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Zivkovic v. Reinke

United States District Court, Ninth Circuit

December 31, 2013

BRENT REINKE, Idaho Department of Correction, Respondent.


EDWARD J. LODGE, District Judge.

Pending before the Court is Petitioner David Zivkovic's Petition for Writ of Habeas Corpus (Dkt. 3). Respondent has filed an Answer and Brief in Support of Dismissal (Dkt. 21).[1] Petitioner has filed a Reply and Objection to Respondent's Answer (Dkt. 23), and Respondent has filed a Sur-reply (Dkt. 24). The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on June 28, 2012, and May 13, 2013 (Dkt. 12 & 22). See Fed.R.Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

Having carefully 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 shall 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 and dismissing this case.


On April 8, 1992, the Idaho Legislature enacted Idaho Code § 18-3316, which criminalizes the possession of a firearm by any "person who previously has been convicted of a felony." In July of 1995, Petitioner was convicted in Utah of felony theft. (State's Lodging A-1 at 3.) He later pleaded guilty to another Utah crime, that of being a felon in possession of a firearm, in 2001. Petitioner served two years in prison for that conviction and, upon his release on parole, he moved to Idaho. ( Id. ) Petitioner was informed by his parole officer that he was prohibited from possessing a firearm in Idaho because he had been previously convicted of a felony. ( Id. )

In 2007, Petitioner pleaded guilty in state district court to one felony count of illegal possession of a firearm under Idaho Code § 18-3316-the conviction at issue in the instant habeas Petition-along with various misdemeanors. ( Id. at 2.) Sentencing was held in abeyance pending Petitioner's completion of the Oneida County DUI/Drug Court Program. When Petitioner was later terminated from the program, the state court sentenced him to five years in prison with the first three years fixed on the felony gun charge. ( Id.; State's Lodging B-6 at 1.)

Petitioner did not file a direct appeal, having waived his right to appeal as part of the drug court diversion program, and he instead chose to submit a petition for postconviction relief. ( Id. at 2.) In that petition, Petitioner claimed that Idaho Code § 18-3316 violates the Ex Post Facto and Bill of Attainder clauses of the United States Constitution, and that his trial counsel was ineffective in not raising those issues. ( Id. at 3.) The district court noted that Petitioner should have raised his claims on direct appeal, but it nonetheless denied relief on the merits, finding no ex post facto or bill of attainder violations, and thus no ineffective assistance of counsel. ( Id. at 35.) On appeal, the Idaho Court of Appeals concluded that because the ex post facto and bill of attainder arguments were without merit, Petitioner's counsel was not ineffective in failing to raise those arguments during the criminal proceedings. (State's Lodging B-6 at 3-7.) The Idaho Supreme Court declined to review the case, and the United States Supreme Court later denied certiorari. (State's Lodging B-9, B-11.)

Petitioner next filed a Petition for Writ of Habeas Corpus in this Court, which, in an Initial Review Order, Chief Magistrate Judge Candy W. Dale construed as alleging (1) that Idaho Code § 18-3316 is unconstitutional because it is a bill of attainder and an ex post facto law, and (2) that the State's "tandem use of [Idaho Code §] 18-3316 with 19-3807 [allowing for the confiscation of illegal firearms] constitutes double jeopardy." (Dkt. 8 at 2) (quoting Dkt. 3 at 5) (first alteration in original).

Respondent filed a Motion for Summary Dismissal, arguing that Petitioner failed to properly exhaust his claims in the state courts. (Dkt. 11-1 at 5.) The Court agreed with Respondent that Claim 2-Petitioner's double jeopardy claim-was procedurally defaulted and that cause and prejudice did not exist to excuse the default. (Dkt. 18 at 3, 5.) However, the Court held that Claim 1-Petitioner's bill of attainder and ex post facto claim-was not procedurally defaulted. ( Id. at 5-6.) The Court now analyzes Claim 1, the only remaining claim, on the merits.


1. Standard of Law

Federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment 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). A federal habeas court reviews the state court's "last reasoned decision" in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal habeas relief is generally limited to instances where the state court's adjudication of the petitioner's 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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