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Knight v. Yordy

United States District Court, D. Idaho

March 20, 2019

KEITH YORDY, Respondent.



         Respondent Keith Yordy filed a Motion for Summary Dismissal in this habeas corpus matter on March 5, 2018. (Dkt. 20.) Petitioner responded by filing a Second Amended Petition. (Dkt. 23.) On July 9, 2018, the Court notified Petitioner that he must file a response to the summary dismissal motion or suffer dismissal of this action for failure to prosecute. (Dkt. 22.) Petitioner filed a response, and the parties filed several other motions that are now ripe for adjudication. (Dkts. 24, 25, 26.)

         All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 16.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. 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.


         In its Successive Review Order (Dkt. 13), the Court noted that Petitioner has brought fourteen claims in his Amended Petition (Dkt. 11), but he had failed to state whether he exhausted any of them. The Court determined that, to avoid delay, the Court would not require Petitioner to explain the status of exhaustion in a second amended petition. Nevertheless, Petitioner filed a Second Amended Petition (Dkt. 23), which is an exact duplicate of his Amended Petition at Docket 11. Because Petitioner intends Docket 23 to be the operative pleading in this matter and Respondent will suffer no prejudice from permitting amendment, the Court will deny Respondent's Motion to Strike the Second Amended Petition (Dkt. 23).


         1. Background

         In a criminal action in the Third Judicial District Court in Canyon County, Idaho, Petitioner was convicted by jury of two counts of lewd conduct with a minor under the age of 16 and one count of sexual abuse of a minor under the age of 16, involving two victims, S.B. (Petitioner's 14-year-old granddaughter) and K.B. (S.B.'s 16-year-old friend). (State's Lodging A-2.)

         Petitioner's first jury trial ended in a mistrial. Petitioner was convicted at a second jury trial. He was sentenced to concurrent terms of ten years fixed with ten years indeterminate on the two lewd conduct charges and five years fixed with ten years indeterminate on the sexual abuse charge. Petitioner's judgment of conviction was entered on October 17, 2012. (See State's Lodging A-1 to A-2.)

         Petitioner filed a direct appeal asserting the sentence constituted an abuse of discretion. The Idaho Court of Appeals affirmed the sentences, and the Idaho Supreme Court denied Petitioner's petition for review of the claim. (See State's Lodging B-1 to B-7.)

         Petitioner next filed a post-conviction relief petition, containing various ineffective assistance of counsel claims. After appointment of counsel (Gregory Swanson of the Canyon County public defender's office) and a hearing, the state district court granted the State's motion for summary dismissal. (See State's Lodgings C-1 to C-3.)

         On appeal, Petitioner was appointed new counsel (experienced criminal defense attorney Deborah Whipple of Nevin, Benjamin, PLLC) who scoured the record and then filed a motion to withdraw, having found no appealable issue in the record. The motion was granted, and Petitioner proceeded pro se on appeal. In his appellate brief, Petitioner winnowed his claims down to two-that trial counsel was ineffective, first, for failing to call Petitioner as a witness to testify at trial and, second, for failing to adequately cross-examine the State's witnesses. (See State's Lodgings D-1 to D-5.) The Idaho Court of Appeals affirmed the summary dismissal of the two claims. (State's Lodging D-10.) Petitioner did not file a petition for review with the Idaho Supreme Court. In due course, the Idaho Court of Appeals issued its remittitur, concluding Petitioner's related state court actions. (State's Lodging D-11.)

         In this matter, Respondent asserts that all of Petitioner's claims are procedurally defaulted and the entire Petition should be dismissed with prejudice.

         2. Standard of Law

         Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who show that they are held in custody under a state court judgment and that such custody violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). The Court is required to review a habeas corpus petition upon receipt to determine whether it is subject to summary dismissal. See Rule 4 of the Rules Governing Section 2254 Cases. Summary dismissal is appropriate where “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.” Id.

         Habeas corpus law requires that a petitioner “exhaust” his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it as a federal claim to the highest state court for review in the manner prescribed by state law. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court cannot grant relief on that claim, although it does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).

         State remedies are considered technically exhausted, but not properly exhausted, if a petitioner failed to pursue a federal claim in state court and there are no remedies now available. O'Sullivan, 526 U.S. at 848. A claim may also be considered exhausted, though not properly exhausted, if a petitioner pursued a federal claim in state court, but the state court rejected the claim on ...

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