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Parsons v. Tewalt

United States District Court, D. Idaho

March 29, 2019

JOSH TEWALT, Director, Idaho Department of Correction, Respondent.



         Pending 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.

         The 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.

         The 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.


         Petitioner 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 “vacation.”

         On 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 plates.

         At 1:15 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.

         At 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.

         At 2:49 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.

         On 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.

         Felicia 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.

         After 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.

         As 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.

         Petitioner 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).[1] 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.

         Attorney 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 Petitioner's defense.

         It is 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.

         Although 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.

         The 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.


         Because 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.

         1. AEDPA Deferential Review Standard

         Federal 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”).

         The 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; or
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).

         A 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 omitted).

         Though 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).

         2. De Novo Review Standard

         In some 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).

         Under 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).

         3. Harmless Error Standard

         Generally, 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. 2009).


         1. Discussion of Claim 1

         A. Ineffective Assistance of Counsel Standard of Law

         The 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. Id.

         Whether 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 way.

Id. at 689 (internal citations and quotation marks omitted).

         Strategic 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.

         The 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.”).

         Finally, 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).

         A 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. at 691.

         To 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.

         The 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 marks omitted).

         B. Discussion of Claim 1

         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 robbery.

         There 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 at 155.

         Petitioner 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.

         Smith 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.

         On 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.

         In 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.

         After evaluating all the foregoing, Smith wrote a letter to Petitioner explaining:

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.

         State's Lodging C-1 at 253 (capitalization in original).

         Petitioner's 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.

         State's Lodging C-1 at 216.

         When 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.

         This 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.”).

         Far 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.

         Accordingly, 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.

         2. Discussion of Claim 2

         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.

         To 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.

         In 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.” Id.

         The 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.

         Petitioner 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 immediate harm.

         In the 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.”

         State's 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.

         Further, 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.

         This 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.

         Accordingly, 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 above.

         3. Discussion of Claim 3(a)

         Claim 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.

         The 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.

         Generally, 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).

         Failure 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).[2] 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).

         When 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.

         The 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 given.

         Petitioner 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.

         However, 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.

         Accordingly, 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.

         For the 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 prejudice.

         4. Discussion of Claim 3(c)

         Claim 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 accomplice.
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 reasonable doubt.

         State's Lodging A-1 at 200 (emphasis added).

         Petitioner 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.

         Though 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.

         Several 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.

         A more 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.

         Under 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.

         5. ...

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