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Kellis v. Carlin

United States District Court, D. Idaho

September 28, 2018

TIMOTHY ANDREW KELLIS, Petitioner,
v.
WARDEN CARLIN, Respondent.

          MEMORANDUM DECISION AND ORDER

          Ronald E. Bush Chief U.S. Magistrate Judge.

         Pending before the Court is an Amended Petition for Writ of Habeas Corpus filed by Idaho state prisoner Timothy Andrew Kellis (“Petitioner”), challenging Petitioner's Latah County convictions on twelve charges of sexual misconduct. (Dkt. 11.) Respondent has filed a Motion for Partial Summary Dismissal, arguing that all but one of Petitioner's claims are subject to dismissal as noncognizable or procedurally defaulted. (Dkt. 30.) The Motion is now ripe for adjudication.[1]

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent.[2] (Dkt. 22.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).

         The parties 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). (Dkt. 17.) 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 granting Respondent's Motion for Partial Summary Dismissal and dismissing Claims 1 through 25 with prejudice.

         BACKGROUND

         The facts underlying Petitioner's conviction are set forth clearly and accurately in Kellis v. State, Docket No. 41034, Op. 672 (Idaho Ct. App. Aug. 15, 2014) (unpublished), which is contained in the record at State's Lodging D-5. The facts will not be repeated here except as necessary to explain the Court's decision.

         In the Second Judicial District Court in Latah County, Idaho, a jury convicted Petitioner of nine counts of lewd conduct with a minor under the age of sixteen, one count of attempted lewd conduct, and two counts of sexual abuse of a child, all of which involved four teenage boys and “much of which occurred at a Boy Scout camp where [Petitioner] was a staff member.” (State's Lodging D-5 at 1.) Petitioner received a cumulative sentence of life imprisonment with 15 years fixed.

         On direct appeal, Petitioner raised only two claims: (1) that the trial court violated Petitioner's right to due process by enhancing his sentence because Petitioner asserted his innocence, and (2) that Petitioner's sentence was excessive under Idaho law because the trial court failed to give appropriate weight to certain mitigating evidence. (State's Lodging B-1.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State's Lodging B-3; B-6.)

         Petitioner then filed a petition for state post-conviction relief, was appointed counsel (and later substitute counsel after Petitioner's first two attorneys withdrew), and filed an amended petition. (State's Lodging C-2 at 14-40, 156-59, 166, 186-87.) Petitioner's motion to modify the amended petition and to file a second amended petition was granted in part and denied in part. (State's Lodging C-3 at 280-82, 321.) The post-conviction petition asserted 12 claims of ineffective assistance of trial counsel and one claim of ineffective assistance of direct appeal counsel. (State's Lodging C-2 at 190-96; C-3 at 313-320.) The trial court dismissed the petition. (State's Lodging C-3 at 425-40.)

         Petitioner was represented by counsel on appeal and argued only that the state district court erred, under Idaho law, by not providing sufficient notice before dismissing the petition for post-conviction relief. (State's Lodging D-1, D-4.) Petitioner did not argue the merits of the 13 claims he raised in the post-conviction petition. The Idaho Court of Appeals affirmed, holding that Petitioner received adequate notice because the state district court dismissed the petition on the same grounds as those asserted by the state in its motion to dismiss. (State's Lodging D-5.) The Idaho Supreme Court denied review. (State's Lodging D-8.)

         Petitioner returned to the state district court and filed a successive post-conviction petition. (State's Lodging E-2 at 11-38.) Petitioner was initially appointed counsel; though the court initially denied counsel's request to withdraw, it later approved a renewed motion to withdraw. (Id. at 115, 157-63, 193-95, 206-07.) Petitioner then filed a pro se amended petition. (State's Lodging E-3 at 229-65.) Petitioner asserted a total of eight claims, six of which alleged ineffective assistance of trial counsel and two of which alleged ineffective assistance of direct appeal counsel. (Id. at 231-60.)

         In two separate decisions, the state district court dismissed all of Petitioner's claims based on Idaho's successive-petitions bar, which prohibits successive post-conviction petitions unless a “sufficient reason” justifies the court's consideration of the petition. See Idaho Code § 19-4908. The state court held that Petitioner had not established a sufficient reason for the court to hear the successive claims and that the claims (1) were merely restatements of claims raised in the initial post-conviction proceedings, or (2) could have been, but were not, raised in those initial proceedings. Alternatively, the court dismissed the successive claims based on the state-law doctrine of res judicata, which is also known as claim preclusion. (State's Lodging E-4 at 502-10, 512-31, 543-47.) The Idaho Court of Appeals affirmed after granting Petitioner's appellate counsel's motion to withdraw, and the Idaho Supreme Court denied review. (State's Lodging F-1 through F-3; F-7; F-10.)

         Petitioner filed the instant federal habeas petition while his state court proceedings were ongoing. The case was stayed and then later reopened, and Petitioner filed an Amended Petition. (Dkt. 9, 11, 14.) The Court has described the 26 claims in the Amended Petition as follows:

Claim 1: Ineffective assistance of trial counsel for failing to investigate and present evidence that the victims had made similar allegations against another individual.
Claim 2: Ineffective assistance of trial counsel for failing to call character witnesses, individuals who “participated in shotgun classes or shooting, ” and individuals “with direct knowledge of the Petitioner's time at the shotgun range.”
Claim 3: Ineffective assistance of trial counsel for failing to obtain expert testimony regarding the victims' delay of disclosure and possible motivations to fabricate the allegations.
Claim 4: Ineffective assistance of trial counsel for failing “to fully explore the possibility of a plea agreement.”
Claim 5: Ineffective assistance of trial counsel for failing “to adequately impeach the State's witnesses” with prior inconsistent statements.
Claim 6: Ineffective assistance of trial counsel for failing to object to certain evidence under Idaho Rule of Evidence (“IRE”) 404(b).
Claim 7: Ineffective assistance of trial counsel for failing to obtain an expert to evaluate scientific evidence such as DNA.
Claim 8: Ineffective assistance of trial counsel for failing to conduct an adequate voir dire examination during jury selection.
Claim 9: Ineffective assistance of trial counsel for failing (a) to call a witness regarding a trip to Silverwood and (b) to object to certain evidence under IRE 404(b).
Claim 10: Ineffective assistance of trial counsel for failing to investigate and call as witnesses individuals who had spoken to the victims about the allegations.
Claim 11: Ineffective assistance of trial counsel for failing to raise an issue of “name calling” during the trial.
Claim 12: Ineffective assistance of trial counsel for failing to investigate telephone records.
Claim 13: Ineffective assistance of direct appeal counsel for failing to raise issues requested by Petitioner.
Claim 14: Ineffective assistance of trial counsel for failing “to conduct an adequate review of the State's witnesses” with respect to a detective's interview techniques.
Claim 15: Ineffective assistance of trial counsel for failing to obtain an expert to evaluate those interview techniques.
Claim 16: Ineffective assistance of trial counsel for failing “to conduct a reasonable pre-trial investigation by failing to contact occurrence witnesses ... and by failing to present testimony” to corroborate Petitioner's testimony.
Claim 17: Ineffective assistance of trial counsel for failing to move to dismiss the indictment filed on September 8, 2008, based on subject matter jurisdiction.
Claim 18: Ineffective assistance of direct appeal counsel for failing to assert a double jeopardy violation.
Claim 19: Ineffective assistance of direct appeal counsel for failing to present “issues of fundamental error ... as pertaining to the filing of the Amended Indictment and subject matter jurisdiction.”
Claim 20: Ineffective assistance of initial post-conviction counsel for failing “to adequately raise ... claims of ineffective assistance of trial and appellate counsel” as set forth in Claims 1 through 19.
Claim 21: Violation of due process based on the post- conviction court's dismissal of Petitioner's initial post-conviction petition without proper notice.
Claim 22: Violation of due process based on the post- conviction court's denial of Petitioner's motion for appointment of conflict counsel [in the successive post-conviction proceedings].
Claim 23: Violation of due process based on the state district court's failure to hold a hearing on Petitioner's counsel's [renewed] motion to withdraw [in ...

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