United States District Court, D. Idaho
JAMES H. HAIRSTON, Petitioner,
RANDY BLADES, Warden, Respondent.
CAPITAL CASE MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF JUDGE.
United States Court of Appeals for the Ninth Circuit granted
Respondent's motion for a limited remand (see
Dkt. 209), to permit the District Court to reconsider the
certified aspect of Claim 21 in light of Martinez v.
Ryan, 132 S.Ct. 1309 (2012), which held that
"[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective
assistance at trial." Id. at 1315. Having
considered the briefing of the parties, the Court enters the
the parties are familiar with the factual and procedural
background of this case, the Court will not recite that
background in detail here. Rather, the Court sets forth only
those facts necessary to resolve the Martinez issue.
The Court incorporates the factual description set forth in
its Memorandum Decision and Order dated March 30, 2011. (Dkt.
H. Hairston’s state criminal case was adjudicated in
the Sixth Judicial District Court, in Bannock County, Idaho.
Hairston was represented at trial by attorneys Randall
Schulties and Thomas Eckert. Early in the case,
Hairston’s attorneys sought and received funding for an
investigator (Wayne Millward) and a psychologist (Dr. Mark
Corgiat) for trial and sentencing preparation.
October 23, 1996, two days before the scheduled sentencing
hearing, counsel sought funding for a mitigation specialist
(Mary Goody) and an extension of time so that the expert
could testify at sentencing. District Judge Peter D.
McDermott granted a brief continuance, to November 7, 1996,
but denied the expert funding request, concluding:
[An] adequate defense will certainly be available to the
defendant without the so-called mitigation specialist. The
defendant is represented by competent counsel and
they’re fully capable of presenting whatever mitigation
evidence they deem appropriate to the Court. I don’t
think the motion is timely, either, but for these reasons,
I’m doing to deny your request.
(State’s Lodging A-8, p. 2629-30.)
the absence of a mitigation specialist, significant
mitigating evidence was put before the trial court, both from
the defense and from the material in the presentence
investigation report. Based on this information, the trial
court found that Hairston was underdeveloped as child, was
sexually abused on at least two occasions, and that he was
raised by a strong and domineering woman who did not show
love or affection. His father abandoned the family when
Hairston was a small boy, and Hairston believed that his
father could not be located, but his life changed
significantly when he learned that his father simply chose
not to contact him. The trial court also considered that
Hairston was young when the crimes occurred, had previously
successfully completed juvenile probation, had no adult
criminal record, had expressed remorse for his crimes and
behaved well in the county jail. Finding that “[a]ll of
the mitigating circumstances . . . weigh as pebbles in
comparison to a boulder with respect to the cold-blooded,
calculated, premediated murders of Duke and Dahlma Fuhriman,
” the trial court sentenced Hairston to death.
(State’s Lodging A-5, p. 880.)
first state post-conviction application, Hairston raised a
claim that the trial court violated Hairston’s
constitutional rights by denying funding for a mitigation
expert for sentencing and a claim that his trial
attorneys were ineffective in failing to procure necessary
expert defense assistance and use of a mitigation specialist
or expert at sentencing. These claims were denied by the
state district court. (State’s Lodging B-10, p. 336.)
The trial court error mitigation claim was included among
issues for appeal, but the ineffective assistance mitigation
claim was not. (State’s Lodging C-13.) The trial
court’s decision was affirmed on appeal. State v.
Hairston, 988 P.2d 1170 (Idaho 1999).
filed his initial federal Petition for Writ of Habeas Corpus
in 2000. Currently, Petitioner’s Second Amended
Petition is the operative pleading in this case. (Dkt. 99.)
In the midst of his federal habeas action, Hairston returned
to state court with a second post-conviction application to
re-assert his claim that the trial court violated his
constitutional rights by denying funding for a mitigation
expert for sentencing, augmenting the application with expert
testimony that Hairston suffered from brain damage. In
particular, Hairston submitted affidavits from Dr. Ricardo
Weinstein and Dr. Maurice B. Sterman and argued that new
brain tests showed prejudice resulting from the trial
court’s denial of resources to hire a mitigation
appeal of denial of the second post-conviction application,
the Idaho Supreme Court determined that (1) Hairston’s
claim was subject to res judicata, as the court had addressed
the claim in the first post-conviction proceeding; and (2)
because Hairston knew of the claim within the statutory time
limits, it did not satisfy the narrow exception of Idaho Code
§ 19-2719(5) and could not be raised in a second or
successive application. Hairston v. State, 156 P.3d
552 (Idaho 2007), cert. granted, judgment vacated,
552 U.S. 1227 (2008) (remanded to the Idaho Supreme Court to
consider retroactivity of Ring v. Arizona, 536 U.S.
584 (2002), in light of Danforth v. Minnesota, 552
U.S. 264 (2008)).
federal case was stayed from 2001 to 2007 during
Hairston’s pursuit of his second post-conviction
action. After the Idaho Supreme Court rejected
Hairston’s attempts to revisit mitigation to allow new
evidence of brain damage to be considered, Hairston requested
an evidentiary hearing in this federal habeas action to
present four additional experts’ testimony. This Court
denied the request for an evidentiary hearing as unnecessary
to decide the claim Hairston had presented in his pleadings:
Hairston emphasizes evidence of his alleged brain
dysfunction, which he contends establishes prejudice from the
denial of a mitigation specialist. This contention assumes
too much; that is, Hairston has not drawn a persuasive causal
link between the absence of a mitigation specialist-
primarily an investigative expert-and the lack of
evidentiary development on whether he has brain damage, which
would be supplied by psychological, psychiatric, or medical
experts. Beyond requesting the appointment of Dr. Corgiat,
who apparently did not find evidence of brain damage,
Hairston did not ask for funding for those types of
additional mental health experts in state court.
Accordingly, the Court concludes that the new facts do not
place the issue in such a different light that Hairston would
be able to establish that the state court’s
adjudication of this constitutional claim, based on its
determination that he was given adequate tools and resources
for his defense, was an unreasonable one. Hairston is not
entitled to an evidentiary hearing.
(Order, Dkt. 192, p. 60.)
was entered in this case on March 3, 2011, eleven years after
it began. (Dkt. 193.) A certificate of appealability was
issued over several claims. While the case was on appeal to
the United States Court of Appeals for the Ninth Circuit, the
State requested and was granted a limited remand for
reconsideration of the certified aspect of Claim 21 (the
mitigation subclaim only) in light of Martinez v.
was an unprecedented and unusual development in habeas corpus
law. Rather than occupying their usual positions,
petitioners’ lawyers now often argue that their
clients’ claims are procedurally defaulted to take
advantage of Martinez, while state attorneys counter
that the claim was decided on the merits, putting it beyond
the scope of the Martinez exception. Further,
Martinez has created the anomaly that procedurally
defaulted claims may be heard at a substantial advantage over
properly exhausted claims, because Martinez claims
can be heard de novo on federal habeas ...