United States District Court, D. Idaho
FRANK O. LAMBERTUS, Petitioner,
JOSH TEWALT, Director, Idaho Department of Correction,  Respondent.
INITIAL REVIEW ORDER
Honorable Ronald E. Bush, Chief U.S. Magistrate Judge
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.
Standard of Law
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
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.)
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
Review of Claims
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.
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.
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.
Request for Appointment of Counsel
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).
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
Standards of Law for ...