United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE, U.S. DISTRICT COURT JUDGE.
before the Court is the Petition for Writ of Habeas Corpus of
Idaho state prisoner Daniel Dale Parsons, Jr.
(“Petitioner” or “Parsons”),
challenging Petitioner's state court convictions. Dkt. 3.
The Petition is now fully briefed and ripe for adjudication.
Dkts. 3, 38, 39.
Court previously determined that Claims 6 and 7 were
procedurally defaulted. Dkt. 33. The Court did not dismiss
those claims to permit Petitioner to show cause and
prejudice. In response to the Petition, Respondent argues
that additional claims are procedurally defaulted: Claims
3(b), 3(e), 4(d), 4(e), and 5(c). Dkt. 38 at 11-14. The Court
also identifies Claim 4(c) as potentially procedurally
defaulted because it mirrors Claim 3(e). Respondent also
argues that all of Petitioner's claims fail on the
merits, under either deferential or de novo review.
Id. at 22-73.
Court takes judicial notice of the parties' lodging of
the records from Petitioner's state court proceedings.
See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). Having
carefully reviewed the record in this matter, including the
state court record, the Court concludes that oral argument is
unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order denying and
dismissing the Petition for Writ of Habeas Corpus.
and his wife, Felicia Parsons (“Felicia”), lived
in Winnemucca, Nevada. In October 2010 they decided to take a
trip to Idaho. The couple drove Petitioner's 2005 silver
Mazda RX-8 sports car, equipped with disguises, walkie
talkies, a police scanner, and a loaded gun, to Boise, Idaho.
They later described the purpose of their trip as a
October 18, 2010, at 1:45 a.m., the couple checked into a
local hotel without reservations. Even though they had driven
to Idaho from Nevada in their own car, Petitioner had made a
one-day reservation for a rental vehicle (a black minivan)
from Enterprise Rent-a-Car. At about 8:51 a.m., the couple
picked up the black minivan, which bore Connecticut license
p.m., they checked out of the hotel. Felicia was wearing what
she described as a “Muslim costume.” Petitioner
and Felicia drove the black minivan to a KeyBank branch on
Overland Road in Meridian, Idaho.
about 2:30 p.m., as Felicia approached the bank, Keisha
Bloxham, a bank employee, was just returning from lunch and
pulled into the bank parking lot. Bloxham had been trained to
notice out-of-the-ordinary clothing and circumstances.
Bloxham immediately noticed Felicia walking toward the bank
wearing unusual clothing-a dark hat, sunglasses, and a large
scarf or shawl. Bloxham purposely stayed in her car. She
called in to the bank to see if anything had occurred, but
she was put on hold. She saw Felicia exit the bank and
quickly walk to what Bloxham described as a “navy
blue” minivan with Connecticut plates that was waiting
in front of a dumpster. Bloxham described the driver of the
minivan as a 50-ish balding man, about 250 to 300 pounds. The
minivan left the parking lot once Felicia got inside.
p.m., the couple returned to the same hotel and checked into
a different room. They returned the black minivan at 8:04
a.m. on October 19, 2010.
their third day in Idaho, October 20, 2010, Petitioner and
Felicia checked out of the hotel at 1:48 p.m. and headed
toward a different KeyBank branch, on Broadway Road in Boise,
Idaho, in their own silver sports car. Petitioner did not
park in the parking lot, but behind a fence near the bank.
Twenty minutes after checking out of the hotel, Felicia-in a
different wig, sunglasses, gloves, and baggy clothing-entered
the bank carrying a tote and a plastic “superman”
bag and concealing her loaded weapon. She handed a note to
the teller, Paul Lucareillo, that said, “WE HAVE GUNS!
MONEY IN BAG!” The teller gave Felicia about $1, 791 in
cash, including marked bills and a police tracker, which
consists of two $20 bills that are sealed together with a
computer chip inside.
ran out of the bank, returning to the car with the cash and
the tracker. She shouted, “Go, go, go.”
Petitioner sped away and merged onto the Interstate.
the two entered the Interstate, Meridian Police Department
Corporal Terry Hodges began getting signals from the police
tracker. Hodges noticed the tracker signal was being emitted
from either a blue minivan (not to be confused with the
earlier black or “navy” rented minivan that had
been returned to the rental company the previous day) or a
silver sports car (carrying Petitioner and Felicia). Hodges
activated his overhead police car lights behind the two cars,
and, initially, both pulled over.
Hodges got out of his vehicle to check the cars, the silver
sports car immediately sped away. Petitioner and Felicia were
unaware that, by that time, not one, but several, police cars
were involved in trying to apprehend them. The state district
court described what happened next-a situation which resulted
in the charge of evading law enforcement officers:
A high speed chase ensues. This high speed chase puts many
people at risk. At one point Parsons suddenly leaves I-84 and
the chase continues in Meridian. Parsons is on a two-lane
road and attaining speeds of up to 90 m.p.h. He crosses into
on-coming traffic several times. Police deploy spikes and
finally the Parsons leave the roadways at a high rate of
speed (calculated at 100 m.p.h. when it left the pavement)
and crash in a residential yard, having gone through a wooden
fence and landing on the vehicle's roof-just missing
children's swings. The Parsons are injured and
Parsons' wife immediately admits to being the robber. She
tells police that he did nothing and it was all her. In the
vehicle, the police find a scanner and a loaded gun with one
bullet in the chamber. They also find the stolen money. In
the trunk, other disguises could be seen.
Both Parsons were transported to the hospital where
Parsons' wife admitted to the two incidents and admitted
to several bank robberies in prior years where the robberies
were performed similarly-female in wigs, gloves, concealing
clothes, and sunglasses using a similar note....
State's Lodging C-1 at 507-08.
and Felicia were charged with crimes in the Fourth Judicial
District Court in Boise, Ada County, Idaho. Felicia was
charged with robbery for the October 20 Boise KeyBank
incident, as well as another count of robbery. See
Felicia Parsons v. State, No. 40585, 2014 WL 2535193, at
*1 (Idaho Ct. App. June 2, 2014). Petitioner was charged with
aiding and abetting the October 20th robbery and eluding a
police officer, along with a persistent violator enhancement.
State's Lodging B-4 at 1-2. Before her trial, Felicia
pleaded guilty. Petitioner chose to proceed to trial.
Laurence Smith of the county public defender's office,
who had about 20 years of criminal defense experience at the
time, was appointed to represent Petitioner at trial. Dkt.
A-3 at 23. Smith passed away after Petitioner's trial and
thus was unavailable for a deposition or affidavit concerning
his trial strategy or other questions about how he conducted
clear from the record that Smith decided upon a defense
theory of demonstrating that the State did not sufficiently
prove beyond a reasonable doubt that Petitioner had aided and
abetted Felicia in robbing the Boise KeyBank. Smith decided
(1) not to put on Petitioner to testify, (2) to try to keep
Felicia from testifying, (3) to have Felicia's
out-of-court statements tending to exonerate Petitioner be
admitted or at least heard by the jury, and (4) not to put on
any defense witnesses but to attack the prosecution's
case via cross-examination. In particular, Petitioner's
counsel's cross-examination of the state's witnesses
reveals that his strategy was to place all the blame on
Felicia, and to put the prosecution to its burden of showing
that Petitioner was actually aware of what Felicia intended
when she entered the second KeyBank on October 20, 2010.
Petitioner was not charged with a crime stemming from the
October 18 attempted robbery, evidence of that incident was
introduced by the prosecution for the purpose of establishing
that, on the second occasion, Petitioner had ample notice
that Felicia intended to rob the bank.
jury found Petitioner guilty of both charges and, in a
separate phase of the trial, determined that he was a
persistent violator. Petitioner was sentenced to two
consecutive terms of life imprisonment without the
possibility of parole. State's Lodging D-5 at 2. The
Idaho Court of Appeals affirmed, and the Idaho Supreme Court
denied review. State's Lodgings B-4, B-6.
OF LAW FOR REVIEW OF MERITS
disposition of some of the properly-exhausted claims on the
merits bears on disposition of several of the
procedurally-defaulted claims, the Court will first review
the merits of those claim that are properly exhausted.
AEDPA Deferential Review Standard
habeas corpus relief may be granted where a petitioner
“is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
2254(a). A challenge to a state court judgment that addressed
the merits of any federal claims is governed by Title 28
U.S.C.§ 2254(d), as amended by the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA limits relief to instances where the state court's
adjudication of the petitioner's claim:
1. resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
2. resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.
28 U.S.C. § 2254(d). A federal habeas court reviews the
state court's “last reasoned decision” in
determining whether a petitioner is entitled to relief.
Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
federal court cannot grant habeas relief simply because it
concludes in its independent judgment that the state
court's decision is incorrect or wrong; rather, the state
court's application of federal law must be objectively
unreasonable to warrant relief. Lockyer v. Andrade,
538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685,
694 (2002). If fairminded jurists could disagree on the
correctness of the state court's decision, then relief is
not warranted under § 2254(d)(1). Harrington v.
Richter, 562 U.S. 86, 101 (2011). The Supreme Court
emphasized that “even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. (internal citation
the source of clearly established federal law must come only
from the holdings of the United States Supreme Court, circuit
precedent may be persuasive authority for determining whether
a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime v. Ducharme, 200
F.3d 597, 600-01 (9th Cir. 1999). However, circuit law may
not be used “to refine or sharpen a general principle
of Supreme Court jurisprudence into a specific legal rule
that th[e] [Supreme] Court has not announced.”
Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
De Novo Review Standard
instances AEDPA deferential review under § 2254(d)(1)
does not apply: (1) if the state appellate court did not
decide a properly-asserted federal claim, (2) if the state
court's factual findings are unreasonable under §
2254(d)(2), or (3) if an adequate excuse for the procedural
default of a claim exists. In such instances, the federal
district court reviews the claim de novo. Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). As in the
pre-AEDPA era, a district court can draw from both United
States Supreme Court and well as circuit precedent, limited
only by the non-retroactivity rule of Teague v.
Lane, 489 U.S. 288 (1989).
de novo review, if the factual findings of the state court
are not unreasonable, the Court must apply the presumption of
correctness found in 28 U.S.C. § 2254(e)(1) to any facts
found by the state courts. Pirtle, 313 F.3d at 1167.
Contrarily, if a state court factual determination is
unreasonable, or if there are no state court factual
findings, the federal court is not limited by §
2254(e)(1), the federal district court may consider evidence
outside the state court record, except to the extent that
§ 2254(e)(2) might apply. Murray v. Schriro,
745 F.3d 984, 1000 (9th Cir. 2014).
Harmless Error Standard
even if a petitioner succeeds in demonstrating a
constitutional error in his conviction, he is entitled to
federal habeas relief only if the petitioner “can
establish that [the error] resulted in ‘actual
prejudice.'” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993). Under the Brecht standard, an
error is not harmless, and habeas relief must be granted,
only if the federal court has “grave doubt about
whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury's
verdict.” O'Neal v. McAninch, 513 U.S.
432, 436 (1995) (internal quotation marks omitted). However,
some types of claims “are analyzed under their own
harmless error [or prejudice] standards, which can render
Brecht analysis unnecessary.” Jackson v.
Brown, 513 F.3d 1057, 1070 (9th Cir. 2008). Ineffective
assistance of counsel claims are included in this category.
Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir.
OF PROPERLY-EXHAUSTED CLAIMS ON MERITS
Discussion of Claim 1
Ineffective Assistance of Counsel Standard of
Sixth Amendment to the United States Constitution provides a
right to effective assistance of counsel for criminal
defendants. The case of Strickland v. Washington,
466 U.S. 668 (1984), is clearly-established law setting forth
two necessary prongs for a petitioner to show ineffective
assistance: (1) that “counsel made errors so serious
that counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment, ” and
(2) those errors “deprive[d] the defendant of a fair
trial, a trial whose result is reliable.” Id.
at 687. Under Strickland, a petitioner must
establish both deficient performance and prejudice to prove
an ineffective assistance of counsel claim. Id. at
697. On habeas review, the court may consider either prong of
the Strickland test first, or it may address both
prongs, even if one is deficient and will compel denial.
an attorney's performance was deficient is judged against
an objective standard of reasonableness. Id. at
687-88. A reviewing court's inquiry into the
“reasonableness” of counsel's actions must
not rely on hindsight:
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. There are countless ways to provide effective
assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same
Id. at 689 (internal citations and quotation marks
decisions, such as the choice of which witnesses or other
evidence to present, “are virtually
unchallengeable” if “made after thorough
investigation of law and facts relevant to plausible
options.” Id. at 690. Moreover, an attorney
who decides not to investigate a potential defense theory is
not ineffective so long as the decision to forego
investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference
to counsel's judgments.
Id. at 690-91. Further, counsel is not deficient in
an area where an investigation would not have been fruitful
for the defense.
Ninth Circuit has provided some insight into the
Strickland standard when evaluating an
attorney's “strategy calls.” First, tactical
decisions do not constitute ineffective assistance simply
because, in retrospect, better tactics are known to have been
available. Bashor v. Risley, 730 F.2d 1228, 1241
(9th Cir. 1984). Second, a mere difference of opinion as to
tactics does not render counsel's assistance ineffective.
United States v. Mayo, 646 F.2d 369, 375 (9th Cir.
1981). Third, “counsel's investigation must
determine trial strategy, not the other way around.”
Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir.
2017) (“Weeden's counsel could not have reasonably
concluded that obtaining a psychological examination would
conflict with his trial strategy without first knowing what
such an examination would reveal.”).
Strickland gives a trial attorney wide discretion
with respect to choosing or abandoning a particular defense.
See Correll v. Stewart, 137 F.3d 1404, 1411 (9th
Cir. 1998) (holding that counsel's failure to develop a
mens rea defense was reasonable because such a defense
“would have conflicted with the primary defense theory
of misidentification”); Turk v. White, 116
F.3d, 1264, 1267 (9th Cir. 1997) (counsel's selection of
self-defense theory was reasonable and obviated his need to
investigate defendant's claim of incompetency).
petitioner must show not only that counsel's performance
was deficient, but also the petitioner was prejudiced by that
performance. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment.” Strickland, 466 U.S.
satisfy the prejudice standard, a petitioner “must show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. As the Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or conclusion
only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record
support. Taking the unaffected findings as a given, and
taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry must
ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors.
Id. at 695-96. To constitute Strickland
prejudice, “[t]he likelihood of a different result must
be substantial, not just conceivable.”
Richter, 562 U.S. at 112.
foregoing standard, giving deference to counsel's
decision-making, is the de novo standard of review. Another
layer of deference-to the state court decision-is afforded
under AEDPA. In giving guidance to district courts reviewing
Strickland claims on habeas corpus review, the
United States Supreme Court explained:
The pivotal question is whether the state court's
application of the Strickland standard was
unreasonable. This is different from asking whether defense
counsel's performance fell below
Strickland's standard. Were that the inquiry,
the analysis would be no different than if, for example, this
Court were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States district
court. Under AEDPA, though, it is a necessary premise that
the two questions are different. For purposes of §
2254(d)(1), “an unreasonable application of federal law
is different from an incorrect application of federal
law.” Williams, supra, at 410, 120
S.Ct. 1495. A state court must be granted a deference and
latitude that are not in operation when the case involves
review under the Strickland standard itself.
Harrington v. Richter, 562 U.S. 86, 101 (2011). That
is, when evaluating an IAC claim that the state court
adjudicated on the merits, a federal district court's
review of that claim, under § 2254(d), must be
“doubly deferential.” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (internal quotation
Discussion of Claim 1
is that defense counsel Laurence Smith performed
ineffectively when he failed to interview and subpoena
Felicia Parsons as a defense witness at trial. One of the
elements the prosecution had to prove to convict Petitioner
of aiding and abetting a crime is that a crime was committed.
Prior to Petitioner's trial, Felicia pleaded guilty to
is no question that Felicia's conviction was admissible
and was going to be admitted at Petitioner's trial-either
by testimony or stipulation. State's Lodging D-4 at 28.
The question before the Court is whether Smith performed
adequately in deciding how to have that evidence
admitted. Smith's overall defense strategy was to show
that the prosecution could not prove Petitioner was involved
in the robbery on October 20th. In his opening statement
Smith asserted: “One thing that I believe is going to
be profoundly evident by the end of this case is that
you'll never hear any evidence whatsoever that Mr.
Parsons was ever inside the bank, never brandished a gun and
never handed anybody a note.” State's Lodging A-3
argues that Smith's performance was deficient simply
because he because he failed to actually interview Felicia
before choosing not to call her as a witness. Rather than
interview Felicia, Smith evaluated information from other
attorneys about Felicia's potential trial testimony.
had two letters from the prosecutor. On April 22, 2011, after
meeting with Felicia, Prosecutor Shawna Dunn wrote a letter
to Smith pursuant to Brady v. Maryland, 373 U.S. 83
(1963), containing the following information: (1) Felicia
said that Petitioner did not know about the robbery until
after police attempted to stop them, at which time Felicia
pointed the gun at the ceiling and told him she had robbed a
bank; (2) Felicia climbed into the backseat of the car and
began to point the gun at police; (3) Petitioner was not at
the attempted robbery on October 18; (4) Felicia did not
threaten Petitioner or point the gun at him; and (5)
Petitioner's decision to drive was voluntary. State's
Lodging C-1 at 249-50.
April 28, 2011, after meeting with Felicia a second time,
Dunn wrote a second letter to Smith containing the following
changed version of Felicia's story: (1) Felicia dressed
in “character” at the hotel and traveled to the
bank already wearing the wig; (2) Petitioner knew where to
park; (3) Petitioner was aware that she was going to rob the
bank prior to her completion of the act; (4) Petitioner did
not know she had the gun until after the robbery; (5) it was
Felicia's idea to rob the bank; (6) she was counting the
money when they saw the police officer's lights; (7) she
did not threaten Petitioner nor point the gun at him; and (8)
Petitioner's decision to drive was voluntary. State's
Lodging C-1 at 251-52. Smith also spoke to Felicia's
defense counsel about Felicia's proposed trial testimony.
addition, Smith had Felicia's comprehensive voluntary
hospital interview with police investigators Wigington and
Ayotte. See State's Lodging C-1 at 300-56. That
interview is described in detail in the discussion of Claim 2
below. Importantly, Felicia never mentioned putting a gun to
Petitioner's head or forcing him to participate in the
robbery in that interview. Prosecutors most certainly would
have used the lack of any mention of force in the hospital
interview to cross-examine Felicia had she testified
contrarily at trial.
evaluating all the foregoing, Smith wrote a letter to
In addition to conversations I had with the State's
attorneys, I spoke for approximately 30 minutes with Mr.
Ellsworth, Felicia's attorney. Felicia will not be called
in the State's case in chief. She will only be called by
the State as a rebuttal witness if YOU choose to testify, and
then only with respect to what transpired after police
attempted to initiate a stop. She will testify that she did
not threaten you, did not point the gun at you, and that you
drove the vehicle voluntarily.
Felicia does not want to testify against you. HOWEVER, it is
very clear to me that if WE call her to testify, we will not
only open to door to any questions the State may wish to ask,
but also, Felicia will testify that she was in costume when
you drove to the bank. Because that testimony, coupled with
your driving away at very high rates of speed will establish
the elements of Aiding and Abetting Robbery, it is my
intention NOT to call Felicia as a witness.
Lodging C-1 at 253 (capitalization in original).
argument rests on the fact that on August 17, 2012-after
Petitioner's trial and after Felicia had been sentenced
for the robbery-Petitioner drafted an affidavit that Felicia
signed and had notarized, stating:
(1) That, I Felicia E. Parsons, did attack and threaten to
kill Daniel Parsons, October 20, 2010.
(2) That, I Felicia E. Parsons, did stick a gun to Daniel
Parsons head and demand for him to drive, instead of pulling
over for police on the freeway after the robbery of Key Bank,
on October 20, 2010. That Daniel Parsons had no knowledge
before of said robbery, of my intent.
Lodging C-1 at 216.
reviewing Claim 1 on post-conviction appeal, the Idaho Court
of Appeals concluded that, based on the facts known to Smith
before trial, he performed an adequate investigation of
Felicia's potential testimony before deciding whether to
call her as a witness. Id. at 7. The Idaho Court of
Appeals concluded that Smith's decision not to call
Felicia as a witness was “a reasoned tactical decision
designed to avoid opening the door to introduction of
incriminating evidence.” Id. That is, Smith
determined what Felicia's testimony would be and decided
that it would not benefit Petitioner. That Petitioner was
able to produce a “post-hoc and contradictory
affidavit” from Felicia after trial did not sway the
Idaho Court of Appeals, because trial counsel's decisions
are evaluated “based on the evidence available at the
time of the trial.” Id., citing
Strickland, 466 U.S. at 689.
Court agrees. Though Smith did not interview Felicia himself,
there is nothing contemporaneous in the record showing that
he could not rely on Felicia's own attorney's
representation of her potential testimony. Smith did not do
everything he could have done, but he did enough to satisfy
the standard for effective assistance. Importantly, the two
interviews the prosecutor had with Felicia showed her
potential to change her testimony from one story to
another. Smith had to calculate whether-even though Felicia
might have testified favorably-the negative facts still might
have emerged unintentionally from Felicia under intense
cross-examination by the prosecutor. Smith was not required
to do any further investigation into what Felicia might have
testified to at trial. See Strickland, 466 U.S. at
691 (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary.”
(emphasis added)); Mulligan v. Kemp, 771 F.2d 1436,
1443 (11th Cir. 1985) (“Although it would have been
wiser to interview each of the state's eyewitnesses ...,
we cannot conclude on this record that [trial counsel's]
conversations with the prosecutor and his prepared
cross-examination f[ell] below the ‘reasonable
substantial investigation' standard.”).
from being ineffective, Smith carefully and effectively chose
quite an ingenious way to have the jury hear most of
Felicia's helpful statements and to foreclose the
possibility that her harmful statements would reach the jury.
That plan was to (1) have only the fact of Felicia's
conviction be known to the jury via a stipulated jury
instruction; (2) have the jury be able to hear the police
audio where Felicia takes responsibility for the robbery and
the gun; and (3) have the police officer who interviewed her
at the hospital repeat what Felicia said that was helpful to
Petitioner's case, without risking any cross-examination
of Felicia herself. As set forth elsewhere herein, the trial
transcript reflects that, as Smith planned, the jury did, in
fact, hear most of Felicia's helpful out-of-court
statements and heard very few harmful statements.
based on the analysis above, this Court concludes that under
deferential review of § 2254(d) or de novo review, Claim
1 fails under Strickland and is subject to denial
and dismissal with prejudice.
Discussion of Claim 2
is that Smith was ineffective for failing to investigate and
pursue a “necessity” defense and request a
necessity instruction. Petitioner asserts that this was
“the only possible defense.” Dkt. 3 at 10-11.
qualify for a jury instruction for Idaho's common law
necessity defense, the defendant must present some evidence
of four elements: “(1) a specific threat of immediate
harm; (2) the circumstances which necessitate the illegal act
must not have been brought about by the defendant; (3) the
same objective could not have been accomplished by a less
offensive alternative available to the actor; and (4) the
harm caused was not disproportionate to the harm
avoided.” State's Lodging D-5 at 6.
determining whether to admit evidence related to a defense, a
trial court should ‘“focus on the probative value
or the potential adverse effects of admitting the defense
evidence' instead of focusing on the strength of the
prosecution's case.” Holmes v. South
Carolina, 547 U.S. 319, 329-31 (2006). Doing so ensures
that the trial court does not violate a defendant's
federal due process right to have “a meaningful
opportunity to present a complete defense.”
Idaho Court of Appeals' rejection of Petitioner's
affirmative defense claim was simple and straightforward. The
court found that the only evidence in the record that
supported Petitioner's claim was the post-trial,
post-sentencing affidavit of Felicia that was prepared by
Petitioner. State's Lodging C-5 at 5. The affidavit was
not available to trial counsel before trial. Felicia had
not admitted to threatening Petitioner with harm in
either interview with the prosecutor, in conversation with
her own attorney, or in her hospital confession interview
with police investigators. “Thus, as noted by the
district court, no reasonable view of the evidence available
at the time of Parsons' trial supported the giving of a
necessity instruction, ” the Idaho Court of Appeals
concluded. Id. at 6.
points to other portions of Felicia's hospital confession
describing how the robbery was all her own doing: “I
told him I wanted him to go on vacation with me. I told him I
needed him to drive me. And I had to fight and argue with
him. I told him that he was going to drive…drive
me…be my driver or I was going to find somebody else
to do it….Or I was going to do it without him.”
State's Lodging C-1 at 343-44. Felicia also told
investigators that Petitioner “[did] not really [go
willingly with her to the bank], but he did it for
[her].” Id. at 307. She repeated, “This
is none of his doing. It's mine…. It was all my
doing. This is not his doing, it is my doing…. He was
just driving for me.” Id. at 249. She
emphasized many times that Petitioner “has never robbed
any banks, ” and pleaded, “Let him
go….just let him go.” Id. at 325-27.
This portion of the statement does not support a
necessity defense because there is no specific threat of
hospital confession, Felicia also described the circumstances
when the couple began to flee the police; again, no threat of
harm to Petitioner is evident:
Uhm…all of a sudden we were like…the cops are
after us. We (get away) [note that this part was
unintelligible to transcriber] and…and he was pulling
over and I told him not to pull over…keep going. And
so when we went to stop he decided to keep going and the
[sic] I jumped in the back and pulled out my gun and he told
me, “Don't shoot nobody. Don't shoot nobody.
Put that gun away. Don't shoot nobody.”
Lodging C-1 at 314. When specifically asked if she had
pointed the gun at anyone, Felicia said, “I pointed it
at all the cops that were coming towards me.”
State's Lodging C-1 at 314. None of Felicia's
hospital confession supports a necessity defense.
nothing in the hospital confession statement shows that
Felicia was holding back any information. For example, at the
start of her statement, Felicia said she understood that the
investigators didn't “want any bullshit, ”
and wanted her to tell the truth and “[not] fuck
around.” Id. at 328. At the end of her
statement, she emphasized twice, “I gave you
ever…everything. I gave you everything.”
Id. at 355. Surely, if Felicia had evidence of
threats of harm to Petitioner, she would have included it in
her comprehensive statement.
Court agrees with the Idaho Court of Appeals that the
post-trial affidavit drafted by Petitioner does not support
his ineffective assistance of trial counsel claim, which is
to be judged on what is known at the time of trial. This
Court disagrees with Petitioner that anything in the record
before trial showed that Felicia threatened Petitioner to the
degree that it would provide a basis for a necessity defense.
Smith made a reasonable tactical decision not to pursue a
necessity defense or request a necessity instruction. Not
only was the decision of the Idaho Court of Appeals
reasonable under § 2254(d), but the Court also rejects
these claims under de novo review on the grounds set forth
Discussion of Claim 3(a)
3(a) is that Petitioner was denied his rights to due process
and effective assistance of counsel when trial counsel failed
to request a jury instruction on the “rules of law
… material to the affirmative defense in order for the
jury to make a determination of Mr. Parson's guilt or
innocence.” Dkt. 3 at 12 (spelling regularized). This
error, Petitioner asserts, denied him the “the ability
to present his theory of the case.” Id.
Idaho Court of Appeals construed this claim as challenging
the lack of a necessity instruction. As explained above, a
necessity instruction was not warranted because insufficient
facts supported such a defense.
claims of error in jury instructions are matters of state
law. See Williams v. Calderon, 52 F.3d 1465, 1480-81
(9th Cir. 1995). In particular, the United States Supreme
Court has held that the due process guarantee of In re
Winship, 397 U.S. 358 (1970), does not apply to
affirmative defenses. Gilmore v. Taylor, 508 U.S.
333, 343-44 (1993).
to give a jury instruction warranted under state law does not
by itself merit federal habeas relief. Menendez v.
Terhune, 422 F.3d 1012, 1029 (9th Cir.
2005). Such an error becomes a federal issue only
when the error creates a broader situation in which a
criminal defendant is deprived of his due process right to
present the defense of his choice to the jury. Federal law is
clear that a criminal defendant “is entitled to an
instruction as to any recognized defense for which there
exists evidence sufficient for a reasonable jury to find in
his favor.” Mathews v. United States, 485
U.S. 58, 63 (1988) (emphasis added).
the alleged error involves the failure to give an
instruction, the petitioner's burden is especially heavy
because “[a]n omission ... of an instruction is less
likely to be prejudicial than a misstatement of the
law.” Henderson v. Kibbe, 431 U.S. 145, 155
(1977). To warrant habeas relief on this basis, a petitioner
must show that the alleged instructional error had a
“substantial and injurious effect or influence in
determining the jury's verdict.” See Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993); see also Byrd
v. Lewis, 566 F.3d 855, 860 (9th Cir. 2009) (noting that
the “substantial and injurious effect” test
applies to the trial court's erroneous failure to provide
a jury instruction on the defense theory); Bradley v.
Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002) (same). A
“substantial and injurious effect” in this
context means a “reasonable probability” that the
jury would have reached a different verdict had the defense
instruction been given. Byrd, 566 F.3d at 860.
Idaho Court of Appeals treated Claim 3(a) and the necessity
instruction claim as a state law issue, citing six different
state cases as the governing standards of law. State's
Lodging D-5 at 5-6. As noted above, Plaintiff has not only
this hurdle to overcome, but the hurdle that it is an
instruction omitted rather than an erroneous instruction
argues that several other items should have been introduced
at trial to add to the weight of evidence that a
“necessity” instruction was required. For
example, criminalists could find no fingerprints on the
scanner that was found in Petitioner's car. Petitioner
asserts that this “non-finding” supports his
position that he did not commit the crime of aiding and
abetting. Petitioner refuses to accept the fact that a
“non-finding” as to who touched the scanner is
not the equivalent of a “finding” that no one
touched the scanner. Similarly, he argues that his
fingerprints were not found on the gun.
the prosecution did not charge Petitioner with robbery, but
with aiding and abetting robbery. No. one asserted that
Petitioner touched the scanner or the gun. Touching the
scanner or the gun were not necessary elements of aiding and
abetting a robbery. Felicia's self-described “no
bullshit” statement to investigators while she was in
the hospital, plainly laid out that she, alone, touched the
gun, and that it was her idea, alone, to rob the bank. The
scanner and gun evidence would not have substantially aided
Petitioner's necessity defense.
Claim 3(a) fails under a federal due process theory because
there was insufficient evidence to support the giving of this
affirmative defense instruction. The lack of the jury
instruction did not have a “substantial and injurious
effect or influence in determining the jury's verdict,
” given the dearth of evidence that Felicia forced
Petitioner via threat of harm to participate in the robbery.
same reasons, Claim 3(a) fails as a Sixth Amendment
ineffective assistance of trial counsel claim. Had Smith
requested a necessity instruction, the district court would
not have given it. Petitioner is looking at the set of facts
from hindsight and from only his point of view. Reviewing the
entire record in this case, this Court finds that, contrary
to Petitioner's point of view, the evidence against him
is overwhelming (borrowing the state court's
description), to the degree that Petitioner's arguments
seem frivolous. Therefore, there is neither deficient
performance nor prejudice to his defense. For all of these
reasons, Claim 3(a) will be denied and dismissed with
Discussion of Claim 3(c)
3(c) challenges Smith's failure to object to the phrase
“mere knowledge” in Jury Instruction No. 15, the
aiding and abetting instruction, which provided as follows:
The law makes no distinction between a person who directly
participates in the acts constituting a crime and a person
who, either before or during its commission, intentionally
aids, assists, facilitates, promotes, encourages, counsels,
solicits, invites, helps or hires another to commit a crime
with intent to promote or assist in its commission. Both can
be found guilty of the crime. Mere presence at,
acquiescence in, or silent consent to, the planning or
commission of a crime is not sufficient to make one an
All persons who participate in a crime either before or
during its commission, by intentionally aiding, abetting,
advising, hiring, counseling, or procuring another to commit
the crime with intent to promote or assist in its commission
are guilty of the crime. All such participants are considered
principals in the commission of the crime. Participation of
each defendant in the crime must be proved beyond a
Lodging A-1 at 200 (emphasis added).
asserts that Smith should have requested the following
language: “mere knowledge of a crime and assent or
acquiescence in its commission does not give rise to
accomplice liability, ” in place of the italicized
language in Instruction No. 15 above. Dkt. 3 at 12.
the Idaho Court of Appeals indirectly touched upon Claim 3(c)
in its discussion of Claim 3(f), it did not squarely address
Claim 3(c). However, “[w]hen a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.”
Richter, 562 U.S. at 99. Therefore, the Court will
presume that Claim 3(c) was denied on the merits.
Richter instructs that, in this circumstance, the
federal district court should consider the theories that
could support the state court's rejection of the claim
and determine whether fairminded jurists could disagree.
Id. at 102.
theories could have supported the Idaho courts' rejection
of Claim 3(c). One is is that Smith did not perform
deficiently because Instruction No. 15 already conveyed the
essence of Petitioner's desired “mere
knowledge” instruction. A comparison of the two
sentences establishes that fairminded jurists could determine
that the two instructions are so similar that Smith's
decision not to request an additional “mere
knowledge” instruction was objectively reasonable.
Petitioner's desired instruction-“mere knowledge of
a crime and assent or acquiescence in its commission does not
give rise to accomplice liability”-is only slightly
different from the instruction that was actually
given-“Mere presence at, acquiescence in, or silent
consent to, the planning or commission of a crime is not
sufficient to make one an accomplice.” State's
Lodging A-1 at 200.
likely theory is that the instruction given implicitly
provided the jury with the theory Petitioner advances. Dkt.
38, at 32-34. If “[m]ere presence at, acquiescence in,
or silent consent to, the planning or commission of a
crime” is insufficient for accomplice liability, then
“mere knowledge” is similarly insufficient
because acquiescence and consent presuppose and are greater
than mere knowledge. Therefore, the given instruction covered
the concept embodied in Petitioner's desired instruction.
any theory, the Idaho Court of Appeals' opinion
implicitly denying this claim on the merits is not contrary
to United States Supreme Court precedent. Nor does the claim
succeed under de novo review. Because the instruction was
already clear that if Petitioner's actions did not rise
to the level of mere acquiescence or silent consent, then it
was implicit that something less than acquiescence or
consent-knowledge-would not be enough. This claim is subject
to denial and dismissal with prejudice.