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Ngabirano v. Wengler

United States District Court, D. Idaho

February 7, 2014



B. LYNN WINMILL, Chief District Judge.

Pending before the Court is Petitioner Ronald William Ngabirano's Petition for Writ of Habeas Corpus (Dkt. 1). On March 19, 2013, the Court conditionally granted Respondent's Motion for Summary Dismissal after it concluded that Petitioner's habeas claims are procedurally defaulted. (Dkt. 28.) The Court declined to enter a final order of dismissal at that time, instead allowing the parties to submit additional briefing addressing whether Maples v. Thomas, 132 S.Ct. 912 (2012), should apply to excuse the procedural default of those claims. Additionally, the Court declined to decide whether Martinez v. Ryan, 132 S.Ct. 1309 (2012), excused the default of Petitioner's ineffective assistance of trial counsel claims because the Supreme Court was considering the case of Trevino v. Thaler, 133 S.Ct. 1911 (2013), which was ultimately dispositive of one of Respondent's arguments against the application of Martinez to Petitioner's claims. Petitioner has now filed a Motion to Proceed with Habeas Petition and Supplemental Brief (Dkt. 30). Both parties have filed their briefs, and the issue is ripe for adjudication.

Having fully 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 dismissing the Petition with prejudice.


This case stems from Petitioner's sexual predation of several young children. Petitioner was a friend of a couple with children and sometimes stayed at their apartment. Petitioner would baby-sit the children in exchange for a place to stay. One day, the 6-year old girl living in the apartment told her stepfather that "Will" (the name used by Petitioner) had touched her inappropriately and that he had taken photographs. (State's Lodging A-4 at 227-28.) The stepfather then searched the room where Petitioner slept when he stayed over (a room shared with one of the couple's younger boys) and found 6 pairs of blood-soaked panties stuffed into Petitioner's work boots. The panties belonged to the little girl. ( Id. at 229-30.) A later search of the room revealed a cell phone containing pictures of the little girl's genitalia, as well as pictures of her with Petitioner's penis in her mouth. ( Id. at 239, 271-72.)

When Petitioner was arrested, police found that he had a list of names he had written. On this list was the little girl's name, as well as many others. Police later learned of other children who disclosed that Petitioner had sexually abused them. Many of those names were also on Petitioner's list. In one of Petitioner's interviews with police, a detective used that list to question Petitioner about other potential victims. ( Id. at 273.) The night of Petitioner's arrest, he made several incriminating statements to the investigating detective after receiving Miranda warnings.

After Petitioner was appointed counsel, he requested another interview with the detective, who told him she could not talk to him because he had a lawyer. The detective later came back to interview Petitioner because Petitioner wrote a note requesting to speak to her without his lawyer. In this second interview, Petitioner made more incriminating statements, again after Miranda warnings were given. (State's Lodging A-1 at 65-68.)

Petitioner pleaded guilty in Idaho state court to three counts of lewd conduct with a child under the age of 16 and to one count of possessing sexually exploitative material. (State's Lodging A-1 at 77-82; State's Lodging A-2 at 1.) In exchange for the guilty plea, the State dismissed several additional counts involving yet more child victims. ( Id. ) The State also agreed not to seek a fixed life sentence, and it ultimately recommended a unified life sentence with 30 years fixed. (State's Lodging A-2 at 61.) The district court sentenced Petitioner to life imprisonment without the possibility of parole on each lewd conduct count and to 10 years fixed for possession of sexually exploitative material. (State's Lodging A-1 at 98-100.) On direct appeal, Petitioner argued that his sentences were excessive under state law. The Idaho Court of Appeals affirmed the judgment of the lower court, and the Idaho Supreme Court declined to review the case. (State's Lodgings B-3, B-6, B-9.)

Petitioner next filed an application for postconviction relief in state district court, raising numerous claims, including claims of ineffective assistance of trial counsel, each with several sub-parts. (State's Lodging C-2.) The district court appointed an attorney for Petitioner, but other than enter an appearance and file a motion to unseal the presentence investigation report, counsel did nothing to move the case forward, and it sat idle for almost two years. (State's Lodging C-1.) Eventually, the State filed a motion for summary dismissal, to which Petitioner's counsel did not respond. ( Id. ) At the hearing on the State's motion, postconviction counsel agreed with the district court's characterization that he chose not to "contest what's in the brief filed by the State as far as the legal and factual evidence." (State's Lodging C-8 at 6.) After the court granted the State's motion and ordered the case dismissed, counsel informed the court that "the reason we didn't file a response was I-we concluded that under Rule 11 we would not really have anything to say. I think Rule 11 prohibits us from making arguments that are without legal merit." ( Id. ) No appeal was filed from the district court's decision. (State's Lodging C-1.)

Petitioner next filed his Petition for Writ of Habeas Corpus in this Court, alleging a wide array of federal claims arising out of the state criminal process, including: (1) a violation of his right, as a foreign national, to consular access after his arrest under the Vienna Convention on Consular Relations; (2) a violation of the Eighth Amendment's prohibition on excessive bail, which allegedly resulted in Petitioner's not being able to retain counsel of his choice; (3) a biased judge; (4) prosecutorial misconduct; (5) ineffective assistance of trial counsel under a variety of theories, including counsel's alleged failure to investigate and argue (a) search and seizure issues, (b) issues related to Petitioner's confession, (c) Petitioner's inability to access the law library in the county jail, as well as (d) counsel's allegedly deficient advice about the plea agreement; (7) an involuntary guilty plea; (8) cruel and unusual punishment under the Eighth Amendment; and (9) ineffective assistance of counsel on direct appeal. (Attachment to Petition, Dkt. 1-1 at 1-26.)

Respondent filed a Motion for Summary Dismissal, arguing that Petitioner failed to properly exhaust his claims in the state courts, and because it was now too late to do so, the claims had to be dismissed as procedurally defaulted. (Dkt. 10.) The Court determined that all of Petitioner's claims were procedurally defaulted and conditionally granted Respondent's motion, but allowed the parties to submit supplemental briefing on whether cause and prejudice excuses the default under either Maples v. Thomas or Martinez v. Ryan .


1. Standard of Law Governing Summary Dismissal

Rule 4 of the Rules Governing ยง 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus or claims contained in the petition when "it plainly appears from the face of the petition and any attached exhibits 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 n.1 (9th Cir. 2006). Therefore, the Court takes judicial notice of the state court records lodged by Respondent on July 7, 2012, July 12, 2012, November 26, 2012, and January 29, 2013. ( See Dkt. 8, 11, 19, 26.)

2. Standard of Law for Procedural Default

A habeas petitioner must exhaust his remedies in the state courts before a federal court can grant relief on constitutional claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This means that the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Id. at 847.

When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and it is clear that the state court would now refuse to consider it because of the state's procedural rules, the claim is said to be procedurally defaulted. Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts, as discussed directly above; or (3) when the Idaho courts have rejected a claim on an independent and adequate state procedural ground. Id .; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991).

If a claim is procedurally defaulted, a federal court cannot hear the merits of that claim unless the petitioner meets one of two exceptions: (1) a showing of adequate legal cause for the default and prejudice arising from the default; or (2) a showing that a miscarriage of justice will occur if the claim is not heard, meaning that the state court proceedings have probably resulted in the conviction of someone who is actually innocent. See Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986). Because Petitioner does not contend that he is actually innocent, the Court will address only cause and prejudice in this Order. ( See Motion to Proceed, Dkt. 30.)

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 cause and prejudice test was clarified in Coleman, 501 U.S. at 745, as a basis for excusing procedural default.

3. Abandonment by Postconviction Counsel under Maples v. Thomas

A. Standard of Law

Until relatively recently, the Supreme Court had long held that a criminal defendant generally bears the risk of error by postconviction counsel, and "[t]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default, " though counsel's errors that rise to an independent constitutional violation may serve as cause. Murray, 477 U.S. at 486. More specifically, in Coleman, the Supreme Court found that because it had never held that there is a constitutional right to counsel in post-conviction matters, a claim of ineffective assistance of post-conviction counsel cannot excuse the petitioner's failure to raise a claim properly in state court. 501 U.S. at 753 ("We reiterate that counsel's ineffectiveness will constitute cause only if it is an independent constitutional violation."). This general rule is based on the principle that the postconviction attorney is the agent of the petitioner. See Towery v. Ryan, 67. F.3d 933, 941 (9th Cir. 2012) ("A federal habeas petitioner-who as such does not have a Sixth Amendment right to counsel-is ordinarily bound by his attorney's negligence, because the attorney and the client have an agency relationship under which the principal is bound by the actions of the agent.").

However, twenty years later, the Supreme Court held that complete abandonment of a petitioner by a postconviction attorney-as opposed to the ineffective assistance of that attorney-can constitute cause for excusing the procedural default of habeas claims. Maples v. Thomas, 132 S.Ct. 912, 924 (2012). In Maples, the attorneys representing the petitioner on postconviction review-out-of-state attorneys from a large law firm-left the firm while the postconviction petition was still pending in state court and took new jobs that precluded their representation of the petitioner. They did not notify Maples, take steps to procure the assistance of other attorneys to represent him, or move to withdraw as counsel of record. Id. at 916-17.

When the state court denied Maples's postconviction petition, the order was sent to the law firm, which returned the order to the court as undeliverable. Local counsel, who had helped the out-of-state attorneys obtain pro hac vice admission, took no action on the order, assuming that the out-of-state attorneys were handling the matter. Thus, the deadline to appeal the denial of the state postconviction petition came and went, without the petitioner having any idea that he could no longer rely on his attorneys to file that appeal.

The Maples Court held that the Coleman rule-that an attorney's errors during postconviction proceedings are attributable to the client under agency principles-does not apply when the petitioner's postconviction attorneys have effectively severed the attorney-client relationship without notice to the client. Id. at 922-23. Although it held the attorneys' abandonment of Maples constituted cause for excusing the procedural default, the Court did not disturb the requirement that the petitioner also show prejudice stemming from the default. Id. at 927-28 (remanding for a prejudice determination).

B. Application of Maples to Petitioner's Procedural Default

A petitioner seeking to use Maples to excuse the procedural default of an underlying habeas claim must make a prima facie showing of a severance of the attorney-client relationship. Such a severance occurs if postconviction counsel abandons the petitioner without notice to the client or permission by the court to withdraw as counsel of record. See Maples, 132 S.Ct. at 922-23; Moormann v. Schriro, 672 F.3d 644, 647 (9th Cir. 2012); Mackey v. Hoffman, 682 F.3d 1247, 1253 (9th Cir. 2012). A serious breach of loyalty may also sever the attorney-client relationship, but a mere "failure to raise a colorable habeas claim" does not "amount to a serious breach of loyalty that severs the attorney-client relationship. Towery, 673 F.3d at 942.

Here, Petitioner has failed to make a prima facie showing of a severance of the attorney-client relationship. Although postconviction counsel had minimal contact with Petitioner and did not file a response to the State's motion to dismiss Petitioner's state postconviction petition, he did appear at the hearing on Petitioner's behalf and stated his reasons for not responding. Failing to move the case forward for two years, not responding in writing to a motion to dismiss, and having poor communication with Petitioner "may be a claim of serious negligence, but it is not abandonment.'" Moorman, 672 F.3d at 648. Further, Petitioner has not established that postconviction counsel committed a breach of loyalty ...

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