United States District Court, D. Idaho
ALBERT A. CICCONE, Petitioner,
v.
RANDY BLADES, et al., Respondents.
MEMORANDUM DECISION AND ORDER
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.
BACKGROUND
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.)
STANDARD
OF LAW
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).
DISCUSSION
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 ...