Shackelford v. Blades

          MEMORANDUM DECISION AND ORDER

          DAVID C. NYE U.S. DISTRICT COURT JUDGE.

         Pending 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.

         The 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).

         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 granting in part Respondent's Motion for Partial Summary Dismissal and dismissing Claims 2(a), 5, 6, 7, 8, and 10 with prejudice.

         BACKGROUND

         In a 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 3120-27.)

         Pursuant 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), ^[1] 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.

         The 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.^[2] 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.

         Petitioner, 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.)

         The 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.)

         Petitioner 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. (Id.)

         The 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.)

         In 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.)

         Petitioner 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 H-10, H-13.)

         In the 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 Amended Indictment;

3. A violation of the Ex Post Facto Clause by failing to give a “Holder” instruction;[3]

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 Donna's body;

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 12-85).)^[4]

         The 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.

         Respondent now argues that Claim 2(a) and Claims 5 through 10 must be summarily dismissed.

         DISCUSSION

         1. Standard of Law Governing Summary Dismissal

         The 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).

         2. Claim 10 Is Not Cognizable

         In 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 habeas review.

         3. 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

         A. 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).

         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 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 (1991).

         B. Claims 2(a), 5, 6, 7, and 8 Are ...