United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Edward J. Lodge, United States District Judge.
Richard Andrew Hubbard filed a Petition for Writ of Habeas
Corpus challenging his state court conviction. (Dkt. 3.)
Respondent has filed an Answer and Brief in Support of
Dismissal (Dkt. 15), and Petitioner has elected not to file a
reviewed the record in this matter and having considered the
parties' arguments, the Court finds that oral argument is
unnecessary and enters the following Order.
is a convicted sex offender who absconded from parole in
California and moved to Idaho. (State's Lodging A-2, pp.
2-5.) He was required to, but did not, register as a sex
offender in Idaho. (State's Lodging A-1, pp. 4-5.) As a
result, he was charged with one count of failure to register
as a sex offender under Idaho Code §§ 18-8311,
pleaded guilty to the charge. (State's Lodgings A-1, pp.
38-41; A -2, p. 10.) Pursuant to a plea agreement, the
prosecutor made a sentencing recommendation, while Petitioner
argued for a lesser sentence. Idaho Fourth Judicial District
Judge Cheryl Copsey rejected both recommendations and
sentenced Petitioner to five fixed years of incarceration,
with five years indeterminate. (State's Lodging A-2, pp.
filed a direct appeal, raising a double jeopardy claim and an
abuse-of-discretion-in-sentencing claim. (State's Lodging
B-1.) The Idaho Court of Appeals affirmed Petitioner's
sentences, refusing to consider the double jeopardy claim
because it was not preserved in the state district court and
because he still had an avenue of relief open via Rule 35.
(State's Lodging B-4, p. 2.) Petitioner's petition
for review was denied by the Idaho Supreme Court.
(States' Lodgings B-5, B-6.)
next filed a petition for post-conviction relief in the state
district court. He raised the double jeopardy claim again,
together with a claim that his trial counsel was ineffective
for failing to (1) object to erroneous information in the
presentence investigation report; (2) object to Judge
Copsey's allegedly inflammatory comments during
sentencing; and (3) request that Judge Copsey recuse herself
from the sentencing phase due to prejudicial comments and
beliefs. (State's Lodging C-1, pp. 5-6.)
post-conviction case was assigned to the same judge who
presided over the original criminal proceedings, in
accordance with state district court procedures. Petitioner
included in his post-conviction petition a request that Judge
Copsey recuse herself from the post-conviction proceedings.
(Id., p. 7.) He did not file an affidavit stating
the factual grounds for disqualification, as required by
Idaho Rule of Civil Procedure 40(d)(2)(A)(4), nor did he take
steps to obtain and serve a notice of hearing on the
disqualification issue, as required by Rule 40(d)(2)(B).
(See State's Lodging D-4, pp. 2-3.) Judge Copsey
did not rule on the recusal request, but appointed counsel
for Petitioner, and eventually dismissed his petition.
(State's Lodging C-2, pp. 122-129.)
appeal, Petitioner argued that the state district court erred
by failing to rule on the recusal request and dismissing his
double jeopardy claim. (State's Lodging D-1.) The Idaho
Court of Appeals affirmed, holding that Petitioner's
right to be free from double jeopardy was not violated and
that the state district court did not have to rule on the
recusal motion because it was presented in a procedurally
improper manner. (State's Lodging D-4.) The Idaho Supreme
Court denied the petition for review, which marked the
conclusion of Petitioner's state court matters.
(State's Lodgings D-5 and D-6.)
brings two claims in his federal Petition for Writ of Habeas
Corpus. (Dkt. 3.) He asserts that the trial court violated
his double jeopardy rights in sentencing. He also claims that
his trial counsel was ineffective for failing to raise
certain objections and meeting with him only 10 to 15 minutes
at time. (Id.) In his Answer, Respondent asserts
that Petitioner's double jeopardy claim is subject to
denial on the merits, and Petitioner's ineffective
assistance claims are procedurally defaulted and
alternatively subject to denial on the merits.
OF LAW FOR REVIEW OF CLAIMS ON THE MERITS
habeas corpus relief may be granted where a petitioner
“is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
2254(a). Where the petitioner challenges a state court
judgment in which the petitioner's federal claims were
adjudicated on the merits, Title 28 U.S.C.§ 2254(d), as
amended by the Anti-terrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), applies. Title 28 U.S.C.§
2254(d) limits relief 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;
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).
assess whether habeas corpus review is warranted, the federal
district court reviews “the last state-court
adjudication on the merits.” Greene v. Fisher,
565 U.S. 34, 40 (2011). The deferential standard of section
2254(d) applies regardless of whether the state court
decision “is unaccompanied by an opinion explaining the
reasons relief has been denied.” Harrington v.
Richter, 562 U.S. 86, 98 (2011). “When a federal
claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the
contrary.” Id. at 99. When the last
adjudication on the merits provides a reasoned opinion,
federal courts evaluate the opinion as the grounds for
denial. 28 U.S.C. 2254(d).
where the state's highest court did not issue a reasoned
decision, courts within the Ninth Circuit review the decision
of the Idaho Court of Appeals, using the “look
through” principle of Ylst v. Nunnemaker, 501
U.S. 797 (1991), and “presume the higher court agreed
with and adopted the reasons given by the lower court.”
Curiel v. Miller, 830 F.3d 864 (9th Cir.
petitioner 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.
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
the second test, to satisfy the “unreasonable
application” clause of § 2254(d)(1) the petitioner
must show that the state court-although it identified
“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).
federal court cannot grant habeas relief simply because it
concludes in its independent judgment that the state
court's 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
fairminded jurists could disagree on the correctness of the
state court's decision, then relief is not warranted
under § 2254(d)(1). Richter, 562 U.S. at 101.
The Supreme Court emphasized that “even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. (internal
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. 1999). However, circuit law may
not be used “to refine or sharpen a general principle
of Supreme Court jurisprudence ...