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Hubbard v. Yordy

United States District Court, D. Idaho

October 17, 2017

HOWARD YORDY, Respondent.


          Honorable Edward J. Lodge, United States District Judge.

         Petitioner 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 Reply.

         Having 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.


         Petitioner 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, 18-8307. (Id.)

         Petitioner 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. 29-34.)

         Petitioner 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.)

         Petitioner 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.)

         Petitioner's 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.)

         On 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.)

         Petitioner 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.


         Federal 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; 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).

         To 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).

         However, 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. 2016).[1]

         Where a 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.

         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 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).

         A 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 citation 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. 1999). However, circuit law may not be used “to refine or sharpen a general principle of Supreme Court jurisprudence ...

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