United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B.
LYNN WINMILL, CHIEF U.S. DISTRICT COURT JUDGE
Pending
before the Court is a Petition for Writ of Habeas Corpus
filed by Idaho state prisoner Mark Lee Ellis
(“Petitioner” or “Ellis”),
challenging Petitioner's state court convictions. (Dkt.
1.) Respondent has filed a Motion for Summary Dismissal,
arguing that two of Petitioner's claims are procedurally
defaulted and that the other two are not cognizable in this
federal habeas action. (Dkt. 10.) The Motion is now ripe for
adjudication.
The
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. (Dkt. 9.) See Fed. R. Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th
Cir. 2006).
Having
carefully reviewed the record, including the state court
record, the Court finds that oral argument is unnecessary.
See D. Idaho L. Civ. R. 7.1(d). Accordingly, the
Court enters the following Order (1) granting in part
Respondent's Motion for Summary Dismissal, (2) dismissing
Claims 1 and 3 with prejudice as noncognizable, and (3)
allowing Petitioner 28 days to establish a legal excuse for
the procedural default of Claims 2 and 4.
BACKGROUND
The
facts underlying Petitioner's conviction are set forth
clearly and accurately in State v. Ellis, Docket No.
39226, Op. 51 (Idaho Ct. App. Sept. 19, 2013) (unpublished),
which is contained in the record at State's Lodging B-5.
The facts will not be repeated here except as necessary to
explain the Court's decision.
In the
Fourth Judicial District Court in Ada County, Idaho,
Petitioner was charged with ten counts of possession of
sexually exploitative material. Petitioner entered a
conditional guilty plea to two counts, reserving his right to
appeal the denial of his motion to suppress evidence.
(State's Lodging B-5 at 2.) In exchange, the State
dismissed the remaining charges, as well as a sentencing
enhancement based on Petitioner's previously having
committed a registrable sex offense. (State's Lodging A-1
at 165-66, 204-11.) Petitioner received a unified sentence of
ten years in prison with five years fixed on one count, and a
consecutive indeterminate sentence of five years on the other
count. (Id. at 218-20.)
On
direct appeal, Petitioner argued that the trial court should
have granted his motion to suppress, relying in part on
United States v. Jones, 565 U.S. 400
(2012)[1]; Petitioner also asserted that he had not
waived his Fourth Amendment rights as part of his parole
agreement and that any such waiver was unenforceable once
Petitioner was arrested. (State's Lodging B-1, B-3.) The
Idaho Court of Appeals affirmed, and the Idaho Supreme Court
denied review. (State's Lodging B-5, B-8.)
Petitioner,
acting pro se, then filed a state petition for
post-conviction relief, arguing that he received ineffective
assistance of trial counsel based on counsel's alleged
(a) failure to “give an argument” on the motion
to suppress or call witnesses on Petitioner's behalf, (b)
allowing an intern to “write motions, work on [his]
case and negotiate [the] plea agreement, and (c) failure to
allow Petitioner “to see [his] complete discovery,
evidence used against [him] or to review [his] pre-sentence
investigation.” (State's Lodging C-1 at 4-5.)
Petitioner also claimed that his guilty plea was not knowing
and voluntary because Petitioner “was unable to review
[his] full discovery or pre-sentence investigation.”
(Id. at 3.) The state district court denied
Petitioner's request for appointment of counsel and later
dismissed the petition. (Id. at 16-21, 81-98,
115-19.)
Petitioner
appealed, and his request for appointment of counsel on
appeal was denied. (Id. at 133.) Petitioner's
opening brief on appeal did not include any substantive
argument. Petitioner indicated that he did not have notice of
when the brief was due in time to prepare it adequately;
instead, Petitioner attached his trial court brief and
affidavit, stating,
Since now I do not have time to complete a new brief, the
fact that I do not know what I am doing in relation to legal
paperwork of any kind, and the issues are the same, I am
resubmitting my two prior briefs presented to the district
court as my appellant's brief.
(State's Lodging D-1.)
In
opposition, the State argued that Petitioner had failed to
present any issue for the Court of Appeals' consideration
because he did not include any authority or argument in his
appellant's brief. (State's Lodging D-2 at 8-9.) The
State also asserted, generally, that the dismissal of the
petition should be affirmed on the merits, but merely adopted
the state district court's analysis as the State's
argument on this issue. (Id. at 9.)
The
Idaho Court of Appeals declined to address the merits of any
claims in the post-conviction appeal, concluding as follows:
Ellis has failed to present any issue on appeal, offer any
argument or authority, or assign any specific error to the
district court related to the dismissal of Ellis's
post-conviction petition. A party waives an issue on appeal
if either authority or argument is lacking. Powell v.
Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App.
1997). Pro se litigants are held to the same standards as
those litigants represented by counsel. Golay v.
Loomis, 118 Idaho 387, 392, 797 P.2d 95, 100 (1990). Pro
se litigants are not excused from abiding by procedural rules
simply because they are appearing pro se and may not be aware
of the applicable rules. See Id. Therefore, we do
not address the merits of Ellis's appeal.
(State's Lodging D-4 at 3-4.) The Idaho Supreme Court
denied review. (State's Lodging D-7.)
Meanwhile,
Petitioner also filed a motion for reduction of sentence,
under Idaho Criminal Rule 35, which the trial court denied.
(State's Lodging E-1 at 245-47.) Petitioner initially
appealed the denial, but later voluntarily dismissed that
appeal. (Id. at 263-69; State's Lodging F-1,
F-2, F-3.)
In
this, Petitioner asserts four claims. Claim 1 alleges that
Petitioner's Fourth and Fourteenth Amendment rights were
violated when evidence was seized pursuant to an illegal
search. (Dkt. 1 at 4.)
Claim 2
asserts ineffective assistance of trial counsel based on
counsel's alleged (a) failure to make an oral argument,
interview witnesses, or “confront the state in any
capacity, ” (b) reliance on a motion prepared by an
intern, (c) failure to challenge the state on the
“existence of [a] parole agreement, ” (c) failure
to “argue statutes in relation to [Petitioner's]
status, ” and (d) failure to make any “effort in
[his] defense at all, ” such as “ask[ing] the
court if there were any concerns he could answer, ”
arguing that “there was no exigency for the search,
” or arguing that a “landlord had no right to
allow [Petitioner's] apartment to be searched.”
(Id. at 5.)
Claim 3
alleges that Petitioner's Fourth and Fourteenth Amendment
rights were violated, under United States v. Jones,
565 U.S. 400 (2012), and based on “what a parolee's
status changes to after arrest and confinement.”
(Id. at 6.)
Finally,
Claim 4 asserts a due process violation-presumably making
Petitioner's guilty plea invalid-because Petitioner (a)
suffered from an untreated mental illness, and (b) received
ineffective assistance of counsel when his trial attorney (i)
did not allow Petitioner to review discovery or to examine
the pre-sentence report and (ii) did not make certain
arguments to the trial court. (Id. at 7; see
also Dkt. 5 at 2.)
United
States Magistrate Judge Ronald E. Bush previously reviewed
the Petition and allowed Petitioner to proceed on his claims
to the extent those claims “(1) are cognizable in a
federal habeas corpus action, (2) were timely filed in this
Court, and (3) were either properly exhausted in state court
or subject to a legal excuse for any failure to exhaust in a
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