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Walck v. Tewalt

United States District Court, D. Idaho

November 20, 2019

JOSH TEWALT, Director, Idaho Department of Correction, [1]Respondent.


          Honorable Candy W. Dale United States Magistrate Judge

         Earlier in Petitioner Mitchell Lee Walck's habeas corpus matter, the Court granted Respondent Josh Tewalt's Motion for Partial Summary Dismissal, resulting in dismissal of Claims 1(e), 1(f), 1(g), and 3. (Dkts. 23, 49.) The remaining claims are ready for adjudication on the merits. Both named parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 14.)

         The Court takes judicial notice of the record from Petitioner's state court proceedings, lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

         Having carefully reviewed the record and considered the arguments of the parties, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.


         Just after midnight on December 1, 2012, law enforcement officers in Athol, Idaho, tried to pull over Petitioner's vehicle. Petitioner failed to stop his truck for the officers, instead leading them on a chase from Athol to Rathdrum, Idaho. Police officers set up a spike system in Rathdrum, causing Petitioner's driver's front tire to go flat, and yet he kept going.

         When Petitioner's truck finally came to a stop, he fled on foot. Officer Kevin White pursued Petitioner. Seconds later, Petitioner turned and fired a single shot from his pistol at White, missing him. Officers immediately stopped their pursuit, and Petitioner got away. However, officers discovered Petitioner's identity and name from the vehicle registration left behind in the abandoned truck. (See State's Lodging A-1 to A-2.)

         Later that same day, Susan Smith went outside her home to let her cat out. Petitioner was hiding behind a woodpile in her yard. He revealed himself, pushed his gun into her back, and led her inside the house. There, he took a bath, trimmed his beard, and prepared food. Petitioner then directed Smith to get into her 2005 Subaru Forrester at gunpoint and drove away with her. (See id.)

         The next day, Petitioner let Smith go in an Albertson's parking lot in Glendive, Montana, making arrangements for her to stay with a church group when he dropped her off. Petitioner then traveled to North Dakota in Smith's Subaru. Smith immediately called her sister and Idaho law enforcement when she was released by Petitioner. (See id.)

         In North Dakota, officers received a notification to keep a watch for Petitioner, who might be traveling through the state in the kidnaping victim's Subaru. Petitioner was arrested in North Dakota and charged with Terrorizing, Unlawful Entry into a Motor Vehicle, Possession of Stolen Property (the Subaru stolen from Idaho), and Felon in Possession of a Firearm. (State's Lodging D-8.) Petitioner had served one year on the ten-year Possession of Stolen Property sentence when he was sentenced to prison in Idaho for robbery-with both crimes centering on the Subaru stolen from the kidnaping victim. The Subaru was eventually returned to the victim, with 1500 additional miles on the odometer and various types of damage, and without the key, electronic key fob, and floor mat. (See id.)

         On advice from public defender Christopher Schwartz, Petitioner entered into a plea agreement with the State of Idaho and pleaded guilty to and was convicted of robbery, second degree kidnaping, and aggravated assault on a law enforcement officer in a criminal action in the First Judicial District Court in Kootenai County, Idaho. A judgment of conviction was entered on April 23, 2014. Petitioner's Idaho sentences were ordered to run concurrently with the North Dakota sentences Petitioner was serving.


         Federal habeas corpus petitions are governed by Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Title 28 U.S.C.§ 2254(d) limits relief to instances 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).

         To assess whether habeas corpus relief is warranted, the federal district court reviews “the last state-court adjudication on the merits.” Greene v. Fisher, 132 S.Ct. 38, 45 (2011). The deferential standard of Section 2254(d) applies regardless of whether the state court decision “is unaccompanied by an opinion explaining the reasons relief has been denied.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99. When the last adjudication on the merits provides a reasoned opinion, federal courts evaluate the opinion as the grounds for denial. 28 U.S.C. 2254(d).

         However, where the state's highest court did not issue a reasoned decision, courts within the Ninth Circuit review the decision of the Idaho Court of Appeals using the “look through” principle of Ylst v. Nunnemaker, 501 U.S. 797 (1991), and “presume the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016).[2]


         Following a logical rather than a sequential pattern, the Court begins with Claim 2, Petitioner's double jeopardy claim, because it is the foundation for one of his ineffective assistance of counsel claims, which the Court will discuss directly after Claim 2.

         1. Claim 2

         A. Standard of Law

         The Double Jeopardy Clause of the Fifth Amendment protects against “multiple punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984). The protection against cumulative punishments “is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature.” Id. at 499.

         Even though application of double jeopardy principles may not make intuitive sense to a nonlawyer, the law is clearly established that the Double Jeopardy Clause's protections are not invoked when a defendant is charged by two separate sovereigns. In the context of simultaneous federal and state sovereign government charges, the Supreme Court explained:

In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), this Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one. The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the ...

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