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Jimenez v. Blades

United States District Court, D. Idaho

December 14, 2018

JUAN A. JIMENEZ, Petitioner,
v.
RANDY BLADES, Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge.

         On June 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.)

         Pending 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.)

         The 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).

         The 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 not issue.

         MOTION TO TAKE JUDICIAL NOTICE

         Petitioner 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.

         Petitioner 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.

         Petitioner 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.

         The 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.

         MOTION FOR APPOINTMENT OF COUNSEL

         Petitioner 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).

         After a 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 Petitioner's claims.

         REVIEW OF MOTION FOR PARTIAL SUMMARY DISMISSAL

         1. Factual Background

         The 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, [1] and 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 blood.

(State's Lodging F-5, pp.1-2.)

         This 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.

         All the 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 “shoved.” (Id.)

         Petitioner's 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.

         In 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.

         Contrary to Petitioner's strategy of blaming Ruben Nungary, the prosecutor argued:

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.)

         The 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. 104-05.)

         After 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.)

         Petitioner 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.)

         While 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.)

         Petitioner 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.)

         Petitioner's 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.)

         2. Petitioner's Claims and Summary Dismissal Briefing

         Petitioner brings the following claims in his Petition for Writ of Habeas Corpus:

         1. 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.)

         2. 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 ...


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