United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE U.S. DISTRICT COURT JUDGE.
before the Court is an Amended Petition for Writ of Habeas
Corpus filed by Idaho state prisoner Dale Carter Shackelford
(“Petitioner”), challenging Petitioner's
Latah County convictions of first-degree murder, arson,
conspiracy, and preparing false evidence. Dkt. 9. Respondent
has filed a Motion for Partial Summary Dismissal, arguing
that Claims 2(a) and 5 through 10 are procedurally defaulted
and that Claim 10 is not cognizable. Dkt. 17. The Motion is
now ripe for adjudication.
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. Dkt. 14. See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1
(9th Cir. 2006).
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 granting in part Respondent's Motion for
Partial Summary Dismissal and dismissing Claims 2(a), 5, 6,
7, 8, and 10 with prejudice.
jury trial in the Second Judicial District Court in Latah
County, Idaho, Petitioner was convicted of two counts of
first-degree murder-for the murders of Donna Fontaine and
Fred Palahniuk-one count of conspiracy to commit murder, one
count of arson, one count of conspiracy to commit arson, and
one count of preparing false evidence. Dkt. 9 at 1-2. He was
sentenced to death on the two murder counts, a fixed life
term for conspiracy to commit murder, fixed terms of 25 years
for the arson and arson conspiracy counts, and a fixed
five-year term for preparing false evidence, all sentences to
be served concurrently. (State's Lodging A-15 at
to Idaho's unified procedures for capital cases,
see Idaho Code § 19-2719, Petitioner filed a
petition for state post-conviction relief, which was amended
multiple times, while his direct appeal was stayed.
(State's Lodging B-1 at 10-43, 194-230; B-3 at 476-542;
B-4 at 756-823; B-12 at 2534-2642; B-13 at 2980-90; B-14 at
3183-3228.) The state district court granted Petitioner
sentencing relief based on Ring v. Arizona, 536 U.S.
584 (2002),  thus ordering resentencing on the
murder counts; the court denied Petitioner's remaining
claims. (State's Lodging B-16 at 3569-3630.) The State
and Petitioner both appealed.
direct appeal and the appeals from the partial denial of
Petitioner's post-conviction petition were consolidated.
(State's Lodging C-1.) The Idaho Supreme Court issued an
initial opinion; though the court later denied both
parties' petitions for rehearing, the court did issue a
substitute opinion that did not change the result.
(See State's Lodging C-12; C-13; C-14; C-17;
C-18; C-19.) The court affirmed Petitioner's convictions
and non-capital sentences, affirmed the denial of
Petitioner's guilt-phase post-conviction claims, and
affirmed the grant of sentencing relief as to
Petitioner's death sentences. State v.
Shackelford, 247 P.3d 582, 590-615 (Idaho 2010) (also
found at State's Lodging C-19). The case was remanded for
resentencing on the murder counts.
acting pro se, filed a second petition for post-conviction
relief, which was stayed pending Petitioner's
resentencing. (State's Lodging F-1 at 18-40, 100-06.)
State decided not to seek the death penalty on resentencing.
(State's Lodging D-1 at 14-20.) After a resentencing
hearing, the trial court sentenced Petitioner to two fixed
life sentences on the first-degree murder counts, to run
consecutively with each other and with Petitioner's
sentences on the other counts. (State's Lodging D-1 at
144-48.) Petitioner appealed the resentencing, and his
attorney argued that (1) the judge should have recused
himself from the resentencing, (2) Petitioner's rights
under the Confrontation Clause were violated during
resentencing, and (3) the resentencing court abused its
discretion, under Idaho law, by considering certain victim
impact evidence. (State's Lodging E-4.)
then filed a pro se motion to augment his appellate brief in
his resentencing appeal, stating that his appellate attorney
chose not to include a supplemental claim that Petitioner was
entitled to have a jury determine his sentence even though
the State had chosen not to pursue the death penalty on
remand. (State's Lodging E-5.) In that motion, Petitioner
argued that a fixed life sentence could not be imposed unless
a jury first found certain aggravating factors.
Idaho Supreme Court denied Petitioner's pro se motion
(State's Lodging E-7) and affirmed Petitioner's
consecutive fixed life sentences without addressing
Petitioner's pro se supplemental claim. Petitioner's
petition for rehearing was denied, but the Court again issued
a substitute opinion that did not change the result.
(State's Lodging E-11; E-12; E-13; E-14; E-15.)
Petitioner's second post-conviction case, he moved to
amend his petition. He also filed a third petition for
post-conviction relief challenging his fixed life sentences
on the first-degree murder counts. (State's Lodging F-2
at 182-223; G-1 at 6-9.) The state district court held a
consolidated hearing in the two cases and, because the
hearing had been based on the proposed amended petition in
the second post-conviction case, granted Petitioner's
motion to amend his second petition. (State's Lodging F-2
at 236-37; G-1 at 21-22.) The Idaho district court dismissed
both post-conviction petitions in separate orders.
(State's Lodging F-2 at 238-47; G-1 at 23-27.)
appealed both dismissals, and the appeals were consolidated.
(State's Lodging H-5.) Petitioner's counsel's
motion to withdraw was granted, and Petitioner represented
himself on appeal. (State's Lodging H-1 through H-5.) The
Idaho Supreme Court affirmed the state district court and
later denied a petition for rehearing. (State's Lodging
instant federal habeas corpus petition, Petitioner asserts
the following claims:
1. Denial of choice of counsel during his pre-trial, trial,
and initial sentencing proceedings;
2(a). Insufficient evidence to establish Count VI of the
Amended indictment [preparing false evidence];
2(b). A violation of due process because the jury
instructions failed to define “produced, ” which
is an element of presenting false evidence in Count VI of the
3. A violation of the Ex Post Facto Clause by
failing to give a “Holder”
4. Denial of due process with regard to the conspiracy counts
(Counts IV and V) because there was no instruction requiring
the jury to unanimously agree on which overt acts were
committed and by which co-conspirator (Counts IV and V);
5. Insufficient evidence to warrant the giving of Instruction
33, the aider and abettor instruction, which impermissibly
shifted the burden of proof to require Shackelford prove an
accomplice was not involved;
6. The state's withholding of exculpatory evidence in
violation of due process by failing to disclose a Diagnostic
Imaging Report and x-rays stemming from the autopsy of
7. Ineffective assistance of trial counsel for failing to
investigate the bullet found in Donna's body, its
“missing mass, ” and the existence of the x-rays;
8. Denial of due process based upon prosecutorial misconduct
during closing arguments when the prosecutor allegedly
“vouched” for various witnesses;
9. A Sixth Amendment violation because a jury did not find
statutory aggravating factors that are allegedly required for
a fixed life sentence; [and]
10. Ineffective assistance of post-conviction counsel.
(Dkt. 17-1 at 5-6 (quoting Am. Pet., Dkt. 9, at
Court previously reviewed the Amended 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 proper
manner.” Dkt. 10 at 3.
now argues that Claim 2(a) and Claims 5 through 10 must be
Standard of Law Governing Summary Dismissal
Rules Governing § 2254 Cases (“Habeas
Rules”) authorize 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, ” as well as those records subject to
judicial notice, “that the petitioner is not entitled
to relief in the district court.” Habeas Rule 4;
see Fed. R. Evid. 201(b); Dawson, 451 F.3d
at 551 n.1. Where appropriate, a respondent may file a motion
for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
Claim 10 Is Not Cognizable
Claim 10, Petitioner asserts that he received ineffective
assistance of counsel during state post-conviction
proceedings. Although, in limited circumstances, ineffective
assistance of initial post-conviction counsel can constitute
cause for the procedural default of a claim of ineffective
assistance of trial counsel, Martinez v. Ryan, 566
U.S. 1, 9 (2012), there is no independent, federal
constitutional right to the effective assistance of counsel
during state post-conviction proceedings, Pennsylvania v.
Finley, 481 U.S. 551, 554 (1987); Bonin v.
Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). Thus, Claim
10 must be dismissed because it is not cognizable on federal
Claims 2(a), 5, 6, 7, and 8 Are Procedurally Defaulted, and
Petitioner Has Not Established Cause and Prejudice, or Actual
Innocence, to Excuse that Default
Procedural Default Standard of Law
A habeas petitioner must exhaust his or her 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 that has the possibility of discretionary
review in the highest appellate court, like Idaho, the
petitioner must have presented all of his federal claims at
least 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 that 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
Claims 2(a), 5, 6, 7, and 8 Are ...