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Hansen v. Reinke

United States District Court, D. Idaho

July 22, 2014

TIMOTHY J. HANSEN, Petitioner,
v.
BRENT REINKE, Respondent.

MEMORANDUM DECISION AND ORDER

EDWARD J. LODGE, District Judge.

Petitioner Timothy J. Hansen filed a Petition for Writ of Habeas Corpus on May 7, 2003. This case was stayed for eight years while Petitioner was attempting to exhaust his claims in state court. The case was reopened in 2011, after which Petitioner filed a Amended Petition. (Dkt. 46.)

Previously in this habeas corpus action, the Court granted in part and denied in part Respondent's Motion for Partial Summary Dismissal. (Dkt. 64.) As a result, Claim One (A) was dismissed for failure to state claim, and Claims One (B) and (C), Two (A) and (B), Three (B), and Five were dismissed as procedurally defaulted.

Claims Three (A) and (C), Four, and Six were not dismissed, but proceeded to additional pleading and briefing. Respondent has filed an Answer and Brief in Support of Dismissal of Petitioner's Amended Petition for Writ of Habeas Corpus (Dk. 67), Petitioner has filed a Reply (Dkt. 70), and Respondent has filed a Sur-reply. (Dkt. 71.) Having 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 will decide this matter on the record without oral argument. D. Idaho L. Civ. R. 7.1(d).

BACKGROUND

1. Circumstances Leading to Arrest and Search of Petitioner's Residence

In August 2000, the Idaho State Police (ISP) began investigating the Jerry Windle[1] property, located at 7695 Pocatello Creek Road, in Bannock County, Idaho, where they suspected methamphetamine was being manufactured. (State's Lodging B-10, p. 1.) At that time, Timothy Hansen ("Petitioner") lived in a bus parked on Windle's property. ( Id. )

On September 12, 2000, under the direction of ISP Detective Gary Brush, Petitioner was stopped by Trooper John Kempf for driving without privileges, and Petitioner had two false identification cards in his possession. (State's Lodging A-2, p. 141-48.) On December 7, 2000, Petitioner purchased a gallon of iodine in Idaho. After that date, he traveled to Utah. On January 6, 2001, Petitioner was arrested in Utah on a charge of driving under the influence, and he spent the next six months in a Utah jail.

On April 18, 2001, while Petitioner was in jail in Utah, a confidential informant met with Detectives Charles Burke and Glen Boodry and told them a person named Steven King was living in Petitioner's "old bus" and manufacturing methamphetamine there. The informant said that, in April 2001, "Steven King's residence [was] the same place Timothy Hansen lived prior to being sent to jail." (State's Lodging E-2, pp. 62-63.) The report of the interview mentioned Robert Zazweta and Troy Hall as sources of phosphorus used to make the drug. The report also mentioned that this activity was taking place on Windle's property, and that Windle was given one-fourth of the methamphetamine that King produced. ( Id. )

Petitioner alleges that, after he was released from the Utah jail, he returned to Idaho on June 5, 2001. During that time, ISP investigators were conducting surveillance on the Windle property. At about 2:00 p.m. on June 7, detectives saw Petitioner leave the Windle property. (State's Lodging B-10, p. 1.) They stopped Petitioner's car because he had an outstanding Utah felony arrest warrant, and because he was driving without privileges. ( Id. ) Detectives arrested Petitioner at gunpoint, but without incident, and they handcuffed him and placed him in the back of a patrol car. ( Id. at 2.)

Detective John Ganske told Petitioner that ISP believed that methamphetamine was being produced at 7695 Pocatello Creek Road, and Ganske asked Petitioner whether he knew anything about that. (State's Lodging B-1, p. 2.) Petitioner denied knowledge of a methamphetamine lab and he refused to consent to a search of the bus or the Windle house. ( Id. ) Petitioner was left alone in the patrol car for about 50 minutes while Ganske searched Petitioner's vehicle and had discussions with other officers. ( Id. )

Petitioner alleges that Ganske persisted in trying to pressure Petitioner to agree to take Ganske onto the Windle property. Ganske inquired whether Petitioner had any particular tow company that he wanted to tow his vehicle. (State's Lodging B-2, p. 2.) Petitioner asked that his vehicle not be towed. Ganske then tried to strike a deal with Petitioner, and the two discussed whether Ganske could try to call Utah officials regarding the warrant, whether Petitioner would be charged with driving on a suspended license, and what to do with Petitioner's car. Petitioner felt pressured by the detectives to agree to some terms to avoid additional criminal charges, and so he agreed that they could drive Petitioner's car back to the property, and that the detectives could search only the bus, looking for items only in plain view. Petitioner signed a consent-to-search form. (State's Lodging B-2, and Petitioner's Amended Petition, Dkt. 46, pp. 5-6.)

Petitioner has asserted that he was not living in the bus on June 7, 2001, but that he had just returned from Utah to retrieve some things he had in a storage shed on the Windle property. (Dkt. 46, p. 5.) However, Petitioner made various statements to officers that the bus and its contents were "his." For example, Detective Kempf testified that Petitioner had said, "he didn't want [officers] pawing through his shit." (State's Lodging A-2, p. 294.)

Officer John Kempf saw enough evidence in and around the bus to suspect that methamphetamine was being manufactured on the Windle property. ( Id. ) The ISP then obtained a search warrant for the entire premises, and they found a methamphetamine lab inside the residence. ( Id. )

On October 3, 2001, the prosecutor in Bannock County charged Petitioner with conspiracy to traffic in methamphetamine by manufacturing, between the dates of August 12, 2000, and August 1, 2001, in violation of Idaho Code § 37-2732B(a)(3) and § 37-2732(f). (State's Lodging A-1, pp.18-20.) An Amended Information charged that one of the parties to the conspiracy agreement performed at least one of the following overt acts during that time period: "(1) Purchased and/or supplied precursors for the manufacture of methamphetamine; or (2) Actively participated in the cooking process for the manufacture of methamphetamine; or (3) Provided a location for Steven King and/or other unnamed individuals to manufacture methamphetamine; or (4) Aided in the storage of equipment and chemicals used for manufacturing methamphetamine; or (5) Distributed methamphetamine." (State's Lodgings A-1, pp. 53-54, Amended Information; B-1, Jury Instruction 14.) Because Petitioner asserts he was in a Utah jail from January to June of 2001, the relevant time period for Petitioner's participation in the conspiracy is roughly August 12, 2000 to December 31, 2000.

2. State Court Proceedings

Petitioner filed a motion to suppress all evidence that was found during the warrantless search of the bus and during the later warrant search of the Windle property, asserting that his consent to search was obtained by duress. ( Id., pp.44-45.) The trial court denied the motion after an evidentiary hearing. (State's Lodging A-2, pp.1-49.)

The case proceeded to a jury trial on December 18, 2001. (State's Lodging A-2, pp.50-439.) At trial, witnesses testified that the following individuals had been involved in manufacturing methamphetamine in the Windle residence and in Petitioner's bus: Petitioner Timothy Hansen, Jerry Windle, Steven King, Robert Zazweta, Amy Flukiger, and Theodora "Teddy" Salazar. The prosecution argued that these persons were members of the conspiracy that formed the basis of the manufacturing charges against King and Hansen. King was tried separately several weeks before Petitioner's trial.

At Petitioner's trial, Detective Gary Brush was called as a witness to testify about the complex process of manufacturing methamphetamine. He testified about the ingredients (including iodine, phosphorus, matchboxes, coffee filters, kitty litter, ephedrine pills), the cooking, the straining, the mixing, and the drying. He testified that the amount of iodine needed for methamphetamine production is far above a household-type use, and is more like the amount that a rancher would use to treat 400 cattle or a veterinarian would use to treat large animals in a year. (State's Lodging A-2, p. 252.)

Detective Brush also testified about the organization of a drug manufacturing conspiracy:

They're basically organized - they're a group of people with one goal, and that's to manufacture meth. One may be the cook, one may be the helper, several may go out and get precursors, the ephedrine, the iodine, the phosphorus, that type of stuff, and then they bounce back and forth. One day we have may a person who - what we call a throw house, and he allows people to come to his house and make drugs, and then next time he may buy iodine and go to another house and trade that iodine for drugs.

( Id., p. 132.)

Detective Brush testified that he had been investigating Zazweta, Fluckiger, Windle, Petitioner, and King as members of an organization. ( Id., p. 154.) Brush testified that Petitioner left the Windle property in his car with an empty propane tank and Petitioner met King in a KOA campground. When King was arrested shortly thereafter, he began to eat a piece of paper that was on his person. When officers took the remainder of the piece of paper from him, they discovered it was a recipe for manufacturing methamphetamine. ( Id., pp. 158-164.)

Detective Brush testified that a search of Windle's property revealed many signs of a methamphetamine lab. ( Id., pp. 174-90.) Residue from a container from the property testified positive for methamphetamine.[2] ( Id., p. 191.) Brush testified that Petitioner had two fake identification cards, "Rafeal Espin" and "Jeremy Sorter"-both bearing Petitioner's photograph. ( Id., p. 142-147.) Brush testified that people in drug organizations commonly have different identities and use them when they make purchases of the supplies for methamphetamine production. ( Id., pp. 142-43.)

Brush also testified that he found "items of occupancy" on the bus, indicating that Petitioner lived on the bus, including letters sent to Petitioner at that address, letters Petitioner had written, court paperwork bearing Petitioner's name, and a check from Ada County Jail written to Petitioner. (State's Lodging A-2, p. 258.) Detective Donald Broughton testified he found "items of occupancy" on the bus belonging to Petitioner, Fluckiger, King, Dale Pfister, and Jan Keller. ( Id., p. 364.)

Detective John Kempf testified about the arrest of Petitioner and search of the bus. Outside the bus, Kempf observed a section of carpeting with a large iodine stain and a burn, as well as an igloo cooler with a glass tube fixed into the bottom of it, like a homemade condenser column. ( Id., p. 283-84.) Once inside, Kempf saw a methamphetamine pipe, a digital scale, and some small plastic baggies, and he testified about how the scales and bags are used to prepare methamphetamine for sale. ( Id., 273-83.) He also found two fake ID cards with Petitioner's photograph next to the scale. ( Id., pp. 294-95.)

While James Mitchell Burt was in jail with King and Petitioner, Burt offered to be an informant for the State. Burt testified at King's trial, and then at Petitioner's trial. Burt told the jury at Petitioner's trial that he had agreed to testify because methamphetamine had been devastating to his life and his family, he wanted the get the drug off the street, and he wanted to sever his ties to the people that he was involved with. (State's Lodging A-2, pp. 62-64.)

Burt testified that he had been friends with Petitioner and with King. He testified that he had been to Petitioner's bus several times, and saw Zazweta, Salazar, and Petitioner engaged in the production of methamphetamine. (State's Lodging A-2, p. 67.) Burt testified that Zazweta was the "main cook" in the operation, and Petitioner was "like an assistant" to Zazweta, doing the cleaning and running errands to purchase ingredients. ( Id. )

Burt testified that, while he, King, and Petitioner were in jail, they discussed the fact that, on December 7, 2000, King and Petitioner had gone to Idaho Falls to pick up some material and had purchased a gallon of iodine. ( Id., p. 70.) King and Petitioner had noticed police in the area, so they did not go back to the lab, but, instead, King rode his bike down the road so that an outstanding warrant on him would be executed away from the Windle property, to prevent the lab from being discovered. ( Id., pp. 71-72.)

Burt further testified that Petitioner said he would transport the drug to Utah on the airport shuttle bus so he did not have to drive it there himself. ( Id., p. 73.) Burt also testified that he, King, and Petitioner discussed how Petitioner had thought the lab had been cleaned up, making Petitioner think it was okay to allow Officer Ganske on the property, but, when Officer Ganske had exited his car, he had almost tripped over a condenser sitting in the yard. Burt testified, "We thought that was pretty funny, real humorous." ( Id., p. 74.)

Amy Fluckiger testified that she was the mother of a seven-year old girl. Fluckiger said she had been involved in the drug business for some time. On direct examination, the prosecutor asked Fluckiger why she was testifying, and she stated that she was trying to turn her life around, because her daughter didn't "deserve the lifestyle that doing drugs and making drugs gives her, " and because she was offered immunity from prosecution regarding manufacturing drugs with Petitioner, King, and Windle. ( Id., p. 304-10.)

Fluckiger testified that Zazweta would do the cooking, and Petitioner would "make sure [Zazweta] had everything he needed to do the cook and, you know, he'd keep all the stuff there for him, sometimes clean up, just kind of like his helper." ( Id., p. 313.) She testified that she and Petitioner bought bottles of ephedrine pills, and that Petitioner bought iodine and anything Zazweta needed. ( Id., pp. 314-321.) Fluckiger testified that Petitioner called himself "the Prizemaster" because he would bring gifts for other people in the group when he came back from his shopping trips.[3] ( Id., pp. 321-23.)

On cross-examination, Petitioner's counsel reviewed Fluckiger's extensive criminal history, and the reasons she needed immunity from prosecution. ( Id., 322-34.) When asked whether she ever saw James Mitchell Burt on the Windle property, Fluckiger said that she never saw him cooking there. ( Id., p. 333.)

A store clerk, Pamela Esta, testified that Petitioner had come into her store and purchased a gallon of iodine and some HooFlex[4] on December 7, 2000. She had seen his valid identification, "Timothy Hansen, " and had written his driver's license number on the receipt, which was introduced as an exhibit at trial. ( Id., pp. 336-340.) She testified that the store policy was to notify the manager and call the police whenever a large quantity of iodine was sold. ( Id., p. 340.)

Petitioner did not testify at trial. He called as a witness a longtime female friend who testified about Petitioner's trustworthiness as a friend. Petitioner also called his mother, in an effort to show that Petitioner worked as a drywaller in Windle's construction business, to show that Petitioner went to Utah to remodel a friend's basement, and to establish that Windle had horses on his property (part of Petitioner's theory of defense was that Windle had asked him to purchase iodine and HooFlex for Windle's horses). ( Id., pp. 422-23.) Both witnesses tried to establish that Petitioner had been living in Utah in 2001. Neither witness knew anything about what was going on at the Windle property.

After trial, Petitioner was convicted of the charged offense. At sentencing, Petitioner told the judge:

Your Honor, Mr. Windle asked me to pick up some iodine and some HooFlex for his horses up at his house. I stopped at the C-A-L Ranch not thinking any big deal of it and picked it up and gave it to him. At that time I didn't know that iodine was even used for the making of methamphetamine.

State's Lodging A-2, p. 452.) Petitioner stated that he was not aware of any other ingredients needed to make methamphetamine. ( Id., p. 453.) Petitioner and his mother both commented at sentencing that Petitioner would not have used his true identity to purchase iodine and HooFlex if it was not for a legitimate purpose-to treat horses.

Petitioner also stated at sentencing: "I just want the court to know that I wasn't up at Jerry Windle's house for six months to a year straight making methamphetamine, " and "I just wanted to clarify the fact that I wasn't there during that time that they were doing this." (State's Lodging A-2, p. 461.)

The Court responded: "The state never accused you of being up there all that time, " and: "Nor do you have to be to be guilty." ( Id. ) Petitioner was sentenced to ten years fixed with five years indeterminate. (State's Lodging A-1, pp.65-67.)

The state court appellate and post-conviction procedural history is long and complex. The Court will mention only those parts that are relevant to the remaining issues.

Over a year after his conviction, Petitioner filed a (second) pro se "Motion to Dismiss Criminal Conviction" on a new factual ground, asserting that he recently learned that former county jail inmate James Mitchell Burt was acting as a state agent while they were in custody together at the jail, which amounted to a Massiah violation, and that the prosecutor knowingly presented false testimony when Burt testified at trial that he received nothing for his testimony. (State's Lodging E-1, pp.1-5). The trial court construed Petitioner's motion as a post-conviction relief application, and then denied relief because the application was untimely and alleged no material facts that would support post-conviction relief.[5] ( Id., pp.7-10.)

Petitioner filed an appeal, but the case was remanded by consent of the parties because the trial court had erred in construing the motion to dismiss as a post-conviction application instead of a motion for new trial. (State's Lodgings F-1 to F-9.) On remand, a different state district judge held a brief hearing, in which Petitioner testified by telephone, and then denied Petitioner's motion to dismiss.[6] (State's Lodging E-2, pp.128, 140; E-3.) Petitioner then filed a notice of appeal.

Petitioner next filed a post-conviction relief application, which included a direct Massiah claim and a Strickland ineffective assistance of counsel claim based on Massiah. The application was later dismissed. (State's Lodging I-1, pp. 201-29.)

The appeal of the denial of the "Motion to Dismiss Conviction" and the appeal of the denial of the post-conviction application were initially consolidated before the Idaho Supreme Court, but Petitioner filed a motion to voluntarily dismiss the appeal from the denial of the "Motion to Dismiss Conviction." (State's Lodgings F-14, F-15.) The Idaho Supreme Court granted the motion, leaving only the appeal from the post-conviction action. (State's Lodging F-16).

During the pendency of the appeal, Petitioner filed a successive post-conviction application in the trial court. (State's Lodging I-1, pp.1-21.) The parties entered into a stipulation to complete the post-conviction cases based on briefing and documents submitted by the parties rather than an evidentiary hearing. (Stage's Lodging I-1, pp.77-79.) On September 24, 2008, the trial court dismissed all of the claims in both post-conviction applications. ( Id., pp. 201-24.)

Petitioner filed a notice of appeal, and was appointed new counsel. (State's Lodging I-1, pp. 230-32.) Petitioner's appellate counsel withdrew the Massiah claim at oral argument. (State's Lodging J-4, p.6 n.3.) The Idaho Court of Appeals resolved the remaining issues (including the Strickland claim based on the Massiah issue), affirming the state district court's decisions. (State's Lodging J-4.)

The federal Petition for Writ of Habeas Corpus was filed in the midst of Petitioner's state court actions on May 27, 2003. (Dkt. 3.) The Court granted a stay of the case until the state court matters were concluded. (Dkt. 12.) After the state court actions were completed and the stay in this action was lifted, Petitioner filed an Amended Petition in 2011. (Dkt. 46.) Petitioner has since been released from physical custody.

3. Earlier Proceedings in this Habeas Corpus Matter

The following is a brief summary of the disposition of Petitioner's claims after the Court decided Respondent's summary dismissal motion.

A. Failure to State a Claim Upon Which Relief Can be Granted

Earlier in this matter, Claim One (A), that an illegal search and seizure took place when the Idaho State Police allegedly coerced his consent to search the property where the evidence was found, in violation of the Fourth Amendment (Dkt. 46, p. 9), was dismissed for failure to state a federal habeas corpus claim upon which relief can be granted.

B. Procedurally Defaulted Claims Subject to Dismissal

The following claims were determined to be procedurally defaulted:

Claim One (B) Violation of the Fifth Amendment "when he was illegally interrogated on the side of the road after being arrested and the State Police failed to advise him of his Miranda Rights." (Dkt. 46, p. 9.)
Claim One (C) Violation of the Fourteenth Amendment "when the statements from the illegal interrogation as well as the evidence found on the Windell property was used against him at his trial." (Dkt. 46, p. 9.)
Claim Two (A) "[T]he State deliberately tried to suppress the videotape of Hansen's June 7, 2001 stop and arrest" violating the Fourteenth Amendment and Brady. " (Dkt. 46, pp.16-22);
Claim Two (B) The prosecutor suborned perjury when he allegedly presented false testimony regarding the existence of the videotape violating Napue. (Dkt. 46, pp.16-22.)
Claim Three (B) Informant Burt receiving favorable treatment after he testified in violation of Brady. (Dkt. 46, p. 25.)
Claim Five Suppression by the State of the videotape. (Dkt. 46, pp. 42-51.)

The Court determined that Petitioner failed to show cause and prejudice or actual innocence to excuse the default of these claims. Because the new exception set forth in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), applies only to procedurally defaulted ineffective assistance of trial or direct appeal counsel claims, and Petitioner's procedurally defaulted claims do not fit within those categories, the Martinez exception has no applicability to the cause and prejudice issue before the Court.

C. Revisiting Procedurally Defaulted Claim Three (A)

Claim Three (A) is that the State's use of James Burt as a jailhouse informant to solicit incriminating statements from Petitioner violated his Sixth Amendment right to be represented by counsel, as defined by Massiah v. United States, 377 U.S. 201, 206 (1964).

The Court earlier determined that Claim Three (A) was procedurally defaulted, but because cause existed under Edwards v. Carpenter, 529 U.S. 446, 454 (2000)-that Petitioner had fully exhausted his ineffective assistance of counsel claim asserting that trial counsel should have brought the Massiah claim in a motion to suppress prior to trial-Petitioner would be permitted to proceed on that claim if he could also show prejudice at the time the Court decided the merits of his claims.

Upon analysis of the merits of the Massiah claim, the Court concludes that the basis upon which it relied earlier to find "cause" for this claim under Edwards v. Carpenter -ineffective assistance of trial counsel for failing to file a motion to suppress-has no causal connection to the default of this claim, because the State did not disclose to trial counsel that Burt was a State informant, and, thus, trial counsel would have had no reason to assert a Massiah claim at that time. Neither was the claim known at the time of the direct appeal, which concluded May 1, 2003 (the Motion to Dismiss asserting that Burt's informant status was newly discovered was filed on June 11, 2003).

As for other means of establishing "cause, " the Court concludes that Martinez v. Ryan does not extend to Massiah claims, and, therefore, Petitioner cannot rely on that exception as "cause." Accordingly, the Court reconsiders its earlier decision and concludes that there is no "cause" for the procedural default of the Massiah claim, and it is subject to dismissal with prejudice.

However, because Petitioner's Massiah issue was the basis for a Strickland ineffective assistance of trial counsel claim that was properly exhausted, the Court will address it on the merits in that context.

STANDARD OF LAW FOR CLAIMS PROCEEDING TO A MERITS DETERMINATION

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). Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances where the state court adjudication of the merits:

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.[7]

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

Under the first test, for a decision to be "contrary to" clearly established federal law, the petitioner must show that the state court applied a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that were materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Supreme Court's precedent. Williams v. Taylor, 529 U.S. 362, 404-06 (2000).

Under the second test, to satisfy the "unreasonable application" clause of § 2254(d)(1), the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Id. at 413. The United States Supreme Court has explained: "Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error." White v. Woodall, 134 S.Ct. 1697, 1706 (2014).

A federal court cannot grant relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; 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 v. Cone, 535 U.S. 685, 694 (2002). To warrant habeas corpus relief, a petitioner must show that the challenged state-court ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).

In Richter, the United States Supreme Court explained that, under § 2254(d), a habeas court (1) "must determine what arguments or theories supported or... could have supported, the state court's decision;" and (2) "then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786. If fairminded jurists could disagree on the correctness of the state court's decision, then a federal court cannot grant relief under § 2254(d)(1). Id. The Supreme Court emphasized: "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id.

As to the facts, the United States Supreme Court has recently clarified "that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014).

When a party contests the reasonableness of the state court's factual determinations under § 2254(d)(2), the petitioner must show that the state court decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).

The United States Court of Appeals for the Ninth Circuit has identified five types of unreasonable factual determinations that result from procedural flaws that occurred in state court proceedings: (1) when state courts fail to make a finding of fact; (2) when courts mistakenly make factual findings under the wrong legal standard; (3) when "the fact-finding process itself is defective, " such as when a state court "makes evidentiary findings without holding a hearing"; (4) when courts "plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim; or (5) when "the state court has before it, yet apparently ignores, evidence that supports petitioner's claim." Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

If the state court factual determination was unreasonable, then the federal court is not limited by § 2254(d)(1), but proceeds to a de novo review of the claims, which may include consideration of evidence outside the state court record, subject to the ...


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