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Hayes v. Atencio

United States District Court, D. Idaho

September 24, 2018

MICHAEL THOMAS HAYES #34295, Petitioner,
HENRY ATENCIO, Respondent.


          B. Lynn Winmill Chief U.S. District Court Judge.

         While incarcerated, Petitioner Michael Thomas Hayes filed a Petition for Writ of Habeas Corpus challenging his third state DUI conviction. His conviction would have been a misdemeanor, but for previously having been convicted of two DUI within a ten-year period, which elevated the third offense to a felony. (Dkt. 3.) Petitioner is now a parolee under supervision of the Idaho Department of Correction (IDOC). Accordingly, the Court has substituted IDOC Director Henry Atencio for Warden Chad Page as the appropriate respondent.

         Without objection from Petitioner, Respondent has construed the Petition as containing the following claims: (1) Hayes' trial counsel was ineffective for (a) failing to seek dismissal of the third DUI charge based on the fact that, when the prior two DUI guilty pleas were entered, the law provided for enhancements for a third DUI charge if it occurred within five years, not within ten years-as Petitioner was charged with in 2011 (a “specific performance” argument); and (b) failing to collaterally attack the prior misdemeanor DUI convictions which served as the predicate offenses for Hayes' felony DUI; (2) Idaho Code §§ 18-8005 and 18-8006 are facially unconstitutional; (3) trial counsel was ineffective for coercing Hayes' guilty plea; and (4) the state courts' “misapplication” of State v. Lamb, 206 P.3d 497 (Idaho App. 2009) violated his constitutional rights. (Id.)

         Earlier in this matter, the Court granted partial summary dismissal in favor of Respondent, dismissing Claims Two and Four on procedural default grounds, dismissing Claim Four on alternative grounds of failure to state a federal claim upon which relief can be granted, and permitting Claims One and Three to proceed to a merits adjudication. (Dkt. 22.) The Court permitted Petitioner to submit any cause and prejudice arguments or miscarriage of justice arguments and any arguments arising from his late receipt of the full state court record in this matter with his reply to the answer.

         Respondent has filed his Answer, and Petitioner has filed his Reply. (Dkts. 24, 25.) Accordingly, the Petition is ready for disposition. Having reviewed the record, including the state court record, and having considered the arguments of the parties, the Court enters the following Order.


         In a criminal action in the Fourth Judicial District Court in Ada County, Idaho, Petitioner pleaded guilty to and was convicted of felony DUI (“2011 DUI”), a charge which consists of three or more DUI convictions within ten years, under I.C. § 18-8004. The judgment of conviction was entered on October 26, 2011. Petitioner had been convicted of two prior DUI convictions-in 2003, 2004-although the State labeled the charges “first offense DUIs.” The third conviction is primarily at issue in this matter, because it was elevated to a felony conviction as a result of the two prior offenses. Petitioner's arguments to challenge the third conviction focus on how the two prior offenses were used as a basis for elevating the third offense from a misdemeanor to a felony. The supervised probation terms of the two prior plea agreements expired in 2005 and 2006, and thus both sentences were satisfied prior to the 2011 charge.

         For the 2011 felony DUI conviction, Petitioner received a sentence of two years fixed with eight years indeterminate. He did not file a direct appeal, but pursued a state post-conviction action.[1]

         Petitioner contests the fact that, at the time he was convicted of his first two DUIs, state law provided that three DUIs within five years amounted to a felony for the third DUI, but, after that date, the law changed to be three DUIs within ten years, and, therefore, Petitioner's third DUI, committed after enactment of the new statute, made him eligible for felony DUI and a longer sentence. (See Dkt. 13-1.)


         Where the petitioner files a federal habeas corpus action to challenge a state court judgment, Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), applies. 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).

         Though the source of clearly established federal law must come only from the holdings of the United States Supreme Court, circuit precedent may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). However, circuit law may not be used “to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

         To assess whether habeas corpus relief is warranted, the federal district court reviews “the last state-court adjudication on the merits.” Greene v. Fisher, 565 U.S. 34, 41 (2011). The deferential standard of section 2254(d) applies regardless of whether the state court decision “is unaccompanied by an opinion explaining the reasons relief has been denied.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99. When the last adjudication on the merits provides a reasoned opinion, federal courts evaluate the opinion as the grounds for denial. 28 U.S.C. 2254(d).

         However, where the state's highest court did not issue a reasoned decision, courts within the Ninth Circuit review the decision of the Idaho Court of Appeals, using the “look through” principle of Ylst v. Nunnemaker, 501 U.S. 797 (1991), and “presume the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016).[2]

         The clearly-established law governing a claim of ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984). There, the United States Supreme Court determined that, to succeed on an ineffective assistance claim, a petitioner must show that (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness, and that (2) the petitioner was prejudiced by the deficient performance. Id. at 684.

         In assessing whether trial counsel's representation fell below an objective standard of competence under Strickland's first prong, a reviewing court must view counsel's conduct at the time that the challenged act or omission occurred, making an effort to eliminate the distorting lens of hindsight. Id. at 689. The court must indulge in the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

         Prejudice under these circumstances means there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 684, 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. at 694.

         A petitioner must establish both incompetence and prejudice to prove an ineffective assistance of counsel case. 466 U.S. at 697. On habeas review, the court may consider either prong of the Strickland test first, or it may address both prongs, even if one is deficient and will compel denial. Id.

         “[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Missouri v. Frye, 566 U.S. 134 (2012) (citation omitted); see Hill v. Lockhart, 474 U.S. 52 (1985) (holding that the Strickland v. Washington test applies to guilty plea challenges based on ineffective assistance of counsel).

         It is “clear that appointed counsel, and not his client, is in charge of the choice of trial tactics and the theory of defense.” United States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir. 1987) (citing Henry v. Mississippi, 379 U.S. 443, 451 (1965)). An attorney is not ineffective for refusing to pursue a certain defense after making a reasonable strategic choice supported by an adequate investigation. Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995).

         The foregoing standard, giving deference to counsel's decisionmaking, is the de novo standard of review. Another layer of deference-to the state court decision-is afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims on habeas corpus review, the United States Supreme Court explained:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, supra, at ...

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