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Ciccone v. Blades

United States District Court, D. Idaho

September 29, 2017

ALBERT A. CICCONE, Petitioner,
RANDY BLADES, et al., Respondents.


          Honorable Candy W. Dale United States Magistrate Judge

         Pending before the Court is an Amended Petition for Writ of Habeas Corpus filed by Petitioner Albert A. Ciccone (“Petitioner” or “Ciccone”). (Dkt. 9.) The Amended Petition is now fully briefed and ripe for adjudication. (Dkts. 14, 20, 21.) The Court takes judicial notice of the record from Petitioner's state court proceedings that has been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

         All parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Dkt. 23.) Having carefully reviewed the record in this matter, including the state court record, the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying habeas corpus relief.


         1. State Court Proceedings

         “On October 16, 2003, Petitioner struck his pregnant wife with his car, killing her and the unborn fetus.” (State's Lodging C-9 at 1.) In a criminal action in Elmore County, Idaho, Petitioner, a member of the United States Air Force, “was charged with two counts of first-degree murder-one count for his wife and one count for the unborn fetus.” (Id.)

         Following a continuance of approximately five and one half months from the original trial date, Petitioner's trial began on January 4, 2005. The jury found Petitioner guilty of the first-degree murder of his wife, and second-degree murder of her unborn fetus. The court imposed a fixed life sentence for the first-degree murder, and a fifteen-year fixed sentence for the second-degree murder. (Id.)

         Petitioner's counsel filed a notice of appeal too late, and the direct appeal was dismissed. Petitioner's direct appeal rights were reinstated on initial post-conviction review. (State's Lodgings C-1 at 16-19; D-1 at 18-19.) Petitioner then pursued a direct appeal, raising three claims: (1) prosecutorial misconduct in closing argument; (2) a statutory and constitutional speedy trial violation; and (3) an excessive sentence under Idaho law. (State's Lodging C-2.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State's Lodgings C-9, C-12.)

         Petitioner then filed a successive post-conviction action, asserting numerous claims of ineffective assistance of trial and direct appeal counsel. (State's Lodging D-1 at 17-29.) The successive post-conviction action was dismissed after an evidentiary hearing. (State's Lodging D-1 at 160-79.)

         Petitioner raised one issue on appeal of the dismissal of the post-conviction action-that his trial counsel was ineffective in failing to present a psychological evaluation at sentencing. (State's Lodging E-1 at 2.) The Idaho Court of Appeals affirmed the conviction, and the Idaho Supreme Court denied review. (State's Lodgings E-4, E-7.)

         2. The Instant Federal Petition

         Petitioner filed his initial federal petition in this case in October of 2013, and the case was stayed pending completion of Petitioner's successive post-conviction proceedings. (Dkt. 6.) Once those proceedings concluded, Petitioner filed his Amended Petition, and this case was reopened. (Dkt. 9, 10.)

         Petitioner asserts the following claims in the Amended Petition. Claim A asserts that Petitioner's rights to a speedy trial-under (i) Idaho state law and (ii) the federal Constitution-were violated by the trial court's decision to continue the trial until January 2005. (Am. Pet., Dkt. 9, at 6-7.) Claim B assets that the prosecutor committed misconduct during closing argument by commenting on Petitioner's silence and by “asking the jury to convict . . . based on sympathy for the victim.” (Id. at 7.) In Claim C, Petitioner contends that the trial court abused its discretion by imposing an excessive sentence. (Id. at 9-10.) Claim D alleges that the Idaho Supreme Court violated Petitioner's right to due process by requiring him to file his appellate brief before he received all of the trial transcripts. (Id. at 10-11.) And in Claim E, Petitioner asserts that trial counsel was ineffective by failing to submit a psychological evaluation at sentencing. (Id. at 11-13.)


         Federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment when the federal court determines that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances where the state court's adjudication of the petitioner's claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In determining whether a petitioner is entitled to habeas relief, a federal court reviews the state court's “last reasoned decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

         When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the “contrary to” test and the “unreasonable application” test.

         Under the first test, a state court's decision is “contrary to” clearly established federal law “if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). Under the second test, to satisfy the “unreasonable application” clause of § 2254(d)(1) the petitioner must show that the state court-although identifying “the correct governing legal rule” from Supreme Court precedent-nonetheless “unreasonably applie[d] it to the facts of the particular state prisoner's case.” Williams (Terry) v. Taylor, 529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis omitted).

         A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; rather, the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that fair-minded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has emphasized that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. To be entitled to habeas relief under § 2254(d)(1), “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         AEDPA deference is required even where the state court denied a petitioner's claim without expressly addressing it. In such a case, the federal court must “conduct an independent review of the record to determine what arguments or theories could have supported the state court's decision”; the court must then determine “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a decision of the Supreme Court.” Bemore v. Chappell, 788 F.3d 1151, 1161 (9th Cir. 2015) (internal quotation marks and alterations omitted).

         Though the source of clearly established federal law must come only from the holdings of the United States Supreme Court, circuit precedent may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). However, circuit law may not be used “to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

         As to the facts, the United States Supreme Court has clarified “that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014).

         Two separate statutory subsections govern a federal court's review of state court factual findings. When a petitioner contests the reasonableness of the state court's factual determinations based entirely on the state court record, a federal court must undertake a § 2254(d)(2) analysis. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). There are two general ways to challenge factual findings as unreasonable under § 2254(d)(2). “First, a petitioner may challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record. Second, a petitioner may challenge the fact-finding process itself on the ground that it was deficient in some material way.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012) (internal citations omitted).

         To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court decision was based upon factual determinations that were “unreasonable . . . in light of the evidence presented in the State court proceeding.” A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.”).

         Under the second subsection dealing with state court factual findings, 28 U.S.C. § 2254(e)(1), such findings are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. In Taylor v. Maddox, the Ninth Circuit held that “the presumption of correctness and the clear-and-convincing standard of proof [as set forth in § (e)(1)] only come into play once the state court's fact-findings survive any intrinsic challenge [under § (d)(2)]; they do not apply to a challenge that is governed by the deference implicit in the ‘unreasonable determination' standard of section 2254(d)(2).” 366 F.3d at 1000.

         However, in Cullen v. Pinholster, the United States Supreme Court held that new evidence introduced in federal court “has no bearing” on a merits review of a state court's legal conclusions; therefore, a petitioner cannot receive a federal evidentiary hearing on the merits of any claims that the state court has addressed unless the factual findings of the state court are unreasonable. 563 U.S. at 185. As the Ninth Circuit explained in Murray v. Schriro, the Court in Pinholster “eliminated the relevance of ‘extrinsic' challenges when … reviewing state-court decisions under AEDPA.” 745 F.3d at 999. Therefore, the relationship between § 2254(d)(2) and § 2254(e)(1) is not entirely clear. However, any differences between the two subsections are rarely, if ever, determinative. See Wood, 558 U.S. at 304-05 (“Because the resolution of this case does not turn on them, we leave for another day the questions of how and when § 2254(e)(1) applies in challenges to a state court's factual determinations under § 2254(d)(2).”); Murray v. Schriro, 745 F.3d at 1001 (“[W]e do not believe the difference between our two lines of cases is determinative in this case, and thus we need not resolve the apparent conflict to decide this case.”).

         If a petitioner satisfies § 2254(d)-either by showing that the state court's adjudication of the claim was contrary to, or an unreasonable application of Supreme Court precedent or by establishing that the state court's factual findings were unreasonable-then the federal habeas court must review the petitioner's claim de novo.[1]Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014).

         When considering a habeas claim de novo, a district court may, as in the pre-AEDPA era, draw from both United States Supreme Court as well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even under de novo review, however, if the factual findings of the state court are not unreasonable under § 2254(d)(2), the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167-68. Contrarily, if a state court factual determination is unreasonable, the federal court is not limited by § 2254(e)(1) and may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d at 1000.

         Even if a petitioner succeeds in demonstrating a constitutional error in his conviction, he is entitled to federal habeas relief only if the petitioner “can establish that [the error] resulted in ‘actual prejudice.'” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under the Brecht standard, an error is not harmless, and habeas relief must be granted, only if the federal court has “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).


         1. Petitioner Is Not Entitled to Relief on Claim A

         Claim A asserts speedy trial violations under both state and federal law.

         A. Claim A(i): State Law Speedy Trial Right

         Claim A(i)-which relies on Idaho state law-is not cognizable in this federal habeas action. As explained in its previous Order reopening this case (Dkt. 10 at 3), violations of state law are not cognizable on federal habeas review. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). Thus, Petitioner is not entitled to relief on this claim.

         B. Claim A(ii): Sixth Amendment Speedy Trial Right

         Claim A(ii) asserts a violation of Petitioner's right to a speedy trial under the United States Constitution.

         i. Clearly-Established Law

         The Sixth Amendment guarantees every defendant the right to a speedy trial. The Supreme Court has described the right as “generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” Barker v. Wingo, 407 U.S. 514, 519 (1972). The speedy trial right exists to safeguard the rights of the defendant, but there is also “a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Id. The right is “necessarily relative, . . . consistent with delays[, ] and depends upon circumstances.” Id. at 522 (internal quotation marks omitted).

         The “amorphous” right to a speedy trial is not subject to rigid analysis, but, rather, must be considered by applying a balancing test. Id. at 522, 530. A court must consider four factors in considering whether a habeas petitioner has established a speedy trial violation: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) prejudice to the defendant. Id. at 530-32. These factors are related “and must be considered together with such other circumstances as may be relevant.” Id. at 533.

         The fourth factor, prejudice to the defendant, “must be considered in the light of the interests the speedy trial right was designed to protect: ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.'” United States v. MacDonald, 435 U.S. 850, 858 (1978) (quoting Barker, 407 U.S. at 532). The limitation on the defendant's ability to mount a defense is the “most serious, ” because it “‘skews the fairness of the entire system.'” Id. at 858 (quoting Barker, 407 U.S. at 532).

         ii. The Decision of the Idaho Court of Appeals

         The charges against Petitioner were filed on January 27, 2004. (State's Lodging A-1 at 60-61.) On July 16, 2004, four days before trial was initially set to begin, the prosecution moved for a continuance, “assert[ing] that several witnesses were military personnel assigned to temporary duty (TDY) outside the state and were unavailable for trial.” (Id. at 63, 66; State's Lodging C-9 at 2.) Petitioner objected. After a hearing, and after considering the Barker factors set forth above, the trial court granted the motion to continue and reset the trial for January 4, 2005. (State's Lodging A-7 at 1-32.)

         The Idaho Court of Appeals affirmed, concluding that the Barker factors weighed against finding a speedy trial violation. As to the first factor, the court found that the length of delay was not unreasonable:

As Ciccone points out, when his trial began on January 4, 2005, it was nearly twelve months from when the information was filed. This delay is not as significant, given that the nature of the charges Ciccone was facing-two counts of first degree murder-can be fairly characterized as complex. Compare [State v.] Davis, [141 Idaho 828');">141 Idaho 828, 837, 118 P.3d 160, 169 (Ct. App. 2005)] (concluding that a DUI charge arising out of a traffic stop could not be characterized as complex), and State v. Moore, 148 Idaho 887, 902, 231 P.3d 532, 547 (Ct. App. 2010) (same), with [State v.] Lopez, [144 Idaho 349');">144 Idaho 349, 353, 160 P.3d 1284, 1288 (Ct. App. 2007)] (concluding a seventeen-month delay was unreasonable because “the record on appeal shows no difficulty with complexity of investigation, lost witnesses, trouble marshalling evidence, or any other mitigating circumstance justifying the delay”). Here, the severe nature of the alleged offenses required more time than that of a non-complex case. In addition, witnesses were unavailable, the defense did not provide an expert's curriculum vitae until after the State requested a continuance, and the Air Force procedures and protocol provided complications that all added to the length of the delay.

(State's Lodging C-9 at 9.)

         As for the second Barker factor, the reason for the delay, the court of appeals held that the unavailability of witnesses, as well as the fact that a branch of the military was also investigating the case, weighed against a finding of a speedy trial violation:

Ciccone argues that the State has not demonstrated that the witnesses were truly unavailable. A witness being unavailable for trial due to active military service is a good reason for delay. See, e.g., Bell v. State, 287 Ga.App. 300, 651 S.E.2d 218, 219-20 (2007) (reason for the delay was sufficient when witness was unavailable because she was on active duty as a member of the armed forces and was serving in Iraq); People v. Chardon, 83 A.D.3d 954, 922 N.Y.S.2d 127, 128-29 (2011) (holding that a “subsequent period between June 8, 2005, and July 7, 2005, were attributable to exceptional circumstances and, therefore, excludable [ ], since the complainant was deployed for military service in Korea”); Commonwealth v. Hyland, 875 A.2d 1175, 1190-92 (Pa. Super. Ct.2005) (“The Commonwealth cannot be held to be acting without due diligence when a witness becomes unavailable due to circumstances beyond its control. Certainly, [a witness's] deployment to the Middle East was a matter over which the Commonwealth had no control.”); Kelley v. Commonwealth, 17 Va.App. 540, 439 S.E.2d 616, 619 (1994) (“the Commonwealth was justified in requesting a continuance for the period in which [ ], their primary witness, was called to military duty in the Persian Gulf”).
Ciccone also argues that the State negligently waited for the Air Force to conclude its investigation, which caused the subpoenas to be sent in June. The Air Force investigation contained a witness list that the State used to prepare for trial. All of the witnesses in the report were Air Force members. Although waiting for the conclusion of the investigation pushed the State to the discovery deadline, the list was given to defense counsel before the deadline date. The State waiting for the conclusion of the Air Force investigation was reasonable, given the unique circumstances of the military community and military procedures.

(Id. at 8 (alterations in original).)

         The court found that the third factor weighed in favor of finding a speedy trial violation because Petitioner asserted his speedy trial right in response to the ...

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