United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: DEFENDANTS'
SECOND MOTION FOR SUMMARY JUDGMENT (DKT. NO. 49)
PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT (DKT. NO.
53) PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL
PLEADING (DKT. NO. 58)
E. Bush Chief U.S. Magistrate Judge.
before the Court is a Petition for Writ of Habeas Corpus
filed by Idaho state prisoner Jose Antonio Ruiz
(“Petitioner”), challenging Petitioner's
state court convictions. (Dkt. 1.) Respondent has filed a
Motion for Summary Dismissal, arguing that all of
Petitioner's claims are procedurally defaulted. (Dkt.
18.) The Motion is now ripe for adjudication.
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. (Dkt. 11.) See Fed. R. Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th
parties have consented to the jurisdiction of a United States
Magistrate Judge to conduct all proceedings in this case in
accordance with 28 U.S.C. § 636(c) and Federal Rule of
Civil Procedure 73. (Dkt. 8.) Having carefully reviewed the
record, including the state court record, the Court finds
that oral argument is unnecessary. See D. Idaho L.
Civ. R. 7.1(d). Accordingly, the Court enters the following
Order granting Respondent's motion and dismissing this
case with prejudice.
facts underlying Petitioner's conviction are set forth
clearly and accurately in State v. Ruiz, 366 P.3d
644 (Idaho Ct. App. 2015), which is also contained in the
record at State's Lodging B-4. The facts will not be
repeated here except as necessary to explain the Court's
a jury trial in the Fourth Judicial District Court in Ada
County, Idaho, Petitioner was convicted of two counts of lewd
conduct with a minor under the age of sixteen and one count
of sexual abuse of a minor under the age of sixteen.
Ruiz, 366 P.3d at 645. Petitioner appealed, arguing
that the trial court erred, under Idaho state law, when it
denied denying Petitioner's motion for a mistrial after a
state's witness-the victim's father-violated a
pretrial order excluding certain descriptions or
characterizations of text messages sent by Petitioner to the
victim; in addition, Petitioner argued for the first time on
appeal that the prosecutor committed misconduct during
closing argument by misstating the reasonable doubt standard,
thereby lowering the prosecution's burden of proof.
(State's Lodging B-1; B-3.)
Idaho Court of Appeals affirmed Petitioner's convictions
in a published opinion. The court first held that the trial
court did not err in denying Petitioner's motion for a
mistrial, based on the father's testimony, under Idaho
Criminal Rule 29.1. Ruiz, 366 P.3d at 646-47. As for
Petitioner's prosecutorial misconduct claim, Petitioner
had not objected to the alleged misconduct at trial.
Therefore, the appellate court declined to consider the
alleged error, concluding that Petitioner had not satisfied
the first prong of Idaho's fundamental error
doctrine-that there was a violation of one of
Petitioner's unwaived constitutional rights. Id.
petition for review to the Idaho Supreme Court, Petitioner
argued only his second issue-prosecutorial misconduct in
closing argument. However, Petitioner stated, in a footnote,
that if the state supreme court were to grant review, that
court also should consider the mistrial issue decided by the
court of appeals with respect to the father's testimony
about the text messages. (State's Lodging B-6.) The Idaho
Supreme Court denied review. (State's Lodging B-7.)
then filed a petition for state post-conviction relief.
Petitioner argued that, in violation of the United Nations
Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, he was not advised of
his right to contact a “consular post” or a
similar foreign representative. (State's Lodging C-1.)
The state district court issued a notice of intent to dismiss
the petition and denied Petitioner's demand for default.
(State's Lodging C-7; C-8.) Although neither order was a
final disposition of Petitioner's claims, Petitioner
appealed both orders. (State's Lodging C-9; C-10.) The
state district court later dismissed the petition, concluding
that the principle cited by Petitioner was “not a basis
for post-conviction relief” and that Petitioner's
claim was “bare and conclusory” in any event.
(State's Lodging C-11 at 4.)
Idaho Supreme Court conditionally dismissed Petitioner's
appeal because it was not from a final order and called for a
response. (State's Lodging D-1.) Petitioner did so,
attaching the district court's final order of dismissal.
(State's Lodging D-2.) The state supreme court then
issued a second notice of conditional dismissal, this time
based on Petitioner's failure to pay the “required
fees for preparation of the Clerk's Record” and the
lack of any order from the trial court waiving such fees.
(State's Lodging D-3.) Petitioner responded, stating,
“There are no fee's for Post-Conviction
Remedy.” (State's Lodging D-4 (verbatim).)
Petitioner did not seek a waiver of fees. Because Petitioner
neither sought a waiver nor paid the record preparation fees,
the Idaho Supreme Court dismissed the appeal. (State's
instant federal habeas corpus petition, Petitioner asserts
two claims of ineffective assistance of trial counsel
(“IATC”) and two claims of due process
violations. Claim 1(a) “asserts IATC for failure to
advise [Petitioner] of his right to consult with a consular
post or national diplomat, and right to diplomatic
counsel.” (Memo. in Opp. to Mot. Summ. Dismissal, Dkt.
29, at 9-10.) Claim 1(b) “asserts IATC for failing to
object to prejudicial testimony” regarding text
messages, in violation of a pretrial order. (Id.)
2(a) claims that the trial court violated due process when it
did not grant a mistrial after testimony about the text
messages presented by (i) the victim's father and (ii)
the victim's aunt, Ms. Mendoza. (Id. at 10.) Claim
2(b) alleges that the trial court should have granted a
mistrial after the prosecutor committed misconduct by
“lower[ing] the state's burden of proof, due to
improper and highly prejudicial commentary during closing
Court previously reviewed the Petition and allowed Petitioner
to proceed on his claims to the extent those claims
“(1) are cognizable in a federal habeas corpus action,
(2) were timely filed in this Court, and (3) were either
properly exhausted in state court or subject to a legal
excuse for any failure to exhaust in a proper manner.”
(Dkt. 5 at 3.)
now argues that Petitioner's claims are subject to
dismissal as procedurally defaulted.
Rules Governing Section 2254 Cases (“Habeas
Rules”) authorize the Court to summarily dismiss a
petition for writ of habeas corpus when “it plainly
appears from the face of the petition and any attached
exhibits, ” as well as those records subject to
judicial notice, “that the petitioner is not entitled
to relief in the district court.” Habeas Rule 4;
see Fed. R. Evid. 201(b); Dawson, 451 F.3d
at 551 n.1. Where appropriate, a respondent may file a motion
for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
reasons that follow, the Court concludes that
Petitioner's claims are procedurally defaulted and that
Petitioner has not established an adequate excuse for the
default. Thus, the Petition must be dismissed with prejudice.
Standards of Law
habeas petitioner must exhaust his or her remedies in the
state courts before a federal court can grant relief on
constitutional claims. O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). To do so, the petitioner must
invoke one complete round of the state's established
appellate review process, fairly presenting all
constitutional claims to the state courts so that they have a
full and fair opportunity to correct alleged constitutional
errors at each level of appellate review. Id. at
845. In a state that has the possibility of discretionary
review in the highest appellate court, like Idaho, the
petitioner must have presented all of his federal claims at
least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires
a petitioner to describe both the operative facts and the
legal theories upon which the federal claim is based.
Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008).
mere similarity between a federal claim and a state law
claim, without more, does not satisfy the requirement of fair
presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court
to “broad constitutional principles, such as due
process, equal protection, [or] the right to a fair trial,
” are likewise insufficient. See Hiivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). Generally,
for proper exhaustion, a petitioner must bring his federal
claim before the state court by “explicitly”
citing the federal legal basis for his claim. Lyons v.
Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as
amended, 247 F.3d 904 (9th Cir. 2001).
habeas petitioner has not fairly presented a constitutional
claim to the highest state court, and it is clear that the
state court would now refuse to consider it because of the
state's procedural rules, the claim is said to be
procedurally defaulted. Gray v. Netherland, 518 U.S.
152, 161-62 (1996). Procedurally defaulted claims include
those within the following circumstances: (1) when a
petitioner has completely failed to raise a claim before the
Idaho courts; (2) when a petitioner has raised a claim, but
has failed to fully and fairly present it as a
federal claim to the Idaho courts; and (3) when the
Idaho courts have rejected a claim on an adequate and
independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004);
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
qualify as an adequate procedural ground, a state rule must
be firmly established and regularly followed.”
Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
quotation marks omitted). That is, the state procedural bar
must be one that is “‘clear, consistently
applied, and well-established at the time of the
petitioner's purported default.'” Martinez
v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001)
(quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th
Cir. 1994)). A state procedural bar can be considered
adequate even if it is a discretionary rule, and even though
“the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not
others.” Beard v. Kindler, 558 U.S. 53, 61
(2009). A ...