United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
DAVID
C. NYE CHIEF U.S. DISTRICT COURT JUDGE
Pending
before the Court is an Amended Petition for Writ of Habeas
Corpus filed by Idaho prisoner Dale Carter Shackelford
(“Petitioner” or “Shackelford”),
challenging Petitioner's Latah County convictions and
fixed life sentences. Dkt. 9. The Court previously dismissed
Claims 2(a), 5, 6, 7, 8, and 10 of the Amended Petition.
See Dkt. 29. The remaining claims in the Amended
Petition-Claims 1, 2(b), 3, 4, and 9-are now fully briefed
and ripe for adjudication. Dkt. 37, 39, 44.
The
Court takes judicial notice of the records from
Petitioner's state court proceedings, which have been
lodged by Respondent. (Dkt. 14.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1
(9th Cir. 2006).
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.
BACKGROUND
Absent
clear and convincing evidence to the contrary, see
28 U.S.C. § 2254(e)(1), the following facts of
Petitioner's case, as described by the Idaho Supreme
Court, are presumed correct[1]:
Dale Shackelford was convicted of the murders of his ex-wife,
Donna Fontaine, and her boyfriend, Fred Palahniuk, which
occurred near the Latah County town of Kendrick, Idaho, in
May 1999. The State alleged that Shackelford conspired with
Martha Millar, Bernadette Lasater, Mary Abitz, Sonja Abitz,
and, John Abitz. Millar and Lasater worked for
Shackelford's trucking business, Shackelford Enterprises,
in Missouri. The Abitz family lived near the residence where
the bodies of Donna and Fred were found. Sonja Abitz was
Shackelford's fiancée at the time of the murders,
and John and Mary Abitz are Sonja's parents. The alleged
conspirators eventually pled guilty to charges related to the
murders.
Shackelford and Donna married in Missouri in December 1995
and the relationship ended in the summer of 1997, with the
couple divorcing in November of that year. Donna accused
Shackelford of raping her in July 1997, and charges were
filed in 1998. In the spring of 1999, Donna developed a
relationship with Fred and, on May 28, 1999, the two visited
Donna's brother, Gary Fontaine, at the home Gary and
Donna's daughter owned together outside of Kendrick. The
morning of May 29, Donna, Fred, and Gary went to the Locust
Blossom Festival in Kendrick, where they met John, Mary, and
Sonja Abitz.
After leaving the festival, Gary went to the Abitz's
house, but he left around dark, returned home, noticed
Donna's pickup in the driveway, and smelled smoke. Gary
called the Abitz's house and reported that his two-story
garage was on fire. Mary, Sonja, Ted Meske (Mary's
brother), and Shackelford arrived at the fire and various
individuals tried to extinguish it, but were unsuccessful.
At 7:40 p.m., Latah County Sheriff Patrol Deputy Richard
Skiles was called to investigate the fire at 2168 Three Bear
Road. When Skiles arrived at the scene, nearly an hour later,
he observed several persons-including Gary Fontaine, Mary
Abitz, Sonja Abitz, Brian Abitz (Sonja's brother), Ted
Meske, and Shackelford-standing near the garage that was
completely engulfed in flames. Based upon information
obtained from Ted and Shackelford, Deputy Skiles contacted
dispatch to have an on-call detective sent “because
there was a possibility there could be a suicide victim in
the fire.” By the time the fire department arrived, the
garage had been utterly destroyed. Several hours later, after
the fire had been extinguished, two bodies were found in the
rubble. The bodies were subsequently identified as the
remains of Donna and Fred. At trial, a state fire
investigator testified as to his opinion that the fire was
arson.
Doctor Robert Cihak conducted autopsies of the remains, which
were severely burned. Shotgun pellets were found in
Donna's right chest region and a bullet was found in the
back of her neck. Dr. Cihak opined that the bullet wound was
fatal and was inflicted when Donna was still alive. A bullet
was also found in Fred's body behind the upper
breastbone, which Dr. Cihak concluded was the cause of death.
Dr. Cihak offered his opinion that Donna and Fred were dead
at the time of the fire.
State v. Shackelford, 247 P.3d 582, 588-89 (Idaho
2010) (Shackelford I) (also found at State's
Lodging C-19 at 2-3) (footnote omitted).
The
jury found Petitioner guilty of two counts of first-degree
murder, as well as conspiracy to commit murder, arson,
conspiracy to commit arson, and preparing false evidence.
Petitioner received fixed life sentences for each murder
conviction and the murder-conspiracy conviction,
[2] and
he received shorter fixed terms of imprisonment on the
remaining convictions.
CLAIMS
PRESENTLY AT ISSUE
Petitioner's
federal habeas corpus petition asserts numerous claims, five
of which remain for adjudication on the merits.[3] Claim 1 asserts
that Petitioner was denied his counsel of choice in violation
of the Sixth Amendment. Claim 2(b) asserts a due process
violation based on the jury instruction on the false-evidence
charge, which did not define the word “produced.”
In Claim 3, Petitioner asserts a violation of the Ex Post
Facto Clause based on the trial court's refusal to give
an instruction regarding circumstantial evidence. Claim 4
alleges that the trial court improperly failed to give an
instruction requiring unanimity with respect to the overt
acts committed, and which co-conspirator committed those
acts, in furtherance of the conspiracy to commit arson and
murder. And in Claim 9, Petitioner alleges that, under the
Sixth Amendment, the jury was required to find aggravating
factors that would render Petitioner eligible for a fixed
life sentence. See Dkt. 9 at 12-85.
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. That 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
court factual findings are presumed to be correct and are
binding on the federal court unless the petitioner rebuts
this presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
If a
petitioner satisfies § 2254(d)-either by showing that
the state court's adjudication of the claim was contrary
to, or an unreasonable application of Supreme Court precedent
or by establishing that the state court's factual
findings were unreasonable-then the federal habeas court must
review the petitioner's claim de novo, meaning without
deference to the state court's decision. Hurles,
752 F.3d at 778.
When
considering a habeas claim de novo, a district court may, as
in the pre-AEDPA era, 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). Even under de novo review, however, if the
factual findings of the state court are not unreasonable
under § 2254(d)(2), 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
1167-68. Conversely, if a state court factual determination
is unreasonable, the federal court is not limited by §
2254(e)(1) and may consider evidence outside the state court
record, except to the extent that § 2254(e)(2) might
apply. Murray v. Schriro, 745 F.3d at 1000.
Generally,
even if a petitioner succeeds in demonstrating a
constitutional error in his conviction, he is entitled to
federal habeas relief only if the petitioner “can
establish that [the error] resulted in ‘actual
prejudice.'” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993). Under the Brecht standard, an
error is not harmless, and habeas relief must be granted,
only if the federal court has “grave doubt about
whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury's
verdict.” O'Neal v. McAninch, 513 U.S.
432, 436 (1995) (internal quotation marks omitted).
DISCUSSION
1.
Claim 1: Denial of Counsel of Choice
When
Petitioner was arrested on February 12, 2000, the police
seized approximately $5, 000 from him. Petitioner claims he
had intended to use this money to hire private counsel
“for his initial appearance and arraignment in the
event of his impending arrest.” (Dkt. 9 at 12.) Claim 1
asserts that, as a result of the seizure of these funds,
Petitioner was denied his right to hire private counsel of
his choice.
At
Petitioner's initial arraignment, he did not assert his
right to hire private counsel. Instead, he requested the
appointment of counsel. (State's Lodging A-16 at
16.) The trial court instructed Petitioner to fill out the
required financial form, but Petitioner claimed he did not
have enough information to do so:
THE DEFENDANT: …I have no information. I didn't
even have shoes or glasses until the minute I walked in this
door. I don't have any of my information. I have nothing
whatsoever.
THE COURT: What information do you need?
THE DEFENDANT: I don't even know where I am right now. I
mean, as far as Latah County, I do know that. My current
address, anything about employers, things of that nature. My
secretaries have been arrested, my friends have been
arrested.
I don't even know if I have a house left. I don't
even know if my dogs are starving to death.
… [A]s far as my monthly earnings prior to arrest, I
don't know of anything. I do know that I had enough money
in my pocket when I was thrown to the floor in the
sheriff's office to actually hire an attorney to appear
with me at this proceeding. But that money has been-according
to the deputy-the corporal who was at the jail that
evening-was turned over as evidence to a detective over $4,
000.
THE COURT: So you believe you have the wherewithal to retain
counsel?
THE DEFENDANT: I may well have, but at this point I don't
know what I have left ….
THE COURT: Let's deal with your request to have
counsel appointed for you. Do you have other assets that
would be available to you to retain counsel?
THE DEFENDANT: It's a possibility, Your Honor. I do
not know at this point. I have vehicles which I could
sell, but I don't know where the vehicles are right now.
I had money in my pocket, but Detective Hall took it as
evidence and now I'm being told that I have no money
….
THE COURT: Well, Mr. Shackelford, do you wish to be
considered for the appointment of counsel or do you want to
have counsel retained by you?
THE DEFENDANT: I do not know if I can afford
counsel, Your Honor. I've not been able to …
find out if I can retain counsel…. I cannot tell you a
lot of the answers that are required on here. In all honesty
I cannot.
THE COURT: Well, what information do you need in order to
make an informed decision on that?
THE DEFENDANT: Whether I have any income from any source
right now would be one of ...