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Santistevan v. Smith

United States District Court, Ninth Circuit

January 9, 2014

JOHANNA SMITH, Warden, Respondent.


RONALD E. BUSH, Magistrate Judge.

Pending before the Court is Petitioner David L. Santistevan's Amended Petition for Writ of Habeas Corpus (Dkt. 25). Respondent has filed an Answer and Brief in Support of Dismissal (Dkt. 32). Petitioner has filed a reply brief entitled Traverse/Response to Motion for Dismissal of Amended Petition ("Traverse") (Dkt. 42). The Court takes judicial notice of the records from Petitioner's state court proceedings lodged by Respondent on January 25, 2012 (Dkt. 17).

The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 14.) 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 Amended Petition and dismissing this case.


The Court will grant Petitioner's Second Motion to Extend Time to File Traverse, as well as Petitioner's Amended Second Motion to Extend Time to File Traverse. Petitioner's Traverse (Dkt. 42) is deemed timely.


On April 13, 2004, the State charged Petitioner with two counts of attempted second degree murder, with a sentencing enhancement for the use of a firearm, based on an incident in which Petitioner shot two people in an alley behind a bar in Bellevue, Idaho. (State's Lodging A-1 at 65-66; A-2 at 217-28.) The case proceeded to a jury trial, and Petitioner was found guilty as charged. (State's Lodging A-2 at 285-87.) The trial court sentenced Petitioner to a prison term of 11 years fixed on each of the attempted murder counts, to be served consecutively, and an indeterminate term of 13 years for a firearm enhancement, also to be served consecutively. (State's Lodging A-2 at 300-05; State's Lodging C-1 at 34.)

On direct appeal, Petitioner raised two issues: (1) whether his right to self-incrimination under the Fifth Amendment had been violated by a court-ordered psychological examination with the State's mental health expert before trial; and (2) whether his right to claim a psychotherapist-patient privilege had been violated. (Dkt. 5-2 at 4.) The Idaho Court of Appeals concluded that these issues lacked merit, and it affirmed. (Dkt. 5-1 at 4-8.) Petitioner did not file a petition for review in the Idaho Supreme Court within the 21-day deadline, and his attempt to file a petition nearly two years later was denied. (State's Lodgings B-2 through B-8.) In a separate appeal, the Idaho Court of Appeals affirmed the denial of Petitioner's Rule 35 motion to reduce his sentences. (State's Lodging D-5.)

Petitioner next submitted an application for post-conviction relief in state district court. (State's Lodging E-1 at 6-9.) The court appointed counsel, who filed an amended petition on Petitioner's behalf raising numerous claims, including claims of ineffective assistance of trial and appellate counsel. (State's Lodging E-1 at 21-24, 164-73.) The court eventually granted the State's motion to dismiss, and the petition was dismissed without an evidentiary hearing. (State's Lodging E-2 at 372-405.)

Petitioner represented himself on appeal from the district court's post-conviction order. Among other issues, he argued that the district court had erred in summarily dismissing his ineffective assistance of counsel claims, but the Idaho Court of Appeals concluded that "as to most of his claims[, ] he points this Court to no evidence in particular that would have created a genuine issue of material fact precluding summary dismissal." (Dkt. 6 at 3.) Because of this deficiency, the Court of Appeals did not reach the merits of "any of [Petitioner's] claims for which he has presented no more specific argument, " finding those issues to be waived. ( Id. ) Instead, the Court of Appeals addressed only whether Petitioner's counsel was ineffective in (1) conceding the weapons enhancement charge during the criminal trial, (2) failing to file a petition for review with the Idaho Supreme Court during the direct appeal and the Rule 35 proceedings, and (3) failing to introduce a medical report and medical testimony at the trial. (Dkt. 6 at 5-7.) Finding no merit to these or any other issues, the Idaho Court of Appeals affirmed the district court. ( Id. at 9.) Petitioner filed a petition for review in the Idaho Supreme Court, which was denied. (State's Lodgings F-3, F-4.)

With the assistance of retained counsel, Petitioner submitted a Petition for Writ of Habeas Corpus in this Court on July 14, 2011, which he amended on August 24, 2011. (Dkts. 1, 4-1, 25.) In his Amended Petition, Petitioner alleges that he was deprived of the effective assistance of counsel on numerous grounds (Claim A); that he was denied his Fifth Amendment right against compelled self-incrimination on grounds related to his examination by two psychiatrists (Claim B); and that he was not afforded due process of law in the post-conviction matter because the trial court prohibited him from testifying (Claim C). (Dkt. 25 at 8-15.)

Respondent then filed a Motion for Partial Summary Dismissal (Dkt. 16), contending that all of the claims in the Amended Petition were procedurally defaulted except Subclaim A-1 and Claim B. (Dkt. 16.) The Court granted the motion in part and denied it in part, dismissing Claim A-8 and Claim C but allowing the parties to address the applicability of Martinez v. Ryan, 131 S.Ct. 1309 (2012), to the remaining claims subject to the motion to dismiss. (Dkt. 27.) The Court concluded that Claims A-2 and Claim A-5 were not procedurally defaulted. ( Id. )

After Petitioner notified the Court that he would not be making a Martinez argument (Dkt. 28), the Court dismissed Claims A-3, A-4, A-6, A-7, and A-9. (Dkt. 30.) Therefore, the only claims remaining to be addressed are Claims A-1, A-2, A-5, and B.

Claim A-1 alleges that Petitioner was denied his Sixth Amendment right to effective assistance of counsel when trial counsel conceded that Petitioner used a firearm during the attempted murder offenses, which allegedly denied him the right to a fair trial on the sentencing enhancement charge. (Dkt. 25 at 8.) Claim A-2 alleges that trial counsel was also ineffective for failing to submit a medical report and call a witness regarding Petitioner's injuries from a previous beating-not committed by Petitioner's two victims-to support his claim of self-defense. ( Id. at 9.) Claim A-5 alleges ineffective assistance based on trial counsel's failure to inform Petitioner "about the process for seeking review from the Idaho Supreme Court, " as well as his failure "to preserve a due process error alleged to have been made at sentencing." ( Id. at 12.) Claim B alleges that Petitioner was denied his Fifth Amendment right not to be a witness against himself when-after Petitioner notified the government that he would be calling a psychiatrist as an expert witness to testify as to Petitioner's mental state on the night of the shooting-the trial court ordered Petitioner to disclose the contents of Petitioner's psychiatrist's expert report to the government and to submit to a psychological examination by the government's expert. Petitioner also claims his Fifth Amendment rights were violated when the prosecutor cross-examined Petitioner about statements that he made to his own psychiatrist and expert witness. ( Id. at 14.)


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 presented in the State court proceeding.

28 U.S.C. § 2254(d).

When a party contests the state court's legal conclusions, including the application of the law to the facts, § 2254(d)(1) governs. Section 2254(d)(1) has two clauses, each with independent meaning. That section consists of two alternative tests: the "contrary to" test and the "unreasonable application" test.

Under the first test, a state court's decision is "contrary to" clearly established federal law "if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002).

Under the second test, to satisfy the "unreasonable application" clause of § 2254(d)(1) the petitioner must show that the state court, although identifying "the correct governing legal rule" from Supreme Court precedent, nonetheless "unreasonably applie[d] it to the facts of the particular state prisoner's case." Williams v. Taylor, 529 U.S. 362, 407 (2000). A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; rather, the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. The standard of § 2254(d) is onerous and is satisfied only if "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 131 S.Ct. 770, 786 (2011).

Though the source of clearly established federal law must come from the holdings of the United States Supreme Court, circuit precedent may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). Circuit law may not be used "to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

When a petitioner contests the reasonableness of the state court's factual determinations, a federal court must undertake a § 2254(d)(2) analysis. To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Because it does not appear that Petitioner is challenging any particular factual findings of the state courts, the Court treats the Amended Petition as a challenge to the state courts' legal analysis pursuant to § 2254(d)(1).

Importantly, a "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 130 S.Ct. 841, 849 (2010).

2. Specific Factual Basis for Petitioner's Claims

In January 2004, before the incident for which Petitioner was charged, Petitioner was allegedly attacked and beaten at the Silver Dollar Bar in Bellevue, Idaho by both known and unknown assailants. He reported the attack to Sergeant Will Fruehling of the Blaine County Sheriff's Department, who told Petitioner that it would be difficult to pursue the case because "there were no marks on [Petitioner]." (Dkt. 7-3 at 21.) Petitioner then told Sergeant Fruehling that "it was more of a psychological beating" and that he did not "bruise easily." ( Id. ) After Petitioner learned that no charges would be pursued, Petitioner asked Sergeant Fruehling, "So if you're not going to do anything, what will happen if I go down there and shoot them?" ( Id. ) Frueling responded that it would not be good idea. ( Id. ) Although it is unclear how severe Plaintiff's physical injuries were as a result of the January attack, Petitioner visited Dr. Kathy Haisley four days afterwards, and her medical report states that Petitioner had multiple abrasions on his forearms and left knee, and that his knee was swollen and bruised. (Dkt. 7-12 at 1.)

The events giving rise to the attempted murder charges against Petitioner occurred two months later, in March 2004. The altercation between Petitioner and his two teenage victims began when the two boys were riding a four-wheeler toward Petitioner's car, which he was driving down a narrow road. The boys pulled over to let Petitioner pass. (Dkt. 7-6 at 8.) Petitioner was angry at the boys for being in his way and began yelling at them and threatening to call the police. ( Id. at 19.) Later that same night, the boys saw Petitioner in an alley behind the Silver Dollar Bar-the same bar where Petitioner was beaten two months earlier. ( Id. at 9.)

Petitioner stated that he was in the alley because he wanted to gather some information about his previous attackers. ( Id. at 16.) When the boys arrived, Petitioner was writing down license plates of cars that were in the alley. One of the boys, Marshall Hooten, walked over to Petitioner to talk to him about what happened in the road earlier. ( Id. at 8-9.) Hooten asked Petitioner what his problem was. ( Id. at 4.) Petitioner, allegedly feeling threatened, reached into his car to retrieve his loaded pistol and-after firing a shot into the ground at Hooten's feet-shot Hooten in the gut.[1] ( Id. at 5, 9-10, 17.) Petitioner then shot the other boy, Tyrel Peak, in the buttock as Peak was trying to ride away on the four-wheeler. (Dkt. 7-3 at 8.) Both of the boys were seriously injured but survived.

After the shooting, Petitioner drove home without checking to see if either boy was alive, called a girlfriend over to have sex, took a shower, and made tea. (Dkt. 7-7 at 21.) Petitioner confirmed that this was "a pretty normal evening between" him and the woman, April Kildare. ( Id. ) The police later found pieces of a dismantled gun near a bike path south of Petitioner's house. The gun was registered to Petitioner, the caliber matched that of the gun used to shoot Hooten and Peak, and the gun appeared to have been soaked in saltwater. (State's Lodging E-2 at 382; Dkt. 7-5 at 11-12; Dkt. 7-6 at 2.) Petitioner later claimed that he did not remember doing anything with the gun other than throwing it away. (Dkt. 7-6 at 21.)

Prior to trial and at the state's expense, defense counsel arranged for Petitioner to be examined by Dr. Richard Worst, a psychiatrist. (Dkt. 5-1 at 1.) Just three weeks before trial, Petitioner's counsel notified the state that Petitioner would be calling Dr. Worst to testify for the defense, and the prosecution objected. ( Id. at 1-2.) The trial court determined that Dr. Worst would be allowed to testify as to Petitioner's mental state at the time of the shooting, but that Petitioner would have to disclose Dr. Worst's reports to the state and submit to an examination by a state psychologist. ( Id. at 2.) The court postponed the trial and ordered that any evidence gained through this second examination could be used by the prosecution only in rebuttal. ( Id. at 2 & n.1.) The judge also warned Petitioner that he had a constitutional right to remain silent if asked about the events surrounding the shooting and that "any incriminating statements he [made] to the State's experts could be used against him at trial, in the event defendant place[d] his mental status in issue at trial." ( Id. at 3 n.1.) Dr. Robert Engle evaluated Petitioner on behalf of the state, but ultimately did not testify. ( Id. at 2-3.)

Petitioner's defense at trial was that Hooten threatened to kill him and that Petitioner defended himself. (Dkt. 7-6 at 16; Dkt. 7-7 at 1-2.) Petitioner also stated that he did not know where precisely Peak was when he fired the last shot: "It was such a blur. It was so fast. I knew they were both ...

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