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Brown v. Ramirez

United States District Court, D. Idaho

March 26, 2018

KEITH A. BROWN, Petitioner,


          Honorable Candy W. Dale United States Magistrate Judge

         Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho state prisoner Keith A. Brown (“Petitioner”), challenging his Bonner County convictions of voluntary manslaughter and accessory to grand theft. (Dkt. 1.) Respondent has filed a Motion for Partial Summary Dismissal, arguing that Claims 2 through 9 are subject to dismissal as procedurally defaulted or noncognizable. (Dkt. 12.) Also pending is Petitioner's Motion for Application of Martinez v. Ryan. (Dkt. 14.)

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 10, 19.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).

         The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 8.) Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order conditionally granting Respondent's Motion for Partial Summary Dismissal and conditionally denying Petitioner's Martinez Motion. As set forth below, Petitioner may submit additional documents, from the state court record, to the Court for review within 28 days, at which time the Court will review the documents and, if warranted, reconsider its decision on these motions.


         The facts underlying Petitioner's conviction are set forth clearly and accurately in State v. Brown, 313 P.3d 751 (Idaho Ct. App. 2013), which is also contained in the record at State's Lodging B-4. The facts will not be repeated here except as necessary to explain the Court's decision.

         Petitioner was charged in the First Judicial District Court in Bonner County, Idaho, with first-degree murder, grand theft, and felon in possession of a firearm. Petitioner was represented by counsel, who “filed a number of motions to suppress evidence, including his statements made to Florida police officers and evidence gained from inspection of his mail while he was incarcerated awaiting trial.” Id. at 756. The trial court denied the motions to suppress. The court also denied Petitioner's motion to dismiss in which he challenged the probable cause finding made at the preliminary hearing. (Supplemental State's Lodging E-1.[1])

         Petitioner, acting pro se, filed an interlocutory appeal from the denial of the probable cause motion. (Supplemental State's Lodging E-2.) The Idaho Supreme Court entered an order conditionally dismissing the appeal, under Idaho Appellate Rule 11, because the appeal was not from a final, appealable Order. (State's Lodging E-3.) Petitioner responded to the conditional dismissal, and the state supreme court entered a final order dismissing the appeal. (State's Lodging E-4, E-6.)

         Pursuant to a plea agreement, Petitioner eventually entered a conditional Alford[2]plea to voluntary manslaughter and accessory to grand theft. Brown, 313 P.3d at 756. Petitioner received a unified sentence of fifteen years in prison with ten years fixed on the manslaughter charge, and a concurrent term of five years in prison on the charge of accessory to grand theft. (State's Lodging A-6 at 941-44.)

         Petitioner filed two motions for reduction of sentence pursuant to Idaho Criminal Rule 35-one pro se and one submitted through counsel-arguing that he was entitled to leniency. (Id. at 965-66, 971.) At the hearing on Petitioner's Rule 35 motions, Petitioner's argument focused on his request to submit additional evidence in the form of testimony from a pathologist, a firearms expert, and a polygrapher, which, as pointed out by the trial court, were pertinent “to the issues of [Petitioner's] culpability for the crime, ” not to the appropriateness of the sentence. (State's Lodging A-10 at 6-7, 9-10.) The court stated that the additional evidence Petitioner sought to present “would go to issues of guilt, innocence or guilt, and that was taken care of when we took the plea.” (Id. at 11.) Therefore, the trial court exercised its discretion to deny the request to present additional evidence and went on to deny the Rule 35 motion. (Id. at 11-13.)

         Petitioner filed a direct appeal. He argued that the trial court erred in several ways: (1) failing to suppress evidence obtained from Petitioner's nonprivileged mail correspondence while he was in pretrial detention; (2) failing to suppress evidence obtained as a result of Petitioner's arrest based on the alleged dissipation of probable cause found by the magistrate judge; (3) failing to suppress incriminating, and allegedly involuntary, statements that Petitioner made to police following his arrest in Florida; (4) denying Petitioner's request to present testimony, and refusing to consider new evidence, at the hearing on Petitioner's Rule 35 motion; (5) denying Petitioner's motion to dismiss for lack of probable cause at the preliminary hearing; and (6) failing to suppress statements obtained in violation of 18 U.S.C. § 3501(c), which governs the admissibility of confessions in federal prosecutions. (State's Lodging B-1; B-3.)

         The Idaho Court of Appeals affirmed in part, vacated in part, and remanded the case back to the trial court. The court of appeals rejected most of Petitioner's claims, but agreed that the prosecution had failed to satisfy its burden to show that Petitioner's incriminating statements made after his arrest were voluntary. Brown, 313 P.3d at 759. Rather than granting suppression outright, however, the court of appeals vacated the order denying Petitioner's motion to suppress the statements and remanded “for a new hearing at which, presumably, the State will present some relevant evidence bearing upon the voluntariness or involuntariness of [Petitioner's] statements to Florida officers. If, on remand, . . . the court denies the suppression motion, [Petitioner's] guilty plea and judgment of conviction need not be disturbed.” Id. at 431-32.

         Petitioner filed a petition for review with the Idaho Supreme Court, arguing that the state should not be allowed a second chance to show that his statements to police were voluntary, that a factual error required reversal, and that the trial court should have granted his motion to suppress the evidence obtained from the nonprivileged mail he sent from jail during pretrial detention. (State's Lodging B-6.) The state supreme court denied the petition for review. (State's Lodging B-7.)

         On remand, the trial court held a new suppression hearing and once again denied Petitioner's motion to suppress his statements to police. (State's Lodging C-1 at 131-36; C-3.) Petitioner appealed, arguing that the statements were not voluntary. (State's Lodging D-1.) The Idaho Court of Appeals affirmed, holding that “the State met its burden of proving [Petitioner's] statements were voluntary.” State v. Brown, 377 P.3d 1098, 1100 (Ct. App. 2016). The Idaho Supreme Court denied review. (State's Lodging D-5.)

         Petitioner also filed a pro se petition for post-conviction relief, asserting numerous claims: (1) the trial court erred by not granting Petitioner's Rule 35 motion based on a self-defense theory; (2) the court should have appointed conflict counsel because Petitioner's attorneys had represented Petitioner's wife/co-defendant in prior proceedings; (3) the trial court erred by not ruling on Petitioner's pro se motions filed while he was represented by counsel; (4) the state improperly destroyed evidence; and (5) Petitioner's counsel rendered ineffective assistance by failing (a) to present a self-defense argument, (b) to adequately present a destruction-of-evidence claim, (c) to appeal the denial of Petitioner's motions to dismiss based on spoliation and lack of probable cause to support a first-degree murder charge, (d) to provide Petitioner with discovery, (e) to communicate with Petitioner, even having him committed to a mental health institution “because they feared him, ” and (f) to file a motion for consolidation. (Initial State's Lodging E-2 at 1-11.) Petitioner was later appointed counsel. (Id. at 41.) Petitioner's attorney then filed an amended petition, asserting only that Petitioner was denied the effective assistance of trial counsel based on counsel's alleged failure (a) to communicate with Petitioner, (b) to present evidence of self-defense, and (c) to preserve evidence regarding self-defense. (Id. at 73-78.)

         The post-conviction court denied the state's motion for summary dismissal and ordered an evidentiary hearing on Petitioner's ineffective assistance claims. (Id. at 101-05.) But the hearing was never held. Instead, Petitioner and the state entered into a stipulation in which Petitioner's post-conviction petition would be dismissed. (Id. at 121.) In return, Petitioner would be allowed to supplement his pre-sentence investigation report with an addendum regarding his self-defense claim (including evidence that he and his wife/co-defendant passed polygraph examinations regarding the events surrounding the victim's death), evidently so that this information would be available for Petitioner's parole hearing. (Id. at 121-22, 126.) The court dismissed the post-conviction petition pursuant to the stipulation, and Petitioner did not file an appeal. (Id. at 124; Initial State's Lodging E-1.)

         In the instant federal habeas corpus petition, Petitioner asserts nine claims.[3] Claim 1 alleges that Petitioner's confession was used against him in violation of the Fifth and Fourteenth Amendments to the United States Constitution. (Dkt. 1 at 6; Dkt. 5 at 2.) Claim 2 alleges that Petitioner's arrest was illegal under the Fourth Amendment. (Dkt. 1 at 7; Dkt. 5 at 2.) Claim 3 asserts a Fourth Amendment violation based on the prosecutor's copying of Petitioner's outgoing mail, while he was in pretrial detention, and the later use of that correspondence against him at trial. (Dkt. 1 at 8; Dkt. 5 at 2.)

         Claim 4 alleges that evidence from a dismissed federal prosecution was improperly used against Petitioner in the state prosecution. (Dkt. 1 at 9; Dkt. 5 at 2.) Given that the Petition states Claim 4 was raised on direct appeal (Dkt. 1 at 9), it appears that this claim is based on 18 U.S.C. § 3501(c), which provides that, in a federal prosecution, a confession made more than six hours after arrest of a defendant who is in custody is inadmissible unless the delay “is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer.” (See State's Lodging B-1 at 29-30 (Petitioner's opening brief on the first direct appeal).)

         In Claim 5, Petitioner asserts that the initial charge of first-degree murder was not supported by probable cause, and if Petitioner had been bound over on a lesser charge, he would have received a better plea bargain. (Dkt. 1 at 10; Dkt. 5 at 2.)

         Claim 6 is a bit difficult to decipher. When the Court initially reviewed the Petition, it construed Claim 6 as follows:

Claim 6: Petitioner acted in self-defense and therefore should not have been punished. This Claim may be intended as a sufficiency-of-the-evidence challenge or an assertion that the state was unconstitutionally relieved of its burden of proof. This Claim alleges also that Petitioner was deprived of his right of access to the courts and his right to a fair hearing.

(Dkt. 5 at 2-3.) However, the record now establishes that the Court's previous construction of Claim 6 was incorrect. In the Petition, Petitioner stated that he raised Claim 6 in his Rule 35 motion and on direct appeal. (Dkt. 1 at 11.) At the time the Court undertook its initial review, it did not have the records needed to compare Petitioner's claims in this action to those in the Rule 35 motion and on direct appeal to determine what precisely Petitioner was alleging in Claim 6.

         The Court has now reviewed the state court records and agrees with Respondent that Claim 6 should be construed as a state law claim that the trial court abused its discretion in failing to allow Petitioner to present evidence of self-defense in support of his Rule 35 motion. (See Dkt. 12-1 at 21-22; State's Lodging A-10.) Petitioner requested at his Rule 35 hearing that the trial court exercise its discretionary authority to allow additional evidence, which the trial court declined to do. (State's Lodging A-10.) On his first direct appeal, Petitioner, relying entirely on state law, argued that the trial court should have allowed Petitioner to present the additional evidence. (State's Lodging B-1 at 26-28.) Claim 6 clarifies that the evidence sought to be presented at Petitioner's Rule 35 hearing-that is, the testimony of a pathologist, a firearms expert, and a polygrapher- was evidence that might have suggested Petitioner killed the victim in self-defense. (Dkt. 1 at 11.) Therefore, it is now apparent that Claim 6 of the Petition was intended to assert that the trial court should have exercised its discretion, under Idaho law, to accept additional evidence-evidence pertinent to the issue of self-defense-at the Rule 35 hearing.[4]

         In Claim 7, Petitioner asserts that the post-conviction court improperly failed to address all of Petitioner's claims during post-conviction proceedings, resulting in a denial of Petitioner's right of access to the courts. (Dkt. 1 at 12; Dkt. 5 at 3.)

         The Court previously construed Claim 8 as alleging that the trial court improperly failed to consider Petitioner's pro se motions because he was represented by counsel, which is perhaps best described as a due process claim under the Fourteenth Amendment; the Court construed Claim 9 as alleging that Petitioner's attorneys had a conflict of interest, under the Sixth Amendment, based on their representation of Petitioner's wife/co-defendant. (Initial Review Order, Dkt. 5, at 2-3.) However, nearly six months after the Court's Initial Review Order, Petitioner asserted, for the first time, that the Court has misconstrued Claims 8 and 9. Notably, it was not until Respondent sought dismissal of these claims as procedurally defaulted that Petitioner objected to the Court's construction.

         Petitioner now argues that both of these claims allege ineffective assistance of trial counsel. (Dkt. 16 at 11-12.) On the contrary, the Court has reviewed the Petition and determined that it has correctly construed Claims 8 and 9.

         The Petition states that the “legal basis” for Claim 8 was “a violation of 1st, 5th, 6th and 14th Amendments.” (Dkt. 1 at 13.) However, as noted above in footnote 3, the labels identified by Petitioner are not controlling as to the construction of his claims. In the first paragraph of the “supporting facts” section of Claim 8, the Petition states clearly that Petitioner's numerous pro se motions “were never ruled upon by the court which denies me access to the court and a denial of a fair hearing.” (Id. (emphasis added).) This put the Court and Respondent on notice that Petitioner was raising a claim that the trial court committed error by not ruling on his pro se motions, not that Petitioner's counsel rendered ineffective assistance.

         Although the Petition goes on to state that Petitioner's reason for filing the motions was that he believed his counsel was ineffective or had a conflict of interest, and that the failure of the trial court to rule on the pro se motions “denie[d] to [Petitioner] access to the court and [his] right to counsel, ” Claim 8 does not clearly allege a separate ineffectiveness claim. (Dkt. 1 at 13 (emphasis in original).) See Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“Here, although [the petitioner's] Fifth Amendment claim is related to his claim of ineffective assistance [of counsel] . . ., they are distinct claims with separate elements of proof . . . .”) (emphasis added). Further, if Petitioner had indeed intended Claim 8 to be an ineffective assistance of counsel claim, he would have notified the Court immediately after receiving the Court's Initial Review Order that the Court's construction of Claim 8 was incorrect. He did not, suggesting that Petitioner intended for Claim 8 to assert a due process violation based on trial court error.

         As for Claim 9, the Petition states that several of Petitioner's attorneys “all had a conflict of interest because they had represented [his] wife and co-defendant previously.” (Id. at 14 (emphasis in original).) This is an obvious assertion of a conflict-of-interest claim, rather than a traditional ineffective assistance claim.[5] Petitioner's belated objection to the Court's construction of Claims 8 and 9 does not persuade the Court that those claims should be construed in the manner Petitioner now asserts.

         The Court previously reviewed the Petition and allowed Petitioner to proceed on the above claims to the extent his 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 proper manner.” (Dkt. 5 at 3 (footnote omitted).)

         Respondent now argues that all of Petitioner's claims, with the exception of Claim 1, are subject to dismissal either as procedurally defaulted or as noncognizable. (Dkt. 12-1.) Petitioner argues that some of these claims are not procedurally defaulted, that there is cause and prejudice to excuse the default of some of these claims; further, Petitioner argues he did not have a full and fair opportunity to litigate some of these claims in state court. (Dkt. 14, 16.)


         1. Petitioner's Request that Respondent Be Required to Submit Additional ...

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