United States District Court, D. Idaho
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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