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Brummett v. Finn

United States District Court, D. Idaho

August 3, 2016

DAVID BRUMMETT, Petitioner,
v.
BRIAN FINN, Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge.

         Pending before the Court is Petitioner David W. Brummett’s Petition for Writ of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Partial Summary Dismissal, which is now ripe for adjudication. (Dkt. 11.) In addition, Petitioner has filed a Motion for an Evidentiary Hearing and a Motion for Appointment of Counsel. (Dkt. 15, 16.)

         The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 17.) Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order dismissing, with prejudice, Claim 1 and the related portion of Claim 3.

         BACKGROUND

         The facts underlying Petitioner’s conviction are set forth clearly and accurately in Brummett v. State, Docket No. 42466, Op. 537 (Idaho Ct. App. June 29, 2015) (unpublished), which is contained in the record at State’s Lodging D-4. The facts will not be repeated here except as necessary to explain the Court’s decision.

         Pursuant to a plea agreement, Petitioner pleaded guilty in the Third Judicial District in Canyon County, Idaho, to felony possession of a controlled substance, in violation of Idaho Code § 37-2732(c)(1). (State’s Lodging D-4 at 2.) In exchange for Petitioner’s guilty plea, the state dismissed four misdemeanor charges and a persistent violator enhancement. Petitioner was sentenced to seven years in prison with three years fixed. (Id.) Petitioner filed a timely motion for reduction of sentence under Idaho Criminal Rule 35, which the trial court denied.

         Petitioner filed a direct appeal, arguing that the trial court abused its discretion by imposing an excessive sentence and by denying Petitioner’s request, in his Rule 35 motion, that a substance abuse evaluation be ordered and considered in reevaluating his sentence. (State’s Lodging B-1.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging B-3, B-5.)

         Petitioner next filed a petition for postconviction relief in the state district court. (State’s Lodging C-1 at 3-55.) The court construed the petition as raising the following claims[1]: (1) Petitioner’s guilty plea was involuntary; (2) Petitioner’s trial counsel was ineffective in failing to argue that Petitioner’s arrest was unlawful and in failing to understand the law; (3) Petitioner was not trespassing when he was arrested and, therefore, the arrest was without probable cause; and (4) Petitioner’s conduct was lawful because the Ninth Amendment protects the recreational use of drugs. (State’s Lodging at 267.) The court issued notice of its intent to summarily dismiss the petition, and Petitioner objected, addressing only the claim that trial counsel was ineffective for failing “to fully investigate [Petitioner’s] case and consider possible motions to suppress and/or dismiss based on the fact that there was no probable cause for his arrest and/or search by police officers.” (State’s Lodging C-2 at 281.)

         The trial court denied the postconviction petition, and Petitioner appealed. (Id. at 285-89; 292-84.) Petitioner argued that he did not receive adequate notice of the court’s intent to summarily dismiss the petition and that his trial counsel rendered ineffective assistance in failing to adequately challenge Petitioner’s arrest and search under the Fourth Amendment. (State’s Lodging D-1, D-3.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging D-4, D-6.)

         In the instant federal habeas corpus petition, Petitioner asserts three claims. Claim 1 argues that Petitioner’s Fourth Amendment rights were violated because he was arrested without probable cause and, therefore, the search of Petitioner was illegal and the resulting evidence should have been excluded. Claim 2 argues that Petitioner’s trial counsel was ineffective in failing to file a motion to suppress the evidence obtained in the search. Claim 3 argues that Petitioner was denied due process based on the allegations contained in Claims 1 and 2. (Dkt. 3 at 6-8.)

         Claim 3 does not appear to assert an independent basis for habeas relief, but merely restates Claims 1 and 2. (Dkt. 3 at 6-8; Dkt. 6 at 2.) See Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (holding that the Sixth Amendment right to counsel applies to the states through the Due Process Clause of the Fourteenth Amendment); Baker v. McCollan, 443 U.S. 137, 142 (1979) (recognizing that the Fourth Amendment applies to the States “by virtue of its ‘incorporation’ into the Fourteenth Amendment”). Therefore, the Court will consolidate Claim 3 with Petitioner’s other claims, as suggested by Respondent. (Dkt. 11-1 at 7 n.2.) The portion of Claim 3 involving Petitioner’s allegedly illegal arrest and subsequesnt search will be considered below, along with Claim 1. The portion of Claim 3 involving the allegedly ineffective assistance of Petitioner’s counsel will be considered, along with Claim 2, at a later stage of these proceedings.

         PRELIMINARY MOTIONS

         1. Petitioner’s Motion for Appointment of Counsel

         There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner’s ability to ...


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