Leavitt v. Arave

Filing 347

MEMORANDUM DECISION AND ORDER denying 318 Petitioner's Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60(b), Application for Further Stay of Execution. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RICHARD A. LEAVITT,
Case No. 1:93-cv-0024-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

A.J. ARAVE, Warden, Idaho Maximum
Security Institution,
Respondent.

INTRODUCTION
Pending before the Court in this capital habeas matter is Petitioner’s Motion for
Relief from Judgment [and] Application for Further Stay of Execution. (Dkt. 318.)
Having recently completed all appeals, Petitioner has now returned to this Court seeking
relief from judgment based on a March 2012 Supreme Court case, Martinez v. Ryan, 132
S.Ct. 1309 (2012), which recognized for the first time that serious errors committed by a
habeas petitioner’s state post-conviction counsel may serve as a reason to excuse the
petitioner’s failure to exhaust claims of ineffective assistance of trial counsel. Relying on
Martinez, Petitioner argues that he was unable to exhaust certain trial-related ineffective
assistance claims because of the ineffective assistance of his appointed post-conviction
counsel.

MEMORANDUM DECISION AND ORDER - 1

For the reasons set for more fully below, the Court concludes that Petitioner has
failed to show that extraordinary circumstances exist to reopen the judgment. In reaching
that conclusion, the Court finds that Petitioner is barred from requesting reconsideration
of any claims that have been already decided on the merits in this habeas matter or from
adding new grounds for relief that were not included within Claim 9 of the First Amended
Petition. In addition, Petitioner has not established that any of his defaulted claims of
ineffective assistance of trial counsel are substantial. Martinez therefore provides him no
relief.
BACKGROUND
On July 21, 1984, the decomposing body of Danette Elg was discovered in her
home. She had been stabbed repeatedly with exceptional force and had died on her
punctured waterbed. After a brief investigation, Richard Leavitt was charged with Elg’s
murder.
The Bingham County Public Defender, David Parmenter, was appointed to
represent Leavitt. (State’s Lodging A-1, pp. 4-5.) Parmenter had filed several routine
motions when Leavitt’s family hired private counsel, Jay Kohler, who was assisted by his
co-counsel Ron Hart. (State’s Lodging A-1, pp. 17-18.) The case proceeded to a jury trial
with attorneys Kohler and Hart, after which Leavitt was convicted of first degree murder
and other associated felonies. (Id. at 815-17.) In 1985, the state trial court sentenced him
to death. (Id. at 862-67.)
Within 42 days of judgment, a post-conviction petition alleging ineffective
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assistance of trial counsel was filed on Leavitt’s behalf, in compliance with Idaho’s
special pre-appeal, post-conviction procedure governed by Idaho Code § 19-2719.
(State’s Lodging B-1, pp. 1-3.) The trial court then re-appointed Parmenter to represent
Leavitt in the post-conviction matter while the direct appeal was delayed. (State’s
Lodging A-3, pp. 880.) After an evidentiary hearing in April 1987, at which Jay Kohler
and other witnesses testified about aspects of trial counsel’s representation, the trial court
denied relief. (Id. at 10-18; State’s Lodging B-2, pp. 145-75.)
During the subsequent appeal to the Idaho Supreme Court (“the 1989 appeal”),
Parmenter raised issues of ineffective assistance of trial counsel, including allegations that
Kohler and Hart had failed (1) to call witnesses as requested by Leavitt to show the
supposed bias of the Blackfoot Police Department, (2) to present evidence regarding
voice identification, (3) to pursue evidence of alternative perpetrators, and (4) to object to
prosecutorial misconduct. (State’s Lodging C-1, pp. 29-33.) The Idaho Supreme Court
rejected all of these issues, finding that “the defendant’s asserted deficiencies of counsel
deal with disagreements with strategic judgments with his trial counsel.” State v. Leavitt,
775 P.2d 599, 605 (Idaho 1989) (“Leavitt I”). The Idaho Supreme Court also determined
that even if trial counsel had committed errors, Leavitt had not shown that his right to a
fair trial had been prejudiced. Id. While the court affirmed all other trial-related claims, it
reversed Leavitt’s death sentence and remanded for resentencing. Id. at 607.
Parmenter continued to represent Leavitt during resentencing proceedings in the
state district court. (State’s Lodgings D-2.) After conducting a second sentencing hearing
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in late 1989, the trial court re-imposed a death sentence in early 1990. (State’s Lodging
D-2, pp. 19-37.) Parmenter did not seek post-conviction relief from the new sentence, and
his second appeal to the Idaho Supreme Court on Leavitt’s behalf was unsuccessful. State
v. Leavitt, 822 P.2d 523 (Idaho 1991) (“Leavitt II”).
With the assistance of new counsel, Leavitt filed a Petition for Writ of Habeas
Corpus in this Court in 1993, which he later amended. (Dkts. 13, 41.) In Claim 9 of the
First Amended Petition, Leavitt alleged that he had been deprived of his Sixth
Amendment right to the effective assistance of counsel at trial, post-conviction, resentencing, and on appeal. (Dkt. 41, pp. 19-23.) Specifically, he alleged that his appointed
attorneys were ineffective in the following ways:
(a)

Failing to object to the prosecutor’s questioning of witnesses about
Leavitt’s exercise of his constitutional right not to provide a blood sample
without a warrant (¶ 59-62);

(b)

Failing to have Leavitt examined by an independent psychiatric expert
before trial (¶ 63-65);

(c)

Not investigating Leavitt’s mental condition as mitigating evidence before
the 1989-90 resentencing hearing (¶ 65-70);

(d)

Failing to “investigate and call witnesses to show police bias against
[Leavitt] and to counter the forensic serology evidence introduced by the
state” (¶ 70);

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(e)

Not objecting to prosecutorial misconduct “during trial and closing
argument” (¶ 71);

(f)

Failing to “move for the exclusion of certain evidence including testimony
that Petitioner had a knife while engaging in consensual sexual intercourse
with a woman and the improper cross-examination of [Leavitt] by the
prosecution”; (¶ 72);

(g)

Failing to investigate and prove “the existence of juror misconduct” (¶ 73);

(h)

Failing to investigate and raise instructional issues “on appeal and in the
post-conviction proceeding,” including the trial court’s failure to instruct on
the presumption of innocence and the requirement of proof beyond a
reasonable doubt. (¶ 74).

(Dkt. 41, pp. 19-23.)
Respondent filed an Answer, asserting that numerous claims had not been properly
exhausted in the Idaho Supreme Court and must be dismissed as procedurally defaulted,
including Claim 9. (Dkt. 43, pp. 6-7.) Leavitt submitted a Traverse, contending, in part,
that Claim 9 “was either considered by the court in the first post-conviction petition or
defaulted because of the ineffective assistance of counsel on the consolidated appeal and
post-conviction.” (Dkt. 46, p. 4.) He also argued that David Parmenter failed to assert his
own ineffectiveness after the 1989 appeal and the resentencing proceeding because he had
a conflict of interest that prevented him from doing so, which served as “cause” to excuse

MEMORANDUM DECISION AND ORDER - 5

any default. (Id.)
In 1996, this Court concluded that those portions of Claim 9 alleging ineffective
assistance of counsel at trial (Kohler and Hart) and resentencing (Parmenter) were
procedurally defaulted. (Dkt. 62, pp. 13-15.) The Court found it unnecessary to resolve
the procedural default question as to Leavitt’s allegation of ineffective assistance of
appellate counsel (Parmenter), which presented a conceptually more difficult exhaustion
issue, because Leavitt had “fail[ed] to allege any instance of incompetence by his
appellate counsel that could have resulted in prejudice to [him].” (Id. at 14-15.) In
reaching that conclusion, the Court noted that the only allegations of ineffectiveness that
Leavitt had offered involved Parmenter’s failure to challenge certain jury instructions on
appeal, which the Court determined had been implicitly reviewed on the merits and
denied by the Idaho Supreme Court. (Id. at 15.) Because the Idaho Supreme Court had
reviewed the merits, Leavitt could show no prejudice from Parmenter’s omission of those
issues in his brief. (Id.)
In that same Order, the Court turned aside Leavitt’s contention that a “conflict of
interest” could serve as a reason to excuse his default of his claims of ineffective
assistance of trial counsel. (Dkt. 62, p. 15-17.) The Court reached this conclusion because
Parmenter had substituted as new counsel before the post-conviction proceeding, meaning
that he would have had no conflict that inhibited him from raising any claim as to the
quality of Kohler and Hart’s representation at the criminal trial and the first sentencing

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hearing.1 (Id.)
The Court acknowledged that Parmenter may have had a conflict that prevented
him from asserting his own ineffectiveness after the direct appeal and the resentencing
hearing on remand, but binding Ninth Circuit law at the time precluded Leavitt from
relying on such a conflict to establish cause for the default of those claims. (Id. at 17.) In
particular, the Court wrote that “because a state prisoner has no Sixth Amendment right to
effective assistance of counsel during a state collateral proceeding, counsel’s alleged
conflicts, failures, or omissions in a post-conviction action can never establish cause.”
(Id.) (citing Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v. Calderon,
77 F.3d 1155, 1159 (9th Cir. 1996)).
Based on this analysis, the Court dismissed Claim 9 from the Amended Petition as
procedurally defaulted. (Dkt. 62, p. 19.)
Leavitt filed a motion for reconsideration of the Court’s decision to dismiss the
claim of ineffective assistance of appellate counsel (Parmenter), but not the dismissal of
the trial counsel claims, arguing that the Court erred in construing his allegations too
narrowly. (Dkts. 66, 67.) The Court denied the motion after finding that Leavitt had not
fairly apprised Respondent or the Court in the Amended Petition of any additional factual
allegations. The Court also declined, as futile, Leavitt’s invitation to amend his Petition a
1

In fact, Parmenter did raise such claims in the 1986-87 post-conviction matter and in the 1989
appeal, and the Idaho Supreme Court denied the claims on their merits. It now appears that this Court’s
1996 procedural default order was overinclusive – as the Ninth Circuit Court of Appeals would later point
out – but Leavitt has never sought reconsideration on that basis. This issue will be discussed in greater
detail, below.
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second time to raise those allegations. (Dkt. 69.)
In 2000, the Court denied Leavitt’s remaining habeas claims on the merits, but
later reconsidered its decision and granted relief on the grounds that the jury instructions
were unconstitutionally deficient in defining reasonable doubt. (Dkt. 120, 142.) The Court
entered an Amended Judgment and ordered a new trial, but stayed its order pending an
appeal. (Dkts. 142, 158.)
On appeal, the Ninth Circuit Court of Appeals held that Leavitt’s claim raising the
unconstitutionality of the reasonable doubt instructions was barred by the nonretroactivity doctrine announced in Teague v. Lane, 489 U.S. 288 (1989), and it reversed
this Court’s decision to grant relief on that claim. See Leavitt v. Arave, 383 F.3d 809, 81823 (9th Cir. 2004) (“Leavitt III”).
In that same opinion, the Ninth Circuit affirmed this Court’s rulings as to the
dismissal of Leavitt’s claims of ineffective assistance of trial and appellate counsel.
Leavitt III, 383 F.3d at 840. In doing so, however, it found that this Court had erred in
“holding that all of Leavitt’s trial-based claims of ineffective assistance were
procedurally defaulted,” because some of those claims had been exhausted but were
nonetheless meritless. See id. at 840, n.40 (emphasis in original). The court cited two such
claims that had been properly exhausted – trial counsel’s failure to call a serology expert
to testify about the blood evidence and to call police officers to show bias and prejudice –
and determined that those claims “lose on the merits” because they were based on

MEMORANDUM DECISION AND ORDER - 8

counsel’s “tactical decisions.” Id.
Despite affirming this Court’s decisions as to the trial and appellate ineffective
assistance claims, the Ninth Circuit reversed the Court’s dismissal of Leavitt’s claim that
Parmenter had been ineffective at the resentencing proceeding in 1989-90. Leavitt III, 383
F.3d at 840. On that point, the Circuit found merit in Leavitt’s argument that the failure to
appoint new counsel for a post-conviction action after the resentencing hearing rendered
any state default rule unfair and inadequate to bar habeas review on the merits of those
claims. Leavitt III, 383 F.3d at 840. The case was remanded for consideration of whether
Parmenter was constitutionally ineffective during resentencing. Id.
On remand, the Court held an evidentiary hearing and concluded that Leavitt had
established a Sixth Amendment violation because of Parmenter’s failure to investigate
and present mitigating mental health evidence. (Dkt. 296, 297.) The Court’s judgment
was again stayed pending appeal, and the Ninth Circuit reversed the grant of habeas relief
a second time. Leavitt v. Arave, 646 F.3d 605, 616 (9th Cir. 2011) (“Leavitt IV”).
Leavitt next filed a Petition for a Writ of Certiorari in the Supreme Court. While
his Petition was pending, the Supreme Court issued its opinion in Martinez v. Ryan, 132
S.Ct. 1309 (March 20, 2012), establishing for the first time that inadequate postconviction counsel may, under limited circumstances, be a valid “cause” that excuses a
procedural default in a federal habeas proceeding. Id. at 1319. Based on Martinez, Leavitt
filed the pending Rule 60(b) Motion for Relief from Judgment on May 11, 2012, claiming

MEMORANDUM DECISION AND ORDER - 9

that “the Court’s dismissal of Claim 9 because of procedural default was incorrectly
decided.”2 (Dkt. 318, pp. 1, 11-12.)
The Supreme Court denied certiorari on May 14, the Court of Appeals issued its
Mandate on May 16, and the state district court signed a death warrant for Leavitt the
next day, setting an execution date of June 12, 2012. (Dkts. 320, 321, 327-1.)
Respondent has submitted his Response to the Rule 60(b) Motion (Dkt. 337), and
Petitioner has filed a Reply (Dtk. 344). The Court has heard the parties’ oral argument
and it is now prepared to issue its ruling.
STANDARD OF LAW
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from
judgment on several grounds, including the catch-all category “any other reason justifying
relief from the operation of the judgment.” Fed. R. Civ. P. 60(b)(6). A motion seeking
relief from judgment under subsection (b)(6) must be brought “within a reasonable time.”
Fed. R. Civ. P. 60(c)(1).
Rule 60(b)(6) should be used “sparingly as an equitable remedy to prevent
manifest injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049
(9th Cir. 1993). Accordingly, the Rule allows relief only when a party can establish that
“extraordinary circumstances prevented [it] from taking timely action to prevent or

2

Leavitt does not seek reconsideration the Court’s 1996 dismissal of those aspects of Claim 9 in
which he alleged that David Parmenter was ineffective at the resentencing hearing, because he concedes
that claim has already been resolved on the merits. (Id.)
MEMORANDUM DECISION AND ORDER - 10

correct an erroneous judgment.” Id.
DISCUSSION
1.

All Claims That Have Been Denied on the Merits, and All New Claims for
Relief, Are Barred
In habeas corpus cases, Rule 60(b) motions may not be used to avoid the

prohibition set forth in 28 U.S.C. § 2244(b) against second or successive petitions.
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
In Gonzalez, the Supreme Court held that a Rule 60(b) motion constitutes a second
or successive habeas petition when it adds “a new ground for relief” or “attacks the
federal court’s previous resolution of a claim on the merits of the petitioner’s claims.”
Gonzalez, 545 U.S. at 532 (emphasis in original). On the other hand, a Rule 60(b) motion
does not constitute a second or successive petition when the petitioner “merely asserts
that a previous ruling which precluded a merits determination was in error – for example,
a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations
bar.” See id. When “no ‘claim’ is presented, there is no basis for contending that the Rule
60(b) motion should be treated like a habeas corpus application.” Id. at 533.
Although Leavitt seems to challenge the entirety of the Court’s ruling that Claim 9
was procedurally defaulted (excluding allegations that Parmenter was ineffective at the
resentencing hearing), some of these claims have already been denied on the merits in this
habeas matter. For instance, Leavitt asserts that “trial counsel employed no mental health

MEMORANDUM DECISION AND ORDER - 11

experts prior to trial and did not present significant expert evidence regarding blood
located at the scene.” (Dkt. 318, p. 12.) While the first part of this claim – corresponding
to ¶ 63 in the Amended Petition – has been dismissed as defaulted without a merits ruling,
the latter part – corresponding to ¶ 70 – was found to be meritless by the Ninth Circuit in
Leavit III. See 383 F.3d at 840 n.40. Likewise, this Court denied Leavitt’s claim of
ineffective assistance of appellate counsel as lacking merit because he could not show
prejudice from counsel’s failure to present certain jury instructional issues on appeal.
(Dkt. 62, pp. 14-15.) The Court declined to reconsider that decision or to broaden the
factual allegations supporting the claim. (Dkt. 69.)
Similarly, Leavitt asserts new facts in support of his Rule 60(b) Motion that state
entirely new grounds for relief. He now contends that “neither trial counsel nor postconviction counsel challenged the erroneous instructions on the presumption of
innocence, reasonable doubt and alibi.” (Dkt. 318, p. 12.) (Emphasis added.) It is true that
the Amended Petition contains a claim that “counsel on appeal and in the post-conviction
proceeding failed to raise numerous issues in those proceedings. . . including, but not
limited to, the trial court’s failure to adequately instruct on the presumption of innocence
and the requirement for proof beyond a reasonable doubt.” (Dkt. 41, ¶ 74.) But in this
paragraph Leavitt is clearly referring to David Parmenter, who was his “counsel on appeal
and in the post-conviction proceeding.” Notably absent is an allegation that trial counsel
Kohler and Hart were ineffective in some manner by requesting or not objecting to these
particular instructions during the criminal trial.
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To the extent that Leavitt is requesting reconsideration of this Court’s or the Ninth
Circuit’s resolution of the merits of any part of Claim 9, or he is attempting to introduce
new factual allegations to state grounds that have never been alleged before, the Rule
60(b) motion is a second or successive application for habeas relief that lacks prior
authorization from the Court of Appeals. See 28 U.S.C. § 2244(b). The Court has
jurisdiction to consider Leavitt’s Rule 60(b) motion, free of the constraints imposed by 28
U.S.C. § 2244(b), only to the extent he seeks to reopen the judgment to revisit the
procedurally barred aspect of Claim 9. See Ruiz v. Quarterman, 504 F.3d 523, 526 (5th
Cir. 2007) (finding § 2244(b) inapplicable where Rule 60(b) motion sought to reopen
judgment on procedurally barred claim).
The Court now turns to Leavitt’s contention that Martinez v. Ryan,132 S.Ct. 1309
(2012), constitutes an extraordinary circumstance warranting reopening the judgment as
to defaulted claims.
2.

The New Rule – Martinez
A habeas claim that rests upon an independent and adequate state law ground is

procedurally defaulted and can be reviewed on the merits only if the petitioner has
established a valid cause for the default and shown actual prejudice as a result of the
constitutional error, or if the petitioner can show that he is actually innocent. Murray v.
Carrier, 477 U.S. 478, 488 (1986). To show “cause,” the petitioner must demonstrate that
some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Id. at 488. To show “prejudice,” the
MEMORANDUM DECISION AND ORDER - 13

petitioner bears the burden of demonstrating that the errors “worked to his actual and
substantial disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
A criminal defendant generally bears the risk of attorney error, and “[t]he mere
fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise
the claim despite recognizing it, does not constitute cause for a procedural default,”
though constitutionally ineffective counsel may serve as cause. Murray, 477 U.S. at 486.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court rejected a
habeas petitioner’s argument that his post-conviction counsel’s failure to file a timely
notice of appeal, which resulted in the default of his ineffective assistance of trial counsel
claims, established a valid cause. Id. at 751-53. Relying on Murray and other cases, the
Court found that because it had never held that there is a constitutional right to counsel in
post-conviction matters, a claim of ineffective assistance of post-conviction counsel
cannot excuse the petitioner’s failure to raise a claim properly in state court. Id. at 753.
The Court chose not to decide whether a limited exception may exist when a postconviction proceeding represents the first opportunity under state law for a convicted state
defendant to litigate claims of ineffective assistance of trial counsel. Id. at 755. The Ninth
Circuit and other circuits later determined that such an exception does not exist. Moran v.
McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v. Calderon, 77 F.3d 1155, 1159
(9th Cir. 1996).
Twenty years after Coleman, the Supreme Court recognized “a narrow exception”
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that ineffective assistance of post-conviction counsel – while not stating a constitutional
claim – can be a sufficient “cause” to excuse defaulted claims of ineffective assistance of
trial counsel. Martinez, 132 S.Ct. at 1315.
In setting out the rule, however, the Court described two potential restrictions on
the availability of the equitable relief. First, the state post-conviction proceeding must
represent the initial opportunity under state law for a defendant to raise claims of
ineffective assistance of trial counsel (it must be an “initial-review collateral proceeding”
for those claims). Id. at 1317. Second, “[w]hen faced with the question whether there is
cause for an apparent default, a State may answer that the ineffective-assistance-of-trialcounsel claim is insubstantial, i.e., it does not have any merit or it is wholly without
factual support, or that the attorney in the initial-review collateral proceeding did not
perform below constitutional standards.” Id. at 1319.
3.

Leavitt is not Entitled to Rule 60(b) Relief Based on Martinez
The Ninth Circuit has recently discussed the factors that a court may consider

when assessing whether Martinez justifies reopening a habeas judgment. See Lopez v.
Ryan, 2012 WL 1676696 (9th Cir. 2012). In Lopez, Ninth Circuit examined the nature of
the change in the law, the petitioner’s diligence, finality interests, delay, the connection
between the new rule and the current case, and comity interests. Id. at *3-6 (citing Phelps
v. Almeida, 569 F.3d 1120 (9th Cir. 2009)). After weighing each factor, the court
concluded that the petitioner in Lopez had not shown extraordinary circumstances. Id. at
*6. It alternatively concluded that the petitioner’s request was meritless because his
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ineffective assistance of trial counsel claims were not “substantial.” See Lopez, 2012 WL
1676696 at *6-7.
It is not necessary to apply the Lopez multi-factored test here. The Court assumes
that most of those factors weigh in favor of at least reaching Leavitt’s argument for
reconsideration based on the change in the law. However, the Court concludes that his
“Martinez claim” is not meritorious and does not entitle him to the relief that he seeks,
which is further evidentiary development on selected claims of ineffective assistance of
trial counsel.
A.

The Martinez Exception Applies to Capital Cases in Idaho

Initially, Respondent argues that because Idaho law apparently discourages but
does not prohibit defendants from raising issues of ineffective assistance of counsel on
direct appeal, the Martinez rule does not apply in Idaho and is unavailable to save
Leavitt’s defaulted claims. The Court disagrees. Whatever relevance Respondent’s
argument might have in non-capital matters – a question the Court need not address – it
overlooks the unique procedure that Idaho has established for capital defendants to raise
post-conviction claims.
Over 25 years ago, the Idaho Legislature chose to enact a special expedited and
unified post-conviction and appellate procedure that applies solely to capital cases. See
Idaho Code § 19-2719. Within 42 days of judgment, a defendant who has been sentenced
to death “must file any legal or factual challenge to the sentence or conviction that is
known or reasonably should be known” in a post-conviction petition in the district court.
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Idaho Code § 19-2719(3). The direct appeal is then delayed pending the completion of the
post-conviction action, after which the direct appeal from the judgment of conviction and
the collateral appeal from the district court’s order in the post-conviction matter are
consolidated into one case for unitary appellate review in the Idaho Supreme Court. Idaho
Code § 19-2719(6).
By statute, a defendant is deemed to have waived all known claims, or claims that
reasonably could have been known, that he did not assert in his first post-conviction
action. Idaho Code § 19-2719(5). The Idaho Supreme Court has concluded that claims of
ineffective assistance of trial counsel can reasonably be known within the time limits set
out in Idaho Code § 19-2719. See, e.g., Pizzuto v. State, 903 P.2d 58, 61 (Idaho 1995).
This Court and the Ninth Circuit Court of Appeals have honored Idaho’s application of
the waiver rule in Idaho Code § 19-2719(5) to default claims of ineffective assistance on
habeas review, at least insofar as a new attorney was appointed to represent the defendant
in the state post-conviction action. See Leavitt III, 383 F.3d at 840; see also Hoffman v.
Arave, 236 F.3d 523, 534 (9th Cir. 2001) (holding that the time bar will not default claims
when new counsel was not appointed).
Accordingly, because capital defendants in Idaho must raise any claim of
ineffective assistance of trial counsel in a post-conviction action that is then litigated
before the direct appeal, this is the “initial-review collateral proceeding” as to those
claims about which Martinez speaks. Idaho has chosen to use a unique expedited review
system in capital cases; it must live with the consequences of that decision, one of which
MEMORANDUM DECISION AND ORDER - 17

is the potential application of Martinez to defaulted claims in capital cases on federal
habeas review.
B.

A “Martinez Claim” Does Not Need to be Exhausted

The Court is equally unpersuaded by Respondent’s argument that Leavitt’s failure
to exhaust his argument for cause in the state courts means that he cannot advance it now.
Respondent notes correctly that in Edwards v. Carpenter, 529 U.S. 446 (2000), the
Supreme Court held that a petitioner who relies on ineffective assistance of counsel to
excuse the default of another claim, the ineffective assistance claim must itself be
properly exhausted and free of procedural default. Id. at 452-53. But Edwards involved a
petitioner who pointed to errors by his state counsel on direct appeal as the “cause” for his
default of another claim. Id. at 450-51. The Supreme Court held that because the basis for
the asserted “cause” – ineffective assistance on appeal – was a constitutional claim and
could be an independent basis for relief, it must also be exhausted properly in the state
courts. Id. at 453.
On the other hand, in Martinez, the Supreme Court did not announce a
constitutional right to counsel in a state post-conviction proceeding, only an equitable
right to seek relief from a procedural default in a federal habeas matter. Post-Martinez,
neither Idaho nor any other state has an obligation under the Constitution to provide
counsel in post-conviction actions or to offer a remedy if post-conviction counsel is
ineffective.
Leavitt does not seek relief from his conviction or sentence because of ineffective
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assistance during the post-conviction matter. He instead relies on that ineffective
assistance as “cause” which opens a procedural gateway to review of the underlying
defaulted claims on their merits. He had no obligation to exhaust such a theory prior to
advancing it here.
C.

Leavitt Has Not Established That His Post-Conviction Counsel Was
Ineffective or That His Claims Are Substantial

While Leavitt’s claims under Martinez are properly before the Court, the Supreme
Court’s decision does not provide Leavitt with the relief that he seeks.
In Martinez, the Supreme Court looked to the familiar Strickland standard to
assess whether post-conviction counsel made errors that were serious enough to excuse
the default of other ineffective assistance of trial counsel claims. 132 S.Ct. 1309, 1318-19
(citing Strickland v. Washington, 466 U.S. 668 (1984)). The Ninth Circuit has recently
declared that, “Martinez made clear that a reviewing court must determine whether the
petitioner’s attorney in the first collateral proceeding was ineffective under Strickland,
whether the petitioner’s claim of ineffective assistance of trial counsel is substantial, and
whether there is prejudice.” Sexton v. Cozner, 2012 WL 1760304 *7 (9th Cir. May 14,
2012).
Under Strickland, a petitioner must show that his counsel’s performance was both
unreasonably deficient and that the defense was actually prejudiced as a result of
counsel’s errors. Strickland, 466 U.S. at 684. There is a strong presumption that an
attorney performed within the wide range of professional competence, and the attorney’s
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performance will be deemed to have been deficient only if it fell below an objective
standard of reasonableness measured under prevailing professional norms. Id. at 689, 694.
A defense attorney’s tactical or strategic choices after an adequate inquiry into the facts
and law are virtually unchallengeable under Strickland. Gerlaugh v. Stewart, 129 F.3d
1029, 1033 (9th Cir. 1997). To prove prejudice, the petitioner must demonstrate that there
is a reasonable probability that, but for counsel’s unreasonable errors, the result of the
proceeding would have been different. Id.
“There are countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in the same way.”
Strickland, 466 U.S. at 689. As a result, “[t]he question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom.” Harrington v. Richter,
131 S.Ct. 770, 778 (2011) (internal quotations and citation omitted).
The application of the Strickland test to the present circumstances means that
Leavitt is required to show that David Parmenter’s representation during the postconviction proceeding was objectively unreasonable, and that, but for his errors, there is a
reasonable probability that Leavitt would have received relief on a claim of ineffective
assistance of trial counsel in state court. He has not carried this burden.
This is not a case in which post-conviction counsel wholly failed to raise any
claims of ineffective assistance of trial counsel. To the contrary, the 1986-87 postconviction proceeding focused primarily on such claims. An evidentiary hearing was
MEMORANDUM DECISION AND ORDER - 20

held, at which Parmenter presented the testimony of several witnesses, including Leavitt’s
mother, who provided the details of her hiring of trial counsel, and Leavitt himself, who
testified about the various complaints that he had about trial counsel’s handling of the
case. (State’s Lodging B-2, pp. 42-110.)
Kohler was called to testify by the State. (State’s Lodging B-2, pp. 145-62.)
Among other subjects, he discussed trial counsel’s decision-making process regarding the
defense team’s use of a forensic serologist, Dr. Ed Blake. (Id. at 153-54.) According to
Kohler, Blake had examined the testing methods and conclusions of Ann Bradley, the
State’s serological expert, and Blake essentially agreed with Bradley’s results. (Id. at
154.) As a result, the defense team made a tactical decision not to call Blake at trial
because – though he might have scored points on minor issues – his testimony would
have had reinforced Bradley’s testimony. (Id. at 155.)
Kohler also stated that Leavitt’s case was complex and time consuming, and that
his firm spent well over 900 hours representing him. (Id. at 151.) Although they had not
received full payment for their services, Kohler claimed that trial counsel did not let that
matter impinge on the representation. (Id. at 151-52.)
The trial court denied relief in a written decision, see State’s Lodging B-1, pp. 1118, and Parmenter asserted four instances of ineffective assistance of trial counsel on
appeal. (State’s Lodging C-1, pp. 29-33.) The Idaho Supreme Court held that “[the]
defendant was not denied effective assistance of counsel,” because “[a]ll of the
defendant’s asserted deficiencies of counsel deal with disagreements with strategic
MEMORANDUM DECISION AND ORDER - 21

judgments with his trial counsel” and he could show no prejudice. Leavitt I, 775 P.2d at
605.
In light of this developed record of post-conviction counsel’s pursuit of relief
based on ineffectiveness at trial, Leavitt has not overcome the presumption that Parmenter
made reasonable strategic decisions as to which claims of ineffective assistance to raise
and which claims to discard. See Sexton, 2012 WL 1760304, *5 (noting that counsel “is
not necessarily ineffective for failing to raise even a nonfrivolous claim”); cf. Smith v.
Murray, 477 U.S. 527, 535 (1986) (discussing how the process of eliminating weaker
arguments is often the hallmark of effective advocacy). Absent a showing of
unreasonable representation in the post-conviction matter, his Martinez claim fails on the
first element of Strickland.
But even if Parmenter’s failure to develop selected claims was objectively
unreasonable, the Court nonetheless concludes that Leavitt was not prejudiced. The Court
agrees with Respondent that no claim of ineffective assistance of trial counsel raised in
Claim 9 has substantial merit such that the Court must reopen the judgment and allow
additional proceedings on the claim.
In reaching this conclusion, the Court is not persuaded by Leavitt’s argument that
because he has never had an opportunity to develop any of these claims factually, he must
be given the chance to do so now. Leavitt is facing three hurdles that stand in his way.
First, given the procedural posture of this case, it is his burden to show that extraordinary
circumstances warrant upsetting and revisiting the judgment. Second, Martinez
MEMORANDUM DECISION AND ORDER - 22

contemplates some showing by a habeas petitioner that his claim is “substantial” before
additional time and resources must be expended on the claim. See Martinez, 132 S.Ct. at
1319. Finally, it has always been the case on habeas review that a federal court may
resolve claims on the record without new evidentiary development if the petitioner has
not come forward with factual allegations that, if proven, would establish he is entitled to
relief. All of these principles coalesce to require Leavitt to show that his claims have
some merit. He has not done so.
The Court will address each of those claims in turn.
(1)

Failure to Object to Questions About Leavitt’s Invocation of his
Fourth Amendment Right (Dkt. 41, ¶¶ 59-62)

Leavitt first contends that his trial counsel were ineffective because they did not
object when the prosecutor questioned witnesses about Leavitt’s choice to exercise his
right, under the Fourth Amendment, to require the police to get a warrant before taking
his blood.
The Ninth Circuit has rejected the underlying argument that Leavitt’s due process
rights were violated by the prosecutor’s eliciting of this type of evidence at the criminal
trial. Leavitt III, 383 F.3d at 828. After recognizing that a prosecutor’s comments on a
defendant’s exercise of his Fourth Amendment rights are generally improper, the Court of
Appeals wrote, “[r]egardless of whether that Fourth Amendment rule should generally
apply to habeas corpus cases, Leavitt’s particular objection is answered by the much more
banal and obvious rule that admission of the evidence was proper to attack his claim of
MEMORANDUM DECISION AND ORDER - 23

cooperation.” Id. In other words, “the prosecutor was entitled to question [Leavitt’s theme
of cooperation] by showing that the leitmotiv was actually one of resistence.” Id.
Because the underlying claim has been ruled to be without legal substance, the
failure of trial counsel to lodge an objection on a meritless ground was neither
unreasonable representation nor prejudicial to Leavitt. See Juan H. v. Allen, 408 F.3d
1262, 1273 (9th Cir. 2005) (stating that trial counsel cannot have been ineffective in
failing to raise a meritless objection).
(2)

Failure to Request a Psychiatric or Psychological Examination
Before Trial (Dkt. 41, ¶¶ 63-69)

This issue has been examined on the merits as it pertains to David Parmenter’s
representation at the resentencing hearing. The only aspect of the claim that remains
defaulted is that which pertains to trial counsel Kohler and Hart’s failure to have Leavitt’s
mental condition tested before trial.3
In anticipation of the first sentencing hearing, trial counsel filed a motion
requesting the appointment of a psychiatrist or a psychologist to examine Leavitt. (State’s
Lodging A-3, pp. 839-40.) The trial judge granted this request and appointed Dr. David
Groberg, a psychologist, to conduct an evaluation and to submit a report. (Id. at 844-45.)
At the sentencing hearing, Dr. Groberg testified that he had diagnosed Leavitt as
having an “antisocial personality disorder” and an “intermittent explosive disorder.”

3

It appears that Leavitt may have since abandoned this claim, but the Court will address it out of
an abundance of caution.
MEMORANDUM DECISION AND ORDER - 24

(State’s Lodging A-20, pp. 2236-38, 2241.) He did not find an organic brain deficit from
his psychological testing, but he admitted that is was possible that such a deficit could
cause Leavitt’s behavior, and he was not skilled at giving neurological examinations. (Id.
at 2247-48.) Based on this testimony, trial counsel asked the trial court to delay
imposition of sentence until after a neurological examination could be conducted. (Id. at
2372-73.) The court granted that request and appointed a neurologist to complete the
examination. (Id. at 2403.) The neurologist saw abnormalities on Leavitt’s CT scan that
“may or may not have an effect on cognitive function.” (Id. at 2406-07.) He
recommended an MRI to determine whether Leavitt had an “organic or physiological
dysfunction of the brain.” (Id. at 2407.)
When the sentencing hearing reconvened, counsel orally moved for a new trial
based upon Dr. Groberg’s opinion and the neurologist’s report. (State’s Lodging A-20,
pp. 2406, 2408.) The court denied that request, concluding that the new mental health
evidence was not material to his trial defense, which was a complete denial, and that it did
not show that Leavitt was incapable of committing the offense. (Exhibit 1075, p. 2408.)
The case then proceeded to sentencing. (Id.)
On appeal, the Idaho Supreme Court affirmed the trial court’s denial of the motion
for new trial on the ground that the “new” evidence was immaterial:
During all of the original trial proceedings the defendant denied
involvement with the killing of the victim. That is a completely different
defense than one now asserted which admits the criminal act, but denies
culpability on the ground of inability to form the requisite intent. Further,
the proffered psychological tests [which were considered by the trial court]
MEMORANDUM DECISION AND ORDER - 25

indicate that the defendant purportedly suffers from anti-social personality
disorder and an intermittent explosive disorder. There is no indication in the
proffered evidence that either of those illnesses would have prevented the
defendant from forming the requisite intent to murder.
Leavitt I, 775 P.2d at 605.
In his briefing, Leavitt does not discuss this issue but presumably his ineffective
assistance claim is based on an allegation that, had his trial counsel developed the mental
health evidence before trial, they would have been able to offer it as a partial or complete
defense to the murder charge. This Court agrees with the Idaho Supreme Court that
because a mental defect defense would have been contradictory to the reasonable doubt
defense that was presented at trial, and could have confused the jury or reduced the
credibility of the defense team. It also had little chance of success.
The defense that was presented at trial was consistent with Leavitt’s wishes, as he
was insistent that he did not commit the crime. In fact, he testified at the post-conviction
evidentiary hearing that Kohler broached the issue of a possible mental disease or defect
defense during the trial but that he did not agree with “that particular strategy.” (State’s
Lodging B-2, p. 107-08.) Thus, Leavitt implied then that Kohler’s mere suggestion of a
mental disease or defect defense was an example of his inconsistency and ineffectiveness,
but by the time he came to federal court he apparently believed that Kohler should have
presented a mental disease or defect defense against his wishes. This post-hoc
rationalization does not support a claim of ineffective assistance of counsel.
(3)

Failure to Call Witnesses to Testify About Police Bias and to Counter the

MEMORANDUM DECISION AND ORDER - 26

State’s Serological Evidence (Dkt. 41, ¶ 70.)
In his next claim, Leavitt alleges that his trial counsel should have presented
evidence to show police bias and to counter the conclusions of the State’s serological
expert. These claims were long ago denied on their merits. The Idaho Supreme Court
rejected Leavitt’s claim as to police bias, see Leavitt I, 775 P.2d at 605, and the Ninth
Circuit denied both parts of the claim, see Leavitt III, 383 F.3d at 840 n.40. Those courts
found that Leavitt was expressing only a disagreement with his attorneys’ tactical
decisions about which witnesses to call. Because this claim has previously been resolved
on its merits, Leavitt’s argument for reconsideration is barred. Gonzalez v. Crosby, 545
U.S. 524, 532 (2005).
Leavitt attempts to escape the grasp of this result, at least as it pertains to his
counsel’s failure to present expert serological testimony, by arguing that the Ninth
Circuit’s decision is dicta and was based on an incomplete record.4 The Court is
unconvinced, but even if it were to take a look at the merits of the issue as he now frames
it, the Court would conclude that this is not a claim with substantial potential merit.
Leavitt asserts that the key mistake that trial counsel made was in not presenting
Dr. Blake’s testimony to show that “the two [blood] samples could have been deposited
separately rather than being ‘mixed’ as the prosecution argued.” (Dkt. 344, p. 12.) If
Blake had provided that testimony, according to Leavitt, it would have supported the

4

He concedes that the police bias aspect of this claim “does not meet the standards set forth in
Martinez.” (Dkt. 344, n.10.)
MEMORANDUM DECISION AND ORDER - 27

defense theory that Leavitt deposited his blood in Danette Elg’s bedroom when his nose
bled the week before her murder, rather than when he cut his finger while he was stabbing
her to death. (Id.)
In his post-conviction testimony, Kohler addressed trial counsel’s decision-making
with respect to Blake’s potential testimony. He stated that trial counsel carefully weighed
the possibility that Blake might have supported their case in some ways, but ultimately
concluded that Blake’s material conclusions were very similar to Ann Bradley’s. (State’s
Lodging B-2, pp. 154-55.) He testified that “with respect to the major evidentiary items,
the shorts, the sheet, the blood samples from these items, and other items, his analysis was
completely consistent with Ann Bradley’s.” (Id. at 154.) In addition to reviewing Blake’s
report, Kohler testified that, over the course of several phone conversations, Blake
“indicated that he didn’t feel like he could say anything that would rebutt [sic] Ann
Bradley’s conclusions” and that “it was just a tactical decision that we made that he
would do more harm than good.” (Id. at 154, 174.)
The Ninth Circuit has noted that “[t]he choice of what type of expert to use is one
of trial strategy and deserves ‘a heavy measure of deference.’” Turner v. Calderon, 281
F.3d 851, 876 (9th Cir. 2002) (citing Strickland, 466 U.S. at 691). In Turner, the court
declared that trial counsel “cannot be deemed ineffective because, with the benefit of
hindsight, we now determine that other trial strategies or expert witnesses may have been
a better choice.” Id. Instead, “[c]ounsel [are] entitled to formulate a strategy that [is]
reasonable at the time and to balance limited resources in accord with effective trial
MEMORANDUM DECISION AND ORDER - 28

tactics and strategies.” Harrington v. Richter, 131 S.Ct. 770, 789 (2011). That is what
occurred in this case.
Moreover, Leavitt appears to overstate the significance of Blake’s opinion about
the lack of “mixing” between the Type A blood (Elg) and Type O blood (Leavitt) on one
piece of clothing. At the post-conviction hearing, Kohler read a portion of Blake’s report,
in which Blake noted that “[a] weak A antigen may result from thin smears of A blood
overlying the Type O blood.” (State’s Lodging B-2, pp. 166-67.) At most, then, Blake’s
report suggested that Elg’s presumed blood may have overlaid Leavitt’s presumed blood
because of the “weak A antigen” response, but even if that theory were correct, Leavitt
has pointed to no other evidence tending to show that a significant amount of time must
have elapsed between the deposit of the two blood types on the clothing.
The Court also does not share Leavitt’s interpretation of the record that “the
evidence regarding the shorts was the sole item on which the state based its argument that
Leavitt deposited the blood at the time of the killing.” (Dkt. 344.) Also relevant was the
serious cut to Leavitt’s finger, for which he received medical treatment on or about the
same night that Elg was believed to have been killed, and Leavitt’s shifting versions
about the source of that cut. The evolving nature of the “nosebleed” story itself was
probative of his obfuscation on this issue: at first, he had no explanation for why his
blood would be found at the crime scene, and he did not reveal until trial, after it was
clear that the State had incriminating serological evidence, what would seem to be the
very relevant information that he had a nosebleed in Elg’s bedroom the week before she
MEMORANDUM DECISION AND ORDER - 29

was killed. See Leavitt III, 383 F.3d at 815.
Accordingly, counsel’s choice not to offer an expert opinion that reinforced the
most incriminating parts of the State’s expert blood evidence, but that may have provided
the defense with some incremental assistance in other areas, was a reasonable tactical
decision.
(4)

Failure to Object to Prosecutorial Misconduct (Dkt. 41, ¶ 71)

This claim is a close cousin to Leavitt’s first claim and, as with that claim, the
Ninth Circuit has already reviewed the underlying examples of alleged prosecutorial
misconduct and concluded that they either were not misconduct or, if they were, that
Leavitt’s right to a fair trial was not jeopardized by them. Leavitt III, 383 F.3d at 827-35.
As to the prosecutor’s comments on Leavitt’s invocation of his Fifth Amendment
right to remain silent, the Ninth Circuit concluded that Leavitt was “confusing true
silences with lies, and cooperation with feints at cooperation coupled with suggestions to
the jury that he had, in fact, cooperated.” Id. at 827. Some of the prosecutor’s comments
were permissible to show inconsistencies in Leavitt’s statements or to rebut his claim that
he was cooperative with the police. Id. Others, while perhaps improper, were “harmless
as far as this habeas corpus proceeding is concerned.” Id. at 828 (citing Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993)).
The Ninth Circuit was most troubled by the prosecutor’s suggestion to the jurors in
his closing argument that the jury was a “link in the chain” with law enforcement, which
the court characterized as “just plain wrong.” Id. at 834. But the court concluded that the
MEMORANDUM DECISION AND ORDER - 30

improper argument did not deny Leavitt due process because “the whole record of this
case – the strength of the evidence and the paucity of error – assures us that this deviation
from propriety was not enough to make any difference in the result.” Id. at 834-35.
Had trial counsel objected to the prosecutor’s allegedly improper questions or
argument, the objections would have either been overruled as lacking in merit or, if
sustained, there is no reasonable probability that the result of the trial would have been
different. There is no need to reopen the judgment as to this claim.
(5)

Failure to Exclude Evidence of Leavitt’s Display of a Knife During a
Sexual Encounter (Dkt. 41, ¶ 72)

During the defense’s case-in-chief, Jay Kohler presented the testimony of Barbara
Rich, who had been involved in a brief sexual relationship with Leavitt a few months
before the crime in this case. (State’s Lodging A-17, pp. 1640-41.) Kohler questioned Ms.
Rich about a letter that she had written to Leavitt describing their sexual encounter, which
the defense later contended caused Leavitt’s wife to become jealous and try to commit
suicide with a razor blade. (Id. at 1641, 1683-86.) This alleged suicide attempt was
offered as an explanation for the cut that Leavitt had sustained to his finger. (Id. at 168386.)
On cross-examination, the prosecutor elicited testimony from Ms. Rich, without
objection, that Leavitt had shown her a knife immediately before they had sex. (State’s
Lodging A-17, pp. 1645-48.) While Ms. Rich admitted that she found Leavitt’s display of
the knife to be “strange,” she did not feel threatened or scared by it. (Id. at 1648-49.) The
MEMORANDUM DECISION AND ORDER - 31

knife was never found and, consequently, could not be ruled out as the murder weapon.
Leavitt claims that his trial counsel’s failure to prevent the prosecutor’s line of
questioning, or to move to strike the testimony, amounted to ineffective assistance.
Addressing the underlying substantive claim, the Ninth Circuit has determined that the
introduction of the “other acts” evidence was not unconstitutional because it was relevant
to identifying the killer and to rebut Leavitt’s theme of cooperation with the police. Id. at
829. The Ninth Circuit also found that, even if the trial court erred in admitting the
evidence, Leavitt was not prejudiced. Id.
As an added gloss on the Ninth Circuit’s merits-based rejection of the underlying
evidentiary issue, which defeats the ineffective assistance claim, see Juan H. v. Allen, 408
F.3d 1262, 1273 (9th Cir. 2005), it appears that defense counsel made a tactical decision
that the need to build a foundation on Ms. Rich’s testimony to explain the cut to Leavitt’s
finger outweighed the risk that the evidence might open the door to other damaging
information. This is the type of mid-trial calculation by counsel that should not be
second-guessed in habeas proceeding.
(6)

Failure to Prove Juror Misconduct (Dkt. 41, ¶ 73)

This Court has already held an evidentiary hearing on the claim of juror
misconduct and found it lacking in merit. (Dkt. 120, pp. 115-18.) Leavitt does not appear
to press the matter again as an ineffective assistance claim, and the Court concludes that it
is not substantial.
(7)

Failure to Raise Jury Instruction Issues (Dkt. 41, ¶ 74)

MEMORANDUM DECISION AND ORDER - 32

In the final paragraph in Claim 9 of the Amended Petition, Leavitt alleged:
[c]ounsel on appeal and in the post-conviction proceeding failed to raise
numerous issues in those proceedings and failed to investigate properly the
claims raised in the post-conviction petition, including, but not limited to,
the trial court’s failure to adequately instruct on the presumption of
innocence and the requirement of proof beyond a reasonable doubt, see
Claim 11, below.
(Dkt. 41, ¶ 74.)
Earlier in this proceeding, the Court construed this paragraph as containing a claim
of ineffective assistance of appellate counsel, referring to David Parmenter, in not raising
on appeal the jury instructional issues to which Leavitt had referred in Claim 11(the Court
recognized that the law at the time did not allow for relief because of inadequate postconviction counsel). (Dkt. 62, pp. 15-16.) The Court did not construe the paragraph as
raising a claim of ineffective assistance of trial counsel, and it expressly rejected “the
petitioner’s apparent effort to reserve the right to identify in the future other grounds
supporting this claim.” (Dkt. 62, p. 15 n.7.)
Leavitt sought reconsideration of the Court’s order, but only insofar as to the
Court’s narrow interpretation of the scope of the ineffective assistance of appellate
counsel claim; he did not then suggest that paragraph 74 of Claim 9 must be read to
include an allegation that trial counsel failed to object to certain jury instructions. (Dkts.
66, 67.) Even his proposed amendment to clarify that portion of Claim 9 focused only on
appellate counsel. (See Dkt. 66, pp. 3 (substituted ¶ 74(e) (“[c]ounsel on appeal failed to
challenge the instructions on proof beyond a reasonable doubt and the presumption of

MEMORANDUM DECISION AND ORDER - 33

innocence which are the basis for Claim 11 of the First Amended Petition.”) In Claim 11,
Leavitt made a direct attack on the trial court’s instructions under the Fourteenth
Amendment rather than a collateral challenge to those instructions through the guise of an
ineffective assistance of trial counsel claim.
In short, a stand-alone Sixth Amendment trial counsel claim on this basis has never
been raised. Leavitt’s attempt to broaden the scope of Claim 9 to include such a claim
now is equivalent of a late substantive amendment to the Petition. As a new claim, it is
not within the scope of the reconsideration issues properly before the Court.
But if this claim had been previously raised and dismissed as procedurally
defaulted, there would be no need to reconsider that ruling because the claim otherwise
lacks substantial merit. Although this Court found constitutional error in the trial court’s
reasonable doubt instructions, much water has flowed under the bridge since that
decision.
First, the Ninth Circuit has reviewed the same jury instructions on appeal and
passed judgment on them. Leavitt III, 383 F.3d at 818-23. While it ultimately decided that
Leavitt’s instructional claim was Teague-barred, the court made several observations on
its way to reaching this conclusion that betrayed its skepticism about the merits-based
decision. Perhaps most relevant is that the panel did not believe that the surrounding
instructions were unduly confusing, ambiguous, or misleading. Id. at 821. For example,
the Ninth Circuit agreed that Instruction 12 – which informed jurors that the burden of
proof is not intended to aid anyone who is in fact guilty to escape – was disfavored,
MEMORANDUM DECISION AND ORDER - 34

though not necessarily on constitutional grounds, but it was not overly concerned with
another instructing the jurors that they “should,” rather than “must,” require proof beyond
a reasonable doubt. Id. at 19-822. It was equally untroubled by the trial court’s use of
“moral evidence,” “moral certainty,” and “not mere possible doubt,” noting that a nearly
identical reasonable doubt instruction was upheld in Victor v. Nebraska, 511 U.S. 1, 16
(1994). Id It also found unproblematic an instruction that informed the jury that the
prosecution need not prove every fact in the case beyond a reasonable doubt, only every
element of the crimes charged. Id. Though it did conclude that the trial court’s alibi
instruction erroneously placed a burden on the petitioner, it determined that the
instruction did not play a significant role in the jury’s understanding of reasonable doubt.
Id. at 823.
Later, a different panel addressed a similar set of jury instructions defining
reasonable doubt and related concepts on the merits in Rhoades v. Henry, 638 F.3d 1027
(9th Cir. 2011), and denied relief. Like the Leavitt III panel, the Rhoades panel found that
the instruction informing the jury that the presumption of innocence is not intended to aid
the guilty was improper. Id. at 1045. But it concluded that, in the context of other
instructions that were materially similar to those given here, there was no reasonable
probability that the jury would have understood that it could convict on a lower burden of
proof than beyond a reasonable doubt. Id. The Ninth Circuit has spoken on this issue, and
its rulings bind this Court.
This claim does not support reconsideration under Rule 60(b) because Leavitt is
MEMORANDUM DECISION AND ORDER - 35

attempting to amend his Petition to include new ground for relief. In the alternative, given
that the underlying instructional claim is without substantial possible merit, any collateral
challenge to the instructions through a claim of ineffective assistance of counsel is also
meritless.
For all of these reasons, Leavitt has not demonstrated that extraordinary
circumstances warrant setting aside the judgment in this matter.
APPLICATION FOR A PRELIMINARY INJUNCTION
Because the Court finds that Leavitt is not likely to succeed on the merits of his
claims, he has not carried his burden to establish that a stay of the scheduled execution is
warranted. See Rhoades v. Reinke, 671 F.3d 856, 858-59 (9th Cir. 2011) (setting out the
standards for granting a preliminary injunction, which include a showing that the movant
is likely to succeed on the merits).
In addition, the Court is not persuaded by Leavitt’s argument that D. Idaho L. Civ.
R. 9.1(c) requires the Court to enter a stay. That Local Rule applies only when a petition
is filed initiating proceedings, but even if the Rule were applicable to this situation, the
stay extends only “for the duration of proceedings in this court.” Id. Because the Court
denies the present Motion, proceedings in this court have terminated.
The request for a stay will be denied.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Relief from Judgment Pursuant to Fed. R. Civ. P.

MEMORANDUM DECISION AND ORDER - 36

60(b) [and] Application for Further Stay of Execution (Dkt. 318) is
DENIED.

DATED: June 1, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 37