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Razon v. Cluney

United States District Court, D. Idaho

January 28, 2015



EDWARD J. LODGE, District Judge.

The Petition for Writ of Habeas Corpus filed by Tiffany Dee Razon is now fully briefed. (Dkt. 1, 11, 14.) The Court has reviewed the record in this matter, including the state court record, and the arguments of the parties. The Court finds that oral argument is unnecessary. Accordingly, the Court enters the following Order.


Petitioner was charged with, and pleaded guilty to, possession of a controlled substance, methamphetamine, in 2006, 2009, and 2011, in three different criminal cases in the Fifth Judicial District Court in Twin Falls County, Idaho.

In the 2006 case, Petitioner and the State entered into a plea agreement, in which there were no promises or recommendations from the parties regarding punishment. (State's Lodging A-1, p. 149.) Petitioner was sentenced to a prison term of six years, with the first two years fixed. The state district court retained jurisdiction, granting Petitioner probation.

In 2009, Petitioner was charged with eight counts of violating her probation in the 2006 case. (State's Lodging A-1, pp. 189-92.) She was also charged with a second criminal charge of possession of a controlled substance (State's Lodging A-2, pp. 393-95), which led to a second probation violation charge in her 2006 case. (State's Lodging A-1., pp. 26-17.) The first and second criminal/probation revocation actions for the 2006 case were consolidated. (State's Lodging A-2, p. 411.)

Petitioner pleaded guilty to the 2009 possession charge, she admitted the eight violations in the first 2006 probation violation action, and the second 2006 probation violation action was dismissed. Under the plea agreement, the State agreed to recommend a six-year sentence, with the first three years fixed. Petitioner received a sentence consistent with the plea agreement. (State's Lodging A-2, pp. 402-410.) She again was placed on probation. ( Id., pp. 414-27.)

In 2011, Petitioner was charged with possession of an illegal substance for the third time, and, as a result, the State filed a motion to revoke probation in the 2006 and 2009 cases. (State's Lodgings A-1, pp. 244-46; A-2, pp. 452-54.) Petitioner admitted violating probation in both cases. (State's Lodgings A-1, pp. 319; A-2, pp. 524.) On December 19, 2011, Petitioner's probation was revoked in both cases, and she was ordered to serve her original concurrent sentences of six years, with two and three years fixed, respectively. (State's Lodgings A-1, pp. 329-33; A-2, pp. 535-39.)

In the same sentencing hearing, the court pronounced a sentence for the 2011 crime. (State's Lodging A-4, p. 23.) The State recommended a sentence of seven years, with three years fixed, pursuant to the plea agreement; Petitioner's counsel recommended that the "court vary from the plea agreement slightly" and give Petitioner a two-year fixed term if the court rejected her request for another retained jurisdiction period. ( Id., pp.10, 15.)

The Court opted for the State's recommendation and sentenced Petitioner to seven years with three years fixed, to run concurrently with the 2006 and 2009 sentences. (State's Lodging A-4, p. 23).The Court relied on the same reasoning for all of the sentences: (1) Petitioner had been given five years of opportunity to complete community rehabilitation, and had tried many different programs, but nothing had worked; (2) in mitigation, Petitioner had suffered some difficulties in the past; (3) the most recent mental health evaluation focused on a diagnosis of methamphetamine dependence and substance-induced mood disorders, rather than anxiety, and recommended treatment in a "controlled environment"; (4) she needed an extended stay in prison to help heal her "methamphetamine brain"; and (5) after "this much time and this many tries, " she had to pay for her wrongdoing over the past five years, including the "societal cost" for being involved in illicit drug use. ( Id., pp. 19-24.) The Court concluded: "So, with all of that, I have considered reducing the time in the older cases under Rule 35. I decline to do that in my discretion." ( Id., pp. 22-23.)

At issue in this habeas corpus matter are the revocations of probation and imposition of the six-year sentences in the 2006 and 2009 matters, and, particularly, the appeal proceedings. The 2011 conviction and sentence are not at issue in this case.

After imposition of the original sentences in the 2006 and 2009 cases and pronouncement of the sentence in the 2011 case, the cases were consolidated on appeal. (State's Lodging B-1.) Petitioner was appointed counsel from the state appellate public defender's office. (State's Lodging A-2, pp. 547-48.)

After the record had been lodged with the appellate court, Petitioner's counsel filed a motion to augment the record, requesting that the Idaho Supreme Court require that transcripts from seven hearings be added to the record. (State's Lodging B-2.) The request seemed to be a standard form request used by the state appellate public defender's office, as the male pronouns in the form were not changed to reflect that Petitioner was a female:

The appellant requests that the record be augmented to include the above named items because they are necessary to address issues to be raised on appeal. Ms. Razon intends to raise as an issue on appeal the question of whether the district court erred in revoking his [sic] probation. As such, the requested transcripts are relevant and are necessary to determine, for instance, whether Ms. Razon either agreed to additional conditions of probation, thus mooting a claim that his [sic] probation was revoked on conditions that were not conditions of probation, or whether the court references any of its prior hearings in ultimately revoking probation and therefore, are relevant not only to the potential merits of the issues but also to create a complete record on appeal.

(State's Lodging B-2, pp 2-3.)

Petitioner requested transcripts from the following hearings: (1) the 2006 entry of plea hearing; (2) the 2006 sentencing hearing; (3) the 2007 rider review hearing; (4) the 2009 evidentiary hearing; (5) the 2009 rider review hearing; (6) the 2009 plea entry hearing; and (7) the 2011 admit/deny probation violation hearing. (State's Lodging B-4.) The state did not object to augmenting the record with the transcript from the 2011 hearing but objected to the remaining six requests on grounds of irrelevance, arguing that the hearings all occurred before the last probation violation was filed on July 17, 2011. (State's Lodging B-3.) The Idaho Supreme Court allowed Petitioner to augment the record with only the 2011 admit/deny hearing transcript, which contained Petitioner's admissions to the 2006 and 2009 probation violations. (State's Lodging A-3.)

After the Idaho Supreme Court ruled on the transcript request, Petitioner's appeal was assigned to the Idaho Court of Appeals. Petitioner argued to the Idaho Court of Appeals that the Idaho Supreme Court's decision to deny her the other transcripts violated her rights of due process, equal protection, and effective assistance of counsel (State's Lodging B-5, pp. 4-17.) The Idaho Court of Appeals rejected Petitioner's claim on procedural grounds, reasoning that, for the intermediate appellate court to consider a decision of the higher appellate court, Petitioner should have reasserted her motion to augment with the Idaho Court of Appeals based on a significant new ground not presented to the Idaho Supreme Court. (State's Lodging B-8, p. 3.) Accordingly, the Court of Appeals concluded that Petitioner was seeking a determination by the Idaho Court of Appeals that the Idaho Supreme Court violated constitutional law by denying the motion to augment - something that was beyond the scope of the authority of the intermediate appellate court to address.

Petitioner next filed a petition for review before the Idaho Supreme Court, raising the claim that the Idaho Supreme Court violated her rights to due process, equal protection, and effective assistance of counsel under federal and state constitutions. The Idaho Supreme Court denied Petitioner's petition for review.

In this federal habeas corpus action, Petitioner brings one claim with two subparts: (1) that the Idaho Supreme Court violated her due process rights when it prevented her from filing an effective direct appeal, and (2) that the court denied her the right to effective assistance of counsel on appeal, by denying her in forma pauperis motion to augment the appellate record with necessary transcripts for direct appeal. (Dkt. 1, p. 6.) Petitioner's claims have been exhausted in the state court system, as the Idaho Supreme Court has had opportunity to review each of Petitioner's claims.


Federal habeas corpus relief may be granted on claims that were 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 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.[1]

28 U.S.C. § 2254(d). A federal habeas court reviews the state court's "last reasoned decision" in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

Where a petitioner 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 even though the state court identified "the correct governing legal rule" from Supreme Court precedent, the state court 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 state court's 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. If fairminded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 131 S.Ct. 770, 786 (2011). The Supreme Court emphasized that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (internal citation omitted).

In addition, "Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] 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). "This is not to say that § 2254(d)(1) requires an identical factual pattern before a legal rule must be applied, " but "if a habeas court must extend a rationale before it can apply to the facts at hand, then by ...

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