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Veenstra v. Smith

United States District Court, D. Idaho

March 26, 2014

ALBERT PETE VEENSTRA III, Petitioner,
v.
JOHANNA SMITH, Respondent.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief District Judge.

Pending before the Court is Petitioner Albert Pete Veenstra III's Amended Petition for Writ of Habeas Corpus. (Dkt. 33.) Respondent has filed a Motion for Partial Summary Dismissal, arguing that some of Petitioner's claims are procedurally defaulted. (Dkt. 34). Petitioner has filed a response to the Motion (Dkt. 38), and Respondent has filed a reply (Dkt. 48). Petitioner has filed a Sur-reply and Request for Evidentiary Hearing and Appointment of Counsel. (Dkt. 52.) Various other motions are also pending.

The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on September 12, 2012, and January 11, 2013. (Dkt. 10, 18.) 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. See D. Idaho Loc. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Respondent's Motion for Partial Summary Dismissal and dismissing with prejudice Claims One, Three, and Six through Eleven as procedurally defaulted.

BACKGROUND

The facts underlying Petitioner's conviction are set forth clearly and accurately in Veenstra v. State, Docket Nos. 35310 & 36838, Op. 424 (Idaho Ct. App. April 4, 2011) (unpublished), which is contained in the record at State's Lodging F-9. Petitioner was on probation for a 1993 conviction for lewd conduct with a minor when, in 1999, he was accused of molesting his daughter and his daughter's friend. Petitioner passed a polygraph examination (the "Kurz polygraph") with respect to the girls' accusations. ( Id. at 1.) Petitioner was also accused of violating his probation by selling prescription drugs and took a separate polygraph (the "Touchette polygraph") with respect to those allegations. It appears that Petitioner either failed the Touchette polygraph or admitted to the drug allegations during the examination.

After the Kurz polygraph indicated that Petitioner had been truthful when he denied molesting his daughter and her friend, Petitioner was released from police custody and, although no charges were filed based on the girls' allegations, he still had an upcoming probation violation hearing. Before the hearing, Petitioner fled to Mexico and evaded capture until 2004. It was not until after Petitioner's extradition that he was charged with two counts of lewd conduct with a minor under sixteen based on his alleged molestation of his daughter and her friend. (State's Lodging F-9 at 1-2.)

On the first day of trial, defense counsel made an oral motion in limine seeking admission of the Kurz polygraph evidence. The trial court denied the motion. Counsel later moved to introduce a police report that referred to the polygraph, but the court denied that motion as well.

During opening statements, both the prosecutor and defense attorney referred to Petitioner's prior conviction for lewd conduct with a minor. In the middle of trial, defense counsel successfully moved to exclude the testimony of Petitioner's niece, the victim of that previous crime.

At one point during the trial, Petitioner's probation officer testified as to the reasons he decided to institute proceedings to revoke Petitioner's probation. The witness stated that the information involving Petitioner's sale of prescription drugs "came up as a result of a polygraph" (the Touchette polygraph). (State's Lodging A-2 at 121.) This was the only reference to any polygraph that the jury heard throughout the trial, and defense counsel did not object or move to strike the testimony. Trial counsel also did not object when a sheriff testified that victims of child sexual abuse often delay reporting the abuse and, when they do report, there is often a piecemeal disclosure; very rarely do child victims tell police in a single interview everything that happened to them. (State's Lodging A-2 at 142-43.)

The jury found Petitioner guilty. In November 2005, Petitioner was sentenced to two concurrent unified prison terms of thirty years, with fourteen years fixed. ( Id. at 2; Am. Pet. at 1-2.) On direct appeal, Petitioner argued only that the district court abused its discretion by excluding evidence of the Kurz polygraph, which tended to show that Petitioner was not deceptive when he denied molesting the girls. (State's Lodging B-1.) Petition did not argue that the evidence should have been admitted for its truth, but that it was admissible to rebut the state's theory that Petitioner's flight to Mexico showed a consciousness of guilt as to the molestation allegations. ( Id. ) The Idaho Court of Appeals assumed without deciding that the exclusion of the polygraph was erroneous, but concluded that any such error was harmless beyond a reasonable doubt. (State's Lodging B-4 at 3-4.) Petitioner filed a petition for review, which the Idaho Supreme Court denied. (State's Lodging B-7.)

Petitioner next filed a pro se petition for postconviction relief in state court, raising the following claims: (1) plain error; (2) prosecutorial misconduct; (3) ineffective assistance of trial counsel based on counsel's failure (a) to move for a mistrial when Petitioner's probation officer referred briefly to the Touchette polygraph, (b) to summon Special Agent Kurz, who had administered the Kurz polygraph, (c) to reasonably investigate the admissibility of polygraph evidence, and (d) to object when the sheriff gave "expert testimony on the emotional and psychological factors involved in child sex abuse." Petitioner also asserted that his appellate counsel was ineffective for allegedly failing to "file an appeal with any issues of substance." (State's Lodging C-1 at 2-3.)

After the parties filed motions for summary disposition, the state district court court granted Petitioner's belated request for counsel. (State's Lodging C-2 at 296.) Counsel declined to amend the pro se petition, informing the trial court that Petitioner had asked counsel "to submit what he has already submitted himself and to not redesign that in any way."[1] (State's Lodging C-3 at 12.) The trial court dismissed the petition. (State's Lodging C-2 at 311.) On appeal, Petitioner argued that trial counsel was ineffective for failing to move for a mistrial after the probation officer referenced the Touchette polygraph because the reference allowed the jury to infer that Petitioner had failed a polygraph, and that this error-viewed cumulatively with the district court's exclusion of the Kurz polygraph-prejudiced Petitioner. Petitioner also argued that trial counsel should have objected to the sheriff's expert testimony and that direct appeal counsel should have presented the argument regarding the Kurz polygraph in a more expansive way. (State's Lodging E-5.)

While that appeal was pending, Petitioner filed a pro se successive petition for postconviction relief. The successive petition argued that Petitioner's trial counsel was ineffective for failing (1) to move prior to trial to exclude reference to Petitioner's prior lewd conduct conviction; (2) to move to suppress the psychosexual evaluation conducted for sentencing purposes; (3) to inform Petitioner of his right to remain silent and have a lawyer present during the psychosexual evaluation; and (4) to allow Petitioner to testify on his own behalf. (State's Lodging D-1 at 2-3.) Petitioner also argued that direct appeal counsel was ineffective by not properly examining the case or filing a brief containing the best arguments, and that his initial postconviction counsel was ineffective in not filing an amended petition. ( Id. at 3.) The trial court dismissed the successive petition. Petitioner appealed, arguing that the district court should have appointed him counsel before summarily dismissing the successive petition; he also argued that trial counsel was ineffective in failing to file a pretrial motion to exclude evidence of Petitioner's prior conviction and that postconviction counsel should have amended the initial petition to include this claim.[2] (State's Lodging F-6.)

The appeals involving Petitioner's initial and the successive postconviction petitions were consolidated, and the Idaho Court of Appeals affirmed both dismissals. (State's Lodging F-9.) The Idaho Supreme Court denied Petitioner's petition for review. (State's Lodging F-15.)

Petitioner filed his initial federal Petition in December 2011 and an Amended Petition in May 2013. Respondent now moves for summary dismissal of Claims One, Three, and Six through Eleven.

Claim One alleges that Petitioner was deprived of his due process right to present a defense when the trial court excluded evidence that Petitioner had passed the Kurz polygraph with respect to the sexual abuse allegations.

Claim Three asserts that trial counsel was ineffective in "failing to conduct a reasonable pre-trial investigation on the admission of evidence as complex as government-initiated government-administrated polygraph exams." (Am. Pet., Att. A, Dkt. 33-1, at 9.)

Claim Six appears to be an expansion of Claim One and alleges that the trial court erred by denying Petitioner's motion seeking admission of the police report that referred to the Kurz polygraph.

In Claim Seven, Petitioner alleges he was denied the effective assistance of counsel when his trial attorney failed, prior to trial, to move to exclude evidence of Petitioner's prior lewd conduct conviction and acknowledged the conviction in his opening statement. Though Petitioner's previous victim was ultimately not allowed to testify, the jury was aware that Petitioner had committed the alleged crimes while on probation for another lewd conduct offense.

Claim Eight asserts ineffective assistance of trial counsel and alleges that counsel refused to allow Petitioner to testify.

Claim Nine alleges that trial counsel was ineffective in failing to advise Petitioner of his right, later established by the Idaho Supreme Court in Estrada v. State, 149 P.3d 833 (Idaho 2006), to remain silent during the psychosexual evaluation conducted for sentencing purposes.

Claim Ten asserts that direct appeal counsel was ineffective in failing to raise on appeal a claim of ineffective assistance of trial counsel, due to Idaho's rule that such claims are generally reviewed in postconviction proceedings rather than on direct appeal.

Claim Eleven asserts that the evidence at trial was insufficient to convict, that Petitioner is actually innocent, and that his conviction therefore violates due process.

PRELIMINARY MOTIONS

There are several preliminary motions pending before the Court. As an initial matter, the Court will grant Petitioner's Motion for Extension of Time to file his response to the Motion for Partial Summary Dismissal (Dkt. 36), as well as Respondent's two Motions for Extensions of Time and Motion To File Oversize Brief. (Dkt. 41, 42, 47.) Petitioner's Response and Respondent's Reply are deemed timely.

In October 2013, Petitioner filed an Objection to Respondent's Notice of Lodging of State Court Records, asking the Court to order Respondent to provide Petitioner with a complete copy of the state court records. (Dkt. 43.) Petitioner later clarified that he was only missing two documents. (Dkt. 49.) Respondent has since provided these two documents to Petitioner (Dkt. 50), and Petitioner's request for a Court order is therefore moot.

Petitioner has also filed a Renewed Motion to Augment the Record, providing the Court with an audio recording of the oral argument in the appeal of the dismissal of his successive postconviction petition. (Dkt. 51.) Respondent has similarly filed a Motion to Expand the Record with various records from Petitioner's state court proceedings. (Dkt. 46.) Both motions will be granted. The Court has considered these parts of the record along with all other state court records.

Finally, Petitioner filed a sur-reply in opposition to the Motion for Partial Summary Dismissal, which contains a request for an evidentiary hearing and for appointment of counsel. (Dkt. 52.) The Court will deny both requests. First, an evidentiary hearing is unnecessary in this case because, as explained below, it is clear from the current record that the claims subject to the Motion for Partial Summary Dismissal are procedurally defaulted, that no cause exists to excuse that default, and that no miscarriage of justice will occur if the claims are not heard on the merits.

Second, there is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner's ability to articulate his claims in light of the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

Prior to reaching the merits of the claims in the Petition, the Court must address a narrow procedural issue-whether Petitioner properly presented his federal claims to the Idaho Supreme Court and whether, if he did not, cause and prejudice (or actual innocence) exists to excuse that failure-for which appointment of counsel is not required. Further, it appears from Petitioner's filings that he has been able to adequately bring his claims and protect his interests to date. The Court understands that Petitioner does not have legal training or legal resources. Therefore, the Court independently reviews the case citations and references provided by the State for accuracy and applicability. The Court also does its own research to determine whether other cases not cited by the State apply. Finally, the appellate review process before the United States Court of Appeals for the Ninth Circuit is available to ensure that the case has been adjudicated according to the proper legal standards. For these reasons, the Court will deny Petitioner's request for counsel.

RESPONDENT'S MOTION FOR PARTIAL SUMMARY DISMISSAL

Respondent argues that Claims One, Three, and Six Through Eleven are procedurally defaulted. Petitioner responds that his claims are not defaulted. He argues alternatively that the procedural default of these claims is excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012).

1. Standard of Law Governing Summary Dismissal

Rule 4 of the Rules Governing § 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 the light most favorable to the petitioner.

2. Standard of Law Governing 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.

The mere similarity between a federal claim and a state law claim, without more, does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995). General references in state court to broad constitutional principles, such as due process, equal protection, or the right to a fair trial, are likewise insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear that, for proper exhaustion, a petitioner must bring his federal claim before the state court by "explicitly" citing the federal legal basis for his claim, "regardless of whether the petitioner [is] proceeding pro se." Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001) (emphasis omitted).

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; and (3) when the Idaho courts have rejected a claim on an adequate and independent state procedural ground. Id .; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991).

To be an "adequate" state ground, a state court's procedural bar must be one that is "clear, consistently applied, and well-established' at the time of the petitioner's purported default." Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is "independent" of federal law if it does not rest on federal ...


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