United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
E. Bush Chief U.S. Magistrate Judge.
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.
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. (Dkt. 22.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1
(9th Cir. 2006).
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).
the Court enters the following Order granting
Respondent's Motion for Partial Summary Dismissal and
dismissing Claims 1 through 25 with prejudice.
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(unpublished), which is contained in the record at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.
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
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.)
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.)
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.)
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.)
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.)
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
Claim 4: Ineffective assistance of trial counsel for failing
“to fully explore the possibility of a plea
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
Claim 7: Ineffective assistance of trial counsel for failing
to obtain an expert to evaluate scientific evidence such as
Claim 8: Ineffective assistance of trial counsel for failing
to conduct an adequate voir dire examination during jury
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
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
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
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
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