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Crawford v. Yordy

United States District Court, D. Idaho

May 3, 2019

KEITH YORDY, Respondent.


          David C. Nye, Chief U.S. District Court Judge.

         Pending before the Court is an Amended Petition for Writ of Habeas Corpus filed by Idaho state prisoner Shane Crawford (“Petitioner” or “Crawford”), challenging his state court conviction for lewd conduct. See Dkt. 5. The Amended Petition is now fully briefed and ripe for adjudication. Dkt. 36, 41, 42. The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. See Dkt. 18, 33; 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 habeas corpus relief.


         In a criminal action in the Fourth Judicial District Court in Ada County, Idaho, Petitioner was charged with one count of lewd conduct with a minor under the age of sixteen (Count I), against Victim I, [1] by way of manual-genital contact, see Idaho Code §§ 18-1508[2]; and one count of lewd conduct (Count II) and two counts of sexual abuse (Counts III and IV) of a minor under the age of sixteen, against Victim II, by manual-genital contact not arising to lewd conduct. See Idaho Code § 18-1506.[3] Petitioner was convicted on Counts I and II. However, Count I, the conviction related to Victim I, was reversed on appeal, and the state did not retry Petitioner on that count. In this habeas corpus action, Petitioner challenges his conviction on Count II (lewd conduct with a minor under sixteen) against Victim II.

         Count II involved what the parties and the state courts referred to as “the kitchen incident.” The Idaho Supreme Court later described Victim II's testimony with respect to the kitchen incident as follows:

Victim II testified that when she was in eighth grade, she and Crawford were in the kitchen of the house in which they were living. She said that Crawford “was offering me an alcoholic drink and I had told him that I didn't want any alcohol. And I don't know how the conversation got brought up, but he asked me what a clit was and I told him that I didn't know what that was.” She testified that Crawford told her that he was going to show her, and despite her backing away, Crawford touched her with his hands at that point, going up from her pajama shorts. When asked where he touched, she replied “Outside of my vaginal area.” The prosecutor then asked if “he [was] going down, like down from your shorts or was he going up?” Victim II responded “Up.”

Crawford v. State, 377 P.3d 400, 403-04 (Idaho 2016).

         The jury found Petitioner guilty of Counts I and II-the lewd conduct charges against Victims I and II-but acquitted him of Counts III and IV. State's Lodging A-1 at 121-24. Petitioner appealed, arguing, in pertinent part, that the trial court should have answered a jury question regarding the definition of manual-genital contact by “clarifying that the breast area is not a genital for the purpose of finding [Petitioner] guilty of lewd conduct.” State's Lodging B-6 at 4.

         The Idaho Court of Appeals affirmed the conviction on Count II but reversed the conviction on Count I. The court concluded that the trial court should have given additional instructions after the jury expressed confusion with respect to the definition of manual-genital contact, as it applied to the breast area. Specifically, the appellate court held: “By answering the jury's question regarding whether touching of the breast area constitutes manual-genital contact with the instruction to ‘re-read all the instructions' and by not informing the jury [that touching the breast does not, as a matter of law, amount to manual-genital contact], the district court erred.” State's Lodging B-6 at 5. The court of appeals held that the error was harmless as to Count II-because there was no testimony about touching the victim's breasts during the kitchen incident-but not as to Count I. Id. at 5-6. The Idaho Supreme Court denied review. State's Lodging B-9.

         The State elected not to retry Petitioner on Count I. Thus, Petitioner's conviction on Count II-lewd conduct against Victim II-was Petitioner's only remaining conviction.

         Petitioner filed a state post-conviction petition, seeking relief from that conviction and asserting claims of ineffective assistance of trial and appellate counsel. Petitioner argued that “(a) trial counsel failed to move for an Idaho Criminal Rule 29(a) judgment of acquittal as to Count II because there was insufficient evidence to show that Crawford touched Victim II's genitalia; (b) during jury deliberations, trial counsel failed to request the district court instruct the jury that manual-genital contact requires touching the vaginal area, and similarly failed to request that the district court define the term ‘genital' for the jury; and (c) appellate counsel failed to raise a claim of insufficient evidence to sustain a conviction.” Crawford, 377 P.3d at 405; see also State's Lodging C-1 at 4-14. The state district court summarily dismissed the petition, and a divided panel of the Idaho Court of Appeals affirmed. State's Lodging C-1 at 323-36; State's Lodging D-4.

         The Idaho Supreme Court granted review and affirmed the dismissal of the post-conviction petition. (State's Lodging D-7; D-10). The Idaho Supreme Court held that the trial court was not required to further instruct the jury, either by defining the term “genital” or by stating that lewd conduct required touching of the “vaginal area.” Crawford, 377 P.3d at 409-12. The court also concluded that sufficient evidence supported the conviction on Count II and that a motion for judgment of acquittal would have been denied. Id. at 406-09, 411-12. Therefore, Petitioner had not established ineffective assistance of either trial or direct appeal counsel.

         In the instant Amended Petition, Petitioner asserts the same claims that he raised in his state post-conviction proceedings. Claim 1 asserts ineffective assistance of trial counsel based on (a) counsel's failure “to make an Idaho Criminal Rule 29 motion for a judgment of acquittal after trial, ” and (b) counsel's alleged failure to object to the trial court's response to the jury's question regarding the definition of manual-genital contact. Dkt. 5 at 6. Claim 2 asserts ineffective assistance of appellate counsel based on counsel's failure to argue, on direct appeal, that Petitioner's conviction was not supported by sufficient evidence. Id. at 7.


         Federal habeas corpus relief may be granted when a federal court determines that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). If the state court has adjudicated a claim on the merits, habeas relief is further limited by § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal habeas relief may be granted only 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). “Deciding whether a state court's decision involved an unreasonable application of federal law or was based on an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons- both legal and factual-why state courts rejected a state prisoner's federal claims and to give appropriate deference to that decision.” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018) (internal quotation marks and citations omitted).

         When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the “contrary to” test and the “unreasonable application” test.

         Under the first test, a state court's decision is “contrary to” clearly established federal law “if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). Under the second test, to satisfy the “unreasonable application” clause of § 2254(d)(1), the petitioner must show that the state court-although identifying “the correct governing legal rule” from Supreme Court precedent-nonetheless “unreasonably applie[d] it to the facts of the particular state prisoner's case.” Williams (Terry) v. Taylor, 529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis omitted).

         A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the 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, 535 U.S. at 694. If there is any possibility that fair-minded 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, 102 (2011). The Supreme Court has emphasized that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. To be entitled to habeas relief under § 2254(d)(1), “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         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. 2000). 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] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

         “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). Therefore, evidence that was not presented to the state court cannot be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determinations of the state court were reasonable. See Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014); (“After Pinholster, a federal habeas court may consider new evidence only on de novo review, subject to the limitations of § 2254(e)(2).”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine, considering only the evidence before the state court, that the adjudication of a claim on the merits ... was based on an unreasonable determination of the facts, we evaluate the claim de novo, and we may consider evidence properly presented for the first time in federal court.”).

         To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court decision was based upon factual determinations that were “unreasonable ... in light of the evidence presented in the State court proceeding.” A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.”). State court factual findings are presumed to be correct and are binding on the federal court unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         If a petitioner satisfies § 2254(d)-either by showing that the state court's adjudication of the claim was contrary to, or an unreasonable application of Supreme Court precedent or by establishing that the state court's factual findings were unreasonable-then the federal habeas court must review the petitioner's claim de novo, meaning without deference to the state court's decision. Hurles, 752 F.3d at 778. De novo review is also required where the state appellate court did not decide a properly-asserted claim or where an adequate excuse for the procedural default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc).

         When considering a habeas claim de novo, a district court may, as in the pre-AEDPA era, 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). Even under de novo review, however, if the factual findings of the state court are not unreasonable under § 2254(d)(2), 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 1167-68. Conversely, if a state court factual determination is unreasonable, the federal court is not limited by § 2254(e)(1) and may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d at 1000.


         1. Clearly-Established Law Governing Claims of Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution provides that a criminal defendant has a right to the effective assistance of counsel in his defense. The standard for ineffective assistance of counsel (“IAC”) claims was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel must show that (1) “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment, ” and (2) those errors prejudiced the defendant by “depriv[ing] the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A petitioner must establish both deficient performance and prejudice to prove an IAC 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 prong is not satisfied and would compel denial of the IAC claim. 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 motions to file, “are virtually unchallengeable” if “made after thorough investigation of law and facts relevant to plausible options.” Strickland, 466 U.S. 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. That is, “the duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). 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.” These cases are instructive in the Court's assessment of whether the state court reasonably applied Strickland. See Duhaime, 200 F.3d at 600. First, tactical decisions do not constitute IAC 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); see also id. (“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.”).

         If a petitioner shows that counsel's performance was deficient, the next step is the prejudice analysis. “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. 86 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 required 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.

Richter, 562 U.S. at 101. That is, when evaluating an IAC claim under § 2254(d), this Court's review of that claim must be “doubly deferential.” Pinholster, 563 U.S. at 190 (internal quotation marks omitted).

         These principles from Strickland apply equally to claims of ineffective assistance of trial or direct appeal counsel. Effective legal assistance does not mean that appellate counsel must appeal every question of law or every nonfrivolous issue requested by a criminal defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). “Nothing in the Constitution” requires “judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable' claim suggested by a client.” Id. at 754. “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Id. at 751-52.

         To show prejudice with respect to direct appeal counsel, a petitioner must show that his appellate attorney failed to raise an issue obvious from the trial record that probably would have resulted in reversal. Miller v. Keeney, 882 F.2d 1428, 1434 n.9 (9th Cir. 1989). If a petitioner does not show that an attorney's act or omission would probably have resulted in reversal, then he cannot satisfy either prong of Strickland: appellate counsel did not perform deficiently for failing to raise such an issue, and petitioner suffered no prejudice as a result of it not having been raised. Id. at 1435.

         2. Relevant Facts

         The prosecution limited Count II to the kitchen incident. Immediately before testifying about that particular incident, Victim II testified about how, on numerous occasions, Petitioner would touch her in a way that made her uncomfortable. This testimony did not pinpoint a specific time or a specific incident:

Q. When did you become aware-well, let's step back. When was the first time-how old were you when his touching ...

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