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Thies v. Atencio

United States District Court, D. Idaho

February 25, 2019

JEFFREY THIES, Petitioner,
v.
HENRY ATENCIO, Respondent.

          MEMORANDUM DECISION AND ORDER

          HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.)

         All 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 following Order.

         REVIEW OF PETITIONER'S RESPONSE TO THE ORDER OF CONDITIONAL DISMISSAL

         1. Standard of Law governing Summary Dismissal

         When a 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.

         2. Procedural Background

         On June 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.)

         Thereafter, 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.)

         Attorney 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 (verbatim).)

         The 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.

         Petitioner 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 Counsel.” .
•Claim 3: “Violation of the Fourteenth Amendment and Fifth Amendments to wit; Violation of Due Process.”

(Dkt. 1, pp. 3-4 (verbatim).)

         Respondent 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.

         3. Review of Claim 1

         Petitioner's first claim is a Fourth Amendment unlawful search and seizure claim.

         A. Standard of Law governing Threshold Procedural Issue

         The 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.

         Stone 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).

         The 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).

         B. Factual and Procedural Background

         The pertinent facts underlying Petitioner's convictions were summarized by the ...


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