United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge
before the Court is a Petition for Writ of Habeas Corpus,
filed by Idaho state prisoner Pony Leo Jackson
(“Petitioner” or “Jackson”),
challenging Petitioner's state court convictions. (Dkt.
1.) The Court previously dismissed Claims 1, 3, 4, 5, 6, 8,
9, 10, 11, and 16 as procedurally defaulted or
noncognizable. (Dkt. 26.) The remaining claims in the
Petition are now fully briefed and ripe for adjudication.
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged with the Court. See Fed. R. Evid. 201(b);
Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir.
2006). 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 on the remaining claims in the
2008, Petitioner was charged in the Seventh Judicial District
Court in Clark County, Idaho, with two counts of lewd conduct
with a minor under sixteen years of age. The charges stemmed
from conduct that occurred sixteen years earlier when the
victim, K.W., was a four-year-old child. The charges came to
light because, during an investigation into other charges
against Petitioner, a television news report stated that
Petitioner “had been charged with possession of child
pornography and that law enforcement authorities were
requesting contact from anyone who had been victimized by
him.” (State's Lodging B-4 at 1-2.) K.W., then an
adult, learned of the news report and reported the earlier
molestation to police.
was convicted of both counts of lewd conduct and sentenced to
twenty years in prison with ten years fixed.
filed the instant Petition in August 2015. The Court
previously dismissed Claims 1, 3, 4, 5, 6, 8, 9, 10, and
11(b) as procedurally defaulted and Claims 11(a) and 16 as
noncognizable. (Dkt. 26.) The Court reserved its ruling on
whether Claim 14 was procedurally defaulted. (Id. at
11-13.) Therefore, Claims 2, 7, 12, 13, 14, and 15 remain for
the Court's consideration.
12, 13, 14, and 15 assert that the prosecutor committed
misconduct. Claim 12 asserts misconduct based on the
prosecutor's rebuttal argument that allegedly commented
on Petitioner's failure to testify. Claim 13 asserts
misconduct based on the prosecutor's eliciting testimony,
from K.W.'s mother, that she believed her daughter's
allegations against Petitioner. Claim 14 asserts that the
prosecutor committed misconduct (a) by referring, in opening
statement, to the news report appealing to any victims of
molestation by Petitioner and (b) by eliciting testimony from
K.W. that she reported the allegations because of that
report's request that such victims come forward and
notify law enforcement. Claim 15 asserts that, in closing
argument, the prosecutor (a) appealed to the passions and
prejudices of the jury and (b) impermissibly vouched for K.W.
2 and 7 are ineffective assistance claims. Claim 2 asserts
that trial counsel rendered ineffective assistance by failing
to object to the prosecutor's opening statement, which
referenced the news report. Claim 7 asserts that trial
counsel was ineffective in failing to object to the
victim's testimony regarding that report.
CORPUS STANDARD OF LAW
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;
(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).
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.
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).
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.
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).
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).
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).
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).
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.”).
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.
in 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 has explained, Pinholster
“eliminated the relevance of ‘extrinsic'
challenges when … reviewing state-court decisions
under AEDPA.” Murray v. Schriro, 745 F.3d at
999. Therefore, the relationship between § 2254(d)(2)
and § 2254(e)(1) is not entirely clear. However, any
differences between § 2254(d)(2) and § 2254(e)(1)
are rarely 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, 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
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 law 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. Hurles v. Ryan, 752
F.3d 768, 778 (9th Cir. 2014). De novo review is also
required where the state appellate court did not decide a
properly-asserted claim or where an adequate excuse for the
procedural default of a claim exists. Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Dickens
v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc).
considering a habeas claim de novo, a district court may, as
in the pre-AEDPA era, draw from both United States Supreme
Court and 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, 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).
some types of claims “are analyzed under their own
harmless error standards, which can render Brecht
analysis unnecessary.” Jackson v. Brown, 513
F.3d 1057, 1070 (9th Cir. 2008). Ineffective assistance of
counsel claims are included in this category. Musladin v.
Lamarque, 555 F.3d 830, 834 (9th Cir. 2009)
(“[W]here a habeas petition governed by AEDPA alleges
ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), we apply Strickland's prejudice standard
and do not engage in a separate analysis applying the
Petitioner's Prosecutorial Misconduct Claims
touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not
the culpability of the prosecutor.” Smith v.
Phillips, 455 U.S. 209, 219 (1982). The Due Process
Clause guarantees the right to a fair trial, and prosecutors
have a “duty to refrain from improper methods
calculated to produce a wrongful conviction.”
Berger v. United States, 295 U.S. 78, 88 (1935).
However, such methods will warrant habeas relief only if they
“‘so infected the trial with unfairness as to
make the resulting conviction a denial of due
process.'” Darden v. Wainwright, 477 U.S.
168, 180 (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). A court must consider the record as a
whole when making such a determination, because even a
prosecutor's inappropriate or erroneous comments or
conduct may not be sufficient to undermine the fairness of
the proceedings when viewed in context. See United States
v. Young, 470 U.S. 1, 16-17 (1985); Darden, 477
U.S. at 182 (applying Young); see also
Donnelly, 416 U.S. at 647-48 (distinguishing between
“ordinary trial error of a prosecutor” and the
type of “egregious misconduct . . . [that] amount[s] to
the denial of constitutional due process”).
prosecutor “should not use arguments calculated to
inflame the passions or prejudices of the jury.”
Darden, 477 U.S. at 192 (internal quotation marks
omitted). However, a prosecutor's closing argument,
“billed in advance to the jury as a matter of opinion
not of evidence, ” is “seldom carefully
constructed” and may contain “[i]solated
passages” that are “less than crystal
clear.” Donnelly, 416 U.S. at 646-47.
Therefore, a court must not “lightly infer that a
prosecutor intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora of less
damaging interpretations.” Id. at 647.
reviewing prosecutorial misconduct claims under the
“unreasonable application” prong of §
2254(d)(1), the Court must keep in mind that this standard is
a “very general one” that affords state courts
“leeway in reaching outcomes in case-by-case
determinations.” Parker v. Matthews, 567 U.S.
37, 48 (2012) (per curiam) (internal quotation marks and
Claim 12: Rebuttal Argument and Petitioner's Failure to
12 asserts that the prosecutor improperly commented on
Petitioner's exercise of his Fifth Amendment right to be
free from compelled self-incrimination. Every criminal
defendant has a right not to testify, and the Fifth Amendment
“forbids either comment by the prosecution on the
accused's silence or instructions by the court that such
silence is evidence of guilt.” Griffin v.
California, 380 U.S. 609, 616 (1965). Not every comment
relating to the right not to testify violates the Fifth
Amendment, however. The Fifth Amendment is “concerned
only with adverse comment, whether by the prosecutor
or the trial judge”; neutral comments, such as an
instruction by the court that the jury may not infer guilt
from a defendant's silence, do not offend the
Constitution. Lakeside v. Oregon, 435 U.S. 333, 338
(1978). Further, a prosecutor's comments on a
defendant's choice not to testify will not violate the
Fifth Amendment if those comments constitute fair argument
offered in fair response to a defense argument. United
States v. Robinson, 485 U.S. 25, 31-32 (1988).
example, in Robinson, the defendant did not testify.
During closing argument, defense counsel argued that the
government had breached its “duty to be fair” and
had not allowed the defendant to explain himself.
Id. at 27 n.2. The prosecutor then told the jury,
“[Defense counsel] has made comments to the extent the
Government has not allowed the defendant an opportunity to
explain. It is totally unacceptable. . . . He could have
taken the stand and explained it to you, anything he wanted
to. The United States of America has given him, throughout,
the opportunity to explain.” Id. at 28. The
Supreme Court held that the prosecutor's statements,
taken in the context in which they were made, did not violate
the defendant's ent right to be free from compelled
self-incrimination. Id. at 31. The Court determined
that the Fifth Amendment does not “prohibit [a]
prosecutor from fairly responding to an argument of the
defendant by adverting to [the accused's] silence.”
Id. at 34; see also Darden, 477 U.S. at 179
(stating that, when a prosecutor's allegedly improper
comments occur in a rebuttal closing, those comments
“must be evaluated in light of the defense argument
that preceded [them].”).
case, Petitioner did not testify in his own defense. However,
defense counsel elicited testimony, from Detective Steven
Anderson, that Petitioner had previously denied committing
Q. And you had an opportunity to question Pony Jackson?
A. I did.
Q. In fact, you did that with another detective, correct?
Q. And in that interview with Pony Jackson, you asked him,
didn't you, whether he did these things to [K.W.]?
A. Yes, sir.
Q. And his response?
(State's Lodging A-2 at 158-59.)
closing argument, defense counsel stated that Petitioner had
a constitutional right not to testify: “He's not
required to testify. And you cannot take that for anything, a
matter of his guilt or of his innocence. He has a
constitutional right not to be required to take the
stand.” However, referring to the above testimony of
Detective Anderson, counsel continued, “But
[Petitioner] already did testify to the detective; and
again, he denied any of these things ever happened.”
(State's Lodging A-2 at 352-53 (emphasis added).) Defense
counsel's statement that Petitioner testified to
Detective Anderson was incorrect; Petitioner was simply
making an unsworn statement in a police interview when he
denied the allegations.
rebuttal argument, the prosecutor-apparently responding to
defense counsel's mischaracterization of Petitioner's
statements to Detective Anderson as “testimony”-
stated, “Did we hear any testimony that it didn't
happen? I don't recall hearing any testimony that it
didn't happen. The only testimony I recall was that it
happened.” (Id. at 356.) Petitioner argues
that these statements constituted improper comments on
Petitioner's decision not to testify.
Idaho Court of Appeals properly cited Griffin as
setting forth the applicable analysis and rejected
Petitioner's argument. The court held that, in the
context of defense counsel's misstatement that Petitioner
“testified” to the detective, the
prosecutor's reference to the lack of testimony at trial
“can be viewed as fair rebuttal” to that
mischaracterization. (State's Lodging B-4 at 9.) The
prosecutor did not “explicitly call for the jury to
infer that Jackson was guilty or to convict him on that
basis.” (Id.) Rather, the prosecutor's
comment, “given in response to defense counsel's
own improper argument, was at most an indirect and ambiguous
comment on the absence of trial testimony from
asserts that “the only reasonable factual
finding” is that “the prosecutor was commenting
on Mr. Jackson's failure to testify in his case-in-chief
at the criminal trial and deny the conduct alleged.”
(Dkt. 31 at 8.) The Court disagrees. Defense counsel, whether
intentionally or accidentally, mischaracterized
Petitioner's interview statements as
“testimony.” This might have been a mistake, or
it might have been a deliberate attempt to place the
imprimatur of oath-sworn testimony onto Petitioner's
out-of-court denial and to connect Petitioner's denial,
at least in the minds of the jurors, with the same sort of
solemnity as the testimony of a witness at trial. The state
court appropriately evaluated the prosecutor's comments
“in light of the defense argument that preceded”
them. Darden, 477 U.S. at 179. That court's
finding that the prosecutor's attempt to correct defense
counsel's mischaracterization constituted a “fair
respon[se]” to the argument of the defense was
reasonable, Robinson, 485 U.S. at 34, and its
rejection of Claim 12 was a reasonable application of
Griffin and its progeny. See 28 U.S.C.
Claims 13 and 15: Eliciting Testimony of K.W.'s Mother as
to K.W.'s Credibility, Vouching
for K.W. in Closing Argument, and Appealing to the Passions
and Prejudices of the Jury
Claim 13 and 15(b): Eliciting Vouching Testimony by
Witness and Personally Vouching for Witness in
13 asserts that the prosecutor improperly elicited vouching
testimony from K.W.'s mother. Claim 15(b) asserts that
the prosecutor's statements regarding the believability
of K.W.'s story constituted improper vouching.
prosecutor should not vouch for the credibility of a witness
or express a personal opinion about the guilt of the accused.
Young, 470 U.S. at 18. The Supreme Court has
explained that such comments “pose two dangers”:
(1) they “can convey the impression that evidence not
presented to the jury, but known to the prosecutor, supports
the charges against the defendant and can thus jeopardize the
defendant's right to be tried solely on the basis of the
evidence presented to the jury”; and (2) they
“may induce the jury to trust the Government's