The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus matter is Respondent's Motion for Partial Summary Dismissal. (Dkt. 16.) The parties have consented to a United States Magistrate Judge conducting all proceedings, in accordance with 28 U.S.C. § 636(c). (Dkt. 14.) 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, Respondent's Motion will be granted in part and denied in part. The Court finds that certain claims of ineffective assistance of counsel are procedurally defaulted, but before those claims are dismissed, Petitioner will have an opportunity to submit additional briefing to show cause and prejudice under Martinez v. Ryan, 132 S.Ct. 1309 (2012).
On April 13, 2004, the State charged Petitioner with two counts of attempted second degree murder, with a sentencing enhancement for the use of a firearm, based on an incident in which Petitioner shot two individuals in an alley behind a bar in Bellevue, Idaho. (State's Lodging A-1, pp. 65-66; A-2, pp. 217-28.) The case proceeded to a jury trial, and Petitioner was found guilty as charged. (State's Lodging A-2, pp. 285-87.) The trial court sentenced Petitioner to an aggregate prison term of 25 years, with the first 11 years fixed, and his motion to reduce his sentences under Idaho Criminal Rule 35 was denied. (State's Lodging A-2, pp. 300-05; State's Lodging C-1, p. 34.)
On direct appeal, Petitioner raised two issues: (1) whether his right to self-incrimination under the Fifth Amendment had been violated by a court-ordered psychological examination with the State's mental health expert before trial; and (2) whether his right to claim a psychotherapist/patient privilege had been violated. (Dkt. 5-2, p. 4.) The Idaho Court of Appeals concluded that these issues lacked merit, and it affirmed. (Dkt. 5-1, pp. 4-8.) Petitioner did not file a petition for review in the Idaho Supreme Court within the 21-day deadline, and his attempt to file a petition nearly two years late was denied. (State's Lodgings B-2 - B-8.) In a separate appeal, the Idaho Court of Appeals affirmed the denial of Petitioner's Rule 35 motion to reduce his sentences. (State's Lodging D-5.)
Petitioner next submitted an application for post-conviction relief in state district court. (State's Lodging E-1, pp. 6-9.) The court appointed counsel, who filed an amended petition on Petitioner's behalf raising numerous claims, including claims of ineffective assistance of trial and appellate counsel. (State's Lodging E-1, pp. 21-24, 164-73.) The court eventually granted the State's motion to dismiss, and the petition was dismissed without an evidentiary hearing. (State's Lodging E-2, pp. 372-405.)
Petitioner represented himself on appeal from the district court's post-conviction order. Among other issues, he argued that the district court had erred in summarily dismissing his ineffective assistance of counsel claims, but the Idaho Court of Appeals concluded that "as to most of his claims[,] he points this Court to no evidence in particular that would have created a genuine issue of material fact precluding summary dismissal." (Dkt. 6, p. 3.) Because of this deficiency, the Court of Appeals did not reach the merits of "any of [Petitioner's] claims for which he has presented no more specific argument," finding those issues to be waived. (Id.) Instead, the Court of Appeals addressed only whether Petitioner's counsel was ineffective in (1) conceding the weapons enhancement charge during the criminal trial, (2) failing to file a petition for review during the direct appeal, and (3) failing to introduce a medical report and testimony at the trial. (Dkt. 6, pp. 5-7.) Finding no merit to these or any other issues, the Idaho Court of Appeals affirmed the district court. (Id. at 9.) Petitioner filed a petition for review in the Idaho Supreme Court, which was denied. (State's Lodgings F-3, F-4.)
With the assistance of retained counsel James K. Ball, Petitioner submitted a Petition for Writ of Habeas Corpus in this Court on July 14, 2011, which he amended on August 24, 2011. (Dkts. 1, 4-1, 25.) In his Amended Petition, Petitioner alleges that he was deprived of the effective assistance of counsel on numerous grounds (Claim A), that his Fifth Amendment rights were violated by the trial court's order that he submit to a psychological evaluation with the State's expert and that his own mental health expert prepare a report (Claim B), and that he was not afforded due process of law in the post-conviction matter because the trial court prohibited him from testifying (Claim C).*fn1 (Dkt. 25, pp. 8-15.)
Respondent has filed a Motion for Partial Summary Dismissal, in which she contends that Petitioner did not satisfy the exhaustion requirement as to all claims in the Amended Petition -- except Subclaim A-1 and Claim B -- and that those claims must now be dismissed as procedurally defaulted. (Dkt. 16.) Respondent also seeks dismissal of Subclaim A-8 and Claim C on the alternative ground that those claims are not cognizable in this federal habeas proceeding because they assert errors in the state post-conviction process. (Id.)
Petitioner has filed his Response (Dkt. 26), and the case is now ripe for review.
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to dismiss a petition for writ of habeas corpus summarily when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." When a court is considering a motion to dismiss, it may take judicial notice of facts outside the pleadings. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1281 (9th Cir. 1986).*fn2 A court may look beyond the complaint to matters of public record, and doing so does not convert a motion for summary dismissal into a motion for summary judgment. Id. The Court shall take judicial notice of those portions of the state court record lodged by Respondent.
A habeas petitioner must exhaust his remedies in the state courts before a federal court can grant relief on constitutional claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This means that the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Baldwin v. Reese, 541 U.S. 27 (2004). In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, ...