Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sivak v. Christensen

United States District Court, D. Idaho

September 27, 2018

LACEY MARK SIVAK, Petitioner,
v.
JAY CHRISTENSEN, [1] Respondent.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL CHIEF U.S. DISTRICT JUDGE.

         On 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.)

         On 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, 101, 110.)

         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). Therefore, Petitioner's Motion for Hearing (Dkt. 88) will be denied.

         Having 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.

         As for 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.

         1. Petitioner Will Be Allowed to Proceed on His Guilt-Phase Claims

         Because a new judgment of conviction was entered following Petitioner's resentencing, [2] 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.”).

         2. The Petition Is Timely

         Petitioner 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.[3] (Dkt. 87 at 2-3.)

         3. Petitioner's Claims Challenging His Life Sentence, Imposed upon Resentencing, Are Procedurally Defaulted without Adequate Excuse

         Even 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 application.”).

(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 prejudice.

         Petitioner 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 default.

         A. Petitioner's Pro Se Documents Filed with the Idaho Appellate Courts Did Not Fairly Present His Resentencing Claims

         Petitioner 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.

         The 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.

         In 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.