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Frank L. Nicolai, Iii v. Warden Johanna Smith

March 14, 2012

FRANK L. NICOLAI, III, PETITIONER,
v.
WARDEN JOHANNA SMITH, RESPONDENT.



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

MEMORANDUM DECISION AND ORDER

Pending before the Court in this habeas corpus action is Petitioner's Motion for Partial Summary Dismissal (Dkt. 12) and Petitioner's Motion for Judgment (Dkt. 16).

Having 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.

BACKGROUND

On the second day of his jury trial, Petitioner Frank Nicolai (Petitioner) pleaded guilty to and was convicted of raping and kidnaping S.B., as a result of criminal proceedings in the Fourth Judicial District Court, in Ada County, Idaho. (State's Lodging A-2.) Prior to sentencing, the trial court ordered a presentence investigation report (PSI) to be prepared, and also ordered Petitioner to submit to a psychosexual evaluation. (State's Lodging A-1, at 65-66.) After reviewing these items and holding a hearing (State's Lodging A-3), the trial court sentenced Petitioner to a fixed 25-year sentence for kidnaping and a fixed life sentence for rape, to run concurrently. (Id. at 72-75.) The judgment of conviction was entered on October 11, 2005. (Id.)

Petitioner did not pursue a direct appeal, but he pursued a post-conviction relief application. After the state trial court held an evidentiary hearing, it denied all of Petitioner's post conviction claims with the exception of an ineffective assistance of counsel claim for failing to advise Petitioner that he had a constitutional right not to participate in a psychosexual evaluation, under Estrada v. State, 149 P.3d 833 (Idaho 2006). (State's Lodging C-1, at 134-49.) The court ordered that Petitioner be resentenced without consideration of the psychosexual report. (State's Lodgings A-1, at 95-96; C-1, p. 148.)

After completion of a new PSI (State's Lodging A-5) and a resentencing hearing (State's Lodging A-4), the trial court again sentenced Petitioner to a fixed 25-year sentence for kidnaping and a fixed life sentence for rape, to be served concurrently. (State's Lodging A-1, at 118-121.) The amended judgment was entered on October 14, 2008. (Id.)

Petitioner then filed an appeal challenging the length of his sentences under a state law "abuse of discretion" theory. (State's Lodging B-1.) The Idaho Court of Appeals heard the appeal and affirmed the convictions and sentences on May 5, 2009. (State's Lodging B-4.) Petitioner did not seek review from the Idaho Supreme Court, and the remittitur issued May 27, 2009. (State's Lodging B-5.)

Petitioner also filed an appeal challenging denial of the other post-conviction claims that had been brought with the successful Estrada claim. (State's Lodging C-1, at 164-67.) The Idaho Court of Appeals heard the appeal and affirmed denial of the claims on March 16, 2010. (State's Lodging D-8.) Petitioner filed a brief in support of petition for review before the Idaho Supreme Court (State's Lodging D-9), which was denied on June 4, 2010. (State's Lodging D-10). The remittitur was issued on June 11, 2010. (State's Lodging D-11.)

In 2009, in the midst of his other pending cases, Petitioner filed a successive post-conviction action in state court. It was dismissed on February 1, 2010. (State's Lodging E-1.) He did not file an appeal from the dismissal. (Id.)

Petitioner filed his federal Petition for Writ of Habeas Corpus, containing 18 claims, on July 14, 2010. Of those claims, 17 are ineffective assistance of counsel claims, brought under the Sixth Amendment, based on the following alleged errors of defense counsel:

Claim 1 Not meeting frequently enough with Petitioner and failing to sufficiently involve himself in the preparation of the defense.

Claim 2 Failure to request a hearing on Petitioner's motion to suppress (regarding post-Miranda statements to police officers).

Claim 3 Failure to file a motion to dismiss on speedy trial grounds. Claim 4 Failure to interview or attempt to locate witnesses who had exculpatory information or otherwise develop their testimony. Claim 5 Failure to subpoena Petitioner's cellular telephone records, which would have shown that the victim made a voluntary phone call to Petitioner at the time she was abducted.

Claim 6 Failure to seek disqualification of the trial judge after the judge expressed his belief that Petitioner committed the offenses alleged in the indictment.

Claim 7 Failure to provide Petitioner with sufficient assistance from an investigator.

Claim 8 Refusal to follow up with Petitioner's witnesses.

Claim 9 Improperly informing Petitioner that, if he testified, the State might impeach his testimony with his prior criminal record, when these convictions occurred more then ten years earlier. Claim 10 Failure to object after he was informed by the jury commissioner that the jury pool observed him in shackles and handcuffs.

Claim 11 Failure to pay attention at trial; in particular, counsel was reading a yoga magazine during presentation of the State's case at trial.

Claim 12 Recommending that Petitioner plead guilty at the conclusion of the State's presentation of evidence at trial.

Claim 13 Failure to review Petitioner's presentence investigation interview.

Claim 14 Inducing Petitioner to plead guilty by promising a sentence of no more than ten years fixed.

Claim 15 Failing to inform Petitioner of his right to remain silent or otherwise provide advice to Petitioner during the psychosexual evaluation.

Claim 16 Failure to provide the presentence investigation report to Petitioner until 30 minutes prior to sentencing.

Claim 17 Failure to file a direct appeal, despite Petitioner's request to do so.

In addition, the Habeas Corpus Petition contains a claim challenging the state district court's handling of ...


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