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Brummett v. Kempf

United States District Court, D. Idaho

November 28, 2016

DAVID W. BRUMMETT, Petitioner,
KEVIN KEMPF,[1] Respondent.


          B. Lynn Winmill Chief Judge.

         Pending before the Court is Petitioner David W. Brummett's Petition for Writ of Habeas Corpus, challenging his Ada County convictions for burglary and petit theft. (Dkt. 3.) Since the filing of the Petition, Petitioner has been released on parole. The Petition is now fully briefed and ripe for adjudication. (Dkt. 14, 18.)

         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 dismissing Claims 15, 17(b), and 18 for lack of jurisdiction, dismissing Claims 1, 2, 9(b), 10, 12(b), and 13 as procedurally defaulted, and denying Petitioner's remaining claims on the merits.


         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 13.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

         Petitioner was charged in the Fourth Judicial District Court in Ada County, Idaho, with burglary, petit theft, and a persistent violator sentencing enhancement. The charges were based on the following facts as determined by the Idaho Court of Appeals:

In 2007, loss prevention officers at various Shopko retail stores in the Treasure Valley became aware of an individual who had stolen electronic merchandise by using a knife to cut the products from their packaging. The individual, later identified as [Petitioner], would then wander to other parts of the store to dispose of the packaging while hiding the merchandise in his clothing. The stores first became aware of [Petitioner] after empty packaging was discovered at two Shopko stores in Boise and Meridian. After reviewing surveillance tapes from the two stores on March 11, loss prevention officers observed that the thefts were both perpetrated by [Petitioner]. Warning was given to all the local Shopko stores along with [Petitioner's] description. Despite the warning, additional electronics were stolen from a Shopko located in Nampa. After reviewing the surveillance tapes from June 5, loss prevention officers observed that this theft was also perpetrated by [Petitioner] while wearing the same clothing as during the previous thefts.
On June 17, employees at the Shopko store in Nampa observed [Petitioner] wandering in the electronics department. Store employees remained close to him until he left without further incident. However, store management called the Meridian Shopko to alert them that [Petitioner] might attempt another theft. Soon thereafter, loss prevention officers from the Meridian Shopko observed [Petitioner] enter the store and wander in the electronics section looking around nervously as he had done on previous occasions. [Petitioner] cut the packaging on some electronic products and then wandered through the electronics section. He soon returned to the cut packaging and removed the products and hid them on his person along with items taken from the electronics clearance section. [Petitioner] then left the store after walking through another section of the store. Police officers arrested [Petitioner] as he left the store. After searching [Petitioner], officers discovered the stolen merchandise as well as a small pocketknife. [Petitioner] admitted that the items belonged to Shopko and had not been purchased.
. . . . Prior to trial, the state filed a notice of intent to use I.R.E. 404(b) evidence of [Petitioner's] prior thefts at other Shopko stores. [Petitioner] filed a motion in limine to exclude any mention of his prior uncharged misconduct. The district court held, among other things, that the evidence was relevant and admissible to show [Petitioner's] intent to commit the theft upon entering the store on the day in question. At trial, evidence was presented from several loss prevention officers from the Shopko stores who testified to the past thefts committed by [Petitioner] as well as the most recent theft which led to his current charges. [Petitioner] testified that he went to the store to look for a fuse and did not intend to steal anything until he was already inside. He claimed that he had a credit card as well as eight dollars in cash1 and that he first went to the Nampa Shopko, but they did not have the product he was looking for. [Petitioner] admitted that he had previously shoplifted at the Meridian Shopko, but denied shoplifting at the Nampa location.

(State's Lodging B-4 at 1-2.)

         The jury found Petitioner guilty of burglary and petit theft, and the trial court found that Petitioner was a persistent violator. (Id.) The trial court sentenced Petitioner to a unified term of fifteen years in prison with five years fixed for the enhanced burglary conviction, as well as a concurrent term of 365 days for the petit theft conviction.

         On direct appeal, Petitioner argued that the trial court abused its discretion, under the Idaho Rules of Evidence, by (1) admitting evidence of Petitioner's prior bad acts and (2) allowing the prosecutor to exceed the scope of direct examination when cross-examining Petitioner. Petitioner also argued that the cumulative effect of these two errors required a new trial. (State's Lodging B-1, B-3.) The Idaho Court of Appeals affirmed. (State's Lodging B-4.) The Idaho Supreme Court denied review.

         Petitioner then filed a state petition for post-conviction relief, asserting ineffective assistance of counsel on numerous grounds, as well as violations of the right to a speedy trial, the right to be free from double jeopardy, and the right to due process. (State's Lodging C-2 at 4-29.) Petitioner was later appointed counsel. The state district court summarily dismissed the petition. On appeal from the denial of his post-conviction petition, Petitioner identified 29 issues in his opening brief, including that his trial and direct appeal counsel rendered ineffective assistance in various ways. (State's Lodging D-7, D-8, D-9.)

         The Idaho Court of Appeals expressly discussed only four issues raised by Petitioner: ineffective assistance of trial counsel based on counsel's (1) failure to make various objections at trial, (2) failure to pursue a motion to dismiss and a motion for a mistrial, (3) failure to argue entrapment, and (4) advising Petitioner against attempting to disqualify counsel. (State's Lodging D-11 at 5-7.) The court stated that Petitioner's other claims “will not be addressed because they are not properly before the Court.” (Id. at 7.) Despite this statement that the court would not consider the other claims, the court of appeals then appeared to deny at least some of those issues on the merits:

Each claim fails because the issue was either raised on direct appeal and cannot be considered in a post-conviction proceeding, should have been raised on direct appeal, was not raised to the district court below and will not be considered for the first time on appeal, or is otherwise without merit.

(Id.) The Idaho Supreme Court denied review.

         Petitioner later returned to the state trial court and filed a successive petition for post-conviction relief, which the trial court denied because Petitioner had not shown a sufficient reason, under Idaho Code § 19-4908, why the claims in the successive petition could not have been raised, or were raised inadequately, in the initial post-conviction petition. (State's Lodging E-9, E-12.) Petitioner appealed, but the Idaho Supreme Court dismissed the appeal pursuant to Idaho Appellate Rule 11.2. (State's Lodging F-3, F-4.) That rule provides for the imposition of sanctions if a document signed by a lawyer or a pro se litigant is not, “to the best of the signer's knowledge, information, and belief after reasonable inquiry . . . well-grounded in fact [or] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, ” or if the document is “interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Idaho App. R. 11.2.

         In his federal Petition, Petitioner asserts the following claims:

Claim 1: Due process violation based on the admission of evidence of prior bad acts.
Claim 2: Due process violation based on the prosecutor's cross- examination of Petitioner, which allegedly exceeded the scope of direct examination.
Claim 3: Ineffective assistance of counsel (“IAC”) based on (a) trial counsel's failure to pursue a motion to exclude evidence of prior bad acts, and (b) direct appeal counsel's failure to challenge the admissibility of the prior acts evidence on appeal.
Claim 4: IAC based on trial counsel's failure to object to the late disclosure of evidence-specifically, a video of a person, identified by loss prevention officers as Petitioner, shoplifting on a previous occasion.
Claim 5: IAC based on trial counsel's failure to continue to object to the “in-court identification” of Petitioner by loss prevention officers, who recognized Petitioner from the surveillance video referred to in Claim 4.
Claim 6: IAC based on trial counsel's failure to investigate and obtain the booking sheet from Petitioner's arrest to impeach a police officer's statement as to the amount of money Petitioner was carrying when arrested.[2]
Claim 7: IAC based on trial counsel's failure to object to the prosecutor's statements during closing argument regarding the amount of money Petitioner was carrying when arrested.
Claim 8: IAC based on trial counsel's withdrawal of a motion for acquittal on the burglary charge.
Claim 9: IAC based on trial counsel's (a) failure to object to the persistent violator enhancement as a double jeopardy violation, and (b) counsel's waiver of a jury trial on that enhancement.
Claim 10: IAC based on trial counsel's failure to challenge Petitioner's prosecution as an equal protection violation.
Claim 11: IAC based on trial counsel's failure to withdraw as Petitioner's attorney.
Claim 12: IAC based on (a) trial counsel's failure to object, on Fifth Amendment grounds, to the prosecutor's cross- examination of Petitioner, and (b) direct appeal counsel's failure to raise this issue on appeal.
Claim 13: IAC based on trial counsel's failure to object to the prosecutor's allegedly misleading and prejudicial statement that mispresented the reasonable doubt standard of proof.[3]
Claim 14: IAC based on trial counsel's failure to impeach Officer Sunada with inconsistent statements as to the amount of money Petitioner was carrying when arrested.
Claim 15: IAC based on counsel's consulting with Petitioner regarding a second preliminary hearing on the misdemeanor theft charge.[4]
Claim 16: IAC based on trial counsel's failure to move to exclude Officer Sunada's testimony at trial on the grounds that the testimony was not admitted at Petitioner's second preliminary hearing.
Claim 17: IAC based on trial counsel's failure to move to dismiss, at Petitioner's second preliminary hearing, on the grounds that (a) there was no probable cause with respect to the burglary charge, and (b) there was insufficient evidence to support the misdemeanor petit theft charge.
Claim 18: IAC based on trial counsel's failure to object to a 12- person jury on the misdemeanor theft charge.
Claim 19: IAC based on trial counsel's failure to file a timely motion to dismiss on speedy trial grounds.

(Dkt. 3, 6, 18.)

         In his Answer and Brief in Support of Dismissal, Respondent argues that (1) Claims 15, 17, and 18 are subject to dismissal for lack of jurisdiction, (2) Claims 1, 2, 9, 10, 12, 13, 16, and 18 are procedurally defaulted, and (3) all of Petitioner's claims fail on the merits. (See Dkt. 14.)


         1.Claims 15, 17(b), and 18 Are Subject to Dismissal for Lack of Jurisdiction

         Respondent asserts that the Court lacks jurisdiction over Claims 15, 17, and 18, contending that these claims all relate to Petitioner's misdemeanor conviction and that Petitioner had fully served his sentence for that conviction prior to filing his Petition.

         Habeas relief is not available if the petitioner is not “in custody pursuant to the judgment of a State court” at the time of the filing of the petition. 28 U.S.C. § 2254(a). This language requires “that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see also Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (“[The petitioner] is no longer serving the sentences imposed pursuant to his 1986 convictions, and therefore cannot bring a federal habeas petition directed solely at those convictions.”).

         Here, Claims 15, 17(b), and 18 all challenge Petitioner's conviction for petit theft.[5]However, because Petitioner had fully served his 365-day sentence for misdemeanor theft before he filed the instant Petition, the Court lacks subject matter jurisdiction over those claims. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990) (“A petitioner who files a habeas petition after he has fully served his sentence and who is not subject to court supervision is not ‘in custody' for the purposes of this court's subject matter jurisdiction.”). Therefore, the Court will dismiss Claims 15, 17(b), and 18.

         Claim 17(a), however, challenges Petitioner's burglary conviction, for which he is still serving his sentence. (Dkt. 3 at 22.) The Court will discuss the merits of Claim 17(a) below.

         2.Procedural Default

         Respondent argues that Claims 1, 2, 9, 10, 12, 13, and 16 are procedurally defaulted and therefore subject to dismissal.[6]

         A. Procedural Default Standard of Law

         A habeas petitioner must exhaust his or her remedies in the state courts before a federal court can grant relief on constitutional claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all his federal claims at least in a petition seeking review before that court. Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts and the legal theories upon which the federal claim is based. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

         The mere similarity between a federal claim and a state law claim, without more, does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). General references in state court to “broad constitutional principles, such as due process, equal protection, [or] the right to a fair trial, ” are likewise insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

         Ordinarily, “a state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). In Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003), the Ninth Circuit held that citing to either a federal or a state case analyzing a federal constitutional issue is considered proper presentation of a federal claim. However, in Casey v. Moore, 386 F.3d 896, 912 n.13 (9th Cir. 2004), the Ninth Circuit clarified that where “the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.” (emphasis added). In Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005), the court further clarified that, “[t]o exhaust his claim, [a petitioner] must have presented his federal, constitutional issue before the [state appellate courts] within the four corners of his appellate briefing.” When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and the state court would now refuse to consider it because of the state's procedural rules, the claim is said to be procedurally defaulted. Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts have rejected a claim on an adequate and independent state procedural ground. Id.; Baldwin, 541 U.S. at 32; Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         To be an “adequate” state ground, a procedural bar must be one that is “‘clear, consistently applied, and well-established at the time of the petitioner's purported default.” Martinez v. Klauser, 266 F.3d 1091, 1093 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is “independent” of federal law if it does not rest on, and if it is not interwoven with, federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).

         B. Petitioner's Initial Post-Conviction Appeal Is the Only Proceeding in which Petitioner Properly Exhausted any of the Claims in the Petition

         Because proper exhaustion requires a complete round of the state's appellate review process, the Court must look to Petitioner's state court appellate proceedings to determine which claims were raised and addressed on the merits in those proceedings.

         Petitioner raised no federal claims on direct appeal. (See State's Lodging B-1, B-3.) Thus, he did not exhaust any ...

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