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Creech v. Ramirez

United States District Court, D. Idaho

March 24, 2017

THOMAS EUGENE CREECH, Petitioner,
v.
AL RAMIREZ, Warden, Respondent.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, United States District Court Chief Judge

         Thomas Eugene Creech, the Petitioner in this habeas corpus case, is an Idaho state prisoner under a sentence of death. Currently pending is Petitioner's Motion for Reconsideration (Dkt. 336) of the Court's January 29, 2016 Memorandum Decision and Order (Dkt. 325). In that decision-on remand from the Ninth Circuit-the Court concluded that Martinez v. Ryan, 132 S.Ct. 1309 (2012), did not apply to excuse the procedural default of certain claims of ineffective assistance of trial counsel.

         In his Motion, Petitioner asks that the Court reconsider its Martinez Order on six grounds. First, Petitioner argues that the Court incorrectly articulated and applied the legal standard as to whether post-conviction review counsel performed deficiently during initial-review collateral proceedings. (Dkt. 336-1 at 3-9.)

         Second, Petitioner asserts that the Court's Martinez analysis was incorrect because the Court required a showing of Strickland[1] prejudice from post-conviction review counsel's performance. (Id. at 9-15.)

         Third, Petitioner challenges the Court's determination that he forfeited any Martinez arguments as to the claims set forth in ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q) of Claim 4. (Id. at 15-18.)

         Fourth, Petitioner argues that the Court applied an incorrect legal framework in deciding whether to hold an evidentiary hearing on the applicability of Martinez. (Id. at 19-21.)

         Fifth, Petitioner contends the Court incorrectly determined that the claims set forth in ¶¶ 100(b), (d), (j), (o)(iii), and (o)(iv) of Claim 4 are not fundamentally altered from the claims raised in state court and that, therefore, the claims are not procedurally defaulted and not subject to Martinez. (Id. at 21-79.)

         Sixth and finally, Petitioner asserts that the Court incorrectly denied a certificate of appealability on two issues. (Id. at 79-81.)

         For the reasons that follow, Petitioner's Motion will be denied, and the Court will issue a new judgment in favor of Respondent.

         1.Standard of Law for Reconsideration of Interlocutory Orders[2]

         Federal courts have the “inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (internal quotation marks and emphasis omitted). Although courts have authority to reconsider prior orders, they “should be loath to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.'” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 n. 8 (1983)).

         Although the “the availability of new evidence or an expanded factual record” can, in some circumstances, be a basis to reconsider an interlocutory order, Gray v. Carlin, No. 3:11-CV-00275-EJL, 2015 WL 75263, at *2 (D. Idaho Jan. 6, 2015), a motion for reconsideration should not be used “as a vehicle to identify facts or raise legal arguments which could have been, but were not, raised or adduced during the pendency of the motion of which reconsideration was sought, ” Jones v. Casey's Gen. Stores, 551 F.Supp.2d 848, 854-55 (S.D. Iowa 2008) (internal quotation marks omitted).

         2. Petitioner Has Not Established Extraordinary Circumstances to Justify Reconsideration of the Court's Decision on the Applicability of Martinez

         A. With respect to Claim 4, ¶ 100(a), the Court did not commit clear error in determining that Petitioner's initial post-conviction review counsel (“PCR counsel”) provided objectively reasonable representation under the second prong of Martinez.

         In Claim 4, ¶ 100(a), Petitioner asserted that his counsel's strategy in presenting mitigation evidence at the resentencing proceeding was objectively unreasonable. He claimed that counsel “failed to bring professional skill and knowledge to the proceedings, resulting in the absence of a reliable adversarial proceeding” and that counsel's sentencing presentation “was a disjointed presentation of random reminiscences and unsupported psychological theories.”[3] Though this ineffective-assistance-of-counsel (“IAC”) claim was procedurally defaulted, the Court could still hear the merits of the claim if the Martinez exception applied-that is, if the underlying IAC claim was substantial and if PCR counsel rendered ineffective assistance in allowing the claim to be defaulted.[4] Martinez, 132 S.Ct. at 1315; Trevino v. Thaler, 133 S.Ct. 1911, 1918, 1921 (2013).

         In determining whether PCR counsel rendered deficient performance for purposes of the second Martinez prong, the Court considered what legal standard should apply to the review of PCR counsel's performance-that is, what constitutes objectively reasonable (or unreasonable) representation during an initial-review collateral proceeding? The Court determined that, “in undertaking the Strickland analysis when evaluating PCR counsel's performance under Martinez, a federal court's review must be more deferential than that afforded trial counsel, but less deferential than that afforded direct appeal counsel.” (Dkt. 325 at 26.) The Court then stated that it did not need to define the standard more precisely because, “under any attorney performance standard, ” PCR counsel did not render deficient performance. (Id.) That is, under the standard applicable either to trial counsel or to direct appeal counsel, PCR counsel's performance did not fall below an objective standard of reasonableness.

         Petitioner first takes issue with the Court's conclusion that PCR counsel's performance should be viewed more deferentially than trial counsel's performance, and he then scolds the Court for failing to articulate the standard more precisely, arguing that the Court should have “spell[ed] out exactly where in that gray area the standard lay.” (Dkt. 336-1 at 5.) As to Petitioner's first point, he simply disagrees with the Court's analysis-a matter for appeal, not reconsideration.

         As to Petitioner's second point, the Court declines the invitation to exhaustively articulate the appropriate standard where it is clear that, even under the standard applicable to trial counsel's performance, PCR counsel's failure to include this claim on initial collateral review was not objectively unreasonable. The Court considered cases involving claims of deficient performance of both trial and appellate counsel in its analysis and determined that, under either standard, PCR counsel's performance was not deficient. (Dkt. 325 at 28-29.)

         The Court does not see a problem with that type of analysis. And neither does the Ninth Circuit. See Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016) (“It is not necessary here to delineate precisely what PCR counsel's duties are, and how they are similar to or different from those of trial or appellate counsel. . . . Even if we accept Runningeagle's contention that PCR counsel has a broad duty to investigate and preserve potentially meritorious trial-level IAC claims, Runningeagle simply does not carry his burden to show that [PCR counsel] made errors so serious that he was not functioning as counsel.”) (internal quotation marks and alterations omitted).

         At bottom, Petitioner simply has not rebutted the “strong presumption” that his PCR counsel's failure to include ¶ 100(a) in Petitioner's initial post-conviction petition was the result of a reasonable tactical decision that fell within “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. The Court's decision as to PCR counsel's performance was not clearly erroneous and would not result in manifest injustice. Further, even if the failure to include this claim constituted deficient performance of PCR counsel, Petitioner has not shown a reasonable probability that, but for this failure, Petitioner would have been granted post-conviction relief. (See Dkt. 325 at 29.) Therefore, reconsideration is not warranted.

         B. The Court properly followed Ninth Circuit precedent in requiring that Petitioner establish Strickland prejudice from PCR counsel's performance to satisfy the second prong of Martinez, and its conclusion that Petitioner had not established such prejudice is not clearly erroneous.

         Petitioner renews his argument that he does not need to show prejudice from PCR counsel's performance in order to satisfy the second prong of Martinez-that PCR counsel rendered ineffective assistance in the initial post-conviction petition. However, that argument has been rejected by the Ninth Circuit Court of Appeals.

         The Circuit has held that the second prong of Martinez is not satisfied unless a petitioner shows “not only that PCR counsel performed deficiently, but also that this prejudiced the petitioner, i.e., that there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” Runningeagle, 825 F.3d at 982 (internal quotation marks omitted). See also Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015) (same); Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) (same), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc). The Circuit has explicitly refused to reconsider this standard. See Runningeagle, 825 F.3d at 982 n. 13 (“We decline to revisit the Clabourne/Pizzuto standard.”).

         Despite the fact that Clabourne, Pizzuto, and Runningeagle-all of which describe the second prong of Martinez as requiring Strickland prejudice-were decided before briefing on the Motion for Reconsideration was completed, [5] Petitioner stubbornly clings to the plurality opinion in Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc), in arguing for a different standard.

         The Detrich plurality stated that a prisoner “need not show actual prejudice resulting from his PCR counsel's deficient performance, over and above his required showing that the trial-counsel IAC claim [is] ‘substantial' under the first Martinez requirement”). 740 F.3d at 1245-46 (plurality). However, the Circuit has now definitively resolved the fractured opinions in Detrich and has come to a different conclusion than the Detrich plurality. See Clabourne, 745 F.3d at 377. Though Petitioner argues that Clabourne's analysis of Detrich was incorrect, this Court has neither the authority nor the inclination to change the law as set forth by the Ninth Circuit.[6] Thus, the Court's decision on this issue was not clearly erroneous and did not work a manifest injustice.

         C. The Court did not commit clear error in finding that Petitioner forfeited any Martinez argument as to Claim 4, ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q).

         The Court previously found that Petitioner had not provided specific argument with respect to eleven traditional IAC claims-as set forth in ¶¶ 99(h), 99(j), 100(e), 100(g), 100(h), 100(i), 100(m), 100(o)(i), 100(o)(ii), 100(o)(v), and 100(q) of Claim 4- and one conflict-of-interest claim as set forth in Claim 30. (Dkt. 325 at 11-13.) Therefore, the Court held that Petitioner forfeited any Martinez argument as to those claims.

         Petitioner now challenges the Court's finding that he forfeited Martinez arguments on four of those claims: those set forth in ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q) of Claim 4.[7](Dkt. 336-1 at 15.) These claims were all denied on the merits in state court and in this Court. Petitioner contends that the Court's previous issuance of a certificate of appealability (“COA”)-on the merits of these four sub-claims-equates to a substantiality finding. See Runningeagle, 825 F.3d at 983 (“Martinez suggests, via a ‘Cf.' citation to Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), that the substantiality standard is comparable to the standard for a certificate of appealability to issue under 28 U.S.C. § 2253(c)(2).”). Therefore, Petitioner insists, he reasonably relied on his reference to the COA in his briefing as completely and specifically arguing that the default of these purportedly fundamentally-altered claims is excused by Martinez.

         Petitioner's argument fails for several reasons. First, substantiality is only one of the four prongs of Martinez. Therefore, Petitioner's passing reference to the Court's issuance of a COA, with respect to the merits of the claims in ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q), could possibly have constituted argument only on the first prong of Martinez-a prong that the Court was not necessarily required to even address.[8] See Martinez, 132 S.Ct. at 1319 (“When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.”). In his Martinez briefing, Petitioner all but ignored the prejudice portion of the second prong of Martinez-ineffective assistance of PCR counsel. That Petitioner might have mistakenly believed he did not need to present argument on that prong does not justify reconsideration.

         Second, Petitioner erroneously contends that the Court previously found the claims in ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q) to be procedurally defaulted, and that this conclusion excuses Petitioner's failure to adequately brief Martinez arguments as to these claims. (Dkt. 336-1 at 16-17.) He asserts he “cannot reasonably be blamed for relying on this Court's own previous ruling.” (Id. at 17.) Contrary to Petitioner's contention, however, the Court determined that the claims in ¶ 100(o)-which obviously includes sub-claims (o)(i), (o)(ii), and (o)(v)-and the claim in ¶ 100(q) “were fairly presented to the Idaho Supreme Court and are free of a state procedural bar.” (Dkt. 173 at 13-14 (emphasis added).) The Court's recitation of properly exhausted claims did, indeed, include those at issue in ¶¶ 100(o) and (q), and Petitioner's contrary assertion is inaccurate.[9] (Id.) The state court and this Court both addressed the merits of the claims in ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q). (Dkt. 279 at 22-36.)

         Finally, Petitioner contends he appropriately raised the Martinez issue with respect to ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q) simply by stating that “the majority of the Trial IAC Claims were not presented to the state court and are procedurally defaulted.” (Dkt. 336-1 at 16, citing Dkt. 308 at 4-5.) This argument is frivolous.

         The Court cannot, and will not, assume that a petitioner seeks to excuse the default of an IAC claim under Martinez merely by noting that the claim was defaulted. Martinez is a cause-and-prejudice doctrine. Whether a claim is procedurally defaulted and whether cause and prejudice exist to excuse that default are, quite obviously, two distinct inquiries-that principle has been clear for four decades. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (“[W]e deal only with contentions of federal law which were not resolved on the merits in the state proceeding due to [a petitioner's] failure to raise them there as required by state procedure. We leave open for resolution in future decisions the precise definition of the cause-and-prejudice standard . . . .”) (internal quotation marks omitted). The refusal to acknowledge this longstanding and fundamental principle is akin to a head-in-the-sand approach to lawyering and is most certainly not a basis for reconsideration.[10] Further, as noted above, after Clabourne, Pizzuto, and Runningeagle- all of which were decided before briefing on the instant Motion was completed-it is clear that the default of a substantial claim is not enough to establish prejudice as to the second Martinez prong. Instead, a petitioner must show a reasonable probability of a different outcome in the initial PCR proceedings. Thus, stating that a claim is defaulted, or asserting deficient performance of PCR counsel but not prejudice, does not constitute argument that PCR counsel rendered ineffective assistance.

         The Court need not guess at a litigant's argument, or deem an issue raised when it was not. It remained-at all times-Petitioner's burden to tell the Court which claims he believed were subject to the Martinez exception and why. By failing to do so with respect to the claims in ¶¶ 100(o)(i), (o)(ii), (o)(v), and (q) of Claim 4, Petitioner forfeited his Martinez arguments on those claims. It would have been improper for the Court to usurp the role of ...


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