United States District Court, D. Idaho
DENNIS R. HEILMAN, Petitioner,
RANDY BLADES, Respondent.
MEMORANDUM DECISION AND ORDER
C. Nye U.S. District Court Judge
Dennis Heilman is proceeding on his Amended Petition for Writ
of Habeas Corpus, which is now fully briefed. Dkts. 11, 40,
41, 51. Also pending before the Court are several motions
filed by the parties. 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.
OF MOTION FOR JUDICIAL CLARIFICATION
seeks copies of Exhibit 27 (a police interview) and Exhibit
28 (an audio recording) from Respondent. Judge Edward J.
Lodge earlier notified Petitioner that the Court would
reconsider his request for production of the audio recording
(Exhibit 28) if his Petition survived Respondent's
summary dismissal motion. Dkt. 34. Judge Lodge later entered
an Order granting in part and denying in part the summary
dismissal motion, but he did not further address production
of the exhibits. Nevertheless, Respondent voluntarily
provided a copy of Exhibits 27 and 28 to Petitioner. Dkt. 44.
Therefore, because the object of Petitioner's Motion for
Clarification is met, the Motion is now moot.
OF MOTION FOR EXTENSIONS OF TIME
before the Court are various requests for extensions of time
for the filing of responses filed by the parties. Good cause
appearing, the motions will be granted.
and his wife, Penny, had a 22-year-long relationship, the
last 14 of which they were married. They had two children
together. In this action, Petitioner was accused of breaking
into their marital home where Penny resided, raping her, and
holding her hostage.
the couple's separation, Penny filed for divorce,
remained in the family home with their two children, and
obtained a permanent civil protection order against
Petitioner. As a result, Petitioner was immediately excluded
from his home and belongings, and felt displaced, angry, and
resentful. He wanted to reconcile with Penny. Because of the
protection order, the couple met at a local McDonald's
each week to exchange their two children for Petitioner's
visitation. State's Lodging A-3, p. 664-68.
evening of Friday, December 16, 2005, Petitioner had the
children for visitation. He left them sleeping at his
mother's house, put a large amount of Keystone beer in
his truck, and drove to Penny's residence. He testified
that he had been drinking, felt suicidal, and took his
holstered pistol with him, because, in his own words,
“I guess I had it in my head that if I couldn't fix
things, I didn't want to live any more.”
Id., p. 842.
early morning hours of December 17, 2005, Petitioner tried to
enter the residence that he and Penny once shared. Petitioner
testified that he tried several keys, tried to use his garage
door opener, became impatient, and used a baseball bat from
the garage to break through the door. Id., pp.
842-43. Penny awoke, heard Petitioner outside, and yelled for
him to go away. When she saw his hand reach through the hole
in the door, she picked up the phone to call 911. However, he
ripped the phone from the wall before she made contact. He
said to her, “Who's holding the cards now,
bitch?” Id., p. 843.
had several variations of how she and Petitioner got from the
kitchen to the bedroom. At trial, Penny testified that
Petitioner unsnapped the holster to his gun, pushed her, and
told her to get back to the bedroom. Id., p. 675.
Petitioner denied ever unholstering his gun. Id., p.
844-45. He denied having threatened her with the gun that
night. Id., p. 846.
testified at trial that Petitioner made her lie down on the
floor in front of the bed and made her put her hands above
her head. He said if she moved, he would kill her. She did
not see him take the gun out of the holster, but surmised
that he must have taken it out while he escorted her to the
bedroom. He held the gun on her while she was lying on the
floor, though he never touched her with it. She thought he
was going to shoot here then and there. State's Lodging
A-3, pp. 675-77.
lay still while Petitioner left the room for a short time.
Petitioner returned with a can of beer, and he allowed Penny
to get up off the floor and sit on the bed. He began to ask,
“How could you have done this to me?”-meaning the
divorce and the restraining order. He said he wanted to come
back. He was very upset over Penny's choice of a lawyer
in the divorce proceedings. Penny testified that Petitioner
was very emotional and angry and kept the gun beside him the
entire time. Id., pp. 678-81.
on the other hand, testified on direct examination that he
and Penny went to the bedroom and sat on the bed and talked
about some of their problems. Id., pp. 843-44. He
wanted to go out to get some beer out of his truck, and so he
“asked her to lay down on the floor.”
Id., at 844. He says the gun was never removed from
the holster. Id. at 845.
Penny told Petitioner that she didn't want to reconcile,
he made her lie on the bed face down with her hands above her
head. He pointed the gun at her and said if she moved, he
would kill her. Id., p. 681. He again left the room
for a short time and came back with a shot gun and
ammunition. Id., p. 682-83. She could not think of a
way to escape quickly enough because of the layout of the
house and decided that it was better just to lie there.
Id. When Petitioner sat down on the bed and began to
load the shotgun, he allowed Penny to sit up on the bed.
Id. In contrast, Petitioner testified during
cross-examination that he asked her to stay lying on the bed,
and that she was face down on her stomach, but no threat was
made. State's Lodging A-3, p. 88.
1:00 a.m. and 3:00 a.m., Petitioner discussed the same topics
repeatedly with Penny-talking about how that the demise of
their marriage was his fault, changing his position to
discuss how it was Penny's fault, and reminiscing about
good times they had had together. She tried to calm him by
reminding him to think about their “two wonderful
children” and encouraging him to look forward, not back
in his life. Id., p. 685.
took off all his clothes except his underwear and t-shirt. He
decided he wanted to cuddle with Penny, and she complied to
keep him calm. He dozed off between 3:00 and 6:00 a.m., but
she was unable to escape because he was not sound asleep, and
every time she moved, he gripped her tighter. Petitioner
disagreed with Penny's perception that she was not free
the entire ordeal, Petitioner drank the Keystone beer that he
had brought with him. He had also brought two bags of
marijuana. Penny declined to smoke it, but Petitioner pointed
the gun at her and said, “Do it.” She said she
“faked like [she] was doing it, but not.”
Id., pp. 691-92. Petitioner contrarily testified
that she smoked with him voluntarily. Id., p.
approximately 6:00 a.m., Petitioner woke up and Penny told
him he should go back to the children he left sleeping at his
mother's house. He refused, because nothing had been
solved, and he wanted an assurance from her that he could
come back. Id., p. 849. He resumed drinking. He told
her he wanted to have sex with her, and she said no. He then
pushed her down and pulled down her sweatpants, at which
point he realized she was menstruating. He straddled her and
told her to perform oral sex, and she said, “Please
stop, please stop, no.” He took off his underwear and
rubbed his penis on her face. State's Lodging A-3, pp.
reached inside her sweatshirt, grabbed her nipples, and began
to twist them. She screamed in pain, and he told her to shut
He covered her mouth with one hand and her nose with the
other for a few seconds, causing her to be unable to breathe.
Id., p. 696.
next tried to engage in anal sex but was unsuccessful in
penetrating her because she resisted by screaming and
squeezing her buttocks together. She was “moving all
the time trying to get him off [her].” Id., p.
697. He then turned her over and proceeded to rape her. She
begged him to stop. She lay supine with her legs down. He
asked her to put her legs up so he could enjoy it more, but
she refused. He twisted her nipples again very hard.
Id., pp. 698-701.
testified on direct examination that he started out asking
her for oral sex, but she was not interested. He then said he
twisted her nipples like he normally did during sex, and then
they had sex, without a struggle, without Penny ever saying
no. Id., 850-51. On cross-examination, Petitioner
said he didn't remember straddling Penny's chest, but
that it was “possible.” Id., p. 877. He
said he didn't recall whether she was crying during
intercourse, but said it was “possible.”
Id., p. 879. He said Penny really didn't want to
have sex with him, but that he didn't force her to.
Id., pp. 879-80.
remained unable to escape. When Petitioner's mother woke
up and couldn't find Petitioner at home, she called
Petitioner's brother's girlfriend, Ruby, to see if
she had seen him. Id., p. 475. Ruby located
Petitioner's truck at Penny's residence.
Id., p. 476.
about 9:00 a.m., Penny heard banging on the door, but
Petitioner would not let her answer. Penny's perception
was that Petitioner did not want her to answer the phone, and
so she made no attempt to answer. They could hear Penny's
sister Ruby leaving message after message, with a final
message that if they didn't pick up, she would send the
police over. State's Lodging A-3, pp. 882-84. They also
heard Petitioner's father call and leave a message
saying, “Don't do anything stupid.”
Id., p. 886. Petitioner testified that he didn't
pick up the telephone calls but Penny was free to pick them
up if she wanted to. Id., pp. 702, 887. Petitioner
moved Penny and his weapons into the basement of the house,
where there were additional weapons that he loaded.
Id., pp. 702-723.
about 10:30 a.m., Petitioner and Penny heard police officers
enter the home and go upstairs. Petitioner yelled to the
officers, “Get the fuck out of my house.”
Id., p. 454. The officers left. Over the next
several hours, Petitioner was engaged in a stand-off with
police officers, moving Penny back and forth between the
basement and the bedroom. During that time, Petitioner also
asked Penny about their wills, specifically, “who got
the children when we were gone.” Id., p. 701.
Penny convinced Petitioner not to kill himself during the
standoff. Id., p. 766. He had gone so far as to put
the gun to his head. Id., p. 767.
theory on the charges was that he had momentarily mentally
snapped and was suicidal, but that he had no intention of
hurting Penny, only reconciling with her. His position was
that the sexual intercourse was consensual, and that she was
free to leave at any time during his visit.
on cross-examination, Petitioner testified otherwise in
response to the prosecutor's questions:
Q. When you heard the SWAT team come in upstairs, you
didn't let Penny go out and say it's okay, you
don't need to hurt anyone, correct?
Q. She wasn't free to leave, isn't that true?
A. I never told her she couldn't leave.
Q. Was she free to leave?
A. She wasn't free to leave; you had not resolved your
State's Lodging A-3, p. 895.
about 4:00 p.m., a police SWAT team entered the house and
ordered Petitioner to put up his hands, because he was
sitting amongst several firearms. He would not, and so an
officer kicked him in the chest. Id., pp. 554-55.
Penny was able to escape at that time with the officers'
help. Petitioner was taken into custody. Id., pp.
was charged with rape, aggravated assault, second-degree
kidnaping, burglary, and a sentencing enhancement for use of
a deadly weapon in commission of the crimes. State's
Lodgings A-1, pp. 21-24; A-4. Petitioner was represented at
trial by attorney Richard Cuddihy. The lead prosecutor was
Sandra Dickerson. Petitioner proceeded to trial. The jury
convicted him of rape, aggravated assault, false imprisonment
and unlawful entry (lesser included offenses of kidnaping and
burglary). State's Lodging A-1, pp. 111-115. The state
district court sentenced Petitioner to six fixed years of
imprisonment on the rape and aggravated assault charges, with
fourteen years indeterminate, and to concurrent shorter
sentences for the lesser included offenses. State's
Lodgings A-1, pp. 166-170; A-3, pp. 1078-1079; A-4.
proceeding through direct appeal and post-conviction
proceedings in state court, Petitioner filed this federal
habeas corpus action. Earlier in this matter, the Court
dismissed several of Petitioner's claims with prejudice
on procedural grounds. Dkt. 37. The Court permitted
Petitioner to proceed to the merits of Claims One, Two,
Four(b), Five(b), Seven, Eight, Nine, Ten, Eleven, and
Thirteen through Fifteen. Thereafter, in his Answer and Brief
in Support of Dismissal, Respondent raised an additional
procedural defense to these claims. Dkt. 40. The Court first
addresses the procedural defense.
in granting in part Respondent's Motion for Partial
Summary Dismissal, the Court determined that Claims Four(a),
Five(a), and Six were procedurally defaulted. The Court
permitted Petitioner to show that adequate excuse for the
default in this round of litigation.
Answer and Brief in Support of Dismissal of Petition (Dkt.
40), Respondent newly asserts that Petitioner's remaining
ineffective assistance of counsel claims- Four(b), Five(b),
Seven, Eight, Nine and Eleven-are also procedurally defaulted
for the following reasons. Petitioner presented his
ineffective assistance of trial counsel claims to the state
district court in his successive post-conviction
petition. After “a hearing on the state's motion
[for summary dismissal], the district court summarily
dismissed Heilman's successive petition, concluding that
his claims either did not justify relief as a matter of law
or were not supported by evidence raising a genuine issue of
material fact.” State's Lodging G-4 p. 2. On appeal
of the dismissal, the Idaho Court of Appeals concluded that
Petitioner did not meet the procedural requirements set forth
in Idaho Code §19-4908 for bringing ineffective
assistance of trial counsel claims in a successive petition,
because Petitioner attempted to raise them in a successive
post-conviction petition. The Idaho Court of Appeals agreed
with the state district court that the claims should have
been brought in the original petition and no adequate excuse
existed for the failure to bring them. See
State's Lodging G-4.
threshold matter, This Court first concludes that raising
this procedural defense in the Answer is procedurally
appropriate, because the Order to Re-Open Case specified that
procedural defenses could be raised either in a pre-answer
motion or in the answer, in the alternative to a merits
argument on the claims. (Dkt. 13, p. 9). There is no legal or
equitable reason that Respondent cannot raise some of the
procedural issues earlier and others later, so long as
Petitioner has an opportunity to reply, as here.
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, 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 state rule's
“use of an imprecise standard . . . is no justification
for depriving a rule's language of any meaning.”
Walker, 562 U.S. at 318 (internal quotation marks
and alteration omitted).
procedural bar is “independent” of federal law if
it does not rest on, and if it is not interwoven with,
federal grounds. Bennett v. Mueller, 322 F.3d 573,
581 (9th Cir. 2003). A rule will not be deemed independent of
federal law “if the state has made application of the
procedural bar depend on an antecedent ruling on federal law
such as the determination of whether federal constitutional
error has been committed.” Id. (internal
quotation marks and alteration omitted); see also Ake v.
Oklahoma, 470 U.S. 68, 75 (1985) (stating that
“when resolution of the state procedural law question
depends on a federal constitutional ruling, the state-law
prong of the court's holding is not independent of
federal law, and our jurisdiction is not precluded, ”
and holding that a state waiver rule was not independent
because, “[b]efore applying the waiver doctrine to a
constitutional question, the state court must rule, either
explicitly or implicitly, on the merits of the constitutional
Petitioner's case, the state procedural bar is grounded
in state statute:
All grounds for relief available to an applicant under this
act must be raised in his original, supplemental or amended
application. Any ground finally adjudicated or not so raised,
or knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or in
any other proceeding the applicant has taken to secure relief
may not be the basis for a subsequent application, unless
the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately raised
in the original, supplemental, or amended application.
Idaho Code § 19-4908 (emphasis added).
laid blame for the default of his ineffective assistance of
trial counsel claims at the feet of his original
post-conviction counsel. Petitioner failed to assert any
other excuse for the failure to raise his other claims.
See State's Lodging G-4.
2014, the Idaho Supreme Court has changed direction and
interpreted I.C. § 19-4908 as not permitting
the assertion of ineffective assistance of post-conviction
counsel as an adequate excuse for omitting claims from an
original post-conviction petition. Murphy v. State,
327 P.3d 365 (Idaho 2014) (interpreting Idaho Code §
19-4908). Since that date, that rule of interpretation has
been consistently applied in Idaho. As of the date Petitioner
attempted to raise ineffective assistance of post-conviction
counsel as grounds for permitting him to file a successive
state post-conviction matter, that rule of interpretation was
well-established. This Court knows of no pattern of
deviations from this rule that would cause it to question its
consistent application since 2014. It is a rule that is not
intertwined with federal law, and therefore it is an
independent procedural bar.
the other new ineffective assistance of trial counsel claims
that Petitioner tried to bring without asserting any excuse
for their default, the Court concludes they are barred by the
plain language of I.C. §19-4908, above. This statutory
bar predates Murphy and has been well-established
and consistently applied by the Idaho courts. It is a bar
that has nothing to do with federal law.
the Court concludes that the following additional claims are
procedurally barred: Claims Four(b), Five(b), Seven Eight,
Nine, and Eleven. However, rather than permitting Petitioner
additional opportunity to brief whether there exists an
adequate excuse for the default of these claims, the Court
will consider the merits of the claims themselves, as if they
are not procedurally defaulted.
NOVO MERITS REVIEW OF DEFAULTED CLAIMS
Standard of Law
federal claim reaches federal habeas corpus review, if the
highest state appellate court did not decide the merits of
the claim, then the more deferential habeas corpus standard
of § 2254(d)(1) (discussed further below) does not
apply, and the federal district court reviews the claim de
novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th
de novo review, if the factual findings of the state court
are not unreasonable, the Court must apply the presumption of
correctness found in 28 U.S.C. § 2254(e)(1) to any facts
found by the state courts. Id. at 1167. Contrarily,
if a state court factual determination is unreasonable, or if
there are no state court factual findings, the federal court
is not limited by § 2254(e)(1), the federal district
court may consider evidence outside the state court record,
except to the extent that § 2254(e)(2) might apply.
Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir.
2014); Maxwell v. Roe, 628 F.3d 486, 495-96 (9th
Ineffective Assistance of Counsel Claims
Standard of Law
clearly-established law governing a claim of ineffective
assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984). There, the United
States Supreme Court determined that, to succeed on an
ineffective assistance claim, a petitioner must show that (1)
counsel's performance was deficient because it fell below
an objective standard of reasonableness, and that (2) the
petitioner was prejudiced by the deficient performance.
Id. at 684.
assessing whether trial counsel's representation fell
below an objective standard of competence under
Strickland's first prong, a reviewing court must
view counsel's conduct at the time that the challenged
act or omission occurred, making an effort to eliminate the
distorting lens of hindsight. Id. at 689. The court
must indulge in the strong presumption that counsel's
conduct fell within the wide range of reasonable professional
under these circumstances means there is a reasonable
probability that, but for counsel's errors, the result of
the proceeding would have been different. Id. at
684, 694. A reasonable probability is one sufficient to
undermine confidence in the outcome. Id. at 694.
petitioner must establish both incompetence and prejudice to
prove an ineffective assistance of counsel case. 466 U.S. at
697. On habeas review, the court may consider either prong of
the Strickland test first, or it may address ...