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Thumm v. Tewalt

United States District Court, D. Idaho

December 9, 2019

VANCE EVERETT THUMM, Petitioner,
v.
JOSH TEWALT, IDOC Director, Respondent.

          INITIAL REVIEW ORDER

          David C. Nye Chief U.S. District Court Judge

         Petitioner Vance Everett Thumm, a prisoner currently in custody of the California Department of Corrections and Rehabilitation, has filed a Petition for Writ of Habeas Corpus challenging his Idaho state court conviction. See Dkt. 1. The Court now reviews the Petition to determine whether it is subject to summary dismissal pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”).

         REVIEW OF PETITION

         1. Standard of Law for Review of Petition

         Federal 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. Habeas Rule 4. 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 court.”[1] Id.

         2. Discussion

         Following a jury trial in the Fourth Judicial District Court in Ada County, Idaho, Petitioner was convicted of aggravated battery and a persistent violator enhancement. The judgment of conviction was entered on March 10, 2010. Petitioner was sentenced to a unified term of forty years in prison with fifteen years fixed. Petitioner pursued a direct appeal as well as state post-conviction relief. Dkt. 1 at 1-3.

         In the instant Petition for Writ of Habeas Corpus, Petitioner brings the following twelve claims, citing the Fifth, Sixth, and Fourteenth Amendments:

Claim 1: “The district court committed reversible error by denying motion for mistrial after one of the states [sic] witnesses referenced [Petitioner's] alleged gang affiliation.” Id. at 6.
Claim 2: “The district court committed reversible error in concluding that if the defense called Chris Smith to testify then the state would be permitted to impeach his testimony with information that both [Petitioner] and Mr. Smith are alleged gang members from different gangs.” Id. at 7.
Claim 3: “[Petitioner's] due process rights were violated when the state introduced evidence that he invoked his fifth amendment rights to infer guilt during case in chief and closing argument.” Id. at 8.
Claim 4: “[Petitioner] was denied his constitutional right to a fair trial due to the serious and relentless acts of prosecutorial misconduct, ” in the following respects: (a) “appeal[ing] to jury's passions and prejudices”; (b) “misstat[ing] the reasonable doubt standard”; and (c) “elicit[ing] evidence that [Petitioner] invoked his fifth amendment rights to infer his guilt.” Id. at 9.
Claim 5: “Under the doctrine of cumulative error, the accumulation of irregularities durring [sic] the trial … warrant[s] a new trial.” Id. at 10.
Claim 6: Ineffective assistance of counsel in the following respects: (a) trial counsel's conduct “regarding joinder of the trial with co-defendants”; (b) trial counsel's “failure to object to the hearsay statements of [Petitioner's] co-defendant being introduced in [Petitioner's] trial”; and (c) appellate counsel's failure “to raise this issue as fundamental error on direct appeal.” Id. at 11.
Claim 7: Ineffective assistance of trial counsel, based on “lack of preparation, ” in the following respects: (a) late disclosure of defense witnesses; (b) missing a “deadline to submit redacted audio tapes”; (c) “failing to timely file a motion to suppress the photo line ups”; (d) failing “to adequately meet, communicate, or prepare with [Petitioner] and fail[ing] to provide and/or review the discovery with him”; and (e) failing to prepare “for the testimony of Helen Fisher.” Id. at 12.
Claim 8: Ineffective assistance of trial counsel in the following respects: (a) failing “to oppose the proposed impeachment of witnesses by gang membership”; (b) failing to call witnesses; (c) “failing to object to testimony of Jeremy Steinmetz and … failing to impeach him”; (d) failing “to object to the prosecutions [sic] use of the term ‘prison'”; (e) failing use fingerprint evidence that was “fexculpatory[] [and] not incriminating”; (f) failing to object to prosecutorial misconduct; (g) failing to impeach Frankie Hughes on the basis of bias; and (h) failing to impeach, “refresh, ” or “follow up” with detectives. Id. at 13.
Claim 9: Violation of Brady v. Maryland, 373 U.S. 83 (1963), based on the state's “failure to timely disclose a fingerprint report. Id. at 14.
Claim 10: Prosecutorial misconduct during closing argument in the following respects: (a) taking “advantage … of [the prosecutor's] own nondisclosure of the fingerprint evidence”; (b) making “disparaging comments about defense counsel and the defense”; (c) making “unsupported comments about the victim … being afraid of [Petitioner]”; (d) arguing “that Jeremy Steinmetz was afraid of [Petitioner]”; (e) “mischaracteriz[ing] significant evidence”; and (f) using inflammatory language. Id. at 15.
Claim 11: Claim 11(a) asserts ineffective assistance of sentencing counsel. Claim 11(b) asserts ineffective assistance of direct appeal counsel for “failing to raise the Bruton issue, Abel issue, and Brady issue, and all ...

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