The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Respondent's Motion for Summary Dismissal, with supporting Reply. (Dkt. 25, 28.) Petitioner requested that he be provided with a copy of the state court record, which Respondent has done. (Dkt.19, 33.) Petitioner has filed a "Demur Response," a "Point of Clarification" (sur-reply), and a supplemental "Adjunct to Demur, Response & Request." (Dkt. 27, 29, 34.) The Motion for Summary Dismissal is now fully briefed.
Having fully reviewed the record, including the state court record, and having considered all of the filings of the parties, the Court finds that the facts and legal arguments have been sufficiently provided 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.
While Petitioner was on parole for a D.U.I. conviction, he pleaded guilty to and was convicted of delivery of a controlled substance in a state criminal action in the Second Judicial District Court of Idaho. The present Petition for Writ of Habeas Corpus challenges only the delivery conviction and sentence. The conviction was the result of a controlled drug buy involving an informant that was planned by law enforcement officers, in which Petitioner sold his own prescription medication to the informant. Petitioner's judgment of conviction was entered on October 25, 2006. (State's Lodging A-1.)
Petitioner filed a direct appeal, contending that the trial court abused its discretion by imposing an excessive sentence. (State's Lodging B-2.) The Idaho Court of Appeals affirmed the trial court's sentence, and the Idaho Supreme Court denied the petition for review. (State's Lodging B-4 to B-7.)
Petitioner filed a first petition for post-conviction relief alleging that (1) his trial counsel was ineffective for failing to attempt to suppress evidence that was obtained in violation of the Fourth Amendment, and by failing to disqualify the trial judge; (2) Petitioner was entitled to a "change of venue" because the trial judge represented him as a public defender "a few years back"; (3) the police or prosecutor withheld information favorable to him, contrary to Brady v. Maryland, 373 U.S. 83 (1963); and (4) the trial judge had a conflict of interest. (State's Lodging C-1, pp.2-3.)
After the state district judge dismissed the post-conviction petition, Petitioner appealed only the dismissal of the change of venue and judicial conflict of interest claims (Claims (2) and (4), above.). The Idaho Court of Appeals affirmed dismissal of the two claims. (State's Lodging D-5.) Petitioner did not file a petition for review before the Idaho Supreme Court. (State's Lodging D-6, Remittitur from Court of Appeals.)
Petitioner filed a successive post-conviction relief petition in state court, and an amended successive petition through counsel. (State's Lodging E-1.) Petitioner again brought the same claims from his first post-conviction petition that the police or prosecutor withheld favorable evidence and that his trial counsel was ineffective; he also brought a new claim that his counsel in the first post-conviction action was ineffective for failing to object to the inadequacy of the state's grounds for summary dismissal and for filing an untimely brief in opposition to the State's motion for summary dismissal. (State's Lodging E-1.) The trial court summarily dismissed the claims, concluding that McCormack failed to show that his repeated claims were inadequately raised in the first post-conviction petition, or that his first post-conviction counsel had been ineffective. (Id.)
Petitioner filed an appeal, and the Idaho Court of Appeals affirmed the trial court's summary dismissal of the successive post-conviction petition. (State's Lodgings F-1 to F-5.) The Idaho Supreme Court denied the petition for review. (State's Lodging F-8.)
Petitioner filed this federal habeas corpus action on July 21, 2011, while the successive post-conviction appeal was still pending. The Court stayed proceedings pending completion of that case, and re-opened this case upon Petitioner's notification to the Court that the state court proceedings had concluded. (Dkt. 12, 13, 16.)
REVIEW OF MOTION TO DISMISS
1. Standard of Law for Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus 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 for 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 (proper exhaustion); 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
Petitioner's Amended Petition for Writ of Habeas Corpus (Dkt. 13-2) contains three claims that can be liberally construed as follows: (1)(a) he was subject to an illegal search in violation of the Fourth Amendment, (1)(b) his trial counsel was ineffective for failing to raise a Fourth Amendment issue; and (2) the State violated his Fourteenth Amendment due process and equal protection rights by withholding evidence favorable to him under Brady v. Maryland. (Dkt. 13-2; 16, pp. 1-2.) The Court will review whether Petitioner presented each of these claims to the Idaho Supreme Court in a procedurally proper manner.
A. Claim 1(a): Fourth Amendment Illegal Search and Seizure ClaimClaim 1(a) is that Petitioner was subject to a warrantless search and illegal wiretapping in violation of the Fourth Amendment. (Dkt. 27, p. 4.) This claim was not brought in the direct appeal or in either of the post-conviction actions. As a result, the claim was never brought before the Idaho Supreme Court. Because the time to do so has expired, the claim is procedurally defaulted and cannot be heard in this action absent a showing of cause and prejudice or a miscarriage of justice.
B. Claim 1(b): Failure of Counsel to Raise Fourth Amendment Claim
Claim 1(b) is that Petitioner's trial counsel was ineffective for failing to raise a Fourth Amendment suppression issue during pretrial proceedings, instead of allegedly manipulating and coercing Petitioner into pleading guilty. (Dkt. 27, p. 4.) Petitioner raised a similar claim in his first post-conviction action, that his trial counsel was ineffective for failing to suppress evidence on the confidential informant, due to an illegal search and seizure. (State's Lodging C-1, pp. 2-3.) After dismissal of the first post-conviction application, Petitioner raised only limited claims on appeal: that trial counsel was ineffective for not seeking disqualification of the judge and a change of venue, and that the trial court had a conflict of interest. (State's Lodging D-2.) After the Idaho Court of Appeals affirmed dismissal of the claims, Petitioner did not file a petition for review.
Petitioner attempted to bring his claims again in a successive post-conviction action, but Idaho Code § 19-4908 sets forth a pre-requisite to having such claims heard on the merits:
All grounds for relief available to an applicant under [the Uniform Post-Conviction Procedure Act] must be raised in his original, supplemental, or amended application. Any ground finally adjudicated.may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application. (See State's Lodgings E-1; F-5, p. 4.)
The state district court found that Petitioner did not meet this standard, concluding, "McCormack has failed to meet his burden of showing his reasserted claims were inadequately raised the first time, especially where he chose note to appeal the original dismissal of the claims." (State's Lodging E-1, p. 64.) The Idaho Court of Appeals agreed. (State's Lodging F-5.) Accordingly, Petitioner's claims were not heard on the merits in the second post-conviction action because of the state procedural bar, the adequacy and independence of which is discussed at length below.
Therefore, Claim 1(b) is procedurally defaulted because it was not presented to the Idaho Supreme Court for review in the first post-conviction action, and it was found to be procedurally barred in the second action. Because there is no appropriate vehicle by which Petitioner could now bring this claim, it is procedurally defaulted and cannot be heard on the merits in this action absent a showing of cause and prejudice or a miscarriage of justice.
C. Claim 2: State's Withholding of Favorable Evidence in Violation of the Fourteenth Amendment Due Process and Equal Protection Clauses
Claim 2 is that the State intentionally withheld favorable evidence from Petitioner during state criminal proceedings, violating Brady, which is a Fourteenth Amendment Due Process claim; in addition, Petitioner has characterized this as an equal protection claim. (Dkt. 13-2; Dkt. 27, p. 5.) Petitioner alleges that the State failed to provide him with the police report, statements of State's witnesses, and the warrants for the search and seizures. (State's Lodging F-7.)
This claim meets the same fate as Claim 1(b), directly above. While Petitioner raised a Brady claim in the first post-conviction action (State's Lodging C-1, p. 2), he appealed only the claims that trial counsel was ineffective for not seeking disqualification of the judge and a change of venue, and that the trial court had a conflict of interest. (State's Lodging D-2.) Thus, the first post-conviction action did not properly exhaust the Brady claim.
Petitioner again raised the Brady claim in his successive post-conviction action, but the trial court did not address the merits of the claim because Petitioner failed to show that it was raised inadequately in the first petition, such that he should be permitted to bring it again, pursuant to Idaho Code § 19-4908. (See State's Lodging E-1.)
The Idaho Court of Appeals likewise declined to reach the merits of the Brady claim based on I.C. § 19-4908, and instead addressed and rejected Petitioner's procedural argument that the trial court failed to give him adequate notice of its dismissal of his successive petition claims. (State's Lodging F-5.)
D. Adequate and Independent State Procedural Bar
The next issue is whether the bar relied upon by the state district court, Idaho Code § 19-4908, is an adequate and independent state procedural bar to prevent this Court from hearing the merits of Petitioner's claims. In Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001), the United States Court of Appeals for the Ninth Circuit clarified: "'In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default.'" Id. at 1093-94 (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). Particularly, the Martinez v. Klauser Court determined that where there is "an absence of prior authority supporting the [state court's] decision" and the decision appears "contrary to [state] law," such a state court decision does not rest on a "clear, consistently applied, and well-established" state procedural rule, and the procedural default may not be applied to bar consideration of the merits of a petitioner's claim in a federal habeas corpus action. Id.
The procedural bar is independent of federal law if there is no indication in the record that the state court considered any federal issue in determining the issue. See Zichko ...