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Brink v. Wengler

United States District Court, D. Idaho

February 27, 2015



EDWARD J. LODGE, District Judge.

Previously in this matter, the Court determined that a number of Petitioner's claims presented in his Petition for Writ of Habeas Corpus were procedurally defaulted, and that Petitioner should have an opportunity to show that the cause and prejudice exception or the miscarriage of justice exception should be applied to excuse the default of the claims. (Dkt. 31.) Petitioner has filed his response to the Court's Order, and Respondent has filed a reply. (Dkt. 37, 38.) Having reviewed the record in this matter and considered the parties' arguments, the Court enters the following Order.


The following claims presented in the Petition for Writ of Habeas Corpus are procedurally defaulted:

• Claim Two, that Petitioner's rights were violated due to "unconstitutional jury instructions, " either as a stand-alone constitutional claim or an ineffective assistance of counsel claim.
• Claim Three(1) that admission of photographs prejudiced his defense and Three(3) that admission of a second videotape of police interrogation prejudiced his defense, violating his Fifth, Sixth, and Fourteenth Amendment rights.
• Claim Four, that Petitioner's First, Fifth, Sixth, and Fourteenth Amendment rights were violated because he was not appointed experts to review the evidence.
• Claim Five, that prosecutorial misconduct occurred (both as a stand-alone constitutional claim and as an ineffective assistance of counsel claim, for failure to raise the prosecutorial misconduct at trial).
• Claim Six, that thirty instances of ineffective assistance of counsel occurred, at the pretrial stage, at trial, and on appeal.[1]


Petitioner was convicted of the first degree murder of Brent Lillevold (with an enhancement for using a deadly weapon), and he was convicted of being a persistent violator, all in the same criminal action in the Fifth Judicial District Court in Twin Falls County, Idaho. He was sentenced to a prison term of thirty years fixed, with life indeterminate.

Petitioner originally was represented in the criminal action by public defenders Marilyn Paul and Jonathan Brody. Petitioner did not believe they were adequately representing him, and they withdrew from the case. Several other attorneys were considered, and eventually Thomas Kershaw was appointed to represent Petitioner at trial. Throughout the trial, Petitioner attempted to file numerous pro se documents while represented by counsel, but the state district court rejected them and required Petitioner to file everything through counsel.

Petitioner was appointed counsel, Greg Silvey, on direct appeal. Petitioner disagreed with Silvey's decision to present only two claims on appeal.[2]

On post-conviction review, Petitioner initially requested and was appointed counsel, Tim Williams. Petitioner then filed a motion to represent himself, which was granted. (State's Lodging D-3, pp. 642-74, 679-80.)

Petitioner was appointed counsel on appeal of the post-conviction matter, Deborah Whipple, but she withdrew because she found no meritorious issues to present on appeal. Petitioner pursued an appeal of the post-conviction matter pro se. In the midst of the appeal, Petitioner filed a motion to re-appoint counsel, which was denied. Petitioner obtained no relief in state court.

In this case, Petitioner has presented a large number of claims and a large number of documents in support of his claims. Petitioner's briefing tends to be dense, disjointed, and very difficult to decipher. The Court ordered Petitioner to provide his cause and prejudice and miscarriage of justice arguments in a specific format so that Respondent and the Court could understand them and analyze them in an efficient manner. Petitioner declined to do so, and instead submitted briefing that is largely nonresponsive to the particular questions at hand. Nevertheless, the Court has reviewed the entire file to determine whether Petitioner should be permitted to proceed on his defaulted claims. The Court begins its analysis with Petitioner's actual innocence arguments.


1. Standard of Law

Habeas corpus law requires that a petitioner "exhaust" his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it as a federal claim to the highest state court for review in the manner prescribed by state law. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

Claims that are not properly presented to the state district court and are rejected by the state appellate courts on adequate and independent procedural grounds are deemed procedurally defaulted in this action. Ford v. Georgia, 498 U.S. 411, 422-24 (1991). If a petitioner's claim is procedurally defaulted, the federal district court cannot hear the merits of the claim unless a petitioner meets one of two exceptions: a showing of adequate legal cause for the default and prejudice arising from the default; or a showing of actual innocence, which means that a miscarriage of justice will occur if the claim is not heard in federal court. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).

"Actual innocence" means a colorable showing that one is factually, not merely legally, innocent of the charges. Herrera v. Collins, 506 U.S. 390, 404 (1993). To show actual innocence, a petitioner must come forward with "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup, 513 U.S. at 324. The evidence supporting the actual innocence claim must be "newly presented" evidence of actual innocence, which means "it was not introduced to the jury at trial"; it need not be "newly discovered, " ...

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