LARRY M. HOAK, Petitioner,
STATE OF IDAHO, Respondent.
MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
On September 13, 2012, the Court conditionally granted Respondent's Motion for Summary Dismissal on procedural default grounds, but determined that it would withhold entering final judgment until it had an opportunity to determine whether cause and prejudice existed for any of Petitioner's claims in the Amended Petition for Writ of Habeas Corpus (Dkt. 36) that might permit the Court to hear the merits of the claims, under Martinez v. Ryan, 132 S.Ct. 1309 (2012), or Maples v. Thomas, 132 S.Ct. 912 (2012). (Dkt. 62, pp. 10-12.)
Respondent was ordered to supplement the record with any additional filings from the state court post-conviction matter. That has been done. (Dkt. 63, 64.) Petitioner was permitted to file a supplemental brief to establish why his post-conviction counsel's alleged ineffectiveness or abandonment should excuse the default of any of his claims. Petitioner has filed a Motion to Proceed with Habeas Petition, two Supplements, and a Reply; Respondent has filed a Response. (Dkt. 65, 67, 68, 73, 79.) Even though Petitioner was expressly ordered not to file anything other than a supplemental brief and a reply, he filed eight additional motions. (Dkt. 66, 70, 71, 72, 74, 81, 84 and 86.)
Having reviewed the record in this matter, the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1. For the reasons set forth below, the conditional granting of Respondent's Motion for Summary Dismissal will be made final, and the Amended Petition for Writ of Habeas Corpus will be dismissed. In addition, the Court will not issue a certificate of appealability in this case.
After a jury trial in state court, Petitioner was convicted of felony stalking. (State's Lodging A-2, pp. 216-17.) He was also convicted of being a persistent violator, and he received a sentence of ten years to life. ( Id. at 218.)
On appeal, Petitioner's counsel argued that the trial court had erred in admitting evidence of Petitioner's prior bad acts under Idaho Rule of Evidence 404(b) ("I.R.E. 404(b)"). (State's Lodging B-1.) Petitioner also submitted his own pro se supplemental brief, in which he alleged primarily that the trial judge should have disqualified herself because she was biased against him. (State's Lodging B-2.) The Idaho Court of Appeals rejected the I.R.E. 404(b) argument, and it did not address Petitioner's supplemental brief. (State's Lodging B-5.) Petitioner's counsel filed a petition for review in the Idaho Supreme Court, reasserting the same evidentiary claim that he had raised in the Court of Appeals, but the Idaho Supreme Court declined to review the case. (State's Lodging B-8.)
While the direct appeal was still pending, Petitioner filed an application for post-conviction relief in the state district court. (State's Lodging C-1.) The trial court stayed post-conviction proceedings pending completion of the direct appeal. ( Id. )
Before the Idaho Supreme Court issued its remittitur on direct appeal and while the post-conviction matter was still pending in the state district court, Petitioner filed a federal Petition for Writ of Habeas Corpus. (Dkt. 2.) As a result of the pending state matters, this case was stayed. (Dkt. 17.) Petitioner's state post-conviction petition was dismissed in late 2010, and Petitioner did not appeal the state district court's decision to the Idaho Supreme Court. (State's Lodging C-1.)
The stay of the federal case was lifted, and Petitioner filed an Amended Petition on July 7, 2011, including the following claims: (1) his rights under the Fifth, Sixth, and Fourteenth Amendments were violated by misconduct of the prosecutor, Gabriel Haws; (2) the trial court violated Petitioner's Sixth Amendment right to call witnesses on his behalf and conspired with the prosecutor and Petitioner's defense counsel, Mike Lojek; (3) Petitioner was deprived of his Sixth Amendment right to the effective assistance of trial counsel; and, liberally construed, (4) the sentence violates the Eighth Amendment's prohibition on cruel and unusual punishment. (Dkt. 36, pp. 2-3.)
The Court conditionally granted Respondent's Motion for Summary Dismissal, and Petitioner now has an opportunity to show cause and prejudice to excuse the default of his claims under Martinez v. Ryan, 132 S.Ct. 1309 (2012), or Maples v. Thomas, 132 S.Ct. 912 (2012).
1. Petitioner's Motion to Recuse (Dkt. 74)
Petitioner requests that this Court recuse itself "because of prejudice or conflict of interest." (Dkt. 74, p. 1.) The basis for the request is that Petitioner believes he already has proven his innocence, and this Court has rejected that argument.
Petitioner has not shown that 28 U.S.C. § 455 or any case interpreting that section applies to the facts of this case. Disqualification is not required where the Petitioner challenges the Court's impartiality based upon its rulings. Such alleged errors are "the basis for appeal, not recusal." In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004). There has been no showing that the "court's substantive rulings were products of deep-seated favoritism or antagonism that made fair judgment impossible." Id. (internal citation and punctuation omitted). Petitioner has pointed to no facts supporting an argument of bias or prejudice, but, instead, he simply disagrees with the rulings of this Court. Accordingly, the Motion to Recuse will be denied.
2. Petitioner's Motion re: Amended Complaint and Appointment of Counsel (Dkt. 66)
Petitioner asks the Court to take into consideration the National Legal Aid and Defender Association's published evaluation of criminal defense services conducted from 2007 to 2010. He alleges that the study shows that the State has been violating the civil rights of persons accused of crimes for the last three decades because of the poorly-funded public defender system. (Dkt. 66, p. 1; Dkt. 38.) The report discusses the high workloads of public defenders in Idaho, and how they have little time and resources to devote to defendants' cases. However, the Court cannot base its determinations in this case on generalized statements of averages in criminal defense cases; it must rely on those facts in the record.
In addition, Petitioner must be able to tie the procedural default of his claims to this report, which he has not done. As the Court discusses in detail herein below, Petitioner has not shown that any prejudice to his case resulted from the alleged deficiencies of his counsel. Nevertheless, this document will remain part of the record to support Petitioner's claim that his trial and post-conviction counsel performed ineffectively.
In his Motion, Petitioner does provide some factual allegations regarding why he believes his initial post-conviction counsel, Theresa Martin, was ineffective, but that does not aid the subject of his Motion, which is to request permission to amend his Petition for Writ of Habeas Corpus or to have counsel appointed for him. He alleges that, when they first met at the prison, Ms. Martin told him that he had no claims that would warrant relief, and that it was a waste of time to pursue post-conviction relief. Petitioner then complained about Ms. Martin's representation to Judge Copsey, and Judge Copsey held a hearing on the motion to disqualify Ms. Martin. After the hearing, Judge Copsey ordered Ms. Martin to finish the case. Petitioner claims that he tried to contact Ms. Martin repeatedly at various telephone numbers, but Ms. Martin would not communicate with him. (Dkt. 66, pp. 4-5.) Petitioner then makes an argument under Martinez v. Ryan, 132 S.Ct. 1309 (2012).
The grounds Petitioner has alleged in his Motion do not support granting Petitioner an additional opportunity to amend his Petition for Writ of Habeas Corpus. Rather, his argument goes to whether the procedural default of his claims can be excused. The Court will consider his argument for that purpose, herein below.
To the extent that Petitioner wishes to amend his Amended Petition of July 7, 2011 (Dkt. 36) to include new claims, he has not (1) clearly stated any new claims; (2) shown that any new claims have been raised and exhausted in the Idaho state court system; (3) stated why he did not raise the claims in his Amended Petition after clear advance warning from the Court on June 13, 2011 (Dkt. 32), that all claims must be included in the Amended Petition; or (4) shown that his claim-that has been tendered after the expiration of AEDPA's statute of limitations-relates back to the initial filing date. To do so, it must be "tied to a common core of operative facts" in the original pleading. Mayle v. Felix, 545 U.S. 644, 664, 650 (2005) (an amended habeas corpus petition "does not relate back... when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.").
To the extent Petitioner is seeking appointment of counsel in this case, the Court concludes that appointment is not warranted. Petitioner is a prolific filer and has adequately protected his interests in this matter. The Martinez v. Ryan argument is not so complex that it is beyond Petitioner's ability to present facts supporting his position. A thorough search of the record shows that Petitioner's claims are meritless, and, therefore, appointment of counsel would not aid in the decisionmaking process. Therefore, this Motion will be denied.
3. Petitioner's Motion: Civil Procedure 10(c) (Dkt. 71), Motion: Civil Procedure 10(c) - Jury Trial Demand (Dkt. 72), and Rule 10 Motion to Attach New Evidence (Dkt. 81)
Plaintiff has filed several motions requesting that Federal Rule of Civil Procedure 10(c) be applied to his Petition and his exhibits submitted in support thereof. Rule 10(c) provides:
A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.
As the Rule states, a "written instrument" is considered a part of a pleading. A "written instrument" is a document essential to the elements of the cause of action in the Complaint, such as a copy of a contract or negotiable instrument at issue. See Rose v. Bartle, 871 F.2d 331, 339 n. 3 (3d Cir.1989) (internal quotation omitted) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1327) (holding that an attached affidavit was not a "written instrument" under Rule 10(c) and thus was not properly considered part of the pleadings).
Rule 10(c) has no application to the Habeas Corpus Petition filed in this case. Perhaps if Petitioner's crime were forgery, passing bad checks, or some other act centering on a written instrument and the written instruments were part of the state court record, the Rule might have some applicability.
In habeas corpus, a petitioner may submit exhibits in the context of procedural default, but he may not submit exhibits that have not been considered by the state courts in support of the merits of his claim. Here, this case is at the procedural default stage, and so the Court can consider any relevant items that Petitioner wishes to submit for the limited purposes of showing cause and prejudice or actual innocence. The Court will permit Petitioner to submit as evidence his article from the Boise Weekly, entitled: "Justice for All? Fifty years after landmark case, Idaho still struggles to provide adequate indigent defense, " to the extent that he can show its relevance to the cause and prejudice issues at hand; however, the article will not be considered incorporated into the Petition under Rule 10(c).
Petitioner asks that he be permitted to attach a demand for jury trial to his Petition. (Dkt. 71 & 72.) Jury trials are not permitted in federal habeas corpus cases. Accordingly, because this request is unsupported by law, it will be denied.
Petitioner also seeks appointment of counsel. (Dkt. 72.) As noted above, this request will be denied.
4. Petitioner's Motion to Amend or Correct Petition Under Rule 60(b) and Reply (Dkts. 84, 86)
Rule 60(b) applies when a judgment has been entered. No judgment has been entered in this case; hence, the Motion (Dkt. 84) will be denied as premature. Petitioner's "Motion: Response to Docket 85" (Dkt. 86), though designated a motion, is a reply in support of the Rule 60(b) motion, and will be denied. 5. Respondent's Motion for Extension of Time (Dkt. 70)
Respondent has requested an extension of time in which to file a Martinez v. Ryan brief. Good cause appearing from the Motion and accompanying Affidavit (Dkt. 70, 71), the extension of time will be granted. Respondent's brief (Dkt. 73) is considered timely.
CAUSE AND PREJUDICE STANDARD OF LAW
1. Where Ineffective Assistance of Post-Conviction Counsel or Lack of Counsel is the Alleged Cause of the Default
A. Historical View of the Standard of Law
If a petitioner's claim is procedurally defaulted, a federal district court cannot hear the merits of the claim unless a petitioner meets one of two exceptions: a showing of adequate legal cause for the default and prejudice arising from the default, see Coleman v. Thompson, 501 U.S. 722, 731 (1991), or a showing of actual innocence, which means that a miscarriage of justice will occur if the claim is not heard in federal court. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).
To show "cause" for a procedural default, a petitioner must ordinarily demonstrate that some objective factor external to the defense impeded his or his counsel's efforts to comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488 (1986). To show "prejudice, " a petitioner bears "the burden of showing not merely that the errors [in his proceeding] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." United States v. Frady, 456 U.S. 152, 170 (1982). This "cause and actual prejudice" test, more often termed simply "cause and prejudice, " was adopted and clarified as a grounds for excusing procedural default in 1991 in Coleman v. Thompson. 501 U.S. at 745.
Several cases have clarified whether and how to apply the cause and prejudice test in various factual circumstances. For example, if a petitioner points to an instance of ineffective assistance of counsel during direct appeal that prevented the petitioner from properly exhausting his claims, he cannot rely on that instance unless he has first exhausted that particular ineffective assistance of counsel claim. If a petitioner has not exhausted any ineffective assistance of counsel claim, then he cannot rely on such a claim for "cause" in a "cause and prejudice" argument. See Edwards v. Carpenter, 529 U.S. 446 (2000) (ineffective assistance of counsel cannot serve as cause for the default of another claim unless the ineffective assistance of counsel claim is not itself procedurally defaulted or cause and prejudice for the default of the ineffective assistance claim can be shown).
A petitioner does not have a federal constitutional right to effective assistance of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule is that any errors of his counsel during the post-conviction action cannot serve as a basis for cause to excuse Petitioner's procedural default of his claims. See Coleman, 501 U.S. at 752.
B. Advent of Martinez v. Ryan
The holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), established a limited exception to the Coleman rule-that inadequate assistance of post-conviction review (PCR) counsel or lack of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. at 1315.
The Martinez exception applies only to the ineffectiveness of PCR counsel in the initial post-conviction review proceeding. It "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." 132 S.Ct. at 1320. Rather, Martinez, is singularly concerned that, if ineffective assistance of trial counsel (IATC) claims were not brought in the collateral proceeding which provided the first occasion to raise such claims, the effect was that the claims could not be brought at all. See 132 S.Ct. at 1316. Therefore, a petitioner may not use as cause attorney error that occurred in "appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts." 132 S.Ct. at 3120.
In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the United States Supreme Court described the Martinez test as consisting of four requirements or prongs:
We consequently read Coleman as containing an exception, allowing a federal habeas court to find "cause, " thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim]... be raised in an initial-review collateral proceeding."
133 S.Ct. at 1918 (citing Martinez, 132 S.Ct. at 1318-19, 1320-21).
(1) Whether the Ineffective Assistance of Trial Counsel Claim is Substantial
While Ninth Circuit case law on how to apply Martinez to procedurally-defaulted IATC claims is still developing, especially as to the differing and overlapping standards of prejudice mentioned but not expounded upon in Martinez, see Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012),  and Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729 (9th Cir. 2013) (en banc) (plurality opinion),  it is entirely clear from Martinez, Trevino, Sexton, and Detrich that, as a necessary first prong for the Martinez exception to apply, a petitioner must bring forward some facts demonstrating that his ineffective assistance of trial counsel claim is substantial.
The United States Supreme Court has defined "substantial" as a claim that "has some merit." Martinez, 132 S.Ct. at 1318 (comparing the standard for certificates of appealability from Miller-El v. Cockrell, 537 U.S. 322 (2003)). Stated inversely, a claim is " in substantial" if "it does not have any merit or... is wholly without factual support." Id. at 1319.
Determining whether a claim is substantial requires a federal district court to examine both prongs of an IATC claim under Strickland v. Washington, 466 U.S. 668 (1984)-deficient performance and prejudice. As to deficient performance, Strickland emphasizes that there is a strong presumption that a trial attorney performed within the wide range of professional competence; the attorney's performance will be deemed deficient only if it fell below an objective standard of reasonableness measured under prevailing professional norms. Strickland, 466 U.S. at 689-90.
For example, the Strickland Court outlined how to assess deficient performance in a failure-to-investigate claim:
[S]trategic 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. Strickland cautions courts to remember that "[t]here are countless ways to provide effective assistance in any given case." Id. at 689.
Prejudice under Strickland means that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one "sufficient to undermine confidence in the outcome." Id.
These standards from Strickland for determining deficient performance and prejudice, are, of course, the standards for an eventual review of the merits of the IATC claim. The first Martinez prong is not the same as a merits review, but, as the Martinez Court explained, it is more akin to a preliminary review of a Strickland claim for purposes of determining whether a certificate of appealability should issue. See Martinez, 132 S.Ct. at 1318-19 (comparing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Therefore, a court may conclude that a claim is substantial when a petitioner has shown that "resolution" of the merits of the Strickland claim would be "debatable among jurists of reason, " or that the issues presented are "adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336 (internal citation and punctuation omitted). Thus, the first prong of Martinez requires the district court to review but not determine whether trial counsel's acts or omissions resulted in deficient performance and in a reasonable probability of prejudice, and to determine only whether resolution of the merits of the claim would be debatable among jurists of reason and whether the issues are deserving enough to encourage further pursuit of them.
(2) Whether PCR Counsel was Ineffective
A second necessary prong of Martinez is a showing that petitioner had no counsel on initial PCR review, or that PCR counsel was "ineffective under the standards of Strickland. " 132 S.Ct. at 1318; see Trevino, 133 S.Ct. at 1918. "Ineffectiveness" is a term defined by Strickland as deficient performance and a reasonable probability of prejudice caused by the deficient performance. 466 U.S. at 694 , 700.
Not just any error or omission of counsel will be deemed "deficient performance" that will satisfy Martinez; if the PCR "attorney in the initial-review collateral proceeding did not perform below constitutional standards, " the PCR attorney's performance does not constitute "cause." 132 S.Ct. at 1319. The Strickland standards for analyzing deficient performance set forth above apply with equal force to PCR counsel.
While there is some variance among jurists whether an additional showing of prejudice must be demonstrated beyond the first prong's "substantiality" determination to allow a petitioner with a procedurally-defaulted IATC claim to enter the "cause and prejudice" gateway to a merits analysis, for purposes of the analysis of the IATC claims in this case, that variance can be reconciled as several different paths leading to the same result. In other words, a showing of a Strickland "reasonable probability of prejudice" at the level of the second Martinez prong would satisfy the Coleman requirement of a showing of "actual prejudice" in the cause and prejudice test (theoretically opening the door for a procedurally-defaulted claim to reach a merits analysis),  which also would satisfy a showing of prejudice in a Strickland merits analysis (that theoretically takes place when the procedural default door is opened). A showing of prejudice alone under any of these formulations, of course, is not enough to prevail on the merits,  unless the answer to whether there is prejudice arising from trial counsel's performance is coextensive with the answer to whether trial counsel performed deficiently.
(3) Whether the PCR Proceeding Was or Would Have Been the Initial Review of the IATC Claim
The third prong of Martinez is that the post-conviction review proceeding be the first opportunity the petitioner had to present the IATC claim. In other words, the post-conviction proceeding must have been "the equivalent of a prisoner's direct appeal" for the IATC claim. Martinez, 132 S.Ct. at 1317. Martinez does not apply if the petitioner should have brought the claim on direct appeal (see the fourth prong, discussed below).
(4) Whether State Law Requires that the IATC Claim Be Raised
The fourth prong of Martinez is that state law must require that IATC claims be raised in an initial collateral proceeding. 132 S.Ct. at 1320. Questions arose whether the Martinez exception could be applied where the initial collateral proceeding was a state's preferred, but not mandatory, avenue for raising IATC claims. In Trevino v. Thaler , the Supreme Court clarified that, where "a State's procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective-assistance-of-trial-counsel claim on direct appeal, " the exception recognized in Martinez applies. 133 S.Ct. at 1921.
In Idaho, the post-conviction setting is the "preferred forum for bringing claims of ineffective assistance of counsel, " although in limited instances such claims may be brought on direct appeal "on purported errors that arose during the trial, as shown on the record" (as opposed to matters arising outside the record). Matthews v. State, 839 P.2d 1215, 1220 (Idaho 1992).
2. Where Abandonment of PCR Counsel is the Alleged Cause of the Procedural Default
In Maples v. Thomas, 132 S.Ct. 912, 917 (2012), the United States Supreme Court determined that an attorney's complete abandonment of the client in a post-conviction proceeding, which leaves the petitioner unrepresented at a critical time, may serve as cause. In Maples, the lawyers ceased acting as Maples's attorneys without telling him; they did not serve as his agents in any meaningful sense, and left him in a situation where he lacked the assistance of any authorized attorney, so "that, in reality, he had been reduced to pro se status." Id. at 927.
Even if a petitioner can show that the lawyer abandoned the client under Maples to establish "cause" for his procedural default, he still must show "actual prejudice as a result of the alleged violation of federal law." Maples, 132 S.Ct. at 914 (quoting Coleman v. Thompson, 501 U.S. 722 (1991); Stokley v. Ryan, 705 F.3d 401, 403 (9th Cir. 2012). That is, a petitioner "must establish not merely that the [alleged error]... created a possibility of prejudice, but that [it] worked to his actual and substantial disadvantage, ' infecting the entire proceeding with constitutional error." Id. (citing Murray v. Carrier, 477 U.S. 478, 494 (1986) (citation omitted) (emphasis in original), and Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (prejudice requires a showing that the error has a "substantial and injurious effect" on the sentence)).
REVIEW OF TRIAL PROCEEDINGS FOR CAUSE AND PREJUDICE PURPOSES
Petitioner was charged with felony stalking of his former girlfriend, Kathy Hendricks,  who was about 52 years old at the time of the incidents alleged. (State's Lodging A-3, p. 119.) State District Court Judge Cheryl C. Copsey presided over Petitioner's trial. The State was required to prove, beyond a reasonable doubt, that, "on or between May 2006 and November 2006, in the state of Idaho, Larry Matthew Hoak knowingly and maliciously engaged in a course of conduct that seriously alarmed, annoyed or harassed the victim, Katherine Hendricks, and the course of conduct [was] such that would cause a reasonable person substantial emotional distress." ( Id., pp. 527-28.) Evidence as to events that occurred before May 2006 or after ...