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Beavers v. Little

United States District Court, D. Idaho

September 28, 2018

MARK D. BEAVERS, Petitioner,
STEVE LITTLE, Respondent.



         Pending before the Court in Mark D. Beavers' habeas corpus matter are several motions ripe for adjudication. The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). 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.


         The Idaho Court of Appeals described the facts of the underlying charges as follows:

After receiving reports of a strong odor of marijuana emanating from Beavers' home, police obtained a search warrant. During the search of Beavers' home, police discovered forty-five growing marijuana plants, jars containing marijuana, and literature on growing marijuana. Police also discovered scales, bags, and paraphernalia. Beavers was arrested and charged with trafficking in marijuana and possession of a controlled substance with the intent to deliver [in one case].
While Beavers was out on bond on those charges, he was arrested for selling marijuana to an undercover police officer. Police again obtained a search warrant for his home and discovered growing marijuana plants, seeds, bags, scales, and jars containing marijuana. Beavers was charged with trafficking in marijuana, possession of a controlled substance with the intent to deliver, and delivery of a controlled substance in [a second case].

(State's Lodging B-5 at 1-2.)

         Petitioner was convicted of both sets of crimes in two separate trials in the First Judicial District Court in Coeur d'Alene, Idaho. The two sets of crimes were eventually consolidated for sentencing. This habeas corpus action challenges only the second set of charges. Attorney Martin Neils, of the Kootenai County Public Defender Office, represented Petitioner at his first trial; Attorney Staci Anderson represented Petitioner at his second trial.

         In a consolidated direct appeal, all of Petitioner's convictions were affirmed. (State's Lodging B-5.) However, the sentences arising from the second criminal action were vacated, because the sentence enhancement was improperly determined. The Idaho Court of Appeals concluded that the trial court should have ordered a jury trial on the enhancement after it concluded that Petitioner's admission of prior felony convictions was involuntary.

         Upon remand, a jury found facts necessary for the enhancements. Petitioner was re-sentenced on those counts on December 20, 2011, and a judgment was entered. Petitioner obtained no other relief on appeal of his sentences after remand. (State's Lodging D-4.)

         Petitioner filed a post-conviction action asserting one prosecutorial misconduct claim and thirteen ineffective assistance of trial counsel claims. (State's Lodging E-1.) The state district court appointed Attorney J. Lynn Brooks to represent Petitioner. The State filed a motion for summary dismissal, and Petitioner's counsel filed a responsive brief. The Court held a telephonic oral argument hearing on the motion. Petitioner was not present.

         Several weeks after the hearing, Petitioner filed a motion for change of counsel, asserting that his counsel was ineffective for several reasons. The state court granted the State's motion for summary dismissal without addressing Petitioner's motion for change of counsel.

         Petitioner was represented by Attorney Jason Pintler of the State Appellate Public Defender Office on appeal. The Idaho Court of Appeals affirmed summary dismissal of the post-conviction petition, and the Idaho Supreme Court denied review. (State's Lodging F-4 to F-6.)

         It appears that Petitioner has satisfied most of his sentences, except the enhanced trafficking sentence, which extends to 2022.[1] He is currently on parole.

         Previously in this matter, the Court granted Respondent's Motion for Summary Dismissal to the extent that it concluded the following claims were procedurally defaulted: Claims 4 through 11, and 13 through 16 (ineffective assistance of trial counsel claims); Claims 17 (prosecutorial misconduct), 20 (merits of factual disputes not fully resolved in underlying criminal proceedings) and 21(a) (fact-finding procedure inadequate). Claims 18 through 20 and 21(b) through 24 were dismissed as noncognizable. Dkt. 21. Only Claims 1 and 12 remain for a merits determination.

         The Court permitted Petitioner to file a Motion for Application of the Martinez v. Ryan exception to excuse the procedural default of his ineffective assistance of trial counsel claims. Dkt. 21. Two extensions of time for submission of the motion were granted. Dkts. 26, 34. The Court will first consider the preliminary motions, and then proceed to the Martinez v. Ryan motion.


         Petitioner has filed a Motion to Reconsider Appointment of Counsel, his second such request. Dkt. 35. Having reviewed the request in light of the substance of the record, the Court again declines to appoint counsel.

         Petitioner has filed a Motion for Discovery. Dkt. 37. Petitioner asserts that he has never been provided with the full recordings of the conversations between him and the police confidential informant, Cathy Johnson, that occurred on November 20 and 21, 2007, which led to the second set of charges against Petitioner. See Dkt. 37-1 at 9; Dkt. 44 at 18; Dkt. 55 at 14. The Court will expand the record with the new recordings supplied by Petitioner that he received in 2017, but only to the extent that they may be used for procedural default purposes.

         However, Petitioner still asserts that the new recording he received is not the full recording. Nothing in the entire record suggests that there is another recording, or that the recording he has was altered. Petitioner's belief, alone, does not support his request.

         Good cause for discovery exists when there is “reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (internal quotation marks and alteration omitted). To show good cause, a request for discovery must be supported by specific factual allegations. Habeas corpus review “was never meant to be a fishing expedition for habeas petitioners to explore their case in search of its existence.” Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (internal quotation marks omitted). If good cause is shown, the extent and scope of discovery is within the court's discretion. See Habeas Rule 6(a).

         Petitioner has not shown good cause to continue to hunt for an “original” recording. Nor has he provided any inkling as to the content of this “original” recording, or why it would aid his defense, since the evidence at Petitioner's second trial showed that he sold marijuana to a third party. (State's Lodging A-6 at 37-46.) Moreover, the Court has listened carefully to the recording and heard nothing, such as an obvious break in the recording, to indicate that it has been altered or otherwise edited from the alleged “original.” Petitioner and Johnson are frequently heard talking over each other, which would make alteration all but impossible. No. further discovery is warranted.

         Petitioner has also filed a Motion to Expand the Record. Dkt. 45. Most of the documents he has supplied pertain to his medical necessity defense. The Court will grant the motion only to the extent that the new items may be used for procedural default purposes.

         Petitioner and Respondent have filed Motions for Extensions of Time as to various document deadlines. Dkts. 36, 47, 48, 51, 52. Good cause appearing, the motions will be granted.


         1. Standard of Law

         There exists a limited exception to the general rule that ineffective assistance of post-conviction counsel cannot constitute cause to excuse a procedural default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (setting forth general rule). That exception was established in Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the court held that a circumstance of no counsel or inadequate assistance of counsel “at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 9, 17. The Martinez Court created the limited exception because “as an equitable matter... the initial-review collateral proceeding, if undertaken without counsel, or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim.” Id. at 14.

         The Martinez v. Ryan exception permits the district court to hear procedurally defaulted claims of ineffective assistance of trial counsel. Id. at 16. The exception, however, has not been extended to other types of claims. Davila v. Davis, 137 S.Ct. 2058, 2065 (2017). Neither does Martinez apply to attorney ineffectiveness in ...

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