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Crow v. Yordy

United States District Court, D. Idaho

June 22, 2018

LAWRENCE JAMES CROW, Petitioner,
v.
KEITH HOWARD YORDY, Respondent.

          MEMORANDUM DECISION AND ORDER

          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 Lawrence James Crow (“Petitioner”), challenging Petitioner's Bingham County conviction for attempted first-degree murder. (Dkt. 1.) Respondent has filed a Motion for Partial Summary Dismissal, arguing that Claim 4(e)[1] is not cognizable- meaning that it cannot be heard in this federal habeas action-and that Claims 1, 2, 3, and 4(c) are subject to dismissal as procedurally defaulted. (Dkt. 9.) Also pending is Petitioner's Motion for Application of Martinez v. Ryan, 566 U.S. 1 (2012), in which he argues that he is excused from procedural default based on the exception established in that case. (Dkt. 13.) The Motions are ripe for adjudication.

         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) and Federal Rule of Civil Procedure 73. (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 granting Respondent's Motion, denying Petitioner's Motion, and dismissing Claims 1, 2, 3, 4(c), and 4(e) with prejudice.

         BACKGROUND

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

         The facts underlying Petitioner's conviction are set forth clearly and accurately in State v. Crow, Docket No. 40073, Op. 809 (Idaho Ct. App. Dec. 31, 2013) (unpublished), which is contained in the record at State's Lodging B-4.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.

         In the Seventh Judicial District Court in Bingham County, Idaho, Petitioner entered an Alford plea[2] to attempted first-degree murder after he shot his ex-girlfriend once in the arm and tried to shoot her again, the second time through the bathroom door. Petitioner received a unified sentence of 15 years in prison with 9 years fixed and was required to pay a fine, as a civil judgment, in favor of the victim. (State's Lodging B-4 at 2.)

         On direct appeal, Petitioner argued that the trial court (1) erred under Idaho law by imposing an unauthorized civil fine and (2) abused its sentencing discretion when it denied Petitioner's motion, under Idaho Criminal Rule 35, to reduce his sentence based on new information. (State's Lodging B-1.) The Idaho Court of Appeals lowered the amount of the fine but otherwise affirmed Petitioner's conviction and sentence. (State's Lodging B-4 at 3-6.) The Idaho Supreme Court denied review. (State's Lodging B-6.)

         While the direct appeal was pending, Petitioner filed a petition for state post-conviction relief. Petitioner claimed that he was convicted of a crime that was “not a valid charge, ” that his guilty plea was entered “unknowingly” because he was “overly charged and intimidated, ” and that he was denied the effective assistance of counsel. (State's Lodging C-1 at 4-6.) The state district court denied the post-conviction petition following an evidentiary hearing. (State's Lodging C-4.)

         Petitioner appealed that denial, raising four claims of error by the trial court. Petitioner asserted the following: (1) Petitioner was improperly subjected to an enhanced sentence for the use of a firearm in an attempted murder because a person cannot “attempt to deliberate”; (2) Petitioner was sentenced for a crime that did not exist in Idaho; (3) Petitioner's plea was not knowing and voluntary, but instead was coerced, because Petitioner was overcharged and given false information about the maximum available sentence, and (4) Petitioner was subjected to duplicative charges in violation of the Double Jeopardy Clause. (State's Lodging D-1 at 1-7.)

         In a fifth claim, Petitioner asserted that his trial counsel was ineffective in several ways. Specifically, Petitioner argued that his trial counsel rendered ineffective assistance in (a) failing to file an appeal from the civil judgment, (b) failing to move to dismiss the attempted murder charge on the grounds that there is no such crime in Idaho, (c) allowing Petitioner to plead guilty to “a crime which does not exist” and failing to advise Petitioner “that if he made a decision to go to trial, ... the charge ... would have to be dismissed, ” (d) informing Petitioner that he would not be allowed to testify at the Rule 35 hearing, (e) failing to object on the basis of overcharging by the prosecutor and duplicative charges, and (f) failing to advise Petitioner that there was a lesser included offense available. (Id. at 7-12.)

         The Idaho Court of Appeals declined to consider Petitioner's four claims of trial court error, because those claims could have been raised on direct appeal and, therefore, were procedurally barred pursuant to Idaho Code § 19-4901(b). (State's Lodging D-4 at 4.) The court stated that it would not consider Petitioner's claim that “a person cannot attempt to deliberate”-and therefore cannot be convicted of attempted first-degree murder-for the additional reason that Petitioner had not supported that claim with any authority. (Id. at 6.)

         The court of appeals went on to consider the merits of these procedurally-barred claims, but only “in the context of [Petitioner's] claims of ineffective assistance of counsel.” (Id.) The court affirmed the denial of the post-conviction petition, holding that Petitioner's trial counsel did not render ineffective assistance. (Id. at 4-11.) The Idaho Supreme Court denied review. (State's Lodging D-6.)

         Petitioner next filed the instant federal habeas corpus petition. Claim 1 asserts that Petitioner was “sentenced for a crime that does not exist” because a person cannot “attempt to deliberate”; Petitioner also claims that he was charged not with attempted first-degree murder, but rather with attempted felony murder, which is not a crime in Idaho. (Dkt. 1 at 4.) Although Claim 1 nominally invokes the Fifth, Sixth, and Fourteenth Amendments, only the Due Process Clause of the Fourteenth Amendment is actually implicated by the allegations in that claim.[3]

         In Claim 2, Petitioner alleges a violation of the Double Jeopardy Clause of the Fifth Amendment. Petitioner claims that the firearm enhancement with which he was initially charged-but which was later dismissed in exchange for Petitioner's guilty plea-was duplicative because the firearm “was not actually used, but only used in the attempt to commit a crime, ” and because Petitioner was charged “multiple times for the same offense, including multiple uses of the same weapon.” (Id. at 5.) Petitioner alleges that this “over charging” was the prosecutor's “way to scare [Petitioner] into pleading guilty.” (Id.)

         Claim 3 asserts that Petitioner's plea was not knowing, intelligent, and voluntary. Petitioner states that he was coerced into pleading guilty because his attorney incorrectly informed him that he was facing the death penalty, and the prosecution “over charge[d]” Petitioner, “all in an attempt to get [him] to enter a plea of guilty.” (Id. at 6.)

         In Claim 4, Petitioner asserts that he was denied the effective assistance of counsel in violation of the Sixth Amendment. Sub-claims (a) through (d) of Claim 4 allege ineffective assistance of trial counsel; Petitioner alleges that his trial counsel (a) improperly waived Petitioner's preliminary hearing, and told Petitioner that he had to plead guilty, in the incorrect belief that Petitioner was facing the death penalty, (b) never spoke to Petitioner about filing an appeal, (c) should have argued that there was no probable cause for Petitioner's arrest, and (d) refused to challenge the charging document as duplicative. (Id. at 7; see also Dkt. 14 at 4.)

         Claim 4(e) asserts that Petitioner was denied the effective assistance of counsel during his state post-conviction proceedings. Petitioner describes the initial post-conviction proceedings in Idaho as “the appeal process for Post Conviction, which is part of the direct appeal process.” (Dkt. 14 at 4.) In doing so, Petitioner argues that initial post-conviction proceedings in Idaho are part of a “bifurcated” direct appeal and, therefore, he had the right to the effective assistance of post-conviction counsel during those proceedings. (Id.; see also Dkt. 1 at 7.)

         The Court previously reviewed the 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. 5 at 2.)

         Respondent argues that Claim 4(e) is noncognizable and that Claims 1, 2, 3, and 4(c) are subject to dismissal as procedurally defaulted. For the reasons that follow, the Court agrees.

         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 4(e) Is Not Cognizable

         In Claim 4(e), Petitioner asserts that his post-conviction counsel rendered ineffective assistance. However, because there is no federal constitutional right to such assistance, Claim 4(e) is not a basis for federal habeas relief. See Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). Although ineffective assistance of initial post-conviction counsel can, in limited circumstances, constitute cause to excuse a procedural default-which the Court will discuss further below-it is not an independent constitutional claim. See Martinez v. Ryan, 566 U.S. 1 (2012). Petitioner's attempted ...


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