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Grist v. Yordy

United States District Court, D. Idaho

March 28, 2017

HAROLD E. GRIST, JR., Petitioner,
WARDEN YORDY, Respondent.


          B. Lynn Winmill, Chief Judge United States District Court

         Pending before the Court is Petitioner's Second Amended Petition for Writ of Habeas Corpus (Dkt. 16), which is now fully briefed and ripe for adjudication. (Dkt. 22, 23.) The Court takes judicial notice of the record from Petitioner's state court proceedings lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

         Having carefully reviewed the record and considered the arguments of the parties, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.


         Petitioner was convicted of seven counts of lewd conduct with a minor, two counts of sexual battery of a minor, and one count of sexual abuse of a minor after a jury trial in the Second Judicial District Court in Nez Perce County, Idaho. Petitioner's convictions at his first trial were vacated on direct appeal after a finding of error in the admission of improper propensity evidence of prior acts of sexual misconduct against a different victim in State v. Grist, 147 Idaho 49, 205 P.3d 1185 (2009), but he was convicted after a second trial. Petitioner testified at the first trial, but chose not to testify at the second trial.

         After conviction in the second trial, Petitioner filed a direct appeal, State v. Grist, 152 Idaho 786, 275 P.3d 12 (Ct. App. 2012), where the appellate court modified Petitioner's aggregate determinate sentences from 25 years to 15 years, consistent with the sentence he received from the same judge after the first trial. Petitioner then filed a post-conviction action, followed by an appeal, which was unsuccessful. Grist v. State, No. 41409, 2015 WL 738124 (Idaho Ct. App. Feb. 23, 2015).


         Respondent has filed a Motion to Strike Traverse Attachments. (Dkt. 24.) Respondent requests that the Court strike two documents that Petitioner alleges are pages from a juror questionnaire allegedly completed by two different jurors who served on the jury in Petitioner's second trial.[1] (Dkt. 23, pp. 13-15.) Respondent argues that these documents were never presented to the state appellate courts and that they lack sufficient foundation to merit consideration for any purpose.

         Generally, the merits of the claims in a federal habeas corpus petition are decided on the record that was before the state trial and appellate courts. Cullen v. Pinholster, 563 U.S. 170, 180 (2011). If a petitioner desires to bring new evidence on federal habeas review that has not been presented to the state courts, and he failed to develop the factual basis of the claims in state court because of “lack of diligence or some greater fault, attributable to” him or his counsel, then he must meet the requirements of § 2254(e)(2). Williams v. Taylor, 529 U.S. 420, 432 (2000).

         After a review of the record, the Court has determined that it will decide the jury claims (One(a) and Three) on the merits. Petitioner has not sufficiently shown that he is not at fault for failing to develop the facts supporting his claims in state court. Petitioner, therefore, must meet § 2254(e)(2) to be able to bring the jury questionnaires in this action. Section 2254(e)(2) requires that a petitioner show that his claims are based either on a new retroactive rule of constitutional law or on a factual predicate that could not have been previously discovered through the exercise of due diligence, and that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” See § 2254(e)(2)(A)&(B).

         Setting aside Respondent's foundational objections regarding the juror questionnaires, the Court finds it is obvious that the information (whether or not reduced to writing) would have been available to Petitioner directly after trial. Petitioner has provided no explanation why the questionnaires could not have been obtained and presented to the trial court on a motion for a new trial, during Petitioner's investigation of the post-conviction action, or during his counsel's investigation of the post-conviction action. Therefore, Petitioner is not entitled to bring the questionnaires for the first time in federal habeas review, and Respondent's Motion will be granted.

         Petitioner has filed a Request for Clarification. (Dkt. 30.) He does not understand why this case is considered fully briefed if Respondent's Motion for an Extension of Time to File an Answer is still pending. However, that motion was granted many months after it was filed, and by that time, the Reply/Traverse had been filed. Because no other pleadings are permitted, the Petition was then (and is now) fully briefed and ripe for adjudication. That the extension motion was filed with the belated Answer but not granted until after the Answer was filed is of no consequence, because the extension motion was granted in due course, rendering the Answer timely.

         Petitioner has filed a “Motion for Review Informally.” (Dkt. 31.) This document is an unnecessary motion to review another motion found at Docket 32, and it is unclear what Petitioner is requesting when he requests an “informal” review or “informally” requests review, whichever the case may be. All items on the docket are formally reviewed by the Court, and items filed by pro se litigants are liberally construed, to the extent permitted by the law. Because the Court has also reviewed the pending motion at Docket 32, the Court will deem the Motion for Review Informally moot.

         Petitioner has filed an objection to the Order of Reassignment and a Motion to Proceed. (Dkt. 32.) It appears that Petitioner misunderstands the reason and purpose of reassignment. A United States magistrate judge has no authority to enter final orders in cases unless all parties before the Court consent to that jurisdiction. The record reflects that not all parties have filed a consent; therefore, reassignment to a United States District Judge is necessary. Petitioner's objection cites no reason that this Court, in particular, should not hear his case. Petitioner's case has been reassigned for final adjudication- meaning either the granting or the denying of the Second Amended Habeas Corpus Petition. Petitioner's particular arguments about personal and subject matter jurisdiction do not apply, and he is mistaken in his assertion that reassignment has anything to do with the merits of his case. Accordingly, the objection will be overruled and the Motion to Proceed will be granted, to the extent that Petitioner's case is now ready for, and will proceed to, adjudication of the merits of his Petition.


         1. Background

         At the time of the incidents that formed the basis of the criminal charges against Petitioner, J.O. was a ten-year-old minor female, but she did not bring forward her allegations of sexual abuse until after she had reached the age of majority. Petitioner was the boyfriend of J.O.'s mother, Connie, from the time J.O. was nine. J.O. testified at trial that, when she was ten, Petitioner began touching her inappropriately. She told her mother once, but Petitioner denied the allegations, and, for a while, the touching stopped. Petitioner began the behavior again, which continued until J.O. graduated from high school and left home.

         There was little corroborating evidence regarding the sexual misconduct allegations. J.O. and her brother, Jeremy, both testified that on one occasion Jeremy came into the house and saw Petitioner performing a sexual act on J.O. Neither she nor her brother reported anything to their mother. When Jeremy was 18 and was preparing to move into J.O.'s household, J.O. told her mother about the long history of inappropriate behavior for the first time. Petitioner was later charged with seven counts of lewd conduct with a minor under sixteen, one count of sexual abuse of a minor under sixteen, and two counts of sexual battery of a minor sixteen or seventeen. (See State's Lodgings.)

         Petitioner was found guilty by a jury in his first trial, and he was sentenced to fifteen years to life in prison, but his convictions were vacated when the Idaho Supreme Court determined that the district court erred by permitting the State to call the daughter of Petitioner's ex-wife, who testified that, when she was a minor, Petitioner used to touch her breasts and buttocks. The Idaho Supreme Court held that the State should not have been allowed to introduce evidence of prior bad acts that were not relevant to any issue other than propensity. (See State v. Grist, 205 P.3d 1185 (2009).)

         In the second jury trial on the charges involving J.O., Petitioner sought to introduce impeachment evidence that Jeremy had received a felony conviction of theft in the state of Washington between the first and second trials. The district court did not permit Petitioner to use the impeachment evidence, reasoning that the theft conviction had very limited probative value given the limited nature of the testimony that Jeremy would give. Jeremy testified about the one sexual incident at trial. Jeremy also admitted that, the same year Petitioner was charged, he ran up about $2, 000 in phone sex bills on Petitioner's account, which made Petitioner upset.

         J.O. and Jeremy's mother, Connie, testified that, after J.O. accused Petitioner of the wrongful touching initially, Connie spoke to Petitioner, and he said that he was only tickling J.O. and did nothing wrong. Connie did not hear any other reports of sexual abuse until J.O. had reached the age of majority and moved out.

         Petitioner did not testify at trial. A friend of Petitioner testified that Petitioner did remodeling work on her home, and J.O. came with Petitioner about 90 percent of the time, and nothing appeared to be wrong between them. She testified that, when Petitioner was accused of the crimes, he was “very, very emotional, he would talk for a little bit and cry. He was just basically, in [her] estimation, totally distraught and unbelieving.” (State's Lodging C-2.)

         Petitioner was convicted of all counts during the second trial. The court imposed consecutive sentences that added up to ten additional fixed years of confinement than had been meted out in the first sentencing hearing-25 years instead of 15 years. On direct appeal, the Idaho Court of Appeals reduced Petitioner's aggregate set of sentences to the original sentences. (See State's Lodgings.)

         2. Claims Presented

         Petitioner, acting pro se, brings five claims in his Petition for Writ of Habeas Corpus: (1) a claim that (a) the presence on the jury of Juror Hendrickson, who knew Petitioner and Connie, violated his due process and fair trial rights, and (b) his counsel was ineffective for not removing the juror; (2) a claim that the court's use of the psychosexual evaluation from the first trial in the second trial's sentencing proceedings violated his due process rights under the Fifth and Sixth Amendments; (3) a claim that his Sixth Amendment due process and fair trial rights were violated when the juror who knew him communicated extra-record facts to the other jurors; (4) a claim that his trial counsel performed ineffectively by (a) failing to file a meritorious Rule 35 motion and (b) failing to pursue an adequate direct appeal; and (5) a claim that the trial court's failure to permit him to use certain impeachment evidence was contrary to his right to due process and Idaho Rule of Evidence 609.

         3. Procedural Default Issues

         Respondent argues that Petitioner's claims are entirely or partially procedurally defaulted because they were never presented to the Idaho Supreme Court. Petitioner himself prepared the post-conviction petition, a first attorney prepared the reply to the State's motion to dismiss, a second attorney handled the post-conviction evidentiary hearing on the remaining claims, and a third attorney determined what should be presented on appeal. As a result of this frequent “changing of the guard, ” the claims seem to have gone through a metamorphosis during the state court action, depending upon how the attorney interpreted the claims and how the attorney strategically reacted to each court's rulings. Determining the procedural default issues in this case is made somewhat more difficult by the fact that all of Petitioner's claims were not specifically addressed in the state court opinions. The oddities in this case were such that an Idaho Court of Appeals' judge wrote a concurring opinion giving the district court and post-conviction attorneys advice on how to make the process more clear and efficient in future cases. (See State's Lodging F-5, p. 10, Lansing, J., specially concurring.)

         A. Standard of Law

         A habeas petitioner must exhaust his 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). This means that 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 fairly presented all his federal claims at least in a petition seeking review before that court. Id. at 847.

         To fairly present his claims, a petitioner must assert the substance of his claims, including the “operative facts” and “legal principles” underlying each claim, to the state court. Picard v. Connor, 404 U.S. 270, 277-78 (1971). 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). General references in state court to broad constitutional principles, such as due process, equal protection, or the right to a fair trial, without more, are insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). In Duncan v. Henry, the United States Supreme Court clarified that state appellate courts must not be left to guess whether a petitioner is presenting a constitutional issue:

If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

513 U.S. at 356-66.

         Courts of precedent have recognized at least four different ways to properly present a federal claim in state court. The first is to “explicitly” reference specific provisions of the federal Constitution or federal statutes. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001). Proper exhaustion in this manner “demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005); see Johnson v. Williams, 133 S.Ct. 1088, 1095 (2013) (“[A] state court may not regard a fleeting reference to a provision of the Federal Constitution or federal precedent as sufficient to raise a separate federal claim. Federal courts of appeals refuse to take cognizance of arguments that are made in passing without proper development. State appellate courts are entitled to follow the same practice.”).

         The second way to properly present a federal issue in a state court appellate brief is to cite to federal case law that directly supports one's claim. The “citation of irrelevant federal cases does not provide a state court with a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.” Castillo v. McFadden, 399 F.3d at 1001.

         The third way is to cite “state cases involving the legal standard for a federal constitutional violation, ” rather than to cite a specific constitutional provision. Castillo v. McFadden, 399 F.3d at 999; see Johnson v. Williams, 133 S.Ct. at 1094 (“there are circumstances in which a line of state precedent is viewed as fully incorporating a related federal constitutional right”). To satisfy the exhaustion requirement, the state cases cited must “engage[] in a federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005).

         A fourth way to accomplish proper exhaustion is to “refer[] to a state constitutional right when the contours of the federal and state constitutional rights are identical.” Sanders v. Ryder, 342 F.3d 991, 1000-01 (9th Cir. 2003). Where the state courts have held that the right under the state constitution is coextensive with the federal constitutional right, and have analyzed both types of claims under federal standards, the federal aspect of the claim is considered properly presented to the state courts, so long as there is nothing in the briefing suggesting that the petitioner meant to allege “specifically, ” “consistently, ” and “exclusively” a violation of his state constitutional right. Sanders, 342 F.3d at 999 (citing Peterson v. Lampert, 319 F.3d 1153, 1157 (9th Cir. 2003) (en banc)).

         When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and it is clear that 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 v. Netherland, 518 U.S. 152, 161-62 (1996). Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts (as discussed directly above); (2) when a petitioner has completely failed to raise a claim before the Idaho courts; and (3) when the Idaho courts have rejected a claim on an adequate and independent state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         In Loveland v. Hatcher, 231 F.3d 640 (9th Cir. 2000), the Court explained that “if it is unclear whether the state court dismissed the petition because of a state law procedural default or on the merits of the petitioner's federal constitutional claims, a federal court may review the merits of the claims presented.” Id. at 643 (emphasis in original) (citing Siripongs v. Calderon, 35 F.3d 1308, 1371 (9th Cir. 1994)). If a state court concluded that a petition was “denied both for reasons of procedural default and on the merits, ” as in Siripongs, then that is not a clear expression of procedural bar and the federal court may review the merits of the claim. Loveland, 231 F.3d at 643. However, if a state court “independently stated that [the] petition was procedurally barred because it was untimely and then separately concluded that [the] claims were without merit, ” the decision is considered a clear expression of state procedural bar, which, if adequate and independent, will preclude federal habeas review. Id. at 643-44; see also Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (even if a state court reaches the merits of a federal claim in the alternative, federal review is barred “as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision”).

         B. Claim One(a), Three, and One(b)

         Petitioner brings three related claims regarding Juror Hendrickson: Claim One(a), that the presence on the jury of Juror Hendrickson served to “bias” the trial, violating Petitioner's due process rights; Claim Three, that his Sixth Amendment due process and fair trial rights were violated when Juror Hendrickson communicated extra-record factual allegations to the other jurors; and One(b), that trial counsel was ineffective for failing to strike Juror Hendrickson from the jury.

         It was established during voir dire that Juror Hendrickson knew Petitioner because Hendrickson had sold Petitioner construction supplies in the past, and that Hendrickson had worked at the same supply company with, but in a different department than, the victim's mother. After assuring the court and counsel that his knowledge would not affect his impartiality, Juror Hendrickson was permitted to remain on the jury.

         Petitioner raised this claim in his post-conviction action in a manner consistent with Claim One(a) in the federal Petition, that Petitioner's due process rights were violated by Hendrickson's presence on the jury because of Hendrickson's familiarity with Petitioner and the victim's mother. Petitioner made a reference to the Sixth Amendment in his state post-conviction petition, but not to any particular clause. Nothing in his claim suggested that he was making an ineffective assistance of counsel claim regarding Juror Hendrickson under the Sixth Amendment; rather, from the context of the claim, it appeared that Petitioner was citing to the Sixth Amendment clause that a criminal defendant has a right to be tried by “an impartial jury.” (State's Lodging E-1, p. 2.) In reply to the State's motion, Petitioner's first post-conviction attorney raised for the first time the issue of whether Hendrickson did anything to “poison the well in the jury room with his knowledge or the petitioner” (which corresponds to Claim Three here). In addition, the first attorney mused, almost as an afterthought: “To some extent, this issue can be viewed as one of ineffective assistance of counsel” (which corresponds to Claim One(b) here) (State's Lodging E-1, p. 54.)

         The trial court granted the motion for summary dismissal as to the Juror Hendrickson claim on two grounds: “This is an issue that was appropriate for review on direct appeal. Further this is not an issue for which there is a substantial factual showing that the Petitioner's assertions raise a substantial doubt about the reliability of the findings of guilt in this case.” (State's Lodging E-1, p. 5.) The state district court cited to case law governing the issue of jurors who were already familiar with the facts of a case when called to jury duty, including a state case relying on Irvin v. Dowd, 366 U.S. 717 (1961), and the court analyzed Hendrickson's responses during voir dire. (Id., pp. 5-6.)

         On post-conviction appeal, Petitioner raised two claims related to Juror Hendrickson. First, Petitioner asserted that the state district court erred procedurally by dismissing the claim on a basis not asserted by the State-that the claim should have been raised on direct appeal. (This claim corresponds to no claim in the federal petition, because it is a state-law argument.)

         Second, Petitioner asserted on appeal that the state district court applied the wrong standard to the merits analysis of Juror Hendrickson's participation on the jury, thus denying Petitioner due process of law; this claim was based on the proposition that the due process claim “could only be proven if he could establish that Mr. Hendrickson influenced the jury through introduction of extraneous prejudicial information.” Petitioner cited to United States v. Keating, 147 F.3d 895 (9th Cir. 1998), which held that “when a juror communicates objective extrinsic facts about the defendant to other jurors, the juror becomes an unsworn witness within the meaning of the Confrontation Clause.” Id. at 899. (State's Lodging F-2, p. 9.)

         At that point in the state proceedings, Petitioner's second attorney had transformed the claim from a Claim One(a) theory to a Claim Three theory; that is, Petitioner's original claim in the post-conviction petition was not that Hendrickson communicated extra-record evidence to other jurors (Claim Three here), but simply that Hendrickson's previous knowledge affected his own ability to be impartial (Claim One(a) here). The state district court did not call for a formal amendment of the pleadings, nor did the appellate court identify the slightly different claim as procedurally barred for failure to present it that way to the state district court. There is no indication in the record that the Idaho Court of Appeals rejected this claim on a procedural ground.

         The claim simply was not mentioned in the opinion, even though it is clear from Petitioner's opening appellate brief that the third attorney was contesting both the procedural aspect (a non-claim here) and the merits-based aspect (Claim Three here) of the state district court's dismissal of this claim:

The district court not only summarily dismissed [Petitioner's] due process claim without proper notice; the court also dismissed the claim based upon the wrong standards. The district court dismissed the claim because it concluded that the claim should have been raised on direct appeal and because it concluded that [Petitioner] had failed to raise a substantial doubt about the ...

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