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Skunkcap v. State, Attorney General Lawrence Wasden

United States District Court, D. Idaho

September 30, 2016



          Honorable Ronald E. Bush United States Magistrate Judge.

         Pending before the Court is Petitioner James Leroy Skunkcap's Petition for Writ of Habeas Corpus, challenging his Bannock County convictions, in two separate cases, of grand theft and attempting to elude a police officer (among other charges not before the Court at this time). (Dkt. 3.) The Petition is now fully briefed.[1] (Dkt. 18, 21, 26.)

         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) and Federal Rule of Civil Procedure 73. (Dkt. 9.) Having carefully reviewed the record in this matter, including the state court record, the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying habeas corpus relief and dismissing this case with prejudice.


         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 10.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Petitioner does not challenge the Idaho Supreme Court's description of the underlying facts. Those facts are as follows:

November 13, 2006, crime. On November 13, 2006, [a person later identified as Petitioner] stole two saddles from a horse trailer that the owner of a store had parked next to a warehouse that was located near the store. As one is facing the front of the store, the warehouse would be to the left of and behind the store, and the horse trailer was parked near the left side of the warehouse. At about 1:15 p.m., a store employee, who was feeling ill, left the store to drive home. She left by the front door and was walking to her pickup, which was parked to the left of the store. While doing so, she saw a light blue car parked beside the left side of the horse trailer. The front of the car and the front of the trailer were facing her. She could see that the trunk of the car was open and there was a man standing behind the car. After she got into her pickup, which she estimated to be sixty to seventy feet from the blue car, she could see that the man was struggling to put a saddle into the trunk of the car, and she saw that the back door of the trailer was open. She thought that if the man had purchased or pawned the saddle, it would be strange to park so far from the store's front door. She watched the man for about five minutes and wrote down the license number of the car. After he drove away, she headed home, but as she was doing so she telephoned the store and spoke to two employees to see if anyone had done any transaction with a saddle. She also suggested that the owner check his horse trailer.
It normally took the employee about thirty minutes to drive from the store to her home. Before she arrived at home, she received a telephone call from a police officer, and she told him the license number of the blue car. He ran a records check and drove to the residence of the owner of the license plates. The owner told him that a man she only knew as “Don” had taken the plates from her car some time earlier. Her car, a 1989 dark blue Toyota Camry, was in her garage and did not appear to the officer to be operable. The officer then returned to the police station and entered the stolen license plates in the National Crime Information Center data base. The following day, [Petitioner] was arrested driving a light blue 1990 Toyota Camry bearing the stolen license plates.
November 14, 2006, crimes. On November 14, 2006, a Pocatello police detective drove to a trailer park because he had been informed that [Petitioner] was there. The detective was driving a Ford Escape, which was rented by the police department and did not have any markings indicating it was a police vehicle. As the detective drove past the identified residence, he saw a blue car parked in front of it. He recorded the license number of the car and then parked within sight of it. He radioed dispatch and was advised that both the license plates on the car and the car may have been stolen. After watching the car for over an hour, he saw a male and female get into it and drive away. The detective followed the blue car as it left the trailer park.
Two sheriff's deputies had also responded to the area to assist the detective. Each of the deputies was driving a four-door pickup equipped with overhead lights and the words “Bannock County Sheriff” written on the front doors. They were parked along a paved road that ran east-west and were informed when the blue car was leaving the trailer park. The deputies saw the blue car pull onto the paved road and turn west towards them, but it was traveling in the eastbound lane. One of the deputies activated the overhead lights on his pickup and began driving toward the blue car. The car immediately made a u-turn and began heading east in the westbound lane. The other deputy did not activate his overhead lights, but also began driving toward the blue car. Upon seeing the approaching sheriff's vehicles, the detective positioned his vehicle so that it was facing north blocking the westbound lane of traffic. He did so in order to stop any westbound traffic while leaving the eastbound lane open.
The blue car continued driving east in the westbound lane and struck the left front quarter panel of the detective's vehicle. The pickup with its overhead lights on pulled up next to the blue car and stopped, and the other pickup pulled in behind the car and stopped. The driver of the car turned around and looked at the deputy in the pickup behind him. The driver then put the car in reverse and slammed into the pickup, and then he put the car in drive and again slammed into the detective's vehicle. [Petitioner] was the driver of the blue car. He and his female passenger were arrested. A subsequent search of the car revealed methamphetamine, a controlled substance.

State v. Skunkcap, 335 P.3d 561, 563-64 (Idaho 2014).

         Petitioner was convicted by a jury, in two separate cases, with the theft of the two saddles[2] and with felony attempting to elude a police officer.[3] Pursuant to Petitioner's persistent violator status, Petitioner was ultimately sentenced to two consecutive terms of 18 years in prison with 8 years fixed.[4] Petitioner's convictions were affirmed on appeal. (State's Lodging B-15.)

         Petitioner filed the instant habeas petition in December 2014. On November 10, 2015, this Court granted Respondent's motion for partial summary dismissal. The Court dismissed Claims 1 and 2(b) for lack of jurisdiction and dismissed Claim 4 as procedurally defaulted. (Dkt. 17.) Further, Petitioner has stipulated that he is not entitled to habeas relief on Claim 3. (Dkt. 21 at 5.) Therefore, the following claims remain for adjudication on the merits:

Claim 2(a): That the trial court erred, in the eluding case, by instructing the jury in a manner that allegedly “relieved the State of its constitutional burden of proof.”
Claim 5: That, in the theft case, the prosecutor committed misconduct in violation of the Due Process Clause and the Fifth Amendment's guarantee against compelled self-incrimination by “intentionally eliciting testimony from a police officer regarding [Petitioner's] decision to exercise his right to remain silent.”

(Pet. Dkt. 3, at 2-6; see Dkt. 17 at 4-5.)


         Federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment when the federal court determines that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited 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).

         When a party 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). Stated more simply, “Section 2254(d) applies regardless of the procedures employed or the decision reached by the state court, as long as a substantive decision was reached.” Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007).

         Under the second test, to satisfy the “unreasonable application” clause of § 2254(d)(1) the petitioner must show that the state court-although identifying “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 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 there is any possibility that fair-minded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has emphasized that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (internal citation omitted). To be entitled to habeas relief under § 2254(d)(1), “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White, 134 S.Ct. at 1702 (internal quotation marks 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. 2000). 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] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

         The United States Supreme Court has clarified “that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014).

         When a petitioner contests the reasonableness of the state court's factual determinations, the petitioner must show that the state court decision was based upon factual determinations that were “unreasonable . . . in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 130 S.Ct. 841, 849 (2010). If the factual findings of the state court are not unreasonable, those findings must be presumed correct, and may be rebutted only by clear and convincing evidence, pursuant to 28 U.S.C. § 2254(e)(1). Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         Even if a petitioner succeeds in demonstrating a constitutional error in his conviction, he is entitled to federal habeas relief only if the petitioner “can establish that [the error] resulted in ‘actual prejudice.'” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). A “reasonable possibility” of prejudice is insufficient. Id. Under the Brecht standard, an error is not harmless, and habeas relief must be granted, only if the federal court has “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).


         1.Claim 2(a): Jury Instruction in the Eluding Case

         In Claim 2(a), Petitioner challenges the jury instruction setting forth the elements eluding an officer. The statute governing the crime of eluding an officer makes it a crime for “[a]ny driver of a motor vehicle who willfully flees or attempts to elude a pursuing police vehicle when given a visual or audible signal [including a signal by emergency lights or siren] to bring the vehicle to a stop.” Idaho Code § 49-1404(1). The statute also states, “It is sufficient proof that a reasonable person knew or should have known that the visual or audible signal given by a peace officer was intended to bring the pursued vehicle to a stop.” Id. The crime is a felony if, in the course of eluding the officer, the driver reaches speeds in excess of 30 miles per hour above the speed limit, causes property damage or bodily injury, or drives in a dangerous manner. Id. § 49-1404(2).

         The eluding instruction given to Petitioner's jury provided as follows:

In order for the defendant to be guilty of Fleeing or Attempting to Elude a Police Officer, the State must prove each of the following:
1. On or about the 14th day of November, 2006
2. In the county of Bannock, State of Idaho;
3. Defendant JAMES LEROY SKUNKCAP, the driver of;
4. a Motor Vehicle; to wit: a blue Toyota Camry bearing Idaho license 1BF9120, in the Kraft Rd. and Main St. area;
5. Did willfully flee or attempt to elude a pursuing police vehicle;
6. when given a visual or audible signal to bring the vehicle to a stop; and
7. while doing so, causes damage to the property of another or bodily injury to another.
** It is sufficient proof that a reasonable person who knew or should have known that the visual or audible signal given by a peace officer was intended to bring pursued vehicle to a stop.
If each of the above has been proven beyond a reasonable doubt, you must find the defendant guilty. If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty.

(State's Lodging A-2 at 245 (italics in original).)

         The italicized language pertains to the “signal” element of the crime; that is, the visual or audible signal given by the police “must be given by emergency lights or siren which a reasonable person knew or should have known was intended to bring the pursued vehicle to a stop.” Skunkcap, 335 P.3d at 568 n.1 (quoting the recommended Idaho Criminal Jury Instruction for attempting to elude a police officer). However, in the instruction given in Petitioner's case, the italicized language was listed after all of the elements of the crime and was not isolated to the “signal” element.

         Petitioner claims that the italicized language in the instruction unconstitutionally relieved the prosecution of its burden of proof, presumably because its placement in the instruction “could have led the jury to find him guilty without consideration of the other elements of the crime listed above it.” Skunkcap, 335 P.3d at 567. Petitioner specifically argues that the italicized language “would lead a juror to believe that [elements] 5. and 6. of the jury ...

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