United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Pending before the Court in this capital habeas corpus case is Petitioner Robin Lee Row's Rule 59(e) Amended Motion to Alter or Amend the Judgment (Dkt. 572), which supersedes her earlier Motion to Alter or Amend the Judgment (Dkt. 547). The motion is fully briefed and ripe for adjudication. (Dkt. 583, 592, 597.) For the reasons that follow, the Court enters the following Order granting in part and denying in part the Amended Motion to Alter or Amend the Judgment.
BACKGROUND AND SUMMARY OF CLAIMS AT ISSUE
An Order and Judgment denying habeas corpus relief in this case were entered on August 29, 2011. (Dkt. 545.) On the twenty-eighth day after judgment was entered, September 26, 2011, Row filed a Motion to Alter or Amend Judgment requesting, among other relief, that the Court retain this case until the United States Supreme Court issued its decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). After Martinez, the United States Court of Appeals for the Ninth Circuit issued a decision that is particularly relevant to Row's reconsideration request, Dickens v. Ryan, 740 F.3d 1302, 1318-19 (9th Cir. 2014) ( en banc ), which held that an inadequately supported claim that was decided on the merits in state court can become a "new" procedurally defaulted claim on federal habeas review if the petitioner tries to offer new evidence that changes the factual basis of the claim such that it has become "fundamentally altered." Id. at 1318-19.
Row asks the Court to apply the Martinez exception to several of her claims, to permit them to be heard on the merits de novo. Row's Martinez claims can be divided into two categories: (1) claims that this Court determined to be procedurally defaulted because they were either not presented to the state courts for adjudication at all or were not presented in a procedurally proper way; and (2) fundamentally altered claims that are in theory the procedurally defaulted companions to those inadequately supported claims that were decided on the merits. (Dkt. 583, pp. 3-5.)
The claims at issue are as follows:
1. Claims Determined to be Procedurally Defaulted (deemed "Mitigation Claims" by Row)
A. Claim 7 ¶80(h), "Counsel failed to secure adequate testing concerning the brain damage that could have affected petitioner's ability to control her behavior, [thus undermining] the finding of petitioner's guilt." (Dkt. 293, p. 23.) (This is the only guilt-phase claim raised.)
B. Claim 7 ¶ 81(a), "Failure to prepare, develop and present a coherent sentencing strategy." (Dkt. 293, p. 25.)
C. Claim 7 ¶ 81(f), "Failure to investigate and present defenses and mitigating circumstances surrounding uncharged criminal activity presented during the trial and at sentencing." (Dkt. 293, p. 25.)
D. Claim 7 ¶ 81(g), "Failure to research Eighth Amendment jurisprudence as it applies to the preparation and presentation of evidence in mitigation." (Dkt. 293, p. 25.)
E. Claim 7 ¶81(h), "Failure to investigate, develop and present evidence rebutting aggravating evidence considered by the trial court." (Dkt. 293, p. 25.)
2. Fundamentally-Altered Companion Claims to Those This Court Decided on the Merits (deemed "Inadequately Presented Claims" by Row)
A. Claim 7 ¶ 81(b), "Failure to make an independent investigation of matters in mitigation." (Dkt. 293, p. 25.)
B. Claim 7 ¶ 81(d), "Failure to timely retain a qualified mental health expert to address the issues of mental health clearly apparent from Petitioner's case." (Dkt. 293, p. 25.)
C. Claim 7 ¶ 81(e), "Failure to retain a qualified neuro-psychiatrist to conduct appropriate medical testing regarding the apparent organic brain damage revealed by CT scans taken of Petitioner revealing an atrophy of the brain." (Dkt. 293, p. 25.)
D. Claim 7 ¶ 81(n), "Permitting an unqualified mental health expert and his assistant to engage in unreliable techniques of memory re-enhancement, including hypnosis." (Dkt. 293, p. 26.)
E. Claim 7 ¶ 81(o), "Failure to research and comprehend the reported results of a psychological evaluation performed by an unqualified person and permitting presentation of a diagnosis of Petitioner as suffering from a condition called alexithymia which was not supported by fact, law, medicine, science or accepted standards of psychological principles." (Dkt. 293, p. 26.)
F. Claim 7 ¶ 81(p), "Permitting Petitioner to make a statement in allocution without knowing that the statement would be making incriminatory admissions, based upon unqualified, unreliable memory enhancement." (Dkt. 293, p. 26.)
G. Claim 7 ¶ 81(s), "Permitting the defense-retained psychologist to engage in practices likely to elicit a false confession from Petitioner and permitting Petitioner to be bullied into making that confession in allocution at sentencing which wholly undermine the theory of defense presented at trial." (Dkt. 293, p. 27.)
GOVERNING STANDARDS OF LAW
1. Martinez v. Ryan
Martinez v. Ryan worked a "remarkable" equitable change in the law governing procedurally defaulted ineffective assistance of counsel claims. See Lopez v Ryan, 678 F.3d 1131, 1136 (9th Cir. 2012). Martinez altered the long-standing prohibition of Coleman v. Thompson, 501 U.S. 722 (1991), that post-conviction counsel's ineffectiveness could not be used to excuse the procedural default of a claim. In effect, Martinez created the potential for an exception to the overall ban on new evidence in § 2254 actions that was pronounced in Cullen v. Pinholster, 131 S.Ct. 1388 (2011) (interpreting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). Martinez makes it possible for procedurally defaulted ineffective assistance of trial counsel claims to be heard de novo, with new supporting evidence, on federal habeas corpus review. See Dickens v. Ryan, 740 F.3d at 1320 ("We reject any argument that Pinholster bars the federal district court's ability to consider Dickens's new' IAC claim." In addition, " Pinholster says nothing about whether a court may consider a new' claim, based on new' evidence not previously presented to the state courts.").
In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the United States Supreme Court clarified that the Martinez/Coleman "cause" test consists of four necessary prongs. The failure to meet any prong means that the Martinez exception is unavailable to excuse the procedural default of a claim. See Martinez, 132 S.Ct. at 1319.
A. First Prong of Martinez/Coleman "Cause"-Substantial Ineffective Assistance of Counsel Claim
First, a petitioner must bring forward facts demonstrating that his ineffective assistance of counsel (IAC) claim is substantial. The United States Supreme Court has defined "substantial" as a claim that "has some merit." Martinez, 132 S.Ct. at 1318 (comparing the standard for certificates of appealability from Miller-El v. Cockrell, 537 U.S. 322 (2003)). Stated inversely, a claim is " in substantial" if "it does not have any merit or... is wholly without factual support." Id. at 1319.
Determining whether an IAC claim is substantial requires a federal court to examine the claim under Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel under Strickland must show that (1) "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment, " and (2) counsel's errors "deprive[d] the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
Under the first Strickland prong, whether an attorney's performance was deficient is judged against an objective standard of reasonableness. Id. at 687-88. A reviewing court's inquiry into the reasonableness of counsel's actions must not rely on hindsight:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense or which witnesses or other evidence to present, "are virtually unchallengeable" if "made after thorough investigation of law and facts relevant to plausible options." Id. at 690. Moreover, an attorney who decides not to investigate a particular theory or issue in the case is not ineffective so long as the decision to forego investigation is itself objectively reasonable. Id. at 690-91.
If a petitioner shows that counsel's performance was deficient, the next step in the Strickland inquiry is the prejudice analysis. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. To satisfy the prejudice standard, a petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is defined as a "probability sufficient to undermine confidence in the outcome." Id.
These standards from Strickland for determining deficient performance and prejudice, are, of course, the standards for an eventual review of the merits of the IAC claim. The first Martinez prong is not the same as a merits review, but, as the Martinez Court explained, it is more akin to a preliminary review of a Strickland claim for purposes of determining whether a certificate of appealability should issue. See Martinez, 132 S.Ct. at 1318-19 (comparing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under this standard, a court may conclude that a claim is substantial when a petitioner has shown that "resolution" of the merits of the Strickland claim would be "debatable among jurists of reason, " or that the issues presented are "adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336.
B. Second Prong of Martinez/Coleman "Cause"-Post-Conviction Review Counsel is Constitutionally Ineffective
Second, a petitioner must demonstrate that he had no counsel on initial post-conviction review, or that post-conviction review (PCR) counsel was "ineffective under the standards of Strickland, " which includes a showing of deficient performance and a reasonable probability of prejudice caused by the deficient performance. Martinez, 132 S.Ct. at 1318; see Strickland, 466 U.S. at 694, 700.
1) Deficient Performance
Not just any error or omission of PCR counsel will be deemed "deficient performance" that will satisfy Martinez. If the PCR "attorney in the initial-review collateral proceeding did not perform below constitutional standards, " the PCR attorney's performance does not constitute "cause." Martinez, 132 S.Ct. at 1319.
As to prejudice, the petitioner must show that, if PCR counsel would not have performed deficiently, the result of the post-conviction proceedings would have been different. Clabourne v. Ryan, 745 F.3d 362, 376-77 (9th Cir. 2014) (cumulating all opinions from Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc plurality opinion)). That determination "is necessarily connected to the strength of the argument that trial counsel's assistance was ineffective." Id. at 377-78.
3) No Additional Coleman "Actual Prejudice" Showing is Required
Once a petitioner has met Prong 1, a showing of substantiality of the merits of the underlying IAC claim (deficient performance of trial or direct appeal counsel plus prejudice), and Prong 2, that PCR was ineffective (deficient performance plus prejudice in the PCR action), the Coleman "cause" is met. Clabourne, 745 F.3d at 378. Coleman "actual prejudice" is met by a showing of substantiality of the merits of the underlying IAC claim (Prong 1 of the "cause" test). Id. at 377.
C. Prong 3-Initial State Collateral Review Proceeding
Prong 3 of the Martinez/Coleman test is that the state collateral review proceeding must have been the "initial" post-conviction review proceeding where the IAC claim could have been raised. Trevino, 133 S.Ct. at 1918 (citing Martinez, 132 S.Ct. at 1318-19, 1320-21). In other words, the post-conviction proceeding must have been "the equivalent of a prisoner's direct appeal" for the IAC claim. Martinez, 132 S.Ct. at 1317. A petitioner may not use as cause attorney error that occurred in "appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts." 132 S.Ct. at 1320.
D. Prong 4-State Law Requires IATC Claims to be Brought in Initial State Collateral Review Proceeding
Prong 4 of the Martinez/Coleman test is that state law must require (by law or by reason of design and operation) that an ineffective assistance of trial counsel or appellate counsel claim be raised in an initial-review collateral proceeding. Trevino, 133 S.Ct. at 1918, 1921. In Idaho, the post-conviction setting is the "preferred forum for bringing claims of ineffective assistance of counsel, " although in limited instances such claims may be brought on direct appeal "on the purported errors that arose during the trial, as shown on the record" (as opposed to matters arising outside the record). Matthews v. State, 839 P.2d 1215, 1220 (Idaho 1992).
2. Post-Judgment Martinez Motions
The Federal Rules of Civil Procedure apply in habeas corpus proceedings only "to the extent that they are not inconsistent with any statutory provisions or [the Rules Governing Section 2254 Cases]." Rule 12, Rules Governing § 2254 Cases; see also Fed. R. Civ. P 81(a)(4). The Supreme Court has not addressed whether or how Rule 59(e) is to be applied in ...