Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Juneal C. Kerrick, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 654
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment of dismissal of amended post-conviction petition, affirmed.
James Earl Newman appeals from the district court's judgment of dismissal of his amended petition for post-conviction relief. Specifically, Newman asserts the district court erred in summarily dismissing the amended petition because Newman raised a genuine issue of fact as to his claims of ineffective assistance of counsel. For the reasons set forth below, we affirm.
Evidence of the following facts was presented at Newman's criminal trial. Newman lived next door to a woman and her husband for a few months, but moved away around April 2003. On the morning of June 27, 2003, the woman left her home to take her husband to work, leaving three grandsons sleeping in the home. The woman returned about fifteen minutes later and was met inside the front door by an intruder, who had entered the home during her absence. The intruder immediately threw a bathrobe over the woman's head, struggled with her, and instructed her to cooperate. With limited vision under the robe, the woman saw a revolver on the floor near her attacker's feet, which she recognized as her husband's, and knowing it was loaded, did as the attacker asked. Though she did not get a view of the attacker's face, the woman recognized the attacker as Newman by identifying his distinct voice, which she remembered from having met him when he was her neighbor.
Thereafter, Newman pulled the victim into the master bedroom. He secured the bathrobe around her head with its waist tie, bound her hands, threatened her, and fondled her breasts underneath her shirt, atop of her undergarments. Newman then led the victim into the bathroom located within the master bedroom, where he removed the victim's pants and underwear. Newman spoke of his daughter's cancer, unzipped his pants, and urinated in the bathroom sink. Though previously gloved, Newman proceeded to touch the victim's genitals with his bare hand. At that point, a grandson had awakened and was repeatedly knocking and kicking on the bedroom door. Newman opened the bedroom door and put clothing over the boy's head, secured with a bootlace. After bringing the grandson into the bathroom as well, Newman took the victim's truck keys, gathered firearms, jewelry, and other valuables from around the house, and put the items into the truck. Newman returned to the victim and her grandsons before leaving with the truck and warned them not to call the police because another person was in the home. He told them that if they did call the police, he would return and kill them. Along with the valuables Newman had collected, he took some rings from the victim's hands, some of her clothing, and the screen he had removed from the window to gain entry into the home.
Once Newman was gone, the victim called the police and said she suspected Newman had been the perpetrator based on voice recognition. She also noted the attacker was wearing brown, rough shoes, similar to ones Newman wore when she had met him a couple of months prior. One of the grandsons described the perpetrator as tall, white, with a mustache, and wearing a green shirt with blue pants and a black hat. Newman was apprehended later that day on an outstanding warrant and was wearing brown shoes, a green shirt, jeans, and a dark baseball cap. After arresting Newman, officers secured a search warrant and found items in Newman's home that matched those stolen from the victim. As further evidence of the perpetrator's identity, it was later determined that Newman's daughter had previously undergone a biopsy to determine whether she had cancer, which gave context to his comment in the bathroom at the victim's home. Though swabs from the bathroom sink did not detect the presence of urine, and could not link Newman to the crime, other DNA evidence (saliva) found in a trash bag that was removed from the victim's bathroom and recovered in the stolen truck, matched Newman's DNA. Newman's hands were covered with a bag upon his arrest to determine whether additional DNA evidence, perhaps matching the victim, could be found underneath his fingernails. There are discrepancies in the record as to whether the fingernail scrapings were ever obtained. The State charged Newman with burglary, robbery, battery with the intent to commit a serious felony, two counts of grand theft, and two counts of kidnapping.
According to Newman's subsequent post-conviction petition, he eventually admitted to his defense counsel that he participated in the burglary and grand theft, but claimed another individual was also in the home and was responsible for the robbery, battery with the intent to commit a serious felony, and kidnapping. Newman's defense counsel, however, argued at trial that Newman was not present at all in the victim's home.
A jury found Newman guilty on six counts, acquitting him only on the second count of kidnapping. The district court entered a judgment of conviction and imposed sentences as follows: a unified term of ten years, with five years determinate, for burglary, Idaho Code § 18-1401; a unified life sentence, with twenty-five years determinate, for robbery, Idaho Code §§ 18-6501, 18-6502, 18-6503; a unified term of fifteen years, with ten years determinate, for battery with the intent to commit a serious felony, Idaho Code §§ 18-903(b), 18-911; unified terms of seven years, with three years determinate, for each count of grand theft (two counts), Idaho Code §§ 18-2403(1), 18-2407(1)(b); and a unified life sentence, with twenty-five years determinate, for first degree kidnapping, Idaho Code §§ 18-4501, 18-4503. The court ordered the sentences for burglary, robbery, and grand theft (both counts) to run concurrent with each other and consecutive to a sentence from an unrelated case, and the sentences for battery with the intent to commit a serious felony and kidnapping to run concurrent with each other, but consecutive to all other sentences. The resulting aggregate sentence is for a unified life sentence, with fifty years determinate. Newman appealed, arguing his sentences were excessive. This Court affirmed the sentences in an unpublished decision. State v. Newman, Docket No. 30796 (Ct. App. June 17, 2005). The Idaho Supreme Court initially granted review, but subsequently ordered that this Court's opinion was final. State v. Newman, Docket No. 32275.
In August 2005, Newman filed a petition for post-conviction relief. Upon initial review, the district court issued a notice of intent to dismiss. In response, Newman filed an amended petition, asserting his defense counsel provided ineffective assistance in six ways: (1) failure to request and review all discovery material prior to trial, including a failure to subpoena key pieces of DNA evidence; (2) failure to provide Newman with discovery material prior to and during trial; (3) failure to communicate with Newman before trial; (4) failure to challenge the admissibility of the DNA evidence found in the trash bag despite obvious chain-of-custody issues; (5) failure to follow Newman's directions in attempting to reach a plea agreement; and (6) failure to more aggressively pursue disqualification of the district court judge because of judicial bias. Finally, Newman asserted that his appellate counsel was ineffective for failing to communicate with Newman during the appeal process.
The State answered with a motion to strike the first amended petition on the basis it was not properly filed*fn1 and a motion for summary dismissal. Through substituted counsel, Newman filed a reply to the court's notice of intent to dismiss and the State's motion for summary dismissal. Therein, Newman expanded on the claims of ineffective assistance of counsel, primarily relating to discovery material and other DNA evidence, and argued that testing of the urine swabs and fingernail scrapings would have provided reasonable doubt as to his guilt of the crimes of robbery, battery with the intent to commit a serious felony, and kidnapping. In a supporting affidavit, he stated his fingernails were scraped upon his arrest and he had asked defense counsel to pursue independent DNA testing of both the scrapings and urine swabs, but defense counsel failed to do so. He also made a motion for discovery to allow testing of those DNA samples. The State, in its response, asserted Newman could not show prejudice because he admitted involvement in the crimes. Newman again replied, asserting defense counsel was ineffective for pursuing a defense of innocence on all charges rather than innocence only on the robbery, battery with the intent to commit a serious felony, and kidnapping charges, arguably supported by the urine and fingernail evidence. Newman argued that his defense counsel's insistence on asserting a defense that Newman was not present at all was patently absurd and prejudicial in light of DNA evidence that placed Newman at the scene, along with Newman's possession of the stolen goods. After oral argument from both parties, the court took the motion for summary dismissal under advisement and issued an order allowing some discovery.
The discovery revealed that the State was not in custody of any fingernail scrapings from Newman and that the urine swab tests were inconclusive as to the presence of urine. The district court issued an order dismissing the amended petition for post-conviction relief, because:
(1) trial testimony established no urine was detected on the swabs and Newman failed to produce admissible expert testimony as to how further testing, in the absence of detectable urine, could be used to exculpate Newman; (2) though Newman disclosed the name of the alleged second perpetrator in the crimes during the presentence investigation, Newman failed to provide an affidavit to support his petition concerning what evidence of the second perpetrator could have been presented at trial to change the outcome; (3) Newman failed to show how DNA evidence from the fingernail scrapings, even if it showed an absence of the victim's DNA, would have changed the outcome in light of the compelling evidence at trial that Newman was the sole perpetrator;*fn2 (4) the allegations regarding a failure to provide discovery were conclusory and unsupported by evidence; (5) Newman failed to allege what the chain of custody was or was not in relation to the saliva DNA evidence found in the trash bag and did not allege or show how a challenge to the evidence would have been successful; (6) there is no constitutional right to a plea bargain, and thus, Newman could not establish prejudice for any alleged failures of defense counsel to effectively negotiate a deal for Newman; (7) no prejudice could be established with respect to a ...