The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus matter is Respondent's Motion for Partial Summary Dismissal. (Dkt. 40.) The Motion is now fully briefed. (Dkt. 42, 43, 44.) 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 shall 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 filed a Sur-Reply in this case, which Respondent has asked the Court to strike. However, because Petitioner is proceeding pro se, the Court will grant leave for the filing and allow the Sur-Reply to stand. As a result, the Court will deny Respondent's Motion to Strike (Dkt. 45) and grant Petitioner's Motion to for Leave to Allow Substitution of Sur-Reply (Dkt. 46), seeking belated permission to file the Sur-Reply. The Court has considered all of the parties' briefing in the decision-making process.
Pursuant to a plea agreement that reduced the number of criminal charges against him from two to one, Petitioner pleaded guilty to and was convicted of one count of lewd and lascivious conduct with a minor, arising from criminal charges in the Fifth Judicial District Court in Twin Falls, Idaho, Case No. CR-2005-11076. The judgment of conviction was entered on October 10, 2006. He was sentenced to a prison term of 15 years determinate with life indeterminate. (State's Lodging A-1.) Petitioner filed a Rule 35 motion for reconsideration of sentence with the state district court, which was denied. (Id., pp.64-66, 74-80.)
Petitioner then filed a direct appeal, which was heard by the Idaho Court of Appeals. Petitioner raised issues of excessive sentencing and failure of the trial court to grant his Rule 35 motion for leniency. (State's Lodging B-4.) Petitioner did not file a timely petition for review with the Idaho Supreme Court. After the Idaho Court of Appeals issued its remittitur, Petitioner filed a petition for review, brief, and motion to accept the untimely petition for review. (State's Lodgings B-5 to B-7.) The Idaho Supreme Court granted the motion permitting the untimely petition for review to be filed, and then it denied the petition for review. (State's Lodging B-8, B-9.)
Petitioner next filed a petition for post-conviction relief, and the state district court appointed counsel for Petitioner. (State's Lodging C-1.) The State filed a motion for summary dismissal, and the state district court issued a notice of intent to dismiss the post-conviction petition. (Id.) After Petitioner's counsel filed a response brief, the trial court issued an opinion and order granting summary dismissal of the petition. (Id., pp.80-88).
Petitioner filed an appeal, in which he presented only one issue: whether, under Estrada v. State, 143 P.3d 833 (Idaho 2006), his Sixth Amendment rights were violated due to trial counsel's alleged failure to advise him of his right to remain silent during his psychosexual evaluation (State's lodging D-1). The Idaho Court of Appeals affirmed the dismissal of the petition, determining that Petitioner failed to show that he suffered prejudice because, during his change of plea colloquy with the trial court, he "waiv[ed] his right to remain silent and participat[e] in the psychosexual evaluation. The waiver was voluntary, knowing and intelligent." (State's lodging D-4, pp.6-7.) Petitioner's petition for review with the Idaho Supreme Court was denied. (State's Lodging D-5.)
Petitioner next filed a successive petition for post-conviction relief, and then an amended petition through counsel, which included three claims of ineffective assistance of trial counsel: (1) counsel coerced Petitioner into waiving his preliminary hearing; (2) counsel failed to object to statements that Petitioner had intercourse with the victim and failed to inform the trial court that the victim's medical assessment did "not provide evidence of intercourse;" and (3) counsel failed to explore Petitioner's mental health issues, which might have allowed counsel "to recommend treatment options outside prison." (State's Lodging E-1, pp. 43-44.) Pursuant to a motion to dismiss filed by the State, the state district court entered a memorandum decision and a separate judgment dismissing Ellis's successive post-conviction petition with prejudice. (Id., pp.156-173.)
Petitioner next filed an appeal, challenging only the summary dismissal of his successive post-conviction claim that his trial "counsel failed to object to an inaccurate statement of the sentencing judge that Petitioner had 'full blown intercourse repeatedly with a 9 year old girl'" (State's Lodging F-1, p.6). The Idaho Court of Appeals affirmed the summary dismissal. (State's Lodging F-6.) The petition for review with the Idaho Supreme Court was denied, concluding all state court proceedings. (State's Lodging F-7, F-8.)
This federal habeas corpus case was stayed for a brief time, pending Petitioner's completion of his state court matters challenging the same conviction and sentence. The Court re-opened the case when the state court proceedings concluded, and Respondent's Motion for Partial Summary Dismissal followed.
MOTION FOR PARTIAL SUMMARY DISMISSAL
1. Standard of Law Governing Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus or claims contained in the petition 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." In such case, the Court construes the facts in a light most favorable to the petitioner. It is appropriate for the Court to take judicial notice of court dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
2. Standard of Law Governing Procedural Default
Habeas corpus law requires that a petitioner "exhaust" his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it to the highest state court for review in the manner prescribed by state law. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court may deny the claim on its merits, but it cannot otherwise grant relief on unexhausted claims. 28 U.S.C. § 2254(b). The petitioner can satisfy the exhaustion requirement by showing that (1) he has "fairly presented" his federal claim to the highest state court with jurisdiction to consider it, or (2) that he did not present the claim to the highest state court, but no state court remedy is available when he arrives in federal court (improper exhaustion). Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To exhaust a habeas claim properly, a habeas petitioner must "invok[e] one complete round of the State's established appellate review process," O'Sullivan v. Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the alleged constitutional error at each level of appellate review. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Improperly exhausted claims are deemed "procedurally defaulted." Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts, as discussed directly above; or (3) when the Idaho courts have rejected a claim on an independent and adequate state procedural ground. See Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)).
3. Discussion of Procedural Default
Respondent alleges that Claims 1 through 5 and 7 in the Petition for Writ of Habeas Corpus are procedurally defaulted:
Claim 1: "Newly discovered evidence. The petitioner obtained a Medical
Report from the Magic Valley Regional Medical Center . . . which says 'no previous allegations of abuse' . . . 'no evidence of any scars' . . . 'no fessures [sic] and no tears, and normal anatomy.'" (Dkt. 34, p.3.) [Due process under 5th and 14th Amendments.]
Claim 2: The trial court used false information at sentencing against Ellis, saying he repeatedly had sexual intercourse with the victim, which was inconsistent with the findings of the medical report. (Id., p.4.)
[Due process under 5th and 14th Amendments.]
Claim 3: Ineffective assistance of trial counsel for failing to obtain medical reports allegedly showing Ellis did not engage in sexual intercourse with the victim. (Id., pp.4-5.) [6th Amendment.]
Claim 4: Ellis's guilty plea was induced by trial counsel's coercion and threats. (Id., p.5.) [Due process under 6th and 14th Amendments.] Claim 5: (5) The trial court violated Ellis's privilege against self-incrimination by improperly considering, for sentencing, statements Ellis made to the polygraph examiner. (Id., pp.6-8.) [5th Amendment right against self-incrimination.]
Claim 7: The trial court considered unproven and inconclusive information resulting in the imposition of a more severe sentence. (Id.) [Due process under 5th and 14th Amendments.]
(Respondent's Brief, Dkt. 40-1, pp. 5-7, citing Amended Petition for Writ of Habeas Corpus, Dkt. 34.) Claim 6 is not at issue, which is ineffective assistance of trial counsel for failure to object or challenge the State or the trial court for using inflammatory information that was not based upon fact or the record. (Dkt. 34, p. 9.)
Because Petitioner brought only a few claims before the Idaho Supreme Court, notwithstanding the large number of post-judgment filings he made, the simplest way to determine whether Petitioner presented Claims 1-5 and 7 to the Idaho Supreme Court in a procedurally proper manner is to ...