United States District Court, D. Idaho
INITIAL REVIEW ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
Gary Nicholas Ball (Petitioner) has filed a Petition for Writ
of Habeas Corpus challenging his state court conviction. Dkt.
3. Federal habeas corpus relief is available to petitioners
who are held in custody under a state court judgment that
violates the Constitution, laws, or treaties of the United
States. See 28 U.S.C. § 2254(a).
Court is required to review each newly-filed habeas corpus
petition to determine whether it is subject to summary
dismissal. See Rule 4 of the Rules Governing Section
2254 Cases; 28 U.S.C. § 2243. If “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, ” the petition will be dismissed
reviewed the Petition, the Court concludes that Petitioner
September 9, 2014, and October 16, 2014, Petitioner sold
heroin to a confidential police informant. On October 22,
2014, an officer arrested him for making the two prior sales.
He was charged in a criminal action in the Fourth Judicial
District Court in Ada County, Idaho.
pleaded guilty to and was convicted of trafficking heroin in
violation of Idaho Code § 37-2732B(a)(6)(B). His
judgment of conviction was entered on June 17, 2015. He
received a sentence of ten years fixed, followed by ten years
filed a direct appeal, raising an excessive sentence claim,
which was unsuccessful. He next filed a post-conviction
action, raising claims of ineffective assistance of counsel.
He received no relief. His appeal was unsuccessful, with the
Idaho Court of Appeals affirming his conviction, and the
Idaho Supreme Court denying his petition for review and
entering its remittitur on August 30, 2019.
action, Petitioner brings one claim that his Sixth And
Fourteenth Amendment rights to effective assistance of
counsel were violated. He asserts that trial counsel failed
to thoroughly investigate the facts of his arrest that could
have supported a successful motion to suppress. According to
Petitioner, the officer who arrested him on October 22 did
not have probable cause to make the arrest because the
officer did not witness the crimes committed on September 9
and October 16.
post-conviction review, the state district court dismissed
Petitioner's claim. The Idaho Court of Appeals agreed
with the district court and denied Petitioner's claim,
Ball failed to establish any probability that a motion to
suppress would have been successful, and thus, could not
establish deficient performance by trial counsel. In its
opinion, the district court disagreed with Ball that the
arrest was illegal because no crime occurred in the
officer's presence. The district court explained the
officer's affidavit did not state--as Ball claimed--that
Ball committed a crime in the officer's presence. Rather,
the probable cause in the case arose from two prior sales
that Ball made to a confidential informant. In addition, the
district court determined Ball's trial counsel conceded
at the hearing that under Idaho law, an officer need not be
present at the commission of a felony for an officer to
subsequently arrest a person for that alleged felony.
Ball v. State, Docket No. 45525, at *5 (Idaho Ct.
App. Jul. 11, 2019). The Idaho Supreme Court denied the