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Tellez-Vasquez v. Smith

United States District Court, D. Idaho

September 15, 2014

JOHANNA SMITH, Warden, Respondent.


CANDY W. DALE, Magistrate Judge.

Petitioner Miguel Tellez-Vasquez, an Idaho state prisoner, is proceeding pro se in this habeas corpus matter. Petitioner has raised four claims: (1) ineffective assistance of direct appeal counsel; (2) actual innocence; (3) excessive sentence; and (4) trial court error in not granting Petitioner's motion to reduce his sentence. (Dkt. 3, 19; see also Dkt. 50 at 5.) This case was reopened following a remand from the United States Court of Appeals for the Ninth Circuit. (Dkt. 69, 70.)

The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. ยง 636(c). (Dkt. 25.) The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on December 20, 2010, and September 6, 2011. (Dkt. 14, 35.) 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 oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order dismissing the Petition with prejudice.


In 2004, after a jury trial in state court, Petitioner was convicted of two counts of trafficking a controlled substance (methamphetamine), one count of delivery of a controlled substance (methamphetamine), and three counts of failure to obtain a tax stamp. (State's Lodging A-1 at 103-07.) Petitioner's sentences for all six counts were ordered to be served concurrently, resulting in a term of 5 to 25 years in prison. (State's Lodging A-1 at 117-26.) On direct appeal, Petitioner's appellate counsel raised a single claim challenging Petitioner's sentences, and the Idaho Court of Appeals affirmed. (State's Lodging B-1.) The Idaho Supreme Court denied Petitioner's petition for review. (State's Lodging B-7.)

Petitioner next filed an application for post-conviction relief in state district court, raising a number of claims, including claims of ineffective assistance of trial counsel. (State's Lodging C-1 at 29.) The district court dismissed the application, but Petitioner apparently did not receive notice of the court's order for several months, and his appeal later was dismissed as untimely. (State's Lodging E-1 at 18-19.) An agreement was reached by the parties that resulted in the state district court re-filing the order dismissing the application so that Petitioner could submit a timely notice of appeal from the order. (State's Lodging E-1 at 12-15.) On appeal, the Idaho Court of Appeals affirmed the lower court's decision, and Petitioner's petition for review was denied by the Idaho Supreme Court. (State's Lodgings F-8, F-9.)

Before the post-conviction appeal had concluded, Petitioner submitted a federal habeas petition, alleging that he was deprived of his Fourteenth Amendment right to the effective assistance of counsel during the direct appeal (Claim 1) and that he is innocent (Claim 2). (Dkt. 3 at 8-17.) The Court conducted an initial review of the Petition and ordered the Petition to be served on the Respondent. (Dkt. 7.) Petitioner thereafter supplemented his Petition to add two new claims: excessive sentence (Claim 3) and the erroneous denial of his motion to reduce his sentence under Idaho Criminal Rule 35 (Claim 4). (Dkt. 19.)

Respondent initially requested that the Petition be dismissed without prejudice, because Petitioner had not yet presented any habeas claims to the Idaho Supreme Court. (Dkt. 12.) Before the Court ruled on that request, the Idaho Supreme Court issued its remittitur ending the post-conviction appeal, and this Court later dismissed Respondent's motion as moot. (Dkt. 30, p.1.) Respondent then filed a motion for summary dismissal.

On September 17, 2012, the Court conditionally granted Respondent's motion for summary dismissal because Claim 2 was not cognizable as a freestanding claim and because Claims 1, 3, and 4 were procedurally defaulted. (Dkt. 50 at 5-6.) The Court also concluded that Petitioner had failed to establish cause and prejudice or actual innocence to excuse the procedural default of Claims 3 and 4, but that-with respect to Claim 1-Petitioner might be able to benefit from the Supreme Court's decision in Martinez v. Ryan , 132 S.Ct. 1309, 1315 (2012), which held that inadequate assistance of postconviction review ("PCR") counsel or lack of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial ." ( See also Dkt. 50 at 9-10 (emphasis added).) The Court gave the parties an opportunity to argue whether Martinez could be extended to excuse the procedural default of Claim 1: Petitioner's claim of ineffective assistance of direct appeal counsel.

The Court reviewed the parties' briefing and, on August 7, 2013, determined that Martinez was limited to underlying claims of ineffective assistance of trial counsel and therefore did not apply to Petitioner's claim of ineffective assistance of direct appeal counsel. (Dkt. 62 at 9-10.) The Court dismissed the Petition in its entirety.

Following that dismissal, the Ninth Circuit issued its decision in Nguyen v. Curry , 736 F.3d 1287, 1293 (9th Cir. 2013), which held for the first time that Martinez does indeed apply to underlying claims of ineffective assistance of direct appeal counsel. After Petitioner's appeal was remanded from the Ninth Circuit, this Court vacated its dismissal order and judgment and allowed the parties to submit briefing on whether the procedural default of Claim 1 should be excused under Martinez . (Dkt. 70.) The parties have done so, and the Court has reviewed all of the parties' submissions in this case.


1. Standard of Law

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). A procedurally defaulted claim may be heard on the merits if a petitioner establishes cause and prejudice to excuse the default. Coleman v. Thompson , 501 U.S. 722, 750 (1991). 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 , 477 U.S. at 488.

A petitioner does not have a federal constitutional right to effective assistance of counsel during state postconviction proceedings. Pennsylvania v. Finley , 481 U.S. 551 (1987); Bonin v. Vasquez , 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule is that any errors of counsel during the postconviction action cannot serve as a basis for cause to excuse a procedural default. Coleman , 501 U.S. at 752.

Martinez v. Ryan , 132 S.Ct. 1309 (2012), established a limited exception to this general rule-an exception that applies only to Sixth Amendment ineffective assistance of counsel ("IAC") claims. Martinez held that inadequate assistance of PCR counsel or lack of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id . at 1315. As explained above, the Ninth Circuit has extended Martinez , holding that it can also apply to procedurally defaulted claims of ineffective assistance of direct appeal counsel. Nguyen , 736 F.3d at 1293.

In Trevino v. Thaler , the Supreme Court described the Martinez analysis as consisting of four prongs:

We consequently read Coleman as containing an exception, allowing a federal habeas court to find "cause, " thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim]... be raised in an initial-review collateral proceeding."

133 S.Ct. 1911, 1918 (2013) (citing Martinez , 132 S.Ct. at 1318-19, 1320-21) (alterations in original).

The third and fourth prongs of the analysis are rarely in dispute. With respect to the third prong, the Martinez exception applies only to the lack of counsel or ineffectiveness of counsel in the initial postconviction review proceeding. It "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance." Martinez , 132 S.Ct. at 1320. Rather, the Court in Martinez was singularly concerned that, if ineffective assistance of trial counsel claims were not brought in the collateral proceeding which provided the first occasion to raise such claims, the effect was that the claims could not be brought at all. Id. at 1316. Therefore, a petitioner may not assert as cause attorney error that occurred in "appeals from initial-review collateral proceedings, second or successive collateral proceedings, [or] petitions for discretionary review in a State's appellate courts." Id. at 1320.

With respect to the fourth prong-that state law must require IAC claims to be brought in an initial-review collateral proceeding-the Supreme Court in Trevino extended Martinez to apply not only where a state requires IAC claims to be raised in postconviction proceedings, but also where a state's "procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Trevino , 133 S.Ct. at 1921. Therefore, Martinez applies in Idaho where the post-conviction setting was the first forum in which the ineffective assistance of trial counsel claim based on matters arising outside the record could have been brought and developed in an evidentiary hearing. See Matthews v. State , 839 P.2d 1215, 1220 (Idaho 1992) (recognizing that in Idaho the post-conviction setting is the "preferred forum for bringing claims of ineffective assistance of counsel, " though in limited instances such claims may be brought on direct appeal "on purported errors that arose during the trial, as shown on the record").

The two strongly disputed issues in a Martinez inquiry are generally the first prong, whether an underlying IAC claim is substantial, and the second prong, whether PCR counsel rendered ineffective assistance by failing to raise that IAC claim in state postconviction proceedings.

A. Prong One: Substantiality of Underlying IAC Claims

For the Martinez exception to apply, a petitioner must bring forward facts demonstrating that his underlying IAC claim is substantial. The United States Supreme Court has defined "substantial" as a claim that "has some merit." Martinez , 132 S.Ct. at 1318 (comparing the standard for certificates of appealability from Miller-El v. Cockrell , 537 U.S. 322 (2003)). Stated inversely, a claim is " in substantial" if "it does not have any merit or... is wholly without factual support." Id. at 1319.

Determining whether an IAC claim is substantial requires a federal district court to examine the claim under Strickland v. Washington , 466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel must show that (1) "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment, " and (2) counsel's errors "deprive[d] the defendant of a fair trial, a trial whose result is reliable." Id . at 687.

Whether an attorney's performance was deficient is judged against an objective standard of reasonableness. Id. at 687-88. A reviewing court's inquiry into the "reasonableness" of counsel's actions must not rely on hindsight:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the ...

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