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Heilman v. Blades

United States District Court, D. Idaho

October 19, 2018

DENNIS R. HEILMAN, Petitioner,
RANDY BLADES, Respondent.


          David C. Nye U.S. District Court Judge

         Petitioner 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.


         Petitioner 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.


         Pending 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.


         Petitioner 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.

         During 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.

         On the 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.

         In the 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.

         Penny 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.

         Penny 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.

         Penny 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.

         Petitioner, 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.

         When 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.

         Between 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.

         Petitioner 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 to leave.

         During 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. 846.[1]

         At 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. 694-95.

         He next reached inside her sweatshirt, grabbed her nipples, and began to twist them. She screamed in pain, and he told her to shut up.[2] 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.

         Petitioner 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.

         Petitioner 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.

         Penny 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.

         At 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.

         At 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.

         Petitioner's 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.

         However, 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?
A. 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 issues?
A. Correct.

State's Lodging A-3, p. 895.

         Finally, 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. 702-723; 899-96.

         Petitioner 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.

         After 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.


         Previously 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.

         In his 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.

         As a 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.

         “To 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).

         A state 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 question”).

         In 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).

         Petitioner 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.

         Since 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.

         As to 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.

         Accordingly, 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.


         1. Standard of Law

          When a 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 Cir. 2002).

         Under 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 Cir. 2010).

         2. Ineffective Assistance of Counsel Claims

         A. Standard of Law

          The 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.

         In 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 assistance. Id.

         Prejudice 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.

         A 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 ...

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