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David Allen Dalrymple v. Timothy Wengler

March 22, 2012


The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge


Petitioner David Allen Dalrymple (Petitioner) filed a Petition for Writ of Habeas Corpus on September 30, 2010. Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 6, 7.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

Pending before the Court are both parties' Motions for Summary Judgment. (Dkt. 14, 15.) Having fully 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 delay, the Court will 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.


Petitioner lived with his girlfriend, Shelley, and Shelley's minor daughter, K.B., for approximately three years. Near the end of their relationship, Petitioner had been using methamphetamine. (State's Lodging A-4, pp. 320-21.) On October 5, 2003,while Petitioner was under the influence of methamphetamine, Petitioner and Shelley had an argument, during which Petitioner handcuffed Shelley behind her back, pinched her breast, and pulled her into a bathroom. During this scene, Shelley called for her daughter to run for help. K.B., who was 11 years old at the time of the incident, tried to escape, but Petitioner caught her, physically restrained her, and pulled her through the house, during which time K.B.'s head hit the bathroom door. Petitioner would not allow Shelley or K.B. to leave the home, and he pulled a telephone cord out of the wall after K.B. called 911. State v. Dalyrmple, 167 P.3d 765, 769 (Idaho 2007); (State's Lodging B-19, A-4).

After the October 5, 2003 incident, K.B. told her mother that Petitioner had been repeatedly abusing her sexually for three years. The child described how Petitioner "would show her pornographic magazines and videos, would pose her in sexually suggestive positions, and would touch her over her body with his hands, tongue, and penis." Dalrymple, 167 P.3d at 769. The child also reported that Petitioner "would also handcuff and tie up K.B. with rope, all while imploring her not to tell her mother." (Id.)

As a result of all of these incidents, Petitioner was arrested, tried, and convicted after trial by jury of two counts of lewd conduct with a minor, two counts of kidnaping, sexual abuse of a minor, domestic battery, injury to a child, intentional destruction of a telecommunication line, and two counts of violation of a no-contact order, in the Fourth Judicial District Court in Ada County, Idaho.

Petitioner's claims arise from his disagreements with trial counsel over defense strategy and evidence. The Idaho Supreme Court summarized the trial court proceedings as follows:

In February and March 2004, Dalrymple filed several motions to disqualify his public defender and on April 7, 2004-approximately six weeks before trial-the district court heard the motions. Dalrymple expressed dissatisfaction with his attorney on a number of grounds, including a belief that his attorney was not looking for exonerating evidence. The district court found that Dalrymple's attorney met professional standards and denied the motions to disqualify. Dalrymple then inquired about representing himself. The district court warned him of both the potential consequences of representing himself and the benefits of retaining counsel. Dalrymple indicated he understood the pitfalls of proceeding pro se, stating that it would be "foolish" to represent himself, and chose to keep his attorney for trial.

After close of the evidentiary phase of the trial, Dalrymple sought the court's permission to present an additional defense that his attorney had not presented. He wished to argue that he used hypnotherapy on K.B. to convince her that he had molested her, when in fact no molestation had occurred. His attorney claimed to lack the proper foundation to raise this hypnosis defense, even after an investigation, and that it would be "tantamount to just asking the jury to come back with a guilty verdict." According to his attorney, Dalrymple had no training or education in hypnosis. Moreover, in the course of the investigation, one of Dalrymple's brothers told the defense investigator that he never heard him discuss hypnosis. Another brother was vague, stating that he may have heard about Dalrymple performing hypnosis at a barbecue but provided no further details to substantiate Dalrymple's claim.

The district court allowed Dalrymple two options: either to proceed to closing arguments without presenting his defense or to reopen the case, discharge his attorney, and present his hypnosis defense pro se. At that time, the district court alerted Dalrymple that he would be subject to cross-examination and would make his own closing argument, but offered no other warnings about the risks of representing himself. Dalrymple chose to discharge his attorney, who remained as standby counsel, and the case was reopened. Later, after closing arguments, the district court made findings on the record that Dalrymple had received full warnings about representing himself at the April 7 pretrial hearing.

Dalrymple testified first. When he began to explain hypnosis to the jury, the prosecutor objected, citing a lack of foundation. In sustaining the objection, the district court told him that he would need to establish his qualifications before testifying further on the practice of hypnosis. The district court permitted him to testify about what actions he took to hypnotize K.B. After his testimony, Dalrymple recalled Shelley to testify. He then sought to recall K.B. but the district court refused, stating that she was released from her subpoena and was at school. The district court allowed Dalrymple to make an offer of proof as to how he believed K.B. would testify, namely that he had gone through hypnotherapy with her over the past three years. The jury convicted Dalrymple on all charges. On the felony counts, the district court sentenced Dalrymple to two unified terms of twenty years fixed with an indeterminate life sentence for each count of lewd conduct, fifteen years fixed for the count of sexual abuse, and ten years fixed for each count of kidnaping.

Id. at 769-70. Judgment of conviction was entered on November 1, 2004.

After conviction, Petitioner pursued a direct appeal. The Idaho Court of Appeals determined that, on the record before the court, there were insufficient findings that Petitioner was "aware of his rights and of the consequences of waiving his right to counsel." (State's Lodging B-4, p. 8.) As a result, the court determined that Petitioner's waiver of his Sixth Amendment right to counsel was invalid, because of the lack of findings showing the waiver was knowing, intelligent, and voluntary. (Id.) The Idaho Court of Appeals vacated the judgment and remanded the case for a new trial. The Idaho Supreme Court granted the State's petition for review in the case and affirmed the conviction. (State's Lodging B-14.)

Petitioner's federal Habeas Corpus Petition contains two claims arising from his direct appeal: (1) that the waiver of Petitioner's Sixth Amendment right to counsel was not made knowingly, voluntarily, or intelligently; and (2) that he was deprived of his right to present evidence in his favor and present a complete defense. Each party asserts entitlement to summary judgment in this case.


1. Standard of Law

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:*fn1

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 simply re-determine a claim on its merits after the highest state court has done so, just 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).*fn2

2. Claim One: Waiver of Right to Counsel

In Claim One, Petitioner alleges his Sixth Amendment right to counsel was violated because the trial court coerced him into waiving his right to counsel by forcing him to "choose between his constitutional right to counsel and his constitutional right to testify." (Dkt. 1, pp.2-3.) Petitioner further asserts that his waiver of the right to counsel was involuntary, "because at the time of the waiver, he did not have full awareness of the rights and consequences ...

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