United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: POST-JUDGMENT MOTIONS
EDWARD J. LODGE, District Judge.
Previously in this habeas corpus matter, the Court denied relief and dismissed Petitioner Kenneth Workman's Petition for Writ of Habeas Corpus with prejudice. (Dkt. 43, 44.) The Court denied a certificate of appealability. (Dkt. 43.)
After judgment was entered, Petitioner filed a "Motion to Reconsider Dismissal of Writ of Habeas Corpus re: Judgment, " a "Motion to Stay Proceedings and/or to Allow Petitioner to Present a Successive Petition Upon the Finalization of His Motion for Rule 35 in the Lower State Courts, " and a "Motion to Allow Petitioner to Proceed under Martinez v. Ryan . " (Dkts. 45, 55, 56.)
These matters are now fully briefed. The Court finds that the decisional process would not be aided by oral argument. D. Idaho L. Civ. R. 7.1(d). For the reasons set forth below, the Court enters the following Order denying Petitioner's motions.
In 2001, Petitioner's vehicle veered off Interstate 84 near Boise and hit two pickup trucks that were parked on the side of the road. (State's Lodging F-11, p. 1.) Two people who were standing between the trucks were seriously injured- the female victim was thrown into traffic and broke nearly every major bone in her body, and the male victim (a firefighter who was the female victim's son-in-law) had one leg severed below the knee and the other leg crushed between the vehicles. ( Id. ) It was later determined that Petitioner had high levels of heroin, amphetamine, and methadone in his blood at the time of the crash. ( Id. )
The State charged Petitioner with two counts of aggravated driving under the influence (DUI) and one count of possession of heroin. (State's Lodging A-1, pp. 28-29.) The State also filed an Information Part II, alleging that Petitioner was a persistent violator of the law based on two prior felony convictions. ( Id. at 38-39.) Petitioner and the State entered into a plea agreement where Petitioner agreed to plead guilty to the two counts of aggravated DUI and the persistent violator charge, and the prosecutor agreed to dismiss the possession count and to recommend life in prison with 25 years fixed. (State's Lodging A-3, p. 1.)
At the sentencing hearing, the male victim, his spouse, and the spouse of the female victim (hereafter collectively referred to as "victims") gave oral victim impact statements about how severely the incident had affected them. (State's Lodging A-3, pp. 33-38.) The prosecutor recommended a sentence of life in prison with 25 years fixed. The prosecutor focused her argument on Petitioner's lengthy criminal history, his previous failed attempts at rehabilitation, and the aggravated nature of the offense. ( Id. at 39-59.)
In response, Petitioner's trial counsel, D.C. Carr, agreed with the prosecution's characterization of the facts in many respects. Mr. Carr called the crime "god-awful, " and said he had nothing to offer in mitigation. He nevertheless pointed to a positive argument-the restitution factor. He said that the only thing his client could offer in mitigation would be restitution, and he acknowledged that money would not be able to make the victims whole. Mr. Carr said that it was difficult to ask the court to reduce the sentence proposed by the prosecutor, but implied that the sooner Petitioner was paroled, the sooner he could begin to pay the restitution to the victims. ( Id. at 56-58.)
Counsel asked the court for mercy, but referenced how difficult that was to do in light of the victims' testimony about the devastating effect of the crimes on their lives. Counsel stated that Petitioner had wanted to plead guilty right away to take responsibility for the crime. Counsel said, "Ken is truly, truly, truly sorry, but I know saying that, that sounds empty also." He ended with the statement: "I'm going to let him address the court, and I just ask for some sort of mercy for my client." ( Id. at 58-59.)
Petitioner then addressed the court, profusely apologizing and stating that he wished he could turn back time. He asked for forgiveness, and acknowledged the difficulty of the victims' lives. ( Id. at 59.)
The sentencing court then summarized the facts as follows:
This is an absolutely horrendous crime. Habitual felon with a 30-year drug addiction, with no license, no insurance, heavily under the influence of heroin and methamphetamine, drove off a highway, struck two people, causing them horrific, life-threatening injuries, and we are here.
He didn't mean it to happen, but there are many people in this courtroom who will deal forever with the consequences of his choice to continue using drugs and to continue to drive, even though he had been told time after time not to drive, even though he is time after time incarcerated from drug use, even though time after time he has been given chances for rehabilitation with his drug use.
( Id. at 59-60.)
The transcript reflects that, near the end of the hearing, the sentencing judge stated, "So I'm going to follow the plea bargain agreement." (State's Lodging A-3, p. 66.) In the next breath, the sentencing judge disregarded the prosecution's recommendation of 25 years to life and sentenced Petitioner to a fixed term of life in prison without the possibility of parole. (State's Lodging A-1, pp. 60-61.) In doing so, the court cited Petitioner's extensive criminal history, long-time drug addiction, previous failures at rehabilitation, and the need to protect society. (State's Lodging A-3, pp. 59-66.)
The court particularly made use of the persistent violator statute: "[T]his is a case where the persistent violator statute should be used by the courts to say that particularly when somebody comes back before the courts over and over again and then commits a worse offense, that the persistent violator statute enhancement of the sentence will be used to its maximum." ( Id., p. 65.)
The Judgment of Conviction specified:
ON COUNT I: With the enhancement provided by I.C. § 19-2514, (Persistent Violator) to a fixed and determinate period of life;
ON COUNT II: With the enhancement provided by I.C. § 19-2514, (Persistent Violator) to a fixed and determinate period of life, to run concurrent with Count I.
(State's Lodging A-1, p. 51.)
After extensive appellate and post-conviction proceedings, Petitioner sought federal habeas corpus relief in this action. (Dkt. 3.) In the Amended Petition and the original Petition, Petitioner raised the following eight claims for relief:
(1) ineffective assistance of counsel because his trial counsel failed to subject the prosecution's case to meaningful adversarial testing and committed other errors;
(2) denial of due process of law because of the trial court's failure to advise Petitioner of the maximum sentences that could be imposed;
(3) ineffective assistance of counsel and the denial of due process of law because Petitioner entered his plea of guilty while under the influence of psychotropic medication;
(4) a violation of the Eighth Amendment's prohibition on cruel and unusual punishment because the fixed life sentences are grossly disproportionate to the crimes committed;
(5) a violation of Petitioner's right against twice being placed in jeopardy because he was convicted for two counts of aggravated DUI based on one incident;
(6) ineffective assistance of counsel on direct appeal;
(7) cruel and unusual punishment, and violation of due process, because of a burdensome restitution order; and
(8) the denial of due process because Petitioner was deprived of the legal resources mandated by statute to prepare and present timely claims in his post-conviction proceedings.
(Dkts. 3, 17.)
The Court granted Respondent's Motion for Partial Summary Dismissal, concluding that the Strickland theory of Claim 1 and Claims 2, 4, 5, 6, and 7 in the Petition for Writ of Habeas Corpus were procedurally defaulted. The Court also concluded that Claim 8 failed to state a cognizable federal habeas corpus claim. (Dkt. 34.) After full briefing, the Court denied the remaining claims on the merits: the Cronic theory of Claim 1 and Claim 3. (Dkt. 43.) Petitioner now asks the Court to reconsider its decision on Claims 1 through 5.
REVIEW OF MOTION FOR RECONSIDERATION, INCLUDING ALL CLAIMS ADDRESSED ON THE MERITS
1. Standard of Law
Petitioner brings his Motion for Reconsideration under Federal Rule of Civil Procedure 60(b), but filed it within 28 days after entry of the Order and Judgment dismissing his Petition, bringing the motion within the time frame for a Rule 59(e) motion. The Court will treat the motion under Rule 59(e). See American Ironworkers & Erectors, Inc. v. North American Construction Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). A Rule 59(e) motion should not be granted unless there is a showing of highly unusual circumstances, such as when the district court is presented with newly discovered evidence, the court committed clear error, there is an intervening change in controlling law, or the decision was "manifestly unjust." Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011).
2. Discussion of Claim 1(a)-Abandonment by Counsel
The Court denied Petitioner's claim that he was deprived of his Sixth Amendment right to the effective assistance of counsel under United States v. Cronic, 466 U.S. 648 (1984), because his counsel failed to subject the prosecution's case to meaningful adversarial testing, committed numerous cumulative errors, and abandoned petitioner at sentencing by presenting no mitigating defense. (Dkt. 3, p. 2.)
In the Motion for Reconsideration, Petitioner argues that the Court committed clear error in denying his claim, because the cumulative errors committed by trial counsel D.C. Carr rise to the level of a Cronic violation,  and because the state court decisions rest on arbitrary reasoning. Particularly, Petitioner contends that the state district court arbitrarily determined that trial counsel was following a strategy at sentencing of acknowledging the seriousness of Petitioner's offense and asking for mercy. Petitioner argues that the court should not have reached that conclusion without having an affidavit or testimony from Mr. Carr to show that his course of conduct was actually the result of strategy.
In Cronic, the Supreme Court held that a defendant may be relieved of the burden to show actual prejudice in limited situations, including the failure of counsel to subject the prosecution's case to "meaningful adversarial testing. 466 U.S. at 659-62. In Bell v. Cone, 535 U.S. 685 (2002), the Supreme Court held that a petitioner must show that the failure to test the prosecution's case as an adversary was a "complete" failure rather than a partial failure, meaning that counsel " ...