 1391; A-12, p. 2133.)
Lynn Smith kept several guns locked in a gun cabinet to which only he had access, and one of those guns was Petitioner's .22 caliber, pump-action Remington Fieldmaster rifle. (State's Lodging A-9, pp. 1480-81.) On the evening of March 20, 1992, a Friday, Petitioner told his father that he intended to go target shooting the next day. (Id.) At Petitioner's request, Lynn unlocked the gun cabinet and gave him the Fieldmaster rifle, together with a box of .22 caliber ammunition. (Id. at 1481.)
Saturday morning, Lynn left town and would not return until late that night. (State's Lodging A-14, p. 1491.) Sondra Smith, Petitioner's stepmother, was doing her weekly chores when she saw Petitioner, carrying his rifle, leave the house around 11:00 a.m. (Id. at 1402.) That afternoon, he drove to the golf course where he worked and spoke briefly with a co-worker. (State's Lodging A-11, p.1906.) The co-worker noticed the rifle in the backseat of Petitioner's car, and Petitioner told him that he was going target shooting. (Id. at 1907.) He returned home in the middle of the afternoon, which drew Sondra's attention because he struggled to open the front door with the rifle in his hands.
(Id. at 1439.) When he left home for the second time around 5:30 p.m., Sondra saw that he was again carrying the rifle. (Id.)
Around noon on that Saturday, Jeff Smith arrived at his mother's home in Ammon to power rake her lawn. (State's Lodging A-12, pp. 2138-39.) He needed a truck to haul the heavy rental equipment, and Leo Downard gave him permission to borrow the Downards' pickup. (Id. at 2141.) Leo asked Jeff to rake his lawn after he had finished Julia's lawn. (Id.)
Altogether, Jeff completed three lawns that afternoon, and he was paid about $40. (State's Lodging A-12, pp. 2144-45.) Late in the afternoon, he returned the equipment to the rental store and drove to Lynn and Sondra's home in Idaho Falls to drop off some wooden planks. (Id.) Petitioner apparently helped Jeff unload the planks before Petitioner left with the rifle. (State's Lodging A-9, p.1407.) Sondra noticed that Jeff was dirty, and she kept a close eye on him because she had just finished cleaning the house. (State's Lodging A-9, p. 1407.) She watched him as he used the telephone briefly before leaving the residence, and she did not see him take anything with him as he left. (Id. at 1409-1416.)
Jeff returned the truck to the Downards and was seen departing their home at 6:30 p.m. (State's Lodging A-6, pp. 607, 628.) About thirty minutes later, neighbors saw Leo standing in his driveway, and he waved to them. (Id. at 553, 608.)
At about that same time, Petitioner arrived at a friend's house to watch NCAA basketball tournament games. (State's Lodging A-13, p. 2572.) Petitioner told his friend that he had been target shooting shortly before he came over. (Id. at 2576.) He stayed at the friend's house for about three hours, until about 10:15 p.m. (Id. at 2574.) Another guest claimed that Petitioner lingered in the doorway for a few minutes before announcing that he was headed home and adding that he "was going to kill some rabbits." (State's Lodging A-11, p. 1914.)
Sondra Smith was preparing for bed when she heard the front door open and close between 10:30 and 11:00 p.m. Saturday night. (State's Lodging A-9, p. 1437.) She assumed that Petitioner had returned. (Id.) Lynn Smith returned from his day trip around midnight, and he saw that Petitioner's car was parked in front of the house. (Id. at 1494.) Lynn noticed that Petitioner was still awake because he could hear the shower running in the bathroom downstairs. (Id. at 1513-14.)
Earlier, around 9:00 p.m., Jeff arrived at a nightclub, where he stayed for about three hours before moving on to another club. (State's Lodging A-12, pp. 2151-53.) He was generally in a good mood, interacted with others, and even bought an acquaintance a drink. (Id. at 2332-33.) Jeff left the bar at 1:00 a.m. and, according to him, he then went to his apartment to go to sleep. (Id. at 2153.) His girlfriend arrived around 3:00 a.m. and stayed the rest of the night. (Id. at 2366.) Except for about 15 minutes the next morning when Jeff went out to buy some groceries, he and his girlfriend were together all day on March 22 until late that night. (Id. at 2367, 2375.) Jeff was happy to see his girlfriend and was relaxed during the time that they spent together. (Id. at 2380-81.)
At an unknown time in the overnight hours of March 21 and 22, 1992, Leo and Mary Downard were shot to death in their home.
2. The Days Following the Murders
On Sunday morning, Petitioner retrieved the rifle from his bedroom and gave it to Lynn, who put it away and locked the cabinet. (State's Lodging A-9, pp. 1515-17.)
That same morning, a member of the Downards' church became concerned when the normally dependable Mary failed to show up to teach a Sunday school class. (State's Lodging A-7, pp. 655-57.) She called the Downards' home, and then called again for the next several days, but received no answer. (Id.)
On separate occasions on Sunday afternoon, two witnesses in the Downards' neighborhood saw a person that they recognized as Petitioner drive slowly down Sabin Drive, once on a motorcycle and once in his compact car. (State's Lodging A-11, pp. 1979, 2006.) Others saw him driving in the area again two days later, looking in the direction of the Downards' home. (Id. at 2017-18, 2029-31.)
Jeff Smith also returned to the Downards' residence on Tuesday and Wednesday, ostensibly to ask Leo if he could borrow the truck again, and he went to the front door and knocked. (State's Lodging A-12, pp. 2155-60.) Jeff noticed that the front door was slightly ajar, but he did not go inside, and he left when there was no answer. (Id.)
The Downards' bodies were discovered on Wednesday, March 25. (State's Lodging A-6, p. 614.) Leo was found in the living room. (State's Lodging A-7, pp. 661.) He had been shot three times; once in the chest, another in his heart, and a third shot entered his head from extremely close range. (Id. at 773-74.) Mary's body was discovered upstairs in the master bedroom. (Id. at 662.) She had been shot three times in the head, with one shot behind her ear. (Id. at 764.)
3. The Investigation, Charges, and Trial
Investigators retrieved five .22 caliber shell casings from the crime scene. (State's Lodging A-8, pp. 1142-44.) They also discovered two partial shoe prints in the dust in the bedroom where Mary's body was found and additional partial prints in a field behind the house. (State's Lodging A-7, pp. 710-11.) Of these, a photograph was taken of one of the prints from the upstairs bedroom. (Id.)
Because Jeff was the last person known to have been with the Downards before they were killed, the investigation started with him. (State's Lodging A-7, p. 673.) The police contacted Lynn Smith, who notified Jeff that investigators wanted to speak with him about "something serious that had happened in Ammon." (State's Lodging A-8, p. 997.) Jeff quickly located a police officer who was engaged in a traffic stop near his apartment and said, without prompting, that he had not been to Ammon recently. (State's Lodging A-13, p. 2534.) When he was interviewed formally that night, however, he admitted that he had been to the Downards' home raking their lawn the previous Saturday and that he had been back to knock on their door. (State's Lodging A-7, pp. 678, 691.) When he was told that the Downards had been killed, he broke down and cried. (Id. at 678.)
Investigators searched Jeff's apartment and retrieved a pair of size 9 1/2 Foot Joy tennis shoes with a tread that was similar to the prints that they had seen in the Downards' home. (State's Lodging A-10, p. 1604.) These shoes were eventually deemed to be slightly too large to have made the print that had been photographed. (State's Lodging A-11, p. 1859.) They also collected a pair of jeans that had a small red spot on them, and a presumptive test for blood was positive, but a follow-up test by a lab apparently did not confirm the presence of blood. (State's Lodging A-11, pp. 1889-90.)
Investigators later seized guns from Lynn Smith's gun cabinet, including the .22 caliber Fieldmaster rifle, and though Petitioner had the rifle on March 21 and 22, he told officers that only his father had access to the locked cabinet and that no one used the Fieldmaster in "quite some time." (State's Lodging A-10, p. 1597.) Lynn Smith also claimed that the cabinet had been locked when he went out of town on March 21. (Id. 1601.) Despite these assurances, ballistics tests would later confirm that the spent shell casings found in the Downards' home had been fired and ejected from Petitioner's Fieldmaster rifle. (State's Lodging A-8, pp. 1142-47.) And while the bullets taken from the Downards' bodies were severely damaged, at least one was also linked to the same rifle. (Id. at 1150.)
Because investigators still did not know that Petitioner possessed the murder weapon on the weekend that the Downards were killed, the State went forward with charges against Jeff for murder and burglary. The case proceeded to a preliminary hearing, where Lynn admitted for the first time that Petitioner had the rifle from March 20 to 22. (State's Lodging A-10, p. 1609.) The charges against Jeff were dismissed, and the State's investigation then shifted to Petitioner.
Investigators had searched Petitioner's bedroom and seized a pair of size 8 1/2 Foot Joy tennis shoes that, unlike Jeff's Foot Joys, were found to be of the same size as the print that had been photographed in Downards' bedroom. (State's Lodging A-8, pp. 971-72.) The case against Petitioner still did not move forward, however, until about a year and a half after the murders, when a witness named Beverly Huffaker began to take on a more prominent role. She told investigators that Petitioner was a frequent visitor to her home before, during, and for some time after the Downards were murdered. (State's Lodging A-9, pp. 1239-40.) She said that Petitioner was close friends with her son, Scott, and that Petitioner had expressed his interest in older, heavy-set women and, in particular, that he found Mary Downard to be attractive. (Id. at 1281-91.)
Most notably, Huffaker told the police about a meeting that she claimed happened with Petitioner very early in the morning on March 22, 1992, after she had returned from a trip to Nevada with her son. (State's Lodging A-9, pp. 1244-45.) According to her, Petitioner was waiting at her home when they arrived at 1:00 a.m., and he was teary and extremely upset, but he would only tell her that "something bad had happened." (Id. at 1249.) Scott Huffaker also recalled this incident and agreed that it happened on that date. (Id. at1370.) Although the Huffakers went to Nevada frequently to see shows and to gamble, they recalled this particular trip because Scott had won $400, which he allegedly used to buy a rifle the next day. (Id. at 1371.) *fn1
On December 14, 1994, a grand jury indicted Petitioner on two counts of first degree murder, one count of burglary, and a sentencing enhancement for the use of a deadly weapon. (State's Lodging A-1, pp. 1-3.)
The case did not proceed to a jury trial for another 15 months, beginning in late March of 1996 and ending approximately four weeks later. Jeff Smith, who up to that point had indicated that he would invoke his Fifth Amendment privilege against self-incrimination, agreed to testify for the State under a grant of immunity. (State's Lodging A-12, pp. 2112-2283.) He provided a timeline of his actions on the weekend that the Downards were killed, and he denied that he committed the crimes. (Id.)
In addition to the evidence recited above -- including the forensic shoe print evidence matching Petitioner's shoes and the ballistics evidence tying the spent shell casings to Petitioner's Fieldmaster rifle -- the State also presented the testimony of a jailhouse informant, James Swogger, Jr., who claimed that Petitioner had confessed to him that he had killed the Downards. (State's Lodging A-10, pp. 1558-59.)
The defense called nearly two dozen witnesses in its case-in-chief. (State's Lodgings A-12 - A-14.) Notable among the evidence was the testimony of Brian Ravenscroft, who claimed that Petitioner had admitted to him "that he was aware that it was his shoe print that was found at the Downards' home." (State's Lodging A-13, p. 2592.) Petitioner did not testify, and the jury returned guilty verdicts on all counts.
(State's Lodging A-14, pp. 528-30.)
The State originally sought the death penalty, but it reached an agreement with the defense that Petitioner would be sentenced to two fixed life sentences for the murders, a fixed ten-year sentence for first-degree burglary, and a fixed five-year sentence for the sentencing enhancement, all to be served concurrently. (State's Lodging A-3, pp. 654-56.) The trial court followed the agreement and imposed those sentences on Petitioner. (Id.) The Idaho Court of Appeals affirmed his convictions and sentences on direct appeal, and the Idaho Supreme Court declined to review the case. (State's Lodgings B-3, B-6, B-7.)
4. Post-Conviction and Federal Habeas Proceedings
While Petitioner's appeal was still pending, the trial prosecutor forwarded a supplemental discovery response to trial counsel. (State's Lodging C-1, pp. 12-18.) The supplemental response contained a recently completed written statement from a Jamie Lynn Hill in which she claimed to have witnessed an altercation between Jeff Smith and his ex-wife in 1994 or 1995, before Petitioner was tried on these charges. (State's Lodging C-1, p. 16.) Hill asserted that when she tried to intervene, Jeff told her, "you better back down little girl, or I'll take care of you just like I took care of that ol' Ammon couple." (State's Lodging C-1, p. 16.)
Based on this information, Petitioner's counsel pursued post-conviction relief, in part, on the ground that the prosecution had withheld exculpatory evidence from the defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963). (State's Lodging C-1, pp. 41-42.) After holding an evidentiary hearing, the trial court denied relief, concluding that Petitioner had failed to show that the Hill had contacted investigators in the Downard case who would have had a duty to disclose the evidence to the defense. (State's Lodging C-4, p. 244.) On appeal, the Idaho Court of Appeals affirmed. (State's Lodging D-4, p. 8-11.) The Idaho Supreme Court denied Petitioner's request for review. (State's Lodging D-8.)
On May 23, 2008, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. The Court conducted its initial review and allowed Petitioner to proceed with his Brady claim and a claim of ineffective assistance of trial counsel. (Dkt. 5, pp. 2-5.) The Court noted that Petitioner's claims of actual innocence were not cognizable as freestanding habeas claims. (Dkt. 5, p. 2.) Respondents submitted an Answer to the Petition and a Motion for Summary Judgment. (Dkts. 12, 13.) The Court appointed counsel to assist Petitioner, and it denied Respondents' Motion for Summary Judgment subject to reconsideration after Petitioner's counsel had an opportunity to respond. (Dkt. 27, pp. 14-15.)
The Court later granted Petitioner's counsel's request to engage in limited discovery, and on August 10, 2010, Petitioner's counsel submitted an Amended Petition, proffering the following claims:
(1) The State failed to disclose exculpatory, impeaching, and material evidence that Jeff Smith murdered the Downards (Claim A) (the Brady claim);
(2) Petitioner's right to present a complete defense was violated when the trial court precluded evidence that would have implicated Jeff Smith in the crime (Claim B);
(3) Petitioner was deprived of his right to the effective assistance of trial counsel under the Sixth and Fourteenth Amendments (Claim C) because his counsel failed to (a) advise Petitioner adequately about his right to testify,
(b) investigate and present forensic evidence or to challenge the State's forensic evidence, (c) investigate new evidence of Jeff Smith's guilt or move for a new trial, (d) present evidence showing the unreliability of State's witness Beverly Huffaker; (e) investigate and present evidence of Petitioner's good character, (f) show Jeff Smith's violent and threatening behavior, or (g) object to the trial prosecutor's shifting of the burden of proof in closing argument;
(4) Petitioner's right to a fair trial was violated by the cumulative nature of the State's forensic experts and evidence, and by the late disclosure of expert witnesses (Claim D);
(5) Inadmissible character evidence was admitted at trial that had no relevance without a nexus between the character trait and the crime (Claim E);
(6) The admission of inmate James Swogger's testimony violated Petitioner's right to a fair trial because Swogger "lied" to investigators and the prosecuting attorney (Claim F);
(7) The prosecuting attorney committed misconduct by vouching for the State's witnesses during his closing argument (Claim G);
(8) Petitioner was deprived of his Fourteenth Amendment right to the effective assistance of counsel on direct appeal because counsel failed to raise issues that Petitioner was deprived of his right to present a defense and that the prosecuting attorney improperly shifted the burden of proof in his closing argument (Claim H);
(9) Petitioner is actually innocent of the crime (Claim I). (Dkt. 62, pp. 6-42.)
The Court ordered the Amended Petition to be filed, but then reviewed the pleading under Rule 4 of the Rules Governing Section 2254 Cases and concluded that it plainly appeared that Petitioner would not be entitled to relief on Claims A, C (limited to subpart 3), D, E, F, G, and I. The Court dismissed those claims and ordered Respondents to submit an answer to the remaining claims B (right to present a defense), C (ineffective assistance of trial counsel) (in part), and H (ineffective assistance of appellate counsel).
Respondents have now filed their Response, arguing that the remaining claims are untimely, procedurally defaulted, and fail on their merits. (Dkt. 94.) Petitioner has submitted his Reply, and he has also filed motions for civil discovery. (Dkts. 92, 100, 104.)
After carefully reviewing the pleadings, the briefing, and record, the Court finds that Respondents' procedural arguments implicate several complex and difficult questions that need not be resolved to dispose of this matter in their favor.*fn2 The Court instead finds that the most efficient route is to proceed directly to the merits of Petitioner's remaining claims. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002); see also Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001).
Before turning to the merits, however, the Court will first address Petitioner's latest request for discovery.
PETITIONER HAS NOT SHOWN GOOD CAUSE
FOR DISCOVERY RELATED TO JAMES SWOGGER, JR.
After the parties had completed briefing, Petitioner submitted his third motion for discovery, requesting permission to depose James Swogger, Jr. (Dkt. 104.) In support, Petitioner's counsel asserts that Swogger has contacted her office and recanted his trial testimony. In addition to seeking leave to depose Swogger, Petitioner's counsel also requests disclosure of the files of the lead investigator, Detective Rodriguez, and asks the Court to review, in camera, all work product in the prosecutors' files. She makes this latter request as a means of searching for a letter that Swogger now claims he wrote to Rodriguez, establishing his first contact with law enforcement in the case. For the reasons that follow, these requests will be denied.
A habeas petitioner is not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). The petitioner must first seek leave of court, and leave will be granted only upon a showing of good cause. See Rule 6(a) of the Rules Governing Section 2254 Cases (Habeas Rules). Good cause exists when "specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to ...