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McCabe v. Blades

United States District Court, D. Idaho

March 13, 2018

MELVIN A. McCABE, Petitioner,
RANDY BLADES, Warden, Respondent.


          B. Lynn Winmill, Chief U.S. District Court Judge.

         Petitioner Melvin A. McCabe filed a Petition for Writ of Habeas Corpus challenging his most recent state court conviction. (Dkt. 1.) Respondent has filed a Motion to Dismiss the Petition on procedural grounds, asserting that all of Petitioner's claims are procedurally defaulted and subject to summary dismissal. (Dkt. 12.) Petitioner filed a Response in opposition to summary dismissal and a “Request for Incorporation and Relation Back re: Petition for Writ of Habeas Corpus.” (Dkts. 14, 15.) These motions are now fully briefed. The Court finds that oral argument is unnecessary. Based upon the written record, the Court enters the following Order.


         1. Standard of Law

         When a petitioner's compliance with threshold procedural requirements is at issue in a federal habeas corpus matter, a respondent may file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by the parties.

         A habeas petitioner must exhaust his remedies in the state courts before a federal court can grant relief on constitutional claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state, like Idaho, that has the possibility of discretionary review in the highest appellate court, the petitioner must have presented all his federal claims in a petition seeking review before that court. Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts and the legal theories upon which the federal claim is based. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

         The mere similarity between a federal claim and a state law claim, without more, does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). General references in state court to “broad constitutional principles, such as due process, equal protection, [or] the right to a fair trial, ” are likewise insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear that, for proper exhaustion, a petitioner must bring his federal claim before the state court by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).

         When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and it is clear the state court would now refuse to consider it because of the state's procedural rules, the claim is said to be procedurally defaulted. Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts have rejected a claim on an adequate and independent state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         To be an “adequate” state ground, a procedural bar must be one that is “‘clear, consistently applied, and well-established at the time of the petitioner's purported default.” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is “independent” of federal law if it does not rest on, and if it is not interwoven with, federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).

         A procedurally defaulted claim will not be heard in federal court unless the petitioner shows either that there was legitimate cause for the default and that prejudice resulted from the default, or, alternatively, that the petitioner is actually innocent and a miscarriage of justice would occur if the federal claim is not heard. Murray v. Carrier, 477 U.S. 478, 488 (1986).[1]

         Ordinarily, to show “cause” for a procedural default, a petitioner must prove that some objective factor external to the defense impeded his or his counsel's efforts to comply with the state procedural rule at issue. Coleman v. Thompson, 501 U.S. at 753. To show “prejudice, ” a petitioner must demonstrate “not merely that the errors [in his proceeding] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).

         A petitioner does not have a federal constitutional right to effective assistance of counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule is that any errors of counsel during a postconviction action cannot serve as a basis for cause to excuse a procedural default. Coleman, 501 U.S. at 752.

         A limited exception to the Coleman rule exists in Martinez v. Ryan, 566 U.S. 1 (2012). That case held that inadequate assistance of post-conviction review (PCR) counsel or lack of counsel “at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 9 (emphasis added). To show ineffective assistance of PCR counsel, Petitioner must show that the defaulted ineffective assistance of trial counsel claims are “substantial, ” meaning that the claims have “some merit.” Id. at 14. To show that each claim is substantial, Petitioner must show that trial counsel performed deficiently, resulting in prejudice, defined as a reasonable probability of a different outcome at trial. Id.; see Strickland v. Washington, 466 U.S. 668, 695-96 (1984).

         2. Background

         Jerome police officer Jason Summers was familiar with Petitioner and the fact that his driver's license had been suspended, because Summers had encountered Petitioner driving without privileges in the Jerome area in late December 2012 and early January 2013. On January 18, 2013, Summers saw Petitioner driving, suspected he was doing so without privileges, stopped to speak to Petitioner, and then had Petitioner exit the car to be placed in custody for driving with a suspended license and providing false information to an officer. Summers searched Petitioner's person incident to arrest and found a cigarette pack containing a clear plastic bag with a crystal substance in it. Summers testified that he put the pack back into Petitioner's pocket, gave Petitioner a Miranda warning, and then questioned Petitioner about the contents of his pocket. Officers found several additional packages of methamphetamine and paraphernalia. Petitioner was arrested and charged. (State's Lodging A-1, pp. 304-13.)

         In a Jerome County criminal action in the Fifth Judicial District Court of the state of Idaho, Petitioner pleaded guilty to and was convicted of possession of a controlled substance under Idaho Code § 37-2732(c), and an enhancement for having a second drug offense under Idaho Code § 37-2739. On July 12, 2013, Petitioner was sentenced to a prison term of six years fixed and eight years indeterminate.

         Petitioner filed a motion to suppress evidence, a direct appeal, a state post-conviction relief action, a motion to withdraw his guilty plea, two Rule 35 motions, and an original petition for writ of certiorari in the Idaho Supreme Court. He received no relief in any state court action.

         3. Claim 1

         A. Nature of Claim

         Claim 1 is as follows:

Petitioner was denied the fundamental and absolute right to conflict-free and effective assistance of counsel; he contends that an actual conflict existed that adversely affected the performance of counsel; and that he did not knowingly and intelligently waive his right to conflict-free counsel.

         (Dkt. 1, p. 6.) Petitioner alleges that the following acts or omissions of his attorney, Stacey DePew, were caused by the Jerome County public defender's low-paying “flat fee” contract with her: (a) refusing to copy or discuss discovery responses from the prosecutor with him, and using it as leverage in coercing a guilty plea; (b) failing to consult or communicate with Petitioner regarding evidence; (3) failing to file pretrial motions challenging the search and arrest as unconstitutional; and (4) failing to prepare for the preliminary hearing or interview him to obtain relevant information concerning the search and arrest. Petitioner alleges that he properly exhausted this claim.

         B. State Court Proceedings

         Petitioner raised Claim 1 in his post-conviction petition, contending that a “financial conflict of interest” was created when the county public defender entered into a contract to pay DePew a “lump sum to handle an unlimited number of cases” (State's Lodging C-1, p. 8.) He asserted that “it was in DePew's personal interest to devote as little time as possible to each ...

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