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Eugene Ray Cobell v. Warden Johanna Smith

November 26, 2012


The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge


Previously in this habeas corpus matter, the Court dismissed as procedurally defaulted Petitioner's third claim in his Petition for Writ of Habeas Corpus and all of the claims in his Supplemental Petition. (Dkt. 19, p. 8.) Respondent has since filed an Answer (Dkt. 24), Petitioner has submitted a Reply (Dkt. 25), and the Petition is now at issue. The parties have consented to a United States Magistrate Judge conducting all proceedings, in accordance with 28 U.S.C. § 636(c). (Dkt. 8.) The Court finds that decisional process would not be aided by oral argument, and it will resolve this matter on the record after consideration of the parties' written submissions. D. Idaho L. Civ. R. 7.1(d).

For the reasons set forth below, the Court concludes that Petitioner is not entitled to habeas relief, and the Petition will be dismissed.


In the early morning hours of November 12, 2007, Petitioner, then 72 years of age, forced his 20-year-old grand-niece to have sex with him. (State's Lodging B-4, pp. 1-2.) Based on this incident, the State charged him with one count of rape and one count of penetration by a foreign object. (State's Lodging A-1, pp. 7-8.) He was convicted on both counts, and the district court sentenced him to concurrent terms of life in prison, with the first ten years fixed. (State's Lodging A-1, pp. 80-81.)

On direct appeal, Petitioner argued, in relevant part: (1) that the district court violated his constitutional rights when it allowed the prosecutor to cross-examine him in a manner that permitted the jury to infer his guilt from his silence after he had been given Miranda warnings; and (2) that prosecutor committed prejudicial misconduct on cross-examination and in closing argument that deprived him of his Sixth and Fourteenth Amendment rights to a fair trial. (State's Lodging B-1, pp. 8-32.) While the Idaho Court of Appeals agreed with Petitioner that one question the prosecutor had asked him on cross-examination violated his constitutional rights, it found that the error was harmless beyond a reasonable doubt. (State's Lodging B-4, pp. 5-6.) The Idaho Court of Appeals rejected the prosecutorial misconduct claim, finding no fundamental error. (State's Lodging B-4, pp. 8-9.) Petitioner filed a petition for review, but the Idaho Supreme Court declined to review the case. (State's Lodgings B-7.)

Petitioner next filed a Petition for Writ of Habeas Corpus in this Court, raising three claims of constitutional error. (Dkt. 1.) Claims 1 and 2 generally correspond to the "use of silence" and prosecutorial misconduct claims that Petitioner raised during his direct appeal in state court. (Dkt. 1, pp. 2-3.) In his third claim, Petitioner contends that his concurrent sentences of ten years to life amount to cruel and unusual punishment, in violation of the Eighth Amendment. (Dkt. 1, p. 3.) This Court conducted an initial review of the Petition and ordered Respondent to submit a response. (Dkt. 5.)

While the federal matter was pending, Petitioner returned to state court and raised numerous claims in a petition for post-conviction relief. (State's Lodging C-5.) The state court eventually dismissed the petition without an evidentiary hearing, and Petitioner did not appeal. (State's Lodging C-5, p. 3; State's Lodging C-6.) Instead, he lodged a Supplemental Petition in this Court, in which he reiterated the allegations in the original Petition and included new claims of ineffective assistance of trial and appellate counsel. (Dkt. 12.)

Respondent responded to the Petition and the Supplemental Petition with a Motion for Partial Summary Dismissal. (Dkt. 15.) The Court granted Respondent's Motion and dismissed, as procedurally defaulted, the Eighth Amendment claim in the original Petition (Claim 3) and all of the new claims in the Supplemental Petition. (Dkt. 11-1, pp. 5-10.)

The Court ordered Respondent to file an answer to Claims 1 and 2, which he has now done. (Dkt.24.) Petitioner has submitted a Reply (Dkt. 25), and the Court is prepared to issue its ruling.


The provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) are applicable to this case. Under AEDPA, the Court cannot grant relief on any federal claim that the state court adjudicated on the merits, unless the state court's adjudication of the claim:

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 ...

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