United States District Court, D. Idaho
INITIAL REVIEW ORDER
C. Nye Chief U.S. District Court Judge
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
Standard of Law for Review of Petition
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.” Id.
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.
instant Petition for Writ of Habeas Corpus, Petitioner brings
the following twelve claims, citing the Fifth, Sixth, and
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
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 ...