United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
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
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.)
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.
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.
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 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
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
OF LAW FOR MERITS DETERMINATION
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;
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, 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).
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).
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.
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.
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
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.
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.
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).
“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).
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 ...