The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus action is Respondent Philip Valdez's Motion for Summary Judgment. (Dkt. 11.) The Motion is now fully briefed. The parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 7 & 13.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
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 granting Respondents' Motion for Summary Judgment.
Troy Vance (Vance) was murdered in his home in Canyon County, Idaho, in 1979. In 1980, the State brought charges against Petitioner Robert Jones (Petitioner) and Jose Alfonso Martinez (Martinez). In 1982, the charges were dismissed. (State's Lodging F-11, p. 1.)
In 1989, Petitioner's former wife, Sherry Wystrach (Wystrach) came forward with new evidence. As a result, a grand jury issued an indictment against Jones, Martinez, Donna Cordell (Cordell), and Rebecca Spalding (Spalding) for the Vance murder.
Third Judicial District Judge Jim A. Doolittle presided over Petitioner's trial, and Canyon County Prosecutor Richard Harris prosecuted the case on behalf of the state of Idaho. At the trial, the testimony of Wystrach "was integral to the prosecution's case, providing first-hand knowledge of the conspiracy, its subject matter and payoffs." (State's Lodging F-11, p. 1.) In fact, Wystrach's "testimony was particularly important because there was no forensic evidence linking [Petitioner] to the crime." (Id.) At trial, defense counsel impeached Wystrach by introducing evidence, "both extrinsically and via cross-examination, of Wystrach's prior alcohol and drug abuse, her failed relationships, her vindictiveness, her propensity to lie and become confused or forgetful, and the immunity from prosecution that was granted her by the State." (Id., p. 2.)
The prosecution also relied on convicted felon Charles Tisdale (Tisdale) to corroborate Wystrach's testimony. Tisdale testified at trial that, when he and Petitioner were inmate legal assistants, Petitioner confessed that he was involved in Vance's murder. (State's Lodging A-6, pp. 764-70.) At the time of the trial, Tisdale was on parole from the state of Idaho, but he was living in Utah. He was facing new federal criminal charges, as well as an Idaho parole violation stemming from the federal charges. Petitioner's counsel sought to impeach Tisdale by showing that he had received favorable treatment from the government in exchange for his agreement to testify for the prosecution at Petitioner's trial.
A jury found Petitioner guilty of first degree murder. The State sought the death penalty. After a two-part sentencing hearing between April and June of 1991, the judge sentenced Petitioner to a fixed life term of imprisonment. Judgment was entered on June 24, 1991.
Counsel filed a motion for a new trial for Petitioner, which was denied by the state district court. No appeal was taken. (State's Lodging A-2, pp. 587-92 & 601-04.)
Also through counsel, Petitioner pursued a direct appeal challenging his conviction and sentence, where he did not obtain relief. (State's Lodgings B-1 through B-12.) While his appeal was pending, Petitioner's counsel filed a second motion for a new trial. (State's Lodging C-1, pp. 21-31.) It was denied, and an appeal was taken. (State's Lodging D-1.) The denial of the motion was affirmed on appeal. (State's Lodging D-7.)
Petitioner later filed a state pro se post-conviction relief application. He was appointed counsel, and his counsel filed an amended post-conviction application on Petitioner's behalf. The State filed a motion to dismiss. Third Judicial District Judge Sergio A. Gutierrez*fn1 issued an order conditionally dismissing the post-conviction relief application on April 29, 1999. In response, Petitioner's counsel filed a "bifurcated response and objection to the State's motion to dismiss and the court's notice of intent to dismiss summarily" on June 11, 1999. Petitioner's counsel simultaneously filed a motion to amend and a second amended application. (State's Lodgings E-1 & E-2.)
District Judge Gutierrez denied the motion to amend on May 29, 2001. (State's Lodging E-2, pp. 272-81.) However, no action was taken on Petitioner's bifurcated response and objection for over three years, and the case was closed for inactivity. On December 30, 2004, Petitioner filed a motion to re-open the case, which was granted. Third Judicial District Judge Juneal C. Kerrick then issued a decision dismissing the case. (State's Lodging E-2, pp. 326-33.) The dismissal and denial were affirmed on appeal by the Idaho Court of Appeals. Petitioner's petition for review with the Idaho Supreme Court was denied. (State's Lodgings F-1 through F-18.)
Petitioner subsequently filed this federal habeas corpus action, and Respondent filed a Motion for Partial Summary Dismissal. As a result, the following claims were dismissed: Claim A(3) (Wystrach was intoxicated during trial), A(4) (prosecutorial misconduct as relating to Tisdale), A(7) (prosecutor failed to correct false evidence at sentencing to obtain death penalty), Claim C (improper settlement of record on post-conviction appeal); Claim D (marital privilege), Claim E(1), (2), (3) and (4) (Petitioner's polygraph results), and Claim E(7) (PSI report).
Respondent then filed a Motion for Summary Judgment on the remaining claims. (Dkt. 45.) Petitioner has filed a Response and Objections, with exhibits. (Dkt. 54.) The Court notes that, on July 7, 2011, the Clerk of Court mistakenly filed documents pertaining to a different litigant and a different case (Docket Nos. 54-8 through 54-28) in this case, and those items will be stricken from the record. To clarify, Docket Nos. 54, and 54-1 through 54-7 belong in this case and have been considered, and Docket Nos. 54-8 through 54-28 belong to a different case, have not been considered, and have been sealed, because they cannot be "removed" from the electronic docket. The Court also takes notice that Attorney James D. Huegli has filed a notice of appearance of co-counsel for Petitioner, appearing together with Petitioner. (Dkt. 55.)
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
1. Standard of Law Governing Summary Judgment
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 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).
When a party contests the state court's factual determinations, the court must undertake a § 2254(d)(2) analysis. To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id. The United States Supreme Court has admonished that a "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 130 S.Ct. 841, 849 (2010) (citations omitted).
The United States Supreme Court has yet to decide "whether, in order to satisfy § 2254(d)(2), a petitioner must establish only that the state-court factual determination on which the decision was based was 'unreasonable,' or whether § 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was correct with clear and convincing evidence." Wood v. Allen, 130 S.Ct. 841, 848 (2010). Rather, that Court first applies the "unreasonable" test of § 2254(d)(2), and, if it does not conclude that the state court decision is an unreasonable determination of the facts based on the state court record, it does not reach the question of whether the higher standard of § 22254(e)(1) applies. See Wood, 1130 S.Ct. at 849. The United States Court of Appeals for the Ninth Circuit Court, on the other hand, has resolved the conflict presented by these two sections--it applies only § 2254(d)(2) if the review is based upon the same factual record that was before the state courts ("intrinsic review"), while it applies § 2254(e)(1) to factual challenges that involve evidence presented for the first time in federal court ("extrinsic evidence"). Here, the parties do not seek to introduce new evidence in federal court, but are relying on the state court record.
If the federal court concludes that a state court adjudication was based on an unreasonable determination of fact, then the federal court must "consider the petitioner's related claim de novo" to determine whether the petitioner has shown that relief under § 2254(a) is warranted. Maxwell v. Roe, 628 F.3d 486, 494-95 (9th Cir. 2010). See also Jones v. Walker, 540 F.3d 1277 (11th Cir. 2008) (en banc).*fn3
2. Discussion of Petitioner's Request for an Evidentiary Hearing
Petitioner asserts that he is entitled to an evidentiary hearing in this action on the merits of his claims. The United States Supreme Court has recently clarified the law regarding when habeas corpus petitioners can bring additional evidence into federal court. Particularly, in Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011), the Court explained: "If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Id. at 1400 (footnote omitted, emphasis added.); see also Holland v. Jackson, 542 U.S. 649, 652 (2004) ("[W]e have made clear that whether a state courts decision was unreasonable must be assessed in light of the record the court had before it.") (citations omitted). Therefore, Petitioner's request is denied because it is without a proper basis in the law.
3. Discussion of Merits of Claims
In his Response to the Motion for Summary Judgment, Petitioner abandons two of his claims: A(1), that his due process rights were violated by the prosecution when it presented inadmissible evidence to the grand jury, and B(3), that counsel was ineffective for failing to employ a forensic expert to examine the murder weapon. (Dkt. 54, p. 2.) Petitioner clarifies that he still wishes to argue that the prosecution's cumulative misconduct regarding the grand jury (the subject of Claim A(1)) should be considered as support for Claim A(5) and A(6), but not as a separate claim. Petitioner also states that he "sets aside further argument" on Claims B(2) and B(4). (Id.) It is not clear that Petitioner has abandoned Claims B(2) and B(4), and, thus, the Court will address them based on the briefing and record before the Court.
In claim A(2), Jones contends he was denied due process in violation of Brady v. Maryland, 373 U.S. 83 (1963), based upon the state suppressing and destroying evidence that Wystrach "was cultivating and using marijuana during and subsequent to the trial." (Dkt. 19, p.5.)
It is well established that the prosecution has a duty under the due process clause of the Fourteenth Amendment to disclose exculpatory evidence to the defense that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley, 473 U.S. 667, 676 (1985). A meritorious Brady claim contains three essential components: (1) the evidence must be favorable to the accused, either because it is exculpatory or impeaching; (2) the prosecution must have withheld the evidence, either intentionally or inadvertently; and (3) the evidence must be material to guilt or punishment. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Suppressed evidence is material under Brady, and its non-disclosure is prejudicial, when there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. Bagley, 473 U.S. at 682; Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). In determining "materiality," the court must assess the weight and force of the withheld evidence collectively, rather than item by item. Kyles, 514 U.S. at 433-34.
The Court first addresses Petitioner's contention that, although he is not entitled to relief on his claim based on prosecutorial misconduct during grand jury proceedings, he can still "cumulate" that conduct with other alleged prosecutorial misconduct to prove another claim: that the prosecutor did not disclose evidence about Wystrach's potential current drug use. Petitioner misunderstands the law, which is that, in assessing materiality, the court must assess the weight and force of the withheld evidence collectively, rather than item by item. Kyles, 514 U.S. at 436-37. The prosecutor's alleged misdeeds before the grand jury are not a factor in the withheld evidence at issue in Claim A(2); rather, the Court is to assess only the evidence withheld that pertained to Wystrach's cultivation and use of marijuana during and subsequent to the trial.
At the Motion to Dismiss stage of this case, this Court concluded that Petitioner arguably raised this issue as part of Claim XIX on direct appeal. (State's Lodging B-1, pp. 68 & 71.) The Idaho Supreme Court rejected all claims in Petitioner's entire appeal, but did not address the claim in particular. It is important to note that, the second time Petitioner attempted to present this issue on appeal (during post-conviction review), the Idaho Court of Appeals determined that he had not properly presented it to state district court. (State's Lodging F-11, p. 16.) That court went on to determine that, "[e]ven if these claims had been properly presented, they would not warrant relief." (Id.) Therefore, what the Court can consider is the evidence was placed before the Idaho Supreme Court on direct appeal, not the additional evidence gathered by Petitioner on post-conviction review. Accordingly, the Court will first address the claim as it was presented on direct appeal, and then as it was presented on post-conviction appeal.
A time line of events is helpful to understanding Petitioner's claim that the prosecutor violated Brady by failing to disclose evidence of Wystrach's drug use: December 5, 1990 At Petitioner's trial, Sherry Wystrach testified that she began having an affair with Petitioner when she was 13 and he was about 30 years old. (State's Lodging A-5, p. 521-22.) At the time, she and her older sister were involved in selling marijuana with Petitioner. (Id., pp. 520-21) After living with Petitioner for several years, Wystrach married Petitioner when she was 16. (Id., pp. 522-23.) Wystrach testified that Petitioner was employed by a company until a few months after their marriage, and, when he was fired, he never worked at a job receiving a salary or wage again. (Id., p. 524) Wystrach testified that Petitioner became involved with his co-defendant, Jose Alfonso Martinez, in a business buying and selling drugs. (Id., p. 525) Wystrach testified that she, Petitioner, and a woman involved in the drug business named Donna, met and discussed that Troy (the murder victim) was physically abusing Donna's sister, that Troy should be done away with, and that there was a lot of money to be made by that being done.(Id., pp. 537-389.)
Wystrach further testified that Donna was to give Petitioner half of the money up front and half after the job was done, and that Donna, in fact, handed Wystrach the first instalment of the beginning payment of $2,000 in cash in an envelope, which she handed to Petitioner. (Id., pp. 541-43.) Other similar payments followed before the murder. (Id., pp. 544-45.) Wystrach testified that she and Petitioner drove out to Troy Vance's house, where Petitioner stopped, got out, and used binoculars to look through the windows of Vance's home. (Id., pp. 546-47.) She further testified that Martinez and Petitioner cleaned guns, went out at dusk, made other preparations for several days before the murder, and also prepared the guns on the night of the murder. (Id., pp. 550-52.) She also testified that the final payment was eventually made. (Id., p. 564.)
April 5, 1991: Wystrach testified at the sentencing hearing. (State's Lodging A-12, pp. 188-220.) She testified that in 1989 when she was living with Petitioner, he was involved in a methamphetamine business. She testified that she and Petitioner used drugs together, and that she had tried to be more careful with drugs after that, because she knew she had a propensity for getting into trouble with drugs. (Id., pp. 190-94.) She also testified that Petitioner worked transporting stolen guns for sale. (Id., pp. 200-01.) She testified that Petitioner had helped Martinez murder someone in Las Vegas before the Troy Vance murder. (Id., pp. 202-03.)
At the end of her testimony, Wystrach volunteered the following: Wystrach: Your Honor, may I also state something for the record?
Wystrach: I am no longer under any influence of any drugs or alcohol. I will be completely clean from alcohol as of July 1st for one year. Prior to any prescription drugs for almost two years now [sic]. So I am no longer under the influence of any substances. I just wanted that known for the record. And I'm willing to subject to tests. (Id., pp. 215-16.) Afterward, the judge continues the remainder of the sentencing hearing to June 24, 1991.
April 27, 1991 Canyon County Prosecutor's Investigator Dick Appleton went to Oregon to interview witnesses. On this date, Wystrach showed Appleton a room in their home where she said her boyfriend, Norm O'Driscoll, was cultivating four large marijuana plants. Appleton took Wystrach out to dinner and then returned to her home and pulled up the plants, later destroying them before his return flight to Idaho. (Dkt. 54-5, pp. 6-7.)
June 7, 1991 Prosecutor Richard Harris discloses to Petitioner's counsel that Appleton had found marijuana growing in Wystrach's home and destroyed the plants. Harris also disclosed that, prior to this episode, he had notified Wystrach that aid with her rent was to be terminated. He further disclosed that Wystrach and O'Driscoll were no longer together. (Dkt. 54-5, pp. 1-2.)
June 14, 1991 Defense made a motion to vacate the sentencing hearing based on information about the marijuana plants. (State's Lodging A-12, p. 221.)
June 18, 1991 At the hearing on the motion to vacate the sentencing hearing, Petitioner argued that Wystrach was the only witness presented by the State at the aggravation hearing to request the death sentence, and they would like additional time to conduct discovery about the disclosures made by the State regarding the marijuana plants. The prosecution argued that the information had been disclosed, that it was not relevant to the testimony of Wystrach at trial, and that it was irrelevant to sentencing.
The sentencing court agreed with the prosecution: The Court: What -- what I think we are really talking about here is, what if any possible illegal activities of Sherry Wystrach in another jurisdiction in growing, or possessing, or being around in any way marijuana. How is that relevant to the remaining issues in this case, State versus Robert Jones?
As far as I'm concerned, it's totally irrelevant. The issues remaining for -- in the case of State Mr. -- versus Mr. Jones are what factors can be adduce that bear upon mitigation of punishment. What does he have to offer as mitigating factors. That's the only thing left in this case as far as I'm concerned.
And Sherry Wystrach is not on trial, and I'm not going to delay his sentence so that you can purport to put her on trial cause it's -- it's totally irrelevant.
As a matter of fact, I can tell you right now that what little testimony that she gave at the so-called sentencing hearing wouldn't make a pinch of salt as far as difference to me because what I look for in the question of whether the -- the aggravating factors are is the evidence I heard at trial.
Her casual opinions, or offhand views are not significant to me at all. (A-12, pp. 226-27.)
June 24, 1991 Petition for writ of prohibition and ex parte application for stay of sentencing is denied by Idaho Supreme Court.
The first Brady factor is whether the evidence is favorable to the accused, either because it is exculpatory or impeaching, and, here, certainly the evidence is favorable because it is impeaching. The second factor is whether the prosecution withheld the evidence, either intentionally or inadvertently. Nothing in the record before the Idaho Supreme Court on direct review suggests that the prosecution withheld the evidence. In fact, the prosecution disclosed the evidence within a few months of discovering it. The prosecution did not have the evidence in hand when Wystrach testified at trial and at the first half of the sentencing hearing.
Nor was the evidence material, given that (1) Wystrach's testimony was itself only marginally relevant to sentencing, (2) Wystrach was not to be recalled for the second sentencing hearing, and (3) the Court found her testimony insignificant. Accordingly, based on the record before the Idaho Supreme Court on direct appeal, the claim fails under § 2254(d)(1): it is abundantly clear that the impeachment evidence was disclosed and that Wystrach's sentencing testimony was of little value. Because the Idaho Supreme Court's decision was not contrary to, or an unreasonable application of, Brady and its progeny, habeas corpus relief is unwarranted.
The Idaho Supreme Court did not have before it the Norm O'Driscoll Affidavit, which avers that (1) Wystrach had continuous problems with drugs and alcohol, and (2) police officers knew in October 1989 that she had taken some of his prescription pain medication and appeared intoxicated at a polygraph examination. As noted above, this "expanded version" of the Brady claim was rejected on procedural grounds by the Idaho Court of Appeals on post-conviction appellate review. ...