United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE CHIEF U.S. DISTRICT COURT JUDGE.
before the Court is a Second Amended Petition for Writ of
Habeas Corpus filed by Idaho prisoner Richard Larson
(“Petitioner”), challenging Petitioner's
state court convictions of aggravated assault. Dkt.
15. Respondent has filed a Motion for Partial Summary
Dismissal, arguing that all the claims in the Second Amended
Petition-with the exception of Claim 7-are subject to
dismissal as procedurally defaulted or noncognizable.
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. See Dkt. 23; Fed.R.Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th
carefully reviewed the record, including the state court
record, the Court finds that oral argument is unnecessary.
See D. Idaho L. Civ. R. 7.1(d). Accordingly, the
Court enters the following Order granting the Motion for
Partial Summary Dismissal and dismissing Claims 1, 2, 3, 4,
5, 6, 8, 9, 10, and 11 with prejudice.
a jury trial in the First Judicial District Court in Bonner
County, Idaho, Petitioner was convicted of two counts of
aggravated assault “for threatening his ex-girlfriend
with a firearm and threatening or attempting to shoot her new
boyfriend.” State's Lodging B-8 at 1. On
direct appeal, Petitioner argued (1) that the trial court
should not have permitted Detective Johnston to testify as an
expert under Idaho Rule of Evidence 702, and (2) that the
prosecutor committed misconduct by misstating the law in
closing argument as to the intent required to commit
aggravated assault. State's Lodging B-1. The
Idaho Court of Appeals affirmed, and the Idaho Supreme Court
denied review. State's Lodging B-8, B-14, B-15.
filed a state post-conviction petition raising several
claims, including ineffective assistance of counsel and
additional assertions of prosecutorial misconduct.
State's Lodging C-1 at 3-32. The state district
court dismissed the petition as untimely, holding that
Petitioner-having initially placed an incorrect mailing
address on the petition-was not entitled to the benefit of
the prison mailbox rule. Id. at 93-97.
appealed the dismissal of his post-conviction petition,
arguing that the mailbox rule did apply and that the petition
was therefore timely. State's Lodging D-1.
Petitioner did not substantively argue the federal claims
that he had asserted in the post-conviction petition. The
Idaho Court of Appeals affirmed the district court's
conclusion that the petition was untimely, and the Idaho
Supreme Court denied review. State's Lodging D-4,
filed his federal habeas corpus petition in this Court in
case was stayed for a time and then reopened, and Petitioner
ultimately filed his Second Amended Petition. See Dkt.
15. The Court has construed the Second Amended Petition
as asserting eleven claims, including numerous sub-claims:
In Claim 1 of the proposed second amended petition,
Petitioner contends that the evidence was insufficient to
support his convictions in light of perjured testimony,
prosecutorial misconduct, improper expert testimony, and
ineffective assistance of counsel.
Claim 2 alleges that Petitioner's trial counsel rendered
ineffective assistance in violation of the Sixth Amendment.
Claim 2 has fifteen sub-claims: failure to consult with
Petitioner (Claim 2.1); failure to allow Petitioner to
participate in his defense (Claim 2.2); failure to adequately
investigate police reports, witnesses, and “evidence
inculpatory (or) exculpatory” (Claim 2.3); failure to
file a motion to dismiss based on insufficient evidence
(Claim 2.4); failure to retain experts in crime scene
reenactment and ballistics (Claim 2.5); failure to challenge
a juror (Claim 2.6); failure to investigate and prepare
character witnesses (Claim 2.7); failure to introduce
“positive letters” that were written on
Petitioner's behalf (Claim 2.8); failure to present a
self-defense argument (Claim 2.9); failure to request a jury
instruction on self-defense (Claim 2.10); failure to
adequately cross-examine witnesses (Claim 2.11); failure to
prepare for trial (Claim 2.12); failure to present an
adequate closing argument “on self-defense and noise
level and [occurrence] of the gun shots” (Claim 2.13);
failure to “secure a new and updated psychological
evaluation to refute the previously-obtained erroneous
evaluation” (Claim 2.14); and failure to present
mitigating evidence or argument at sentencing (Claim 2.15).
In Claim 3, Petitioner asserts that the prosecutor committed
misconduct, and engaged in malicious prosecution, by filing
charges that were without “substantial evidence”
and were “based on false and perjured testimony.”
He also states the prosecutor did not “take into
account” the statement of a reliable witness, as to the
order of the gunshots.
Claim 4 alleges that Petitioner's direct appeal counsel
rendered ineffective assistance by failing to raise a
sufficiency of the evidence argument on appeal, instead
choosing “to challenge two significantly weaker
claims.” In Claim 5, Petitioner asserts that the trial
court erred in three ways [with respect to the testimony of
Detective Lehman]. Claim 5.1 complains that the court (a)
allowed “altered, fabricated and inadmissible evidence
and testimony” by a detective and (b) admitted Exhibit
26. Claim 5.2 states that the trial court failed to give a
curative jury instruction to disregard that evidence and
testimony. Claim 5.3 alleges that the trial court should have
granted a mistrial.
Claim 6 asserts that the trial court erred “by allowing
Detective Johnston to testify as a ballistics expert.”
Claims 7, 8, and 9 all allege prosecutorial misconduct. Claim
7 challenges the prosecutor's closing argument. Claim 8
challenges the prosecutor's introduction of Exhibit 26
through the testimony of Detective Lehman. And Claim 9
challenges the prosecutor's presentation of an expert
witness without providing the defense with adequate notice
Claim 10 alleges that Petitioner's trial counsel rendered
ineffective assistance in the following ways: failing to
advise Petitioner of his Fifth Amendment right to be free
from self-incrimination with respect to a presentence
investigation and psychological evaluation (Claim 10.1);
advising Petitioner to waive his right to a preliminary
hearing (Claim 10.2); failing to adequately investigate
police reports, evidence, and expert qualifications, and
failing to move for a mistrial (Claim 10.3); and coercing
Petitioner to testify at trial (Claim 10.4).
Claim 11 alleges that the Idaho post-conviction courts erred
in dismissing, as untimely, Petitioner's application for
state post-conviction relief.
Dkt. 16 at 2-4 (internal citations omitted).
Petitioner has not objected to the Court's construction