United States District Court, D. Idaho
DAVID W. BRUMMETT, Petitioner,
KEVIN KEMPF, Respondent.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
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.)
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
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
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
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
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.)
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.
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.
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.)
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
(Id.) The Idaho Supreme Court denied review.
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.
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
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
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
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
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
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.
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.)
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
15, 17(b), and 18 Are Subject to Dismissal for Lack of
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.
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.”).
Claims 15, 17(b), and 18 all challenge Petitioner's
conviction for petit theft.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.
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)
argues that Claims 1, 2, 9, 10, 12, 13, and 16 are
procedurally defaulted and therefore subject to
Procedural Default Standard of Law
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).
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).
“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).
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).
Petitioner's Initial Post-Conviction Appeal Is the Only
Proceeding in which Petitioner Properly Exhausted any of the
Claims in the Petition
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.
raised no federal claims on direct appeal. (See
State's Lodging B-1, B-3.) Thus, he did not exhaust any