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Bartell v. Yordy

United States District Court, D. Idaho

September 26, 2019

KEITH YORDY, Respondent.


          Honorable Candy W. Dale, United States Magistrate Judge.

         Petitioner James Logan Bartell’s Petition for Writ of Habeas Corpus is now fully briefed and ripe for adjudication. (Dkts. 3, 27, 31, 34.) All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 13.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

         The Court takes judicial notice of the record from Petitioner’s state court proceedings, 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 and considered the arguments of the parties, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.


         1. Background

         In a criminal action in the Seventh Judicial District Court in Bingham County, Idaho, Petitioner was charged with two counts of lewd conduct with a child under the age of sixteen. Petitioner, an adult male, lived with his parents, who regularly babysat Petitioner’s three- and five-year-old nieces, S.B. and N.B., while their mother was at work or college. Each child accused Petitioner, their paternal uncle, of touching her vagina or putting his finger in her vagina. These acts happened several times in 2012 with N.B., but only once with S.B. When N.B. finally revealed these acts to her mother because the last instance of abuse hurt, she was taken to the hospital for examination. Police investigators were called, and Petitioner was charged and arrested.

         Four different public defenders represented Petitioner during the course of his criminal case. Attorney Cindy Campbell represented Petitioner for four months from the first appearance on August 2, 2012, through the preliminary hearing stage. (State’s Lodgings A-1, p. 20; D-4, p. 7.) Petitioner requested a continuance of the preliminary hearing, voicing his desire to hire a private attorney. (Id., p. 25.) Petitioner appeared in court at the rescheduled preliminary hearing date with Campbell and waived the hearing; he was bound over for arraignment. (Id., p. 31.) On September 10, 2012, Campbell represented Petitioner at his arraignment. (Id., pp. 1-2.)

         On October 4, 2012, attorney Jared Ricks was appointed to represent Petitioner. (State’s Lodging A-1, p. 47.) On October 26, 2012, Ricks informed the court that he had “a conflict of interest in representation” because he had informed Petitioner that he was a former prosecutor, and Petitioner objected to being represented by someone with that history. (Id., pp. 49, 52.)

         On October 29, 2012, attorney R. James “Jim” Archibald was appointed to represent Petitioner, just ahead of the trial scheduled for November 27, 2012. (Id., p. 50.) On November 5, 2012, Archibald and Petitioner appeared at a pretrial conference. Archibald indicated that the defense intended to proceed to trial as scheduled. (Id., p. 54.)

         Archibald represented Petitioner at the jury trial. Petitioner was found guilty of both counts. (Id., p. 112.) Archibald filed a motion for new trial based on the jury foreman’s failure to disclose that he had a private business relationship with a prosecuting attorney who worked in the Bingham County Attorney’s civil division. (Id., pp. 120-124, 150-53.) The motion for a new trial was unsuccessful.

         Thereafter, the Court ordered a psychosexual evaluation and replaced Petitioner’s attorney with Stephen S. Hart, who represented him through sentencing. (State’s Lodging A-1, pp. 55-56, 167-214.) The judgment of conviction was entered on April 8, 2013. (Id., pp. 195-97.) Petitioner received a unified sentence of 20 years in prison with 8 years fixed. (Id.)

         The state appellate public defender was appointed to represent Petitioner on direct appeal. (Id., pp. 215-25.) Petitioner received no relief on direct appeal. (State’s Lodgings B-6 to B-9.) He next pursued a state post-conviction petition. (State’s Lodging C-1.) Attorney Deborah Whipple represented Petitioner on post-conviction appellate review. Again, Petitioner received no relief, other than to obtain authorization to file a Rule 35 motion. (State’s Lodgings C-1, pp. 210, 213; D-4 to D-8; E-4.)

         Petitioner filed the Rule 35 motion for correction of sentence. Attorney Manuel Murdoch was appointed to represent him. The state district court issued an order denying the motion, and Petitioner did not file an appeal. (State’s Lodgings E-1 and E-8.)

         In the instant Petition for Writ of Habeas Corpus, Petitioner raised six claims of ineffective assistance of trial and appellate counsel. (Id. at 5-9.) Earlier in this matter, Respondent filed a Motion for Partial Summary Dismissal, asserting that Claims 2, 4, 5 (in part), and 6 were procedurally defaulted. (Dkt. 15.) Petitioner agreed, and the Court dismissed those claims. (Dkts. 21, 23.) Accordingly, the merits of Claims 1, 3, and 5 (remaining part) are now at issue. While Respondent newly asserts that some of the subparts of Claim 3 are procedurally defaulted, the Court finds it more efficient to address those claims on the merits de novo than to undertake the complex procedural default analysis.

         2. Standard of Law for Review of Petition

         A. AEDPA Deferential Review Standard

         Federal habeas corpus relief may be granted where a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A challenge to a state court judgment that addressed the merits of any federal claims is governed by Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

         The AEDPA 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). A federal habeas court reviews the state court’s “last reasoned decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

         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 v. Cone, 535 U.S. 685, 694 (2002). If 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, 101 (2011). The United States Supreme Court has 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).

         B. De Novo Review Standard

         In some instances, AEDPA deferential review under § 2254(d)(1) does not apply: (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 federal district court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 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. To the contrary, 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) and the federal district court 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).

         C. Sixth Amendment Standard

         The Sixth Amendment to the United States Constitution provides that a criminal defendant has a right to effective assistance of counsel in his defense. The standard for such claims was defined 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 “deprive[d] 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 ineffective assistance of counsel case. 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 is deficient and will compel denial. 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 a defense, “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. 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. Duhaime, 200 F.3d at 600. First, tactical decisions do not constitute ineffective assistance 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).

         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 afforded 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 a claim of ineffective assistance of counsel in a federal habeas proceeding under § 2254(d), the Court’s review of that claim is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

         3. Discussion

         A. Claim 1: Attorney Campbell’s Representation

         Petitioner asserts that Campbell, who represented him from arraignment through the preliminary hearing only, was ineffective in failing to communicate with him and performing no investigation into his case. (Dkt. 3, pp. 12-14.) Petitioner makes various factual allegations, which distill into the following sub claims: (a) Campbell did not investigate or address Petitioner’s mental disability/mental illness issues, including whether a competency hearing should be held; (b) Campbell did not investigate or address Petitioner’s allegations that the victims previously had been molested by their maternal grandfather and uncle; (c) Campbell rarely communicated with Petitioner; and (d) Campbell did not propound any discovery, issue subpoenas, or submit witness lists.

         1) Sub claim 1(a)

         It is undisputed that Campbell did not have Petitioner examined or request a hearing to determine, in light of his history of mental disability and illness, whether he was competent to stand trial and to assist in his own defense. (Id., p. 14.) Petitioner asserts that he was receiving Social Security Disability Insurance (SSDI) payments from the government for a condition of mild mental retardation, but says that, as a minimally-competent criminal defense attorney, Campbell either knew it and did nothing about it, or should have discovered it. This Court considers whether the Idaho Court of Appeals’ opinion in this case-concluding that these omissions did not constitute ineffective assistance of counsel-is an unreasonable application of Strickland under the AEDPA deferential review standard.

         Petitioner raised this claim before the Idaho Court of Appeals in the post-conviction matter. The Idaho Court of Appeals rejected Petitioner’s claim, finding: “Neither Bartell’s petition nor the supporting affidavits allege that Bartell showed any signs or symptoms of being mentally ill or incompetent during the time Campbell represented him.” (State’s Lodgings D-4, p. 7; C-1, pp. 12-13, 30-31.) Further, the Idaho Court of Appeals found that Petitioner did not allege in his petition or supporting affidavit that Petitioner “ever informed Campbell of his mental health history” and “nothing in the record … demonstrate[s] why Campbell should have known about Bartell’s mental health history.” (State’s Lodgings D-4, pp. 708; C-1, pp. 12-13, 30-31.)

         Finally, the Idaho Court of Appeals found that there was nothing in the entire record “to demonstrate why Campbell should have known about Bartell’s mental health history, nor is there any evidence that Bartell would have been found incompetent had a competency evaluation been performed.” (Id.) Because no information in the record showed that a mental health evaluation would have been appropriate or fruitful, Campbell was not ineffective in failing to investigate this avenue, the Idaho Court of Appeals concluded. (Id.)

         Here, Petitioner must show that the Idaho Court of Appeals’ decision was an unreasonable application of Strickland. Campbell’s only representation of Petitioner was during the preliminary proceedings, encompassing the first few months of the criminal case. Petitioner argues that counsel should have visited the scene of the crime and interviewed family members to prepare for the preliminary hearing.

         Respondent argues that it is not reasonable to have expected Campbell to do in-depth investigation at that point, citing Barber v. Page, 390 U.S. 719 (1968). However, the holding of that case was aimed at the right of confrontation of witnesses and did not address how thorough an investigation should be completed in the early months of a criminal representation. Where Idaho’s speedy trial time frame is six months from the date of arrest, information, or arraignment, see I.C. § 19-3501, it is essential for defense attorneys to begin investigations fairly quickly. It seems that Campbell at least could have asked Petitioner what he did for work, which would have revealed that he was on SSDI.

         However, even if Campbell was deficient in her performance because she failed to do minimal investigative work, Strickland still requires Petitioner to show that the failure prejudiced his defense. This, Petitioner is unable to do.

         As to the mental health condition, the record reflects that Petitioner testified in a manner that does not call in to question his competence. (State’s Lodging A-2, pp. 305-15.) When testifying, Petitioner demonstrated an understanding of what he was accused of, how he viewed his relationship with the victims, and the wrongful nature of what he was accused of:

I-I cared for them girls. They’re almost like my own kids, I would say. I would never touch a little kid. These accusations are wrong. I don’t know ...

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