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Fleming v. Yordy

United States District Court, D. Idaho

September 7, 2016

JAMES J. FLEMING, Petitioner,
KEITH YORDY, Warden, Respondent.


          Honorable Candy W. Dale United States Magistrate Judge

         Pending before the Court is Petitioner James J. Fleming's Petition for Writ of Habeas Corpus. (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal, arguing that all of Petitioner's claims are procedurally defaulted. (Dkt. 15.) The Motion is now ripe for adjudication.[1] (See Dkt. 15, 32, 33.)

         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. 13.) 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 granting the Motion for Summary Dismissal and dismissing this case with prejudice.


         Petitioner was charged in the First Judicial District in Shoshone County, Idaho, with one count of lewd conduct with a minor under sixteen years of age, in violation of Idaho Code § 15-1508, and two counts of sexual abuse of a child under sixteen years of age, in violation of Idaho Code §§ 18-1506(1)(b) (sexual contact) and (c) (taking sexually explicit photographs). (State's Lodging A-1 at 67-68.) All of these original counts involved a single victim. Petitioner was later charged, in a separate case, with similar crimes against a second victim.

         Pursuant to a plea agreement, Petitioner entered an Alford[2] plea to one count of lewd conduct involving the first victim and one count of sexual abuse involving the second victim. (Id. at 83-84, 88; State's Lodging A-3 at 5-7.) Petitioner was sentenced to a unified sentence of 40 years in prison with 15 years fixed on the lewd conduct count, and a concurrent unified sentence of 25 years in prison with 15 years fixed on the sexual abuse count. (State's Lodging A-1 at 122-23.) Petitioner then filed a motion for reduction of sentence under Idaho Criminal Rule 35, but the motion was denied. (State's Lodging A-4.)

         Petitioner filed a direct appeal, arguing only that his sentences were excessive and that the trial court abused its discretion in denying Petitioner's Rule 35 motion. (State's Lodging B-3.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State's Lodging B-5 & B-7.)

         Petitioner next filed a petition for state postconviction relief, asserting numerous claims. (State's Lodging C-1; C-2 at 3-44.) Petitioner was appointed counsel. Petitioner's counsel initially filed a notice of intent to amend the petition, but later informed the court that Petitioner “instructed [counsel] to simply just go forward on the [original] petition and affidavit for postconviction relief” without filing an amendment. (State's Lodging C-2 at 64; C-3 at 5.) The state district court dismissed the petition, stating that Petitioner had shown no factual basis for his claims. (State's Lodging C-2 at 91; C-3 at 5-11.)

         Petitioner appealed the trial court's dismissal of his postconviction petition, and Petitioner was appointed separate counsel for the appeal. However, counsel was granted permission to withdraw after Petitioner relieved his counsel and asked to represent himself. (State's Lodging D-4; D-5.) Petitioner filed his opening brief (State's Lodging D-7), but later moved to stay the appeal because his attorney had informed him previously that there were no cognizable issues on appeal and that Petitioner had filed a successive petition for postconviction relief in the state district court. (State's Lodging D-8 at 2.) The state objected to the motion to stay, after which Petitioner moved to dismiss the appeal “without prejudice.” (State's Lodging D-9; D-10.) The Idaho Supreme Court denied the motion because an appeal cannot be dismissed without prejudice. (State's Lodging D-11.)

         After the state filed its response brief on appeal, Petitioner renewed his motion to dismiss, stating that he realized that the appeal could not be dismissed without prejudice and that Petitioner “should have just dismissed this appeal rather than proceed pro se” after his postconviction appellate counsel withdrew upon his request. (State's Lodging D-13 at 2.) The Idaho Supreme Court granted Petitioner's motion and dismissed the postconviction appeal. (State's Lodging D-14.)

         Meanwhile, when Petitioner's appeal in his initial postconviction proceedings was still pending, Petitioner had submitted to the state district court-in the same case that was then on appeal-a document entitled “Successive Petition for Post-Conviction Relief.”[3] (State's Lodging E-2.) Petitioner asserted six claims of ineffective assistance of trial counsel and one claim of ineffective assistance of initial postconviction counsel. (State's Lodging E-14.)

         The district court notified Petitioner of its intent to dismiss the petition because, at that time, Petitioner's initial postconviction appeal was still pending. (State's Lodging E-3.) Following the voluntary dismissal of Petitioner's appeal, the state district court issued additional notices of intent to dismiss the successive petition, on grounds other than the formerly pending appeal. (State's Lodging E-7; E-10.)

         After Petitioner responded to the notices of intent to dismiss, the trial court dismissed the successive petition because the claims either (1) were raised in the initial petition, and Petitioner had not shown that they were raised inadequately, or (2) were not raised in the initial petition, and Petitioner had not shown a sufficient reason for their omission.[4] (State's Lodging E-7 at 11-15; State's Lodging E-10; E-12.) These grounds for dismissal were based on Idaho's successive petitions bar. See Idaho Code § 19-4908 (“All grounds for relief available to an applicant under this act must be raised in his original . . . application. Any ground finally adjudicated or not so raised . . . may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original . . . application.”).

         Petitioner appealed the trial court's dismissal of his successive petition. (State's Lodging F-1.) The trial court then denied Petitioner's motion for appointment of postconviction appellate counsel, concluding that the appeal was frivolous. (State's Lodging F-2.) Relying on the trial court's finding of frivolousness, the Idaho Supreme Court entered an order conditionally dismissed the appeal and allowing Petitioner to respond. (State's Lodging F-13.) After Petitioner responded, the court dismissed the appeal as frivolous. (State's Lodging F-5.)

         In the instant federal habeas corpus petition, Petitioner asserts the following claims, all of which allege that Petitioner's trial counsel rendered ineffective assistance in violation of the Sixth Amendment:

Claim 1: Counsel failed to conduct a meaningful pretrial investigation.
Claim 2: Counsel failed to file a motion to suppress.
Claim 3: Counsel failed to convey a plea offer made by the State.
Claim 4: Counsel failed to provide constitutionally effective representation with respect to Petitioner's guilty plea.
Claim 5: Counsel failed to investigate mitigating evidence in preparation for sentencing.
Claim 6: Counsel failed to object to the “characterization” of Petitioner and the crimes of which Petitioner was convicted.

(Dkt. 1-3.)


         1. Standards of Law

         Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” The Court may also take judicial notice of relevant state court records in determining whether to dismiss a petition.[5] Fed.R.Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Where ...

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