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Theodore J. Kremer v. Johanna Smith

March 22, 2012


The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge

MEMORANDUM DECISION AND ORDER Pending before the Court is Respondent's Motion for Summary Judgment. (Dkt. 34.) Petitioner has filed his Response (Dkt. 35.) Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 10, 12.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

In his Response, Petitioner repeatedly asserts that, if counsel were appointed, he could meet the high standard required for habeas corpus relief. Throughout the pendency of this case (as in all pro se matters), the Court has carefully considered whether appointment of counsel would have aided in the decisionmaking process. Here, the Court is constrained to review only the record that was before the Idaho appellate courts, and, on this record, the Court has determined that additional argument and briefing is not necessary.

Having reviewed the motions, responses, and the record in this case, the Court enters the following Order granting the Motion for Summary Judgment and dismisses Petitioner's Petition for Writ of Habeas Corpus with prejudice.


After jury trial in the Fourth Judicial District Court, in Ada County, Idaho, Petitioner was convicted of one count of lewd conduct with a minor under sixteen and one count of intimidating a witness. Judgment of conviction was entered on June 13, 2005. (State's Lodging A-1, pp. 102-03.) Petitioner was sentenced to a prison term of five years fixed with fifteen years indeterminate for the lewd conduct charge. (Id., p. 103.)*fn1

Petitioner filed a direct appeal and a post-conviction matter challenging his convictions and sentences in state court. Here, he challenges several evidentiary rulings of the trial court, alleging that his Constitutional rights to a fair trial have been violated.

The Idaho Court of Appeals summarized the facts underlying the lewd conduct conviction as follows:

In October 2004, eleven-year-old H.S. spent the night at the Kremer house as a guest of Kremer's daughter. At approximately one o'clock the next morning, H.S. woke up to Kremer kneeling on the family room floor next to the futon where she and Kremer's daughter were sleeping. He placed his hand on H.S.'s hand and while she rolled over and pretended to be asleep, he lifted the covers and put his hands under her pajama bottoms and underwear where he proceeded to rub her vagina and buttocks. This continued for approximately ten to fifteen minutes before he left the room. H.S. left the house the next morning and immediately told her mother about the incident. She was taken to the hospital and the abuse was reported to the police.

State v. Kremer, 160 P.3d 443, 445 (Idaho Ct. App. 2007).

The charge of intimidating a witness arose from an incident where Petitioner contacted H.S.'s father, even though Petitioner was told by officers not to contact H.S. or her family. Id. H.S.'s father taped the conversation, which revealed that Petitioner tried to convince H.S.'s family not to press charges against him. Id.


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-court 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 § 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 unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002).

In Harrington v. Richter, 131 S.Ct. 770 (2011), the United States Supreme Court reiterated that a federal court may not re-determine a claim on its merits after the highest state court has done so, simply because the federal court would have made a different decision. Rather, the review is necessarily deferential. The Supreme Court explained that under § 2254(d), a habeas court (1) "must determine what arguments or theories supported or . . . could have supported, the state court's decision;" and (2) "then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786. If fairminded jurists could disagree on the correctness of the state court's decision, then a federal court cannot grant relief under § 2254(d)(1). Id. The Supreme Court emphasized: "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (internal citation omitted).*fn3


1. First Claim

A. Factual Background

Prior to trial, the prosecution gave the defense written notice that it intended to call as trial witnesses two teenaged girls, A.C. and J.L., who had been friends of Petitioner's older daughter, and who also alleged similar lewd conduct incidents perpetrated by Petitioner in Tennessee in 1993, approximately eleven years prior to the incident for which Petitioner was standing trial. (State's Lodging A-1, pp. 28-34.) Defense counsel filed a motion in limine to preclude the testimony. (Id., pp. 15-16.) The trial court ruled that the evidence was admissible and denied the motion in ...

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