United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE
Jeffrey Thies filed a Petition for Writ of Habeas Corpus to
challenge his state criminal conviction. (Dkt. 1.) In
response, Respondent filed a Motion for Summary Dismissal,
seeking dismissal of all Petitioner's claims on
procedural grounds. (Dkt. 13.) The Court preliminarily agreed
that the claims were procedurally barred and conditionally
granted Respondent's Motion. (Dkt. 20.) The Court
explained the reasons underlying dismissal, informed
Petitioner how to make a factual showing to overcome the
procedural bars, and provided him with a response period.
Petitioner has filed his response to the Order. (Dkt. 23.)
named parties have consented to the jurisdiction of a United
States Magistrate Judge to enter final orders in this case.
(Dkt. 10.) See 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73. Having considered the parties' arguments
and reviewed the record, including the portions of the state
court record lodged by the parties, the Court enters the
OF PETITIONER'S RESPONSE TO THE ORDER OF CONDITIONAL
Standard of Law governing Summary Dismissal
petitioner's compliance with threshold procedural
requirements is at issue, a respondent may file a motion for
summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the
Rules Governing § 2254 Cases authorizes the Court to
summarily dismiss a petition for writ of habeas corpus when
“it plainly appears from the face of the petition and
any attached exhibits that the petitioner is not entitled to
relief in the district court.” The Court takes judicial
notice of the records from Petitioner's state court
proceedings lodged by the parties.
1, 2011, Petitioner was convicted by an Ada County jury of
felony trafficking in methamphetamine and several misdemeanor
crimes-possession of marijuana, possession of paraphernalia,
and two counts of injury to children for transporting
teenaged stepsons in a car containing drugs intended for
trafficking. After entry of judgment, Petitioner pursued a
direct appeal, asserting that the state district court had
erroneously denied his motion to suppress evidence of drugs
that officers found in his car after summoning a
drug-sniffing police dog. The Idaho Court of Appeals rejected
Petitioner's claim and upheld his conviction and
sentences. The Idaho Supreme Court denied Petitioner's
petition for review. (State's Lodgings B-1 to B-10.)
Petitioner pursued a state post-conviction petition. Counsel
was appointed for Petitioner in the action. Eventually, the
petition was summarily dismissed by the state district court.
(State's Lodging C-1.)
Dennis Benjamin was appointed counsel for Petitioner on
appeal of the post-conviction matter; however, counsel
withdrew from the case after finding no meritorious issues
for appeal. (State's Lodgings D-1 to D-3.) Petitioner
filed a pro se appellate briefing raising the following
issue: “Did the district court err when it dismissed
Mr. Thies['] petition for post-conviction relief on the
grounds of ineffective assistance of counsel, i.e., that the
effectiveness of counsel was not prejudicial to Mr.
Thies['] case.” (State's Lodgings D-4, p. 1
Idaho Court of Appeals affirmed the denial of post-conviction
relief (State's Lodging D-7), and Petitioner did not file
a petition for review with the Idaho Supreme Court.
Previously in this case, Petitioner asserted that he filed a
petition for review with the Idaho Supreme Court that was
denied on March 22, 2016; however, that petition was not
included in Respondent's lodging of the state court
record. In the Order of conditional dismissal, the Court
invited Petitioner to file a copy of any petition for review
bearing a filing stamp with his response. He did not do so.
The Court returns to its original premise that Petitioner is
mistakenly referring to the Idaho Court of
Appeals' opinion, which was issued on March 22,
2016, and that no petition for review with the Idaho Supreme
Court was filed.
next filed his federal Petition for Writ of Habeas Corpus,
raising the following claims:
•Claim 1: “Violation of the Fourth Amendment to
wit; Illegal Search and Seizure.” .
•Claim 2: “Violation of the Sixth (6) Amendment of
the Constitution to wit; Ineffective Assistance of
•Claim 3: “Violation of the Fourteenth Amendment
and Fifth Amendments to wit; Violation of Due Process.”
(Dkt. 1, pp. 3-4 (verbatim).)
has asserted that Claim 1 is barred by the doctrine of
Stone v. Powell, 428 U.S. 465, 494 (1976), and that
Claims 2 and 3 are procedurally defaulted. The Court will
re-examine each claim.
Review of Claim 1
first claim is a Fourth Amendment unlawful search and seizure
Standard of Law governing Threshold Procedural
threshold issue in a Fourth Amendment claim presented in a
federal habeas corpus petition is whether the state provided
the petitioner an opportunity for full and fair litigation of
his claim in state court. Stone v. Powell, 428 U.S.
at 494. If the federal district court determines that full
and fair litigation of the claim occurred, it cannot grant
habeas corpus relief on the ground that the evidence was
obtained in violation of the Fourth Amendment. Id.
v. Powell requires only the initial opportunity for a
fair hearing. Such an opportunity for a fair hearing
forecloses this Court's inquiry into the trial
court's successive course of action. See Caldwell v.
Cupp, 781 F.2d 714, 715 (9th Cir. 1986). This threshold
inquiry focuses on whether a state procedure allowing for
full and fair litigation existed, not whether defendant
actually used those procedures to his advantage. See
Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990).
Stated another way, “[t]he relevant inquiry is whether
petitioner had the opportunity to litigate his claim, not
whether he did in fact do so or even whether the claim was
correctly decided.” Ortiz-Sandoval v. Gomez,
81 F.3d 891, 899 (9th Cir. 1996); see also Locks v.
Sumner, 703 F.2d 403, 408 (9th Cir.), cert.
denied, 464 U.S. 933 (1983). The petitioner bears the
burden of establishing that the state courts did not consider
the Fourth Amendment claim fully and fairly. Mack v.
Cupp, 564 F.2d 898, 901 (9th Cir. 1977).
Stone Court did not specify a test for determining
whether a state has provided an opportunity for full and fair
litigation of a claim. The Ninth Circuit has held that, where
a habeas petitioner challenges state court application of the
law, the reviewing federal court should consider the extent
to which the claims were briefed before, and considered by,
the state trial and appellate courts. See Terrovona v.
Kincheloe, 912 F.2d 1176, 1178-1179 (9th Cir. 1990)
(citing Abell v. Raines, 640 F.2d 1085, 1088 (9th
Cir. 1981)), cert. denied, 499 U.S. 979 (1991).
Factual and Procedural Background
pertinent facts underlying Petitioner's convictions were
summarized by the ...