Row v. Beauclair

Filing 600

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Motion for Leave to File Excess Pages 598 is GRANTED. Petitioner's Amended Motion to Alter or Amend Judgment 572 is granted in part and denied in part. A stipulation and notice of any issues of scheduling or application of the law that is to be applied to any aspect of the hearing upon which the parties could not agree shall be filed within 60 days after entry of this Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBIN LEE ROW,
Petitioner,
vs.

Case No. 1:98-cv-00240-BLW
MEMORANDUM DECISION AND
ORDER

THOMAS J. BEAUCLAIR, et al.,
CAPITAL CASE
Respondents.

Pending before the Court in this capital habeas corpus case is Petitioner Robin Lee
Row’s Rule 59(e) Amended Motion to Alter or Amend the Judgment (Dkt. 572), which
supersedes her earlier Motion to Alter or Amend the Judgment (Dkt. 547). The motion is
fully briefed and ripe for adjudication. (Dkt. 583, 592, 597.) For the reasons that follow,
the Court enters the following Order granting in part and denying in part the Amended
Motion to Alter or Amend the Judgment.
BACKGROUND AND SUMMARY OF CLAIMS AT ISSUE
An Order and Judgment denying habeas corpus relief in this case were entered on
August 29, 2011. (Dkt. 545.) On the twenty-eighth day after judgment was entered,
September 26, 2011, Row filed a Motion to Alter or Amend Judgment requesting, among
other relief, that the Court retain this case until the United States Supreme Court issued
MEMORANDUM DECISION AND ORDER - 1

its decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). After Martinez, the United States
Court of Appeals for the Ninth Circuit issued a decision that is particularly relevant to
Row’s reconsideration request, Dickens v. Ryan, 740 F.3d 1302, 1318-19 (9th Cir. 2014)
(en banc), which held that an inadequately supported claim that was decided on the
merits in state court can become a “new” procedurally defaulted claim on federal habeas
review if the petitioner tries to offer new evidence that changes the factual basis of the
claim such that it has become “fundamentally altered.” Id. at 1318-19.
Row asks the Court to apply the Martinez exception to several of her claims, to
permit them to be heard on the merits de novo. Row’s Martinez claims can be divided
into two categories: (1) claims that this Court determined to be procedurally defaulted
because they were either not presented to the state courts for adjudication at all or were
not presented in a procedurally proper way; and (2) fundamentally altered claims that are
in theory the procedurally defaulted companions to those inadequately supported claims
that were decided on the merits. (Dkt. 583, pp. 3-5.)
The claims at issue are as follows:
1. Claims Determined to be Procedurally Defaulted (deemed “Mitigation Claims”
by Row)
A. Claim 7 ¶80(h), “Counsel failed to secure adequate testing concerning the brain
damage that could have affected petitioner’s ability to control her behavior,
[thus undermining] the finding of petitioner’s guilt.” (Dkt. 293, p. 23.) (This is
the only guilt-phase claim raised.)

MEMORANDUM DECISION AND ORDER - 2

B. Claim 7 ¶ 81(a), “Failure to prepare, develop and present a coherent sentencing
strategy.” (Dkt. 293, p. 25.)
C. Claim 7 ¶ 81(f), “Failure to investigate and present defenses and mitigating
circumstances surrounding uncharged criminal activity presented during the
trial and at sentencing.” (Dkt. 293, p. 25.)
D. Claim 7 ¶ 81(g), “Failure to research Eighth Amendment jurisprudence as it
applies to the preparation and presentation of evidence in mitigation.” (Dkt.
293, p. 25.)
E. Claim 7 ¶81(h), “Failure to investigate, develop and present evidence rebutting
aggravating evidence considered by the trial court.” (Dkt. 293, p. 25.)
2. Fundamentally-Altered Companion Claims to Those This Court Decided on the
Merits (deemed “Inadequately Presented Claims” by Row)
A. Claim 7 ¶ 81(b), “Failure to make an independent investigation of matters in
mitigation.” (Dkt. 293, p. 25.)
B. Claim 7 ¶ 81(d), “Failure to timely retain a qualified mental health expert to
address the issues of mental health clearly apparent from Petitioner’s case.”
(Dkt. 293, p. 25.)
C. Claim 7 ¶ 81(e), “Failure to retain a qualified neuro-psychiatrist to conduct
appropriate medical testing regarding the apparent organic brain damage
revealed by CT scans taken of Petitioner revealing an atrophy of the brain.”
(Dkt. 293, p. 25.)

MEMORANDUM DECISION AND ORDER - 3

D. Claim 7 ¶ 81(n), “Permitting an unqualified mental health expert and his
assistant to engage in unreliable techniques of memory re-enhancement,
including hypnosis.” (Dkt. 293, p. 26.)
E. Claim 7 ¶ 81(o), “Failure to research and comprehend the reported results of a
psychological evaluation performed by an unqualified person and permitting
presentation of a diagnosis of Petitioner as suffering from a condition called
alexithymia which was not supported by fact, law, medicine, science or
accepted standards of psychological principles.” (Dkt. 293, p. 26.)
F. Claim 7 ¶ 81(p), “Permitting Petitioner to make a statement in allocution
without knowing that the statement would be making incriminatory
admissions, based upon unqualified, unreliable memory enhancement.” (Dkt.
293, p. 26.)
G. Claim 7 ¶ 81(s), “Permitting the defense-retained psychologist to engage in
practices likely to elicit a false confession from Petitioner and permitting
Petitioner to be bullied into making that confession in allocution at sentencing
which wholly undermine the theory of defense presented at trial.” (Dkt. 293, p.
27.)1

1

Row also included Claim 7 ¶ 83 in her Amended Motion to Alter or Amend the Judgment. (Dkt. 572, p. 3.)
This “claim” is actually a recitation of items supporting the second prong of Strickland, prejudice, intended to
support the first prong, deficient performance. The Court will not separately address Claim 7 ¶83 because it does not
appear to be a separate claim and is subsumed in the other claims addressed herein. To the extent it is beyond the
scope of the claims asserted in the Amended Motion to Alter or Amend (Dkt. 583) (Claim 7, ¶¶80-81) , the Court
considers this claim to be withdrawn for lack of briefing, or alternatively denies the claim due to failure to show
substantiality.

MEMORANDUM DECISION AND ORDER - 4

GOVERNING STANDARDS OF LAW
1. Martinez v. Ryan
Martinez v. Ryan worked a “remarkable” equitable change in the law governing
procedurally defaulted ineffective assistance of counsel claims. See Lopez v Ryan, 678
F.3d 1131, 1136 (9th Cir. 2012). Martinez altered the long-standing prohibition of
Coleman v. Thompson, 501 U.S. 722 (1991), that post-conviction counsel’s
ineffectiveness could not be used to excuse the procedural default of a claim. In effect,
Martinez created the potential for an exception to the overall ban on new evidence in §
2254 actions that was pronounced in Cullen v. Pinholster, 131 S.Ct. 1388 (2011)
(interpreting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)).
Martinez makes it possible for procedurally defaulted ineffective assistance of trial
counsel claims to be heard de novo, with new supporting evidence, on federal habeas
corpus review. See Dickens v. Ryan, 740 F.3d at 1320 (“We reject any argument that
Pinholster bars the federal district court’s ability to consider Dickens’s ‘new’ IAC
claim.” In addition, “Pinholster says nothing about whether a court may consider a ‘new’
claim, based on ‘new’ evidence not previously presented to the state courts.”).2
In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the United States Supreme Court
clarified that the Martinez/Coleman “cause” test consists of four necessary prongs. The

2

The United States Court of Appeals for the Ninth Circuit has also determined that Martinez applies to
ineffective assistance of direct appeal counsel claims. Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir. 2013).
However, Row has not included any such claims in her Amended Motion to Alter or Amend, which supersedes her
previous Motion to Alter or Amend.

MEMORANDUM DECISION AND ORDER - 5

failure to meet any prong means that the Martinez exception is unavailable to excuse the
procedural default of a claim. See Martinez, 132 S.Ct. at 1319.
A. First Prong of Martinez/Coleman “Cause”—Substantial Ineffective
Assistance of Counsel Claim
First, a petitioner must bring forward facts demonstrating that his ineffective
assistance of counsel (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
(comparing the standard for certificates of appealability from Miller–El v. 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 under Strickland 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
MEMORANDUM DECISION AND ORDER - 6

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.
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. 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.
MEMORANDUM DECISION AND ORDER - 7

These standards from Strickland for determining deficient performance and
prejudice, are, of course, the standards for an eventual review of the merits of the IAC
claim. The first Martinez prong is not the same as a merits review, but, as the Martinez
Court explained, 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 (comparing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under this
standard, 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 among jurists
of reason,” or that the issues presented are “adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336.
B. Second Prong of Martinez/Coleman “Cause”—Post-Conviction Review
Counsel is Constitutionally Ineffective
Second, a petitioner must demonstrate that he had no counsel on initial postconviction review, or that post-conviction review (PCR) counsel was “ineffective under
the standards of Strickland,” which includes a showing of deficient performance and a
reasonable probability of prejudice caused by the deficient performance. Martinez, 132
S.Ct. at 1318; see Strickland, 466 U.S. at 694, 700.
1) Deficient Performance
Not just any error or omission of PCR counsel will be deemed “deficient
performance” that will satisfy Martinez. If the PCR “attorney in the initial-review
collateral proceeding did not perform below constitutional standards,” the PCR attorney’s
performance does not constitute “cause.” Martinez, 132 S.Ct. at 1319.
MEMORANDUM DECISION AND ORDER - 8

2) Prejudice
As to prejudice, the petitioner must show that, if PCR counsel would not have
performed deficiently, the result of the post-conviction proceedings would have been
different. Clabourne v. Ryan, 745 F.3d 362, 376-77 (9th Cir. 2014) (cumulating all
opinions from Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc plurality
opinion)). That determination “is necessarily connected to the strength of the argument
that trial counsel’s assistance was ineffective.” Id. at 377-78.
3) No Additional Coleman “Actual Prejudice” Showing is Required
Once a petitioner has met Prong 1, a showing of substantiality of the merits of the
underlying IAC claim (deficient performance of trial or direct appeal counsel plus
prejudice), and Prong 2, that PCR was ineffective (deficient performance plus prejudice
in the PCR action), the Coleman “cause” is met. Clabourne, 745 F.3d at 378. Coleman
“actual prejudice” is met by a showing of substantiality of the merits of the underlying
IAC claim (Prong 1 of the “cause” test). Id. at 377.
C. Prong 3—Initial State Collateral Review Proceeding
Prong 3 of the Martinez/Coleman test is that the state collateral review proceeding
must have been the “initial” post-conviction review proceeding where the IAC claim
could have been raised. Trevino, 133 S.Ct. at 1918 (citing Martinez, 132 S.Ct. at 1318–
19, 1320–21). In other words, the post-conviction proceeding must have been “the
equivalent of a prisoner’s direct appeal” for the IAC claim. Martinez, 132 S.Ct. at 1317.
A petitioner may not use as cause attorney error that occurred in “appeals from initial-

MEMORANDUM DECISION AND ORDER - 9

review collateral proceedings, second or successive collateral proceedings, and petitions
for discretionary review in a State’s appellate courts.” 132 S.Ct. at 1320.
D. Prong 4—State Law Requires IATC Claims to be Brought in Initial State
Collateral Review Proceeding
Prong 4 of the Martinez/Coleman test is that state law must require (by law or by
reason of design and operation) that an ineffective assistance of trial counsel or appellate
counsel claim be raised in an initial-review collateral proceeding. Trevino, 133 S.Ct. at
1918, 1921. In Idaho, the post-conviction setting is the “preferred forum for bringing
claims of ineffective assistance of counsel,” although in limited instances such claims
may be brought on direct appeal “on the purported errors that arose during the trial, as
shown on the record” (as opposed to matters arising outside the record). Matthews v.
State, 839 P.2d 1215, 1220 (Idaho 1992).
2. Post-Judgment Martinez Motions
The Federal Rules of Civil Procedure apply in habeas corpus proceedings only “to
the extent that they are not inconsistent with any statutory provisions or [the Rules
Governing Section 2254 Cases].” Rule 12, Rules Governing § 2254 Cases; see also Fed.
R. Civ. P 81(a)(4). The Supreme Court has not addressed whether or how Rule 59(e) is to
be applied in federal habeas corpus cases subject to AEDPA, but it has addressed Rule
60(b) in that context.
A. Rule 60(b) and 28 U.S.C. § 2244 (the Successive Petitions Bar)
Habeas corpus law is clear that all claims arising from a particular state court
judgment must be brought in a single federal habeas corpus petition; otherwise, the
MEMORANDUM DECISION AND ORDER - 10

claims may be barred, or may be brought only after a petitioner secures authorization
from the United States Court of Appeals to file a second or successive petition. 28 U.S.C.
§ 2244(a)-(b). In Gonzalez v. Crosby, 545 U.S. 524, 532 (2005), the Supreme Court
determined that, as a result of § 2244’s successive petitions rule, a Rule 60(b) postjudgment motion that seeks to present newly discovered evidence, that seeks to add a
new ground for relief, that attacks the resolution of a claim on the merits, or that seeks to
vacate the judgment because of a subsequent change in substantive law going to the
merits decision is subject to § 2244. 545 U.S. at 531. However, Gonzalez emphasized that
a petitioner may use Rule 60(b) when she “merely asserts that a previous ruling which
precluded a merits determination was in error-for example, a denial for such reasons as
failure to exhaust, procedural default, or statute-of-limitations bar.” 545 U.S. at 532 n.4.
B. Rule 60(b), 28 U.S.C. § 2244, and Martinez
Gonzalez, clarifying the intersection of Rule 60(b) and § 2244, was issued many
years before Martinez v. Ryan. After Martinez was decided, the United States Court of
Appeals for the Ninth Circuit issued several opinions clarifying whether petitioners could
bring Rule 60(b) post-judgment motions to reconsider or consider anew procedurally
defaulted claims subject to Martinez, without running afoul of §2244.
In Jones v. Ryan, 733 F.3d 825, 836 (9th Cir.), cert. denied, 134 S.Ct. 503 (2013),
the Ninth Circuit Court of Appeals clarified: “Gonzalez firmly stands for the principle
that new claims cannot be asserted under the format of a Rule 60(b) motion, and instead
Rule 60(b) is properly applied when there is some problem going to the integrity of the
court process on the claims that were previously asserted.” Jones, 733 F.3d at 836. In that
MEMORANDUM DECISION AND ORDER - 11

case, Jones was trying to take advantage of Martinez to assert in a Rule 60(b) motion new
claims that had not been asserted in his federal habeas corpus petition. The Ninth Circuit
explained that, “the rule announced in Gonzalez, that a valid Rule 60(b) motion ‘attacks
... some defect in the integrity of the federal habeas proceedings,’… must be understood
in context generally to mean the integrity of the prior proceeding with regard to the
claims that were actually asserted in that proceeding. ‘That [Jones] did not raise in his
first [habeas] proceeding the claim[s] he wants to raise here does not render the
adjudication of the claims that he did raise suspect.’” Id. at 836 (citation omitted).
In Lopez v. Ryan, 678 F.3d 1131 (9th Cir. 2012), the Ninth Circuit determined that
Gonzalez permits a petitioner to raise the Martinez exception with regard to a
procedurally defaulted claim in a Rule 60(b) motion. The Ninth Circuit declined to
address Lopez’s argument that it should expand the Martinez exception from postconviction counsel’s failure to raise a claim, to failure to develop the factual basis of a
claim. Id. at 1137. Instead, the court merely “note[d] tension” between that theory and
Cullen v. Pinholster,3 and then determined that the underlying ineffective assistance of
trial counsel claim was insubstantial. Id. at 1137-39.

3

Pinholster also left this question unresolved. The Pinholster majority declined the invitation to decide
where to draw the line between new claims and claims adjudicated on the merits, but suggested that new evidence
brought forward to supplement a claim decided on the merits could “present a new claim.” 131 S.Ct. at 1401 n.10.
The Court did not resolve the parties’ dispute over whether new evidence rendered a claim unadjudicated (the
State’s position) or whether new evidence should be deemed mere support for a properly exhausted claim (the
convicted felon’s position). Id. at 1402 n.11. Interestingly, after Martinez, the positions of the parties on ineffective
assistance of trial counsel claims often are reversed.

MEMORANDUM DECISION AND ORDER - 12

C. Martinez and Fundamentally-Altered Claims in the Pre-Judgment Context
In Dickens v. Ryan, the Ninth Circuit addressed the question left open in Lopez,
although not in a post-judgment motion setting. In state court, Dickens had presented a
conclusory or “naked” Strickland claim without sufficient factual support—simply “that
sentencing counsel did not effectively evaluate whether Dickens suffer[ed] from any
medical or mental impairment.” 740 F.3d at 1319. In his federal petition, Dickens
“substantially improved” or “fundamentally altered” the “evidentiary posture” of this
claim by asserting that his attorney failed to discover that Dickens suffered from Fetal
Alcohol Syndrome (FAS) and organic brain damage. Id.
Having asserted only the fundamentally altered claim in his federal petition,
Dickens was faced with a motion to dismiss on grounds of procedural default. The
federal district court granted the motion to dismiss, and on appeal Dickens asserted that
Martinez provided him with a new path for his procedurally claim to be heard. The
Dickens Court concluded that, notwithstanding the fact that the Arizona courts had
adjudicated the original inadequately raised claim on the merits, Dickens could proceed
to a Martinez hearing on the claim that Dickens’s trial counsel was ineffective at
sentencing for failing to raise the FAS and organic brain damage facts as a defense,
because it was a “fundamentally altered” claim that was different from the claim that had
been decided on the merits. Id. at 1319. Dickens further instructed that § 2254(e)(2) did
not bar the federal court from hearing new evidence in the Martinez hearing. Id. at 132122.

MEMORANDUM DECISION AND ORDER - 13

D. Title 28 U.S.C. § 2244, Martinez, Rule 59(e), and Fundamentally Altered
Claims
The foregoing cases do not completely address how to handle Row’s claims,
which add the new elements of (1) a Rule 59(e) context and (2) fundamentally altered,
procedurally defaulted claims that are companion claims to the “naked” Strickland claims
decided on the merits in both state court and in this federal habeas corpus action.
The circuits are split on the issue of whether §2244 and Gonzalez apply to Rule
59(e) motions. The Fifth, Eighth, Tenth, and Fourth Circuits have determined or implied
that a Rule 59(e) motion should be treated as a second or successive petition if it in
substance challenges the same conviction or sentence. See Williams v. Thaler, 602 F.3d
291, 303–04 (5th Cir. 2010); Ward v. Norris, 577 F.3d 925, 931–35 (8th Cir. 2009);
United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006); United States v. Martin,
132 Fed.Appx. 450, 451 (4th Cir. 2005) (unpublished pre-Gonzalez decision reaching the
same conclusion as Gonzalez). The Third and Sixth Circuits have concluded that §2244
and Gonzalez do not apply to timely filed Rule 59(e) motions. See Blystone v. Horn, 664
F.3d 397, 414–15 (3d Cir. 2011); Howard v. United States, 533 F.3d 472, 475 (6th Cir.
2008). All of these cases were issued before Martinez.
The Ninth Circuit has not yet decided the question of whether Gonzalez
(interpreting §2244 in the 60(b) context) applies to Rule 59(e) motions, or how Martinez
affects that question. Within the Ninth Circuit, the United States District Court for the
Western District of Washington has determined that the Third and Sixth Circuit’s
reasoning and conclusions are true to the distinctions between Rule 59(e) and Rule 60(b)
MEMORANDUM DECISION AND ORDER - 14

and do not transgress § 2244’s principles. See Rishor v. Ferguson, --- F.Supp 3d ---, 2014
WL 6862506 (W.D Wash. 2014). Rishor did not address Martinez, but this Court agrees
that Rule 59(e) can be applied without transgressing 28 U.S.C. §2244 (the successive
petitions bar), with or without a Martinez question.
There is good reason two different post-judgment motion rules exist—although the
modern distinction between the two stems, not from which Rule the motion is brought
under, but from whether the motion was filed within 28 days of judgment. See American
Ironworks & Erectors, Inc. v. North American Const. Corp., 248 F.3d 892, 898-99 (9th
Cir. 2001) (explaining rules under former 10-day time period). A motion for
reconsideration filed within 28 days of judgment suspends finality of the judgment and
tolls the time for appeal until the motion is resolved. See Fed. R. App. P. 4(a)(4)(A).
Motions filed after 28 days—regardless of their designation under 59(e) or 60(b)—face a
tougher reconsideration battle because the judgment has become final.
The United States Supreme Court has explained that Rule 59(e) was adopted “‘to
mak[e] clear that the district court possesses the power’ to rectify its own mistakes in the
period immediately following the entry of judgment.” White v. New Hampshire Dep't of
Employment Sec., 455 U.S. 445, 450 (1982) (citing 1946 Amendment Advisory
Committee Notes to Rule 59(e)). This rule serves judicial economy: if the district court
can fix its own errors, thereby obviating the time and expense of an appeal, the court
should be permitted to do so. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau,
Inc., 690 F.2d 1240, 1249 (9th Cir. 1982).

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Title 28 U.S.C. § 2244, the successive petitions bar, as interpreted by Gonzalez,
prohibits petitioners from using Rule 60(b) post-finality motions to add a new ground for
relief or attack the court’s previous resolution of a claim on the merits. On the other hand,
because Rule 59(e) is a pre-finality rule, its purpose permits a petitioner to assert that a
judgment on the merits should be altered, amended, or vacated because there was an error
in the judgment that can be corrected during the 28-day time period while the judgment is
suspended. See Howard, 533 F.3d at 475 (“If the holding of Gonzalez applied to Rule
59(e) motions, it would almost always be effectively impossible for a district court to
correct flaws in its reasoning, even when the problems were immediately pointed out and
could be easily fixed by that court,” without the petitioner having to resort to applying for
permission to the court of appeals). While Rule 59(e) suspends the finality of the
judgment, a Rule 60(b) motion is filed after finality occurs and is thus “a collateral attack
on a judgment, which is to say an effort to set aside a judgment that has become final.”
Id. at 474.
Suspending the finality of a challenged judgment does not mean that Rule 59(e)
provides a 28-day “open season” on that judgment. While a Rule 59(e) motion to alter or
amend a judgment may be used to substantively challenge a court’s entry of judgment, it
“may not be used to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554
U.S. 471, 485 n. 5 (2008). A Rule 59(e) motion should not be granted unless there is a
showing of highly unusual circumstances, such as when the district court is presented
with newly discovered evidence, the court committed clear error, there is an intervening
MEMORANDUM DECISION AND ORDER - 16

change in the controlling law, or the decision was “manifestly unjust.” Ybarra v.
McDaniel, 656 F.3d 984, 998 (9th Cir. 2011). The law is well-settled that
“reconsideration of a judgment after its entry is an extraordinary remedy which should be
used sparingly.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999).
This Court concludes that Rule 59(e), with its narrow application, does not
transgress the purposes of § 2244—that habeas corpus petitioners must bring all of their
claims in one, and only one, petition, absent authorization from the circuit court. The
limitations of Rule 59(e) prohibit a habeas petitioner from bringing new claims in a Rule
59(e) motion under the guise of Martinez; rather, a petitioner must make a showing that
she had raised the claims in her habeas corpus petition prior to judgment. Neither may a
petitioner challenge adjudication of claims decided on the merits unless the district court
is presented with newly discovered evidence, the court committed clear error, there is an
intervening change in the controlling law, or the decision was “manifestly unjust.” These
limitations on the use of a Rule 59(e) motion act as a gatekeeper against new claims
during the 28-day time period; § 2244 acts as a gate-keeping mechanism after the 28-day
time period expires. The Court concludes that the Martinez exception qualifies as a Rule
59(e) “intervening change in the controlling law,” and otherwise fits within the
procedural bounds exempted by § 2244 as interpreted by Gonzalez, 545 U.S. at 532 n. 4,
thereby permitting a Court to revisit a procedural default judgment, subject to the
limitations of Rule 59(e).
The slightly different question inherent in Row’s reconsideration motion is
whether Dickens permits a petitioner to use a Rule 59(e) motion to raise Martinez by
MEMORANDUM DECISION AND ORDER - 17

creating a procedurally defaulted companion claim based on Pinholster-barred
supplemental facts from the fully exhausted but inadequately raised claim that was
decided on the merits by the state and federal courts. By definition, such a Martinez claim
must be a fundamentally altered claim that is in a “significantly different and stronger
evidentiary posture” than it was when the state courts considered the merits of the
original claim. Dickens, 740 F.3d at 1318. The Court concludes that Dickens permits a
Petitioner to create a fundamentally altered and procedurally defaulted claim from a
merits-decided claim for Martinez purposes in a Rule 59(e) motion, so long as (1) the
significantly different and stronger evidentiary posture of the claim was presented in the
habeas corpus petition prior to entry of judgment (whether as a separate companion claim
or as an additional factual basis for a properly-exhausted claim), and (2) the resulting
procedurally defaulted claim is actually fundamentally different from the one decided on
the merits by the federal district court.
DISCUSSION
1. Fundamentally Altered Claims
Row alleges that her first post-conviction counsel raised ineffective assistance of
trial counsel claims in a conclusory and inadequate manner in the first state postconviction proceeding. In the second state post-conviction proceeding, Row presented
them as fundamentally altered claims, bolstered by new supporting evidence (including
expert witness affidavits), together with other new claims arising from the new
supporting evidence. The Idaho Supreme Court refused to address the claims, because
they could have been brought during the first post-conviction action, resulting in their
MEMORANDUM DECISION AND ORDER - 18

default in state and federal court. In her Second Amended Petition for Writ of Habeas
Corpus, Row presented the claims in a hybrid manner, as permitted by the status of the
law at that time period—as properly exhausted claims, but supplemented with the new
evidence that the state courts had refused to hear. She also included in the Second
Amended Petition the allegation that post-conviction counsel had been ineffective for
failing to properly present the new evidence on state post-conviction review. (Dkt. 293.)
The Court earlier concluded that Row could proceed on the properly exhausted claims,
and could attempt to persuade the Court to allow her to present the new evidence in
federal court. However, Pinholster intervened to prevent the Court from hearing the
original claim with the new evidence.
For application of Martinez and Dickens in the Rule 59(e) context, the Court finds
no substantial difference among any of the ways a petitioner chose to bring her claims in
her petition at a time when Martinez, Dickens, and Pinholster did not exist: (1) as only a
fundamentally altered and procedurally defaulted claim (as in Dickens); (2) as two
separate claims (one exhausted and one fundamentally altered and procedurally
defaulted); or (3) as a single exhausted claim with an attempt to supplement it with
substantially improved evidence (now prohibited by Pinholster). Because Row raised the
original claims plus the additional evidence in her Second Amended Petition before
judgment was entered, the Court concludes that it is appropriate to construe Petitioner’s
Second Amended Petition as presenting alternative claims (original and fundamentally
altered), to the extent that the procedurally defaulted claim is fundamentally different
from the original merits-decided claim.
MEMORANDUM DECISION AND ORDER - 19

Therefore, the Court will consider whether each of Row’s merits-decided claims
at issue in her motion can be separated into two fundamentally different claims. To the
extent a claim is different and potentially substantial, the Court will permit Row to
proceed to a Martinez hearing. To the extent that a claim is not fundamentally different
from the claim this Court adjudicated on the merits, or is not substantial, she will not be
permitted to proceed. The Court’s analysis of the claims at issues in the remainder of this
Order will follow a substance-related rather than a chronological outline.
2. Row’s State Court Representation
Row was represented by Ada County Public Defenders August Cahill and Amil
Myshin at trial and sentencing. On direct appeal and during the first post-conviction
action, Row was represented by John Adams and Ralph Kehne, whose office had a
conflicts contract with the Ada County Public Defender at that time. (Petitioner’s Fifth
Supplemental Lodging, Exhibit 5, Deposition of John Adams, p. 8.)
3. Claim 7 ¶ 81(b), “Failure to make an independent investigation of matters in
mitigation.”
In its previous Order, this Court concluded that Claim 7 ¶ 81(b) – that trial counsel
failed to make an independent investigation of matters in mitigation – was raised and
adjudicated in state court in the first post-conviction action and was not procedurally
defaulted. (Dkt. 417, p. 13.) As a result, the Court considered and denied this claim on the
merits. (Dkt. 545. pp. 37-50.)

MEMORANDUM DECISION AND ORDER - 20

A. The Claim Has Been Fundamentally Altered
Row’s substantially improved evidence that the state district court did not hear
before adjudicating the mitigation investigation claim includes the following. In 2001,
Dr. James Merikangas, a medical doctor specializing in neurology and psychiatry,
reviewed Row’s CT scans, obtained MRI and SPECT scans, and conducted a
neurological examination of Row. Dr. Merikangas concluded that Row has cerebellar
atrophy or cerebellar hypoplasia and cortical atrophy. He also believes that “[t]his
organic condition has the probable neuropsychiatric outcome of reducing [Row’s] ability
to control her behavior and under conditions of emotional distress may have affected her
ability to appreciate the wrongfulness of her behavior.” (Dr. James Merikangas
Declaration, Dkt. 442.)
Dr. Merikangas further opined that, “[i]n regard to the question of whether Robin
Row has antisocial personality disorder, it should be noted that having an organic brain
dysfunction is one of the conditions that must be ruled out before making a diagnosis of
antisocial personality disorder.” (Merikangas Declaration, Dk. 442.) Dr. Merikangas
specifically identified the symptoms of organic brain dysfunction as “poor impulse
control, lack of empathy, manipulation, pathological lying, paranoia, histrionic style and
chronic depression.” (Id.) He also identified involuntary behavioral manifestations
including poor judgment, poor executive function, and poor impulse control.” (Id.)
Because the state courts did not evaluate this new evidence when they considered
Row’s mitigation investigation claim in the first post-conviction action, the Court
concludes that this claim qualifies as a fundamentally altered, procedurally defaulted
MEMORANDUM DECISION AND ORDER - 21

claim regarding trial counsel’s failure to make an independent investigation of matters in
mitigation, only to the extent that it relates to the organic brain disfunction defense in the
sentencing phase of trial. Row may not relitigate in a Rule 59(e) motion the aspects of the
mitigation investigation claim already decided by this Court on the merits.
B. First Prong of Martinez—Substantiality—Whether Trial Counsel
Performed Deficiently and Whether Row’s Defense was Prejudiced
For the following reasons, the Court concludes that Row may proceed to a
Martinez hearing to attempt to show substantiality of her mitigation investigation claim.
The record shows that the defense lawyers,4 the prosecutor,5 the sentencing judge,6 and
the mental health professionals7 were all generally aware that behavior typically leading

4

In cross-examining Dr. Engle about what causes a person to have a sociopathic personality, trial counsel’s
question implied that he understood a “neurological thing” or a “chemical imbalance” could be a contributing factor.
(State’s Lodging A-6, pp. 3931-33.)
5

To justify imposition of the death penalty at sentencing, the prosecutor made the following specific points:
The second thing that I find significant is the psychological testing
results that have come before the court as part of sentencing. The – the 1982
MMPI results that we have, while somewhat abbreviated, and of course we
don’t have the testing material there, indicate that she will have – or predicts that
she will have effective judgment, unacceptable behavior. . . .
Ten years later or eleven years later the 1983 MMPI shows that she is a
sociopath…. And basically she tests the same way the general criminal
population tests. That she has – that she doesn’t have some mental disease or
defect, but that she is a sociopath.

(State’s Lodging A-6, pp. 3979-80 (emphasis added).)
6

As mitigating factors, the sentencing judge took in to consideration Row’s “mental, psychological and
personality problems,” including that her “‘alexithymic’ condition may be related to some organic problem with
brain functioning.” (Id., pp. 8-9.) (Findings of the Court in Considering Death Penalty and Imposition of Sentence,
p. 13.)
7

Trial counsel’s question to Dr. Norman on direct examination regarding treatment options for Row drew
out Dr. Norman’s knowledge of an organic basis to behaviors. Dr. Norman testified:
There’s [sic] different theories about how to treat. They refer to it now as
primary and secondary. Primary is more neurological I guess where they know
that there’s this part of the brain, either the corpus callosum or lower part of the

MEMORANDUM DECISION AND ORDER - 22

to a sociopathic diagnosis can have a physiological basis. Row asserts that that there was
not enough evidence in the record at sentencing to show that Row had an organic brain
issue, and that further evidence would have been able to explain some of her sociopathictype behavior and would have resulted in a different sentence. For example, some of the
aggravating factors the sentencing court found, such as that Row had “utter disregard for
human life,” meaning a “lack of conscientious scruples,” and that she was a “pathological
liar who will bend and distort the truth and reality to suit her own purposes,” share a
common basis with organic brain dysfunction symptoms. (Compare Findings of the Court
in Considering Death Penalty and Imposition of Sentence, pp. 8-10, with Dr. James
Merikangas Declaration, Dkt. 442.)
The present record inadequately addresses the relationship, if any, between the
organic brain dysfunction and the extensive evidence of motive and planning that led the
sentencing court to reject the suggestion that Row’s mental, emotional, or organic issues
caused her to act involuntarily. In weighing the aggravating and mitigating
circumstances, the court noted that “Row was rational in the sense that any rational

brain has been affected. Secondary not that it’s less, but it’s social through
trauma or PTSD or, you know, extreme – an extremely dramatic event could
cause somebody to go into this state.
(State’s Lodging A-6, pp. 3872-3873.)
Dr. Beaver did not testify at trial, but his testimony at the post-conviction hearing reflected his
understanding that an organic brain disorder may have a role in sociopathic-like behavior. (State’s Lodging B-12,
pp. 128-29.) On cross-examination, Dr. Beaver said that there would need to be further testing and analysis done to
“say whether or not those abnormalities in emotionality are more related to her social, developmental and genetic
history versus some organically induced condition or some combination thereof.” (Id., p. 131.)

MEMORANDUM DECISION AND ORDER - 23

person would know and intend that the logical consequences of setting the fires would be
the deaths of the sleeping victims.” (Id., p. 15.)
A key question for the Martinez hearing is whether any prejudice arose from the
failure to bring forward additional physiological evidence because of the extensive
evidence of motive and planning. The ability to plan, for example, is one of the factors
medical experts and jurists have used to reject a theory that an organic brain problem is
compelling enough to affect findings of mens rea, mitigation, or aggravating factors. See,
e.g., Commonwealth v. Massachusetts, 440 Mass. 234, 244, 797 N.E.2d 371, 378 (Mass.
2003) (“where there were multiple expressions of an intent to kill and unmistakable
indicia of planning (references to insurance, cremation, taking the whole family with
him), expert opinion that the defendant was incapable of intending or premeditating what
he obviously did was unlikely to create a reasonable doubt”).
The evidence at trial tended to show that Row (1) had employed a well-thoughtout, multi-step premeditated plan (she made up instances of spousal abuse, she moved
only her items but none of the children’s items to a storage unit, she obtained a series of
life insurance policies, and she had a plan to move to a different state with a new love
interest); (2) had several motives, including receiving over $250,000 in life insurance
proceeds, ridding herself of familial entanglements to start over with a new lover, and
ridding herself of a recently-brain-damaged husband who made life more difficult; and
(3) had set the fires with intent to kill, not simply to scare or to destroy property (the
furnace fan was turned on, the smoke detectors were turned off, the fires were set at

MEMORANDUM DECISION AND ORDER - 24

locations to block the occupants from leaving the residence, a large amount of fire
accelerant was use, and the occupants were asleep when the fires were set).
It also is unclear whether or to what extent the prior mysterious deaths of Row’s
other two children were used at the sentencing phase of trial,8 and whether that played
into any strategy of trial counsel to present only the theory they did. It is unknown how
these additional historical facts would impact an organic brain dysfunction theory, for
example, whether the prior deaths tend to show a long history of sociopathic-like
behavior because of a brain dysfunction, or whether they tend to show a longstanding
ability to premeditate despite the brain dysfunction.
What is clear is that evidence relevant to whether Row had an organic brain
dysfunction was available to Row’s trial counsel and the reviewing psychologists during
the pre-sentence investigation. A 1993 post-crime CT scan was contained in the pretrial
sentence investigation (PSI) report. The doctor who interpreted the CT scan, Dr. David
Giles, observed:
The basal cisterns are normal. The cerebellar folia are
mildly deepened and sulci near the vertex are mildly
deepened for a patient of this age. Combined cerebellar
vermian and cerebral cortical atrophy can be caused by a
number of irreversible etiologies, but reversible etiologies
should be considered and the findings suggest the possibility
of alcohol abuse, clinical correlation is advised.
8

At sentencing, the trial court observed that Petitioner “had meticulously kept up these [life insurance]
policies over an extended period of time and had even purchased one as late as seventeen (17) days prior to the fire.
Based upon historical facts in her life (the tragic death of her son Keith in an accidental albeit similar type of house
fire in 1980), Robin Row had every reason to expect and anticipate insurance proceeds from another accidental fire
that would claim the lives of her family.” (Findings of the Court In Considering Death Penalty and Imposition of
Sentence, p. 8.) In its opinion affirming the conviction and sentence, the Idaho Supreme Court observed that during
the investigation, the “police discovered Row had lost a daughter to Sudden Infant Death Syndrome in 1977, and
that her son, Keith, had died in a house fire in California in 1980. (State’s Lodging C-17, p. 2.)

MEMORANDUM DECISION AND ORDER - 25

(State’s Lodging A-7, p. 65.) It is unclear from the record to what extent, if any, Row’s
trial counsel or psychologists reviewed this record or attributed any significance to it for
the mitigation defense. Other relevant evidence available during the pre-sentence
investigation was a 1991 pre-crime CT scan that could be used for comparison.
C. Second Prong of Martinez: Deficient Performance of Post-Conviction
Counsel
If Row is able to meet Martinez’s first prong, then several particular facts may be
relevant to Martinez’s second prong — ineffective assistance of post-conviction counsel.
First, Row’s post-conviction counsel could have been laboring under the existence of a
conflict of interest regarding remuneration for attorney services. In a December 13, 2002,
deposition, post-conviction counsel John Adams discussed how the following placed
great economic stress on their office: (1) Kehne and Adams were working on two other
death penalty cases at the same time; (2) the cases paid only about $40 an hour; and (3)
they were having difficulties collecting their fees from the Bannock County
Commissioners on the Wood capital case. Adams said he and Kehne recognized there
was a conflict of interest regarding Adams and Kehne’s financial interests and the
appropriate representation of Row between their office and the Ada County Public
Defender’s Office/Ada County Commissioners. (John M. Adams deposition, December
13, 2002, pp. 27-28.) Adams described barely being able to pay office overhead, feed
their families, and pay their mortgages during the time they worked on Row’s postconviction matter.

MEMORANDUM DECISION AND ORDER - 26

In addition, post-conviction counsel may have been laboring under a conflict of
interest due to a close personal relationship with trial counsel. Mr. Adams stated that the
case “was not as well done as one might have hoped” as to “[d]evelopment of issues,
particularly ineffective assistance of trial counsel.” (Adams Deposition, p. 31.) Mr.
Adams attributed this circumstance to “a few things,” including his close personal
relationship to trial counsel Myshin and Cayhill. “I considered them my brothers. We
spent a lot of time together. And I think that really affected the way I was willing to deal
with them. I think if they had been strangers, I would have dealt with them in a
significantly different way than I did deal with them.” (Adams Deposition, pp. 31-32.)
A third factor is some evidence suggesting that the post-conviction attorneys were
immediately aware of the organic brain dysfunction issue, but did little to develop or
investigate it: (1) counsel’s first request for expert funding was denied without prejudice
to Row’s counsel returning to show the need for the funding; (2) counsel had knowledge
of the organic brain dysfunction issue as early as June 1995, when that information was
attached to the amended post-conviction petition; (3) counsel failed to renew the motion
for funding for an expert; and (4) counsel failed to request a continuance of the hearing
until the day of the hearing.
Another issue raised by the record is that the lack of funding contributed to postconviction counsel’s inability to present this evidence. Adams testified: ‘If we’d have had
the mental health resources that we had wanted, I’m sure I would have developed issues
with them about why they had not done it…. So I think besides the personal relationship
there was also a general lack of resources and apparently basic information that we were
MEMORANDUM DECISION AND ORDER - 27

operating with that interfered with it.” (Adams Deposition, p. 32.) For example, in the
Court’s pre-Pinholster Order of September 15, 2010, the Court determined that an
evidentiary hearing was necessary to determine whether the failure to raise this claim in
the first post-conviction action was due to limited resources, or a lack of diligence. At
that time, the Court identified:
[s]everal factual issues that appear to be material to
this dispute [that] cannot be resolved by referring to the
existing record, including the following: the degree to which
funding was available through the Ada County Public
Defender’s Office for “conflict” post-conviction counsel to
retain investigative and expert services; the extent of postconviction counsel’s efforts to seek funding from the Public
Defender for those services; the nature of the supposed
conflict that the Public Defender believed that he had when
reviewing funding requests; how counsel paid for the services
that they ultimately did retain; and how counsel expected to
pay for the services that they intended to retain had the
district court granted a continuance of the post-conviction
hearing.
(Order of September 15, 2010, Dkt. 509, p. 2.)
D. Conclusion
Row may be able to meet Prong 1, substantiality of the ineffective assistance of
trial counsel claim as to Claim 7 ¶81(b), but key to the determination will be the issues
related to strategy. Under Strickland:
[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
MEMORANDUM DECISION AND ORDER - 28

circumstances, applying a heavy measure of deference to
counsel’s judgments.
466 U.S. at 690-91.
More evidence is needed before the Court can determine whether this claim is
substantial, and whether, under Prong 2, Row’s post-conviction attorneys were
ineffective. Prongs 3 and 4 of Martinez are not at issue. Row will be permitted to move
forward to develop her facts to demonstrate why Martinez should be applied to Claim 7
¶81(b).
4. Claim 7 ¶ 81(a), “Failure to prepare, develop and present a coherent sentencing
strategy.”
Claim 7 ¶81(a) is that trial counsel failed “to prepare, develop and present a
coherent sentencing strategy.” (Dkt. 293, p. 25.) The Second Amended Petition presents
this statement as a “fact” supporting the ineffective assistance of counsel claim, but it is a
mere conclusory statement unsupported by any facts. (Id., p. 22.) This claim was
determined to be procedurally defaulted. (Dkt. 417, p. 13 et seq.)
For Row to proceed with this claim, it must be fundamentally different from the
similar ineffective assistance claims that the state and federal courts decided on the merits
(otherwise, it would not have been deemed procedurally defaulted). Row explains this
claim as follows: “Absent background investigation, evaluations and research, trial
counsel was without any meaningful strategy.’ (Dkt. 572, p. 14.) In other words, trial
counsel could not have developed a meaningful or coherent strategy because counsel did
not do adequate background investigation or evaluation. Petitioner further explains: “A

MEMORANDUM DECISION AND ORDER - 29

strategy and research effort by counsel based upon the brain abnormality would have
triggered investigation and recognition of the organic brain disorder would have gone far
in explaining her behavior.” Id.
In the course of determining Row’s similar ineffective assistance of counsel at
sentencing, the state district court determined that trial counsels’ presentation of Row’s
mental health issues at sentencing is the type of decision that “remains at the heart and
core of strategy and tactics in presenting their defense of Ms. Row.” (State’s Lodging B11, p. 293.) On appeal, the Idaho Supreme Court found and concluded that (1) trial
counsel reviewed and presented extensive amounts of background and other information
about Row; (2) that the sentencing judge had considered “every facet of background
information in one form or another”; and (3) “[t]rial counsel’s decisions concerning
Row’s mental health ... were strictly strategic and shall not be second-guessed by this
Court.” (Id.) The record supports this decision, demonstrating that trial counsel chose the
alexithymia theory as a matter of strategy and tactics. Accordingly, Row’s claim is not
fundamentally different from the one already decided by this Court on the merits, and,
thus, Rule 59(e) prohibits Row from relitigating the same issues. To the extent that a
portion of this claim can be considered fundamentally different, it is subsumed in Claim 7
¶ 81(b).
5. Claim 7 ¶ 81(d), “Failure to timely retain a qualified mental health expert to
address the issues of mental health clearly apparent from Petitioner’s case.”
Claim 7 ¶ 81(d), that trial counsel failed “to timely retain a qualified mental health
expert to address the issues of mental health clearly apparent from Petitioner’s case”

MEMORANDUM DECISION AND ORDER - 30

(Dkt. 293, p. 25), was not deemed procedurally defaulted, but was denied on the merits in
this federal habeas action. (Dkt. 545, pp. 37-50.) Based on the reasoning above, the Court
concludes that the only fundamentally different portion of Claim 7 ¶ 81(d) — that trial
counsel should have retained a neuropsychiatrist — is actually the subject of a separate
claim, 7 ¶81(e). Row may proceed only on Claim 7 ¶81(e), not both claims. Because a
merits decision determined that trial counsel retained qualified mental health experts
other than a neuropsychiatrist, it is not subject to Martinez.
6. Claim 7 ¶ 81(e), “Failure to retain a qualified neuro-psychiatrist to conduct
appropriate medical testing regarding the apparent organic brain damage
revealed by CT scans taken of Petitioner revealing an atrophy of the brain.”
Claim 7 ¶ 81(e) is that trial counsel failed “to retain a qualified neuro-psychiatrist
to conduct appropriate medical testing regarding the apparent organic brain damage
revealed by CT scans taken of Row revealing an atrophy of the brain.” (Dkt. 293, p. 25.)
The state courts refused to hear this fundamentally altered claim on state law procedural
grounds in the second post-conviction action. This Court reviewed this claim on the
merits on evidence that was presented to the state courts in the first post-conviction action
—Dr. Beaver’s speculative post-conviction testimony—and determined that it did not
warrant habeas corpus relief. The Court declined to hear new evidence on this claim,
because it was foreclosed by Pinholster.
Row is not contesting this Court’s merits conclusion, but is asserting that her
fundamentally altered companion claim is procedurally defaulted. Row seeks opportunity
to show that her trial counsel performed deficiently and that prejudice resulted, based on

MEMORANDUM DECISION AND ORDER - 31

the new organic brain dysfunction evidence. (See Dkt. 417, p. 13.) To that limited extent,
she will be permitted to proceed to a Martinez hearing.
7. Claim 7 ¶ 81(n), “Permitting an unqualified mental health expert and his
assistant to engage in unreliable techniques of memory re-enhancement,
including hypnosis.”
In the first post-conviction action, Row alleged “that her counsel were deficient in
the presentation of mental health issues, including the hiring, work and testimony of Dr.
Norman; the inadequacy of his psychological investigation and work-up; and inadequate
presentation of such issues at sentencing.” (B-11, p. 292.) It is clear that Row raised the
issue of whether the mental health professionals that were hired by her counsel were
adequate. This claim was determined to be adjudicated on the merits in state court, and
was adjudicated on the merits in this action. The “fundamentally altered” claim is not
actually fundamentally different from the merits-decided claim. Therefore, Row may not
proceed on this claim.
8. Claim 7 ¶ 81(o), “Failure to research and comprehend the reported results of a
psychological evaluation performed by an unqualified person and permitting
presentation of a diagnosis of Petitioner as suffering from a condition called
alexithymia which was not supported by fact, law, medicine, science or accepted
standards of psychological principles.”
Claim 7 ¶ 81(o) is that trial counsel failed “to research and comprehend the
reported results of a psychological evaluation performed by an unqualified person and
permitting presentation of a diagnosis of Row as suffering from a condition called
alexithymia which was not supported by fact, law, medicine, science or accepted
standards of psychological principles.” (Dkt. 293, p. 26.) This claim was adjudicated on
MEMORANDUM DECISION AND ORDER - 32

the merits in state district court and in this Court. (Dkt. 471, p. 13; Dkt. 545, pp. 37-50.)
This is the same claim that was adjudicated on the merits, and, thus, it cannot be deemed
procedurally defaulted. Row may not proceed with this claim.
9. Claim 7 ¶ 81(p), “Permitting Petitioner to make a statement in allocution
without knowing that the statement would be making incriminatory admissions,
based upon unqualified, unreliable memory enhancement.”
Claim 7 ¶ 81(p) is that trial counsel was ineffective for “[p]ermitting Row to make
a statement in allocution without knowing that the statement would be making
incriminatory admissions, based upon unqualified, unreliable memory enhancement.”
(Dkt. 293, p. 26.) This claim was adjudicated on the merits in state district court and in
this Court. (Dkt. 471, p. 13; Dkt. 545, pp. 37-50.) Row has not convinced the Court that
her claim is fundamentally altered such that she should be permitted to proceed.
Alternatively, in Idaho allocution is a defendant’s right; therefore, as with Row’s
claim of actual innocence in the guilt phase, Row’s decision to allocute was her own, and
counsel did not perform deficiently by not attempting to convince Row not to allocute.
Row’s allocution added little, and merely confirmed her role in the fires, which was
already plainly evident from the other evidence presented at trial. The sentencing court
determined on post-conviction review that Row’s allocution, including its content and
source, “made no difference whatsoever to this Court’s ultimate decision to impose the
death penalty.” (State’s Lodging B-11, p. 295.)
Based on all of the foregoing, the Court alternatively concludes that Row has
failed to show deficient performance or prejudice, rendering the claim insubstantial.

MEMORANDUM DECISION AND ORDER - 33

10. Claim 7 ¶ 81(s), “Permitting the defense-retained psychologist to engage in
practices likely to elicit a false confession from Petitioner and permitting
Petitioner to be bullied into making that confession in allocution at sentencing
which wholly undermined the theory of defense presented at trial.”
Petitioner may not proceed to a Martinez hearing on Claim 7 ¶ 81(s), that trial
counsel was ineffective in “[p]ermitting the defense-retained psychologist to engage in
practices likely to elicit a false confession from Petitioner and permitting Petitioner to be
bullied into making that confession in allocution at sentencing which wholly undermined
the theory of defense presented at trial.” (Dkt. 293, p. 27.) This claim is not
fundamentally different from the claim the Court determined on the merits.
11. Claim 7 ¶ 81(f), “Failure to investigate and present defenses and mitigating
circumstances surrounding uncharged criminal activity presented during the
trial and at sentencing.”
Claim 7 ¶ 81(f) is that trial counsel failed “to investigate and present defenses and
mitigating circumstances surrounding uncharged criminal activity presented during the
trial and at sentencing.” (Dkt. 293, p. 24.) There are no particular facts in the Second
Amended Petition or in the Brief in support of the Amended Motion to Alter or Amend to
explain this claim. In Row’s Reply, she asserts that trial counsel should not have filtered
out evidence that they considered a “mixed bag,” but should have recognized that “lying,
criminal convictions, and lack of emotion were actually the result of the brain
dysfunction.” (Dkt. 597, p. 25.) Row argues: “A reasonable investigation would have led
trial counsel to the appropriate conclusion: these facts were not bad acts, but symptoms
that prove Petitioner’s brain dysfunction.” (Id.) The Court concludes that this claim is not

MEMORANDUM DECISION AND ORDER - 34

separate from Claim 7 ¶81(b), the mitigation investigation claim, or ¶81(h), the rebuttal
to aggravating factors claim. Therefore, Row cannot pursue this claim separately.
12. Claim 7 ¶ 81(g), “Failure to research Eighth Amendment jurisprudence as it
applies to the preparation and presentation of evidence in mitigation.”
Claim 7 ¶ 81(g) is that trial counsel failed “to research Eighth Amendment
jurisprudence as it applies to the preparation and presentation of evidence in mitigation.”
(Dkt. 293, p. 25.) Row has presented no particular facts or argument in her Second
Amended Petition or in her briefing in support of her Motion to Alter or Amend
Judgment to show how Claim 7 ¶ 81(g) is a substantial claim. The argument in the Reply
confirms that Row’s claim is based on speculation. (Dkt. 597, pp. 26-27.) The Court
concludes that this claim is not substantial.
13. Claim 7 ¶ 81(h), “Failure to investigate, develop, and present evidence rebutting
aggravating evidence considered by the trial court.”
Claim 7 ¶ 81(h) is that trial counsel were ineffective for their “[f]ailure to
investigate, develop, and present evidence rebutting aggravating evidence considered by
the trial court.” (Dkt. 293, p. 25.) This claim was determined to be procedurally
defaulted.
As noted above, some of the aggravating factors appear to be the same as some of
the symptoms of organic brain dysfunction, such as pathological lying, lack of empathy,
manipulation, and poor judgment. The Court concludes that Row should be given further
opportunity to show that this claim is substantial, but only to the limited extent (1) that
this claim relies on the failure to present evidence of the organic brain dysfunction, and

MEMORANDUM DECISION AND ORDER - 35

(2) that it is separate and distinct from the mitigation claims that the state and federal
courts decided on the merits, as discussed above.
14. Guilt Phase: Claim 7 ¶80(h)
Claim 7 ¶80(h) is that “counsel failed to secure adequate testing concerning the
brain damage that could have affected petitioner’s ability to control her behavior, [thus
undermining] the finding of petitioner’s guilt.” (Dkt. 293, p. 23.) This claim was
determined to be procedurally defaulted. (Dkt. 417, p. 13.)
Row maintained not only her innocence, but also her complete non-involvement in
the crimes throughout the guilt phase of the trial. Row is now asserting, through her
expert opinions, that counsel could have used the fact of an organic brain disorder to
negate the mens rea element of the crimes, and, therefore, Row could have been
acquitted.
Respondent persuasively counters that a mental defect defense would have been
inconsistent with Row’s actual innocence assertion; hence, counsel acted appropriately in
crafting a defense that was compatible with her actual innocence stance. See Doe v.
Woodford, 508 F.3d 563, 569 (9th Cir. 2007) (trial counsel made a reasonable strategic
choice to rely on petitioner’s claims of innocence and decided not to pursue further
investigations into petitioner’s mental state since he testified that a mental state defense
“would have been inconsistent” with the theory of the case); Gilson v. Sirmons, 520 F.3d
1196, 1247 (10th Cir. 2008) (counsel’s decision was a reasonable trial strategy because to
have also raised a mental disorder defense based on Gilson’s brain scans would have
been inconsistent with a defense of actual innocence and would have considerably
MEMORANDUM DECISION AND ORDER - 36

weakened both defenses). When a client asserts her actual innocence via noninvolvement, an attorney need not attempt to persuade her to instead assert a mens rea
defense that implicates her involvement.
Accordingly, the Court concludes that Row has not established that this claim is
substantial for failure to show deficient performance of trial counsel. Rule 59(e) relief is
not warranted, and Row may not proceed further on this claim.
15. Conclusion
The Court concludes that the following claims are eligible for a Martinez v. Ryan
hearing: 7 ¶ 81(b), (e), and (h) (all limited to organic brain dysfunction subject matter).
Row may not proceed on Claims 7 ¶ 80(h); ¶ 81(a), (d), (f), (g), (n), (o), (p), or (s).
The Court will hold an evidentiary hearing to determine whether Martinez should
be applied to excuse the procedural default of Claim 7 ¶ 81(b), (e), and (h). Row may
consider whether there is any value in attempting to return to state court to properly
exhaust her claims.9
9

The Court is aware of the Idaho Supreme Court’s holding in Murphy v. State, 327 P.3d 365 (Idaho 2014).
Prior to Murphy, Idaho courts allowed petitioners to raise ineffective assistance of post-conviction counsel as a
“sufficient reason” under Idaho Code § 19–4908 to bring a successive post-conviction petition. See Palmer v.
Dermitt, 635 P.2d 955, 959-60 (Idaho 1981). In Murphy, the Idaho Supreme Court relied upon Coleman v.
Thompson, 501 U.S. 722 (1991), for the general proposition that there is no federal constitutional right to postconviction counsel, but it did not discuss the new exception to that case, which permits a petitioner to assert
ineffective assistance of initial post-conviction counsel as cause to excuse the procedural default of claims of
ineffective assistance of trial or appellate counsel. See Martinez v. Ryan, 132 S.Ct. 1309 (2012); Trevino v. Thaler,
133 S.Ct. 1911 (2013); Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir.2013) (applying Martinez to underlying
claims of ineffective assistance of appellate counsel).
The practical effect of the Murphy holding may be that the state courts have unknowingly relinquished the
opportunity to be first to adjudicate ineffective assistance of trial counsel and direct appeal counsel claims that were
not properly raised due to ineffective assistance of post-conviction counsel during the first post-conviction action,
because Martinez v. Ryan opened the door to such claims for the first time in twenty years since Coleman. If the
state courts will no longer consider whether the ineffective assistance of post-conviction counsel prevented a
petitioner’s claims from being raised properly (or at all) in the first post-conviction proceeding, the federal courts
will be required to consider both issues (ineffective assistance of post-conviction counsel as cause, and the merits of
ineffective assistance of trial and direct appeal counsel claims) de novo, including holding de novo hearings where

MEMORANDUM DECISION AND ORDER - 37

PLANNING FOR THE EVIDENTIARY HEARING
Row has a formidable task ahead to meet the first prong of the Martinez
analysis—a showing that her trial counsel performed deficiently and that it amounted to
prejudice at sentencing. This preliminary hearing will lay the foundation for a merits
hearing on the underlying ineffective assistance of trial counsel claims, if such a hearing
is warranted.
Counsel for the parties are ordered to conference via phone or in person to discuss
and stipulate to as many issues regarding the hearing as possible (after which the Court
will determine whether or when a pre-hearing conference is needed), including but not
limited to the following.
 Several available dates for the hearing
 Length of hearing
 Place of hearing
 Scope of hearing
 Scope of discovery, if any
 Deadlines for discovery
 Disclosure of witnesses’ expected testimony
 Disclosure of expert witness reports, opinions, and expected testimony
 Disclosure of exhibits.

necessary. The federal courts are reluctant to take this course of action in federal habeas corpus proceedings,
preferring to have these issues heard first in state court, out of comity and deference to the state’s strong interest in
its own criminal cases, particularly those that have already been resolved by the state courts.

MEMORANDUM DECISION AND ORDER - 38

Many of the Martinez legal issues lie in uncharted territory. The Court gives the
parties notice that it intends to apply the following points of law, unless the parties
convince the Court otherwise, or unless clarifying precedent is issued in the interim.
1. Standards of Law. In a Martinez hearing, the standard for success is like a
certificate of appealability (COA)—the Strickland claim has “some merit.” In a de
novo merits hearing, the Strickland standard applies: the petitioner must show
deficient performance of trial counsel and a reasonable probability of a different
outcome. The overlap of these standards is obvious.
2. New Evidence. New evidence is permissible under Dickens because a Martinez
claim is not a constitutional “claim” subject to Pinholster or section 2254(e)(2).
3. Discovery. The parties can conduct discovery for the hearing and present evidence
at the hearing to show (1) the ineffective assistance of trial counsel claim has some
merit (deficient performance and prejudice), and (2) post-conviction relief counsel
in the initial post-conviction relief action were ineffective (deficient performance
and prejudice).
4. Presumption of Correctness of State Court Findings of Fact. The 28 U.S.C. §
2254(e)(1) presumption of correctness applies to state court findings of fact that
may have relevance in a Martinez procedural default setting. See Sharpe v. Bell,
593 F.3d 372 (4th Cir. 2010) (where the state court had explicitly determined that
particular witnesses were not credible, the federal district court will defer to the
state court’s factual findings). The process by which the state court made findings,
if any, “may have some bearing” on Row’s efforts to rebut the presumption of
MEMORANDUM DECISION AND ORDER - 39

correctness by clear and convincing evidence. Id. (“Where the state court
conducted an evidentiary hearing and explained its reasoning with some care, it
should be particularly difficult to establish clear and convincing evidence of error
on the state court’s part.”).
5. Applicability of §2254(e)(2) in De Novo Setting. If the Court finds Martinez
cause and prejudice and determines that it is permitted to review the merits de
novo, the question remains whether Ҥ 2254(e)(2) still restricts the discretion of
federal habeas courts to consider new evidence when deciding claims that were
not adjudicated on the merits in state court.” Pinholster, 131 S.Ct. at 1401. Section
2254(e)(2) restricts factual development in federal court if the applicant or his
counsel failed to develop the factual basis of the claim in state court, Williams
(Michael) v. Taylor, 529 U.S. 420, 432 (2000). In what may seem like a Catch-22,
to qualify for Martinez a petitioner must show that post-conviction counsel was
ineffective in failing to develop the factual (and/or legal) basis of the claim in state
court, but on a merits review a petitioner can bring forward new facts only if he
shows diligence in trying to present the evidence to the state courts under §
2254(e)(2). It seems the purpose of Martinez would be defeated if new evidence
were permitted at the Martinez qualifying-round hearing, but not at the actual
merits final-round hearing. Legal justification theories for permitting new
evidence in a de novo hearing appear to be: (1) if 2254(e)(2) is met; (2) if a
petitioner goes back to state court to try to develop facts and obtains a merits
ruling, in effect, trying to fulfill 2254(e)(2)’s pre-requisites by having asked for
MEMORANDUM DECISION AND ORDER - 40

evidentiary development in state court, but she is rejected;10 or (3) if 2254(e)(2) is
rendered inapplicable by the equitable exception of Martinez.
6. Related Nature of Martinez and Merits Hearing. The question of the merits of
the underlying ineffective assistance of counsel claims may or may not be
developed enough at the Martinez hearing to affect whether a second de novo
hearing on the merits is required. It may be that no hearing or only a narrow
second hearing is required, given the evidence that was developed in the Martinez
hearing.
The parties may briefly comment on these issues of law in their
stipulation/notices, but any full-fledged arguments should be addressed in prehearing
memoranda.
ORDER
IT IS ORDERED:
1. Petitioner’s Motion for Leave to File Excess Pages (Dkt. 598) is GRANTED.
2. Petitioner’s Amended Motion to Alter or Amend Judgment (Dkt. 572) is
GRANTED in part, to the extent that Petitioner has demonstrated that Claims 7 ¶
81 (b), (e), and (h) (all limited to organic brain dysfunction subject matter) may
proceed to a hearing to determine whether Martinez v. Ryan should be applied.
The Motion is denied as to all other claims: Claim 7, ¶ 80(h); ¶81(a), (d), (f), (g),
(n), (o), (p), and (s).
10

A state court’s rejection on the merits would implicate AEDPA review upon return to federal court;
rejection on procedural grounds may fulfill §2254(e)(2)’s prerequisite of a diligent effort to present the claim to the
state court.

MEMORANDUM DECISION AND ORDER - 41

3. Counsel for the parties shall follow the Court’s instructions set forth above for
preparation and planning for the evidentiary hearing. A stipulation and notice of
any issues of scheduling or application of the law that is to be applied to any
aspect of the hearing upon which the parties could not agree shall be filed within
60 days after entry of this Order. The parties may agree between themselves as
to an extension of time for this deadline, if necessary, and need only inform the
Court of that agreement, rather than seek approval. The notice shall be in an
outline form; the parties will be given the opportunity to brief their arguments at a
later time.

DATED: March 31, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 42