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James E. Hebert v. Isci Warden Johanna Smith

September 29, 2012


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


Pending before the Court is Petitioner's Petition Opposing Granting the State any Summary Relief (Dkt. 39), which will be treated as a motion to reconsider the procedural default of Petitioner's claims in the Order filed on July 18, 2011 (Dkt. 33). In addition, the remaining claims in the Petition for Writ of Habeas Corpus (Dkt. 3) are now ripe for adjudication. Petitioner has submitted supplemental argument, which has all been considered, along with his earlier submissions. (Dkt. 49.) Petitioner's filings have been liberally construed.

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). Accordingly, the Court enters the following Order denying the Petition for Writ of Habeas Corpus with prejudice.


In August 2002, Petitioner was charged with lewd conduct with a minor under sixteen, involving sexual acts with his teenaged step-daughter, S.E., that occurred between July 1, 1998, and January 27, 2000. (State's Lodging A-1, pp. 17-18.) In October 2002, Petitioner was charged with sexual battery of a minor child under sixteen with the same victim, for sexual acts committed between January 28, 2000, and January 27, 2002. (Id., pp. 28-29.)

S.E.'s version of events is that Petitioner started sexually abusing her at the age of eleven, culminating in S.E. becoming pregnant in September 2000 with Petitioner's baby, when she was sixteen years old. After S.E. became pregnant, she and Petitioner were eventually married in Mexico. DNA evidence showed Petitioner to be the father of S.E.'s child. The child was born in 2001 when S.E. was still seventeen years of age.

Petitioner told a different version of events, as re-told by the Idaho Court of Appeals: "Hebert[] attempt[ed] to explain away [the] proof of intercourse by testifying that not once, but twice, while in a drunken stupor he was raped by S.E." (State's Lodging B-5, p. 6.) The Court of Appeals concluded that Petitioner's explanation of the conception of the baby "lacks plausibility, as does much of the remainder of his testimony." (Id.) After Petitioner was charged with the two counts, his criminal cases were consolidated for jury trial in the Second Judicial District Court, Clearwater County, Idaho. Petitioner was represented by a series of three attorneys during the case: Charles Kovis, Duane Golden, and Jack Hathaway. Mr. Hathaway represented Petitioner at trial.

The prosecution's witnesses consisted of the victim, S.E.; the victim's mother, Deanna Hebert; and Detective Becky Drewery, who had interviewed the victim, the victim's mother, and Petitioner before the charges were brought. The prosecution introduced the DNA test of S.E.'s baby, showing Petitioner was the father to a 99.99% certainty (State's Lodging A-9), as well as a letter from Petitioner to S.E., that appeared to be discussing their sexual encounters and Petitioner's romantic love for S.E. (Petitioner denied this was the intent of the letter and asserted that two pages of the letter were missing that would show that what Petitioner was really saying is that Deanna often played God in the family.)*fn1 (State's Lodgings A- pp. 477-80; State's Lodging A-10.)

Petitioner testified on behalf of himself in his defense. Petitioner's counsel called no other witnesses and would not introduce items such as documentary evidence of Petitioner's marriage to S.E. that occurred after S.E. became pregnant.

A jury convicted Petitioner of both charges. The trial court then sentenced Petitioner to thirty years fixed with ten indeterminate for the lewd conduct crime, and ten years indeterminate for the sexual battery crime, to be served consecutively. (State's Lodging A-1, pp. 165-67.)

Petitioner filed a direct appeal, raising the issue of whether the trial court erred by denying his motion in limine to exclude testimony regarding uncharged sexual contact between him and the victim. The Idaho Court of Appeals affirmed the conviction, concluding that the evidence was properly admitted under the Idaho Rules of Evidence and that a limiting instruction was properly given. Petitioner filed a petition for review before the Idaho Supreme Court, which was denied on June 28, 2005, with the remittitur issuing the same day. (State's Lodgings B-1 through B-9.)

Petitioner next filed a pro se petition for post-conviction relief, raising twenty-two claims and requesting appointment of counsel. (State's Lodging C-1, pp. 1-13.) Petitioner's appointed counsel filed a motion to amend the petition, which was granted. (Id., pp. 25-27 & 28.) An amended petition was not filed, but the claims to be presented were set forth in the motion to amend and a pretrial brief that focused on a reduced number of claims. (Id., pp. 25-27.) Pursuant to the parties' stipulation, the state district court entered a pretrial order ("stipulated order") outlining Petitioner's claims as follows:

(1) ineffective assistance of trial counsel for (a) failing to object to the court granting seven rather than ten peremptory challenges during jury selection, (b) failing to file a motion to dismiss on speedy trial grounds under the Constitution and statute, (c) failing to spend sufficient trial preparation time with Petitioner, and (d) failing to object to the trial judge entering the jury room on two occasions; and (2) ineffective assistance of appellate counsel for failing to challenge (a) the length of Petitioner's sentence, (b) the seven peremptory challenge limit, and (c) the speedy trial issue. (Id., pp. 41-42.) Petitioner asserts that the trial court permitted him to supplement his counsel's presentation of issues with additional issues that Petitioner thought were important. The trial court held an evidentiary hearing, and thereafter denied relief.

On appeal, Petitioner's appointed conflict counsel, Dennis Benjamin, withdrew from the case because he believed there was only one appealable issue, and Petitioner wished to present additional issues. (State's Lodgings D-1 to D-3.) Petitioner then proceeded pro se and filed a brief addressing twenty-two issues. (State's Lodging D-5.) The Idaho Court of Appeals affirmed denial of post-conviction relief, addressing some claims on the merits in detail, and addressing or refusing to address others for lack of merit or on procedural grounds. (State's Lodging D-8.) Petitioner filed a pro se petition for review, which the Idaho Supreme Court denied. (State's Lodgings D-9 & D-10.)

Petitioner filed the federal Petition for Writ of Habeas Corpus in this action on June 30, 2009. The Court dismissed a number of Petitioner's claims as procedurally defaulted. Petitioner objected, arguing that, because he submitted extensive pro se notes regarding claims beyond those limited claims his counsel chose to present, he did, in fact, fully and fairly present his claims to the Idaho courts, and they are not procedurally defaulted. The Court notified Petitioner that it would consider hearing all of his claims on the merits, regardless of whether some are procedurally defaulted.

In her Answer, Respondent Johanna Smith pointed out that the pages of the Petition, which was not numbered, appeared to have been mixed up upon filing, and that the Petition actually contained far fewer claims than the Court originally identified. (Dkt. 3.) Petitioner also agrees that the pages were mixed up. (Dkt. 48.) After reviewing the Petition again, the Court agrees. Rather than having over twenty subclaims, Claim Four has only four subclaims, because the long listing of other claims is part of the procedural history of Petitioner's state post-conviction case, not federal habeas corpus claims, as it earlier appeared.

On February 9, 2012, Petitioner asked that he be permitted to substitute the "argument" portion of his Petition to properly address his claims. The Court will allow both of Petitioner's arguments to remain. (Dkts. 3, 49.)


1. Procedurally Defaulted Claims Can Be Heard on the Merits

Because it is clear that Petitioner's procedurally defaulted claims are without merit, the Court will address them without regard to procedural default. Cf. 28 U.S.C. § 2254(b)(2) (unexhausted claims may be dismissed on the merits). The United States Supreme Court has held that federal courts are not required to address a procedural default issue before deciding against the petitioner on the merits. Lambrix v. Singletary , 520 U.S. 518 (1997); see also Franklin v. Johnson , 290 F.3d 1223 (9th Cir. 2002) ("appeals courts are empowered to, and in some cases should, reach the merits of habeas petitions if they are, on their face and without regard to any facts that could be developed below, clearly not meritorious despite an asserted procedural bar").

2. Standard of Law for Review of Petition for Writ of Habeas Corpus

The Court will review those claims adjudicated by the Idaho Court of Appeals (Claims 1, 2, and portions of Claim 3 and 4) under AEDPA's deferential standard, see 28 U.S.C. § 2254, and those claims not adjudicated by the state appellate court (Claim 5 and portions of Claims 3 and 4) under a de novo standard. See Killian v. Poole, 282 F.3d 1204, 208 (9th Cir. 2002).

Under the Anti-terrorism and Effective Death Penalty Act (AEDPA), federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment only when the federal court determines that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The "last reasoned" state court decision is the subject of AEDPA review. Barker v. Fleming , 423 F.3d 1085, 1091 (9th Cir. 2005).

Under § 2254(d), as amended by, federal habeas corpus relief is further limited to instances where the state-court adjudication of the merits:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the "contrary to" test and the "unreasonable application" test. Under the first test, for a decision to be "contrary to" clearly established federal law, the petitioner must show that the state court applied "a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Court's precedent." Williams v. Taylor , 529 U.S. 362, 404-06 (2000) .

Under the second test, to satisfy the "unreasonable application" clause of § 2254(d)(1), the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Williams , 529 U.S. at 413. A federal court cannot grant relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade , 538 U.S. 63, 75 (2003); Bell v. Cone , 535 U.S. 685, 694 (2002) .

The state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). However, i f the Court determines that the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, then the Court performs a de novo review of the claim. Wiggins v. Smith, 539 U.S. 510, 528 (2003); see also Taylor v. Maddox , 366 F.3d 992 (9th Cir. 2004). Where there has been an unreasonable determination of the facts by the state appellate court, t he writ can be granted only when the petitioner shows a federal violation, as specified in § 2254(a), and either a "contrary" or unreasonable application of federal law or an unreasonable determination of the facts by the state court, as specified in § 2254(d). See, e.g., Ben-Yisrayl v. Buss, 540 F.3d 542, 550 (7th Cir. 2008), cert. denied, 129 S. Ct. 2890 (2009).

Though the source of clearly established federal law must come from the holdings of the United States Supreme Court, circuit law may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).

In Harrington v. Richter, 131 S.Ct. 770 (2011), the United States Supreme Court reiterated that the federal courts may not simply re-determine the claim on its merits after the highest state court has done so, just because the federal court would have made a different decision. Rather, the review is necessarily deferential. If fairminded jurists could disagree on the correctness of the state court's decision, then a federal court cannot grant relief under § 2254(d). Id. at 778. The Supreme Court emphasized: "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 786 (internal citation omitted).

Judicial notice will be taken of the court docket in the underlying state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

3. Claim One (de novo review)

Claim One is that Petitioner was appointed an attorney, John Hathaway, who would not be his voice at trial, contrary to the First Amendment of the United States Constitution, namely, the right to access the courts for the redress of grievances. (Petition, Dkt. 3 at 2.) This claim lies at the intersection of several important rights. The First Amendment protects a person's right to give testimony at a public hearing. See Robinson v. York, 566 F.3d 817, 823 (9th Cir. 2009). The First Amendment also protects a person's right to access the courts. The provision of legal counsel is a constitutionally acceptable method for a defendant to access the courts. See United States v. Cooper, 375 F.3d 1041, 1051-52 (10th Cir. 2004) (citing Lewis v. Casey, 518 U.S. 343, 350-51 (1996)); Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005).

Also bearing on Petitioner's claim is a criminal defendant's right to the assistance of counsel under the Sixth Amendment, made applicable to the states by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). A criminal defendant also has a Sixth Amendment right to waive counsel and represent himself. Faretta v. California, 422 U.S. 806, 807 (1975). "The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." Id. at 819-20.

When a Petitioner elects to be represented by counsel, rather than represent himself, the following Strickland standards apply as to counsel's manner of representation: strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. 466 U.S. at 690-91.

Here, Petitioner chose to be represented by counsel, instead of representing himself. Petitioner disagreed with Mr. Hathaway's chosen strategy for defense of the case, and with counsel's decision not to present evidence that was contrary to the chosen strategy. The defenses that counsel had to choose from were severely limited. In counsel's own words:

As far as any defense on the sexual abuse of a child, Mr. Hebert -- we, for that matter, myself and Mr. Hebert were in serious trouble because he had not only someone under 18, we had someone under 18 who bore a child by him. Who had been on a truck by him -- or with him, long-haul trucking. (State's Lodging C-3, p. 386.)

The defenses were also limited by law; for example, the parties' marriage was not a defense to the criminal charge, which was for conduct alleged to have occurred pre-marriage, and the time for the sexual conduct was marked by counting back from the birth of the child into the victim's sixteenth year of age. Under these very difficult circumstances, nothing in the record shows that Mr. Hathaway's strategy or investigation was inadequate to the degree that he "made errors so serious that counsel was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland, 466 U.S. at 687, a standard analogous to Petitioner's claim that counsel was not functioning as Petitioner's "voice" under the First Amendment. Neither does the record reflect that Petitioner's defense was prejudiced by the strategy, investigation, or presentation of the defense, as the Court more fully explains below in its discussion of the ineffective assistance of counsel claims.

Petitioner suggests that his trial counsel's performance was so deficient that trial counsel entirely failed to subject the prosecution's case to meaningful adversarial testing, meeting the test of United States v. Cronic, 466 U.S. 648, 659 (1984). The record does not support such an assertion. Petitioner's counsel put on an adequate defense, filing various motions in limine, (State's Lodging A-1), cross-examining the victim with tactfulness, cross-examining the other witnesses, objecting to the State's evidence, and putting on Petitioner's defense of being raped through Petitioner's own testimony. (State's Lodgings A-3 through A-6: D-8, p. 11.) Mr. Hathaway argued in closing that James' testimony of rape was never refuted by the victim or her mother. (State's Lodging A-6.) In short, Petitioner's counsel developed and put on reasonable defenses under the very difficult circumstances posed by the contrary evidence in the case.

Petitioner's claims that counsel was deficient are unsupported by the facts and the trial transcript. In Cronic, the Supreme Court reminded:

Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. 466 U.S. at 657 n.19. By analogy, Cronic does not lend support for Petitioner's "failure to be my voice" argument under the First Amendment

The Court concludes that, under a de novo standard of review, Petitioner has not provided sufficient facts to show that any of his First Amendment rights, including the right to testify and the right to access the courts, were violated as a result of his counsel's representation or a result of any factor other than his own choice to avoid self-representation. Accordingly, Petitioner is not entitled to relief on this claim.

4. Claim Two (de novo review)

Claim Two is that Petitioner was denied due process under the Fifth Amendment (made applicable to the states through the Fourteenth Amendment) when his pretrial attorney, Charles Kovis, failed to ensure that the Petitioner was bound over properly in on the sexual battery charge, Case No. CR-02-00383. (Petition, Dkt. 3 at 2.)

Idaho Criminal Rule 5.1(b) provides: "An order binding a defendant over for trial on a felony charge requires only a showing that a public offense has been committed and that there is probable cause to believe that the defendant committed the offense."

Idaho Criminal Rule 5.1(a) provides:

Unless indicted by a grand jury, a defendant, when charged in a complaint with any felony, is entitled to a preliminary hearing. If the defendant waives the preliminary hearing, the magistrate shall forthwith file a written order in the district court holding the defendant to answer. If the defendant does not waive the preliminary hearing, the magistrate shall fix a time for the preliminary hearing to be held within a reasonable time, but in any event not later than fourteen (14) days following the defendant's initial appearance if the defendant is in custody and no later than twenty-one (21) days after the initial appearance if the defendant is not in custody. With the consent of the defendant and upon showing of good cause, taking into account the public interest and prompt disposition of criminal cases, time limits in this subsection may be extended. In the absence of such consent by the defendant, time limits may be extended only upon a showing that extraordinary circumstances exist, including disqualification of the magistrate by the defendant pursuant to Rule 25.

To prevail on federal habeas corpus review, Petitioner must show that his custody is in violation of federal, not state law. In U.S. ex rel. Hughes v. Gault, 271 U.S. 142, 149 (1926), the Supreme Court of the United States clarified:

The Constitution does not require any preliminary hearing before a person charged with a crime against the United States is brought into the Court having jurisdiction of the charge. There he may deny the jurisdiction of the Court as he may deny his guilt, and the Constitution is satisfied by his right to contest it there.

Many years later, in Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court further explained:

Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole.

Id., p. 123 (Fourth Amendment context).

Petitioner asserts that, on July 27, 2002, he was arrested on two counts of statutory rape, but, prior to the preliminary hearing, the State amended the complaint to include one count of lewd conduct with a minor child under the age of 16 years old, and one count of sexual battery of a minor child 16 or 17 years old.

At the August 28, 2002 preliminary hearing, Petitioner was bound over on the lewd conduct charge, but the court found there was insufficient evidence to bind Petitioner over on the sexual battery count.

Petitioner alleges, that on October 7, 2003, Petitioner was tried for both charges, even though he was never bound over for the sexual battery count. He alleges that "even though Kovis [Petitioner's trial counsel prior to John Hathaway] tried to waive the Petitioner's preliminary hearing in October 1, 2002, during another arraignment hearing, the waiver was not properly waived by Mr. Kovis, he never had the Petitioner's consent to waive the preliminary hearing; and it was never successfully waived in the arraignment hearing due to the fact that the court never informed the Petitioner of the rights that he would be giving up if he chose to waive the preliminary hearing, therefore rendering the waiver invalid." (Dkt. 49, p. 2.)

The hearing transcript from October 1, 2002, reflects that Petitioner's attorney, Mr. Kovis, stated on the record:

And it would be my client's intention to waive his preliminary hearing in this matter, Your Honor. Agree to be bound over on the complaint of sexual battery, and we request that the trial date order in this case be the same as the one in his other case. (State's Lodging A-2, p. 23.)

The record also reflects that the court informed Petitioner that he was being charged by an information (not an indictment) and asked Petitioner if he understood his rights several times, to which Petitioner responded that he did. Petitioner then pleaded "not guilty," through counsel, and a jury trial for both criminal counts was set. (Id., pp. 23-26.) Nothing in the record reflects that Petitioner did not wish to waive his right to a preliminary hearing on the sexual battery count, as he stood in court and heard his counsel represent that to the judge.

Petitioner now argues that a waiver of a preliminary hearing equals an admission that a defendant, in fact, committed the crime. This is a mis-perception of the law; and, in Petitioner's case, he immediately entered a "not guilty" plea, which shows that no one could have perceived waiver of the preliminary hearing in his case as an admission that he committed the crime. Here, Petitioner's claim is brought as a due process claim, rather than an ineffective assistance of counsel.

In a case with similar facts, Kerns v. Peyton, 292 F.Supp. 182, 183-84 (D.C. Va. 1968), the court reasoned:

Petitioner in his first allegation says that he was denied a preliminary hearing without ever waiving his right to such a hearing. Petitioner offers no evidence to show that he was prejudiced by the lack of a preliminary hearing; he contends only that the absence of the hearing per se was a denial of his constitutional rights. The records in the trial court state that the preliminary hearing was waived. Without deciding whether the preliminary hearing was waived or denied, the court points out that a preliminary hearing is not a constitutional right guaranteed either by the [state] or the United States Constitution. Dillard v. Bomar, 342 F.2d 789 (6th Cir. 1965); Snyder v. Commonwealth, 202 Va. 1009, 121 S.E.2d 452 (1961). The preliminary hearing is only a statutory right given by § 19.1-163.1 of the Va.Code Ann. (1960 Replacement Vol.). . . . .[A] denial of the preliminary hearing is not sufficient grounds for habeas corpus. See Vees v. Peyton, 352 F.2d 325 (4th Cir. 1965); Garrison v. Johnston, 104 F.2d 128 (9th Cir. 1939); Gibson v. Peyton, 262 F.Supp. 574 (D.C.1966).

Here, the record is clear that, at the October 1, 2002, arraignment hearing, Petitioner's counsel waived Petitioner's right to have a preliminary hearing, and Petitioner stated that he understood the rights he was waiving. Petitioner was given all of the process he was due under these circumstances. ...

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