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Lambertus v. Tewalt

United States District Court, D. Idaho

September 30, 2019

FRANK O. LAMBERTUS, Petitioner,
v.
JOSH TEWALT, Director, Idaho Department of Correction, [1] Respondent.

          INITIAL REVIEW ORDER

          Honorable Ronald E. Bush, Chief U.S. Magistrate Judge

         Petitioner Frank O. Lambertus, an Idaho state prisoner confined in a Texas prison facility, filed a Petition for Writ of Habeas Corpus challenging his state court conviction and sentence. (Dkt. 1.) The Court now reviews the Petition to determine whether the claims are subject to summary dismissal pursuant to 28 U.S.C. § 2243 or Rule 4 of the Rules Governing § 2254 Cases.

         REVIEW OF PETITION

         1. Standard of Law

         Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who show that they are held in custody under a state court judgment and that such custody violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). The Court is required to review a habeas corpus petition upon receipt to determine whether it is subject to summary dismissal. See Rule 4 of the Rules Governing Section 2254 Cases. Summary dismissal is appropriate where “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Id.

         2. Background

         Petitioner was convicted by jury of rape in a criminal action in Elmore County, Idaho. He was sentenced to a unified incarceration term of ten years fixed, with ten years indeterminate. Thereafter, he filed a direct appeal, asserting that his sentence was excessive. The Idaho Court of Appeals affirmed the sentence, and Petitioner did not file a petition for review with the Idaho Supreme Court. (See Dkt. 1.)

         Petitioner filed a post-conviction action in 2017, raising the issues of “ineffective counsel, false testimony, mental understanding, and sentencing too long- disproportionate.” (Dkt. 1, p. 3.). His post-conviction petition was dismissed or denied. He did not file an appeal. Petitioner filed this federal habeas corpus action on April 4, 2019.

         3. Review of Claims

         In this federal habeas corpus action, Petitioner brings the following claims. First, Petitioner asserts that the detective undertook an improper investigation because there was no rape kit done on the victim and no DNA evidence found. Second, Petitioner claims that “the jury was dirty, ” meaning that “one of the juror members knew the detective and the other juror member knew the prosecutor.” (Id., p. 7.) Third, Petitioner complains that his defense counsel did not call Petitioner’s preferred witnesses. He asserts, “I had a list of 20 people but there was only 3 that would have been great.” (Id., p. 8.) Fourth, Petitioner asserts that the victim changed her story five times.

         Petitioner admits that he brought none of these claims before the Idaho Supreme Court. Therefore, his claims appear procedurally defaulted, because there are no further procedural means available to bring the claims before the Idaho Supreme Court in a proper manner. To enable the Court to hear the merits of his claims, Petitioner will have to show that a legal or equitable reason applies to excuse the default of his claims, as explained below.

         Therefore, the Court will order the Clerk to serve a copy of the Petition on counsel for Respondent, who may respond either by answer or pre-answer motion and who shall provide relevant portions of the state court record to this Court.

         4. Request for Appointment of Counsel

         Petitioner seeks appointment of counsel, citing his status as an incarcerated inmate and a pauper. There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or if an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner’s ability to articulate his claims in light of the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

         Presently, the Court will deny Petitioner’s request for appointment of counsel until after it has an opportunity to review the state court record submitted by Respondent to consider whether the claims appear meritorious or whether discovery or an evidentiary hearing is required. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The Court will reconsider Petitioner’s request for appointment of counsel at each phase of this litigation, without the need for Petitioner to file another motion.

         5. Standards of Law for ...


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