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Richard A. Leavitt v. A.J. Arave

June 1, 2012


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



Pending before the Court in this capital habeas matter is Petitioner's Motion for Relief from Judgment [and] Application for Further Stay of Execution. (Dkt. 318.) Having recently completed all appeals, Petitioner has now returned to this Court seeking relief from judgment based on a March 2012 Supreme Court case, Martinez v. Ryan, 132 S.Ct. 1309 (2012), which recognized for the first time that serious errors committed by a habeas petitioner's state post-conviction counsel may serve as a reason to excuse the petitioner's failure to exhaust claims of ineffective assistance of trial counsel. Relying on Martinez, Petitioner argues that he was unable to exhaust certain trial-related ineffective assistance claims because of the ineffective assistance of his appointed post-conviction counsel.

For the reasons set for more fully below, the Court concludes that Petitioner has failed to show that extraordinary circumstances exist to reopen the judgment. In reaching that conclusion, the Court finds that Petitioner is barred from requesting reconsideration of any claims that have been already decided on the merits in this habeas matter or from adding new grounds for relief that were not included within Claim 9 of the First Amended Petition. In addition, Petitioner has not established that any of his defaulted claims of ineffective assistance of trial counsel are substantial. Martinez therefore provides him no relief.


On July 21, 1984, the decomposing body of Danette Elg was discovered in her home. She had been stabbed repeatedly with exceptional force and had died on her punctured waterbed. After a brief investigation, Richard Leavitt was charged with Elg's murder.

The Bingham County Public Defender, David Parmenter, was appointed to represent Leavitt. (State's Lodging A-1, pp. 4-5.) Parmenter had filed several routine motions when Leavitt's family hired private counsel, Jay Kohler, who was assisted by his co-counsel Ron Hart. (State's Lodging A-1, pp. 17-18.) The case proceeded to a jury trial with attorneys Kohler and Hart, after which Leavitt was convicted of first degree murder and other associated felonies. (Id. at 815-17.) In 1985, the state trial court sentenced him to death. (Id. at 862-67.)

Within 42 days of judgment, a post-conviction petition alleging ineffective assistance of trial counsel was filed on Leavitt's behalf, in compliance with Idaho's special pre-appeal, post-conviction procedure governed by Idaho Code § 19-2719. (State's Lodging B-1, pp. 1-3.) The trial court then re-appointed Parmenter to represent Leavitt in the post-conviction matter while the direct appeal was delayed. (State's Lodging A-3, pp. 880.) After an evidentiary hearing in April 1987, at which Jay Kohler and other witnesses testified about aspects of trial counsel's representation, the trial court denied relief. (Id. at 10-18; State's Lodging B-2, pp. 145-75.)

During the subsequent appeal to the Idaho Supreme Court ("the 1989 appeal"), Parmenter raised issues of ineffective assistance of trial counsel, including allegations that Kohler and Hart had failed (1) to call witnesses as requested by Leavitt to show the supposed bias of the Blackfoot Police Department, (2) to present evidence regarding voice identification, (3) to pursue evidence of alternative perpetrators, and (4) to object to prosecutorial misconduct. (State's Lodging C-1, pp. 29-33.) The Idaho Supreme Court rejected all of these issues, finding that "the defendant's asserted deficiencies of counsel deal with disagreements with strategic judgments with his trial counsel." State v. Leavitt, 775 P.2d 599, 605 (Idaho 1989) ("Leavitt I"). The Idaho Supreme Court also determined that even if trial counsel had committed errors, Leavitt had not shown that his right to a fair trial had been prejudiced. Id. While the court affirmed all other trial-related claims, it reversed Leavitt's death sentence and remanded for resentencing. Id. at 607.

Parmenter continued to represent Leavitt during resentencing proceedings in the state district court. (State's Lodgings D-2.) After conducting a second sentencing hearing in late 1989, the trial court re-imposed a death sentence in early 1990. (State's Lodging D-2, pp. 19-37.) Parmenter did not seek post-conviction relief from the new sentence, and his second appeal to the Idaho Supreme Court on Leavitt's behalf was unsuccessful. State v. Leavitt, 822 P.2d 523 (Idaho 1991) ("Leavitt II").

With the assistance of new counsel, Leavitt filed a Petition for Writ of Habeas Corpus in this Court in 1993, which he later amended. (Dkts. 13, 41.) In Claim 9 of the First Amended Petition, Leavitt alleged that he had been deprived of his Sixth Amendment right to the effective assistance of counsel at trial, post-conviction, re-sentencing, and on appeal. (Dkt. 41, pp. 19-23.) Specifically, he alleged that his appointed attorneys were ineffective in the following ways:

(a) Failing to object to the prosecutor's questioning of witnesses about Leavitt's exercise of his constitutional right not to provide a blood sample without a warrant (¶ 59-62);

(b) Failing to have Leavitt examined by an independent psychiatric expert before trial (¶ 63-65);

(c) Not investigating Leavitt's mental condition as mitigating evidence before the 1989-90 resentencing hearing (¶ 65-70);

(d) Failing to "investigate and call witnesses to show police bias against [Leavitt] and to counter the forensic serology evidence introduced by the state" (¶ 70);

(e) Not objecting to prosecutorial misconduct "during trial and closing argument" (¶ 71);

(f) Failing to "move for the exclusion of certain evidence including testimony that Petitioner had a knife while engaging in consensual sexual intercourse with a woman and the improper cross-examination of [Leavitt] by the prosecution"; (¶ 72);

(g) Failing to investigate and prove "the existence of juror misconduct" (¶ 73);

(h) Failing to investigate and raise instructional issues "on appeal and in the post-conviction proceeding," including the trial court's failure to instruct on the presumption of innocence and the requirement of proof beyond a reasonable doubt. (¶ 74).

(Dkt. 41, pp. 19-23.)

Respondent filed an Answer, asserting that numerous claims had not been properly exhausted in the Idaho Supreme Court and must be dismissed as procedurally defaulted, including Claim 9. (Dkt. 43, pp. 6-7.) Leavitt submitted a Traverse, contending, in part, that Claim 9 "was either considered by the court in the first post-conviction petition or defaulted because of the ineffective assistance of counsel on the consolidated appeal and post-conviction." (Dkt. 46, p. 4.) He also argued that David Parmenter failed to assert his own ineffectiveness after the 1989 appeal and the resentencing proceeding because he had a conflict of interest that prevented him from doing so, which served as "cause" to excuse any default. (Id.)

In 1996, this Court concluded that those portions of Claim 9 alleging ineffective assistance of counsel at trial (Kohler and Hart) and resentencing (Parmenter) were procedurally defaulted. (Dkt. 62, pp. 13-15.) The Court found it unnecessary to resolve the procedural default question as to Leavitt's allegation of ineffective assistance of appellate counsel (Parmenter), which presented a conceptually more difficult exhaustion issue, because Leavitt had "fail[ed] to allege any instance of incompetence by his appellate counsel that could have resulted in prejudice to [him]." (Id. at 14-15.) In reaching that conclusion, the Court noted that the only allegations of ineffectiveness that Leavitt had offered involved Parmenter's failure to challenge certain jury instructions on appeal, which the Court determined had been implicitly reviewed on the merits and denied by the Idaho Supreme Court. (Id. at 15.) Because the Idaho Supreme Court had reviewed the merits, Leavitt could show no prejudice from Parmenter's omission of those issues in his brief. (Id.)

In that same Order, the Court turned aside Leavitt's contention that a "conflict of interest" could serve as a reason to excuse his default of his claims of ineffective assistance of trial counsel. (Dkt. 62, p. 15-17.) The Court reached this conclusion because Parmenter had substituted as new counsel before the post-conviction proceeding, meaning that he would have had no conflict that inhibited him from raising any claim as to the quality of Kohler and Hart's representation at the criminal trial and the first sentencing hearing.*fn1 (Id.)

The Court acknowledged that Parmenter may have had a conflict that prevented him from asserting his own ineffectiveness after the direct appeal and the resentencing hearing on remand, but binding Ninth Circuit law at the time precluded Leavitt from relying on such a conflict to establish cause for the default of those claims. (Id. at 17.) In particular, the Court wrote that "because a state prisoner has no Sixth Amendment right to effective assistance of counsel during a state collateral proceeding, counsel's alleged conflicts, failures, or omissions in a post-conviction action can never establish cause." (Id.) (citing Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996)).

Based on this analysis, the Court dismissed Claim 9 from the Amended Petition as procedurally defaulted. (Dkt. 62, p. 19.)

Leavitt filed a motion for reconsideration of the Court's decision to dismiss the claim of ineffective assistance of appellate counsel (Parmenter), but not the dismissal of the trial counsel claims, arguing that the Court erred in construing his allegations too narrowly. (Dkts. 66, 67.) The Court denied the motion after finding that Leavitt had not fairly apprised Respondent or the Court in the Amended Petition of any additional factual allegations. The Court also declined, as futile, Leavitt's invitation to amend his Petition a second time to raise those allegations. (Dkt. 69.)

In 2000, the Court denied Leavitt's remaining habeas claims on the merits, but later reconsidered its decision and granted relief on the grounds that the jury instructions were unconstitutionally deficient in defining reasonable doubt. (Dkt. 120, 142.) The Court entered an Amended Judgment and ordered a new trial, but stayed its order pending an appeal. (Dkts. 142, 158.)

On appeal, the Ninth Circuit Court of Appeals held that Leavitt's claim raising the unconstitutionality of the reasonable doubt instructions was barred by the non-retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288 (1989), and it reversed this Court's decision to grant relief on that claim. See Leavitt v. Arave, 383 F.3d 809, 818-23 (9th Cir. 2004) ("Leavitt III").

In that same opinion, the Ninth Circuit affirmed this Court's rulings as to the dismissal of Leavitt's claims of ineffective assistance of trial and appellate counsel. Leavitt III, 383 F.3d at 840. In doing so, however, it found that this Court had erred in "holding that all of Leavitt's trial-based claims of ineffective assistance were procedurally defaulted," because some of those claims had been exhausted but were nonetheless meritless. See id. at 840, n.40 (emphasis in original). The court cited two such claims that had been properly exhausted -- trial counsel's failure to call a serology expert to testify about the blood evidence and to call police officers to show bias and prejudice -- and determined that those claims "lose on the merits" because they were based on counsel's "tactical decisions." Id.

Despite affirming this Court's decisions as to the trial and appellate ineffective assistance claims, the Ninth Circuit reversed the Court's dismissal of Leavitt's claim that Parmenter had been ineffective at the resentencing proceeding in 1989-90. Leavitt III, 383 F.3d at 840. On that point, the Circuit found merit in Leavitt's argument that the failure to appoint new counsel for a post-conviction action after the resentencing hearing rendered any state default rule unfair and inadequate to bar habeas review on the merits of those claims. Leavitt III, 383 F.3d at 840. The case was remanded for consideration of whether Parmenter was constitutionally ineffective during resentencing. Id.

On remand, the Court held an evidentiary hearing and concluded that Leavitt had established a Sixth Amendment violation because of Parmenter's failure to investigate and present mitigating mental health evidence. (Dkt. 296, 297.) The Court's judgment was again stayed pending appeal, and the Ninth Circuit reversed the grant of habeas relief a second time. Leavitt v. Arave, 646 F.3d 605, 616 (9th Cir. 2011) ("Leavitt IV").

Leavitt next filed a Petition for a Writ of Certiorari in the Supreme Court. While his Petition was pending, the Supreme Court issued its opinion in Martinez v. Ryan, 132 S.Ct. 1309 (March 20, 2012), establishing for the first time that inadequate post-conviction counsel may, under limited circumstances, be a valid "cause" that excuses a procedural default in a federal habeas proceeding. Id. at 1319. Based on Martinez, Leavitt filed the pending Rule 60(b) Motion for Relief from Judgment on May 11, 2012, claiming that "the Court's dismissal of Claim 9 because of procedural default was incorrectly decided."*fn2 (Dkt. 318, pp. 1, 11-12.)

The Supreme Court denied certiorari on May 14, the Court of Appeals issued its Mandate on May 16, and the state district court signed a death warrant for Leavitt the next day, setting an execution date of June 12, 2012. (Dkts. 320, 321, 327-1.)

Respondent has submitted his Response to the Rule 60(b) Motion (Dkt. 337), and Petitioner has filed a Reply (Dtk. 344). The Court has heard the parties' oral argument and it is now prepared to issue its ruling.


Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds, including the catch-all category "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6). A motion seeking relief from judgment under subsection (b)(6) must be brought "within a reasonable time." Fed. R. Civ. P. 60(c)(1).

Rule 60(b)(6) should be used "sparingly as an equitable remedy to prevent manifest injustice." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Accordingly, the Rule allows relief only when a party can establish that "extraordinary circumstances prevented [it] from taking timely action to prevent or correct an erroneous judgment." Id.


1. All Claims That Have Been Denied on the Merits, and All New Claims for Relief, Are Barred In habeas corpus cases, Rule 60(b) motions may not be used to avoid the prohibition set forth in 28 U.S.C. ยง 2244(b) against second or ...

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