Andoe v. Blades

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge

         On October 17, 2016, the Court entered an Order re-opening this stayed habeas corpus matter. (Dkt. 165.) Petitioner is proceeding on his Amended Petition. (Dkt. 131.) All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 46.)

         Pending before the Court are Respondent's Motion for Summary Dismissal (Dkt. 177), Petitioner's two Motions to Dismiss Respondent's Motion for Summary Dismissal (Dkt. 179, 188), and several other motions filed by the parties. Having considered the parties' arguments and having reviewed the record, including the state court record, the Court concludes that oral argument is unnecessary and enters the following Order dismissing the Petition for Writ of Habeas Corpus with prejudice.

         PRELIMINARY MOTIONS

         After the Court re-opened this case (Dkt. 165), Petitioner filed a second Motion to Lift Stay. (Dkt. 166.) That motion will be deemed moot.

         Petitioner has filed a “Motion to Eliminate from Habeas Corpus Documents, Clerk of Court Mixed into Habeas Corpus.” (Dkt. 169.) Petitioner claims that the Clerk of Court has mixed up documents among his many cases that he is pursuing in this Court. The documents found at Docket Nos. 139 (a motion for injunction against further retaliation) and 164 (a notice of motion that the United States Constitution and the Second Amendment be adhered to by the state of Idaho) were intended for Case No. 1:16-cv-00287-REB, not this habeas corpus case. He contends the misfiling of Docket No. 139 caused the improper dismissal of that case.

         In general, Petitioner asks that any document that does not bear his handwritten notation “Case No. HC-CV-1:13-00526-CWD” be removed from the docket in this case. Petitioner files hundreds of documents each year in a multitude of cases. At times, it is unclear where the filings are intended to go, especially when the filings are not marked with a case number. The Clerk of Court does its best to docket the filings as Petitioner intended; neither the Court nor the Clerk have the time to scrutinize each document filed in this case to remove those not bearing Petitioner's handwritten case numbers. However, Docket Nos. 139 and 164 will be stricken and will not be considered in this case. Given the docket shows that Case No. 1:16-cv-00287-REB has been recently re-opened to permit Petitioner to file an amended complaint (Dkt. 50 in Case No. 1:16-cv-00287-REB), Petitioner can decide whether to re-file these documents in that case.

         Petitioner has filed a “Motion for U.S. Attorney General's Address and to Pull Notice of Appeal to Ninth Circuit.” (Dkt. 172.) The motion has two attachments. The first is a letter to former United States Attorney General Loretta Lynch, stating:

You being a attorney and a public official should know well the U.S. Const., and know that no way do you have a defense or a response to 1:16-cv-00395-REB, Johnny R. Andoe v. Obama, Clinton, Biden, Kerry, 2/3rds of U.S. Senators, Hillary Clinton the baby killer! Man hating, lying witch…. Their is no possible way of winning except to meet with me and come to a agreement in order to get me to withdraw suit, or see me completely exonerated and arrest, conviction, record completely cleared and sealed.

(Dkt. 172-1 (verbatim).) The second is a letter to Hillary Rodham Clinton complaining about her political agenda. (Dkt. 172-2.)

         Petitioner requests that the Clerk of Court provide him with the address of the United States Attorney General or forward his letter to the Attorney General. This letter has no relevance to this habeas corpus action, and bears no case number; therefore, it may have been filed in the wrong case. Regardless, the Court will provide to Petitioner the address of the current Attorney General, Jeff Sessions. To that extent, the Motion is granted. The Attorney General's address is: Office of the Attorney General, 1350 Pennsylvania Avenue N.W. #409, Washington, DC 20004. Petitioner included no requests related to his letter for Mrs. Clinton or to his title to “pull [a] notice of appeal.” Respondent has filed a Motion for Extension of Time, requesting additional time to file a pre-answer motion. (Dkt. 173). Good cause appearing, the Motion will be granted. Petitioner's Motion to Dismiss the Motion for Extension of Time (Dkt. 175) will be denied. No prejudice resulted to Petitioner from the later response by the Attorney General, especially given the unusually large number of filings Petitioner has made in this case.

         Petitioner's Motions to Dismiss Respondent's Motion for Summary Dismissal (Dkt. 179, 188) will be considered as supplemental responses to the Motion for Summary Dismissal. To the extent they appear on the docket as “motions, ” the motions will be denied, because they are responsive in nature.

         Petitioner's Motion to Supplement by Adding Newly Appointed Director of Prisons to Pending Cases before this Court (Dkt. 174) seeks to add the new IDOC Director, Henry Atencio, as a respondent in this case. The motion will be granted. In addition, Respondent has filed a Notice of Substitution of Respondent, adding Randy Blades, Petitioner's current custodian, in place of Keith Yordy, Petitioner's former custodian.

         Petitioner has submitted also a Motion for an Order for No More Submission of Documents. (Dkt. 188.) The Court will deny the Motion as moot, because granting the Motion would result in the striking of many of Petitioner's own filings, and this case is at its end.

         Petitioner requests that the Court lift the case management rule in this case that he be permitted to have only three pending motions before the Court at any time. (Dkt. 199.) This Motion is also moot because this case is at its end.

         Petitioner's Motion to Court to Accept Defendant's Motions of Default as Defendant's Response (Dkt. 200) and Motion to Compel (Dkt. 204) lack an adequate factual or legal basis and, as such, will be denied.

         REVIEW OF MOTIONS FOR SUMMARY DISMISSAL

         1. Factual Background

         Petitioner served in the military and suffered trauma, which may have resulted in post-traumatic stress disorder. Many years later, he married his wife, Joyce. Petitioner presented evidence at sentencing that he and Joyce had been married for seven years. In 2007, Petitioner suffered a shoulder injury, which jeopardized his livelihood. The marriage was more difficult for them to maintain after that point, but they remained in the relationship. (State's Lodging A-2.)

         Throughout their marriage, the couple engaged in unusual sexual activities. (State's Lodging A-3, p. 60-71.) Prior to the evening in question, Petitioner had made and used his own examination table, examined Joyce's breasts and vaginal area, inserted a catheter and tampons into Joyce's vagina, pierced her vagina, and used handcuffs to restrain her. (State's Lodging A-2, A-3.) Petitioner states these activities were efforts to keep their marriage “new and alive, ” and the government had no business intruding into the privacy of their home. (Dkt. 182-2, p. 7.) The record is unclear about which type of acts Joyce fully consented to and which she believed Petitioner was forcing her to do during the couple's history together.

         On December 7, 2009, the Jerome police dispatcher received a 911 emergency call from a female caller, who said something like, “My baby, my baby” and “Jerome, ” and then hung up. The dispatcher eventually traced the call to the house of Petitioner and Joyce, and police officers responded. Upon arrival, police knocked on the door and asked if someone had called 911. Petitioner answered the door, and Joyce came running out of the house saying that she had made the call and that she needed help. Petitioner then went upstairs, retrieved a gun, held it to his head, and engaged in a standoff with the responding police officers. After about a half hour, Petitioner agreed to put down the gun and give himself up. (State's Lodging A-3.)

         Joyce was taken to the emergency room. She told emergency room personnel and police officers that Petitioner had examined Joyce, inserted a catheter and several tampons into her vagina, and pierced her labia and inserted earrings into the piercings, causing bleeding and discomfort. At some point, Petitioner had handcuffed Joyce. At some point, Joyce had expressed her dissatisfaction with what was happening. At her first opportunity after becoming dissatisfied and not being able to disengage from these acts, Joyce dialed 911 to seek help. (State's Lodging A-3.)

         Petitioner was arrested and charged with one count of felony first degree kidnaping, two counts of felony domestic battery, and one count of penetration with a foreign object. (State's Lodging A-1.) On June 7, 2010, the state district court presiding over Petitioner's criminal case ordered Petitioner committed to the custody of the Idaho Department of Health and Welfare for care and treatment at an appropriate facility, based on a psychological assessment that he was not competent to assist counsel in his own defense as to the pending charges. (State's Supplemental Lodging, Dkt. 69, pp. 231-32.) On August 9, 2010, the state district court terminated Petitioner's commitment. (Id., p. 242.)

         On October 26, 2010, upon the advice of counsel, Petitioner entered an Alford plea of guilty to the lesser-included offense of second degree kidnaping and one count of felony domestic battery.^[1] (State's Lodging C-2, pp. 121-122.) The Alford plea was for the purpose of contesting whether Petitioner's handcuffing of Joyce to the bed was consensual. (State's Lodging A-3, pp. 25-26.)

         At the change-of-plea hearing, the state district court made an extensive record of the facts supporting the plea as knowing, voluntary, and intelligent. Petitioner raised no issues of adequate access to his attorney to discuss the law and the facts supporting the charges, of ineffective assistance of counsel, or of inadequate opportunity to review the State's evidence against him. (See State's Lodging A-2.) Petitioner acknowledged that he had a right to withdraw his guilty plea if the sentencing court did not follow the plea agreement, and that he understood that he could not withdraw his plea under any other circumstances. (Id., p. 23.)

         In his allocution, Petitioner stated: “[D]ue to the current situation and what I have learned over the last 14 months, I have actually found that the court no longer cares about the truth as far as regards to the constitution.” (Id., p. 52.) Petitioner also said, “I want the court to know that I was not alone in any of this. I made bad decisions. I made bad actions, but there was a second party involved.” (Id., p. 53.)

         The sentencing court recognized that Petitioner may have thought that some of the sexual acts were consensual, but when Joyce expressed her dissatisfaction, Petitioner should not have continued with the acts that inflicted pain upon her. (Id., p. 55-56.) The court observed, “[W]hile it may very well be true that on the prior occasions when you engaged in this conduct with your wife, …this court can clearly understand how your wife perhaps came to her own breaking point.” (Id., p. 55.)

         The record reflects that some of the acts were nonconsensual. Joyce called 911 after Petitioner pierced her labia. She was “screaming over the telephone for help, ” and ran away from Petitioner, again screaming for help, when police arrived. (Id., p. 44; State's Lodging A-2.) Joyce left the house in a bathrobe, without her much-needed eye glasses, her phone, or shoes. (State's Lodging A-3, pp. 20, 46, 48.) These extreme actions taken to disengage herself from the evening's sexual activities tend to show her lack of consent at some point. In addition, Dr. James Tyson, who completed a mens rea evaluation of Petitioner, reported that “both parties indicated that [Joyce] communicated her displeasure with the [labia] piercing.” (Id., p. 16 (emphasis added). Joyce also reported that she felt she needed to leave before Petitioner followed through with his verbalized plan to pierce her nipples and have her perform oral sex on him. (Id., p. 16.)

         Petitioner alleges that the reason Joyce called 911 was because she and police officers were engaged in a conspiracy to set him up, so that she could gain some advantage in divorce proceedings. However, after reviewing Petitioner's financial assets, the sentencing judge observed, “I frankly don't know what advantage, if any, she could have gained, but based on the financial information I have, there is nothing that she would gain [] financially or otherwise.” (State's Lodging A-3, p. 56.) The record reflects that the parties did divorce, but Joyce gained no benefit. In her victim impact letter, Joyce stated Petitioner's actions and arrest caused her to lose the home she and her husband owned, along with her husband's income, upon which she was dependent. (Id., p. 37.)

         Upon conviction, Petitioner was sentenced to a term of ten years fixed, with ten years indeterminate on the kidnaping charge, and ten years fixed on the domestic violence charge, to run concurrently with the kidnaping sentence. The court retained jurisdiction for 365 days, and placed Petitioner in the therapeutic community rider program. When it was time for the district court to consider Petitioner's progress in the program, that court concluded: “it is apparent that the defendant is unable to comply with the requirements of his programming to address his criminal thinking and behavior as well as his risk to the community based on the psychosexual evaluation prepared for disposition as well as his inability to meaningfully participate in the sex offender assessment group.” (State's Lodging B-4, p. 3.) The state district court then relinquished jurisdiction, and Petitioner was imprisoned.

         After pursuing many state court actions that are more fully described below, Petitioner filed this federal habeas corpus action.

         2. Petitioner's Claims and Summary Dismissal Briefing

         Petitioner's claims are somewhat difficult to decipher, because he has presented some of them in a narrative form. The claims appear to be as follows: “(1) breach of a binding plea agreement; (2) illegally imposing a sentence; (3) failure to allow disclosure to PSI addendum, to correct, refute, or rebut addendum; [and] (4) ineffective assistance of counsel.” (Dkt. 131, p. 1-2.) Claim (4), the ineffective assistance claim, has the following subparts: (a) counsel misled Petitioner in negotiation of the Rule 11 plea agreement, (b) counsel failed to follow Petitioner's instructions at the preliminary hearing ...