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Timothy J. Hansen v. Brent Reinke

September 26, 2012


The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge


Pending before the Court is Respondent's Motion for Partial Summary Dismissal. (Dkt. 55.) Petitioner has filed a Response (Dkt. 62), and Respondent has filed a Reply. (Dkt. 63.) 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, the Court will decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d).

For the reasons set forth below, the Court will grant Respondent's Motion in part and deny it in part. Claim One (A) is dismissed as failing to state claim on which relief may be granted in this proceeding.Claims One (B) and (C), Two (A) and (B), Three (B), and Five will be dismissed as procedurally defaulted. Claims Three (A) and (C), Four, and Six will not be dismissed at this time.*fn1


1. Circumstances Leading to Arrest and Search of Petitioner's Residence

In June of 2001, the Idaho State Police (ISP) was conducting surveillance on the residence of Jerry Windle, located at 7695 Pocatello Creek Road, in Bannock County, Idaho, which they suspected contained a methamphetamine operation. (State's Lodging B-10, p. 1.) Timothy Hansen ("Petitioner") lived in a bus parked next to Windle's main residence. (Id.)

At about 2:00 p.m. on June 7, Officers saw Petitioner leave the Windle residence. (State's Lodging B-1, p. 1.) They stopped his car pursuant to a felony arrest warrant issued by Box Elder County, Utah, and also because he was driving without privileges. (Id.) Officers arrested Petitioner at gunpoint, but without incident, before handcuffing him and placing him in the back of a patrol car. (Id. at 2.)

Without informing Petitioner of his Miranda rights,*fn2 Detective John Ganske told him that ISP believed that methamphetamine was being produced at 7695 Pocatello Creek Road, and Ganske asked Petitioner whether he knew anything about that. (State's Lodging B-1, p. 2.) Petitioner denied knowledge of a meth lab and he refused to consent to a search of the bus or the house. (Id.) Petitioner was then alone in the patrol car for up to 50 minutes while Ganske searched Petitioner's vehicle. (Id.)

Ganske returned and inquired whether Petitioner had any particular tow company that he wanted to tow his vehicle. (State's Lodging B-2, p. 2.) Petitioner asked that his vehicle not be towed, and he then had a conversation with Ganske about possible terms for a search of the bus, terms to which officers agreed (which included only looking at items in plain view), and he signed a consent-to-search form. (Id.)

Officer John Kempf saw enough evidence in and around the bus to suspect that methamphetamine was being manufactured on the Windle property. (Id.) The ISP then obtained a search warrant for the entire premises, and they found a meth lab inside the residence. (Id.)

On October 3, 2001, the prosecutor in Bannock County charged Petitioner with conspiracy to traffic in methamphetamine by manufacturing, pursuant to Idaho Code § 37-2732B(a)(3) and 37-2732(f). (State's Lodging A-1, pp.18-20.)

2. Pretrial Proceedings, Trial, and Direct Appeal

Petitioner filed a motion to suppress all evidence that was found during the warrantless search of his bus and during the search with a warrant of the Windle property, asserting that his consent to search was obtained by duress. (Id., pp.44-45.) The trial court held an evidentiary hearing on the motion, which it denied. (State's Lodging A-2, pp.1-49.) The State later filed an amended information charging only conspiracy to manufacture (not to traffic) methamphetamine. (State's Lodging A-1, pp.53-55; State's Lodging A-2, pp.48-49.)

The case proceeded to a jury trial. (State's Lodging A-2, pp.50-439.) Petitioner was convicted of the charged offense, and was sentenced to ten years fixed with five years indeterminate. (State's Lodging A-1, pp.65-67.)

Petitioner filed a direct appeal, challenging denial of his motion to suppress under the Fourth Amendment, arguing that (1) his consent to search his home (the bus) was coerced because he was in custody and was not first given a Miranda warning; and (2) that his consent was involuntary and the warrantless search was unreasonable. (State's Lodging B-7, p. 6.) The Idaho Supreme Court rejected Petitioner's arguments, concluding that consent was voluntary and not obtained in violation of Miranda, because Petitioner "initiated a conversation regarding his willingness to consent to a search of his home in order to avoid, among other things, his car being towed." (State's Lodging B-10, pp.4-6.) In addition to Petitioner initiating the conversation, the Idaho Supreme Court noted that Petitioner signed the consent-to-search form that placed limits on the search, and Petitioner was advised that he could terminate the search at any time. (Id., p. 6.)

3. Petitioner's Motion to Compel and First Motion to DismissBased on a Videotape of the Stop and Arrest While his direct appeal was pending, Petitioner filed a motion to compel the prosecutor to provide Petitioner with a copy of the police videotape of his vehicle stop and arrest. (State's Lodging C-1, pp.3-4.) After the trial court ordered the prosecutor to provide Petitioner's attorney with the videotape or to file an affidavit explaining why the video tape was unavailable, (id., p.5), the prosecutor filed an affidavit denying knowledge of the existence of a videotape. (Id., pp.9-10.) However, one year later, the prosecutor found and produced a copy of the videotape. (State's Lodging D-2(a), Motion to Dismiss Conviction, p. 2.)

Petitioner next filed a "Motion to Dismiss Convictions" and requested a new trial based on the prosecutor withholding and failing to disclose the videotape prior to the first trial. (State's Lodging D-2(a).) The trial court held a hearing (State's Lodging C-3), and then denied the motion, concluding the videotape was "immaterial with respect to the jury verdict in this case." (State's Lodging C-1, pp.18-19.)

On appeal, Petitioner argued that the trial court abused its discretion in denying the motion and that, had the videotape not been withheld, "the outcome of the suppression motion would have been different and, therefore, the outcome of the trial would have been different." (Id., p.14.) In affirming the district court's decision, the Idaho Court of Appeals relied upon Idaho Code § 19-2406 and State v. Drapeau, 551 P.2d 972, 978 (Idaho 1976) (governing requests for a new trial based upon newly discovered evidence). The Court of Appeals concluded that because "the videotape does not show that Hansen was 'interrogated' by the officers when they returned to the patrol car and conversed with him," Petitioner's allegation of a Miranda violation was without merit, and any suppression motion would have failed. (State's Lodging D-7, pp.4-5.) The Idaho Court of Appeals also refused to address Petitioner's allegations of prosecutorial misconduct, because it is not one of the grounds for a motion for new trial designated in I.C. § 19-2406. (State's Lodging D-7, p.3 n.2.)

Petitioner raised the same issues before the Idaho Supreme Court in his petition for review, which was denied. (State's Lodgings D-6 to D-9.)

4. Second Motion to Dismiss Based on the State's Use of an Agent to Elicit Incriminating Statements While the appeal of his first motion to dismiss was pending, Petitioner filed a pro se second motion to dismiss, with various attachments, in the trial court. (State's Lodging F-2.) The basis of the motion was that former county jail inmate James Burt was acting as a state agent when he heard Petitioner make incriminating statements while they were in custody together, and that the prosecutor knowingly presented false testimony when Burt testified at trial. (State's Lodging E-1, pp.1-5). The trial court construed Petitioner's second motion as a post-conviction relief application, and then denied relief because the application was untimely and alleged no material facts that would support post-conviction relief. (Id., pp.7-10.)

Petitioner filed an appeal, but the case was remanded upon motion of, and by consent of, the parties because the trial court had erred in construing the second motion to dismiss as a post-conviction application instead of a motion for new trial. (State's Lodgings F-1 to F-9.) On remand, the trial court held a hearing and then denied Petitioner's second motion to dismiss, again relying on I.C.R. 34, I.C. § 19-2406 and Drapeau. (State's lodging E-2, pp.128, 140; E-3.)

The trial court found that Petitioner had presented evidence "that the State recruited Burt to get information from Hansen while Hansen was in jail" (id., p.141), but, importantly, the court concluded that the "evidence does not show that Burt took any affirmative action to elicit incriminating statements from Hansen," and, thus, Petitioner's Sixth Amendment rights were not violated. (Id., pp.140-43). In addition, the trial court again addressed the videotape of Petitioner's arrest and concluded that it was not newly discovered evidence that warranted a new trial under Drapeau. (Id., pp.143-45.) The second motion to dismiss was denied, and Petitioner then filed a notice of appeal. (Id., pp.153-56.)

5. Post-Conviction Relief Actions

In 2004, while the second motion to dismiss was still pending, Petitioner filed a post-conviction relief application raising a multitude of claims, including claims of ineffective assistance of counsel. (State's Lodging G-1, pp. 1-49.) After the State responded, the trial court issued a notice of intent to dismiss a claim regarding sufficiency of the evidence, but stayed the remaining claims pending completion of Petitioner's other actions. (Id. at 122-25.) After the case was re-opened, the court dismissed all claims. (Id. at 221-29.)

The appeals of the denial of the second motion to dismiss after remand and the denial of the post-conviction application were initially consolidated before the Idaho Supreme Court, but Petitioner filed a motion to voluntarily dismiss the appeal from the denial of the second motion to dismiss. (State's Lodgings F-14, F-15.) The Idaho Supreme Court granted the motion, leaving only the appeal from the post-conviction action. (State's Lodging F-16). After Petitioner filed his opening brief, the State sought to remand the case because the trial court failed to provide him an opportunity to respond to the reasons for dismissal. (State's Lodging H-3.) The State's motion was granted, and the case was remanded. (State's Lodging H-4.)

During the pendency of these appeals, Petitioner also filed a second post-conviction application in the trial court. (State's Lodging I-1, pp.1-21.) The trial court issued a notice of intent to dismiss the second application. (Id., pp.22-29.)

The parties entered into a stipulation to complete the post-conviction cases based on briefing and documents submitted by the parties rather than an evidentiary hearing. (Stage's Lodging I-1, pp.77-79.) On September 24, 2008, the trial court dismissed all of the claims in both post-conviction applications. (Id., pp.201-24.)

6. Appeal of Both Post-Conviction Actions

Petitioner filed a notice of appeal, and was appointed new counsel. (State's Lodging I-1, pp. 230-32.) On appeal, Hansen raised the following issues: (1) whether the state district court erred by dismissing the ineffective assistance of counsel claims; (2) whether the district court erred by dismissing the prosecutorial misconduct claim regarding failure to disclose the videotape of the traffic stop; (3) whether the appellate court should revisit its previous ruling on the Miranda issue; (4) whether there was sufficient evidence of violation of Massiah v. United States, 377 U.S. 201(1964), to justify further proceedings; and (5) whether there was sufficient evidence to justify further proceedings to permit Petitioner to develop his Napue claim regarding Burt allegedly lying about his motivation for testifying to justify further proceedings. (State's Lodging J-1, p.3)

The ineffective assistance claim contained the following subparts: (A) failing to obtain the transcript of Burt's testimony from a previous trial or impeach Burt with prior inconsistent statements; (B) failing to obtain an accomplice testimony instruction as to Burt; (C) failing to use a police report allegedly containing exculpatory evidence; (D) failing to move to suppress jailhouse ...

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