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Russo v. Yordy

United States District Court, D. Idaho

June 19, 2019

KEITH YORDY, Respondent.


          Honorable Candy W. Dale United States Magistrate Judge

         Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho prisoner Michael Rowe Russo, challenging his state court convictions of rape, kidnapping, and burglary. (Dkt. 3.) The Petition is now fully briefed and ripe for adjudication.

         The Court takes judicial notice of the records from Russo's state court proceedings, which have been lodged by Respondent. (Dkt. 14, 21.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).

         All parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Dkt. 11.) 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.


         Pursuant to 28 U.S.C. § 2254(e)(1), the following facts of Russo's case, as described by the Idaho Supreme Court, are presumed correct absent clear and convincing evidence to the contrary:

In the predawn hours of August 27, 2009, a woman sleeping in the bedroom of her apartment in Nampa, Canyon County, Idaho, awakened to see an unknown male standing over her with a knife in his hand. He was wearing a mask that covered his face and exposed his eyes. He put a hand over her mouth and held a knife against her throat, and he then stated that she was going to cooperate. He initially attempted several sexual acts, but was unable to obtain an erection. He then had her lie on her back at the bottom of the bed, where he raped her. He wore a condom and used his cell phone to take photos of her during the rape. Before leaving, he took her sheets and a pillow case. He also had her remove the battery from her cell phone, and he placed it under clothing in her panty drawer. She ran to a neighbor's house, where she called 911. Defendant was immediately the focus of law enforcement.
The Nampa police had been investigating Michael Russo (Defendant) for an assault and battery that had occurred in Nampa on August 21, 2008 [which had also involved a male intruder with a knife]….[1]
After the Nampa police responded to the victim's apartment in this case and spoke with the victim, Defendant became the focus of their investigation. They contacted the Meridian police, who sent an officer to Defendant's apartment in Meridian, Ada County, Idaho. When the officer arrived there at 5:47 a.m., the lights were on in the apartment. He confirmed that Defendant was inside the apartment, and he checked Defendant's motorcycle that was parked outside and determined that the engine was still warm. The Meridian officer stayed outside Defendant's apartment for about an hour and left when he was relieved by Detective Deborah Cain of the Nampa Police Department. Another Nampa officer later arrived at about 8:30 a.m., and they both kept the apartment under surveillance.
[Nampa Police Department] Corporal Weekes[, who had been involved in the investigation of the 2008 assault and battery, ] contacted Detective Ray Ellis of the Meridian Police Department and asked him to obtain a search warrant from a judge in Ada County, and he did. In his affidavit, Detective Ellis provided the information described above; information concerning the rape of a young woman working as a barista in Fruitland, Idaho, on July 8, 2009, and Defendant's conduct at that coffee shop the day and evening before the rape; and information concerning Defendant's 1995 rape of a young woman working as a barista at a coffee shop in Washington. On August 27, 2009, at 11:10 a.m., the magistrate judge issued a search warrant authorizing the police to search Defendant's residence and motorcycle and to seize, as evidence of the crime of rape, certain described items that may be located in those places, including a cellular phone. As soon as Detective Ellis had obtained the search warrant, he informed Corporal Weekes that the warrant had been issued, and he then proceeded to Defendant's apartment with the warrant. Corporal Weekes and two other Nampa detectives then headed to Defendant's apartment.
At about 11:50 a.m., Detective Cain saw Defendant leave his apartment and walk to his mailbox. She called Corporal Weekes, and then she and the other Nampa officer detained Defendant at his mailbox. Corporal Weekes performed a patdown search of Defendant and removed his wallet and a cell phone from his pockets. She told him that he was not being arrested but was being detained for investigation, and she handcuffed him and placed him in a patrol car. About five minutes later, Detective Brice King of the Nampa Police Department arrived, and Corporal Weekes gave him the cell phone. He looked through what was stored on the phone and saw a video of a condom-covered penis penetrating a shaved vagina. He then turned the phone off.
The officers searched Defendant's apartment pursuant to the warrant, and they found, among other items of evidence, two cell phones. Later that afternoon, Detective Ellis went back to the magistrate court to obtain an amended search warrant for the search of the two cell phones found in Defendant's apartment and the cell phone taken from his person. He presented to the court an amended affidavit, which included all of the information contained in the initial affidavit and additional information, including the statement: “Additionally, a cellular phone was recovered from Mr. Russo's person during a pat down search for officer safety. This phone was opened and looked at to determine ownership. Your affiant knows that a video was located on that phone that appears to depict the victim from this morning's rape.” Based upon the amended affidavit, the magistrate judge issued a search warrant on August 27, 2009, at 3:15 p.m. authorizing the search of the three cell phones.
Defendant was indicted …. Prior to his trial, he moved to suppress various items of evidence including the video found on the cell phone that was on his person. The district court denied his motion to suppress. [The cell phone video was presented at trial as Exhibit 49.] During the … trial, the victim's gynecologist testified that the victim was the woman in the video [introduced as Exhibit 49] based upon various physical characteristics of [the victim's] vaginal area.[2]

State v. Russo, 336 P.3d 232, 235-37 (Idaho 2014).

         Russo testified in his own defense. He claimed that the woman in the video was not the victim, but a woman with whom he had consensual sex that night. Russo stated he had met the woman at a bar in Meridian called The New Frontier, that her name was Melissa or Michelle, and that he took the video on his cell phone during their sexual encounter because he did not think he would remember the encounter the next day. (State's Lodging A-12 at 114-18.)

         The jury found Russo guilty of rape, first-degree kidnapping, and burglary. Russo appealed, arguing that the trial court should have suppressed the cell phone video and excluded certain Rule 404(b) evidence as to Russo's deviant sexual interests. (State's Lodging B-2.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court granted review. (State's Lodging B-6, B-9.) The state supreme court also affirmed Russo's convictions, holding that the cell phone video was admissible under the independent source doctrine and that the trial court did not abuse its discretion in admitting the Rule 404(b) evidence. Russo, 336 P.3d at 235.

         Russo returned to the trial court and filed a post-conviction petition asserting numerous claims. (State's Lodging C-1 at 4-14.) The state district court dismissed the petition. (Id. at 139-62.) Russo appealed, asserting three claims of ineffective assistance of counsel (“IAC”). The Idaho Court of Appeals affirmed the dismissal of the post-conviction petition on the merits, and the Idaho Supreme Court denied review. (State's Lodging D-4; D-6.)

         In his federal Petition, Russo asserts the following three ineffective assistance of counsel (IAC) claims, all of which were raised on appeal from the dismissal of Russo's state post-conviction appeal: (1) trial counsel should have filed a pretrial motion to exclude expert testimony of the victim's gynecologist, Dr. Lisa Minge, in which Dr. Minge identified the victim as the woman in the cell phone video “beyond a degree of medical certainty” (State's Lodging A-13 at 92, 94); (2) trial counsel should have moved for a judgment of dismissal or acquittal based on insufficient evidence; and (3) direct appeal counsel should have appealed the trial court's decision to overrule trial counsel's mid-trial objection to the doctor's identification of the victim as the woman in the cell phone video. (Dkt. 3-1, Att. B.)

         For the following reasons, the Court concludes that Russo is not entitled to habeas relief.


         1. Habeas Corpus Standard of Law

         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. This 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 ...

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