United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY
HONORABLE RONALD E. BUSH CHIEF U.S. MAGISTRATE JUDGE.
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
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
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.
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.)
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.
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.
OF SUMMARY DISMISSAL MOTION
Standard of Law for Dismissal
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.”
Procedural Default Standard of Law
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.
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:
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.
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.
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).
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”).
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).
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).
Petitioner's Presentation of Claims to the State
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.,
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
Claim (1): Due Process
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
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.)
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.
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.”).
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.
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
Claim 2(A): Ineffective Assistance of Trial Counsel
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
Merits Standard of Law
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.
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
Strickland Court outlined how to use the factors of
deficient performance and prejudice to assess an ineffective
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.
U.S. at 690-91.
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.
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.
State Court Action
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.
included only these ineffective assistance claims in his
. His lawyer failed to adequately confer
with him before trial and failed to send an ...