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Ball v. Tewalt

United States District Court, D. Idaho

November 19, 2019

GARY NICHOLAS BALL, Petitioner,
v.
JOSH TEWALT, Respondent.

          INITIAL REVIEW ORDER

          DAVID C. NYE, CHIEF U.S. DISTRICT COURT JUDGE

         Petitioner 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).

         The 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 Id.

         Having reviewed the Petition, the Court concludes that Petitioner may proceed.

         REVIEW OF PETITION

         1. Background

         On 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.

         Petitioner 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 indeterminate.

         Petitioner 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.

         3. Discussion

         In this 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.

         On 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, reasoning:

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 ...


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