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McGiboney v. Yordy

United States District Court, D. Idaho

September 19, 2017

JOSHUA LEE McGIBONEY, Petitioner,
v.
KEITH YORDY, Warden of the Idaho State Correctional Institution, Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Ronald E. Bush United States Magistrate Judge

         Pending before the Court in this habeas corpus action is Respondent's Motion for Summary Dismissal, in which he argues that all of Petitioner's claims are procedurally defaulted. (Dkt. 12.) Petitioner asserts that some of his claims are not defaulted and that other claims should be excused from default. (Dkt. 15.) Also pending is Petitioner's Motion for Discovery for purposes of establishing an exception to procedural default. (Dkt. 16.) The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 11, 19.) See Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (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 concluding that all of Petitioner's claims are procedurally defaulted, but allowing limited discovery for purposes of determining whether cause and prejudice or actual innocence excuses the default. The Court will therefore deny Respondent's Motion for Summary Dismissal without prejudice and will reconsider any renewal of the motion following discovery and supplemental briefing.

         BACKGROUND

         Following a jury trial in the Fourth Judicial District Court in Ada County, Idaho, Petitioner was convicted of (1) robbery, (2) aggravated battery, enhanced for use of a firearm, and (3) burglary, enhanced for use of a firearm. (State's Lodging B-4 at 1.) He was sentenced to concurrent terms of life imprisonment with fifteen years fixed on the robbery count, thirty years in prison with fifteen years fixed on the aggravated battery count, and twenty-five years in prison with fifteen years fixed on the burglary count. (Id. at 2.) Petitioner appealed his sentence, and the Idaho Court of Appeals remanded for a determination of whether the aggravated battery and burglary crimes “arose from an indivisible course of conduct, ” which would reduce the statutory maximum sentence pursuant to Idaho Code § 19-2520E. (Id. at 5.) On remand, the trial court found the conduct to be divisible and reinstated its initial sentences. (State's Lodging C-1 at 311.) Petitioner did not appeal.

         Petitioner then filed a petition for post-conviction relief in the state district court, asserting numerous grounds for relief and requesting DNA testing, under Idaho state law, of several pieces of evidence that had been admitted at trial. Though Petitioner had assistance from his former attorney in preparing the petition, Petitioner filed it pro se.[1] (Id. at 4-15.) Counsel was later appointed to represent Petitioner. The court dismissed the post-conviction petition, and Petitioner appealed. (Id. at 367-76, 389-414, 417-19.)

         Petitioner requested, and was appointed, new counsel on appeal. Petitioner states that he “continually stressed to [post-conviction appellate counsel] that [Petitioner] wanted all of [his] constitutional claims to be preserved for federal habeas corpus review” and that other inmates had told Petitioner to “federalize” his claims. (Dkt. 15-1 ¶ 15.) Petitioner's counsel allegedly told Petitioner that “the DNA issue was a ‘home run' and not to worry about it.” (Id. ¶ 16.) Because he was “still concerned, ” Petitioner asked to see a draft of counsel's opening brief, but the attorney sent Petitioner a copy of the brief only after it had already been filed. (Id. ¶¶ 17-18.) That opening brief raised two claims: (1) that Petitioner was entitled to DNA testing of certain evidence, and (2) that trial counsel rendered ineffective assistance by failing to file a motion to sever the firearm charge from the other charges. (State's Lodging D-1.)

         After briefing was completed, the Idaho Supreme Court assigned the case to the Idaho Court of Appeals. (State's Lodging D-10.) Shortly thereafter, Petitioner, acting pro se, submitted an affidavit to the Idaho Supreme Court. The body of the affidavit makes clear that Petitioner understood that his case had been assigned to the Idaho Court of Appeals for adjudication. (State's Lodging D-4 at 1-2 (referring to the requirement of exhaustion, “to include a request for review [in the state supreme court] should the appellant [sic] court deny my appeal”).) The affidavit requested that, if the court of appeals were to deny relief, the state supreme court take “express notice” that Petitioner wanted the court to hear “all of [the] issues . . . in my post conviction [petition], ” including claims of ineffective assistance of trial counsel, prosecutorial misconduct, abuse of authority of the trial judge, failure to prove the elements of the crime beyond a reasonable doubt, and other constitutional violations. (Id. at 2.)

         Petitioner also stated in the affidavit that he wanted his counsel to amend the appellate briefing. Petitioner stated that he intended to exhaust all of the claims that he would later be asserting in a federal petition for habeas corpus relief. (Id.) Petitioner attached to his affidavit a letter he had written to his attorney, indicating that he desired his post-conviction appeal “to encompass and characterize the validity of all exhibits and issues that was [sic] originally presented to the district court.” (Id., Ex. A at 2.) Petitioner's affidavit was not styled as a motion, nor did the caption of the document otherwise indicate that Petitioner was asking the Idaho Supreme Court to intervene in the case, which was then before the Idaho Court of Appeals, or to take any other action with respect to Petitioner's appeal.

         Either because it had not reviewed the affidavit, or because it did review but did not act on the affidavit, the Idaho Court of Appeals addressed only the two issues presented in the opening brief filed by Petitioner's counsel-DNA testing and trial counsel's failure to file a motion to sever. (State's Lodging D-5.) The court of appeals affirmed the dismissal of the post-conviction petition. (Id.)

         Petitioner's counsel then filed a petition for review with the Idaho Supreme Court, raising only the question of whether Idaho law entitled Petitioner to DNA testing. (State's Lodging D-6.) Counsel's brief in support of the petition for review stated that, in the event the state supreme court granted review, the court should review “all issues raised in the Court of Appeals.” (State's Lodging D-7 at 12.) Petitioner did not file any additional pro se documents, nor did he request permission to file a supplemental pro se brief. The Idaho Supreme Court denied the petition for review. (State's Lodging D-8.)

         Petitioner asserts numerous claims in his federal Petition. Claim I(A) asserts ineffective assistance of trial counsel based on counsel's failure to investigate and present evidence related to the firearm used in the crime, including (i) a thumb print on the magazine of the gun, (ii) DNA testing on the gun, magazine, bullets, and casings, and (iii) the ownership and possession of the firearm. Claim I(B) asserts ineffective assistance of trial counsel for failing to investigate and present corroborating witness testimony, including testimony from (i) Travis Williams, (ii) Darby Lusk, (iii) Brook Holloway, and (iv) Justin Loera. Petitioner's remaining ineffective assistance of counsel claims rely on trial counsel's failure to investigate and challenge an identification of Petitioner (Claim I(C)), failure to move to sever the felon-in-possession charge from the other charges (Claim I(D)), and failure to object during the prosecution's closing argument (Claim I(E)).

         The Petition also asserts violations of due process based on the prosecution's alleged misconduct during closing argument (Claim II) and alleged failure to disclose favorable and material evidence to the defense (Claim III).

         DISCUSSION

         Respondent now argues that all of Petitioner's claims are procedurally defaulted. (Dkt. 12-1.) Petitioner responds by admitting the default of Claim I(A)(ii), Claim (I)(B)(iv), and Claim II, but asserting that an exception to default applies to those claims. Petitioner also contends that his other claims (1) are not procedurally defaulted but were, in fact, fairly presented in state court through Petitioner's pro se affidavit filed in the Idaho Supreme Court, and (2) may be heard on the merits, even if they are defaulted, under the fundamental miscarriage-of-justice exception to default. (Dkt. 15.)

         1. Petitioner's Claims are Procedurally Defaulted

         For the reasons that follow, the Court agrees with Respondent that all of Petitioner's claims are procedurally defaulted.

         A. Standard of Law for Procedural Default

         A habeas petitioner must exhaust his or her 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). To do so, 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 presented all of his federal claims at least in a petition seeking review before that court. Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts and the legal theories upon which the federal claim is based. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

         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) (per curiam). General references in state court to “broad constitutional principles, such as due process, equal protection, [or] the right to a fair trial, ” are likewise insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear that, for proper exhaustion, a petitioner must bring his federal claim before the state court by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).

         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 completely failed to raise a claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to 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).

         To be an “adequate” state ground, a 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 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).

         B. Analysis

         The most straightforward manner in which to resolve the exhaustion and procedural default status of Petitioner's federal claims is to determine which claims were raised and addressed on the merits in the state court appellate proceedings. Because Petitioner did not file an appeal following the initial remand from the Idaho appellate court, no claims were exhausted during the direct appeal process.

         Respondent argues that only a single claim was fairly presented to the Idaho Supreme Court in the petition for review of the Idaho Court of Appeals' decision affirming the dismissal of Petitioner's post-conviction petition. In Petitioner's appellate attorney's brief in support of the petition for review, the only issue raised was whether Petitioner was entitled to DNA testing under Idaho law. (State's Lodging D-7 at 12; State's Lodging D-5 at 4-5.) See also Idaho Code § 19-4902(b) (allowing a request for DNA testing of evidence “that was secured in relation to the trial . . . but which was not subject to the testing that is now requested because the technology for the testing was not available at the time of ...


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