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Brink v. Wengler

United States District Court, D. Idaho

September 13, 2016

DONALD SHANE BRINK, Petitioner,
v.
TIMOTHY WENGLER, Respondent.

          MEMORANDUM DECISION AND ORDER

          Edward J. Lodge United States District Judge

         Previously in this matter, the Court determined that a number of Petitioner's claims presented in his Petition for Writ of Habeas Corpus were procedurally defaulted, and, after providing Petitioner with an opportunity to show that either the cause and prejudice exception or the miscarriage of justice exception should be applied to excuse the default of the claims, the Court concluded that Petitioner met neither exception. (Dkts. 31, 39.) The Court also determined that several claims were noncognizable. (Dkt. 31.) Petitioner now is proceeding to the merits of three claims.

         Respondent has filed an Answer and Brief in Support of Dismissal of Petitioner's Petition for Writ of Habeas Corpus, and Petitioner has filed a Reply. (Dkt. 46, 57.)

         Having reviewed the record in this matter and considered the parties' arguments, the Court finds that oral argument is unnecessary and enters the following Order.

         CLAIMS AT ISSUE

         The following claims are in a proper procedural posture to proceed on the merits:

• Claim One, only as a claim of the violation of the right of access to the court “as guaranteed by the 1st, 5th and 14th Amendments under the Sixth Amendment right to counsel, as well as the Fifth and Fourteenth Amendments (due process clause), and the equal protection clause of the 14th Amendment” based on facts that “the jail deprived Mr. Brink of the legal materials he required to make use of that right or to otherwise participate in his defense.” (See State's Lodging C-7, p. 14.)
• Claim Three (2), limited to the subclaims that the jury's exposure to facts not in evidence when the prosecutor showed a video tape recording of the crime scene during his opening statement but did not later ask to have the video admitted into evidence deprived Petitioner of the Sixth Amendment rights to confrontation, cross-examination and assistance of counsel.
• Claim Four, that Petitioner's First, Fifth, Sixth, and Fourteenth Amendment rights were violated because he was not appointed experts to review the evidence, as an ineffective assistance of counsel claim only.

         BACKGROUND

         After trial by jury in the Fifth Judicial District Court in Twin Falls County, Idaho, Petitioner was convicted of (1) the first degree murder of Brent Lillevold, (2) being a persistent violator, and (3) a weapons enhancement associated with the crime. He was sentenced to thirty fixed years of incarceration, with life indeterminate. The facts underlying the conviction are set forth in the November 7, 2008 opinion of the Idaho Court of Appeals on direct review. (State's Lodging C-5.) Petitioner has presented an alternative version of the facts in his brief in support of his petition for review on post-conviction review. (State's Lodging E-23.) This Court has summarized the facts and the evidence presented at trial, including Petitioner's version, in its Order of February 24, 2015, determining that Petitioner did not make a threshold showing of actual innocence.

         Petitioner originally was represented by public defenders Marilyn Paul and Jonathan Brody. Petitioner did not believe they were adequately representing him, and thus, they withdrew from the case. Several other attorneys were considered, and eventually Thomas Kershaw was appointed to represent Petitioner at trial. Throughout the trial, Petitioner attempted to file numerous pro se documents while represented by counsel, but the state district court required him to file everything through counsel. After his conviction, Petitioner was appointed new counsel, Greg Silvey, for the direct appeal. Petitioner disagreed with Silvey's decision to present only two claims on appeal.

         On post-conviction review, Petitioner initially requested and was appointed counsel, Tim Williams. Petitioner then filed a motion to represent himself, which was granted. (State's Lodging D-3, pp. 642-74; 679-80.) The post-conviction action was summarily dismissed in state district court-meaning that the court determined the claims were so meritless they should not proceed to an evidentiary hearing.

         Petitioner was appointed counsel on appeal of the post-conviction matter, Deborah Whipple, but she withdrew because she found no meritorious issues to present on appeal. Two other attorneys in Petitioner's post-conviction appellate counsel's office independently reviewed the case and determined that there were no meritorious claims for the post-conviction appeal. (Petitioner's Exhibit Nos. 173, 714.) Petitioner nevertheless wanted to pursue an appeal of the post-conviction matter, and chose to represent himself on appeal. In the midst of the appeal, he filed a motion to re-appoint counsel, which was denied. Petitioner obtained no relief in state court.

         GENERAL STANDARD OF LAW FOR HABEAS CORPUS RELIEF

         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). 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, 131 S.Ct. 770, 786 (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).

         If the state appellate court did not decide a properly-asserted federal claim, if the state court's factual findings are unreasonable under § 2254(d)(2), or if an adequate excuse for the procedural default of a claim exists, then § 2254(d)(1) does not apply, and the federal district court reviews the claim de novo. 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), 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 984, 1000 (9th Cir. 2014).

         DISCUSSION OF MERITS OF REMAINING CLAIMS

         1. Claim One

         A. Statement of the Claim

         Petitioner has been permitted to proceed to the merits of a portion of Claim One- that he was denied his right of access to the court “as guaranteed by the 1st, 5th and 14th Amendments under the Sixth Amendment right to counsel, as well as the Fifth and Fourteenth Amendments (due process clause), and the equal protection clause of the 14th Amendment” based on allegations that “the jail deprived Mr. Brink of the legal materials he required to make use of that right or to otherwise participate in his defense.” (See State's Lodging C-7, p. 14.)

         B. Idaho Appellate Court Decision

         On direct appeal, Petitioner argued that the jail violated his right to access the courts by depriving him of his legal materials during his criminal prosecution and that the trial court denied him the right to access the courts by issuing a pre-filing order prohibiting him from filing pro se motions during the time period he was represented by an attorney. (State's Lodging C-2, p. 30.)

         The Idaho Court of Appeals set forth the governing federal law in the body of its opinion rejecting Petitioner's claims. In McKaskle v. Wiggins, 465 U.S. 168, 183 (1984), the United States Supreme Court clarified that a trial court is not required to permit a “hybrid” representation of a criminal defendant. The Idaho Court of Appeals affirmed the trial court's decision to require Petitioner to choose either to represent himself or to be represented by counsel. (State's Lodging C-5.) Petitioner himself acknowledged on appeal that the United States Supreme Court “has not recognized a right of the type which [Petitioner] attempts to now assert.” (Id., p. 11.) The Idaho Court of Appeals concluded that “the district court did not violate his right to access the courts in refusing to accept additional pro se filings while he was represented by counsel.” (Id.)

         C. Clearly-Established Federal Law and Discussion

         On federal habeas review, Respondent argues that there is no clearly-established law from the United States Supreme Court establishing the right of a represented criminal defendant to separately access the courts through an adequate jail access-to-courts program. The Court's independent research supports Respondent's position. As the Idaho Court of Appeals recognized, McKaskle v. Wiggins does not provide a legal basis for Petitioner's claims. Nor does Faretta v. California, 422 U.S. 806 (1975), which established a Sixth Amendment right of a defendant to represent himself pro se if he desired; there, the United States Supreme Court did not decide whether implied in that right is a corresponding right to access a law library. Even ...


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