United States District Court, D. Idaho
JUAN A. JIMENEZ, Petitioner,
RANDY BLADES, Respondent.
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale United States Magistrate Judge.
13, 2016, the Court re-opened Petitioner Juan A.
Jimenez's stayed habeas corpus matter. (Dkt. 12.)
Petitioner is proceeding on his Amended Petition. (Dkt. 13.)
All named parties have consented to the jurisdiction of a
United States Magistrate Judge to enter final orders in this
case. See 28 U.S.C. § 636(c) and Fed.R.Civ.P.
73. (Dkt. 22.)
before the Court is Respondent's Motion for Partial
Summary Dismissal of all but two of Petitioner's claim on
grounds of procedural default. (Dkt. 25.) The Motion is fully
briefed with the filing of the documents the Court is
construing as Petitioner's Responses (Dkts. 25, 31, 34).
Several preliminary motions are also pending. (Dkt. 34, 35.)
Court has taken 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).
Court has concluded that the claims at issue are procedurally
defaulted and that no adequate reason excuses their default.
In considering whether adequate excuse exists, the Court has
reviewed the merits of the remaining two claims that are not
procedurally defaulted. Rather than require expenditure of
any further taxpayer money on requiring an answer from
Respondent and considering more briefing, the Court will also
dispose of the remaining claims on the merits in this Order.
Accordingly, for the reasons that follow, Petitioner's
entire Petition for Writ of Habeas Corpus will be denied and
dismissed with prejudice. A certificate of appealability will
TO TAKE JUDICIAL NOTICE
has filed a Motion to Take Judicial Notice. (Dkt. 34.) A
court may take judicial notice of adjudicative facts that are
not subject to a reasonable dispute. Fed.R.Evid. 201. When
judicial notice has been taken of certain facts, the fact
finder must accept the facts as conclusive. Id.
asks the Court to take judicial notice of the law governing
Brady claims. That subject is not the proper object
of a judicial notice request because published court cases
are not facts. The Court has considered whether Brady v.
Maryland and its progeny apply to Petitioner's case,
however, which seems to be what Petitioner is asking. A
Brady discussion is included below.
desires that the Court take judicial notice that he is
proceeding pro se. Again, this is not an adjudicative fact,
but it is a circumstance that has been taken into
consideration by the Court.
remainder of Petitioner's motion focuses on contested
facts and argument. The Court has taken judicial notice of
the Affidavit of Xavier Manchuca because it is part of the
state court record, but it cannot take judicial notice of
Petitioner's argument that it was properly presented to
the state courts. The Court cannot take judicial notice of
Petitioner's assertion that he was prejudiced by the
prosecutor's implication that the blood on
Petitioner's shoes belonged to the victim, when, after
trial, that was determined to be untrue; this assertion is
more appropriately construed as argument, rather than the
subject of judicial notice. (Dkt. 36.) Accordingly, the
Motion for Judicial Notice (Dkt. 34) is moot in part and will
be denied in part, but the Court will consider
Petitioner's motion as supplemental argument in support
of his Petition for Writ of Habeas Corpus.
FOR APPOINTMENT OF COUNSEL
has filed a Motion to Appoint Counsel. (Dkt. 37.) Petitioner
seeks appointment of counsel, because he has no legal
training or resources. There is no constitutional right to
counsel in a habeas corpus action. Coleman v.
Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner
has a right to counsel, as provided by rule, if counsel is
necessary for effective discovery or if an evidentiary
hearing is required in his case. See Rules 6(a)
& 8(c) of the Rules Governing Section 2254 Cases. In
addition, the Court may exercise its discretion to appoint
counsel for an indigent petitioner in any case where required
by the interests of justice. 28 U.S.C. § 2254(h); 18
U.S.C. § 3006A(a)(2)(B). Whether counsel should be
appointed turns on a petitioner's ability to articulate
his claims in light of the complexity of the legal issues and
his likelihood of success on the merits. See Weygandt v.
Look, 718 F.2d 952, 954 (9th Cir. 1983).
review of the record, the Court concludes that appointing
counsel for Petitioner is not necessary. Neither discovery
nor an evidentiary hearing is required to adjudicate this
matter. See Rules 6(a) & 8(c) of the Rules
Governing Section 2254 Cases; 28 U.S.C. § 2254(h); 18
U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 718
F.2d 952, 954 (9th Cir. 1983). In fact, the Court has
determined that it would be a waste of public resources to
appoint counsel based on the lack of merit of
OF MOTION FOR PARTIAL SUMMARY DISMISSAL
Idaho Court of Appeals described the evidence presented at
trial as follows:
The record reflects that Jimenez and his friend [Ruben
Nungary] were driven to the convenience store by a female
acquaintance, and Jimenez's friend went inside the store.
Jimenez's friend returned to the car and asked Jimenez to
go inside, and Jimenez and the friend went in the store.
Inside, a verbal argument ensued between Jimenez and his
friend on one side and the victim [Jay Curtis Voshall] and
another individual on the other side. At some point,
Jimenez's friend slapped the victim's face,
the commotion drew the attention of customers in the store
and the cashier. Moreover, the commotion and subsequent
events were recorded by the store's surveillance cameras.
Within a matter of seconds, the situation escalated, and
Jimenez, it appeared to the customers and cashier, shoved or
pushed the victim. Jimenez and his friend exited the store,
and the victim exclaimed that he had been stabbed or shanked.
One of the customers read off the license plate of the car
that Jimenez and his friend returned to. Another customer,
who was outside the store, watched the car pull out of the
store's parking lot and proceed down the street. This
customer was also able to follow the vehicle for a time. The
car carrying Jimenez was eventually pulled over, and Jimenez
was arrested and transported to the Caldwell City Police
Department. Although officers did not find a knife on Jimenez
or in the car, an officer preparing to place Jimenez in the
holding cell noticed that Jimenez's shoes had red stains
on them. The next day, a Caldwell City Police Department
detective followed the route of the car carrying Jimenez to
search for a knife. Less than a quarter mile away from the
convenience store, the detective located a folding knife
alongside the roadway with red stains. Jimenez was charged
with aggravated battery and the case proceeded to trial.
At trial, the State presented testimony from customers, the
cashier, law enforcement, and a criminalist, and also played
surveillance video clips to the jury. The criminalist
testified that both the shoes and knife had human blood on
them, but she did not identify whose blood it was. In closing
argument, the prosecutor suggested that the blood on the
shoes came from the victim. Defense counsel reiterated to the
jury that there was no evidence as to the source of the
(State's Lodging F-5, pp.1-2.)
was a somewhat unusual trial for several reasons. Two key
players were absent from trial. The victim, Voshall, did not
testify at trial. Neither did Nungary, Petitioner's
friend, who seemed to have started the fight by hitting
Voshall, after which Petitioner “shoved” Voshall.
Also unusual was the fact that the store's surveillance
cameras had caught the incident on video from several angles.
Thus, it was almost as if the jurors could witness the
incident themselves by viewing the video.
witnesses at the convenience store testified that Petitioner
“shoved” the victim with one hand, not two.
(See State's Lodging A-2.) Petitioner testified
that he shoved the victim “in the middle of the chest,
” but did not stab him. (Id., p. 470, 451.) On
cross-examination, Petitioner acknowledged that a shove
usually makes people fall backwards. (Id., p. 471.)
In this instance, Petitioner admitted, the victim
“double[d] over leaning over” when he was
defense at trial was that Nungary had punched and stabbed
Voshall before Petitioner shoved Voshall. Petitioner
theorized that the blood on the shoes could have come from
Voshall's bloody nose.
asserting that Nungary stabbed Voshall early in the
confrontation, Petitioner relied on the testimony of one
witness, Anna Lopez, who said that Voshall did not even
realize he had been stabbed until his friend told him so. Her
memory was different from that of two other eyewitnesses,
Brad Watson and Kevin Trey Bailey, who both testified that,
just after Petitioner pushed Voshall, Voshall doubled over
and exclaimed that he had been stabbed or shanked.
to Petitioner's strategy of blaming Ruben Nungary, the
Jay Curtis Voshall clearly having been socked in the nose by
all accounts by most people, by the video, would appear to
have been done by Ruben Nungary wearing a green shirt that
said “Oregon” on it. Could the blood have come
from here? How the heck did it get on Juan's shoes? When
Juan walked past Jay Voshall, Voshall went like this, Juan
went that way off to the side of him.
[Defendant suggests] [t]he notion that during the trauma or
stress of the entire situation that Voshall could have been
punched in the nose, simultaneously stabbed or shortly
thereafter stabbed, presumably by Ruben Nungary…that
it takes him moments to realize he has been stabbed. Jay
Voshall bent over when Juan Jimenez walked past him and
pushed him, when he stabbed him. And in short order he
straightened up and he said either, “I've been
shanked” or “I've been stabbed.”
I have a hard time believing that the pain associated with
the broken nose blocked the pain from the wound, … the
gaping wound as testified by the EMT that's consistent
with being made by a sharp object…. The bloody nose,
according to the defense, overrode the gaping bloody wound.
His actions don't suggest that because he bent over. He
bent over, lifts his shirt, says, “I got shanked”
or “I got stabbed, ” takes off his other shirt
and puts pressure on it.
(State's Lodging A-3, p. p. 34-35.)
jury found Petitioner guilty of aggravated battery.
(Id., p. 64.) He was sentenced to a term of nine
years fixed with six years indeterminate. (Id., pp.
his conviction in 2008, Petitioner filed a direct appeal
contending that the trial court abused its discretion by
imposing an excessive sentence. (State's Lodging B-1.)
The Idaho Court of Appeals affirmed the sentence, and the
Idaho Supreme Court denied Petitioner's petition for
review. (State's Lodgings B-4 through B-8.)
next filed a pro se post-conviction relief petition. The
state district court appointed counsel for Petitioner, who
filed an amended petition for post-conviction relief and a
motion for DNA testing. Petitioner insisted that the blood on
his shoes was from an earlier fight with Xavier Machuca that
same day, not from the victim. Petitioner asserted that he
asked his trial counsel to ask Machuca to testify, but
counsel never did so. The motion for DNA testing was denied
and the post-conviction petition was dismissed upon the
State's motion. (State's Lodgings C-1 through C-5.)
Petitioner filed a notice of appeal. (State's Lodging
C-3, pp. 488-91.)
the appeal of his first post-conviction matter was pending,
Petitioner filed a successive post-conviction petition pro
se. (State's Lodging E-1.) Petitioner produced an
affidavit from Machuca confirming Petitioner's
contentions and stating that Machuca was willing to
participate in DNA testing. He also stated that he would have
testified at Petitioner's trial that the blood on the
shoes was his if he had been asked by Petitioner's
counsel. (State's Lodging E-1, p. 103.) Petitioner also
presented evidence arising from a related federal action
using the Voshall stabbing as a predicate act to charge
Petitioner with gang-related racketeering. In 2013, the
United States Attorney General had asked the Federal Bureau
of Investigation (FBI) to DNA-test the evidence from the
Voshall stabbing. The FBI lab results confirmed that the
blood on Petitioner's shoes was not the
victim's. However, the testing indicated that
Voshall's blood was inside Petitioner's pants pocket
and on the discarded knife. (Id., pp. 105-110.)
was appointed counsel, who filed an amended petition. The
successive post-conviction action was dismissed as untimely.
Thereafter, the two appeals were consolidated into one
action. (State's Lodging F-4.) The Idaho Court of Appeals
affirmed denial of post-conviction relief in both actions.
(State's Lodging F-5.)
counsel chose two claims to raise in the petition for review
before the Idaho Supreme Court. That petition was denied, and
a remittitur was issued, concluding Petitioner's state
court actions. (State's Lodgings F-6 to F-9.)
Petitioner's Claims and Summary Dismissal
brings the following claims in his Petition for Writ of
Ineffective assistance of trial counsel before
trial, including: (a)(i) failing to file pretrial
motions to suppress, (ii) failing to subpoena alibi
witnesses, and (iii) failing to listen to Petitioner's
version of the facts; (b)(i) failing to conduct DNA
testing on Petitioner's shoes (corresponding to a
claim in the post-conviction petition for review), (ii)
failing to investigate Xavier Machuca regarding blood on
Petitioner's shoes, and (iii) failing to go to the scene
of the crime and locate potential witnesses; (c) failing to
investigate Voshall, who did not want to testify or
cooperate; (d) failing “to get the video evidence from
the prosecutor”; (e) moving to withdraw from
Jimenez's case prior to trial; (f) agreeing to waive the
preliminary hearing without knowing all of the evidence; and
(g) failing to obtain a contact visit with Jimenez to allow
review of the video surveillance and failing to prepare
Jimenez to testify. (See Dkt. 13.)
Ineffective assistance of trial counsel during
trial, including: (a) failing to object or attempt to
exclude admission of the shoes during trial; (b) failing to
give an explanation to the jury regarding how the blood got
on the shoes; (c) failing to investigate an alibi defense or
present any alibi witnesses to corroborate Petitioner's
theory that the blood on the shoes belonged to Machuca from a
previous fight; and (d) failing to request a jury instruction
on the lesser-included offense of battery.
3.Other ineffective assistance of trial counsel
claims, including: (a) failing to retain an
investigator; (b)(i) failing to have DNA testing
completed on the shoes so that a suppression motion could
have been filed (which corresponds to one of the claims
presented in the post-conviction petition for review), (ii)
failing to prevent the prosecutor from using the shoes as
evidence against him, and (iii) failing to prevent the
prosecutor from using argument ...