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Paulk v. Tewalt

United States District Court, D. Idaho

June 17, 2019

THOMAS ZACHARY ALEC PAULK, Petitioner,
v.
JOSH TEWALT and LAWRENCE WASDEN, Respondents.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL, U.S. DISTRICT COURT JUDGE

         Petitioner Thomas Zachary Alec Paulk is proceeding on his Amended Petition for Writ of Habeas Corpus. (Dkt. 12.) The remaining claims in the Amended Petition are now fully briefed and ripe for adjudication on the merits. (Dkts. 12, 30.)

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

         BACKGROUND

         The facts upon which Petitioner was convicted are as follows:

Paulk lived with his girlfriend, Ms. Orme, and her two-year-old daughter, L.B. On the evening at issue, Orme left the house to pick up dinner, leaving Paulk at home to watch L.B. Paulk allegedly became frustrated while changing L.B.'s diaper and placed his finger(s) in her vagina and pressed down with force, causing injury to L.B.'s vagina. Paulk called Orme and told her that L.B. was bleeding. Orme returned home and took L.B. to Mountain View Hospital Ready Care. During the initial examination, the intake nurse asked L.B., “[D]id you get an owie?” L.B. responded, “Zackie did it.”
After being examined by a doctor, L.B. was sent to the hospital and surgery was performed to repair her injury [which was described as a laceration from L.B.'s vagina to nearly her anal opening].[1] The doctor reported the incident to law enforcement officers, and police officers went to the home to interview Paulk. After telling police officers various stories of how the injury occurred, Paulk eventually admitted to placing his finger in L.B.'s vagina out of anger and pushing down, causing the injury.

         (State's Lodging B-4, pp. 1-2.)

         For these acts, Petitioner was convicted by jury of lewd conduct with a child under sixteen under Idaho Code § 18-1508, and forcible sexual penetration by use of a foreign object under Idaho Code § 18-6608. Judgment was entered on December 21, 2011.

         As explained in detail later in this Order, after Petitioner was sentenced, the State dismissed the lewd conduct count, and the conviction and sentence on that count were vacated. Petitioner was then re-sentenced to the same sentence-5 years determinate with 10 years indeterminate-for only the forcible penetration conviction.

         STANDARD OF LAW FOR HABEAS CORPUS REVIEW

         1. Deferential Review

         Where the petitioner files a federal habeas corpus action to challenge a state court judgment, Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), applies. Title 28 U.S.C.§ 2254(d) 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).

         Where a petitioner 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 it identified “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, 572 U.S 415, 426 (2014).

         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, 535 U.S. at 694. 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).

         To assess whether habeas corpus relief is warranted, the federal district court reviews “the last state-court adjudication on the merits.” Greene v. Fisher, 565 U.S. 34, 41 (2011). The deferential standard of section 2254(d) applies regardless of whether the state court decision “is unaccompanied by an opinion explaining the reasons relief has been denied.” Richter, 562 U.S. at 98. “When 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.” Id. at 99. When the last adjudication on the merits provides a reasoned opinion, federal courts evaluate the opinion as the grounds for denial. 28 U.S.C. 2254(d).

         However, where the state's highest court did not issue a reasoned decision, courts review the “last related state-court decision that does provide a rationale”-using the “look through” principle of Ylst v. Nunnemaker, 501 U.S. 797 (1991)-and “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).[2]

         2. De Novo Review

         A federal court may review a habeas corpus claim de novo under several circumstances: (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 stricter provisions of § 2254(d)(1) do not apply. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such a case, 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), but 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).

         REVIEW OF CONFRONTATION CLAUSE CLAIM

         After conviction, Petitioner raised a Confrontation Clause claim on direct appeal. He was unsuccessful. The merits of this claim are now ripe for adjudication.

         1. Decision of State Appellate Court

         The Idaho Court of Appeals did not address whether the victim's statement violated the Confrontation Clause, because it determined that the error was harmless. (State's Lodging B-4, pp. 1-4.) The Idaho Supreme Court denied the petition for review without comment on this claim. (State's Lodging B-6.) Therefore, review of this claim will be twofold: (1) the Court will review de novo the merits of the Confrontation Clause that neither Idaho appellate court addressed, and (2) the Court will deferentially review the harmless error issue decided by the Idaho Court of Appeals.

         2. Confrontation Clause - Governing Precedent

         The Confrontation Clause of the Sixth Amendment guarantees an accused the right to confront and cross-examine the witnesses against him. This right of confrontation prohibits the admission of testimonial out-of-court statements unless (1) the declarant is unavailable to testify and (2) the accused had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). Testimonial statements are those that are made for purposes of investigation or prosecution, such as the following: (1) statements made in prior testimony; (2) “[s]tatements taken by police officers in the course of interrogations”; (3) “formalized” statements, e.g., affidavits, depositions, and confessions; (4) “pretrial statements that declarants would reasonably expect to be used prosecutorially”; and (5) “statements that were made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial.” Id. at 51-52 (internal quotation marks omitted). “[N]on-testimonial statements do not implicate the Confrontation Clause” because they are not made for purposes of investigation or prosecution. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).

         In Ohio v. Clark, 135 S.Ct. 2173, 2181 (2015), the United States Supreme Court decided a claim very similar to the one at issue. L.P., a three-year-old boy, attended preschool. His teacher saw that he had a bloodshot eye, and she asked him what had happened. He said, “nothing, ” but eventually told her he had fallen. The teacher then observed, “red marks, like whips of some sort, ” and notified the lead teacher, who asked L.P., “Who did this? What happened to you?” Id. at 2178.

         Appearing somewhat “bewildered, ” L.P. said “something like, ‘Dee, Dee.'” Id. When asked if Dee was “big or little, ” L.P. responded, “Dee is big.” Id. The lead teacher then informed her supervisor, who lifted L.P.'s shirt, saw more injuries, and called a child abuse hotline to alert authorities about the suspected abuse. Id.

         Upon these facts, the Supreme Court concluded that L.P.'s statements “were not made for the primary purpose of creating evidence of Clark's prosecution.” Id. Specifically, the Court noted that “L.P.'s statements occurred in the context of an ongoing emergency involving suspected child abuse, ” which meant “the teachers needed to know whether it was safe to release L.P. to his guardian at the end of the day.” Id. “The teachers' questions were meant to identify the abuser in order to protect the victim from future attacks.” Id.

         “At no point did the teachers inform L.P. that his answers would be used to arrest or punish his abuser, nor did L.P. say that he intended his statements to be used by the police or prosecution. In fact, the Court explained: “Statements of young children will rarely, if ever, implicate the Confrontation Clause. Few preschool students understand the details of our criminal justice system.” Id. at 2181-82.

         3. Whether a Confrontation Clause Violation Occurred

         The facts are straightforward. Petitioner called to tell Nicole Orme, the mother of the two-year-old victim L.B., that she needed to come home immediately because L.B. had fallen and was bleeding. Orme arrived home, looked at the injury, and took L.B. to the Mountain View Ready Care Center. There, Nurse Melissa Boyce, as part of the intake of L.B., asked her, “Did you get an owie?” L.B. answered, “Zackie did it.” (State's Lodging A-3, p. 296.)

         Boyce testified at trial that she asks the same questions of every person presenting themselves in the urgent care center: “Those questions are all my job. The doctor needs to know specifically what brings them in, what happened, what - initially I ask them all those questions so he can begin the treatment process.” (State's Lodging A-3, p. 293 (emphasis added).) ...


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