United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States District Court
before the Court is Petitioner Pony Leo's Petition for
Writ of Habeas Corpus, which asserts 16 claims. (Dkt. 1.)
Respondent has filed a Motion for Summary Dismissal, which is
now ripe for adjudication. (Dkt. 12, 23, 25.)
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 Respondent's Motion in part and
dismissing Claims 1, 3, 4, 5, 6, 8, 9, 10, 11, and 16 with
prejudice. The Court will deny the Motion without prejudice
with respect to Claim 14.
facts underlying Petitioner's conviction are set forth
clearly and accurately in Jackson v. State, Docket
No. 42116, Op. 504 (Idaho Ct. App. May 26, 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(unpublished), which is contained in the record at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.
was convicted by a jury in the Seventh Judicial District in
Clark County, Idaho, of two counts of lewd conduct with a
minor child under the age of sixteen, in violation of Idaho
Code § 18-1508. (State's Lodging D-4 at 2-3.)
Petitioner was sentenced to twenty years in prison with ten
years fixed. Petitioner's convictions were affirmed, and
he did not obtain postconviction relief.
1 through 10 of the instant Petition assert ineffective
assistance of trial counsel. Claim 11 appears to assert both
actual innocence and ineffective assistance of counsel.
Claims 12 through 15 assert prosecutorial misconduct, and
Claim 16 asserts ineffective assistance of postconviction
counsel. (Pet., Dkt. 1; Initial Review Order, Dkt. 7, at
Motion for Partial Summary Dismissal, Respondent argues that
Claims 1, 3, 4, 5, 6, 8, 9, 10, 11, 14, and 16 are
procedurally defaulted and that Claims 11 and 16 are also
noncognizable in this federal habeas corpus action. (Dkt.
Standards of Law
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. Fed.R.Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th
Cir. 2006). Where appropriate, a respondent may file a motion
for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
11(a) and 16 Are Not Cognizable in this Federal Habeas
Claim 11(a): Actual Innocence
Claim 11, Petitioner alleges that he is actually innocent.
(Pet. at 54, Dkt. 1-4 at 6.) The Court will refer to this
claim as Claim 11(a). Because Petitioner uses the phrase
“ineffective assistance of counsel” in discussing
this claim, he may also be attempting to assert that his
counsel was ineffective in failing to establish
Petitioner's innocence at trial. The Court will refer to
this claim as Claim 11(b).
11(a) is subject to summary dismissal because a freestanding
claim of actual innocence is not cognizable in a non-capital
habeas corpus case. Stephenson v. Blades, 2014 WL
3509448, at *7 (D. Idaho July 14, 2014); see Herrera v.
Collins, 506 U.S. 390, 400 (“Claims of actual
innocence based on newly discovered evidence have never been
held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the
underlying state criminal proceeding . . . . This rule is
grounded in the principle that federal habeas courts sit to
ensure that individuals are not imprisoned in violation of
the Constitution-not to correct errors of fact.”).
Claim 16: Ineffective Assistance of Postconviction
16 asserts that Petitioner's postconviction counsel
rendered ineffective assistance. The Court will summarily
dismiss this claim because there is no federal constitutional
right to counsel during state postconviction proceedings.
Pennsylvania v. Finley, 481 U.S. 551, 554 (1987);
Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir.
1, 3, 4, 5, 6, 8, 9, 10, and 11(b) Are Procedurally
Defaulted, andPetitioner Has Not Shown
Cause and Prejudice, or Actual Innocence, to ...