United States District Court, D. Idaho
MICHAEL T. HAYES, Petitioner,
RANDY BLADES, Respondent.
MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
Pending before the Court is Petitioner Michael T. Hayes' Amended Petition for Writ of Habeas Corpus, challenging his Shoshone County conviction of lewd and lascivious conduct with a minor under the age of 18. (Dkt. 40.) The victim was T.L., who had just turned 15 years old. The Amended Petition is now fully briefed and at issue. (Dkt. 63, 100, 101.) Having reviewed the record in this matter, including the state court record and exhibits submitted by both parties, the Court concludes that oral argument is unnecessary. Accordingly, the Court enters the following Order denying habeas corpus relief.
T.L. lived with Megan Rice, her mother; Rice's husband, Nat Lunen, who had adopted T.L. as his own daughter; and F.R., who is T.L.'s younger half-sister (F.R.'s natural mother is Megan Rice; her natural father is Martin Adler). The Rice-Lunens lived in a single-wide mobile home in Mullan, Shoshone County, Idaho, population 700. During the time periods in question, Petitioner lived among the following places: his motorhome that he parked in Mullan; a home he owned in Osburn, Shoshone County, Idaho that was rented to a friend; and Tom Pratt's home in Athol, Kootenai County, Idaho.
Petitioner denies that he was ever involved romantically or sexually with T.L. He denies that he spent significant time with T.L.'s family during the time period at issue, denies that a resident and a sheriff's deputy saw his motorhome in Mullan on one of the alleged incident dates, and denies the reports of witnesses who saw Petitioner and T.L. together in Petitioner's motorhome, Lincoln, and Mustang. (State's Lodging A-3, pp. 144-153; 406-25.) Petitioner did not testify at trial, but told his version of events at the state post-conviction hearing. (State's Lodging E-7.)
An account of T.L.'s history sets the stage for the incidents at issue. Several years before the incidents with Petitioner, when Rice and T.L. were living with Adler and F.R., T.L. accused Adler of touching her leg and commenting about how smooth it was. T.L. reported the incident to authorities, fearing sexual abuse. Adler was investigated, but nothing came of the investigation. Adler testified that T.L. recanted the allegations "under intense questioning by her mother." (State's Lodging A-3, pp. 446-47.) Adler, however, admitted under cross-examination that he had put his hand on T.L.'s knee and said, "Your legs are smooth." ( Id., pp. 452-53.) This evidence was admitted at Petitioner's trial to support Petitioner's theory that T.L. had a pattern of falsely reporting "abuse."
On a subsequent, unrelated occasion, T.L. had spoken disrespectful words to her mother, Megan Rice, and Rice had "backhanded" T.L. and left a mark on her, after which T.L. reported Rice to the school counselor for child abuse. Rice had to explain her actions, and the counselor explained to her the difference between discipline (not leaving a mark) and abuse (leaving a mark). Rice was not prosecuted. (See September 24, 2002, 54-page Investigation Report of Shoshone County Sheriff's Office Detective Mitchell Alexander, lodged by Petitioner on June 19, 2012, pp. 10-11.) This evidence was excluded at Petitioner's trial upon the State's motion in limine.
When T.L. was 14 years old, she engaged in a romantic relationship with a 27-year-old man, which included several instances of sexual intercourse. She also was caught kissing a 30-year-old man. Her mother found out about these relationships and ended them, including reporting or threatening to report the incidents to authorities. This evidence was excluded at Petitioner's trial upon the State's motion in limine.
Petitioner, a 47-year-old man, began to spend a lot of time with T.L.'s family when Petitioner's son died in 2001. Because Petitioner often lived in a motorhome that had inadequate heating and air conditioning, he sometimes spent the night on the Rice-Lunens' couch. T.L. testified that she and Petitioner began to flirt with each other when T.L.'s parents left the room. T.L. developed a crush on Petitioner. T.L. testified that, after she told Petitioner she wanted to marry him, Petitioner began to pressure T.L. to have sex with him. T.L. testified that she refused, until just before her fifteenth birthday, when she finally agreed. T.L. testified that she called Petitioner to come over when her parents were out of town, he arrived within about 20 minutes, and they engaged in sexual intercourse. (See State's Lodging A-3.)
T.L. testified that she began "seeing" Petitioner, which included sexual intercourse. T.L. testified that she thought she was in love with Petitioner, and wanted to get pregnant and run away to Montana with him. T.L. referred to Petitioner as her "boyfriend" when talking to her sister and her friends. During this time period, T.L.'s parents did not know about the relationship, but found T.L. increasingly difficult to get along with.
On July 4, 2002, T.L.'s fifteenth birthday, she and her family took a vacation with Petitioner in his motorhome to camp and try out his newly-purchased older-model boat at Farragut State Park in Kootenai County. Another friend of Petitioner, named Tom Pratt, joined them on July 5, and stayed with them during the day time, but returned to his own nearby home each night. T.L. testified at trial that she and Petitioner had brief episodes of sexual intercourse every day they were on vacation, from July 4, 2002, to July 7, 2002.
T.L. continued her relationship with Petitioner after the camping trip. F.R. testified that she saw T.L. and Petitioner having sex in his car when the three of them drove to a deserted area. In addition, T.L. and her friend, B.H., both testified that, while the two of them were sitting on Petitioner's bed discussing Petitioner and T.L.'s desire to have a "threesome" with B.H., he reached over and touched the clothed right breast of B.H., who got up and walked away and then threw up outside.
In describing another prior, unrelated incident involving T.L., F.R. told Detective Alexander that T.L. may have used cocaine once with a friend named Ashleigh and Ashleigh's uncle. (Shoshone Report, p. 21.) This evidence was not admitted at Petitioner's trial.
T.L. drank alcohol and smoked cigarettes when made available to her, and B.H. and F.R. drank alcohol when it was provided to them. ( Id., pp. 15-16, 31-32) This evidence, including evidence that Petitioner supplied the teens with alcohol and tobacco, was admitted at Petitioner's trial.
In September 2002, T.L. was angry at Lunen for disciplining her, and she stole her parents' car and ran away from home in the middle of the night, taking her friend, B.H., with her. The teens intended to obtain money from Petitioner and go to Wyoming, where B.H.'s boyfriend (who was also T.L.'s cousin) lived. T.L. and B.H. testified that, when they arrived at Petitioner's home (in Shoshone County), T.L. and Petitioner had sexual relations in the bedroom, while B.H. stayed in the living room. T.L. and B.H. both testified that Petitioner tried to rub T.L.'s stomach, but she didn't like it and told him to stop, and that Petitioner made T.L. an unusual type of sandwich - peanut butter and butter - that night, but T.L. didn't like it, and so Petitioner ate it. (State's Lodging A-3, pp. 316-17.) Petitioner refused to give them money to go to Wyoming, and so the teens returned to Mullan, to a house that B.H. was housesitting while the owner was away.
T.L. told Detective Alexander that, when she talked to Petitioner the day after she had run away, Petitioner said he had talked to her parents and they were going to report her as a runaway to authorities. T.L. said that she was crying, and Petitioner told her she should just get even with them and file a report that Lunen had sexually abused her and had injected her with cocaine. T.L. told Detective Alexander that "she did not know what to say and [Petitioner] was telling her what to say." (Shoshone Report, p. 41.) Petitioner later admitted to Detective Alexander that he encouraged T.L. to contact authorities to protect herself, but maintains that T.L. told him about Lunen's sexual and drug abuse. (Shoshone Report, pp. 46-47.)
T.L. called authorities and accused Lunen of sexually abusing her and injecting her with cocaine. She reported to authorities that she feared Lunen infected her with his hepatitis C disease by using a dirty needle he had first used on himself. About this same time, Petitioner left town for an extended period of time on a fishing trip. T.L. hoped that she would be able to escape her parents' household and leave to Montana with Petitioner to get married and start a new life. She asked authorities if she could live with "Wanda, " who was Petitioner's mother, but was placed elsewhere in a foster home.
T.L.'s new foster parents had a strict household, and T.L. disliked attending church with her foster family. After two weeks in foster care, she wrote a letter of apology to her father, recanting the abuse allegations.
After recanting, T.L. admitted to Detective Alexander that she had sex with Petitioner on eleven occasions. T.L. said that Petitioner had made up the story of Nat Lunen injecting T.L. with drugs, and Petitioner had encouraged her to go to the police with the false story of Nat Lunen's sexual abuse. T.L. also told Detective Alexander that it was Petitioner who injected her with a drug. (Shoshone Report, p. 51; State's Lodging A-3, pp. 483-85.). F.R., T.L.'s half-sister, told Alexander that Petitioner bought her alcohol to keep quiet about the sexual relationship of Petitioner and T.L. In addition, F.R. said that Petitioner provided marijuana and alcohol to T.L. and B.H. F.R. also told Detective Alexander that Petitioner had told F.R. that he kept the marijuana in the bathroom under the sink and he had said that he would like to see her "get high for the first time." ( Id., p. 24.) Similar to her half-sister's testimony, T.L. told Detective Alexander that Petitioner provided her with alcohol, tobacco, and marijuana. ( Id., p. 28.)
In Shoshone County, Petitioner was charged with several misdemeanors: two counts of dispensing alcohol to a minor and one count of dispensing tobacco to a minor; he was also charged with one count of felony lewd conduct with a minor under age sixteen, arising from incidents on September 2, 2002. In Kootenai County, Petitioner was charged with four counts of felony lewd conduct with a minor, for alleged incidents during the camping trip on July 4, 5, 6, and 7, 2002.
Over Petitioner's objection, the cases were consolidated for jury trial in Shoshone County. Trial was held on October 6, 2003, through October 9, 2003. Lynn Nelson, Petitioner's Kootenai County case attorney served as lead counsel. Attorneys David Lohman (Shoshone County case attorney) and John George (Kootenai County case second-chair counsel), also represented Petitioner and participated in the trial. Petitioner was convicted of the September 2, 2002 lewd conduct count, two counts of dispensing alcohol to a minor, and one count of distribution of tobacco to a minor in the Shoshone County case. Petitioner was also convicted of one lewd conduct count from July 6, 2002, in the Kootenai County case. The jury found Hayes not guilty of the lewd conduct charge of July 4, and was unable to reach a verdict on the lewd conduct charges of July 5 and 7. (State's Lodging A-3, pp. 589-91.)
After the trial, Petitioner traveled across the country and found Tom Pratt, the friend who had accompanied the family on the camping trip. Petitioner filed a motion for a new trial, asserting that Tom Pratt's testimony was material and that Pratt had been unavailable at the time of trial. Pratt would have testified that he was with Petitioner on July 5, 6, and 7, until he returned home each night, and that Petitioner and T.L. did not have occasion on those days to be alone. The state district court denied the motion for a new trial, but the Idaho Court of Appeals vacated the conviction for the July 6, 2002 incident, and remanded the case for a new trial on the Kootenai County lewd conduct charge. ( State v. Hayes, 165 P.3d 288 (Idaho Ct. App. 2007.) The State elected not to retry the case.
Petitioner attempted to obtain a new trial in the Shoshone case, but the state district court determined that there was no probability that the Pratt testimony about the Kootenai County camping trip would produce an acquittal in the Shoshone County case, regarding T.L. and B.H.'s visit to Petitioner's home. The Idaho Court of Appeals agreed, and affirmed denial of the motion for a new trial. (State's Lodging D-4.) Two subsequent state appellate actions brought Petitioner no relief. (State's Lodgings F-4, H-4.) Petitioner is currently serving a unified forty-year sentence with twenty years fixed on the Shoshone County lewd conduct conviction. This federal habeas corpus case concerns only the Shoshone County convictions, as the Kootenai County conviction was vacated as a result of the state court proceedings mentioned above.
HABEAS CORPUS STANDARD OF LAW
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). This standard is often referred to as the "AEDPA deference" standard. 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, 101 (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).
As to the facts, the United States Supreme Court has clarified that review "under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014).
When a party contests the reasonableness of the state court's factual determinations under § 2254(d)(2), the petitioner must show that the state court decision was based upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
The United States Court of Appeals for the Ninth Circuit has identified five types of unreasonable factual determinations that result from procedural flaws that occurred in state court proceedings: (1) when state courts fail to make a finding of fact; (2) when courts mistakenly make factual findings under the wrong legal standard; (3) when "the fact-finding process itself is defective, " such as when a state court "makes evidentiary findings without holding a hearing"; (4) when courts "plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim"; or (5) when "the state court has before it, yet apparently ignores, evidence that supports petitioner's claim." Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Section 2254(d)(1), the strict deferential standard, does not apply, making de novo review of a claim possible only under the following circumstances: (1) where the state appellate court did not decide a properly-asserted federal claim; (2) where the state court's factual findings are unreasonable under § 2254(d)(2); or (3) where an adequate excuse for the procedural default of a claim exists. 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). Rather, 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 at 1000.
DISCUSSION OF PROPERLY-EXHAUSTED CLAIMS
The Amended Petition for Writ of Habeas Corpus contains five claims, with various subclaims. Respondent argues that Claims 2, 4, and 5 are procedurally defaulted in their entirety. The Court will first address the merits of Claims 1 and 3, which appear to be properly exhausted, and then will turn to the claims that Respondent contends are procedurally defaulted, addressing both the procedural default status and merits of those claims.
1. Claim 1
Petitioner argues that the failure of the trial court to sever the Shoshone County case from the Kootenai County case violated his Fifth, Sixth, and Fourteenth Amendment rights, including his right to a fair trial and his right to be free from double jeopardy. Petitioner further argues that the misdemeanor charges should not have been joined with the felony charges. All of the charges were tried in Shoshone County. These claims are properly exhausted, and, therefore, AEDPA deference applies.
A. Fair Trial Implications
To prevail under § 2254(d)(1), Petitioner must show that the Idaho Court of Appeals's decision is contrary to United States Supreme Court precedent. Respondent argues that the United States Supreme Court has not held there is a constitutional right to severance of charges, and, consequently, Petitioner cannot prevail. After independent research, the Court agrees.
Much of the case law on severance is grounded in Federal Rule of Criminal Procedure 8(b), which governs federal criminal case joinder of two defendants in a single action, rather than joinder of offenses charged against a single defendant. For example, in Zafiro v. United States, 506 U.S. 534, 537 (1993), the United States Supreme Court recognized a preference in the federal system for joint trials of defendants who are indicted together, because joint trials "promote efficiency" and "avoid the scandal and inequity of inconsistent verdicts." Id. at 537. Under Rule 8(b), joinder of codefendants is appropriate where the subject matter is "the same act or transaction" or "the same series of acts or transactions constituting an offense or offenses." Id. The Zafiro Court also discussed Federal Rule of Criminal Procedure 14, noting that joinder is improper if it might prejudice the defendants or the government, but, even in that circumstance, Rule 14 does not require severance, but "leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Id. at 538-39. Defendants opposing joinder must point to a "specific instance of prejudice, " rather than simply contend that they "may have a better chance of acquittal in separate trials." Id. at 539-40.
While Rule 8(b) governs joinder of defendants in federal cases, Rule 8(a) governs joinder of offenses, and permits joinder where the offenses charged "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Idaho Criminal Rule 8(a) is similar. The United States Supreme Court has not addressed when or whether application of Rule 8(a) transgresses the Constitution.
As to the constitutional implications of Rule 8 in a multiple-defendant case, the United States Supreme Court has determined that "the specific joinder standards of Rule 8 are not themselves of constitutional magnitude." United States v. Lane, 474 U.S. 438, 446 (1986). "Improper joinder does not, in itself, violate the Constitution"; misjoinder rises "to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." Id. at 446 n.8. Accordingly, only this broad constitutional standard can be applied to Petitioner's claim on a federal habeas corpus review.
The Idaho Court of Appeals considered the following factors in reviewing Petitioner's severance claims: (a) the possibility that the jury may confuse and cumulate the evidence, rather than keeping the evidence properly segregated; (b) the potential that the defendant may be confounded in presenting defenses; and (c) the possibility that the jury may conclude the defendant is guilty of one crime and then find him or her guilty of the other simply because of his or her criminal disposition. (State's Lodging B-4, p. 5.)
Petitioner argued on appeal that he was prejudiced because the jury might have found him guilty of the July 7 count of lewd conduct because jurors thought he was a "bad person, " rather than because there was sufficient evidence of the crime. The Idaho Court of Appeals found no prejudice, because the law permits use of "evidence of uncharged incidents of the defendant's sexual misconduct with the same victim" in prosecutions for sexual molestation of children. Severance was not required, based on the following reasoning:
Evidence supporting the Shoshone County count of lewd conduct, as well as evidence of the uncharged lewd conduct, would have been admissible to prove the Kootenai County counts because that evidence was probative of Hayes's general plan to exploit and have sexual intercourse with the victim. Further, such evidence was admissible to bolster the victim's credibility. Accordingly, Hayes did not suffer any prejudice as a result of the Shoshone and Kootenai County cases being tried together, and Hayes has failed to demonstrate that the district court abused its discretion in denying his motion to sever.
(State's Lodging B-4, p. 7.)
Having reviewed the entire record, this Court concludes that Petitioner has not shown great prejudice that would offend the Constitution. All of the charges were related to the alleged boyfriend-girlfriend relationship of Petitioner and T.L., and many of the same witnesses were required. The Fourth of July weekend events and the September event were all alleged to be part of a general scheme or plan ...