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Ashley v. Ramirez

United States District Court, D. Idaho

March 29, 2017

ANTHONY LYNN ASHLEY, Petitioner,
v.
WARDEN RAMIREZ, Respondent.

          MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY DISMISSAL

          HONORABLE RONALD E. BUSH CHIEF U.S. MAGISTRATE JUDGE.

         Pending before the Court is Warden Ramirez's Motion for Summary Dismissal of the Petition for Writ of Habeas Corpus filed by Anthony Lynn Ashley. (Dkt. 12.) The motion is now fully briefed. (Dkt. 14, 15, 16.) All parties who have appeared in this case have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 10.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

         The Court takes judicial notice of the records 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, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

         BACKGROUND

         Carol Smith, who relied on Social Security disability income as a result of epilepsy and other health problems, lived in Boise's North End neighborhood. She was willing to take in anyone in need. All of the following people lived with her for various durations: Petitioner Anthony Ashley, who was Carol's daughter's former significant other, recently released from prison in Arizona; Carol's son-in-law James Allen Creel, who was a fugitive from the law on a DUI conviction; her 16-year-old grandson, Jonathan Smith, who had lived with his grandmother for most of his life; and a man named Lorenzo, whose story is unknown.

         Carol cooperated with Petitioner to be the “straw man” in several gun purchases for him, because, as a convicted felon, he was prohibited from possessing firearms. Petitioner gifted Jonathan a Franchi shot gun, which made Carol uncomfortable. Carol eventually gave police information that Petitioner was a felon in possession of firearms. After police obtained a warrant to search Petitioner's bedroom in Carol's house, they found 18 firearms, over 5, 000 rounds of ammunition, and “dozens of knives” in Petitioner's bedroom. (State's Lodging B-2.) Five of the guns and one knife were identified as weapons stolen from four vehicles parked outside homes in the North End. (State's Lodging A-4, p. 213.)

         In a criminal action in the Fourth Judicial District Court in Ada County, Idaho, Petitioner was convicted by jury of five counts of grand theft by possession of stolen property (guns), with a persistent violator enhancement under Idaho Code §§ 18-2403(4) & 18-2407(1); six counts of unlawful possession of a firearm (five stolen guns gun given to Jonathan) under I.C. § 18-3316; and petit theft by possession of stolen property (knife), under I.C. §§ 18-2403(4) & 18-2407(2). The state district court sentenced Petitioner to prison terms of between one and thirty years. The judgment of conviction was entered on October 26, 2010.

         Petitioner raised an excessive sentence claim on direct appeal. He raised a variety of claims in his post-conviction action, but his petition was summarily dismissed. Petitioner's appeal of his post-conviction dismissal was unsuccessful. The question at hand is whether Petitioner properly exhausted any of his federal claims in his direct appeal or post-conviction action before filing the Petition in this action. The Court also considers the merits of the Petition in the alternative.

         CONSIDERATON OF SUMMARY DISMISSAL MOTION

         1. Standard of Law for Dismissal

         When a petitioner's compliance with threshold procedural requirements is at issue, a respondent may file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus without a formal response from the State when “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

         2. Procedural Default 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.

         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, 518 U.S. at 161-62. 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 writes that a petition is “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”).

         “To qualify as an adequate procedural ground, a state rule must be firmly established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (internal quotation marks omitted). That is, the state 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, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar can be considered adequate even if it is a discretionary rule, even though “the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.” Beard v. Kindler, 558 U.S. 53, 61 (2009).

         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). A rule will not be deemed independent of federal law “if the state has made application of the procedural bar depend on an antecedent ruling on federal law such as the determination of whether federal constitutional error has been committed.” Id. (internal quotation marks and alteration omitted).

         A. Petitioner's Presentation of Claims to the State Courts

         Petitioner filed an initial pro se petition for post-conviction relief. Petitioner was appointed a lawyer, who filed a motion to have the guns released for fingerprint testing, because Petitioner asserted that he had not touched the guns. Initially, that motion was made in the context of the direct appeal. It was renewed in the post-conviction matter when it appeared that the appellate court was not going to act on the motion, because it was a more appropriate topic for post-conviction review. (State's Lodging E-2.) The state district court denied the motion, noting that “fingerprints are probative only of the existence of someone; their absence does not demonstratively show the absence of the individual.” (Id., pp. 15-16.) The state district court also ruled that Petitioner had not shown that testing was necessary for any of his claims. (Id., p. 17.) Petitioner argued that trial counsel should have performed the fingerprint testing, because the guns may have showed fingerprints of the true perpetrator. (Id., p. 26.)

         At oral argument on the summary dismissal motion, Petitioner's counsel noted that his investigation of the case did not uncover any claims or evidence to supplement Petitioner's original pro se petition. (Id., p. 25.) Therefore, counsel did not file an amended petition in the post-conviction matter.

         3. Claim (1): Due Process

         Petitioner's first claim is that he was deprived of his due process rights under the Fifth (via the Fourteenth) Amendment. In his Petition, he asserted no facts to support this claim, but instead stated simply that the supporting facts “are in the transcripts and police reports, and court records.” (Dkt. 3, p. 6.) The Court determined that Petitioner could pursue a due process claim only to the extent that, in his direct appeal or his post-conviction action and appeal, he raised a federal due process claim on a specific set of facts, and pursued the claims through the level of the Idaho Supreme Court.

         Petitioner's post-conviction claims were as follows: “The jury was bias[ed] against me. The judge was bias[ed] against me. The prosecution used false evidence against me. Witnesses lied on the stand.” (State's Lodging E-1, p. 11.) He cited the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. (Id.) To contest various aspects of the trial, Petitioner attached various pages of handwritten notes he took throughout the trial. (Id., pp. 13-53.)

         Petitioner, acting pro se, filed an appeal. He stated in his brief that due process requires an impartial jury and an opportunity to confront the witnesses against him. (State's Lodging F-2.) He cited the same provisions of the Constitution as in his post-conviction petition. In his opening brief, he gave examples of the violations alleged, but he did not specifically explain the basis of any of his claims.

         The Idaho Court of Appeals determined that Petitioner's presentation of his claims was inadequate:

Initially, we note that this Court will not consider an issue not supported by cogent argument or authority. City of Meridian v. Petra Inc., 154 Idaho 425, 450, 299 P.3d 232, 257 (2013). In this appeal, Ashley has not provided any argument as to why the district court erred by summarily dismissing his petition for post-conviction relief. Thus, we need not consider the issue on appeal. Sparks v. State, 140 Idaho 292, 298, 92 P.3d 542, 548 (Ct. App. 2004) (“A party waives an issue on appeal if either authority or argument is lacking.”).

         (State's Lodging A-4, p. 5.) After making this general statement, the Idaho Court of Appeals discussed three claims: the excessive sentence claim and ineffective assistance of trial and direct appeal counsel claims. The Court of Appeals did not discuss a due process claim.

         Nothing in existing case law indicates that when Petitioner's case was decided in 2015, the Idaho appellate courts regularly adjudicated claims unsupported by clear facts and some type of argument, which means that the procedural bar invoked is “adequate” for purposes of federal procedural default purposes. See Liponis v. Bach, 234 P.3d 696, 698 (Idaho 2010) (“Regardless of whether an issue is explicitly set forth in the party's brief as one of the issues on appeal, if the issue is only mentioned in passing and not supported by any cogent argument or authority, it cannot be considered by this Court.”). No federal grounds for the bar are evident; therefore, the procedural rule is also independent. Accordingly, the Court concludes that the due process claim is procedurally defaulted.

         4. Claim 2(A): Ineffective Assistance of Trial Counsel

         Whether Petitioner's ineffective assistance of counsel claims are procedurally defaulted is a closer call. For that reason, the Court also reviews the claims on the merits. See Lambrix v. Singletary, 520 U.S. 518 (1997) (federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits); cf. Franklin v. Johnson, 290 F.3d 1223 (9th Cir. 2002) (“appeals courts are empowered to, and in some cases should, reach the merits of habeas petitions if they are, on their face and without regard to any facts that could be developed below, clearly not meritorious despite an asserted procedural bar”).

         A. Merits Standard of Law

          Here, the ineffective assistance of counsel claims are potentially procedurally defaulted and could be heard de novo if cause and prejudice exists to excuse the default. The Court uses the de novo standard of review for the merits, rather than the more deferential and more difficult standard under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The case of Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective assistance claims. Strickland provides that, to succeed on an ineffective assistance claim, a petitioner must show that (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness, and that (2) the petitioner was prejudiced by the deficient performance. Id. at 684.

         In assessing whether trial counsel's representation fell below an objective standard of competence under Strickland's first prong, a reviewing court must view counsel's conduct at the time that the challenged act or omission occurred, making an effort to eliminate the distorting lens of hindsight. Id. at 689. The court must proceed with the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

         The Strickland Court outlined how to use the factors of deficient performance and prejudice to assess an ineffective assistance claim:

These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

         466 U.S. at 690-91.

         Prejudice under these circumstances means there is a reasonable probability that, but for errors of counsel, the result of the proceeding would have been different. Id. at 684, 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. at 694.

         A petitioner must establish both incompetence and prejudice to prove an ineffective assistance of counsel case. 466 U.S. at 697. On habeas review, the court may consider either prong of the Strickland test first, or it may address both prongs, even if one is deficient and will compel denial. Id.

         B. State Court Action

         Petitioner's second claim is that his trial counsel was ineffective for several different reasons. On initial review in this action, the Court determined that, to the extent Petitioner properly raised these claims in state court, he could proceed on the same claims in this action. That is the threshold question.

         Petitioner included only these ineffective assistance claims in his post-conviction action:

. His lawyer failed to adequately confer with him before trial and failed to send an ...

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