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Turney v. Wengler

United States District Court, D. Idaho

December 11, 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). On March 27, 2014, the Court granted in part Respondents' Motion for Partial Summary Dismissal and dismissed Claims 2(b), 2(c), 3, 4, 5, and 6 as procedurally defaulted or as non-cognizable. (Dkt. 22.)

Respondents have filed an Answer and Brief in Support of Dismissal with respect to the only remaining claims: Claim 1 (double jeopardy), and Claim 2(a) (ineffective assistance of trial counsel). (Dkt. 23). Petitioner has filed a reply, and Respondents have filed a sur-reply (Dkt. 27, 29).[1] 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. Therefore, the Court will decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying the remaining claims in the Petition and dismissing this case with prejudice.


Petitioner was convicted of two counts of aggravated driving under the influence (DUI) for causing serious injury to two police officers, in violation of Idaho Code § 18-8006(1). Petitioner 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.

Petitioner's convictions stem from an incident involving two police officers who were "engaged in a DUI traffic stop of a [third party's] vehicle." State v. Turney, 214 P.3d 1169, 1170 (Idaho Ct. App. 2009). Petitioner, who was driving a taxi, "crashed violently into the stopped patrol vehicles causing serious injury to the two police officers." Id.; see also State's Lodging D-4 at 1.

On direct appeal, Petitioner argued that he had been subjected to double jeopardy in violation of the Fifth Amendment because he committed only a single act of driving under the influence and, therefore, he could not be charged with two separate criminal counts and subjected to two separate sentences. Id. at 1170-71. The Idaho Court of Appeals rejected this claim, determining 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)). Petitioner's double jeopardy claim is set forth as Claim 1 of the Petition.

During postconviction proceedings, Petitioner argued, inter alia, that his trial counsel rendered ineffective assistance by failing to investigate a witness, Travis Anderson, or to subpoena him to testify at trial. (State's Lodging C-1 at 43; D-1 at 3.) Travis Anderson was under arrest and being held in the back of one of the patrol cars at the time of the crash. (State's Lodging D-4 at 2.) The state district court denied Petitioner's request for appointed counsel and found that his postconviction claims were frivolous. (State's Lodging C-1 at 68-81.)

On appeal from the denial of postconviction relief, the Idaho Court of Appeals rejected Petitioner's claim of ineffective assistance. The court, noting that Petitioner's trial counsel and the prosecutor had both attempted to locate Anderson without success, held that trial counsel's conduct did "not amount to deficient performance of counsel which, to merit relief, must have so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." (State's Lodging D-4 at 6 (internal quotation marks omitted).) Petitioner's ineffective assistance of trial counsel ("IATC") claim with respect to Travis Anderson is set forth as Claim 2(a) of the Petition.


1. Standard of Law

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 of 1996 ("AEDPA"), federal habeas relief is further limited to instances where the state court's adjudication of the petitioner's claim

(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.

28 U.S.C. § 2254(d). A state court need not "give reasons before its decision can be deemed to have been adjudicated on the merits'" under § 2254(d). Harrington v. Richter, 131 S.Ct. 770, 785 (2011).

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, a state court's decision is "contrary to" clearly established federal law "if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002).

Under the second test, to satisfy the "unreasonable application" clause of § 2254(d)(1) the petitioner must show that the state court-although identifying "the correct governing legal rule" from Supreme Court precedent-nonetheless "unreasonably applie[d] it to the facts of the particular state prisoner's case." Williams (Terry) v. Taylor, 529 U.S. 362, 407 (2000). A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; rather, 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, 535 U.S. at 694.

In Harrington v. Richter, 131 S.Ct. at 785-86, the United States Supreme Court reiterated that a federal court may not simply re-determine a claim on its merits after the highest state court has done so, just because the federal court would have made a different decision. Rather, the review is necessarily deferential. The 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 [that] 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 ...

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