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Anderson v. Carlin

United States District Court, D. Idaho

March 31, 2015

WARDEN CARLIN, Respondent.


B. LYNN WINMILL, Chief District Judge.

On March 31, 2014, Magistrate Judge Larry M. Boyle denied Respondent Warden Carlin's Amended Motion for Partial Summary Dismissal on Claims Two, Three, Eight, and Nine (Dk. 38-2) in this habeas corpus matter, concluding that determining the claims on the merits would be the most judicially efficient way to address all of Petitioner Steven Anderson's claims. Respondent has addressed the merits of the claims and reserved all procedural defenses in her Response to the Petition for Writ of Habeas Corpus. Petitioner has filed a Traverse, with exhibits. (See Dkt. 56.)

The Amended Petition, which contains twelve claims, is now fully briefed. (Dkt. 22.) Having reviewed the parties' briefing and the record in this matter, including the state court record, the Court concludes that oral argument is unnecessary. Accordingly, the Court enters the following Order.


Petitioner Steven Anderson was convicted of aggravated battery in the Fifth Judicial District Court in Twin Falls County, Idaho. A judgment of conviction was entered on May 14, 1999. Petitioner received a unified sentence of fifteen years with seven years fixed.

The Idaho Court of Appeals has thrice reviewed Petitioner's conviction and sentence, and has provided Petitioner with no relief. Petitioner's conviction and sentence were affirmed on direct appeal on February 27, 2001. (State's Lodging B-7.) The state district court order summarily dismissing Petitioner's post-conviction petition was affirmed on June 2, 2006. (State's Lodging D-15.) The state district court order summarily dismissing Petitioner's successive post-conviction petition as procedurally barred was affirmed on May 30, 2012. (State's Lodging F-4.)

On direct review, the Idaho Court of Appeals summarized the facts underlying the conviction as follows:

Pertinent events began with a conversation between Anderson and his girlfriend, C.B., as C.B. and Brenda Owens were sitting in a car about to leave Owen's home. While Anderson and C.B. were discussing their relationship through the passenger window, Anderson became upset, reached in, and grabbed C.B.'s glasses. C.B., in need of her glasses because she is able to discern only colors and shapes without them, exited the car and pursued Anderson up the driveway. On the assumption that Anderson had put her glasses in a black bag that he carried, C.B. tried to take the bag away. The two struggled over the bag, with C.B. either giving up or Anderson prevailing. C.B. then entered the residence while two friends, Owens and Dan Winkler, looked for her glasses on the ground. Anderson also entered the residence a minute or two after the struggle ended.
C.B. testified that she was seated at a table when Anderson entered. She was able to identify him by his size, shape, and voice. The only other person in the room was Pam Olsen, whom C.B. was able to identify after talking to her. According to C.B. the argument between Anderson and C.B. continued. C.B. testified that she saw ["somebody"] ["lean over"] the table. The next thing she remembers is being on the floor holding her face and screaming from pain. She then saw Anderson's shoes as he was leaving the room. Witnesses who entered the kitchen immediately thereafter testified that they found C.B. lying on the floor, screaming and holding her face. It was later determined that C.B.'s jaw was broken.

(State's Lodging B-7, pp. 1-2; parentheticals added to reflect actual trial testimony.)

C.B. did not report the battery incident until two weeks later, when she reported that Petitioner had raped her. (State's Lodging B-7, p. 2.) Petitioner was charged with aggravated battery and rape, but the two charges were severed for trial. Separate juries convicted him of both offenses. (States' Lodgings A-1, pp. 52-53; D-15, pp. 2-3.)

On direct appeal of the aggravated battery conviction, the Idaho Court of Appeals concluded that the evidence of Petitioner Anderson's guilt "was overwhelming and was not based merely on C.B.'s testimony." (State's Lodging B-5, p. 5.) That evidence included the following:

Witnesses observed Anderson and C.B. in a heated argument immediately before the battery and saw him enter the room where the injury occurred. Witnesses who entered the room immediately thereafter saw C.B. lying on the floor, crying and holding her face in pain. Both C.B. and another witness testified that Anderson was wearing some type of fingerless glove on his right hand a few days after the incident. C.B. also testified that Anderson's right hand was swollen, that he complained that her face had injured his hand, and that in a subsequent argument Anderson threatened to break her jaw again if she did not stop screaming. Dr. Mark A. Plant, the surgeon who operated on C.B.'s broken jaw, testified that the injury could not have been caused by a fall on the chin or cheek, and that she must have been struck with a great deal of force by a blunt object, such as a human fist, right below the cheekbone.

(State's Lodging B-7, pp. 5-6.)

In addition to the above, the Idaho Court of Appeals cited the following as part of the "overwhelming evidence" that supported Petitioner's aggravated battery condition: "[T]here was testimony from witnesses who heard Anderson brag that he had broken C.B.'s jaw." (State's Lodging B-, p.6.) No such evidence was introduced at the aggravated battery trial. However, at the rape trial, which followed the battery trial, Patrick Gilbert testified that Petitioner told Patrick that he had broken C.B.'s jaw. (State's Lodging E-3, p. 482.)

In this federal habeas corpus action, Petitioner asserts that, if certain evidence available at the time of trial had been presented to the jury by the prosecutor and defense counsel, he would not have been convicted of aggravated battery, but only misdemeanor battery. The difficulty with Petitioner's claims is that-amidst witnesses' imperfect memories and inconsistencies in the descriptions of what happened-there remains a clear causal connection running from Petitioner striking C.B. in the kitchen with enough force to knock her from her chair, to C.B. screaming in pain, to the subsequent conclusions that C.B.'s jaw was broken and Petitioner's right hand was injured as a result of striking C.B.

Petitioner makes much ado over variations between what C.B. and other witnesses said prior to trial and what they testified to at trial. In the videotaped police investigation interview, C.B. said Petitioner hit her in the face when she was trying to get her glasses back, and Dan Winkler said he honestly did not think that Petitioner broke her jaw at that point. Winkler also reported that, after C.B. was hit and had fallen to the floor, either Pam Olsen or Brenda Owens "hollered, He hit her right at the table.'" Winkler said he thought this was the point when Petitioner broke C.B.'s jaw. In the videotape, C.B. said that she did not remember Petitioner hitting her in the house. (Dkt. 22, pp. 16-17.) C.B. testified at trial that she did not remember being hit, and when asked why she didn't remember, she testified: "I don't know. I just know there was a lot of pain." (State's Lodging E-3, p.199.) She also testified at trial that she and Petitioner argued at the kitchen table, she saw someone lean across and hit her, and she saw Petitioner's shoes by her head as she lay on the floor.

Petitioner also challenges his trial counsel's defense strategy, which was to demonstrate that (1) no one actually saw Petitioner hit C.B. in the kitchen, and (2) Petitioner later told some acquaintances that her ex-husband, Dan Winkler, had hit her. Petitioner's proposed defense strategy was twofold: he only slapped C.B., which could not have caused her injury, and she instead broke her jaw falling from her bicycle.

Petitioner's preferred defense is supported by his own new accident reconstruction opinion (with diagrams), where he argues that it was "100% physically impossible" for a man who is 5'6" to reach across a 45 to 60" table to strike C.B. with enough force to knock her out of the chair. (Dkt. 56, pp. 14-17; 56-3.) Petitioner also outlines the proposed testimony he would have given at trial had he been afforded the opportunity to testify. He states that he slapped C.B. when she wouldn't give him back his camera in the kitchen, and that it was not the slap, but C.B.'s own efforts in continuing to struggle for the camera that made her fall out of the chair. (Dkt. 56, pp. 26-31.) Petitioner states that C.B. did not break her jaw until she fell from her bicycle one or two days after the slapping incident. He alleges that C.B. was riding her bike and looking for him without her glasses on when she ran into Dan Winkler's astroturf-covered mobile home patio stairs. He alleges that he was wearing one black glove because he had a large blister on his hand from a paint-scraping job that hurt when he held onto his bicycle handlebars.

After an extensive review of the record and of the parties' arguments and exhibits, this Court concludes that Petitioner's version would not have changed the outcome of the trial or affected the clear causal connection existing among the strike, the scream, and the broken jaw and injured hand. Petitioner seems to believe that conflicting testimony and evidence should not have been admitted at all; to the contrary, the jury, as the factfinder, is charged with examining and weighing all of the evidence, and accepting or rejecting certain pieces of evidence as it sees fit under the law and all of the circumstances.

The best way to dispel Petitioner's fallacious thinking is to explain that prosecutors and jurors must use "abductive reasoning" to reach conclusions in a criminal case. "Abductive reasoning" is formulating and testing a hypothesis on the best information available, and eventually coming to a conclusion based on that information, because it is the best explanation for the phenomenon, despite a lack of certain or complete information.[1] On the date and time set for trial, both sides are required to bring forward the favorable evidence they have been able to garner so that the jury can test the truth of all the evidence. The law prevents parties from presenting irrelevant, unduly prejudicial, and known false evidence, but it is otherwise up to the jury to weigh the strength and accuracy of each piece of evidence, and to reject what doesn't fit. Petitioner has not shown that any evidence presented by the prosecution was known to be false; Petitioner merely argues with the witnesses' perceptions, memories, and the words they selected to describe what they believed they saw and heard.

Even if Petitioner would have been able to present all of his additional evidence, the entirety of the evidence still overwhelmingly supports his conviction. In addition, the Idaho Court of Appeals' mistake regarding Patrick Gilbert's testimony does not affect the outcome of this case. Omitting Gilbert's testimony still leaves the evidence supporting the conviction at an "overwhelming" level. The Court concludes that Petitioner is not entitled to habeas corpus relief, and his claims will be denied and dismissed with prejudice, for the reasons that follow.


Petitioner brings the following claims in his Amended Petition for Writ of Habeas Corpus (Dkt. 22):

1. Claim One is that Petitioner's counsel was ineffective for refusing to allow Petitioner to testify even after Petitioner requested the opportunity to testify. (Dkt. 22, pp. 4-9.)
2. Claim Two is prosecutorial misconduct, particularly, that the prosecutor knew the victim, C.B., had told a detective that Petitioner punched her outside near the car, but the prosecutor instead elicited testimony from the victim that she was slapped inside the house. (Dkt. 22, p. 14.)
3. Claim Three, the ineffective assistance counterpart of Claim Two, is that "trial counsel during the jury trial failed to perform fully and effectively the functions of trial counsel in that he did not bring to the attention of the court the wrongful actions of the state in presenting the incorrect testimony of C.B." (Dkt. 22, p. 15 (spelling and punctuation regularized).) Specifically, "the Prosecutor should have been constrained by knowledge of C.B.'s prior recorded statement, and [Petitioner] was harmed by her failure to do so." ( Id., p. 16.)
4. Claim Four is that trial counsel was ineffective for (a) failing to adequately investigate the defense, including a failure to "interview Dr. Plant about the cause of C.B.'s injuries" (Dkt. 22, p. 26) and learn he would testify that an open-handed slap could not have fractured C.B.'s jaw, and (b) failing to join in the state's motion for a continuance so that Pam Olsen (who told police Anderson hit C.B. with an open hand) would be present at trial. ( Id., pp. 27-36; see State's Lodging C-1, p.109.)
5. Claim Five is that counsel was ineffective for failing to call Detective Lewin as a witness to present, as exculpatory evidence, Pam Olsen's statement that Anderson slapped C.B. with an open hand (Dkts. 22, pp.37-38; 22-1, pp.1-2), and for failing to inform the court that the prosecutor engaged in misconduct by misleading the jury into believing Anderson punched C.B. with a closed fist. ( Id. )
6. Claim Six is that counsel was ineffective for failing to investigate C.B.'s initial statement that he fell off a bicycle onto the porch of her ex-husband's mobile home, which may have caused her to fracture her jaw. (Dkt. 22-1, pp.3-5.)
7. Claim Seven is that direct appeal counsel performed ineffectively when counsel failed to challenge the trial court's denial of Anderson's motion for a mistrial based on a juror's revelation, made during trial, that he may have been the pre-op and post-op nurse for C.B. when she had surgery for her broken jaw. (Dkt. 22-1, pp.6-11.)
8. Claim Eight consists of the following prosecutorial misconduct allegations: (a) the prosecutor knowingly, willfully, intentionally, and fraudulently misrepresented facts to produce a wrongful conviction; (b) Dr. Plant testified that a slap to the face could not have caused C.B.'s injuries, but the prosecutor elected to falsify material facts to obtain a conviction and misled the jury to secure a conviction; (c) in closing argument, the prosecutor told the jury that they must find petitioner guilty of punching C.B. in the jaw with his closed fist; (d) the prosecutor's statements were not consistent with the facts of the case as reported to the police by the eyewitnesses; (e) Pam Olsen was the only eyewitness who could testify correctly that C.B. was slapped across the face by Petitioner, but she did not appear for the trial, and even though the prosecution sought a continuance to produce Olsen, the trial court refused to allow a continuance; (f) the prosecution moved the court to preclude Detective Lewin from being called as a witness, who could have testified that Olsen told him that Petitioner only slapped C.B., and that the slapping occurred in the kitchen; (g) the prosecutor "suppressed this evidence" to mislead the jury into believing Petitioner hit C.B. with a closed fist, because no trial witness testimony or document showed that Petitioner had hit C.B. with a closed fist. (Dkt. 22-1, pp. 12-20.)
9. Claim Nine is that prosecutorial misconduct occurred when the prosecution called Dan Winkler as a witness to testify that Petitioner had repeatedly hit C.B. outside, when the prosecutor knew these statements to be untrue, particularly because the other witness, Brenda Owens, testified that Petitioner never hit C.B. outside her residence. Petitioner argues that police reports show otherwise. (Dkt. 22-1, pp. 19-21, Exhibits B and J.)
10. Claim Ten is that the prosecution committed a Brady violation when prosecutors failed to disclose the exculpatory evidence that Dr. Plant would testify that C.B.'s fractured jaw could not have been caused by a hand slap. (Dkt. 22-1, pp.22-24.)
11. Claim Eleven is that Petitioner's Sixth Amendment rights to confrontation and due process were violated in the following circumstances: At trial defense sought to introduce statements made by the complaining witness that a magistrate had ruled that she could not gain custody of her child as long as she continued to reside with [Petitioner]. This evidence was relevant to the complaining witness [sic] motivation to lie in order to convict Mr. Anderson and ensure his incarceration. The district court held that if this testimony was elicited, the prosecution would be allowed to "rehabilitate" the complaining witness by introducing the magistrate's ruling in the child custody proceeding regarding Mr. Anderson; that he was a convicted felon. (Dkt. 22-1, p.25 (capitalization modified).)
12. Claim Twelve is that trial counsel was ineffective for informing the jury during opening statement that C.B. had a motive to lie because a judge told her during a child protection proceeding she would not be reunified with her son as long as Anderson was living in her residence, without having admissible evidence to support such statement. (Dkt. 22-1, pp.31-36.)

Although several claims may be procedurally defaulted, Judge Boyle previously determined that, because the procedural default analysis was complex, it was more efficient to review the claims on the merits


Federal habeas corpus relief may be granted where a petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Where the petitioner challenges a state court judgment in which the petitioner's federal claims were adjudicated on the merits, then Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), applies. Title 28 U.S.C.§ 2254(d) limits relief 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 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 the state court-although it identified "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). "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).

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, 562 U.S. 86, 102 (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).

Though the source of clearly established federal law must come only from the holdings of the United States Supreme Court, circuit precedent may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). However, circuit law may not be used "to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

If the state appellate court did not decide a properly-asserted federal claim, if the state court's factual findings are unreasonable under § 2254(d)(2), or if an adequate excuse for the procedural default of a claim exists, then § 2254(d)(1) does not apply, and the federal district court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such a case, as in the pre-AEDPA era, a district court can draw from both United States Supreme Court and well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).

Under de novo review, if the factual findings of the state court are not unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a state court factual determination is unreasonable, or if there are no state court factual findings, the federal court is not limited by § 2254(e)(1), and the federal district court may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).


Claim One is that Petitioner's counsel, Anthony Valdez, was ineffective for refusing to allow Petitioner to testify, even after Petitioner requested the opportunity to testify. (Dkt. 22, pp. 4-9.)

1. State Court Decision

The Idaho Court of Appeals affirmed the state trial court's summary dismissal of this ineffective assistance claim because Petitioner failed to show any prejudice resulting from his failure to testify. The Idaho Court of Appeals concluded: "Even assuming that counsel was deficient, [Petitioner] has failed to prove that he suffered prejudice from counsel's alleged deficiency in light of the overwhelming evidence that his attack caused C.B.'s broken jaw." (State's Lodging D-15, p. 6.)

The Idaho Court of Appeals considered all of Petitioner's ineffective assistance of counsel claims cumulatively:

Even if counsel had presented evidence that Anderson had slapped but not punched C.B., had shown that C.B. had fallen from a bicycle, had refrained from referencing a defense that could not be supported, and had demonstrated that witnesses may have had some motive to lie, it is highly unlikely that the jury would have concluded that Anderson did not cause C.B.'s injury. In our view, any reasonable jury would have concluded that Anderson inflicted C.B.'s injuries because there was no question that he hit her in the face, that shortly thereafter it was discovered that she had a broken jaw where he had struck her, and that the injury was not consistent with an accidental fall but was consistent with a penetrating blow.
Further, calling Pam Olsen as a witness likely would have been more helpful to the prosecution than the defense. She was the only witness who could confirm C.B.'s testimony that she was struck in the kitchen by Anderson. There is no reason to believe that the jury would have doubted that Anderson inflicted the blow that broke C.B.'s jaw upon hearing Pam Olsen's testimony. Given all of the other evidence of his guilt, the jury more likely would have concluded that Olsen was mistaken or deceitful in her report that Anderson used an open hand.
Accordingly, the district court did not err in dismissing these claims because Anderson has failed to make a prima facie showing of prejudice from the alleged ineffective assistance of counsel.

(State's Lodging D-15, pp.6-7.)

2. Clearly-Established Law

The Idaho Court of Appeals correctly identified Strickland v. Washington, 466 U.S. 668 (1984), as governing case law from the United States Supreme Court. A defendant challenging his counsel's performance as ineffective must meet a two-prong test. See id. First, the defendant must show that counsel's performance was so deficient that he failed to function as the "counsel" guaranteed by the Sixth Amendment. Id. at 691-92. The second prong requires that the defendant show that the deficient performance prejudiced the defense. Id. Unless both showings are made, a defendant is not entitled to relief. Id.

When undertaking an analysis of counsel's performance using the "doubly-deferential judicial review that applies to a Strickland claim under the § 2254(d)(1) standard, " Knowles v. Mirzayance, 536 U.S. 111, 123 (2009), the federal habeas court must determine which arguments ...

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