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Gene Francis Stuart v. Greg Fisher

September 5, 2012


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



Currently pending before the Court in this capital habeas matter is Respondent's Motion to Dismiss Procedurally Defaulted Claims. (Dkt. 92.) The Court finds that the parties have adequately stated the facts and legal arguments in their briefs and that the decisional process would not be significantly aided by oral argument. In the interests of avoiding further delay, the Court will decide this matter on the written motion, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1.

For the reasons set forth below, the Court concludes that the following claims in the Amended Petition were either properly exhausted in the state courts, in whole or in part, or that any procedural default will be excused: Claim 2A (as limited herein), 5, 6, 7 (limited), 8 (final ruling is reserved), 10, 11, 13 (limited), 14-21, 22 (limited), 24A, 24C, and 27. The Court concludes that the following claims are procedurally defaulted and will be dismissed on that basis unless Petitioner can show cause and prejudice: Claim 1, 2B, 2C, 2D, 2E, 3, 4, 9, 12, 23, 24B, 24D, 25, 26, 28, and 29. Because Petitioner contends that his appointed counsel's alleged ineffectiveness in state court is the cause for the default of many of these claims, and because this Court finds that the ineffective assistance of counsel claims that Petitioner has included as an independent basis for relief (Claim 27) do not rest on an adequate state procedural ground that would otherwise bar federal review, the Court will await further briefing on Claim 27 before issuing a final order dismissing any procedurally defaulted claims.

Accordingly, Respondent's Motion will be conditionally granted in part and denied in part.


After a jury trial in 1982, Gene Francis Stuart was convicted of first-degree murder by torture for beating to death three-year-old Robert Miller, a child who had been entrusted to his care. The trial court sentenced him to death, and the Idaho Supreme Court affirmed the judgment on direct appeal. State v. Stuart, 715 P.2d 833 (Idaho 1986), affirmed after rehearing 715 P.2d at 897.

In 1986, the attorney who had represented Stuart at trial and on direct appeal, Robert Kinney, filed a post-conviction petition on Stuart's behalf. Although Kinney raised numerous claims in the petition, he did not allege that he had been constitutionally ineffective at trial, sentencing, or on direct appeal. (Id.) The district court dismissed the petition without an evidentiary hearing, and the Idaho Supreme Court affirmed. Stuart v. State, 801 P.2d 1216 (Idaho 1990).

While the initial post-conviction appeal was still pending, Kinney uncovered evidence that personnel in the Clearwater County Sheriff's Office may have secretly monitored or recorded conversations between Stuart and his attorneys while he was awaiting trial in the county jail. (State's Lodging E-1, pp. 27-46.) Based on this information, Kinney filed a second petition for post-conviction relief in 1988, claiming that the State had violated Stuart's constitutional rights to the assistance of counsel and to due process of law. (Id.) This core claim would be litigated in the state courts for the next 13 years.

Initially, the district court dismissed the second petition summarily. (State's Lodging E-1, pp. 96-103, 176-77.) The Idaho Supreme Court reversed that decision and remanded for further proceedings. Stuart v. State, 801 P.2d 1283, 1285-86 (Idaho 1990). On remand, the district court held an evidentiary hearing, after which it determined that Stuart had failed to carry his burden to prove that any of his conversations with his attorneys had, in fact, been monitored or recorded by law enforcement officials. (State's Lodging G-2, pp. 569.)

The Idaho Supreme Court reversed the district court and remanded the case a second time. Stuart v. State, 907 P.2d 783 (Idaho 1995). It doing so, it held that the lower court had erred in not giving Stuart the benefit of a favorable inference from the destruction of certain evidence -- jail telephone logs -- that had been in the State's possession. Id. at 793-94.

To this point, Robert Kinney had represented Stuart in all of his state court proceedings, but in 1995 he accepted an offer of employment out of state. (State's Lodging K-1, pp. 40-44.) Kinney was allowed to withdraw, and the district court appointed new counsel, Scott Chapman, who represented Stuart in the second remand proceeding related to the monitoring of Stuart's attorney/client communications. (Id.)

After holding another evidentiary hearing, the district court again denied relief. (State's Lodging K-2, pp. 367-95.) While the court assumed that Stuart's conversations had been monitored, it concluded that the State had carried its burden to prove that all material evidence presented at the trial was discovered independently of any violation of Stuart's constitutional rights. (Id. at 383-95.) On December 4, 2001, the Idaho Supreme Court affirmed, putting this issue to rest in the state courts. Stuart v. State, 36 P.3d 1278 (Idaho 2001).

During the mid-1990s, Stuart was also pursuing separate collateral relief in the form of a motion for relief from judgment. There, he argued that a new Idaho Supreme Court decision, State v. Tribe, 852 P.2d 87 (1993), which had reversed a trial court's failure to give a lesser included offense instruction in a murder by torture case, should be applied to his case. (State's Lodging I-1, pp. 1-11.) The motion was unsuccessful in the district court, and the Idaho Supreme Court affirmed the denial of relief, concluding that Stuart was not entitled to retroactive application of Tribe. See Stuart v. State, 914 P.2d 933 (Idaho 1996).

Stuart finally arrived in federal court in January of 2002 when he filed a Statement of Issues. (Dkt. 1.) This Court appointed new counsel and issued a stay of execution, and Stuart filed a Petition for Writ of Habeas Corpus on June 24, 2002. (Dkts. 5, 17.) In his Petition, he raised claims of ineffective assistance of counsel for the first time in any court, and he asked the Court to hold the Petition in abeyance while he attempted to exhaust these and other new claims in the state courts. (Dkt. 26.) Respondent did not object, and the Court granted the request. (Dkts. 31, 32.)

Stuart returned to state court and filed a successive petition for post-conviction relief, raising claims of ineffective assistance of counsel, prosecutorial misconduct, and an Eighth Amendment claim based on the length of time he had been confined. (State's Lodging O-1, pp. 1-40.) In 2007, the district court dismissed the petition as untimely under the special post-conviction rules for capital cases set out in Idaho Code § 19-2719. The Idaho Supreme Court dismissed the appeal from the district court's decision after concluding that all claims were procedurally barred by the statute. Stuart v. State, 232 P.3d 813, 820 (Idaho 2010).

Also pending in state court at the same time was yet another successive collateral action containing multiple claims based on Ring v. Arizona, 536 U.S. 584 (2002). The district court's dismissal of that action was affirmed by the Idaho Supreme Court in Rhoades, et al. v. State, 233 P.3d 61 (Idaho 2010).

In 2011, this Court lifted the stay of the federal habeas case and permitted Stuart to file an Amended Petition, in which he has raised 29 claims for relief. (Dkts. 69, 78.)

Respondent has responded to the Amended Petition with the pending Motion to Dismiss Procedurally Defaulted Claims, arguing that all claims, except aspects of Claims 2 and 22, were not properly exhausted in the Idaho state courts must now be dismissed as procedurally defaulted. (Dkt. 92, p. 2.)

Petitioner has submitted a Brief in Opposition, and Respondent has filed a Reply. (Dkts. 100, 118.) The matter is fully briefed and the Court is now prepared to issue its ruling.



A habeas petitioner must exhaust all potential remedies in state court before a federal court can grant relief on a constitutional claim. 28 U.S.C. § 2254(b)(1)(A). This requirement is technically satisfied when no state court remedies remain available, but the federal court must also ask whether the petitioner exhausted his potential remedies properly. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). To do so, he must have "fairly presented" each constitutional claim at all levels of the state's appellate review process, giving the state courts a full and fair opportunity to correct the alleged error before the federal court intervenes. Boerckel, 526 U.S. at 848; Baldwin v. Reese, 541 U.S. 27, 29 (2004).

When a petitioner has not fairly presented a habeas claim to the state courts, and it is now clear that the claim would be barred by a state procedural rule, the claim has been procedurally defaulted. Gray v. Netherland, 518 U.S. 152, 161 (1996). Similarly, a constitutional claim is also defaulted when the state court expressly denied or dismissed it after invoking a state procedural bar. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). If the state's procedural rule is both independent of federal law and adequate to support the state court's judgment, the defaulted claim will not be considered in a habeas proceeding, unless the petitioner can establish cause for his default and actual prejudice, or he can show that he is probably innocent. Id. at 750.

Only those state procedural rules that are "independent and adequate," however, will prevent federal habeas review on the merits. To be independent, the rule must not be interwoven or intertwined with federal law. La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). To be adequate, the rule must be "clear, consistently applied, and well-established" at the time of the petitioner's purported default. Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994).

Procedural default is an affirmative defense, and the initial burden rests with the state's representative to plead the existence of a state procedural bar. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). The burden then shifts to the petitioner to call the adequacy of the bar into question. Id. If the petitioner asserts factual allegations that tend to demonstrate that the rule is inadequate, the state will bear the ultimate burden of proving "that the state procedural rule has been regularly and consistently applied in [state] habeas actions." Id. at 586.

In a situation that is apparently unique to Idaho, certain constitutional sentencing errors in capital cases will be heard in a federal habeas proceeding regardless whether the petitioner fairly presented them to the Idaho Supreme Court. A panel of the Ninth Circuit has determined that the Idaho Supreme Court considers, either implicitly or explicitly, some sentencing errors as part of its automatic statutory review of death sentences under Idaho Code § 19-2827(c)(1). Beam v. Paskett, 3 F.3d 1301, 1306 (9th Cir. 1993) partially overruled on other grounds by Lambright v. Stewart, 191 F.3d 1181, 1187 (9th Cir. 1999).

The generosity that Beam bestows on capital habeas petitioners is not boundless, and the scope of habeasreview will be no broader than the Idaho Supreme Court's mandatory review, which is limited to reviewing the imposition of the death sentence in the case before the state appellate court. See Beam, 3 F.3d at 1306. Claims that make a broad-based constitutional challenge to Idaho's death penalty process, are based on matters outside of the record before the Idaho Supreme Court, or allege that the Idaho Supreme Court itself erred during its direct or post-conviction appellate review, are not encompassed by that automatic review.

With these standards in mind, the Court now turns to the claims that Respondent asserts are defaulted in this case.


Claim 1

In his first claim, Stuart contends that the State failed to provide him with counsel "for ten days or more after his arrest," violating his rights under the Sixth, Eight, and Fourteenth Amendments. (Dkt. 78, pp. 3-4.) He asserts that his statements to law enforcement officers during that time were obtained unlawfully. (Id.) Respondent counters that Stuart has never raised this claim in the Idaho Supreme Court and that the time to do so has long since passed. (Dkt. 92-1, p. 10.) Stuart appears to concede that he failed to raise the claim expressly, but he argues that it is a "Beam claim" that the Idaho Supreme Court implicitly reviewed, at least to the extent that the claim has a "sentencing component." (Dkt. 105, p. 22.)

If there is a sentencing component to this claim, Stuart does not explain what it is beyond a conclusory assertion that he was deprived of a "reliable sentence." (Dkt. 78, p. 3.) But if the Court were to assume that Stuart means that the Idaho Supreme Court implicitly reviewed whether the sentencing court's consideration of the allegedly unlawfully obtained evidence rendered his death sentence "unreliable," this Court would find such a theory to be inconsistent with the Beam rationale. While the Court has turned aside the State's repeated argument that the operative language in Beam was either dicta or has since been overruled, it will not extend Beam beyond its scope, which "is limited to constitutional errors that are alleged to have occurred during the imposition of the death sentence in a particular case." Hoffman v. Arave, 937 F. Supp. 1152, 1159 (D. Idaho 1997) rev'd on other grounds, 236 F.3d 523 (9th Cir. 2001). To find, as Stuart suggests, that any error in the admission of evidence at a jury trial in a capital case will necessarily have an Eighth Amendment sentencing component would expand Beam beyond recognition. The Court declines Stuart's invitation to follow that path.

Stuart attaches an "unreliable sentencing" tag to many, if not most of his guilt-phase claims in the Amended Petition, and the Court will not re-tread this same ground for each claim. It is sufficient to say that unless a guilt-phase claim was fairly presented to the Idaho Supreme Court, Beam will not save it from procedural default.

Accordingly, Claim 1 is procedurally defaulted in its entirety.

Claim 2 For his second claim, Stuart alleges, in six sub-parts, various instances of prosecutorial misconduct that he contends deprived him of his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.*fn1

Subclaim A

In Claim 2A, Stuart asserts that the prosecution used incriminating information that it obtained unlawfully from secret monitoring and recording of his pre-trial conversations with his attorneys. (Dkt. 78, p. 6.) He contends that the prosecution learned the identities and locations of his ex-wives and girlfriends who would eventually provide incriminating testimony at his trial about how he had abused them. (Id.)

This claim was fairly presented to the Idaho Supreme Court and is now properly exhausted, but only to the extent that Stuart alleges that the State's actions violated his right to the assistance of counsel under the Sixth Amendment and his right to due process of law under the Fourteenth Amendment. (State's Lodging F-1, pp. 22-55.) Any legal theory that relies on the Fifth Amendment's clause against compelled self-incrimination was not fairly presented and is now defaulted. Likewise, for the reasons given above, the Court does not find that an "unreliable sentencing" claim was implicitly considered as part of the Idaho Supreme Court's automatic review responsibilities per Beam.*fn2

Subclaim B

Next, Stuart alleges that police officers failed to provide him with proper Miranda warnings because, though they told him that he was entitled to a lawyer, they did not inform him that a lawyer would be provided for him if he could not afford one. He also contends that officers elicited incriminating statements from him during interview sessions in violation of his right to counsel, and that his statements were used during his criminal trial in violation of his Fifth, Sixth, and Fourteenth Amendment rights. Stuart has never raised these substantive issues in the Idaho Supreme Court, and no part of this subclaim is saved by Beam. As a result, the claim is procedurally defaulted.

Subclaim C

Stuart contends that information allegedly obtained from his private address book by the mother of the deceased victim, Kathy Miller, "violated his reasonable expectation of privacy and, therefore, his Fourth and Fourteenth Amendment right against unreasonable search and seizure and due process." (Dkt. 78, pp. 14-15.) This claim has never been presented to the Idaho Supreme Court and is procedurally defaulted.

Subclaims D, E, and F

In these subclaims, Stuart asserts that the trial prosecutor vouched for the credibility of witnesses and made other improper statements during his closing argument (Claim 2D), tampered with testifying witnesses (Claim 2E), and knowingly withheld mitigation evidence from Stuart and the trial court (Claim 2F).

While Claim 2D has never been presented to the state courts, Stuart attempted to raise the material allegations in Claims 2E and 2F in his 2002 successive post-conviction petition. In 2007, the state district court dismissed those claims as untimely under Idaho Code ยง 19-2719, concluding that Stuart reasonably could have known of the facts ...

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