United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
MIKEL H. WILLIAMS, Magistrate Judge.
Pending before the Court is Petitioner Daniel Lee Eby's Amended Petition for Writ of Habeas Corpus. (Dkt. 13.) Respondent has filed a Motion for Partial Summary Dismissal. (Dkt. 21.) Petitioner has filed a response to the Motion, and Respondent has filed a Reply. (Dkt. 24, 26.) Petitioner has also filed a Motion for Appointment of Counsel. (Dkt. 25.) The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on September 6, 2013. (Dkt. 22.) See Fed.R.Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case (Dkt. 20). See 28 U.S.C. § 636(c). 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 oral argument is unnecessary. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting in part Respondent's Motion for Partial Summary Dismissal and dismissing Claims Two, Five, and Six as procedurally defaulted.
The Court concludes that Claim Three is also procedurally defaulted, but because Respondent did not move for summary dismissal of Claim Three on that ground, Petitioner shall have 21 days from the date of this Order within which to file a brief establishing cause and prejudice to excuse the procedural default of Claim Three. If no such brief is filed, or if that brief does not establish cause and prejudice, the Court will dismiss Claim Three with prejudice as procedurally defaulted.
The facts underlying Petitioner's conviction are set forth clearly and accurately in State v. Eby, 37 P.3d 625 (Idaho Ct. App. 2001), which is contained in the record at State's Lodging B-3. The facts will not be repeated here, except as necessary to determine the procedural issues at hand.
In the First Judicial District of the State of Idaho, in Kootenai County, Petitioner was convicted of first degree murder (either with premeditation or during the course of a felony), conspiracy to commit robbery, and attempted robbery. (State's Lodging B-3.) On appeal, Petitioner argued that (1) the admission of a co-conspirator's statements to police violated Petitioner's right to confrontation under the Sixth Amendment; (2) the admission of Petitioner's statements to police violated his Fifth Amendment right against self-incrimination because the police did not cease questioning Petitioner after he told them that he had a lawyer; (3) Petitioner's conviction for attempted robbery had to be vacated because the attempted robbery merged with the offense of felony murder; and (4) the court should have instructed the jury on a "threats and menaces, " or duress, defense. (State's Lodging B-1.)
The Idaho Court of Appeals held that although the admission of the co-conspirator's statements violated the Sixth Amendment, the error was harmless beyond a reasonable doubt. (State's Lodging B-3 at 4-7.) The court also held that Petitioner's statement to the police, "I've got an attorney, " was an ambiguous request for counsel and that detectives were therefore not required to stop the interrogation. ( Id. at 2-4.) The court rejected Petitioner's argument regarding the threats and menaces instruction because the evidence did not support that instruction. ( Id. at 7-8.) However, the Idaho Court of Appeals agreed that Petitioner's sentence for attempted robbery was improper because it merged with Petitioner's sentence for first-degree murder, and the court therefore vacated the attempted robbery conviction. ( Id. at 8-9.) The court denied Petitioner's petition for rehearing. (State's Lodging B-6.)
Petitioner filed a petition for review with the Idaho Supreme Court, arguing that the court of appeals erred when it conducted a harmless error analysis with respect to the Confrontation Clause issue because the jury's general verdict did not indicate whether Petitioner was convicted of premeditated murder or of felony murder. (State's Lodging B-8 at 1-5.) He argued also that the jury should have been instructed on a threats and menaces defense. ( Id. at 5-6.) Petitioner did not renew his Fifth Amendment argument regarding his inculpatory statements to police. The Idaho Supreme Court denied the petition for review. (State's Lodging B-9.)
Petitioner filed a postconviction petition in state court, beginning a long process that the Idaho Supreme Court later described as "shocking and disgraceful neglect" of Petitioner's case by a series of appointed attorneys. (State's Lodging D-8 at 1.) After years of deficient representation, Petitioner's postconviction petition was dismissed for inactivity. The Idaho Supreme Court held, as a matter of first impression, that Idaho Rule of Civil Procedure 60(b) may, in some circumstances, be used to challenge such a dismissal. ( Id. at 4-7.) On remand from the Idaho Supreme Court, the state district court reopened the case under Rule 60(b) and appointed new postconviction counsel for Petitioner. (State's Lodging E-1 at 4.)
Petitioner then filed an amended petition for postconviction relief, asserting the following claims: (1) Petitioner was denied his right to conflict-free counsel; (2) newly discovered evidence required that Petitioner's convictions be vacated in the interests of justice under Idaho Code § 19-4901(a)(4); and (3) ineffective assistance of trial counsel on various grounds. ( Id. at 7-9.) Following an evidentiary hearing (State's Lodging E-4), the trial court denied the postconviction petition.
Petitioner filed a pro se appeal, arguing that the district court erred in denying relief on (1) his claim that he was denied conflict-free counsel, and (2) his newly discovered evidence claim. (State's Lodging F-5.) Although Petitioner stated in the "Issues" statement in his opening brief that he was also appealing the district court's denial of his ineffective assistance of counsel claims ( id. at 2), he did not include any argument to that effect in the body of his brief.
The Idaho Court of Appeals affirmed the denial of postconviction relief, holding that there was no evidence in the record that any conflict of interest was likely to result in prejudice to Petitioner and that the newly discovered evidence was not material because is was merely impeaching. (State's Lodging F-8 at 7-8.) With respect to Petitioner's attempt to raise claims of ineffective assistance of counsel, the court concluded that his failure to assert specific facts as to these claims constituted a waiver under State v. Zichko, 923 P.2d 966, 970 (Idaho 1996), which held that a party waives an issue on appeal by failing to include either authority or argument in the appellate briefs. (State's Lodging F-8 at 8-10.) The Idaho Supreme Court denied Petitioner's petition for review. (State's Lodging F-11.)
During the pendency of his state postconviction proceedings, Petitioner filed the instant federal Petition. The Court stayed the case while Petitioner continued to pursue postconviction relief in state court. (Dkt. 8.) Following the completion of state proceedings, Petitioner filed an Amended Petition, which asserts the following claims:
Claim One: The admission of a co-conspirator's statements implicating Petitioner in the murder violated the Sixth Amendment.
Claim Two: The admission of Petitioner's inculpatory statements to police violated the Fifth Amendment.
Claim Three: The trial court denied Petitioner his constitutional right to present a defense by refusing to instruct the jury on a threats and menaces defense.
Claim Four: Petitioner was denied his right to conflict-free counsel.
Claim Five: Petitioner was denied his Sixth Amendment right to effective assistance of trial counsel based on counsel's (a) failure to communicate with Petitioner, (b) refusal to allow Petitioner to testify on his own behalf, and (c) instruction to Petitioner that he should not speak to the pre-sentence investigator.
Claim Six: The police or prosecutor withheld favorable evidence from the defense.
(Am. Pet., Dkt. 13, at 4-11.)
PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL
Petitioner requests the appointment of counsel. 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 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 ...