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Turney v. Wengler

United States District Court, D. Idaho

March 27, 2014

PHILIP A. TURNEY, Petitioner,


B. LYNN WINMILL, Chief District Judge.

Pending before the Court is Petitioner Philip A. Turney's Petition for Writ of Habeas Corpus (Dkt. 1). Respondents have filed a Motion for Partial Summary Dismissal. (Dkt. 9). Petitioner has filed a response to the Motion (Dkt. 17). Respondents have filed a Reply (Dkt. 18), and Petitioner has filed a sur-reply (Dkt. 21). The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondents on August 1, 2013 (Dkt. 10). 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 in part and dismissing Claims 2(b), 2(c), 4, and 5(a)-(e) as procedurally defaulted, and dismissing Claims 3 and 6 as noncognizable. Therefore, the only claims remaining in this action are Claims 1 and 2(a), and Respondents shall file an answer to these claims within 90 days after entry of this Order.


The facts underlying Petitioner's conviction are set forth clearly and accurately in State v. Turney, 214 P.3d 1169 (Idaho Ct. App. 2009), which is also contained in the record at State's Lodging B-4. Petitioner was convicted of two counts of aggravated driving under the influence (DUI) for causing serious injury to two police officers; he was also convicted of being a persistent violator. Id. at 1170. He was sentenced to concurrent unified terms of life imprisonment, with fifteen years fixed. Id.

On direct appeal, Petitioner argued that he had been subjected to double jeopardy in violation of the Fifth Amendment because there was only a single act of driving under the influence and, therefore, he could not be charged with two separate counts. Id . at 1170-71. The Idaho Court of Appeals determined that "driving is not the actus reus of the offense" of aggravated DUI; rather, the statute penalizes any person "causing great bodily harm... to any person other than himself in committing" a DUI offense. Id. at 1171 (quoting Idaho Code § 18-8006(1)). Therefore, because Petitioner injured two people, he was appropriately charged with two counts of aggravated DUI. The court of appeals also rejected Petitioner's claim that his sentence was excessive. The Idaho Supreme Court denied Petitioner's petition for review. (State's Lodging B-7.)

Petitioner then filed a petition for postconviction relief in state court, asserting the following claims:

(1) Denial of a fair trial because the state (a) presented perjured testimony of one witness; (b) presented "unreliable" testimony of another witness; (c) improperly commented on matters not in evidence; and (d) failed to preserve exculpatory evidence.
(2) Ineffective assistance of trial counsel based on counsel's failure to (a) present a qualified expert on the air bag deployment system; (b) move for acquittal based on insufficiency of the evidence; and (c) investigate or subpoena a material witness to testify at trial.
(3) Ineffective assistance of direct appeal counsel based on counsel's failure to (a) adequately review the trial record or present on appeal a claim involving a missing jury instruction; and (b) raise and brief the issue of the prosecutor's allegedly improper commentary on the evidence.

(State's Lodging C-1 at 4-10, 43.) The state district court concluded that Petitioner's claims were frivolous and therefore denied his motion for appointment of counsel. (State's Lodging D-4 at 1-2.) The court later entered an order conditionally dismissing the postconviction petition, to which Petitioner responded. Ultimately, the court summarily dismissed the petition. ( Id. at 2.)

Petitioner appealed the dismissal of his postconviction petition. In the issues statement and in the headings in his appellate briefing, Petitioner stated broadly that he was challenging the district court's denial of postconviction counsel and its summary dismissal of the petition. (State's Lodging D-1 at 6-7, 12.) However, in the substantive argument portion of his brief, he argued only two claims: (1) that the prosecution violated his right to a fair trial by presenting a witness that committed perjury; and (2) that the state district court should have appointed postconviction counsel because Petitioner raised the possibility of a valid claim of ineffective assistance of trial counsel based on counsel's failure to interview Travis Anderson, an eyewitness to the accident. ( Id. at 10-12, 15-18.) The Idaho Court of Appeals affirmed the dismissal of the petition. Petitioner filed a petition for rehearing and a petition for review, raising only the ineffectiveness issue. He did not argue that the Idaho Court of Appeals erred in upholding the dismissal of his claim regarding the perjured testimony. (State's Lodging D-7, D-9.) The court of appeals denied the petition for rehearing, and the Idaho Supreme Court denied the petition for review. (State's Lodging D-8, D-10.)

Petitioner filed the instant federal Petition in December 2012, asserting six categories of claims. Petitioner labels his claims as Claims A, B, C, and D. However, because there are six broad categories of claims rather than four, and because some of the claims contain sub-claims, the Court will adopt Respondents' numbering of the claims in the Petition for clarity. ( See Dkt. 9-1 at 5.)

Respondent now moves for summary dismissal of Claims 2 through 6. Claim 2 (labeled in the Petition as Claim B) alleges ineffective assistance of trial counsel based on counsel's failure to (a) interview and subpoena Travis Anderson; (b) present a qualified expert to testify regarding the air bag deployment system; and (c) move for an acquittal on insufficiency of evidence grounds. (Pet., Dkt. 1, ¶¶ 55-58.) Petitioner argues that he was prejudiced by the cumulative effect of these alleged errors. ( Id. ¶ 58.)

Claim 3 (found at ¶ 59 of the Petition within Petitioner's general discussion of his ineffective assistance of counsel claims) asserts that Petitioner the state courts wrongfully denied his request for the appointment of counsel during postconviction proceedings because postconviction review "was the first place to raise his claim of ineffective assistance at trial."

Claim 4 (found at ¶ 60 of the Petition) alleges that direct appeal counsel was ineffective for allegedly failing "to adequately review [the] trial record and/or present on a appeal a claim involving a missing jury instruction."

Claim 5 (labeled in the Petition as Claim C) alleges that Petitioner was denied due process when the prosecutor allegedly (a) presented perjured testimony; (b) knowingly presented unreliable testimony; (c) commented on matters not in evidence; (d) failed to preserve exculpatory evidence; and (e) "depart[ed] from standard chain of evidence guidelines." ( Id. ¶¶ 62-66.)

Claim 6 (labeled in the Petition as Claim D and included in part at ¶ 61 of the Petition within the general discussion of Petitioner's ineffective assistance of counsel claims) alleges that Petitioner was denied due process during postconviction proceedings when the state district court summarily dismissed his postconviction claims (a) without giving sufficient notice; (b) without holding an evidentiary hearing; and (c) without allowing discovery. ( Id. ¶¶ 67-70; ¶ 61.)

Respondents contend that Claims 2 through 6 must be dismissed either because they are noncognizable in this federal habeas corpus action or because they are procedurally defaulted. Petitioner argues that his claims are not procedurally defaulted and alternatively argues that cause and prejudice exist to excuse the default 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. Claims That Are Not Cognizable on Federal Habeas Review: Claims 3 and 6

There is no constitutional right to counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 429-30 (9th Cir. 1993). Although the lack of postconviction counsel or ineffective postconviction counsel can constitute cause to excuse the procedural default of claims, it is not an independent constitutional claim. See Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012), and § 5, infra. Therefore, Claim 3-that Petitioner should have been appointed counsel during postconviction proceedings-is not cognizable in this federal habeas action.

Claim 6-asserting errors in the state court's treatment of Petitioner's postconviction claims-is similarly subject to summary dismissal because federal habeas corpus is not the proper avenue to address errors in a state's postconviction review process. Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); Williams v. Missouri, 640 F.2d 140, 143 (8th Cir. 1981) ("[I]nfirmities in the state's post-conviction remedy procedure cannot serve as a basis for setting aside a valid original conviction."). A federal court has no authority to grant habeas relief for violations of state law. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law.")

For these reasons, Claims 3 and 6 will be dismissed with prejudice. The Court now turns to Respondents' argument that Claims 2, 4, and 5 must be dismissed as procedurally defaulted.

3. 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 ...

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