United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT JUDGE.
October 3, 2016, the Court dismissed numerous claims in the
instant Petition for Writ of Habeas Corpus, filed by
Petitioner Lacy Mark Sivak (“Petitioner” or
“Sivak”), because the claims (1) were guilt-phase
claims and thus were barred as second or successive pursuant
to 28 U.S.C. § 2244(b), (2) challenged Petitioner's
previously-vacated death sentence, (3) were civil rights
claims that could not be asserted in federal habeas but must
be brought, if at all, in an action under 42 U.S.C. §
1983, or (4) did not constitute a cognizable, freestanding
federal claim. (See Successive Review Order, Dkt.
13, at 9 n.3, 12-14.) At that point, the only claims
remaining in this case were those that challenged
Petitioner's fixed life sentence, which was imposed
following a resentencing hearing:
Petitioner may proceed on the following Claims, but
only to the extent they challenge Petitioner's
life sentence: Claim 8(b) through (f); Claim 14; Claim 18(b);
Claim 19; Claim 20; Claim 22; Claim 23; Claim 24; Claim
26(b); Claim 29(b); Claim 30; Claim 33(a) through (c) and (g)
through (j); and Claim 35.
(Id. at 14.)
August 29, 2017, the Court conditionally granted
Respondent's Motion for Summary Dismissal of these
resentencing claims, preliminarily concluding that the
Petition appeared barred by the statute of limitations and
that the resentencing claims were procedurally defaulted.
(Dkt. 82.) The Court gave Petitioner an opportunity to file a
supplemental response addressing the Court's analysis.
(Id. at 2, 14, 17-19.) Petitioner has done so. (Dkt.
84.) Petitioner has also filed several motions, one of which
asks that the Court reconsider its previous dismissal of
Petitioner's guilt-phase claims. (Dkt. 83, 88, 91, 96,
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). Therefore, Petitioner's Motion for Hearing
(Dkt. 88) will be denied.
carefully reviewed the record, including the state court
record, the Court has reconsidered its previous dismissal of
Petitioner's guilt-phase claims and determined that they
are not subject to the successive petitions bar. Accordingly,
Respondent will be instructed to respond to those claims.
Petitioner's claims challenging his life sentence,
imposed upon resentencing, the Court is persuaded by
Petitioner's new evidence of timeliness and concludes
that the claims are not barred by the statute of limitation.
However, the Court reaffirms its previous conclusion that
Petitioner's resentencing claims are subject to dismissal
as procedurally defaulted. Because Petitioner has not shown
an adequate excuse for the default, his resentencing claims
will be dismissed.
Petitioner Will Be Allowed to Proceed on His Guilt-Phase
a new judgment of conviction was entered following
Petitioner's resentencing,  the Court's previous
dismissal of Petitioner's guilt-phase claims-under the
unauthorized second or successive claim rule of §
2244(b)-was incorrect under Ninth Circuit precedent. See
Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012)
(“[W]here a first habeas petition results in an amended
judgment, a subsequent petition is not successive, even if
its claims could have been raised in a prior petition or the
petitioner effectively challenges an unamended component of
the judgment.”) (internal quotation marks omitted).
Therefore, Petitioner's Motion to Allow Other Issues
Previously Denied to Proceed (Dkt. 101) will be granted.
However, such claims may later be subject to dismissal based
on procedural defenses, such as procedural default or res
judicata. See Id. (“[P]rocedural default
rules-rather than the rules governing ‘second or
successive' petitions-are the more appropriate tools for
sorting out new claims from the old.”).
The Petition Is Timely
has provided evidence that, contrary to Respondent's and
the Court's previous belief, Petitioner did file
a petition for writ of certiorari with the United States
Supreme Court following the Idaho appellate courts'
affirmance of his fixed life sentence. (See Dkt. 84
at 8.) Therefore, the statute of limitations for
Petitioner's federal habeas petition did not begin to run
until that petition for writ of certiorari was denied.
Petitioner has demonstrated that the claims in his Petition
are timely, and Respondent has conceded that
issue. (Dkt. 87 at 2-3.)
Petitioner's Claims Challenging His Life Sentence,
Imposed upon Resentencing, Are Procedurally Defaulted without
though Petitioner's resentencing claims are timely, the
Court must still consider whether they are subject to summary
dismissal as procedurally defaulted. The Court previously
analyzed the issue as follows:
The most straightforward manner in which to resolve the
exhaustion and procedural default status of Petitioner's
federal claims is to review which claims were raised and
addressed on the merits in the state court appellate
proceedings. On direct appeal from the imposition of his life
sentence, Petitioner argued only that the sentencing judge
abused his discretion, under Idaho state law, by sentencing
Petitioner to life in prison without the possibility of
parole and by denying Petitioner's Rule 35 motion.
(State's Lodging R-1.)
Petitioner raised no federal claims on direct appeal of his
fixed life sentence, and he did not pursue any other appeal
involving that sentence. Therefore, none of the claims in the
Petition is exhausted. Further, because it is now too late
for Petitioner to exhaust those claims, they appear to be
procedurally defaulted. See Gray [v. Netherland],
518 U.S. [152, ] 161-62 [(1996)]; see also Idaho
Code § 19-4902 (“An application may be filed at
any time within one (1) year from the expiration of the time
for appeal or from the determination of an appeal or from the
determination of a proceeding following an appeal, whichever
is later.”); Idaho Code § 19-4908 (“All
grounds for relief available to an applicant under this act
must be raised in his original, supplemental or amended
(Dkt. 82 at 16-17 (footnote omitted).) The Court instructed
Petitioner to set forth any reason why the claims should not
be dismissed as procedurally defaulted, including with
respect to the issues of actual innocence and cause and
now argues that (1) his resentencing claims are not
procedurally defaulted because he fairly presented them to
the Idaho Supreme Court in his pro se filings, and (2) even
if the claims are defaulted, actual innocence excuses that
Petitioner's Pro Se Documents Filed with the Idaho
Appellate Courts Did Not Fairly Present His Resentencing
first challenges the Court's previous determination that
his resentencing claims are procedurally defaulted.
Petitioner argues that he did, in fact, fairly present his
resentencing claims to the Idaho appellate courts-through his
submission of pro se filings-but the state courts refused to
consider those pro se arguments because Petitioner was
represented by counsel. (Dkt. 84 at 10-12.) This amounts to
an argument that, pursuant to the Eighth Circuit's
decision in Clemmons v. Delo, 124 F.3d 944 (8th Cir.
1997), Petitioner did all that he could do to present those
claims to the state appellate courts.
petitioner in Clemmons initially raised a
Brady claim in his state post-conviction petition,
but his appellate post-conviction counsel did not raise that
claim on appeal. Counsel omitted the claim from the appellate
briefing despite the fact that the petitioner
“specifically stated [to his attorney] that he wanted
all of his issues preserved” and that the
petitioner-after the brief was filed without including all of
Clemmons's issues-instructed counsel to file a
supplemental brief. 124 F.3d at 948. The petitioner also
expressly notified counsel that “issues not raised
would later be held not to have been properly
presented.” Id. Counsel responded that the
decision on which claims to raise was correct, stating that
he had “made every argument on [the petitioner's]
behalf that [he] felt could be supported by law and
evidence.” Id. Clemmons then filed a motion
with the Missouri Supreme Court, asking that he be allowed to
file a supplemental pro se brief and informing the court that
counsel's brief did not include all the claims the
petitioner had requested. The court denied the motion.
federal habeas proceedings, Clemmons asserted the
Brady claim. He then faced an argument that the
claim was procedurally defaulted because it had not been
fairly presented to the highest state court. The Eighth
Circuit held that Clemmons had fairly presented the issue,
despite counsel's failure to include it in counsel's
brief, because Clemmons “did the only thing he could
do: he tried to bring the issue to the attention of the
Missouri Supreme Court himself.” Id. Because
there was nothing more he could have done “as a
practical matter” to present that claim, the claim was
not procedurally defaulted. Id. at 948-49; see
also Veenstra v. Smith, No. 1:11-cv-00632-BLW, 2014 WL
1270626, at *16 (D. Idaho Mar. 26, 2014) (“[T]o fairly
present claims in a circumstance where the petitioner
disagrees with counsel's narrowing of claims, a
petitioner must take steps on his own, such as seeking leave
of court to introduce a supplemental pro se filing containing
the additional claims counsel refused to present.”).
Importantly, the state court in Clemmons did not
have a regularly-applied rule regarding pro se briefs filed
by represented litigants:
No rule of court or reported Missouri case of which we are
aware specifies the circumstances under which Missouri
appellate courts allow pro se briefs. A state procedural rule
must be regularly adhered to if it is to be an adequate state
ground supporting a procedural bar. Sometimes Missouri courts
allow pro se briefs, and sometimes they do not. That is their
prerogative. But in the absence of regularly applied
criteria, the ...