United States District Court, D. Idaho
MELVIN A. McCABE, Petitioner,
RANDY BLADES, Warden, Respondent.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief U.S. District Court Judge.
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.
Standard of Law
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
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).
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.
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
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).
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).
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).
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.
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).
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.)
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.
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.
Nature of Claim
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
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.
State Court Proceedings
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