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Dixon v. Yordy

United States District Court, D. Idaho

March 28, 2018

DANIEL LEE DIXON, Petitioner,
v.
KEITH YORDY, Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         Pending before the Court is Petitioner Daniel Lee Dixon's federal Petition for Writ of Habeas Corpus. The merits of Claims 1(L) and 1(M) are now ripe for adjudication, as are Petitioner's Motion for Application for Martinez v. Ryan (Dkt. 18), and Respondent's three Motions for Extension of Time. (Dkts. 19, 21, 22.)

         All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 8.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Having completed a careful review of the record, and having considered the arguments of the parties, the Court enters the following Order.

         BACKGROUND

         In 2006, Dixon was convicted of lewd conduct with a minor under sixteen, first degree kidnapping, misdemeanor possession of drug paraphernalia, and misdemeanor malicious injury to property, after a jury trial in the First Judicial District Court in Kootenai County, Idaho. The incident occurred at a Coeur d'Alene beach park. Petitioner was accused of grabbing and restraining a twelve-year-old girl, placing her on his lap, and touching her vagina. Petitioner has always contended that he is actually innocent.

         Petitioner's judgment of conviction was entered on July 19, 2006. After his conviction, Petitioner filed a direct appeal and three state post-conviction actions, none of which provided relief on his convictions or sentences.

         Petitioner brings the following claims in his federal Petition for Writ of Habeas Corpus:

         Claim 1 is a Sixth Amendment ineffective assistance of trial counsel claim, consisting of the following subparts:

A. failure to file a notice of appeal, despite Petitioner's specific request;
B. failure to call witnesses including: (1) Megan Griffitts, (2) the owner of Funtastic Foods, (3), Reuben Rodriguez, (4) Russell Giles, and (5) six employees of Diamond Parking and the City Park (Brian, Curtis, Jake, Heather, Tag, and Marie);
C. (i) failure to request a second evidentiary hearing after the first one was cancelled in February 2006, and (ii) failure to have Petitioner's clothing and telephone records admitted as evidence at trial;
D. failure to use a recorded interview to impeach witness Karisma Cronkite;
E. failure to poll the jury after the guilty verdict;
F. failure to inform Petitioner of his right to file an appeal;
G. wrongly informing Petitioner that he had no Fifth Amendment right to refuse to take a psychosexual evaluation;
H. failure to file a motion for change of venue; I. failure to object to the prosecutor vouching for the credibility of two witnesses during closing argument;
J. failure to file a post-conviction appeal (post-conviction counsel);
K. (i) failure to have Petitioner's clothing examined for DNA evidence; (ii) failure to have his clothing submitted to the jury, so they could see the clothing did not fit the description of the witnesses (duplicative of (C)(ii) above);
L. failure to request a change of location from the jail building to a regular court room;
M. failure to have his medical records and arm examined by an expert to show that he had an injury so severe that it was a factual impossibility for him to have committed the crime; and
N. failure to spend adequate time to effectively represent Petitioner, including failure to prepare for trial, and failure to prepare Petitioner for his testimony at trial.

         Claim 2 is that Petitioner was denied the right to a fair trial when the trial court refused to allow Petitioner to call witnesses during trial. Claim 3 is that he was denied the right to a fair trial when the prosecutor refused to give Petitioner exculpatory evidence. Claim 4 is denial of the right to a fair trial under a cumulative error theory.

         Earlier in this matter, the Court denied Claims 1(A), 1(F), and 1(J) on the merits.[1](Dkt. 17.) The Court also granted Respondent's Motion for Summary Dismissal on procedural default grounds on Claims 1(B), 1(C), 1(D), 1(E), 1(G), 1(H), 1(I), 1(K), 1(N), 2, 3, and 4. Petitioner was permitted to make a Martinez v. Ryan cause and prejudice argument to excuse the procedural default of the ineffective assistance of trial counsel claims only, which are Claims 1(B), 1(C), 1(D), 1(E), 1(G), 1(H), 1(I), 1(K), and 1(N). Petitioner has filed his briefing (Dkt. 18), which the Court addresses below.

         The Court permitted Petitioner to proceed to the merits of Claims 1(L) and 1(M). (Dkt. 17.) Respondent has filed an Answer and Brief in Support of Dismissal of the Petition (Dkt. 24), and Petitioner has elected not to file a Reply.

         CONSIDERATION OF MERITS OF CLAIMS 1(L) and 1(M)

         1. Standard of Law

Federal habeas corpus petitions that challenge a state court judgment are governed by the strict requirements of Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Title 28 U.S.C.§ 2254(d) limits relief to instances where the state court's adjudication of the petitioner's claim:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

         The source of clearly established federal law must come only from the holdings of the United States Supreme Court. However, circuit court precedent may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime, 200 F.3d at 600-01.

         Strickland v. Washington, 466 U.S. 668, 689 (1984), is clearly-established law governing ineffective assistance of counsel claims, and the Supreme Court in Strickland made clear that judicial scrutiny of defense counsel's performance must be highly deferential. Strickland v. Washington, 466 U.S. 668, 689 (1984). There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. To prevail on a claim for ineffective assistance of counsel, the petitioner must show that (1) the attorney's performance was unreasonable under prevailing professional standards, and (2) a reasonable probability that but for counsel's poor performance, the results would have been different. Id. at 687-94. Strickland defines reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id.

         Additionally, the Supreme Court has cautioned that “every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689.

         If a petitioner shows that counsel's performance was deficient, the next step is the prejudice analysis. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. To satisfy the prejudice standard, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. To constitute Strickland prejudice, ...


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