The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Previously in this habeas corpus matter, the Court granted Respondent's Motion for Partial Summary Dismissal, dismissing Claims One, Two, Three, and Five on procedural grounds. (Dkt. 19.) Respondent filed an Answer requesting dismissal or denial of Claim Four. (Dkt. 26.) The Court provided notice to Petitioner of his opportunity to file a reply in support of his Petition for Writ of Habeas corpus (Dkt. 28), but the 30-day deadline (March 8, 2013) has passed, and Petitioner has elected to file nothing further.
Having reviewed the record, including the state court record, the Court finds that the decisional process would not be significantly aided by oral argument. Therefore, the Court shall decide this matter on the written record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order dismissing the Petition for Writ of Habeas Corpus.
Petitioner Matthew T. Weaver (Petitioner) and his wife, Frances Hall, were charged with and convicted by jury of felony injury to child, related to injuries to Frances's two-year-old son, in the Third Judicial District Court in Canyon County, Idaho. (State's Lodging A-1.) The issues at trial were whether one or both of the defendants were responsible for burning the child's lower back and buttocks by immersing him in extremely hot bath water or for causing a fracture of the child's elbow. Both parties were found guilty of felony injury to child. After serving time in prison, Petitioner was granted a new trial because of an erroneous jury instruction.*fn1 (State's Lodgings B-2 to B-4.)
Frances Hall's conviction was also vacated, and she decided to plead guilty the second time around, agreeing to testify against Petitioner at his second trial in exchange for a more lenient sentence and the State's agreement not to prosecute her for perjury based on testimony she gave at her first trial. (State's Lodging D-43, p. 5.)
Petitioner chose to represent himself at his second trial, was convicted of the charge, and was sentenced to a term of incarceration of eight years determinate with two years indeterminate (with credit for time served on the prior vacated conviction). (State's Lodgings C-1, p. 78; C-7, pp. 1268, 1285-88.)
On direct appeal, Petitioner's counsel, Greg Silvey, filed an opening brief for Petitioner. (State's Lodging D-4.) Petitioner disagreed with counsel's strategy on appeal, and Petitioner terminated the representation. (State's Lodging D-5.) Petitioner filed several pro se motions to augment the appellate record and to augment the appellate briefing. (State's Lodgings D-9, D-12, D-19, D-21, D-22, D-25.) Petitioner's motions to augment the record were denied, but Petitioner was permitted to file a supplemental brief addressing new claims not included in the appellate brief filed by counsel. (State's Lodging D-27.) Petitioner's supplemental brief raised 189 issues and subparts. (Id.; State's Lodgings D-43, p. 8.)
In addressing Petitioner's briefing, the Idaho Court of Appeals determined that Petitioner had waived all claims for which he failed to provide supporting argument in his supplemental brief. (The Court of Appeals made it clear that Petitioner did not have to provide legal citations, but only supporting argument in his brief.) (State's Lodging D-43, p. 8 n.2.)
The Idaho Court of Appeals addressed the merits of two claims raised in counsel's initial brief, and it addressed the merits of only five of 189 claims raised in the pro se supplemental brief: (1) whether Petitioner's waiver of counsel was valid; (2) whether the trial court erred in admitting evidence that Petitioner previously had been convicted of and served prison time for the same offense; (3) whether the trial court erred in denying Petitioner's motion to dismiss the indictment based upon instructional error at the grand jury proceedings; (4) whether the State was required to dismiss the indictment and "begin anew" after his case was remanded for retrial; (5) whether the trial court erred in denying Petitioner's request to remove his squeaky leg restraint at trial to avoid having jurors hear or see it; (6) whether the state presented perjured testimony; and (7) whether the trial court erred by denying Petitioner's motion for funds to hire expert witnesses. (State's Lodging D-43.)
The Court of Appeals denied relief on all claims considered. (Id.) Petitioner filed a petition for review, motion to amend judgment, and brief. (State's Lodgings D-44 to D-46.) The Idaho Supreme Court denied the petition for review on April 9, 2008. (State's Lodging D-47.) The Court of Appeals issued its remittitur the same day. (State's Lodging D-48.)
On May 22, 2008, Petitioner filed an application for post-conviction relief in the state district court. (State's Lodging E-1, p. 1.) The application was dismissed on February 24, 2011. (State's Lodging E-1, p. 2.) Petitioner did not file an appeal.
Petitioner's current federal Petition for Writ of Habeas Corpus was filed on June 14, 2010. (Dkt. 3.) As noted above, all claims except Claim Four were dismissed on procedural grounds. Claim Four will be decided on the merits: whether the state district court permitted the State to present evidence to the jury and force Petitioner to wear restraints visible to the jury, contrary to a motion in limine that had been granted. Claim Four is based upon two factual grounds: (1) introduction of evidence that Petitioner was previously found guilty of the offense for which he was on trial; and (2) the requirement that Petitioner wear a full leg restraint, which squeaked and could be seen through his pants. (Petition, Dkt. 3-1, pp. 13-14.)
RESPONDENT'S ARGUMENT THAT CLAIM FOUR IS PROCEDURALLY DEFAULTED
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).
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 as a federal claim 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 cannot grant relief on that claim, although it does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).
State remedies are considered technically exhausted, but not properly exhausted, if a petitioner failed to pursue a federal claim in state court and there are no remedies now available. Boerckel, 526 U.S. at 848. A claim may also be considered exhausted, though not properly exhausted, if a petitioner pursued a federal claim in state court, but the state court rejected the claim on an independent and adequate state law procedural ground. Coleman v. Thompson, 501 U.S. 722, 731-732 (1991). Under these circumstances, the claim is considered "procedurally defaulted." Coleman, 501 U.S. at 731. A procedurally defaulted claim will not be heard in federal court unless the petitioner shows either that there was legitimate cause for the default and that prejudice resulted from the default, or, alternatively, that the petitioner is actually innocent and a miscarriage of justice would occur if the federal claim is not heard. Id.
Petitioner alleges that it was prejudicial for the trial court to permit the State to introduce evidence that he was previously found guilty of the offense for which he was on trial and to require him to wear a leg restraint that squeaked and could be seen through his pants. Respondent first argues that Plaintiff has failed to state a constitutional or federal basis for these claims in his Petition. When faced with this argument on review of a habeas corpus petition prepared by a pro se prisoner, the Court liberally construes the petition and looks to the state court record to see which claims were presented there. The Court permits a pro se petitioner to proceed in habeas corpus on any constitutional or federal basis he presented to the state's highest court. This is where Respondent's alternative argument for dismissal comes in--that both subparts of Claim 4 are procedurally defaulted because they were not presented to the Idaho Supreme Court. Respondent did not include this argument in its previous Motion to Dismiss due to oversight (Dkt. 25, p. 7, n.1), but is not precluded from including it in the Response to the Petition as a ground for dismissal.
Petitioner did argue that introduction of the past conviction impaired his constitutional right to the presumption of innocence. The Idaho Court of Appeals did not address the constitutional basis for the past conviction claim, but, instead, the court determined that claim on state law grounds. (State's Lodging D-43, pp. 6-7.) Petitioner did not present a constitutional basis for his leg restraint claim before the Idaho Court of Appeals.
A review of Petitioner's brief in support of his petition for review before the Idaho Supreme Court shows that Petitioner failed to present his claims as federal claims--he did not include theories that the presumption of innocence and due process were violated. (State's Lodging D-46, ¶ 71, §§ IIII-IV.) Petitioner argued only that he was prejudiced by the alleged state court evidentiary ruling. (Id.)
Accordingly, Claim 4 is procedurally defaulted in its entirety. Both Respondent and the Court previously provided Petitioner with the standards of law to meet the cause and prejudice or miscarriage of justice exceptions (Dkt. 19-1, 23), and Petitioner has not come forward with sufficient factual allegations to support application of either exception. Accordingly, these claims are subject to dismissal with prejudice. Notwithstanding the default, the Court will consider the merits of both subparts of Claim 4 in the alternative.
RESPONDENT'S ARGUMENT THAT PETITIONER IS NOT ENTITLED TO RELIEF ON THE MERITS OF CLAIM FOUR
1. Discussion of the Claim that Petitioner's Constitutional Rights Were Violated When the State District Court Permitted the Prosecutor to Use Evidence of Petitioner's Prior Conviction of the Same Offense
Petitioner presented this claim to the Idaho Court of Appeals as both a state evidentiary question of proper rebuttal evidence and a federal question of whether his presumption of innocence rights were violated. While the Court has concluded that Petitioner failed to present the claim as a federal claim to the Idaho Supreme Court, and, hence, the claim is procedurally defaulted, the law permits the Court to also deny the claim on its merits.
This Court reviews the claim de novo, under a presumption of innocence theory, because Petitioner presented that argument to the Idaho Court of Appeals, but that court did not address it, but instead addressed the claim only on state law evidentiary grounds. (Dkt. 26, p. 11.) See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) ("when it is clear that a state court has not reached the merits of a properly raised issue, [the federal district court] must review it de novo" on federal habeas corpus review).
The first step in the analysis is to determine which law governs Petitioner's claim that the "admission of the evidence that the defendant had already gone to prison and/or been convicted violates the presumption of innocence." (State's Lodging D-4, p. 23.) On appeal in state court, Petitioner analogized his claim to one in which a jury sees the defendant in security restraints or jail clothing or becomes informed that the defendant was incarcerated or previously pleaded guilty but withdrew his plea. (Id., pp. 23-33.) Petitioner relied on Estelle v. Williams, 425 U.S. 501(1976), as precedent governing the presumption of innocence issue.
The "presumption of innocence" is not expressly written in the Constitution. Because "one of the fundamental components of due process" is that the government bears the "burden of proving guilty beyond a reasonable doubt," Monk v. Zelez, 901 F.2d 885, 888 (10th Cir. 1990), the "presumption of innocence" has been called a "constitutionally rooted" principle. See Cool v. United States, 409 U.S. 100, 105 (1972) (the Court held that a jury instruction regarding the manner in which the jury should view accomplice testimony that had the effect of substantially reducing the government's burden of proof was "plainly inconsistent with the presumption of innocence," and, hence, the Court reversed the conviction.) Id. at 105.
In Estelle v. Williams, the Court determined that the dual purpose of the presumption of innocence is to protect the "requirements of finding guilt  only on the basis of the evidence and  beyond a reasonable doubt."425 U.S. at 503. That Court further explained:
To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970).
The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience. 425 U.S. at 503-04.
In this case, Petitioner sought, and the trial court granted, a motion in limine excluding evidence of Petitioner's prior conviction. (State's Lodging D-43, p. 5.) Several times prior to trial, Petitioner (who was proceeding pro se) told the court that he was trying to decide whether to present evidence to the jury that the Idaho Supreme Court had vacated his conviction. On appeal, the Idaho Court of Appeals carefully detailed the many times the trial court warned Petitioner that it may be harmful to his defense if he brought up his prior conviction. (State's Lodging D-43, pp. 5-7.) This Court will not repeat the entirety of the trial court's warnings here. Despite the trial court's warnings, Petitioner "injected his prior conviction and incarceration into the case by making it the central theme of his defense." (Id., p. 7.)
On habeas corpus review, it is important to note that a mere state law evidentiary error in admitting improper rebuttal evidence does not warrant relief. Rather, here, the question is whether the totality of the evidence shows that the jury likely did not find guilt based on the only the evidence in the record, and beyond a reasonable doubt, which would violate the constitutional principle of the presumption of innocence.
The record shows that Petitioner clearly intended to use the past trial testimony, conviction, and imprisonment of Frances Hall to gain a tactical advantage at his second trial, well before the State argued to the court that Petitioner had opened the door to his own past convictions coming into evidence. The record also reflects that Petitioner also clearly intended to use the remand of the past case by the Idaho Supreme Court to his advantage.
In his opening statement, Petitioner said:
I'm going to expose all the facts of the case openly to you. I will in no way hide or cover up facts, as well as I will not lie to you. I feel you are entitled to see the whole case.
I was wrongfully incarcerated with Frances Hall. There is new evidence that proved beyond a reasonable doubt Frances Hall is guilty of the injuries-- [end of sentence, due to an objection]. (State's Lodging C-8, p. 329.)
Upon cross-examining Detective Vail, Petitioner pursued the following lines of questioning to take tactical advantage of the prior conviction of his co-defendant:
Q. Did Frances go to prison for this charge, do you know?
Shortly thereafter, the prosecutor asked for a bench conference, where she asserted that Petitioner opened the door to his and Frances's convictions, permitting the prosecutor to address his conviction on rebuttal. (Id., pp. 370-79.) The court then pre-determined that the prosecutor could ask on rebuttal a question that mirrored what Petitioner had asked the detective about Frances, which was, "Isn't it true Mr. Weaver also went to prison for this?," without reference to a conviction or a trial. (Id., p. 375-77.)
After the bench conference and before the State had an opportunity for rebuttal, Petitioner himself introduced the topic of his own conviction on ...