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Ash v. Blades

United States District Court, D. Idaho

December 23, 2019

TERRY LEE ASH, Petitioner,
v.
RANDY E. BLADES, Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         Petitioner Terry Lee Ash filed a Petition for Writ of Habeas Corpus challenging his state court conviction and sentences for driving under the influence and being a persistent violator of the law. (Dkt. 3.) Petitioner's first state court trial ended in mistrial, but he was convicted in a second trial. All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 11.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

         Earlier in this matter, the Court granted Respondent Randy Blades' Motion for Partial Summary Judgment and dismissed with prejudice Claims 2(b), 3(a), 3(b), and those portions of Claim 1 asserting violations of the Idaho Constitution. Respondent has filed an Answer and Brief in Support of Dismissal addressing the remaining claims (Dkt. 29), and Petitioner has elected not to file a reply.

         Accordingly, Claims 1 and 2(a) are ripe for adjudication. The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been 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, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).

         Therefore, the Court enters the following Order denying Petitioner's claims.

         BACKGROUND FACTS UNDERLYING CONVICTION (FROM SECOND TRIAL)

         Two fishermen traveling to the Snake River on September 4, 2011, came upon Petitioner about 7:00 a.m. Petitioner's car had been wrecked into a ditch on the side of the road. They stopped to see if Petitioner needed help. Petitioner said he had driven the car into the ditch, expressed his gratitude for stopping to help, and asked the fisherman to pull his car out of the ditch. The fishermen declined, but told Petitioner they would call the sheriff's department to help him. Petitioner “emphatically” told them no, he did not want the sheriff's department to be called. The fishermen left and called the sheriff's office because they were suspicious of the circumstances. (State's Lodging A-5, pp. 70-82.)

         Ada County Sheriff's Deputy Paul Lim arrived on the scene about 8:00 a.m. He saw Petitioner's car being towed by a tractor on the west shoulder of the road. Deputy Lim did not check the original crash site, but remained with Petitioner and his car. Deputy Lim asked Petitioner whether he had been drinking, and Petitioner replied that he had not been drinking before the crash, but after the crash he had drunk one 16-ounce Ranier beer while he was sitting in the car for two hours waiting for help.

         Deputy Lim testified at trial that Petitioner told him he crashed because his coffee was spilling, but Deputy Lim did not see any coffee stains or wet marks on Petitioner or in the car. (Id., pp. 109-113.) Deputy Lim observed what he classified as thick speech or slurred speech from Petitioner, and administered field sobriety tests t Petitioner. (Id., pp. 83-114.) Petitioner failed the tests. Petitioner was smoking while talking with Deputy Lim; when Petitioner finished his cigarette, he threw the butt on the ground. Deputy Lim told him to pick up the butt, or he would cite him for littering. (Id.)

         Deputy Lim transported Petitioner to the Ada County Jail testing center. At 9:11 a.m., Petitioner's two Intoxilyzer 5000 EN tests registered blood alcohol content readings of .130 and .133-within the range to be charged with DUI.

         State's expert Gary Dawson, who holds a Ph.D. degree in pharmacology, testified that, taking into consideration the time frames above, he believed Petitioner's high blood alcohol level could not have been caused by drinking just one 16-ounce beer between the time of the crash and the time the deputy arrived on the scene. Dr. Dawson estimated that it would have taken about six or seven 12-ounce beers for the blood alcohol content reading of 1.3, and that one 16-ounce beer would have yielded only a .02 to a .03 level. That is, if a male of average height and average weight drank one beer, it would be out of his system and virtually undetectable within one hour. (Id., p. 127-146.)

         Dr. Dawson testified that, given that the breath test was administered about two hours after Petitioner stated he drank the one can of beer that would have been metabolizing out of his system within an hour, at the time of the wreck Petitioner's “blood alcohol had to be much higher than would be attributable to just one 16-ounce can of beer in order to maintain that level that long.” (Id., p. 149.) In summary, Dr. Dawson agreed that it was scientifically impossible “for a person to have consumed one beer right before the police show up-in this case before-at 7:30, eight o'clock, to drink one 16-ounce beer to have blow a .13 an hour later.” (Id., p. 155.)

         On cross-examination, Dr. Dawson agreed with defense counsel that, had Petitioner drunk four beers, not one, after the wreck, that would mean that his blood alcohol level at the time he wrecked the car would only have been approximately .05, not enough to meet the DUI statutory minimum of .08 for an adult over 21. (Id., pp. 155-64.)

         At trial Petitioner testified that he had actually drunk eight beers the day before the wreck, and four beers after he wrecked. He said that, after the wreck, he threw three beer cans out the window across the road and left only one in his car. He said he told the deputy he had drunk only one beer, because he did not want to get cited for littering, after the deputy threatened him about the tossed cigarette butt. Other trial evidence showed that, when Petitioner was in the jail, he told his sister that he drank only one beer. (Id., pp. 184-202.)

         Petitioner testified that he wrecked his car because one of his back tires went flat, making the car a “little bit squirrely, ” and, then another tire went flat. As he was trying to juggle his cup of coffee and the car, he “did a 180” and “put the car in the ditch, where it got stuck.” (Id., p. 184-85.) Both of the flat tires, however, were on the passenger side of the car where Petitioner ran the car into the ditch-suggesting that the tire damage did not cause the wreck but occurred from contact with the ditch. (Id., pp. 204-05.) Deputy Lim testified that Petitioner did not tell him that the tire had a part in causing the wreck; Petitioner told him only about the spilled coffee. (Id., p. 112.) Petitioner also testified that he had a brain injury as a result of a fire he was in, and that is why his speech is impaired. (Id., p. 188.)

         After the second trial, Petitioner was found guilty of felony DUI. (State's Lodgings A-1, p. 135; A-5, pp. 1, 247.) He underwent a psychological evaluation before sentencing. On October 17, 2012, a judgment of conviction was entered on the crime of felony driving under the influence with a persistent violator enhancement. Petitioner received a unified sentence of life imprisonment with fifteen years fixed. The sentencing judge noted that Petitioner had been convicted of eleven prior misdemeanor DUIs and five prior felony DUIs. (State's Lodging A-5, p. 289-90.)

         Petitioner pursued a direct appeal as well as state post-conviction remedies. (Dkt. 3 at 1-2.) He received no relief in state court.

         DISCUSSION

         Two claims remain to be adjudicated:

Claim 1 Petitioner's trial counsel rendered ineffective assistance by “failing to move to dismiss the second prosecution as a violation of [Petitioner's] state and federal constitutional protections against double jeopardy” (Id. at 6), and
Claim 2(a) Petitioner was denied his right to be free from double jeopardy. (Id. at 7.)

         1. Claim 1: Ineffective Assistance of Counsel

         A. ...


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