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Ellis v. Atencio

United States District Court, D. Idaho

January 29, 2018

MARK LEE ELLIS, Petitioner,
HENRY ATENCIO, Director of the Idaho Department of Correction, and LAWRENCE WASDEN, Idaho Attorney General, Respondents.



         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.


         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 Sept. 19, 2013) (unpublished), which is contained in the record at State's Lodging B-5.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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