Fields v. Blades

Filing 318

MEMORANDUM DECISION AND ORDER denying 275 Petitioner's Motion for Evidentiary Hearing; granting 312 Petitioner's Motion for Leave to File an Overlength Reply Brief; granting 315 Petitioner's Motion to Seal. Appendix 17 to Petitio ners Reply in Support of Motion for Evidentiary Hearing (Dkt. 314 ) shall remain SEALED. Petitioner shall file an amended brief on the merits of his non-defaulted claims within 90 days after entry of this Order. Petitioners merits brief shall not ex ceed 100 pages in length. Within 90 days after service of Petitioners amended merits brief, Respondent shall file an amended answering brief on the merits. The answering brief shall not exceed 100 pages in length. Within 30 days after service of Resp ondents amended answering brief, Petitioner shall file an amended reply brief on the merits. The reply brief shall not exceed 50 pages in length. Any brief filed by either party throughout the remainder of this litigation must contain separate sectio ns for each habeas claim discussed, and each section heading shall specify which particular claim is addressed in that particular section of the brief. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ZANE JACK FIELDS,
Petitioner,

Case No. 1:95-cv-00422-EJL

v.

CAPITAL CASE

RANDY BLADES, Warden,

MEMORANDUM DECISION AND
ORDER

Respondent.

Pending before the Court is a Second Amended Petition for Writ of Habeas
Corpus filed by Petitioner Zane Jack Fields, an Idaho state prisoner under a sentence of
death.
This case has been stayed multiple times as Petitioner has attempted to exhaust his
habeas claims in state court. The threshold issue of procedural default was initially
addressed over a decade ago, and merits briefing was undertaken thereafter; however, due
to later developments in habeas corpus law and the filing of a Second Amended Petition,
the case is now back at the procedural default phase.
The Court previously entered a Scheduling Order setting forth the process by
which litigation of the instant Petition for Writ of Habeas Corpus would proceed. (Dkt.
263.) Pursuant to that Scheduling Order, Petitioner filed a Motion for Evidentiary
Hearing to Excuse Procedural Default (Dkt. 275), asserting that any procedural default of
his habeas claims should be excused pursuant to (1) the actual innocence exception to
MEMORANDUM DECISION AND ORDER - 1

procedural default as set forth in Schlup v. Delo, 513 U.S. 298 (1995); or (2) the “cause
and prejudice” exception to procedural default as set forth in Coleman v. Thompson, 501
U.S. 722 (1991), and expanded by Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino
v. Thaler, 133 S. Ct. 1911 (2013).
Having carefully reviewed the record, including the state court record, the Court
finds that the facts and legal arguments are adequately presented in the briefs and record
and therefore concludes that oral argument is unnecessary. D. Idaho Loc. Civ. R.
9.2(h)(5). Accordingly, the Court enters the following Order.
BACKGROUND
1.

State Court Proceedings
At approximately 11:15 a.m. on February 11, 1988, Mary Catherine Vanderford1

was stabbed to death during a robbery while she was working at the Wishing Well Gift
Shop in Boise, Idaho. State v. Fields, 908 P.2d 1211, 1214 (Idaho 1995) (Fields I). In
1990, Petitioner was convicted of her murder. (State’s Lodging A-2 at 104.)
A.

Trial

The evidence against Petitioner included testimony from inmate witnesses who
stated that Petitioner had confessed to the murder, and made otherwise incriminating
statements, while charged with and serving a sentence for a different crime. The inmate
informants who testified at Petitioner’s trial were Scott Bianchi, Joe “Turkey” Heistand,

1

In the state court record, Mrs. Vanderford is occasionally referred to as Katherine Marie
Vanderford. See State v. Fields, 908 P.2d 1211, 1213 (Idaho 1995) (Fields I).
MEMORANDUM DECISION AND ORDER - 2

and Jeff Acheson.2 In addition, a witness who knew Petitioner from a previous stint in
prison—Keith Edson—testified that he saw Petitioner entering the Wishing Well gift
shop shortly before the murder.
Several other witnesses identified Petitioner as acting suspiciously in the Linda
Vista Plaza—an area about a half-mile from the gift shop—about an hour-and-a-half after
the murder, and two of these witnesses testified that Petitioner had a wooden-handled
knife sticking out of his pocket. This evidence corroborated the testimony of Joe
Heistand, who stated that Petitioner admitted to using an old hickory butcher’s knife to
kill Mrs. Vanderford. Fields I, 908 P.2d at 1214-15. (See also State’s Lodging A-41 at
1481-82.) There was no physical evidence introduced at Petitioner’s trial, other than a
few drops of blood on Petitioner’s coat—which could not be confirmed as human and
which the State has since acknowledged had no evidentiary value.
B.

First Motion for a New Trial

Prior to sentencing, Petitioner moved for a new trial, presenting the testimony of
Salvador Martinez, another inmate. Martinez, who allegedly had contact with some of the
inmate informants prior to Petitioner’s trial, testified at the evidentiary hearing on the
motion for a new trial that several of the inmate snitch witnesses had recanted their
testimony and admitted to Martinez that they lied about Petitioner’s confession. (State’s
Lodging A-2 at 108-12; A-42 at 1716-44.)

2

A different inmate, Harold “Howie” Gilcrist, testified at Petitioner’s preliminary hearing
that Petitioner confessed to killing Mrs. Vanderford. Gilcrist did not testify at trial.

MEMORANDUM DECISION AND ORDER - 3

Martinez testified that before trial Bianchi had stated he was going to testify
falsely against Petitioner. According to Martinez, Bianchi later admitted that his
testimony against Petitioner was a lie and that “all his statements to the Court and stuff,
and to the trial, that they were all made up between these inmates, okay; which is all the
inmates involved in this case.” (State’s Lodging A-42 at 1720.) Specifically, Martinez
testified that Bianchi admitted that he and the other inmates “didn’t know shit about
[Petitioner’s case]. Who cares? He killed an old lady so that automatically there kills
him.” (Id. at 1727.) Martinez claimed Bianchi also said that he and the other testifying
inmates had been “schooled” by the police on the details of the crime. (Id. at 1727-28,
1732.)
Martinez also testified that Harold Gilcrist (who testified at the preliminary
hearing but not at trial) had told Martinez that Gilcrist and Bianchi needed to “stick to the
same story they had already told,” and that if they did not do so, “they’re going to catch
us for perjury and probably give us more time.” (Id. at 1728.) Martinez claimed that
Gilcrist and Heistand told him they were trying to “get a deal with . . . the cops” by
testifying against Petitioner. (Id. at 1730-35.) According to Martinez, Heistand said that
“everybody that heard about it wanted to get into the same boat.” (Id. at 1733.) Heistand
allegedly told Martinez he had never even spoken directly with Petitioner. (Id.)
In addition, Martinez testified that Gilcrist and Heistand informed him that “they
had gotten a deal from the Prosecutor” or that “they were trying to get a deal with them
still” for testifying against Petitioner. (Id. at 1739.) Martinez allegedly told them, “Well,

MEMORANDUM DECISION AND ORDER - 4

wait a minute. You already testified you don’t have no deal with them.” The inmates
responded, “We’re waiting to see if we can go through, but we can’t say publicly he has
to go through like parole procedures.” (Id.) Martinez said he asked whether Gilcrist and
Heistand had lied about Petitioner, and Heistand allegedly responded, “So what, we got
what we wanted.” (Id.)
Bianchi and Heistand also testified at the hearing on Petitioner’s motion for a new
trial. Both inmates denied that they had made any statements to Salvador Martinez
regarding their testimony against Petitioner, and they denied that police or prosecutors
had fed them any information about the case. (Id. at 1819-20; 1830-31, 1838-40.) Gilcrist
testified as well, stating that he had never had any contact with Martinez and that he had
“never seen the gentleman in [his] life.” (Id. at 1851.) Gilcrist also testified that police
and prosecutors had told Gilcrist he would not receive any privileges for testifying
against Petitioner at the preliminary hearing, but that they would try to ensure that
Gilcrist kept the privileges he had already earned. (Id. at 1857-58.) Acheson testified too,
confirming that he had not been promised any benefits for his trial testimony against
Petitioner. (Id. at 1862-71.)
After the state court heard from all of these witnesses, it found that the testimony
of Bianchi, Heistand, Gilcrist, and Acheson was credible, but that Martinez’s testimony
was not. (State’s Lodging A-2 at 145-47.) The court denied the motion for a new trial and
sentenced Petitioner to death. (Id. at 164-77.)

MEMORANDUM DECISION AND ORDER - 5

C.

Initial Postconviction Petition, Second Motion for a New Trial, and
Unified Direct and Initial Postconviction Appellate Proceedings

Petitioner filed a direct appeal, which was stayed in accordance with Idaho’s
special unified postconviction and appellate procedures applicable solely to capital cases.
See generally Idaho Code § 19-2719. While his direct appeal was stayed, Petitioner filed
an initial state postconviction action, alleging violations of the Fifth, Sixth, Eighth, and
Fourteenth Amendments. (State’s Lodging A-2 at 197-203, 218-19.) The state court
denied relief. (Id. at 226-35.)
Petitioner filed another motion for a new trial in the postconviction proceeding,
again asserting, with additional evidence, that inmate informant Scott Bianchi had
recanted his trial testimony. (State’s Lodging A-3 at 7-8.) The state district court held
another evidentiary hearing. Inmate Kevin Amerson testified that Bianchi informed him
Bianchi had been “schooled a little” on what to say at Petitioner’s trial and that one of the
prosecutors had promised Bianchi benefits for testifying. (State’s Lodging A-44 at 49,
50-51.) Bianchi also supposedly told Amerson that Bianchi had committed perjury at
Petitioner’s trial. (Id. at 52.). Inmate Gary Marquess testified that Bianchi admitted to
going over Petitioner’s case file with Detective Dave Smith and that Bianchi said he felt
bad for committing perjury against Petitioner. (Id. at 70-73.)
For his part, Bianchi admitted at the evidentiary hearing that he had told “pretty
much whoever . . . would listen,” including Petitioner’s counsel and Petitioner himself,
that Bianchi had committed perjury at Petitioner’s trial. (Id. at 10.) Bianchi went on to
testify, however, that his recantations were false, that he had told the truth when he
MEMORANDUM DECISION AND ORDER - 6

testified against Petitioner, and that he had never been shown the police file. (Id. at 1014.) Bianchi explained that he had falsely recanted his trial testimony because he had
been threatened by other inmates, and Petitioner led him to believe that these threats
would stop if Bianchi recanted. (Id. at 26-27.)
The state court found that Bianchi’s testimony at trial and during postconviction
proceedings was “true in those respects that are material.” (State’s Lodging A-3 at 60.)
Though there were a few discrepancies between what postconviction counsel and Bianchi
remembered about their conversation, the court found that these were mere differences in
perception and memory. (Id.) The state court noted that Bianchi had never recanted his
trial testimony under oath, but that all of his statements that he lied at Petitioner’s trial or
that he was fed information by the police were made outside of court: “When testifying
under oath [Bianchi] has consistently maintained [that] his version of events at trial were
true.” (Id. at 59-60.) The court found that Bianchi’s explanation for his false
recantations—that he believed he would be safer if he recanted—“is believable and
believed by this court.” (Id. at 60.)
Petitioner appealed. In the consolidated direct appeal and initial postconviction
appellate proceedings, the Idaho Supreme Court upheld Petitioner’s conviction and
sentence and rejected the claims in his initial postconviction petition. Fields I, 908 P.2d at
1225.

MEMORANDUM DECISION AND ORDER - 7

D.

Second Postconviction Petition

Petitioner later filed a second postconviction petition in the state district court.
(State’s Lodging C-57 at 4-54.) Petitioner claimed, among other things, that his direct
appeal and initial postconviction counsel operated under a conflict of interest. (Id. at 1012.) The trial court dismissed the petition, and the Idaho Supreme Court affirmed. Fields
v. State, 17 P.3d 230, 232 (Idaho 2000) (Fields II).
E.

Third Postconviction Petition

In June 2002, Petitioner filed a third state postconviction petition, requesting DNA
testing of several pieces of evidence. (State’s Lodging G-87 at 7-14.) Petitioner was
eventually excluded as a contributor of (1) DNA found under Mrs. Vanderford’s
fingernails, and (2) hairs recovered from her clothing. This third postconviction petition
also included an affidavit from inmate informant Jeff Acheson, alleging that he was fed
information by the authorities to support his trial testimony that Petitioner made
incriminating statements to Acheson.
The state district court determined that there was nothing but speculation that the
DNA under the victim’s fingernails actually came from the murderer; therefore,
Petitioner had not met the standards for successive postconviction relief under state law.
(State’s Lodging G-88 at 259-60.) The Idaho Supreme Court affirmed, holding that DNA
results might justify a successive application for postconviction relief if there were
“admissible evidence showing that the material tested came from the person who
committed the crime,” but there was no such evidence in Petitioner’s case. Fields v. State,

MEMORANDUM DECISION AND ORDER - 8

253 P.3d 692, 698 (Idaho 2011) (Fields IV). The court also held that Acheson’s affidavit
was merely impeaching and therefore could not support a successive petition for
postconviction relief under Idaho law. (Id. at 699.)
F.

Fourth Postconviction Petition

Petitioner filed a fourth postconviction petition based on the United States
Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). The state courts
denied relief because Ring, which held that juries rather than judges must determine the
presence or absence of aggravating factors necessary to impose the death penalty, did not,
under Idaho law, apply retroactively to cases that became final before Ring was decided.
Fields v. State, 234 P.3d 723, 725 (Idaho 2010) (Fields III); see also Schriro v.
Summerlin, 542 U.S. 348, 358 (2004) (holding that Ring does not apply retroactively
under federal law).
G.

Fifth Postconviction Petition

In October 2010, Petitioner filed a fifth state postconviction petition based on a
police detective’s destruction of Petitioner’s orange camouflage coat—the coat Petitioner
was wearing when his former cellmate, Keith Edson, saw him entering the Wishing Well
shortly before the murder. (State’s Lodging I-114 at 10-18.) The state district court
denied relief, holding that the coat was not material evidence, because photos of the coat
remained in evidence, and that Petitioner suffered no prejudice from the coat’s
destruction. (Id. at 193-94.) The Idaho Supreme Court affirmed on a different ground:
that the postconviction petition regarding the destruction of the coat was not timely filed.

MEMORANDUM DECISION AND ORDER - 9

Fields v. State, 298 P.3d 241, 244-45 (Idaho 2013) (Fields V). Neither court addressed
the question whether the coat was destroyed inadvertently or in bad faith.
H.

Sixth Postconviction Petition

Petitioner’s sixth and final state postconviction petition was filed in July 2011.
Petitioner presented an affidavit of Howard Gilcrist, who testified against Petitioner at the
preliminary hearing (but not at trial). Gilcrist’s affidavit stated that his preliminary
hearing testimony was false, that Petitioner did not confess to Gilcrist as Gilcrist had
previously testified, and that the police fed Gilcrist information about the crime to allow
him to report Petitioner’s confession. (State’s Lodging K-121.) This sixth petition was
dismissed as procedurally barred, and the Idaho Supreme Court affirmed. Fields v. State,
314 P.3d 587, 590-93 (Idaho 2013) (Fields VI).
2.

Federal Proceedings
As noted previously, Petitioner’s federal habeas case has been stayed and

reopened more than once over the last two decades so Petitioner could exhaust his claims
in state court. The Court previously determined that many of Petitioner’s claims, as
presented in his First Amended petition, were procedurally defaulted—including all of
Petitioner’s claims of ineffective assistance of counsel other than Claim 8 (which is based
on trial counsel’s alleged refusal to allow Petitioner to testify at trial). (Dkt. 109, 127.)
Petitioner has reasserted his procedurally defaulted claims, and added some entirely new
claims, in the Second Amended Petition. Petitioner now moves for an evidentiary hearing
to excuse the procedural default of those claims.

MEMORANDUM DECISION AND ORDER - 10

AMENDMENT OF SCHEDULING PLAN
Substantial changes in habeas corpus law and procedure have occurred since this
Court last amended Local Civil Rule 9.2, which governs capital habeas corpus
proceedings in the District of Idaho. Therefore, the Court will exercise its discretion to
depart from the schedule set by that rule and by the Court’s previous Scheduling Order,
based on changes in the law and concerns of judicial efficiency and economy. See Loc. R.
9.2(a) (“The application of this rule may be modified by the judge to whom the petition is
assigned.”).
Currently, Local Rule 9.2 separates the adjudication of capital habeas corpus
claims into a preliminary stage, where dismissal of claims based on procedural grounds
may occur, and a final stage, where the merits of any remaining claims are decided. Each
of these stages may include discovery and/or an evidentiary hearing.
Given changes in the law, however, the Court has determined that, rather than
divide the remainder of this case into a procedural defenses stage and a merits stage (each
with its own potential for discovery and evidentiary hearings), it is more appropriate to
separate the case into a paper review stage and, if necessary, an evidentiary hearing stage.
That is, the Court will separate these proceedings into stages based on whether an
evidentiary hearing is necessary, resolving all claims (and procedural issues) that can be
resolved without an evidentiary hearing before holding any evidentiary hearings. This
seems like the most efficient way to address Petitioner’s claims, given that the law has

MEMORANDUM DECISION AND ORDER - 11

trended toward fewer opportunities for evidentiary hearings on the merits3 and more
opportunities for evidentiary hearings on procedural grounds.4 Further, the United States
Supreme Court has suggested that the merits of non-defaulted claims should be heard
ahead of other claims where difficult procedural hurdles must be cleared before the
merits of those other claims can be addressed. See Dretke v. Haley, 541 U.S. 386, 393-94
(2004) (“[A] federal court faced with allegations of actual innocence, whether of the
sentence or of the crime charged, must first address all non-defaulted claims for
comparable relief and other grounds for cause to excuse the procedural default.”)
(emphasis added).
If it appears that an evidentiary hearing might be required as to procedural issues
or the merits, the Court will defer the decision on whether to hold such a hearing until
after its paper review. For these reasons, the Court will first address any procedural issues
with respect to the Second Amended Petition that it determines do not require an
evidentiary hearing, followed by consideration of the merits of any claims for which an
evidentiary hearing is not permitted or required. Then, if habeas relief is not warranted as
3

See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
the merits”); Detrich v. Ryan, 740 F.3d 1237, 1246-47 (9th Cir. 2013) (en banc) (plurality)
(clarifying that evidentiary development and hearings are only available for claims not
adjudicated on the merits in state court, at least so far as the state court’s factual determinations
upon which the adjudication was based are not unreasonable).
4

See Martinez v. Ryan, 132 S. Ct. 1309 (2012) (holding that inadequate assistance of postconviction review counsel or lack of counsel “at initial-review collateral review proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial”);
Detrich, 740 F.3d at 1246 (plurality) (“[T]he district court should allow discovery and hold an
evidentiary hearing where appropriate to determine whether there was ‘cause’ under Martinez for
the state-court procedural default and to determine, if the default is excused, whether there has
been trial-counsel IAC.”).
MEMORANDUM DECISION AND ORDER - 12

to any of those claims, the Court will decide whether to hold evidentiary hearings on any
remaining issues (procedural or merits-based) in this case. If further briefing is required
on any issue, the Court will so notify the parties.5
PROCEDURAL DEFAULT STANDARD OF LAW
A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845.
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise

5

The Court has considered the fact that, in every capital case, numerous motions for
extensions of time and for enlargement of page limitations are often filed with respect to the
parties’ briefs. The Court’s generous time and page allowances as set forth in this Memorandum
Decision and Order are intended to lessen the need for such motions. The Court particularly does
not expect that the parties will need a substantial amount of time to prepare their remaining briefs
in this case, as they have already submitted briefing on the merits of many of Petitioner’s habeas
claims. (See Dkt. 208, 224, 236.)
However, the Court will not prohibit entirely the filing of motions for extensions of time
or for enlargement of page limitations. The Court acknowledges that the size of the Court’s
docket makes it impossible to determine every matter as quickly as some parties might wish.
However, because of the nature of the death penalty, it is imperative that the parties and the
Court have adequate time to litigate and to resolve the case, respectively. The Court is confident
that counsel will use their resources reasonably and with their best judgment throughout the
remainder of this litigation and will manage requests for time and page extensions accordingly.
MEMORANDUM DECISION AND ORDER - 13

insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, for proper exhaustion, a petitioner must bring his federal claim before the state court
by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Procedurally defaulted claims include
those within the following circumstances: (1) when a petitioner has completely failed to
raise a claim before the Idaho courts; (2) when a petitioner has raised a claim, but has
failed to fully and fairly present it as a federal claim to the Idaho courts; and (3) when the
Idaho courts have rejected a claim on an adequate and independent state procedural
ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S.
722, 750 (1991).
If a petitioner’s claim is procedurally defaulted, a federal district court cannot hear
the merits of the claim unless the petitioner meets one of two exceptions: (1) a showing
of actual innocence, which means that a miscarriage of justice will occur if the
constitutional claim is not heard in federal court, Schlup v. Delo, 513 U.S. 298, 329
(1995); or (2) a showing of adequate legal cause for the default and prejudice arising
from the default, Murray v. Carrier, 477 U.S. 478, 488 (1986).

MEMORANDUM DECISION AND ORDER - 14

Neither a claim of cause and prejudice nor a Schlup actual innocence claim is an
independent constitutional claim. Rather, these are federal procedural claims that, if
sufficiently established by the petitioner, allow a federal court to consider the merits of an
otherwise procedurally-defaulted constitutional claim.
DISCUSSION
1.

The Court Will Deny Without Prejudice Petitioner’s Request for an
Evidentiary Hearing on Actual Innocence under Schlup v. Delo
The parties have fully briefed the Motion for Evidentiary Hearing, including

Petitioner’s argument that he is entitled to develop evidence supporting his Schlup
gateway claim of actual innocence.6 The Court finds that although substantial amounts of
time and resources have already been spent briefing Petitioner’s Schlup claim, it would
be most efficient, economical, and consistent with the principles of federalism and comity
to table that issue at this time.
The taxpayers would incur great expense if the Court were to determine that,
based on Petitioner’s Schlup claim, evidentiary hearings should be held in this case,
potentially on all of Petitioner’s defaulted claims, before the Court determines whether a
non-defaulted claim might entitle Petitioner to habeas relief—in which case adjudication
of Petitioner’s Schlup claim would be unnecessary. Further, declining to address a
difficult actual innocence issue—unless it cannot be avoided—is the preferred method of
resolving the procedural default issue. See Dretke, 541 U.S. at 393-94. This is particularly
so where, as here, the petitioner’s actual innocence procedural claim is not obviously
6

The Court denied without prejudice Petitioner’s previous motion for an evidentiary
hearing on his Schlup claim. See Dkt. 196.
MEMORANDUM DECISION AND ORDER - 15

meritless. Additionally, a Schlup claim allows consideration of new evidence that the
state courts never addressed, and a federal court should refrain from considering such
evidence unless that consideration is both permitted and required.
“Success on the merits would give [Petitioner] all of the relief that he seeks,” and a
Schlup determination and potential hearing would not be required if one of Petitioner’s
non-defaulted claims entitles him to relief. Id. at 394 (internal quotation marks omitted).
Therefore, the Court will defer consideration of whether to hold a hearing on Petitioner’s
Schlup claim until after the Court has considered (1) the cause and prejudice exception to
procedural default, and (2) the merits of Petitioner’s non-defaulted claims (or the merits
of any claim for which cause and prejudice exist to excuse procedural default).
Petitioner’s latest request for an evidentiary hearing on his Schlup claim will be denied
without prejudice.
The Court will address in this Memorandum Decision and Order Petitioner’s
request for an evidentiary hearing on whether cause and prejudice exist, under Martinez
v. Ryan, to excuse the procedural default of Petitioner’s ineffective assistance of counsel
claims. The Court will then address, in a later decision, the merits of any claims that are
not defaulted (or are excused from procedural default). Finally, if Petitioner is not entitled
to relief on the merits of any of those claims, the Court will allow Petitioner to renew his
request for an evidentiary hearing to develop his Schlup gateway claim, and the Court
will consider whether to allow further briefing on that issue at that time.7
7

Although a Schlup claim is not an independent constitutional claim, habeas petitioners
under a sentence of death may be able to assert a freestanding actual innocence claim. The
MEMORANDUM DECISION AND ORDER - 16

The Court will now address Petitioner’s request for an evidentiary hearing
regarding cause and prejudice under Martinez v. Ryan.
2.

Petitioner Is Not Entitled to an Evidentiary Hearing To Establish Cause and
Prejudice, under Martinez v. Ryan, To Excuse the Procedural Default of His
Ineffective Assistance of Counsel Claims.
Petitioner argues that some of his procedurally defaulted ineffective assistance of

counsel claims may properly be heard on the merits pursuant to Martinez v. Ryan. As
noted above, a procedurally defaulted claim may be considered on the merits if a
petitioner establishes cause and prejudice to excuse the default. Coleman, 501 U.S. at
750. “An evidentiary hearing is not necessary to allow a petitioner to show cause and
prejudice if the court determines as a matter of law that he cannot satisfy the standard.”
Clark v. Lewis, 1 F.3d 814, 820 (9th Cir. 1993).
Because Petitioner cannot, as a matter of law, satisfy the Martinez standard for
cause and prejudice, the Court will deny his request for an evidentiary hearing on that
issue.

Supreme Court has not yet resolved this question. See McQuiggin v. Perkins, 133 S. Ct. 1924,
1931 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on
a freestanding claim of actual innocence.”); Herrera v. Collins, 506 U.S. 390, 417 (1993) (“We
may assume, for the sake of argument in deciding this case, that in a capital case a truly
persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open
to process such a claim.”).
Petitioner asserts a freestanding actual innocence claim in his Second Amended Petition.
As with Petitioner’s Schlup gateway claim, the Court will refrain from addressing his
freestanding actual innocence claim until after consideration of the merits of Petitioner’s other
claims.
MEMORANDUM DECISION AND ORDER - 17

A.

Cause and Prejudice Standard of Law

The parties agree, and the Court has determined based on its own review of habeas
corpus law, that the state court’s factual findings as to the reliability and credibility of the
evidence presented in state postconviction proceedings are entitled to a presumption of
correctness under 28 U.S.C. § 2254(e)(1), even if they relate to a procedural default issue.
(Dkt. 298 at 56; Dkt. 313 at 15); see also Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir.
2010) (“While Section 2254(d) thus has no application in the context of [an exception to
procedural default] because it pertains only to a ‘claim that was adjudicated’ in state
court, Section 2254(e)(1) does come into play because it refers to the ‘determination of a
factual issue’—that is, to a state court’s findings of fact, rather than its conclusions of
federal law.”). Therefore, any factual findings of the state court—even those relating to a
procedural default issue such as cause and prejudice—are conclusive, unless Petitioner
rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
To show “cause” for a procedural default, a petitioner must ordinarily 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. Murray, 477 U.S. at 488. To show
“prejudice,” a petitioner generally bears “the burden of showing not merely that the errors
[in his proceeding] constituted a possibility of prejudice, but that they 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).

MEMORANDUM DECISION AND ORDER - 18

A petitioner does not have a federal constitutional right to effective assistance of
counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551,
554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general
rule is that any errors of counsel during a postconviction action cannot serve as a basis for
cause to excuse a procedural default. Coleman, 501 U.S. at 752.
Martinez v. Ryan established a limited exception to this general rule, an exception
that applies only to Sixth Amendment ineffective assistance of counsel (“IAC”) claims.
Martinez held that inadequate assistance of postconviction review (“PCR”) counsel or
lack of counsel at initial-review collateral proceedings “may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.” 132 S. Ct. at
1315. The Court will refer to claims of ineffective assistance of trial counsel as “IATC”
claims.
In Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir. 2013), the Ninth Circuit
extended Martinez, holding that it can also apply to underlying claims of ineffective
assistance of direct appeal counsel (“IADAC”). Postconviction counsel’s ineffectiveness
cannot constitute cause with respect to any claim other than an IATC or IADAC claim.
See Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (declining to extend
Martinez to underlying claims based on Brady v. Maryland, 373 U.S. 83 (1963)), cert.
denied, 134 S. Ct. 1771 (2014).
In Trevino v. Thaler, the Supreme Court described the Martinez analysis as
consisting of four prongs:

MEMORANDUM DECISION AND ORDER - 19

We . . . read Coleman as containing an exception, allowing a
federal habeas court to find “cause,” thereby excusing a
defendant’s procedural default, where (1) the claim of
“ineffective assistance of trial counsel” was a “substantial”
claim; (2) the “cause” consisted of there being “no counsel”
or only “ineffective” counsel during the state collateral
review proceeding; (3) the state collateral review proceeding
was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state
law requires that an “ineffective assistance of trial counsel
[claim] . . . be raised in an initial-review collateral
proceeding.”
133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S. Ct. at 1318-21) (alterations in
original).
The third and fourth prongs of the analysis are rarely in dispute. With respect to
the third prong, the Martinez exception applies only to the lack of counsel or
ineffectiveness of counsel in the initial postconviction review proceeding. It “does not
extend to attorney errors in any proceeding beyond the first occasion the State allows a
prisoner to raise a claim of ineffective assistance.” Martinez, 132 S. Ct. at 1320. Rather,
the Court in Martinez was singularly concerned that, if ineffective assistance of trial
counsel claims were not brought in the collateral proceeding which provided the first
occasion to raise such claims, the effect was that the claims could not be brought at all.
Id. at 1316. Therefore, a petitioner may not assert as cause attorney error that occurred in
“appeals from initial-review collateral proceedings, second or successive collateral
proceedings, [or] petitions for discretionary review in a State’s appellate courts.” Id. at
1320.

MEMORANDUM DECISION AND ORDER - 20

With respect to the fourth Martinez prong—that state law must require IAC claims
to be brought in an initial-review collateral proceeding—the Supreme Court in Trevino
extended Martinez to apply not only where a State requires IAC claims to be raised in
postconviction proceedings, but also where a State’s “procedural framework, by reason
of its design and operation, makes it highly unlikely in a typical case that a defendant will
have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on
direct appeal.” 133 S. Ct. at 1921. Martinez clearly applies to capital cases in Idaho,
where a defendant must raise any IAC claims in a postconviction action litigated before
the direct appeal. See Idaho Code § 19-2719.
The two strongly disputed issues in a Martinez inquiry are generally the first
prong, whether an underlying IAC claim is substantial (the “prejudice” prong of the cause
and prejudice analysis); and the second prong, whether PCR counsel rendered ineffective
assistance by failing to raise that IAC claim in state postconviction proceedings (the
“cause” prong of the cause and prejudice analysis). See Clabourne v. Ryan, 745 F.3d 362,
377 (9th Cir. 2014).
i.

Prong One: Substantiality of Underlying IAC Claims

For the Martinez exception to apply, a petitioner must bring forward evidence
demonstrating that his underlying IAC claim is substantial. The United States Supreme
Court has defined “substantial” as a claim that “has some merit.” Martinez, 132 S. Ct. at
1318-19 (comparing the standard for certificates of appealability from Miller-El v.

MEMORANDUM DECISION AND ORDER - 21

Cockrell, 537 U.S. 322 (2003)). Stated inversely, a claim is “insubstantial” if it “does not
have any merit or . . . is wholly without factual support.” Id. at 1319.
Determining whether an IAC claim is substantial requires a federal court to
examine the claim under Strickland v. Washington, 466 U.S. 668 (1984). A petitioner
asserting ineffective assistance of counsel must show that (1) “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment,” and (2) counsel’s errors “deprive[d] the defendant of a fair trial, a
trial whose result is reliable.” Id. at 687.
Under the first Strickland prong, whether an attorney’s performance was deficient
is judged against an objective standard of reasonableness. Id. at 687-88. A reviewing
court’s inquiry into the reasonableness of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. 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.
MEMORANDUM DECISION AND ORDER - 22

Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense or which witnesses or other
evidence to present, “are virtually unchallengeable” if “made after thorough investigation
of law and facts relevant to plausible options.” Id. at 690. Moreover, an attorney who
decides not to investigate a particular theory or issue in the case is not ineffective so long
as the decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91.
If a petitioner shows that counsel’s performance was deficient, the next step in the
Strickland inquiry is the prejudice analysis. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Id. at 691. To satisfy the prejudice standard, a
petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A “reasonable probability” is defined as a “probability sufficient to undermine
confidence in the outcome.” Id. As the Strickland Court instructed:

MEMORANDUM DECISION AND ORDER - 23

In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96.
These standards from Strickland for determining deficient performance and
prejudice, are, of course, the standards for an eventual review of the merits of the
underlying IAC claim. The question whether an IAC claim is substantial under Martinez
is not the same as a merits review; rather, it is more akin to a preliminary review of a
Strickland claim for purposes of determining whether a certificate of appealability should
issue. See Martinez, 132 S. Ct. at 1318-19. Therefore, a court may conclude that a claim
is substantial when a petitioner has shown that resolution of the merits of the Strickland
claim would be “debatable amongst jurists of reason” or that the issues presented are
“adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336
(internal quotation marks omitted). Thus, to determine whether a claim is substantial,
Martinez requires the district court to review but not determine whether trial or appellate
counsel’s acts or omissions resulted in deficient performance and in a reasonable
MEMORANDUM DECISION AND ORDER - 24

probability of prejudice, and to determine only whether resolution of the merits of the
IAC claim would be debatable among jurists of reason and whether the issues are
deserving enough to encourage further pursuit of them.
ii.

Prong Two: Lack of PCR Counsel or Ineffective Assistance of PCR
Counsel

In addition to showing that the underlying IAC claim is substantial, a petitioner
seeking to invoke the Martinez exception must also show either that he had no counsel on
initial postconviction review, or that his PCR counsel was “ineffective under the
standards of Strickland.” 132 S. Ct. at 1318. Again, “ineffectiveness” is a term defined by
Strickland as (1) deficient performance and (2) a reasonable probability of prejudice
caused by the deficient performance. 466 U.S. at 694, 700.
As to PCR counsel’s performance, not just any error or omission of initial PCR
counsel will be deemed deficient performance that will satisfy Martinez. If the “attorney
in the initial-review collateral proceeding did not perform below constitutional
standards,” the PCR attorney’s performance does not constitute cause to excuse the
procedural default of an underlying IAC claim. 132 S. Ct. at 1319. The Strickland
standards for analyzing deficient performance set forth above apply with equal force to
PCR counsel in the context of a Martinez argument. Importantly, PCR counsel “is not
necessarily ineffective for failing to raise even a nonfrivolous claim.” Sexton v. Cozner,
679 F.3d 1150, 1157 (9th Cir. 2012). If PCR counsel’s performance is deficient, then the
court must consider whether that performance was prejudicial under Strickland.
Clabourne, 745 F.3d at 377.
MEMORANDUM DECISION AND ORDER - 25

Therefore, even if Petitioner shows, under the first Martinez prong, that his
underlying IAC claims are substantial, he must still show, under the second Martinez
prong, that postconviction counsel rendered deficient performance and that, “but for postconviction counsel’s failure to raise [the substantial IAC] claims, there is a reasonable
probability that the result of the post-conviction proceeding would have been different.”
Id. at 378. These two inquiries will, at times, collapse into one. Id. at 382 (“Under the
circumstances of this case, if [the petitioner] succeeds in demonstrating that he was
prejudiced by the failure of his post-conviction counsel, he will necessarily have
established that there is at least ‘some merit’ to his claim that he suffered ineffective
assistance of trial counsel at resentencing.”). The Court may address either inquiry first,
and the resolution of one prong may obviate the need to address the other. See Martinez,
132 S. Ct. at 1319 (“When faced with the question whether there is cause for an apparent
default, a State may answer that the ineffective-assistance-of-trial-counsel claim is
insubstantial, i.e., it does not have any merit or that it is wholly without factual support,
or that the attorney in the initial-review collateral proceeding did not perform below
constitutional standards.”).
B.

Application of Martinez v. Ryan to Petitioner’s Procedurally Defaulted
IATC Claims

Claim 3 of the Second Amended Petition presents seventeen IATC sub-claims.
Although Petitioner claims generally that Martinez “excuses any default” of “all of Claim
3” (Dkt. 275-1 at 44), the only IATC sub-claims that Petitioner specifically supports with
argument regarding Martinez are Claims 3(A), 3(C), 3(D), 3(E), 3(F), 3(I), 3(J), 3(K),
MEMORANDUM DECISION AND ORDER - 26

3(L), 3(N), and 3(O).8 Therefore, the Court will address only those eleven IATC
claims—which will be separated into five discussion sections below. The Court finds that
Petitioner’s Martinez arguments regarding all other IAC claims have been either forfeited
or voluntarily waived. See Jones v. Knipp, 2013 WL 6145245, *2 (E.D. Cal. Nov. 21,
2013) (unpublished) (“Bare contentions, unsupported by explanation or authority, are
deemed waived.”); FDIC v. Garner, 126 F.3d 1138, 1145 (9th Cir. 1997) (“Appellants
present no case law or argument in support of this claim. Accordingly, we deem the
argument waived.”); United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (9th Cir.
1997) (distinguishing between the concepts of forfeiture and waiver).
After a thorough review of the entire record, the Court concludes that Petitioner is
unable, as a matter of law, to show that these eleven procedurally defaulted IATC claims
are substantial and that his PCR counsel rendered ineffective assistance under the
standards of Strickland in failing to raise them.
i.

Claims That Trial Counsel Failed To Investigate and Adequately
Cross-examine Edson and the Inmate Informants

The first set of IATC claims that Petitioner alleges are excused from default under
Martinez involves trial counsel’s investigation and cross-examination of Edson and the
inmate snitch witnesses. (Dkt. 275-1 at 44-45, 50-53.) This group of claims consists of
Claims 3(A) (Edson and Bianchi), 3(E) (Heistand), and 3(F) (Acheson).
8

Unfortunately, Petitioner’s briefing did not identify by number the particular IATC
claims addressed in that briefing, and Respondent and the Court were thus required to compare
Petitioner’s briefs with his 44-claim Second Amended Petition to determine which claims were
actually at issue with respect to Petitioner’s Martinez argument. For this reason, the Court will
require that all further briefs in this case specifically indicate, by number, which particular claims
or sub-claims are discussed in each particular section of the brief.

MEMORANDUM DECISION AND ORDER - 27

a)

Claim 3(A)(i): Keith Edson

Nearly two weeks after the murder of Mrs. Vanderford, Petitioner was arrested on
an unrelated charge stemming from an assault Petitioner committed while shoplifting at
Shopko. Keith Edson, a former inmate who was celled next door to Petitioner for about
six months in the early 1980s, saw a television report of Petitioner’s arrest in the Shopko
matter and called police, informing them that he had seen Petitioner entering the Wishing
Well gift shop on the day of or the day after the murder of Mrs. Vanderford. Edson had
not come forward initially because although he recognized Petitioner when he first saw
him at the gift shop, Edson was unsure whether it was important and could not remember
Petitioner’s name. Edson was only able to remember the name “Zane Fields” once he saw
the coverage of the Shopko incident. Fields I, 908 P.2d at 1215; State’s Lodging A-40 at
1212-13.)
At trial, Edson testified that on February 11, 1988—the day of the murder—he
was walking near the Wishing Well gift shop after going to an arcade. At about 11:00
a.m., Edson was smoking a cigarette when he saw Petitioner enter the gift shop. (State’s
Lodging A-40 at 1196-1208.) Recognizing Petitioner but unable to remember his name,
Edson waited for him to come out of the shop. Edson then saw Petitioner leaving the
area, though he did not actually see him exit the gift shop. (Id. at 1209.) Edson decided
not to approach Petitioner because he had a “gut feeling”; Petitioner appeared nervous
and was looking around “like something wasn’t right.” (Id. at 1210.) Edson testified that
although he initially said that he had seen Petitioner “on the day or day after” the murder,

MEMORANDUM DECISION AND ORDER - 28

“going over what [he] saw with the detectives” convinced him that it was definitely the
day of the murder. (Id. at 1249.)
Petitioner acknowledges that trial counsel “substantially” and “terrifically”
impeached Edson. (Dkt. 275-1 at 50; Dkt. 313 at 47.) For example, Edson testified at trial
that he went to several places while he was out walking on the day of the murder,
including Taco Bell, where he bought a soda. (State’s Lodging A-40 at 1243-44.)
Defense counsel later called Robert Jue as a witness. Jue, an employee of the Central
District Health Department, testified that the Taco Bell where Petitioner said he stopped
had not even been open for business on February 11th, 1988, because it was still under
construction and had not yet received its operating license. (State’s Lodging A-42 at
1630, 1633-35.)
Edson also testified that there were no cars in the BMC parking lot near the gift
shop at the time he saw Petitioner and that the BMC business was closed. (State’s
Lodging A-40 at 1264-65.) However, the victim’s husband, who had been outside the
store before the murder, testified that the BMC store was open and there were several
cars in the parking lot. (State’s Lodging A-39 at 917-19.) Edson also claimed that he saw
only one vehicle in the parking lot of the gift shop—a van that Edson testified had
windows only on the driver’s and front passenger’s doors and perhaps in the back.
(State’s Lodging A-40 at 1465-66.) But another witness testified that there were three or
four cars in the Wishing Well parking lot and that her van—presumably the one Edson
saw—was “loaded with windows.” (State’s Lodging A-39 at 979-82.)

MEMORANDUM DECISION AND ORDER - 29

Edson further stated that he did not see anyone other than Petitioner enter the gift
shop, even though two women entered and left the near the time Edson saw Petitioner
enter the shop. (State’s Lodging A-40 at 1266-68.) In addition, Edson testified that
Petitioner was wearing an orange camouflage coat when he entered the Wishing Well,
while the witnesses who identified Petitioner as having a knife at the Linda Vista Plaza
an hour-and-a-half after the murder testified that Petitioner’s coat was solid orange or red
in color—not camouflage. (State’s Lodging A-39 at 1104, 1109-10, 1132, 1136; A-40 at
1155, 1167-69, 1171-72, 1183.)
Notwithstanding the fact that trial counsel thoroughly impeached Edson, Petitioner
now argues counsel should have done more. At trial, Edson testified that he had
previously been convicted of Grand Theft Auto in 1983 and spent two-and-a-half years in
prison. (State’s Lodging A-40 at 1190.) He also testified that this auto theft was his only
felony. (Id. at 1191.) Petitioner has now brought forward evidence that in 1986, in the
State of Washington, Edson was also convicted of felony first degree theft and served
four months in jail. (Dkt. 275-20 at 5-6.) Petitioner argues that the jury, faced with
Edson’s lie regarding his criminal history, would have disbelieved Edson’s testimony
about seeing Petitioner enter the Wishing Well.
The Court concludes that Petitioner has not raised a substantial claim that his trial
counsel performed deficiently with respect to the investigation and cross-examination of
Edson. Defense counsel focused the entire cross-examination on attacking Edson’s
credibility. Counsel brought out the weaknesses in Edson’s testimony in a way that was

MEMORANDUM DECISION AND ORDER - 30

understandable to the jury, pressing many compelling points that detracted from Edson’s
reliability and credibility as a witness. That the jury was not ultimately convinced does
not mean that trial counsel performed deficiently.
“[M]atters such as counsel’s approach to impeachment are often viewed as
tactical decisions, and such decisions do not constitute deficient conduct simply because
there are better options.” Reynoso v. Giurbino, 462 F.3d 1099, 1113 (9th Cir. 2006). The
Constitution does not require that defense counsel ask “every possible impeachment
question.” West v. Varano, 2014 WL 7139790, at *10 (M.D. Pa. Dec. 12, 2014); see also
Strickland, 466 U.S. at 689 (“[I]t is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of counsel
was unreasonable.”). Because there is no merit to Petitioner’s claim that trial counsel
rendered deficient performance with respect to Edson, the Court need not address the
issue of PCR counsel’s failure to raise this claim.
b)

Claim 3(A)(ii): Scott Bianchi

Petitioner also claims that trial counsel failed to adequately investigate and crossexamine inmate Scott Bianchi. Bianchi testified at trial that, while he and Petitioner were
incarcerated together, Petitioner confessed to killing Mrs. Vanderford. According to
Bianchi, he and Petitioner were talking about inmate Howard Gilcrist, and Petitioner told
Bianchi that Gilcrist was a snitch for testifying against Petitioner at the preliminary
hearing. (State’s Lodging A-41 at 1567-70.) Bianchi had already heard about Gilcrist’s
testimony, as it “was general knowledge among the inmates.” (Id. at 1569.) Bianchi

MEMORANDUM DECISION AND ORDER - 31

testified that Petitioner then told him “that [Petitioner] killed the lady, that he didn’t mean
to kill her, and that he felt really bad for her.” (Id.) According to Bianchi, Petitioner told
him that the murder took place at a gift shop in the Linda Vista Plaza. Petitioner “got
startled” while he was robbing the shop, “acted on impulse,” and then “once he got
started it was like he had to finish the job.” (Id. at 1570.)
Bianchi acknowledged on the stand that he had previously been disciplined for
lying to correctional officers and that Bianchi and two other inmate snitch witnesses had
been taken to the courthouse together. In defense counsel’s words, all three inmate
witnesses “had plenty of chances to talk things over.” (Id. at 1602.) On crossexamination, counsel also elicited testimony that Bianchi had been allowed to see his
fiancée and his mother while he was in the police department with the other snitch
witnesses, implying that Bianchi agreed to testify because of these benefits. Although
Bianchi testified that he expected to “gain nothing” by testifying against Petitioner,
defense counsel pointed out that Bianchi had a parole hearing coming up in about two
years. Bianchi acknowledged that he wanted to “make a good impression” in front of the
parole board, but claimed that he had not decided whether to bring up his testimony,
against a defendant in a murder case, as a point in favor of release on parole.9 (Id. at
1605-06.)

9

Although the inmate informants eventually received letters from the prosecutor’s office
praising them for their testimony at Petitioner’s trial, there is no evidence that Petitioner’s trial
counsel knew or could have discovered during trial that the prosecutor intended to write such
letters. Indeed, in postconviction proceedings, the state district court found that the prosecutor’s
decision to write the letters was not made until after trial. (State’s Lodging A-2 at 229-30.)
MEMORANDUM DECISION AND ORDER - 32

Bianchi also admitted at trial that he had previously informed a police detective
that if Bianchi were called to testify, he would “blow the Prosecutor’s case” and provide
“unbeneficial” testimony. (Id. at 1608-10.) Bianchi’s explanation for these previous
statements was that he said them because he wanted to scare the police away and to make
them leave him alone, rather than because the statements were true. (Id.) Further, defense
counsel prompted Bianchi to repeat his testimony that Petitioner told him the murder
occurred at the Linda Vista Plaza—which was about a half of a mile away from the
murder scene—thus pointing out that Petitioner’s alleged confession to Bianchi was at
least partially inaccurate. (Id. at 1613.) Finally, Bianchi acknowledged that he would do
anything to try to get out of prison, “as far as my behavior is concerned,” though Bianchi
insisted he did not make up Petitioner’s confession. (Id. at 1616.)
As can be seen from this summary, defense counsel investigated and crossexamined Bianchi in a reasonable manner and to a reasonable extent. Counsel shined a
light upon Bianchi’s motives to commit perjury and elicited testimony that did not match
the facts of the murder. Like trial counsel’s cross-examination of Edson, the crossexamination of Bianchi met or exceeded the requirements of the Sixth Amendment.
“Under Strickland, counsel’s representation must be only objectively reasonable, not
flawless or to the highest degree of skill.” Dows v. Wood, 211 F.3d 480, 487 (9th Cir.
2000).
Further, the later-presented evidence from other inmates contending that Bianchi
lied at trial does not advance Petitioner’s IATC claim because there is nothing in the

MEMORANDUM DECISION AND ORDER - 33

record to suggest that trial counsel rendered deficient performance by failing to discover
this evidence earlier. Indeed, the state court found credible Bianchi’s testimony that,
while he had indeed recanted to several people (including Petitioner’s attorney), it was
Bianchi’s recantation—rather than his trial testimony—that was false. (State’s Lodging
A-3 at 58-62.)
This credibility finding is entitled to a presumption of correctness under 28 U.S.C.
§ 2254(e)(1), and Petitioner has the burden of rebutting that presumption by clear and
convincing evidence. In attempting to do so, Petitioner points to the relatively recent
affidavits presented by Gilcrist (who testified at the preliminary hearing) and Acheson
(who testified at trial).
During proceedings on Petitioner’s third postconviction petition, Acheson
submitted an affidavit stating that Gilcrist, Heistand, and Bianchi “told [Acheson] of how
they had made up most of what they were saying, in order to get out” of prison. (State’s
Lodging G-105, Ex. D.) Acheson’s new affidavit stated that the inmate informants
received benefits from testifying against Petitioner, such as pizza, grocery bags full of
cigarettes, and visits with family. (Id.) According to Acheson, Petitioner told him he had
gotten rid of a gun in connection with the murder; Acheson stated in his affidavit that
when he mentioned this to detectives, the detectives “corrected” him and told him that the
murder weapon was a knife. Acheson also testified that he and the other inmate

MEMORANDUM DECISION AND ORDER - 34

informants “would all stay up late and talk about the trial and what . . . we were going to
say when we got up on the stand.”10 (Id.)
Gilcrist submitted an affidavit in support of Petitioner’s sixth postconviction
petition. In that affidavit, Gilcrist recanted his preliminary hearing testimony. He stated
that Detective Smith fed him information about the case and that Gilcrist lied when he
testified that Petitioner confessed to him. (State’s Lodging K-125, Ex. 1 at 1.) Gilcrist
stated that he shared this information with Heistand and Bianchi. (Id. at 2.) According to
Gilcrist’s affidavit, Bianchi was reluctant to testify against Petitioner, but Gilcrist told
him that “it was for me [Gilcrist], that we needed to burn Fields.” (Id.)
The affidavits of Acheson and Gilcrist do not constitute clear and convincing
evidence calling into question the state court’s credibility findings that Bianchi and the
other inmate snitches told the truth at trial or that Salvador Martinez lied at the hearing on
Petitioner’s first motion for a new trial when Martinez claimed Bianchi confessed to
perjury. Gilcrist and Acheson claim that Bianchi committed perjury when he testified that
Petitioner had confessed to him, but given the devastating problems with Gilcrist’s and
Acheson’s own credibility, this Court cannot say that their statements sufficiently rebut
the trial court’s finding that Bianchi consistently told the truth when he was under oath—
including at trial.

10

Although Acheson stated in this new affidavit that he would not have testified against
Petitioner without the information he was given by police, Acheson does not actually recant his
trial testimony regarding Petitioner’s suspicious behavior. Indeed, he reaffirmed that Petitioner
“kept freaking out concerning the ‘crime-stoppers’ T.V. commercials” about the Wishing Well
murder. (State’s Lodging G-105, Ex. D.)

MEMORANDUM DECISION AND ORDER - 35

Petitioner also claims that other evidence justifies this Court’s dismissal of the
state court’s credibility findings regarding Bianchi. For example, Petitioner submitted
(with his reply brief) affidavits of correctional officers and inmates, alleging that the
circumstances surrounding Petitioner’s confession to Bianchi made the alleged
communication impossible. (Dkt. 313-2 to 313-8.) But these affidavits focus on the
physical layout and setup of the dayroom, where Petitioner confessed to Bianchi,
approximately 25 years ago. Alleged memories of how a particular area of the prison was
set up 25 years ago simply do not constitute clear and convincing evidence that Bianchi
testified falsely or that police or prosecutors fed him information so he could manufacture
false confessions or otherwise present false evidence against Petitioner. See 28 U.S.C.
§ 2254(e)(1).
The Court concludes, as a matter of law, that Petitioner’s IATC claim with respect
to Bianchi does not meet the Martinez exception to procedural default because trial
counsel performed adequately. Therefore, there is no need for an evidentiary hearing on
this issue.
c)

Claim 3(E): Joe “Turkey” Heistand

Petitioner next claims that trial counsel failed to conduct an adequate investigation
and cross-examination of inmate snitch Joe Heistand. At trial, Heistand testified that in
May 1989, after Petitioner had been charged with murder, Petitioner confessed to
Heistand that he committed the murder at the Wishing Well. (State’s Lodging A-41 at
1478-80.) Heistand stated that he and Petitioner were housed about four or five cells apart

MEMORANDUM DECISION AND ORDER - 36

and “kitty-corner” from each other when Petitioner confessed. (Id. at 1469.) According to
Heistand, he could hear Petitioner through a vent that ran between their cells. (Id. at
1473.)
Heistand testified that Petitioner told him he entered the Wishing Well gift shop to
make a “score” and went to the cash register at the back of the room. Mrs. Vanderford
then came into the shop from the back area and started “screaming and hollering.” (Id. at
1480.) According to Heistand, Petitioner told him that the victim “didn’t cooperate and
that’s when the stabbing occurred.” (Id.) Petitioner also told Heistand that he had used an
old hickory butcher knife, about 10 inches long, to kill Mrs. Vanderford, and that
Petitioner took about $48 to $50 from the cash register. (Id. at 1481-82.) Heistand then
testified that Petitioner told him that Jim Oetting, Petitioner’s roommate, would give
Petitioner a false alibi and that Oetting had lied in court for Petitioner before. (Id. at
1483-84.)
On cross-examination, trial counsel questioned Heistand regarding his continuing
failure to abide by the law and his frequent incarcerations, including for drugs, burglary,
and forgery. (Id. at 1494.) Heistand admitted that his story about Petitioner’s confession
had changed over time. Initially, Heistand had informed the police that Petitioner
confessed to Heistand only after a police detective asked various inmates to report to
them anything Petitioner said. At trial, however, Heistand testified that Petitioner
confessed before the detective spoke with the inmates incarcerated with Petitioner. (Id. at
1495-98.)

MEMORANDUM DECISION AND ORDER - 37

Petitioner’s counsel then elicited testimony from Heistand that Petitioner
confessed to him through the pipe chase vent that ran underneath the cells. (Id. at 149899.) This vent was situated so that if Petitioner spoke into the vent, anything he said
would also have been heard by all of the other inmates throughout the entire tier. (Id. at
1499.) Counsel continued:
Defense Counsel:

So you are claiming you had this conversation where
all these admissions were made to this horrible
offense, and it was being broadcast around the entire
tier? Is that what you’re telling us, Mr. Heistand?

Heistand:

Not really broadcast. I wouldn’t say broadcast, no. I
would say if people were paying attention they could
have heard the conversation, yes.

Defense Counsel:

Well, [Petitioner] was quite a distance from you?
Wasn’t it a good five cells away and across the hall?
Isn’t that right?

Heistand:

Yes.

Defense Counsel:

You’ve changed your testimony on that one, haven’t
you, from the hearing we had here a month ago?

Heistand:

No, I believe I told you then that I lived in [cell] 38
and I was 38 cell here (indicating), and he was down
this way (indicating), catty-corner, not straight across,
not setting this way, down this way (indicating).

Defense Counsel:

You told us, Mr. Heistand, . . . [a]t that hearing that
[Petitioner’s] cell was one cell catty-corner, isn’t that
right?

Heistand:

If I said one, I didn’t mean one cell. He lived in 47 or
48, I believe, was the cell.

Defense Counsel:

You were under oath at that hearing weren’t you?

MEMORANDUM DECISION AND ORDER - 38

Heistand:

Yes.

Defense Counsel:

And you were sworn to tell the truth?

Heistand:

Yes.

Defense Counsel:

Could the witness be shown the transcript from that
hearing.

....
Defense Counsel:

. . . . I’m going to read the question. I’m going to have
you read your answer, okay? Let’s see what you said.
Question: “How close were you to [Petitioner’s] cell?”
And your answer?

Heistand:

“Close.”

Defense Counsel:

“And were you next door or across the hall?”

Heistand:

“No, huh-uh. I would say across the hall.”

Defense Counsel:

Question: “Okay. Were you directly across the hall?”
Answer?

Heistand:

“No, catty-corner.”

Defense Counsel:

“Yes, one cell catty-corner?” Your answer?

Heistand:

“I believe so, yes.”

Defense Counsel:

And now you’re telling us you were actually five cells
away?

Heistand:

If that’s what it is, yes.

(State’s Lodging A-41 at 1499-1500.)
Heistand testified that each cell was about 8 feet by 10 feet in size, so that four
cells down would be about 32 feet away, and five cells would be 40 feet away. (Id. at
1504.) Heistand acknowledged that because Petitioner was down the row and across the
MEMORANDUM DECISION AND ORDER - 39

hall, he was approximately 46 feet away at the time Petitioner confessed to the murder—
through the pipe chase vent—and that Petitioner spoke very loudly through that vent. (Id.
at 1505.) Defense counsel then asked Heistand, “And so [Petitioner] made all these
statements, all these admissions and this confession to you speaking at this level in a tier
unit occupied, cells occupied by other inmates. Is this your testimony?” Heistand
answered, “Yes.” (Id.)
Petitioner’s attorney also pushed Heistand about details of Petitioner’s alleged
statements, pointing out repeatedly that Petitioner’s supposed confession to Heistand
included information that the cash register was at the back of the gift shop when, in
actuality, it was in the front. (Id. at 1519.)
Petitioner first claims that trial counsel should have asked Heistand more
questions about “the evolution” of his story, specifically that Heistand’s previous
statements began with Heistand being housed “right next to” Petitioner, then “across the
hall” and “catty-corner.” (Dkt. 275-1 at 51.) But as the above transcript shows, counsel
lambasted Heistand with the improbability of his story. That Petitioner currently thinks
the cross-examination should have been even more robust does not mean that trial
counsel performed below an objective standard of reasonableness.
Petitioner next claims that talking through the vent “was only possible in adjacent
cells that shared a pipe chase vent on the same side of the hall or aisle,” and that
Petitioner therefore could not have confessed to Heistand in the way Heistand described.
(Dkt. 275-1 at 52.) However, Petitioner’s counsel asked a series of devastating questions

MEMORANDUM DECISION AND ORDER - 40

regarding the layout of the cells and the vent, getting Heistand to admit that for his
testimony to be true, Petitioner would have had to speak very loudly, through a vent,
from 46 feet away, and that the conversation would have been audible to every other
inmate on the tier. That trial counsel did not ask one or two more questions about the vent
does not support a substantial Strickland claim.
Petitioner’s other claims regarding the cross-examination of Heistand—involving
a misstatement about the amount of money Heistand had stolen from the Aryan Nations
and a newspaper article about the murder that Heistand stated he had read—are similarly
meritless. Defense counsel met or exceeded constitutional requirements by thoroughly
impeaching Heistand. Further investigation of Heistand’s story, or a few additional
questions that counsel could have asked Heistand, do not add any merit to Petitioner’s
Strickland claim. For these reasons, Petitioner is not entitled to a Martinez hearing on his
claim regarding Heistand.
d)

Claim 3(F): Jeff Acheson

Petitioner also raises an IATC claim regarding the investigation and crossexamination of inmate Jeff Acheson. Acheson testified at trial that he and Petitioner were
“bunk mates” at the Ada County Jail when Petitioner was charged in the Shopko matter,
and that Acheson often played cards with Petitioner and two other inmates, Stan Nelson
and Billy Lear. (State’s Lodging A-41 at 1423, 1427.)
Acheson testified that near the end of March 1988, while they were playing cards,
if a Crime Stoppers television report about the murder aired in the room where they were

MEMORANDUM DECISION AND ORDER - 41

playing, Petitioner would “sometimes go up and either change the channel, turn the TV
off, or turn the volume down.” (Id. at 1430.) According to Acheson, Petitioner acted
“[v]ery full of anxiety, pretty angry sometimes” when these reports would air. After
Petitioner calmed down, “he’d sit down at the table and make a different statement,
saying that ‘They can’t pin that on me,’ or ‘They’re trying to pin that on me but I took
care of that.’” (Id. at 1430-31.) Acheson testified that Petitioner told him the police would
not be able to link Petitioner to the Wishing Well murder because Petitioner “had taken
care of the evidence.” (Id. at 1431.)
At this point Petitioner’s counsel objected, and the court held a sidebar. Defense
counsel pointed out that Acheson had previously stated that Petitioner had disposed of the
gun he used in the Shopko matter. Counsel objected to any such testimony, and the
prosecutor clarified that he would not be eliciting testimony from Acheson regarding
anything Petitioner had said about the Shopko incident. (Id. at 1432-33.) In open court,
the prosecutor asked Acheson to clarify the subject matter of Petitioner’s statements;
Acheson responded that Petitioner’s incriminating statements and his behavior regarding
the Crime Stoppers reports involved the Wishing Well murder. (Id. at 1434.)
Acheson acknowledged that he waited over two years before informing the
authorities of Petitioner’s statements. He testified on direct examination that he did not
come forward because he “thought [Petitioner] was already in custody and serving time
on that charge.” (Id. at 1436.) On cross-examination, Petitioner’s counsel pressed
Acheson regarding that two-year delay. Defense counsel got Acheson to change his

MEMORANDUM DECISION AND ORDER - 42

reason for not coming forward. Instead of believing that Petitioner was already serving
time for the murder as he testified on direct, Acheson stated on cross that he did not
initially come forward because, two years earlier, he “thought [the authorities] had all the
evidence they needed” about the murder. (Id. at 1455.)
Trial counsel also succeeded in establishing a motive for Acheson to fabricate his
testimony—to curry favor with the authorities while on his third term of probation so he
could avoid going to prison for at least three, and up to ten, years. Defense counsel began
by asking Acheson about his convictions for theft and his probation violations. Acheson
acknowledged that he was currently on his third term of probation and that, if he did not
successfully complete that probation, he would be “a three-time loser” and would be
facing three to ten years in prison. (Id. at 1442-43.) Counsel emphasized with Acheson
that two years previously, when Petitioner allegedly made the incriminating statements to
Acheson, Acheson was not trying to successfully complete his rider (probation and
retained jurisdiction) like he was at the time of trial. Counsel stated, “Mr. Acheson, if you
play this rider correctly, you, a three time loser, can be out of prison in 120 days and on
probation and avoid a three to ten year prison sentence, isn’t that right?” Acheson
answered, “Yes, it is, correct.” (Id. at 1456.)
Petitioner now argues that counsel should have done more to create doubt about
Acheson’s testimony. Specifically, Petitioner believes counsel should have investigated
other inmates who played cards with Acheson and Petitioner. According to Petitioner,
these witnesses—Stan Nelson and Billy Lear—“could have testified that [Petitioner] was

MEMORANDUM DECISION AND ORDER - 43

not nervous, and that he never confessed to committing the Wishing Well murder or
getting rid of any evidence.” (Dkt. 275-1 at 52.)
With his reply brief, Petitioner submitted an affidavit from Stan Nelson stating
that he remembers Petitioner talking about getting rid of a gun, “but Nelson’s memory is
that [Petitioner] was discussing his pending charges [on the Shopko incident, not the
murder].” (Dkt. 313 at 28; see also Nelson Aff., Dkt. 313-11, at ¶ 15.) Nelson also claims
that Petitioner “never told anybody, in my presence, that he had anything to do with a
murder” and that Petitioner never got up to change the channel or the volume on the TV.
According to Nelson, other inmates would not have allowed him to disrupt the television
broadcast. (Nelson Aff. at ¶¶ 12, 14.)
The Court concludes as a matter of law that Nelson’s affidavit, based on a 25-year
old memory, is insufficient to establish a substantial IATC claim with respect to trial
counsel’s impeachment of Acheson. Nelson does not aver that he was constantly listening
to Petitioner’s conversations with Acheson or that he constantly paid attention to every
action that Petitioner took. Nelson’s affidavit regarding Petitioner’s lack of a confession
in his presence could diminish Acheson’s credibility only if Nelson was always present
and attentive while Petitioner and Acheson had their conversations. Similarly, Nelson’s
quarter-of-a-century old intuition of how other inmates would have reacted to Petitioner’s
turning down the volume or changing the channel adds no merit to Petitioner’s IATC
claim involving Acheson. When weighed against the substantial impeachment that trial
counsel already achieved, Nelson’s 2014 affidavit does not support a substantial claim

MEMORANDUM DECISION AND ORDER - 44

that Petitioner was prejudiced by trial counsel’s failure to investigate and interview
Nelson, even assuming that trial counsel should have done so.11
The affidavit certainly does not call into question the testimony of the other
inmates, particularly that of Scott Bianchi, who—as explained previously—was found
credible by the state trial court after the court saw and heard Bianchi testify at multiple
evidentiary hearings. The jury did not have to believe all of the inmate snitch witnesses in
order to convict Petitioner, and given that this Court is bound by the state court’s finding
that Bianchi’s trial testimony was true, additional potential impeachment of a different
inmate witness does not support a reasonable inference that, had Acheson been further
impeached, there is a reasonable probability that Petitioner would not have been found
guilty.
For the foregoing reasons, Petitioner is not entitled to a Martinez hearing on his
IATC claim involving Acheson.
e)

Conclusion re: Edson and the Inmate Snitch Witnesses

The case against Petitioner was based almost entirely upon the credibility of the
respective eyewitnesses and inmate informants. Trial counsel impeached Edson, as well
as the inmate snitches, extensively and skillfully; yet the jury still voted to convict. The
members of the jury reasonably could have credited Edson’s testimony notwithstanding
11

During postconviction proceedings, trial counsel testified that the decision not to
investigate the hundreds of inmates who had contact with the snitch witnesses “was not an
efficient use of our resources, our time, and our investigative resources.” (State’s Lodging A-43
at 2000.) Thus, though counsel was unaware of the existence of Stan Nelson and Billy Lear until
trial (id. at 1965), counsel had already recognized the possibility of investigating similar inmates,
but decided to forego that avenue of investigation. It appears that this decision was based on a
reasonable investigative strategy. Strickland, 466 U.S. at 690-91.
MEMORANDUM DECISION AND ORDER - 45

the holes in his story, as they could have credited the testimony of at least one of the
inmate snitch witnesses despite the serious credibility problems presented by each of
those witnesses. That a later court might not be persuaded by Edson’s and the inmates’
testimony from a cold transcript does not call into question trial counsel’s otherwise
reasonable investigation and cross-examination. Trial counsel adequately exposed the
weaknesses in all of these witnesses’ testimony and gave the jurors much to consider
while they decided who was telling the truth. The Constitution requires no more.
The Court has determined that trial counsel’s acts or omissions regarding Edson
and the inmate snitches do not, alone or in combination, present a substantial IATC
claim. Because Petitioner’s IATC claims involving the impeachment of Edson, Bianchi,
Heistand, and Acheson are not substantial (the “prejudice” prong of the Martinez causeand-prejudice inquiry), the Court need not address Petitioner’s claim that initial PCR
counsel, who had previously represented the inmate snitch witnesses, operated under a
conflict of interest and rendered ineffective assistance in failing to raise these IATC
claims in initial postconviction proceedings (the “cause” prong of the Martinez causeand-prejudice inquiry). (See Dkt. 275-1 at 48-49; Dkt. 313 at 58-59.)
ii.

Claims That Trial Counsel Failed To Investigate Other Inmates and
Gather Documents To Gain Information That Could Rebut the Trial
Testimony of Bianchi, Heistand, and Acheson

The second group of claims that Petitioner argues is subject to a Martinez analysis
consists of Claims 3(L) and 3(N) of the Second Amended Petition. Claim 3(L) asserts
that trial counsel rendered ineffective assistance by failing to investigate the inmates who

MEMORANDUM DECISION AND ORDER - 46

were in contact with Acheson, Bianchi, and Heistand before those informants testified at
trial. Claim 3(N) alleges that trial counsel should also have obtained copies of all police
and IDOC documents to gain information that could rebut the testimony of the inmate
informants. Petitioner asserts that these claims are substantial because that information
could have been used to rebut the informants’ testimony and aid “in the presentation of
the case and cross examination of witnesses.” (Dkt. 275-1 at 57.)
As an initial matter, the Court notes that Martinez does not apply to Claim 3(L)—
that Petitioner was denied effective assistance of counsel based on counsel’s failure to
investigate inmates who had contact with the testifying informants. Petitioner raised this
claim in his initial postconviction petition (State’s Lodging A-2 at 201-02, 218-19), but
did not raise it on appeal from the state district court’s dismissal of that petition (State’s
Lodging B-48). Because the narrow exception created in Martinez does not apply to
alleged ineffectiveness of PCR counsel in “appeals from initial-review collateral
proceedings,” it cannot be used to excuse the default of Petitioner’s claim involving
inmates who were in contact with the testifying informants.12 Martinez, 132 S. Ct. at
1320. Thus, Petitioner cannot meet the third prong of the Martinez test, and the Court

12

This failure on the third prong of Martinez as to Claim 3(L) also provides an alternative
basis for rejecting Petitioner’s Martinez argument with respect to Claim 3(F)—trial counsel’s
investigation of inmates who played cards with Acheson, and the newly-procured affidavit of
Stan Nelson.
MEMORANDUM DECISION AND ORDER - 47

need not determine whether Claim 3(L) is substantial13 or whether PCR counsel was
ineffective in failing to raise it in the initial postconviction petition.
With respect to Claim 3(N), Petitioner states only that trial counsel (1) “did not
obtain all reports and notes of all contacts by police and their investigators with inmates
Bianchi, Heistand, Gilcrist, and Acheson, together with documents and notes prepared by
the inmates as well as any and all statements by those inmates, including statements
obtained by the prosecution,” and (2) failed to investigate and obtain police documents
such as “contemporaneous law enforcement notes of the evolving investigation; daily or
supplemental reports from contacts with inmates, witnesses in the community and family
members of the victim; and police leads to potential suspects.” (Dkt. 275-1 at 57-58.)
Although Petitioner states—in a conclusory fashion—that these alleged failures were
prejudicial, he does not explain how that is so. Indeed, Petitioner offers no support for his
claim of Strickland prejudice at all with respect to Claim 3(N). Petitioner states:
In addition, numerous prison documents, showing the
structure of B Tier and its day room, as well as the location of
inmates, policies and procedures, should have been obtained,
as well as housing and transport records relating to the inmate
informants. Numerous police records likewise should have
been obtained to detail the scope and limitations of the
13

Though the Court need not reach the substantiality prong of Martinez with respect to
Claim 3(L), there appears to be no merit to Petitioner’s claim that the decision to forego
investigating the hundreds of inmates who could have had contact with the multiple inmate
snitches was objectively unreasonable. See n.11, supra; see also Strickland, 466 U.S. at 689
(“[The] court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.”) (internal quotation marks omitted). Trial counsel appears to have reasonably
determined how to marshal the limited time and resources available in providing Petitioner a
defense.
MEMORANDUM DECISION AND ORDER - 48

investigation. Fields will seek to discover these records in a
separate motion for discovery and present them at an
evidentiary hearing.
(Dkt. 313 at 57.)
But it is Petitioner’s burden at this stage of the proceedings to support his claim
that his procedurally defaulted IAC claims are substantial and that PCR counsel was
ineffective in failing to raise them. This requires a showing that Petitioner’s claim of
prejudice from counsel’s performance is, at the very least, colorable. See Clabourne, 745
F.3d at 377. Petitioner has simply not attempted to do so. Therefore, Petitioner is not
entitled to an evidentiary hearing on this issue, and Martinez does not excuse the
procedural default of Claim 3(N).
iii.

Claims That Trial Counsel Failed To Raise Police and Prosecutorial
Misconduct Claims under Brady, Giglio, and Napue

Petitioner next asserts that trial counsel was ineffective for failing to move for a
new trial based on the state’s alleged violations of Brady v. Maryland, Giglio v. United
States, and Napue v. Illinois. (Dkt. 275-1 at 45.) These issues are represented in Claim
3(O) of the Second Amended Petition. (Dkt. 271 at 37.)
a)

Standards of Law

The following standards of law are those applicable to the merits of Brady, Giglio,
and Napue claims, and those standards must be considered when determining whether
trial counsel acted ineffectively in failing to raise such claims. The prosecution has a duty
under the Due Process Clause of the Fourteenth Amendment to disclose exculpatory
evidence to the defense that is material to guilt or punishment. Brady v. Maryland, 373
MEMORANDUM DECISION AND ORDER - 49

U.S. 83, 87 (1963); United States v. Bagley, 473 U.S. 667, 676 (1985). In Giglio v.
United States, the Supreme Court held that the prosecutor must also disclose
impeachment evidence. 405 U.S. 150, 153-55 (1972). A meritorious Brady claim
contains three essential components: (1) the evidence must be favorable to the accused,
because it is either exculpatory or impeaching; (2) the prosecution must have withheld
the evidence, either intentionally or inadvertently; and (3) the evidence must be material
to guilt or punishment. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Suppressed evidence is material under Brady and Giglio, and its non-disclosure is
prejudicial, when there is a reasonable probability that had the evidence been disclosed,
the result of the proceeding would have been different. Bagley, 473 U.S. at 682; Kyles v.
Whitley, 514 U.S. 419, 433-34 (1995). In determining materiality, the court must assess
the weight and force of the withheld evidence collectively, rather than item by item.
Kyles, 514 U.S. at 433-34.
In Napue v. Illinois, the United States Supreme Court held that the prosecution (1)
cannot present evidence it knows is false and (2) must correct any falsity of which it is
aware, even if the false evidence bears on the credibility of a witness instead of bearing
directly on the defendant’s guilt or innocence. 360 U.S. 264, 269 (1959). A petitioner
meets the Napue test if he shows that (1) the prosecution knowingly presented (or failed
to correct) false evidence or testimony at trial, and (2) the testimony or other evidence
was material, meaning there is a reasonable likelihood that the false testimony or other

MEMORANDUM DECISION AND ORDER - 50

evidence could have affected the judgment of the jury. See Hayes v. Brown, 399 F.3d
972, 984 (9th Cir. 2005) (en banc).
b)

Substantiality Analysis

In arguing that counsel should have raised Brady, Giglio, and Napue claims,
Petitioner first relies on Salvador Martinez’s testimony, at the evidentiary hearing on
Petitioner’s first motion for a new trial, that Martinez had been informed by the inmate
witnesses that the police had provided them with information about the case to support
their testimony. However, as explained above, the state court found that Martinez’s
testimony was not credible. Specifically, the court noted that Martinez’s testimony
regarding threats he allegedly received was directly contrary to testimony Martinez had
given earlier in a different case. (States’ Lodging A-2 at 146-47.) The court also found
that law enforcement had taken great care to keep all of the inmate informants away from
general population inmates such as Martinez. (Id.) These findings are presumed correct.
28 U.S.C. § 2254(e)(1).
Petitioner also relies on the testimony of inmates Amerson and Marquess, at
Petitioner’s evidentiary hearing on his second motion for a new trial, that Bianchi
admitted lying about Petitioner’s confession, that he had been promised benefits for
testifying, and that he had been shown the case file by Detective Smith. However, the
state district judge, who saw the witnesses’ demeanor and listened to their testimony firsthand, believed Bianchi, who—despite his out-of-court recantations—testified that
nobody told him what to say, fed him any information, or promised him anything in

MEMORANDUM DECISION AND ORDER - 51

exchange for his testimony. See Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074,
1078-79 (9th Cir. 1977) (“All aspects of [a] witness’s demeanor including the expression
of his countenance, how he sits or stands, whether he is inordinately nervous, his
coloration during critical examination, the modulation or pace of his speech and other
non-verbal communication may convince the observing trial judge that the witness is
testifying truthfully or falsely. These same very important factors, however, are entirely
unavailable to a reader of the transcript . . . .”). Petitioner has not shown by clear and
convincing evidence that this Court should disregard the state court’s credibility findings.
See 28 U.S.C. § 2254(e)(1).
The affidavits of Acheson and Gilcrist do not aid Petitioner’s cause either.
Acheson and Gilcrist claimed—years after the trial—that they received benefits in
exchange for testifying and had been fed case information by the police, that Gilcrist lied
at the preliminary hearing, and that the inmate snitch witnesses colluded on how they
would testify falsely.
But Gilcrist and Acheson both told wildly different stories over 20 years ago. The
Court sees no reason why these later statements by Gilcrist and Acheson are any more
credible than their respective testimony at the preliminary hearing, at trial, or during
postconviction evidentiary proceedings. Moreover, Petitioner does not explain how trial
counsel could have discovered before, during, or soon after the trial that Gilcrist and
Acheson would provide testimony stating that police or prosecutors fed information to
the inmates, withheld evidence from the defense, or knowingly failed to correct false

MEMORANDUM DECISION AND ORDER - 52

testimony. Indeed, at that point in time Gilcrist had recently testified for the prosecution
at Petitioner’s preliminary hearing, just as Acheson did during trial. Acheson signed his
most recent affidavit in 2004, and Gilcrist did not decide to recant his preliminary hearing
testimony until after a medical crisis in 2009—much too late for trial counsel, or
postconviction counsel for that matter, to have obtained that evidence in the late 1980s or
the early 1990s. (State’s Lodging G-105, Ex. D; K-126 at 264.)
There is simply no merit to Petitioner’s claim that trial counsel performed
deficiently in failing to raise, under Brady, Giglio, and Napue, claims of “knowing use of
perjured evidence, police misconduct, suppression of exculpatory evidence, and a failure
to correct false testimony.” (Dkt. 275-1 at 53) Petitioner’s underlying IAC claims
regarding these issues are insubstantial, and PCR counsel was therefore not ineffective in
failing to raise those IAC claims in Petitioner’s initial postconviction proceedings. Thus,
the procedural default of these claims is, as a matter of law, not excused under Martinez.
Finally, Petitioner argues that even if trial counsel was not ineffective for failing to
discover and raise police and prosecutorial misconduct claims, traditional cause and
prejudice exist to excuse the default of Petitioner’s independent and substantive claims of
police and prosecutorial misconduct. (Dkt. 313 at 59-60.) However, Petitioner’s only
argument with respect to non-Martinez cause and prejudice is that “[a]ssuming
[Petitioner] can prove the materiality” of those claims, he will also establish prejudice
from the failure to raise those claims. (Id. at 59.) This is insufficient to support a claim

MEMORANDUM DECISION AND ORDER - 53

that Petitioner suffered “actual and substantial” prejudice as required by Frady, 456 U.S.
at 170.
iv.

Claims That Trial Counsel Was Ineffective in Failing to Call Jim
Oetting to Testify after Promising the Jury an Alibi Witness

The next set of IATC claims that Petitioner claims are subject to the Martinez
exception consists of Claims 3(C) and 3(D) of the Second Amended Petition. Those
claims allege that trial counsel rendered ineffective assistance by (1) telling the jury in
opening statement that the defense would call an alibi witness and (2) failing to call that
witness.
Jim Oetting, Petitioner’s roommate, initially told police that Petitioner was home
with him at the time of the murder, watching a television news report about the murder.
Later, however, Oetting stated to the police that it might have been a different day.
Oetting then reviewed the news report that trial counsel had subpoenaed from the
television station and specifically remembered the broadcast, which made Oetting certain
that he and Petitioner had watched it together. During opening statement, Petitioner’s
counsel told the jury Oetting would testify that Petitioner was at home with him at the
time of the murder and that they both watched the noon broadcast of a news report of the
crime. (State’s Lodging A-33 at 871.)
Trial counsel testified during postconviction proceedings that Oetting’s potential
testimony about Petitioner’s alibi was based on the news report Oetting remembered
watching—Oetting saw a video of the broadcast and confirmed that he had seen that
particular broadcast with Petitioner. (State’s Lodging A-43 at 1968-69.) However, during
MEMORANDUM DECISION AND ORDER - 54

trial the television station informed defense counsel that the video Oetting had reviewed
was not, in fact, the broadcast shown at noon on the day of the murder. Rather, it was a
different broadcast and could have been in the evening on the day of the murder or on an
entirely different day. (Id. at 1969.) The television station no longer had the initial
broadcast that aired at noon on the day of the murder and that Oetting used to confirm his
recollection that he was with Petitioner at that time.
Faced with this new information, trial counsel decided not to call Oetting as an
alibi witness. Oetting had previously admitted committing perjury in Petitioner’s trial on
the Shopko assault. When counsel initially thought Oetting had reviewed the correct
video, he was willing to risk Oetting’s prior perjury coming up during his testimony.
After learning that Oetting could no longer confirm his recollection based on viewing the
broadcast, however, counsel decided otherwise. (Id. at 2002-04.) Trial counsel
recognized that not putting Oetting on the stand after having told the jury about an alibi
was a difficult decision, but it was one that he made after serious consideration and
discussion with co-counsel and with Petitioner. (Id. at 2004.)
Although some might consider it best practice for an attorney to avoid promising a
jury that any particular witness will testify, Petitioner’s claim that trial counsel’s actions
in this matter were anything other than rational tactical decisions is insubstantial.
Formulating an alibi defense and preparing the jury for alibi testimony was a reasonable
strategy. Trial counsel’s promise in opening statement ended up being unfulfilled, “but
that shows only that the defense strategy did not work out as well as hoped.” Richter, 562

MEMORANDUM DECISION AND ORDER - 55

U.S. 86, 89 (2011). Deciding to call Oetting as an alibi witness was reasonable, but so
was deciding not to do so once the television station revealed to counsel that the video
Oetting viewed was not the noon broadcast and Oetting’s “recollection of what supported
his alibi[] broke down.” (Id.)
Because circumstances can quickly and drastically change in the middle of trial,
the Court is not persuaded that it was deficient performance for counsel to fail to produce
the promised witness. This is particularly so because here, the reasons for breaking the
promise were not apparent at the time counsel gave the opening statement. See United
States ex rel. Hampton v. Leibach, 347 F.3d 219, 258 (7th Cir. 2003) (finding counsel’s
performance deficient when counsel broke a promise to the jury that the defendant would
testify, where the “potential disadvantages of [the defendant’s] testimony were ones that
would have been obvious from the outset of the case”). Petitioner’s trial counsel could
not have anticipated that the news station would turn over the wrong broadcast in
response to the subpoena, and counsel’s reaction to this unfavorable situation was not
objectively unreasonable given the serious problems with Oetting’s credibility.
Further, any claim that Petitioner was prejudiced by trial counsel’s promise and
later failure to call Oetting is also insubstantial, and PCR counsel’s failure to raise Claims
3(C) and 3(D) was not unreasonable. Oetting had previously committed perjury when he
testified on Petitioner’s behalf in the Shopko trial. Thus, even if Oetting had testified, he
would have been excoriated on cross-examination, particularly once Oetting could no
longer point to the news broadcast as support for his alibi testimony. There is no merit to

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Petitioner’s claim that Oetting’s alibi testimony would have given rise to a reasonable
probability of a different result.
v.

Claims That Sentencing Counsel Failed to Adequately Represent
Petitioner or To Investigate and Prepare Mitigation Evidence

In Claims 3(I), 3(J), and 3(K), Petitioner alleges that counsel did not competently
represent Petitioner at sentencing and failed to adequately prepare and investigate
mitigation evidence to present at the sentencing proceeding. However, Petitioner’s entire
argument with respect to cause and prejudice as to his sentencing IAC claims consists of
the following:
Trial counsel failed to investigate and prepare a thorough life
history of Fields, detailing his difficult life, history of abuse,
institutionalization at a young age, and mental problems. Had
trial counsel investigated Fields’s background and history,
and met with him to explain the evidence that was available
and how it might help him, Fields would have allowed the use
of much of that evidence during the penalty phase. Trial
counsel’s failure to work with Fields on the presentation of a
mitigation case led to an ineffective sentencing presentation.
(Dkt. 275-1 at 59-60 (citations omitted).)
This brief, vague, and generalized argument does not remotely suggest that
Petitioner is entitled to an evidentiary hearing to establish cause and prejudice under
Martinez with respect to a sentencing IAC claim. Petitioner has not made a colorable
argument, supported by specific evidence, that any particular defaulted sentencing IAC
claim is substantial or that initial PCR counsel was ineffective in failing to raise it in state
court. The Court notes that Petitioner has asserted several non-defaulted sentencing
claims (see Dkt. 109, 127), and the Court will address on the merits any sentencing claim
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that was implicitly considered by the Idaho Supreme Court, under Idaho Code § 19-2827
and Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993), overruled on other grounds by
Lambright v. Stewart, 191 F.3d 1181 (9th Cir. 1999) (en banc).
CONCLUSION
After careful consideration, the Court has determined that Petitioner cannot, as a
matter of law, satisfy the Martinez v. Ryan standard for cause and prejudice with respect
to the eleven IAC sub-claims discussed in his Motion. Additionally, the Court will defer
consideration of Petitioner’s request for a Schlup hearing to excuse procedural default
until after resolution of the merits of Petitioner’s non-defaulted claims.
Therefore, Petitioner’s Motion for Evidentiary Hearing to Excuse Procedural
Default will be denied.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Leave to File an Overlength Reply Brief (Dkt. 312)
is GRANTED.

2.

Petitioner’s Motion to Seal (Dkt. 315) is GRANTED. Appendix 17 to
Petitioner’s Reply in Support of Motion for Evidentiary Hearing (Dkt. 314)
shall remain SEALED.

3.

Petitioner’s Motion for Evidentiary Hearing to Excuse Procedural Default
(Dkt. 275) is DENIED. It is denied with prejudice as to Petitioner’s
argument based on Martinez v. Ryan, 132 S. Ct. 1309 (2012). It is denied

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without prejudice as to Petitioner’s argument based on Schlup v. Delo, 513
U.S. 298 (1995). If necessary at a later date, the Court will allow Petitioner
to renew his motion for an evidentiary hearing on his Schlup gateway
claim, and the Court may request further briefing at that time.
4.

The parties have already filed merits briefs in this case. However, to
maintain clarity in the record, the Court will order the parties to file
amended merits briefs. The parties shall set forth in their amended briefs all
of their arguments as to the merits of Petitioner’s non-defaulted claims,
rather than merely incorporating by reference their previous merits briefing.
Because the Court in this next stage of the proceedings will be considering
claims that were adjudicated on the merits in state court, review is limited
to the record that was before the state courts, and no discovery or
evidentiary hearings are permitted with respect to these claims. See
Pinholster, 131 S. Ct. at 1398.

5.

Petitioner shall file an amended brief on the merits of his non-defaulted
claims within 90 days after entry of this Order. Petitioner’s merits brief
shall not exceed 100 pages in length.

6.

Within 90 days after service of Petitioner’s amended merits brief,
Respondent shall file an amended answering brief on the merits. The
answering brief shall not exceed 100 pages in length. Respondent need not
address on the merits any claim that this Court has already determined to be

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procedurally defaulted, but shall simply note the default as to any such
claim and provide a citation to the Court’s decision concluding that the
claim is defaulted. With respect to the new claims and sub-claims raised for
the first time in Petitioner’s Second Amended Petition, Respondent may
choose to argue that those claims are subject to summary dismissal, instead
of—or in addition to—addressing the merits of the claims. Respondent
need not file a separate motion for summary dismissal of such claims. If
Respondent argues only for summary dismissal of these new claims and the
Court later determines that such claims will not be summarily dismissed,
the Court will grant the parties an additional opportunity to address the
merits of those claims.
7.

Within 30 days after service of Respondent’s amended answering brief,
Petitioner shall file an amended reply brief on the merits. The reply brief
shall not exceed 50 pages in length.

8.

Any brief filed by either party throughout the remainder of this
litigation must contain separate sections for each habeas claim
discussed, and each section heading shall specify which particular
claim is addressed in that particular section of the brief.

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SO ORDERED.

DATED: March 31, 2015

_________________________
Edward J. Lodge
United States District Judge

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