United States District Court, D. Idaho
JOHNNY R. ANDOE, Petitioner,
v.
RANDY BLADES and HENRY ATENCIO, Respondents.
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 ...