United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, U.S. DISTRICT COURT JUDGE
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.)
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.
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]. 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.
Lodging B-4, pp. 1-2.)
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.
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
OF LAW FOR HABEAS CORPUS REVIEW
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;
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.
U.S.C. § 2254(d).
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.
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
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).
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).
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).
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).
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
De Novo Review
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).
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
OF CONFRONTATION CLAUSE CLAIM
conviction, Petitioner raised a Confrontation Clause claim on
direct appeal. He was unsuccessful. The merits of this claim
are now ripe for adjudication.
Decision of State Appellate Court
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
Confrontation Clause - Governing Precedent
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).
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.
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
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.
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.
Whether a Confrontation Clause Violation Occurred
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.
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).) ...