United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale, United States Magistrate Judge.
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.
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).
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
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.
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.
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.)
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.)
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.
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.)
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
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.)
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
Standard of Law for Review of Petition
AEDPA Deferential Review Standard
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”).
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;
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).
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).
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).
De Novo Review Standard
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).
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).
Sixth Amendment Standard
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.
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
Id. at 689 (internal citations and quotation marks
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
[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.
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.
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.
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.
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).
Claim 1: Attorney Campbell’s
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.
Sub claim 1(a)
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.
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.)
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.)
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.
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.
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.
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 ...