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Johnson v. Blades

United States District Court, D. Idaho

January 9, 2017

ROBERT JOHNSON, Petitioner,
v.
RANDY BLADES, Warden, Respondent.

          MEMORANDUM DECISION AND ORDER

          Edward J. Lodge United States District Judge

         Pending before the Court is Petitioner Robert Johnson's Petition for Writ of Habeas Corpus, and Petitioner's Supplement to that Petition, filed pursuant to 28 U.S.C. § 2254. (Dkt. 3, 11.[1]) The Court takes judicial notice of the records of Petitioner's state court proceedings. See Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

         Petitioner has filed a Motion for Appointment of Counsel, which is now ripe for adjudication. (Dkt. 31.)

         Respondent has filed a Motion for Summary Dismissal, arguing that Petitioner's claims are procedurally defaulted and that many are noncognizable. (Dkt. 20.) Petitioner has filed a response to the Motion, and Respondent has filed a Reply. (Dkt. 24, 28.) Petitioner received permission to file a sur-reply (Dkt. 34), which was due on July 6, 2016. However, Petitioner has not yet filed the sur-reply. Rather, Petitioner filed a Motion for a 60-day Extension of Time, as well as a Motion for Suspension of Case Activity. (Dkt. 36, 40.)

         Because the current record appears sufficient for the Court to enter a final decision, this Memorandum Decision and Order will set forth the Court's preliminary analysis as to the Motion of Summary Dismissal and provide Petitioner with a final opportunity to submit a sur-reply. Accordingly, the Court enters the following Order conditionally granting Respondent's Motion for Summary Dismissal. Petitioner may file a sur-reply within 30 days after entry of this Order, setting forth any reason why the Court should not enter a final dismissal order based on its analysis in this Order. If Petitioner does not file a timely sur-reply, or if the sur-reply fails to alter the Court's analysis in this matter, final judgment will be entered in favor of Respondent.

         BACKGROUND

         In 1994, Petitioner pleaded guilty in the Fifth Judicial District in Gooding County, Idaho, to two counts of first-degree murder.[2] (State's Lodging A-3.) He was sentenced to life imprisonment without the possibility of parole. (State's Lodging A-4.) Petitioner did not file a direct appeal of his convictions or sentence. (Pet., Dkt. 3, at 2.)

         In 1995, Petitioner filed a pro se petition for state post-conviction relief, alleging ten claims of ineffective assistance of trial counsel. (State's Lodging B-1 at 3-8.) An attorney was appointed to represent Petitioner. The trial court dismissed the petition, holding that Petitioner had not alleged sufficient facts that would establish ineffective assistance. (Id. at 71.) The Idaho Court of Appeals addressed all ten claims and affirmed the dismissal. (State's Lodging C-3.) Petitioner did not file a petition for review in the Idaho Supreme Court, and the Idaho Court of Appeals issued the remittitur. (State's Lodging C-4.)

         In July 2009-over a decade later-Petitioner filed a second petition for state post-conviction relief and was later appointed counsel. (State's Lodging D-1 at 1-7.) In support of a motion for discovery, Petitioner submitted an affidavit from his co-defendant, Thomas Peterson. In the affidavit, dated March 10, 2009, Peterson stated that Petitioner was very drunk the night of the murders, “to the point of barely walking, ” and that Peterson threatened to kill Petitioner if he did not do what Peterson said. According to Peterson, he told all of this to the prosecutor before trial but that the prosecutor “had [Peterson] lie by pointing the finger at [Petitioner].” (State's Lodging D-3, Ex. A.) Peterson signed another affidavit in December 2009, stating that the interviews in which he took full responsibility were recorded, but that a police officer removed one of the tapes from the tape recorder “and put it in his shirt pocket.” (State's Lodging D-8 at 3.)

         Based on Peterson's affidavits, Petitioner alleged that the prosecutor withheld evidence of Peterson's statement-including an audio tape-that Peterson was solely responsible for the murders and that, if Petitioner had known of the existence of the evidence, it “would have stopped [Petitioner] from [entering into] a plea agreement” because Petitioner “had not committed a crime” and would have asserted a duress defense.[3] (State's Lodging D-1 at 2.)

         The state district court dismissed the petition, holding that the petition was untimely and barred by Idaho Code § 19-4908, which prohibits the filing of a successive petition unless the petitioner shows a “sufficient reason” why the claims were not asserted or were inadequately raised in the initial post-conviction petition. The court also held that the claims failed on the merits. (State's Lodging D-1 at 26-37.) Petitioner appealed.

         The Idaho Court of Appeals addressed only the timeliness issue, holding that the four months between the date of Peterson's initial affidavit and the date that Petitioner filed the successive petition was not a reasonable time, and that the petition was therefore untimely. (State's Lodging E-5.) Although the Idaho Supreme Court initially granted review, it later dismissed the petition for review as improvidently granted. (State's Lodging E-8, E-11.)

         Petitioner returned to the state district court and filed a third petition for post-conviction relief. (State's Lodging F-1 at 5-10.) The court summarily dismissed the petition. The Idaho Court of Appeals affirmed, concluding that-because the third petition for post-conviction relief raised the same claims as the second petition-the doctrine of claim preclusion (also known as res judicata) barred the third petition. (State's Lodging G-7.) The Idaho Supreme Court denied review. (State's Lodging G-10.)

         In the instant federal habeas corpus petition, Petitioner asserts the following claims:

Claim 1: That the prosecutor committed misconduct and deliberately withheld evidence of a co-defendant's confession, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Claim 2: That the withheld evidence, combined with the prosecutor's threat to seek the death penalty, rendered Petitioner's guilty plea invalid.
Claim 3: That Petitioner received ineffective assistance of post-conviction review counsel, as to attorney Swenson, based on Swenson's failure to disclose the issue of the Brady material.
Claim 4: That Petitioner received ineffective assistance of post-conviction counsel, as to attorney Heida, based on Heida's failure to conduct discovery, to amend the state post-conviction petition, or to present evidence regarding the Brady material.
Claim 5: That the prosecutor committed misconduct and deliberately withheld evidence of a rape examination, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Claim 6: That Petitioner received ineffective assistance of post-conviction counsel, as to attorney Heida, based on counsel's failure to conduct discovery, to amend the state post-conviction petition, or to present evidence of certain information Heida learned during telephone conversations with Petitioner's co-defendant.
Claim 7: That Petitioner received ineffective assistance of post-conviction counsel, as to attorney Heida, based on Heida's failure to conduct discovery, to amend the state post-conviction petition, or to present evidence related to the issue of timeliness.
Claim 8: That Petitioner was denied his right to due process and equal protection as a result of Heida's behavior in the post-conviction review proceeding.
Claim 9: That Petitioner was denied his right to due process and equal protection with respect to the post-conviction review court's imposition of a 42-day time limit to file a successive post-conviction petition.
Claim 10: That Petitioner received ineffective assistance of post-conviction review counsel, as to attorney Heida, based on Heida's failure to pursue an “addition[al] Brady claim.” Claim 11: That Petitioner was denied his right to due process and equal protection when the Idaho Supreme Court determined that there is no right to the effective assistance of post-conviction counsel.
Claim 12: That Petitioner was denied his right to due process and equal protection when the Idaho Court of Appeals misapplied state law principles of claim preclusion on review of Petitioner's third post-conviction petition.
Claim 13: That Petitioner was denied his right to due process and equal protection when the Idaho Court of Appeals and the state district court “ignored facts, information and evidence . . . as to the timeliness of the [second post-conviction] petition.”

(Dkt. 3, 11.)

         The Court previously reviewed the Petition and allowed Petitioner to proceed on his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted in state court or subject to a legal excuse for any failure to exhaust in a proper ...


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