Stuart v. Fisher

Filing 126

MEMORANDUM DECISION AND ORDER conditionally granting in part and denying in part 92 Motion to Dismiss. The Court reserves its ruling whether procedurally defaulted claims will be dismissed with prejudice until later in this proceeding. The followin g claims will not be dismissed as procedurally defaulted: 2A (as limited herein), 5, 6, 7 (limited), 8 (deferred ruling), 10, 11, 13 (limited), 14-21, 22 (limited), 24A, 24C, and 27. Within 21 days from the date of this Order, the parties shall confe r on a proposed scheduling order for additional filings in this case and shall submit a joint proposed scheduling order to the Court, or shall submit proposed litigation plans separately if the parties cannot agree. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GENE FRANCIS STUART,
Case No. 1:02-cv-00020-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

GREG FISHER, Warden of the Idaho
Maximum Security Institution,
Department of Correction, State of Idaho,

CAPITAL CASE

Respondent.

INTRODUCTION
Currently pending before the Court in this capital habeas matter is Respondent’s
Motion to Dismiss Procedurally Defaulted Claims. (Dkt. 92.) The Court finds that the
parties have adequately stated the facts and legal arguments in their briefs and that the
decisional process would not be significantly aided by oral argument. In the interests of
avoiding further delay, the Court will decide this matter on the written motion, briefs, and
record without oral argument. D. Idaho L. Civ. R. 7.1.
For the reasons set forth below, the Court concludes that the following claims in
the Amended Petition were either properly exhausted in the state courts, in whole or in
part, or that any procedural default will be excused: Claim 2A (as limited herein), 5, 6, 7
(limited), 8 (final ruling is reserved), 10, 11, 13 (limited), 14-21, 22 (limited), 24A, 24C,
MEMORANDUM DECISION AND ORDER - 1

and 27. The Court concludes that the following claims are procedurally defaulted and will
be dismissed on that basis unless Petitioner can show cause and prejudice: Claim 1, 2B,
2C, 2D, 2E, 3, 4, 9, 12, 23, 24B, 24D, 25, 26, 28, and 29. Because Petitioner contends that
his appointed counsel’s alleged ineffectiveness in state court is the cause for the default of
many of these claims, and because this Court finds that the ineffective assistance of
counsel claims that Petitioner has included as an independent basis for relief (Claim 27)
do not rest on an adequate state procedural ground that would otherwise bar federal
review, the Court will await further briefing on Claim 27 before issuing a final order
dismissing any procedurally defaulted claims.
Accordingly, Respondent’s Motion will be conditionally granted in part and
denied in part.
BACKGROUND
After a jury trial in 1982, Gene Francis Stuart was convicted of first-degree murder
by torture for beating to death three-year-old Robert Miller, a child who had been
entrusted to his care. The trial court sentenced him to death, and the Idaho Supreme Court
affirmed the judgment on direct appeal. State v. Stuart, 715 P.2d 833 (Idaho 1986),
affirmed after rehearing 715 P.2d at 897.
In 1986, the attorney who had represented Stuart at trial and on direct appeal,
Robert Kinney, filed a post-conviction petition on Stuart’s behalf. Although Kinney
raised numerous claims in the petition, he did not allege that he had been constitutionally
ineffective at trial, sentencing, or on direct appeal. (Id.) The district court dismissed the
MEMORANDUM DECISION AND ORDER - 2

petition without an evidentiary hearing, and the Idaho Supreme Court affirmed. Stuart v.
State, 801 P.2d 1216 (Idaho 1990).
While the initial post-conviction appeal was still pending, Kinney uncovered
evidence that personnel in the Clearwater County Sheriff’s Office may have secretly
monitored or recorded conversations between Stuart and his attorneys while he was
awaiting trial in the county jail. (State’s Lodging E-1, pp. 27-46.) Based on this
information, Kinney filed a second petition for post-conviction relief in 1988, claiming
that the State had violated Stuart’s constitutional rights to the assistance of counsel and to
due process of law. (Id.) This core claim would be litigated in the state courts for the next
13 years.
Initially, the district court dismissed the second petition summarily. (State’s
Lodging E-1, pp. 96-103, 176-77.) The Idaho Supreme Court reversed that decision and
remanded for further proceedings. Stuart v. State, 801 P.2d 1283, 1285-86 (Idaho 1990).
On remand, the district court held an evidentiary hearing, after which it determined that
Stuart had failed to carry his burden to prove that any of his conversations with his
attorneys had, in fact, been monitored or recorded by law enforcement officials. (State’s
Lodging G-2, pp. 569.)
The Idaho Supreme Court reversed the district court and remanded the case a
second time. Stuart v. State, 907 P.2d 783 (Idaho 1995). It doing so, it held that the lower
court had erred in not giving Stuart the benefit of a favorable inference from the
destruction of certain evidence – jail telephone logs – that had been in the State’s
MEMORANDUM DECISION AND ORDER - 3

possession. Id. at 793-94.
To this point, Robert Kinney had represented Stuart in all of his state court
proceedings, but in 1995 he accepted an offer of employment out of state. (State’s
Lodging K-1, pp. 40-44.) Kinney was allowed to withdraw, and the district court
appointed new counsel, Scott Chapman, who represented Stuart in the second remand
proceeding related to the monitoring of Stuart’s attorney/client communications. (Id.)
After holding another evidentiary hearing, the district court again denied relief.
(State’s Lodging K-2, pp. 367-95.) While the court assumed that Stuart’s conversations
had been monitored, it concluded that the State had carried its burden to prove that all
material evidence presented at the trial was discovered independently of any violation of
Stuart’s constitutional rights. (Id. at 383-95.) On December 4, 2001, the Idaho Supreme
Court affirmed, putting this issue to rest in the state courts. Stuart v. State, 36 P.3d 1278
(Idaho 2001).
During the mid-1990s, Stuart was also pursuing separate collateral relief in the
form of a motion for relief from judgment. There, he argued that a new Idaho Supreme
Court decision, State v. Tribe, 852 P.2d 87 (1993), which had reversed a trial court’s
failure to give a lesser included offense instruction in a murder by torture case, should be
applied to his case. (State’s Lodging I-1, pp. 1-11.) The motion was unsuccessful in the
district court, and the Idaho Supreme Court affirmed the denial of relief, concluding that
Stuart was not entitled to retroactive application of Tribe. See Stuart v. State, 914 P.2d
933 (Idaho 1996).
MEMORANDUM DECISION AND ORDER - 4

Stuart finally arrived in federal court in January of 2002 when he filed a Statement
of Issues. (Dkt. 1.) This Court appointed new counsel and issued a stay of execution, and
Stuart filed a Petition for Writ of Habeas Corpus on June 24, 2002. (Dkts. 5, 17.) In his
Petition, he raised claims of ineffective assistance of counsel for the first time in any
court, and he asked the Court to hold the Petition in abeyance while he attempted to
exhaust these and other new claims in the state courts. (Dkt. 26.) Respondent did not
object, and the Court granted the request. (Dkts. 31, 32.)
Stuart returned to state court and filed a successive petition for post-conviction
relief, raising claims of ineffective assistance of counsel, prosecutorial misconduct, and
an Eighth Amendment claim based on the length of time he had been confined. (State’s
Lodging O-1, pp. 1-40.) In 2007, the district court dismissed the petition as untimely
under the special post-conviction rules for capital cases set out in Idaho Code § 19-2719.
The Idaho Supreme Court dismissed the appeal from the district court’s decision after
concluding that all claims were procedurally barred by the statute. Stuart v. State, 232
P.3d 813, 820 (Idaho 2010).
Also pending in state court at the same time was yet another successive collateral
action containing multiple claims based on Ring v. Arizona, 536 U.S. 584 (2002). The
district court’s dismissal of that action was affirmed by the Idaho Supreme Court in
Rhoades, et al. v. State, 233 P.3d 61 (Idaho 2010).
In 2011, this Court lifted the stay of the federal habeas case and permitted Stuart to
file an Amended Petition, in which he has raised 29 claims for relief. (Dkts. 69, 78.)
MEMORANDUM DECISION AND ORDER - 5

Respondent has responded to the Amended Petition with the pending Motion to Dismiss
Procedurally Defaulted Claims, arguing that all claims, except aspects of Claims 2 and
22, were not properly exhausted in the Idaho state courts must now be dismissed as
procedurally defaulted. (Dkt. 92, p. 2.)
Petitioner has submitted a Brief in Opposition, and Respondent has filed a Reply.
(Dkts. 100, 118.) The matter is fully briefed and the Court is now prepared to issue its
ruling.
LEGAL STANDARDS GOVERNING EXHAUSTION
AND PROCEDURAL DEFAULT
A habeas petitioner must exhaust all potential remedies in state court before a
federal court can grant relief on a constitutional claim. 28 U.S.C. § 2254(b)(1)(A). This
requirement is technically satisfied when no state court remedies remain available, but the
federal court must also ask whether the petitioner exhausted his potential remedies
properly. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). To do so, he must have
“fairly presented” each constitutional claim at all levels of the state’s appellate review
process, giving the state courts a full and fair opportunity to correct the alleged error
before the federal court intervenes. Boerckel, 526 U.S. at 848; Baldwin v. Reese, 541 U.S.
27, 29 (2004).
When a petitioner has not fairly presented a habeas claim to the state courts, and it
is now clear that the claim would be barred by a state procedural rule, the claim has been
procedurally defaulted. Gray v. Netherland, 518 U.S. 152, 161 (1996). Similarly, a
MEMORANDUM DECISION AND ORDER - 6

constitutional claim is also defaulted when the state court expressly denied or dismissed it
after invoking a state procedural bar. Coleman v. Thompson, 501 U.S. 722, 729-30
(1991). If the state’s procedural rule is both independent of federal law and adequate to
support the state court’s judgment, the defaulted claim will not be considered in a habeas
proceeding, unless the petitioner can establish cause for his default and actual prejudice,
or he can show that he is probably innocent. Id. at 750.
Only those state procedural rules that are “independent and adequate,” however,
will prevent federal habeas review on the merits. To be independent, the rule must not be
interwoven or intertwined with federal law. La Crosse v. Kernan, 244 F.3d 702, 704 (9th
Cir. 2001). To be adequate, the rule must be “clear, consistently applied, and wellestablished” at the time of the petitioner’s purported default. Wells v. Maass, 28 F.3d
1005, 1010 (9th Cir. 1994).
Procedural default is an affirmative defense, and the initial burden rests with the
state’s representative to plead the existence of a state procedural bar. Bennett v. Mueller,
322 F.3d 573, 585-86 (9th Cir. 2003). The burden then shifts to the petitioner to call the
adequacy of the bar into question. Id. If the petitioner asserts factual allegations that tend
to demonstrate that the rule is inadequate, the state will bear the ultimate burden of
proving “that the state procedural rule has been regularly and consistently applied in
[state] habeas actions.” Id. at 586.
In a situation that is apparently unique to Idaho, certain constitutional sentencing
errors in capital cases will be heard in a federal habeas proceeding regardless whether the
MEMORANDUM DECISION AND ORDER - 7

petitioner fairly presented them to the Idaho Supreme Court. A panel of the Ninth Circuit
has determined that the Idaho Supreme Court considers, either implicitly or explicitly,
some sentencing errors as part of its automatic statutory review of death sentences under
Idaho Code § 19-2827(c)(1). Beam v. Paskett, 3 F.3d 1301, 1306 (9th Cir. 1993) partially
overruled on other grounds by Lambright v. Stewart, 191 F.3d 1181, 1187 (9th Cir.
1999).
The generosity that Beam bestows on capital habeas petitioners is not boundless,
and the scope of habeas review will be no broader than the Idaho Supreme Court’s
mandatory review, which is limited to reviewing the imposition of the death sentence in
the case before the state appellate court. See Beam, 3 F.3d at 1306. Claims that make a
broad-based constitutional challenge to Idaho’s death penalty process, are based on
matters outside of the record before the Idaho Supreme Court, or allege that the Idaho
Supreme Court itself erred during its direct or post-conviction appellate review, are not
encompassed by that automatic review.
With these standards in mind, the Court now turns to the claims that Respondent
asserts are defaulted in this case.
DISCUSSION
Claim 1
In his first claim, Stuart contends that the State failed to provide him with counsel
“for ten days or more after his arrest,” violating his rights under the Sixth, Eight, and
Fourteenth Amendments. (Dkt. 78, pp. 3-4.) He asserts that his statements to law
MEMORANDUM DECISION AND ORDER - 8

enforcement officers during that time were obtained unlawfully. (Id.) Respondent
counters that Stuart has never raised this claim in the Idaho Supreme Court and that the
time to do so has long since passed. (Dkt. 92-1, p. 10.) Stuart appears to concede that he
failed to raise the claim expressly, but he argues that it is a “Beam claim” that the Idaho
Supreme Court implicitly reviewed, at least to the extent that the claim has a “sentencing
component.” (Dkt. 105, p. 22.)
If there is a sentencing component to this claim, Stuart does not explain what it is
beyond a conclusory assertion that he was deprived of a “reliable sentence.” (Dkt. 78, p.
3.) But if the Court were to assume that Stuart means that the Idaho Supreme Court
implicitly reviewed whether the sentencing court’s consideration of the allegedly
unlawfully obtained evidence rendered his death sentence “unreliable,” this Court would
find such a theory to be inconsistent with the Beam rationale. While the Court has turned
aside the State’s repeated argument that the operative language in Beam was either dicta
or has since been overruled, it will not extend Beam beyond its scope, which “is limited to
constitutional errors that are alleged to have occurred during the imposition of the death
sentence in a particular case.” Hoffman v. Arave, 937 F. Supp. 1152, 1159 (D. Idaho
1997) rev’d on other grounds, 236 F.3d 523 (9th Cir. 2001). To find, as Stuart suggests,
that any error in the admission of evidence at a jury trial in a capital case will necessarily
have an Eighth Amendment sentencing component would expand Beam beyond
recognition. The Court declines Stuart’s invitation to follow that path.
Stuart attaches an “unreliable sentencing” tag to many, if not most of his guiltMEMORANDUM DECISION AND ORDER - 9

phase claims in the Amended Petition, and the Court will not re-tread this same ground
for each claim. It is sufficient to say that unless a guilt-phase claim was fairly presented to
the Idaho Supreme Court, Beam will not save it from procedural default.
Accordingly, Claim 1 is procedurally defaulted in its entirety.
Claim 2
For his second claim, Stuart alleges, in six sub-parts, various instances of
prosecutorial misconduct that he contends deprived him of his constitutional rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments.1
Subclaim A
In Claim 2A, Stuart asserts that the prosecution used incriminating information
that it obtained unlawfully from secret monitoring and recording of his pre-trial
conversations with his attorneys. (Dkt. 78, p. 6.) He contends that the prosecution learned
the identities and locations of his ex-wives and girlfriends who would eventually provide
incriminating testimony at his trial about how he had abused them. (Id.)
This claim was fairly presented to the Idaho Supreme Court and is now properly
exhausted, but only to the extent that Stuart alleges that the State’s actions violated his
right to the assistance of counsel under the Sixth Amendment and his right to due process
of law under the Fourteenth Amendment. (State’s Lodging F-1, pp. 22-55.) Any legal
theory that relies on the Fifth Amendment’s clause against compelled self-incrimination
1

Stuart’s framing of all of these subclaims under the rubric of prosecutorial misconduct is
curious, given that the many of his allegations in Claim 2 are straightforward constitutional claims that
are based on legal theories other than prosecutorial misconduct.
MEMORANDUM DECISION AND ORDER - 10

was not fairly presented and is now defaulted. Likewise, for the reasons given above, the
Court does not find that an “unreliable sentencing” claim was implicitly considered as
part of the Idaho Supreme Court’s automatic review responsibilities per Beam.2
Subclaim B
Next, Stuart alleges that police officers failed to provide him with proper Miranda
warnings because, though they told him that he was entitled to a lawyer, they did not
inform him that a lawyer would be provided for him if he could not afford one. He also
contends that officers elicited incriminating statements from him during interview
sessions in violation of his right to counsel, and that his statements were used during his
criminal trial in violation of his Fifth, Sixth, and Fourteenth Amendment rights. Stuart has
never raised these substantive issues in the Idaho Supreme Court, and no part of this
subclaim is saved by Beam. As a result, the claim is procedurally defaulted.
Subclaim C
Stuart contends that information allegedly obtained from his private address book
by the mother of the deceased victim, Kathy Miller, “violated his reasonable expectation
of privacy and, therefore, his Fourth and Fourteenth Amendment right against
unreasonable search and seizure and due process.” (Dkt. 78, pp. 14-15.) This claim has

2

The Court does not agree with Respondent that Stuart’s allegation that the Idaho Supreme Court
erred in applying the “independent origin, inevitable discovery, and attenuated basis exceptions” to reject
his constitutional claim raises a separate claim for relief that must have been independently exhausted.
Presumably, this is part of Stuart’s argument as to why the Idaho Supreme Court’s adjudication of his
constitutional claim was contrary to or involved an unreasonable application of clearly established federal
law under 28 U.S.C. § 2254(d).
MEMORANDUM DECISION AND ORDER - 11

never been presented to the Idaho Supreme Court and is procedurally defaulted.
Subclaims D, E, and F
In these subclaims, Stuart asserts that the trial prosecutor vouched for the
credibility of witnesses and made other improper statements during his closing argument
(Claim 2D), tampered with testifying witnesses (Claim 2E), and knowingly withheld
mitigation evidence from Stuart and the trial court (Claim 2F).
While Claim 2D has never been presented to the state courts, Stuart attempted to
raise the material allegations in Claims 2E and 2F in his 2002 successive post-conviction
petition. In 2007, the state district court dismissed those claims as untimely under Idaho
Code § 19-2719, concluding that Stuart reasonably could have known of the facts in time
to raise them within the statutory deadlines. See State’s Lodging O-4, pp. 653-54.
Idaho Code § 19-2719, enacted in 1984, sets forth special post-conviction
procedures applicable only to capital cases. It requires a defendant under a sentence of
death to raise any “factual or legal challenge to the sentence or conviction that is known
or reasonably should be known” within 42 days of the filing of the judgment imposing the
death sentence. Idaho Code § 19-2719(3). If the defendant does not advance a postconviction claim that could have reasonably known by the 42-day deadline, he is deemed
to have waived it. Idaho Code § 19-2719(5). There is a limited exception to waiver for
any claim that was not reasonably known within 42 days of judgment, but the defendant
must raise such a claim within a “reasonable time” after it is known or reasonably could
have been known. See, e.g., Paradis v. State, 912 P.2d 110, 114 (1996).
MEMORANDUM DECISION AND ORDER - 12

Invoking these provisions, the state district court concluded that the facts
supporting Stuart’s claims of prosecutorial misconduct could have been known at the time
that he filed “his direct appeal and/or at the time he filed his petition first post-conviction
relief.” (State’s Lodging O-4, pp. 653-54.) Because he had not raised those claims until
many years later, they were waived by operation of Idaho Code § 19-2719(3),(5).
The Idaho Supreme Court affirmed the district court, but it used slightly different
reasoning. Stuart v. State, 232 P.3d 813 (Idaho 2010). It determined that Stuart had failed
to meet a “heightened pleading requirement” placed on successive post-conviction
petitioners to prove the limited exception to waiver for previously unknown claims in
Idaho Code § 19-2719(5). Stuart, 232 P.3d at 818-20. In particular, the court determined
that Stuart had failed to allege facts in his petition showing a prima facie case that (1) the
newly raised claims could not have been reasonably known within the 42-day deadline
and that (2) the new claims had been asserted within a “reasonable time” of when they
could have been known. Id. at 818-20 (citing Pizzuto v. State, 903 P.2d 58, 60 (Idaho
1995) and Paz v. State, 852 P.2d 1355, 1357 (Idaho 1993)).
Respondent relies on the Idaho Supreme Court’s invocation of Idaho Code § 192719 to argue that the claims are procedurally defaulted. In a habeas case, once the State
has pled a state procedural bar, the burden shifts to the petitioner to place the adequacy of
the bar in issue. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Here, Stuart does
not challenge the adequacy of Idaho Code § 19-2719 to the extent that it was applied to
dismiss his claims of prosecutorial misconduct. (Dkt. 105.) Respondent has carried his
MEMORANDUM DECISION AND ORDER - 13

initial burden, and this Court has no reason to question whether the Idaho Supreme
Court’s use of Idaho Code § 19-2719 to default these claims was adequate to prevent
federal habeas review.3
Moreover, contrary to Stuart’s argument, the subclaims are not sentencing claims
that are saved by Beam.
Claim 3
In his third claim, Stuart contends that the trial court failed to provide adequate
resources for his defense to investigate the witnesses who testified about his prior bad
acts, which violated his rights under the Sixth, Eighth, and Fourteenth Amendments. He
did not fairly present this claim to the Idaho Supreme Court, and it is not a Beam claim
that was implicitly reviewed.
Claim 4
In this claim, Stuart challenges the trial court’s admission of trial testimony from
his ex-wives and girlfriends about abuse that they had suffered at his hands, which was
admitted solely for the “purpose of attempting to show motive or intent on the part of
[Stuart] to torture the deceased.” (State’s Lodging A-6, p. 488.) He contends that the
admission of the prior bad acts evidence violated his right to a fair trial under the
Fourteenth Amendment and his right to a “reliable sentence” under the Eighth
Amendment. (Dkt. 78, p. 22.)
3

Stuart does challenge the adequacy of the Idaho Supreme Court’s use of Idaho Code § 19-2719
to bar his claims of ineffective assistance of counsel, which will be discussed later in this Memorandum
Decision.
MEMORANDUM DECISION AND ORDER - 14

Although Stuart raised a claim during the direct appeal challenging the admission
of this evidence, he relied solely on state evidentiary rules and case law interpreting those
rules. (State’s Lodging B-1, pp. 44-51.) His failure to present the same federal grounds
that he now includes in his Amended Petition means that the federal claim was not
properly exhausted and is procedurally defaulted.
Claim 5
Stuart alleges that he was “tried by biased jurors in violation of his right to an
impartial jury trial as guaranteed by the Sixth and Fourteenth Amendments,” and, again,
that this constitutional error rendered his death sentence “unreliable.” (Dkt. 78, p. 23.) On
direct appeal, he challenged the lower court’s decision to change venue to a nearby
county. (State’s Lodging B-1, pp. 52-53.) In framing the issue, he alleged that the “trial
court prevented appellant from obtaining a fair and impartial trial by jury of his peers as
mandated by the Constitutions of the United States and of the State of Idaho.” (State’s
Lodging B-1, pp. 52-53.) In the body of his argument he cited Irwin v. Dowd, 366 U.S.
717 (1961), a case that examined the impact of inflammatory pre-trial publicity on a
defendant’s right to a impartial jury under the Sixth Amendment. (Id. at 53.) This was
sufficient to alert the Idaho Supreme Court that he was claiming a violation of his
constitutional right to an unbiased jury because of the supposedly extensive media
coverage, exhausting Claim 5 on that ground, but the unreliable sentencing claim is not
properly exhausted.

MEMORANDUM DECISION AND ORDER - 15

Claim 6
Stuart next asserts that the trial court’s jury instructions – particularly Jury
Instructions 17 and 18 – created a reasonable likelihood that he was convicted without a
finding of proof beyond a reasonable doubt on the specific intent element of first degree
murder by torture. (Dkt. 78, p. 24.) Respondent appears to concede that a similar due
process issue was put before to the Idaho Supreme Court during the direct appeal, but he
contends that Stuart did not assert the issue in a procedurally proper manner under state
law. Stuart counters that the claim was fairly presented to the Idaho Supreme Court.
To resolve this dispute, it is necessary to trace the circuitous path that the issue
took in the state courts. In his opening brief on direct appeal, Stuart argued that the
evidence was insufficient to support his conviction of first degree murder and that the trial
court had erred in not instructing the jury to consider the lesser included offense of
second degree murder by torture. (State’s Lodging B-1, pp. 37-44, 84.) To support both of
these arguments, he discussed the different levels of intent that distinguish first degree
murder from second degree murder under a torture theory, but he did not challenge the
phrasing of the instructions that had actually been given to the jury. Instead, the
possibility of a constitutional infirmity in the trial court’s instructions was first raised by
Justice Bistline in his dissent from the original Idaho Supreme Court opinion. See Stuart,
715 P.2d at 856-58, 865-66 (Bistline, J., dissenting).
Stuart picked up on Justice Bistline’s concerns and filed a petition for rehearing in
which he referred to the dissent and asserted that Jury Instruction 18 “relieved the jury
MEMORANDUM DECISION AND ORDER - 16

from any responsibility to find proof of intent to cause suffering.” (State’s Lodging B-5,
p. 3.) The Idaho Supreme Court granted Stuart’s petition “as to the single issue of Jury
Instruction Number 18 concerning proof of intent,” and it set a briefing schedule. (State’s
Lodging B-8.)
After the petition was granted, but before oral argument, the Idaho Solicitor
General asserted in his brief that Stuart was raising an entirely new issue that should not
be considered within the procedural posture of a petition for rehearing. (State’s Lodging
B-6.) This argument was discussed during the oral argument, see Stuart, 715 P.2d at 900903 (Bistline, J., dissenting) (quoting a colloquy from the oral argument), but the Idaho
Supreme Court’s opinion on rehearing states only that “[t]he Court has reviewed the
record and considered the arguments presented by counsel, and continues to adhere to the
views expressed and the conclusion reached in the earlier opinion.” Id. at 897. Justice
Bistline dissented again, concluding, in relevant part, that “[u]nder either state or federal
notions of constitutional due process, the instructions given in this case, as discussed
earlier, deprived Stuart of a fair trial.” Id. at 904.
Based on this series of events, Respondent contends that the Idaho Supreme Court
accepted the Solicitor General’s procedural argument that the claim was barred from
review on the merits. The problem for Respondent is that the Idaho Supreme Court never
gave a clear indication that it agreed with that argument.
Generally, the doctrine of procedural default “does not bar consideration of a
federal claim on either direct or habeas review unless the last state court rendering a
MEMORANDUM DECISION AND ORDER - 17

judgment in the case ‘clearly and expressly’ states that its judgment rests on a state
procedural bar.” Harris v. Reed, 489 U.S. 255, 262-63 (1989). In ambiguous cases, a
presumption will arise that the state court reached the merits of the federal claim only
“where a federal court has good reason to question whether there is an independent and
adequate state ground for the decision.” Coleman v. Thompson, 501 U.S. 722, 739 (1991)
(quoting Michigan v. Long, 463 U.S. 1032, 1040–41 (1983)).
Here, the Idaho Supreme Court did not “clearly and expressly” state that its
judgment was based on a state appellate rule or practice that prohibited losing parties
from raising new issues in a petition for rehearing. See Harris, 489 U.S. at 262-63. At
best, the Idaho Supreme Court’s opinion is ambiguous, but this Court is not persuaded by
Respondent’s argument that the record provides a “good reason” to believe that the state
court’s judgment rested on a procedural ground rather than the merits. All indications
point in the other direction. Had the Idaho Supreme Court denied the petition for
rehearing without giving an explanation, then Respondent’s argument would have more
force, but the Idaho Supreme Court granted Stuart’s petition and chose to rehear the case
on “the single issue of Jury Instruction Number 18 concerning proof of intent.” (State’s
Lodging B-8.) It then issued a short opinion in which it declared only that it had
“reviewed the record and considered the arguments presented by counsel”– suggesting
that it took into consideration arguments on the merits within the context of the record –
but continued “to adhere to the views expressed and the conclusion reached in the earlier
opinion.” Stuart, 715 P.2d at 897. A fair reading of this language is that the court was not
MEMORANDUM DECISION AND ORDER - 18

convinced that the claim had sufficient merit to alter its disposition of the case. If the
court had been persuaded by the Solicitor General’s procedural argument, it would have
been a simple matter for it to vacate its order granting the petition for rehearing as
improvidently granted, or to indicate in its opinion that the issue was not properly before
it and would not be considered. Indeed, in all of the cases that Respondent has cited in his
brief the Idaho appellate courts took the latter action. (Dkt. 92-1, pp. 21-22.)
The Court therefore concludes that Respondent has not carried his ultimate burden
to establish that the due process portion of this claim rests on an independent and
adequate state procedural ground. That portion of Claim 6 will not be dismissed as
procedurally defaulted. As with the other claims, however, Stuart never raised an reliable
sentencing argument under the Eighth Amendment in the state courts, and that aspect of
the claim is procedurally defaulted.
Claim 7
Stuart asserts that the evidence was insufficient to convict him beyond a
reasonable doubt. He raised a sufficiency of the evidence issue in the Idaho Supreme
Court during the direct appeal, citing a state case that framed the issue as one arising
under the Due Process Clause of the Fourteenth Amendment. (State’s Lodging B-1, p. 42)
(citing State v. Erwin, 572 P.2d 170 (Idaho 1977)).
Respondent contends that Stuart is now attempting to fundamentally alter the claim
because he alleges in his Amended Petition that the evidence was constitutionally
insufficient to support his conviction only after “the irrelevant evidence is removed from
MEMORANDUM DECISION AND ORDER - 19

consideration,” by which he presumably means the prior bad acts evidence that was
admitted at trial. (Dkt. 78, p. 28.) It is unclear whether Stuart intends to limit the claim
solely to this legal theory, because he also alleges much more generally that the “jury was
allowed to convict on the basis of insufficient evidence of murder by torture,” which
“violated [his] right to due process as guaranteed by the Fourteenth Amendment and to a
reliable sentence as guaranteed by the Eighth and Fourteenth Amendments. Jackson v.
Virginia [, 443 U.S. 307 (1979).]” (Id.)
The Court will give Stuart the benefit of the doubt and conclude that the
Fourteenth Amendment due process claim is properly exhausted, but only insofar as it is
based on a review of all of the evidence presented at the criminal trial under the Jackson
standard. Any legal theory that turns on the exclusion of supposedly irrelevant evidence
from the analysis fundamentally changes the nature of the issue that Stuart actually
presented to the Idaho Supreme Court and would be procedurally defaulted. Regardless,
such a novel theory has no basis in law. See, e.g., McDaniel v. Brown, 130 S.Ct. 665,
671-72 (2010) (holding that when assessing whether the evidence was sufficient to
convict, a reviewing court must consider all of the evidence admitted by the trial court,
regardless whether it was admitted erroneously). The reliable sentencing component of
this claim is procedurally defaulted.
Claim 8
In Claim 8, Stuart asserts that the “trial court committed constitutional error by not
instructing on the lesser included offense of second degree murder by torture.” (Dkt. 78,
MEMORANDUM DECISION AND ORDER - 20

p. 29.) During the direct appeal, Stuart raised an issue related to the trial court’s failure to
instruct on second degree murder by torture, see State’s Lodging B-1, pp. 83-86, but the
Idaho Supreme Court declined to address the merits after concluding that Stuart’s trial
counsel had invited any error by not requesting the instruction. Stuart, 715 P.2d at 83940.
Eleven years after Stuart was convicted, the Idaho Supreme Court held in a
different case that a trial court had erred in not instructing the jury to consider second
degree murder by torture as a lesser included offense of first degree murder by torture.
State v. Tribe, 852 P.2d 87, 91-92 (1993). Relying on Tribe, Stuart filed a motion for
relief from judgment, which was dismissed by the district court. The Idaho Supreme court
affirmed the lower court’s decision after concluding that Tribe did not retroactively apply
to Stuart’s case. Stuart, 914 P.2d at 934.
Respondent argues that while “an issue regarding included offenses was raised on
direct appeal,” the claim is shielded from federal review because the Idaho Supreme
Court’s invoked a state rule – the “invited error doctrine” – to reject it. (Dkt. 92-1, p. 23.)
Respondent further contends that the Idaho Supreme Court’s dismissal of the claim a
second time, on the ground of non-retroactivity, is also an independent and adequate state
procedural bar. (Id. at 24.) Stuart responds that Idaho’s invited error doctrine was not
firmly established or regularly followed when the claim was allegedly defaulted, but he
does not address Respondent’s non-retroactivity argument. (Dkt. 105, p. 11.)
Respondent’s argument raises several complex issues that are not fully addressed
MEMORANDUM DECISION AND ORDER - 21

in the parties’ current briefing, and the Court chooses to reserve its ruling on the
procedural default question until after Respondent has filed an answer. For the parties’
benefit, the Court will set out its initial considerations here.
First, although Respondent admits that Stuart raised “an issue regarding included
offenses” on direct appeal, it is not clear whether Respondent concedes that the issue was
framed as a federal constitutional one. A review of Stuart’s state court briefing leaves the
Court uncertain, and arguments can be made either way. (See State’s Lodging B-1.)
But if Respondent does concede that a federal claim was raised on direct appeal,
then this Court doubts that the manner in which the Idaho Supreme Court interpreted and
applied the “invited error doctrine” to dispose of this type of issue was firmly established
at the time or that the state courts have since consistently applied the rule in the same
context. See State v. Lopez, 593 P.2d 1003 (Idaho 1979) (holding that trial courts have a
duty to instruct on lesser included offenses, even when not requested, and finding invited
error only because counsel affirmatively opposed the trial court’s invitation to give an
instruction); see also State v. Blake, 985 P.2d 117 (Idaho 1999) (“counsel’s concurrence
did not invite the court to give the challenge instructions; the judge already made that
decision.”). And if the Idaho Supreme Court relied on an inadequate procedural bar to
reject a fairly presented constitutional claim, then its decision to bar review of the claim a
second time in a later collateral appeal would likely be irrelevant to the exhaustion issue.
This is so because a petitioner is not required to revisit claims that have been exhausted
on direct appeal, or to seek some other extraordinary avenue for relief. See O’Sullivan v.
MEMORANDUM DECISION AND ORDER - 22

Boerckel, 526 U.S. at 844 (citations omitted).
On the other hand, if Stuart did not frame a constitutional issue on direct appeal,
and the issue that was presented arose solely under state law, then this Court would have
no reason to question whether the Idaho Supreme Court had consistently applied the
invited error doctrine. The focus would instead shift to the adequacy of the Idaho
Supreme Court’s decision during the proceedings on the subsequent motion for relief
from judgment, where Stuart clearly asserted constitutional issues.
For these reasons, the Court chooses to defer its decision as to whether Claim 8 is
procedurally defaulted until Respondent has filed an answer and the parties have briefed
the merits of the claim.
Claim 9
Stuart asserts that the statutes defining first degree murder by torture are
unconstitutionally vague because they do not “adequately define torture.” (Dkt. 78, p. 31.)
He never raised this claim in the Idaho Supreme Court, and because the time to do so has
passed, the claim is procedurally defaulted.
Claim 10
In this claim, Stuart contends that his death sentence is disproportionate to the
crime that he committed because the verdict was “returned on the basis of jury
instructions which did not require any intent to kill or other mens rea regarding the
victim.” (Dkt. 78, p. 31.) Stuart raised a proportionality issue under the Eighth
Amendment in the Idaho Supreme Court during the direct appeal, but it was based on the
MEMORANDUM DECISION AND ORDER - 23

nature of his crime and a comparison with similarly situated defendants without reference
to the jury instructions defining intent. (State’s Lodging B-1, pp. 75-81.) His attempt to
transform this claim into an instructional issue is unavailing, and the claim is properly
exhausted only to the extent that it is commensurate with the way it was framed in the
Idaho Supreme Court.
Claim 11
For his next claim, Stuart challenges the heinous, atrocious, and cruel and
propensity to commit murder aggravating circumstances as unconstitutionally vague and
as not supported by sufficient evidence to prove the circumstances beyond a reasonable
doubt. Stuart fairly presented and properly exhausted these same basic constitutional
claims in the Idaho Supreme Court during the direct appeal. (State’s Lodging B-1, pp. 6071.) His focus on different facts in federal court does not fundamentally alter the nature of
the legal claims that were presented. The sufficiency of the evidence issues would also
qualify as Beam claims that were “implicitly” reviewed by the Idaho Supreme Court.
Claim 12
Stuart contends that he was sentenced to death based on illegally obtained
evidence. (Dkt. 78, p. 42.) Though the precise nature of this claim is unclear, it appears to
center on evidence obtained by (1) the Clearwater County Sheriff’s Office’s secret
monitoring of Stuart’s telephone calls with his attorney and (2) state agents who
interviewed Stuart directly and used Kathy Miller as a conduit to seize incriminating
evidence. Stuart asserts that the Idaho Supreme Court committed a constitutional error in
MEMORANDUM DECISION AND ORDER - 24

relying on the second source of information (interviews with Stuart and seized physical
evidence) to justify exceptions to the exclusionary rule stemming from a constitutional
violation related to the first source of information (monitoring of telephone calls).
According to Stuart, the State violated his constitutional rights in both instances.
As explained with respect to Claims 1 and 2C, Stuart has not fairly presented
constitutional claims to the Idaho Supreme Court related to any pretrial interviews with
law enforcement officers or to the State’s alleged use of Kathy Miller as its agent to
gather evidence. The claim is procedurally defaulted.
Claim 13
Stuart claims that “[t]he trial court’s finding and the Idaho Supreme Court’s
affirming that the state proved that the evidence discovered through the illegal monitoring
of Petitioner’s attorney-client conversations were not subject to the exclusionary rule was
not supported by the evidence, in violation of the Petitioner’s Fourteenth Amendment
right to due process and his Eighth Amendment right to a reliable sentence.” (Dkt. 78, p.
45.)
Stuart raised a constitutional claim related to the monitoring of his attorney/client
conversations under the Sixth and Fourteenth Amendments. That claim is properly
exhausted and raised again in the Amended Petition, but to the extent Stuart is attempting
to raise a separate claim based solely on the supposed insufficiency of the evidence to
support the Idaho Supreme Court’s finding that an exception to the exclusionary rule
applied, he never raised a claim in that fashion in the state courts. Claim 13 was not
MEMORANDUM DECISION AND ORDER - 25

properly exhausted and is procedurally defaulted.
Claims 14, 15, 16, 17, 18, 19, 20, and 21
In these eight claims, Stuart focuses on the sentencing court’s alleged errors when
it considered the appropriate penalty and imposed a death sentence. These are Beam-type
claims that were “implicitly” reviewed as part of the Idaho Supreme Court’s automatic
review responsibilities. They will not be dismissed as procedurally defaulted.
Claim 22
Stuart alleges that he was deprived of his constitutional right to a speedy trial. This
claim is properly exhausted under the Sixth Amendment but not under a due process
theory based on an alleged deprivation of a state-created liberty interest under Idaho’s
statute governing speedy trials.
Claim 23
Stuart next contends that his right to due process to meaningful appellate review
was violated based on the failure to record and transcribe certain parts of the proceedings
in state trial court. This claim was never raised in the Idaho Supreme Court and is now
procedurally defaulted.
Claim 24
Stuart raises several sub-issues related to the lack of jury participation during his
capital sentencing proceeding.
Subclaim A
Here, he asserts that “Idaho’s refusal to retroactively apply Ring v. Arizona
MEMORANDUM DECISION AND ORDER - 26

violates Petitioner’s and prospective jurors’ fundamental rights.” (Dtk. 78, p. 60.) A
passing reference to equal protection and due process was made in the joint opening and
reply briefs in the 2010 Ring retroactivity appeal, but the reference was in the context of a
different issue. (State’s Lodging N-2, pp. 22; State’s Lodging N-3, p. 13.) This claim was
then squarely presented in the brief supporting the petition for rehearing, filed after the
Idaho Supreme Court issued its opinion, in which the joint petitioners claimed that
“applying Teague [v. Lane, 489 U.S. 288 (1989] to deny retroactive application of Ring
violates Petitioners’ and prospective jurors federal and state constitutional equal
protection and due process rights.” (State’s Lodging N-9, p. 3.) The petition was denied
without comment. (State’s Lodging N-10.)
Respondent asserts that this was an improper way in which to raise a claim in the
Idaho Supreme Court, but he has not explained what other procedural avenue would be
open to a litigant who wishes to claim that the Idaho Supreme Court has itself erred
during the appellate process. Given the nature of the claim, which appears to challenge
the Idaho Supreme Court’s application of the Teague retroactivity doctrine for the first
time to dispose of Ring issues, the Court finds that it was fairly presented in the only
manner that was available to Stuart. If Idaho has no corrective process in which to raise
such a claim, then the exhaustion requirement would be excused. 28 U.S.C.
§ 2254(b)(1)(B).
Subclaim B
Stuart contends that because “Idaho constitutional and statutory law uniformly
MEMORANDUM DECISION AND ORDER - 27

mandates that a jury must decide whether sentencing factors exist,” his rights to “equal
protection and due process as guaranteed by the Fourteenth Amendment . . . as well as his
Eighth Amendment right to a reliable sentence” were violated because a judge sentenced
him to death. (Dkt. 78, p. 63.) This claim was never raised in the Idaho Supreme Court,
and because it is a broad-based attack on Idaho’s death penalty scheme as it existed at the
time that Stuart was sentenced to death, it is not saved by Beam.
Subclaim C
Stuart claims that his death sentence is “constitutionally infirm because once [he]
was determined eligible for a death sentence, a jury did not find facts necessary to its
imposition.” (Dkt. 78, p. 64.) This appears to be a straightforward argument that his Sixth
Amendment right to a jury trial was violated because a judge instead of a jury found the
aggravating circumstances to support the death sentence. Stuart raised this issue in his
direct appeal, and it is properly exhausted. (State’s Lodging B-1, pp. 81-83.)
Subclaim D
In the final sub-part, Stuart asserts that the rights of prospective jurors were
violated for all the same reasons that his were. (Dkt. 78, p. 65.) The only time that Stuart
mentioned the rights of jurors in state court was in his petition for rehearing during the
2010 Ring appeal, and here he does not place the issue within the confines of applying the
Teague doctrine. Accordingly, this subclaim has not been properly exhausted and is
procedurally defaulted.

MEMORANDUM DECISION AND ORDER - 28

Claim 25
Stuart contends that the Idaho Supreme Court’s application of the invited error
doctrine to find that he waived an argument that the trial court erred in failing to give a
lesser included offense instruction violated his right to due process under the Fourteenth
Amendment. While the perceived inadequacy of the invited error doctrine may support an
argument for excusing a procedural default of the lesser included offense issue, Claim 8,
Stuart did not raise this as a stand-alone constitutional claim in the Idaho Supreme Court,
and the time to do so has long since passed. Claim 25 is procedurally defaulted.
Claim 26
Stuart contends that the dismissal of his first post-conviction petition without an
evidentiary hearing violated his rights under state law, which in turn deprived him of a
state-created liberty interest without due process of law under the Fourteenth
Amendment. Although Stuart challenged the summary dismissal of his post-conviction
petition (State’s Lodging D-1, pp. 14-29), he did so only on state law grounds. He has not
exhausted a due process claim, and it is now procedurally defaulted.
Claim 27
In Claim 27, Stuart alleges that he was deprived of his constitutional right to the
effective assistance of counsel on several grounds. He raised ineffective assistance of
counsel claims for the first time in his 2002 successive post-conviction petition, which the
district court dismissed as untimely under Idaho Code § 19-2719(3) and (5).
On appeal, the Idaho Supreme Court affirmed on the ground that Stuart had failed
MEMORANDUM DECISION AND ORDER - 29

to comply with a “heightened pleading requirement” for successive post-conviction
petitions. Stuart, 232 P.3d at 818-20, 825-26. Citing earlier case law, the court stated,
“‘[a] petitioner bringing a successive petition for post-conviction relief has a heightened
burden and must make a prima facie showing that issue raised in that petition fit within
the narrow exception provided by the statute.” Id. at 819 (quoting Pizzuto v. State, 903
P.2d 58, 60 (Idaho 1995)(citing Paz, 852 P.2d at 1357). The court concluded that
“Stuart’s claims for post-conviction relief are barred because of his failure to plead facts
showing that he did not know and could not reasonably have known earlier of those
claims.”Id. at 826.
The court also turned aside Stuart’s various constitutional challenges to Idaho
Code § 19-2719, including his argument that it should not apply because he was
sentenced before it was enacted. Id. at 820-26. The court instead found that the statute
operated prospectively from the date of its enactment in cases such as Stuart’s, meaning
that the 42-day limitations period in Idaho Code § 19-2719(3) began to run as to Stuart’s
post-conviction claims in 1984. See id. at 821 (holding that the statute of limitations
“began at the date of enactment for those cases involving convictions occurring at an
earlier date”).
Relying on the Idaho Supreme Court’s opinion, Respondent argues that Stuart has
defaulted all of his claims of ineffective assistance of counsel.

MEMORANDUM DECISION AND ORDER - 30

1.

Stuart Fairly Presented His Claims in the Manner That Was Available to
Him

Initially, Respondent asserts that Stuart “did not challenge the dismissal of his
claims based upon the merits, but elected to challenge the applicability and
constitutionality of [Idaho Code § 19-2719], [and] his ineffective assistance of counsel
claims are procedurally defaulted.” (Dkt. 92-1, p. 41.) Respondent contends that Stuart
simply failed to brief the merits of the constitutional issues before the Idaho Supreme
Court, and, as a consequence, they were not fairly presented to the highest state court.
The Court is not persuaded by this argument. While it is no doubt true that Stuart’s
appellate briefing focused on the applicability of Idaho Code § 19-2719 to his successive
petition rather setting out the merits of his underlying claims, the ruling from which Stuart
was appealing was a procedural one. Stuart was not seeking an opinion from the Idaho
Supreme Court as to the constitutionality of the statute as an abstract matter; he was
instead asking for a decision from the appellate court that would find the procedural bar
inapplicable and remand the case to the state district court, which would then be required
to take up the merits of the constitutional claims in the first instance. Respondent has not
explained how, under customary Idaho appellate practice, the Idaho Supreme Court might
have reached the merits of these claims without first reversing the district court’s
procedural ruling and remanding for further consideration.
In addition, a review of the Idaho Supreme Court’s opinion reveals that it was
aware of the nature of the federal claims that were put before it in the post-conviction
MEMORANDUM DECISION AND ORDER - 31

action, which included “an ineffective assistance of counsel claim based on the
representation provided by the attorney who represented Stuart at trial, on direct appeal
and in connection with his first two post-conviction petitions.” Stuart, 232 P.3d at 817-18.
2.

Idaho Code § 19-2719, as Applied to These Claims, is not Adequate to Bar
Federal Review

Respondent next argues that the Idaho Supreme Court’s invocation of the
“heightened pleading requirement” in Idaho Code § 19-2719 for successive petitions is an
independent and adequate procedural bar that prevents federal review of the ineffective
assistance of counsel claims. Stuart counters that the rule is not adequate to bar
consideration of his claims. The Court agrees.
To be adequate, a state rule must be “clear, consistently applied, and wellestablished.” Wells v. Maass, 28 F.3d 1005, 1010 (1994). Novel procedural rules do not
bar federal review because petitioners are not put on sufficient notice that they must
comply. Ford v. Georgia, 498 U.S. 411, 423-25 (1991); NAACP v. Alabama, 357 U.S.
449, 354-358 (1958). In this vein, “state procedural rules with overly vague standards do
not provide petitioners with sufficient notice of how they may avoid violating the rule.
Furthermore, poorly defined procedural rules do not provide courts the guidance required
for consistent application.” King v. LaMarque, 464 F.3d 963, 965-66 (9th Cir. 2006).
Likewise, the “exorbitant application of a generally sound rule renders the state ground
inadequate to stop consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376
(2002). A clear procedural rule will not be inadequate, however, merely because the state
MEMORANDUM DECISION AND ORDER - 32

courts exercise the discretion to apply the rule in some cases but not others. Walker v.
Martin, 131 S.Ct. 1120, 1127-28 (2011) (quoting Beard v. Kindler, 130 S.Ct. 612, 617
(2009)).
The Idaho Supreme Court’s reliance on the “heightened pleading requirement” as
a means of establishing the limited exception to waiver for previously unknown claims in
Idaho Code § 19-2719(5) suffers from two infirmities. First, it was neither clear nor wellestablished at the time of Stuart’s default that it was even possible for a death-sentenced
prisoner to allege facts that might excuse his failure to raise claims of ineffective
assistance of trial counsel within 42 days of judgment (or, here, within 42 days of the
enactment of the statute). Except for one minor variation, in over 25 years the Idaho
Supreme Court had consistently found such claims to be “known” within 42 days and
waived if not pled in that time period. Second, the Idaho Supreme Court’s default of the
claims in this case implicates the same core fairness concerns that excused a similar
default in Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001).
As to the first point, the Idaho Supreme Court’s decision implies that a petitioner
may be able to plead sufficient facts that would excuse his failure to raise allegations of
ineffective assistance of trial counsel within the 42-day statute of limitations. This is a
significant departure from past practice. The Idaho Supreme Court has long held that
ineffective assistance of trial counsel is a claim that “should be reasonably known
immediately upon the completion of the trial and can be raised in a post-conviction
proceeding.” State v. Rhoades, 820 P.2d 665, 677 (Idaho 1991). It has remained steadfast
MEMORANDUM DECISION AND ORDER - 33

even in the face of an argument that such claims are impossible to assert when the same
attorney represents the defendant at trial and then again in the post-conviction action;
brushing aside those concerns, it has stated that such claims are knowable even “where
the petitioner was represented by the same attorney at trial, on direct appeal, and in the
first post-conviction proceeding.” See, e.g., McKinney v. State, 992 P.2d 144, 150 (Idaho
1999). It has departed from this line of case law only when a petitioner’s prior counsel
failed to assert any post-conviction claims whatsoever. See Dunlap v. State, 961 P.2d
1179, 1180 (Idaho 1998).
Given this fixed landscape, the Court agrees with Stuart that he was not reasonably
on notice that the Idaho Supreme Court might change course and find that his claims of
ineffective assistance of trial counsel could have fit within Idaho Code § 19-2719(5)’s
exception, but only if he had pled specific facts to alert the state courts that the claims
were not knowable within 42 days. The Idaho Supreme Court effectively moved the goal
posts on Stuart, penalizing him for accepting its case law and focusing his attack on the
constitutionality of Idaho Code § 19-2719 rather than attempting to show that he could fit
within the exception for unknown claims.
What’s more, post-Stuart it is still a bit of a mystery as to the type of factual
allegations that might make out a prima facie case to satisfy the exception. The Idaho
Supreme Court was aware that Stuart had been represented by the same attorney for 14
years – spanning the criminal trial, appeal, and first two post-conviction proceedings –
and yet that was not enough to convince a majority of the court that he had alleged
MEMORANDUM DECISION AND ORDER - 34

sufficient facts to show that his claims were not reasonably knowable before the
limitations period expired. If there are no facts that would satisfy the heightened pleading
requirement for this type of claim, then the exception would be illusory.4
Even if the Idaho Supreme Court relied on a firmly established and regularly
followed state procedural bar, the Court finds that the default of Claim 27 is also excused
under Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001).
In Hoffman, the petitioner was represented by the same attorneys during his trial,
his initial state post-conviction matter, and during the consolidated appeal from those
proceedings. Id. at 528, 532-33. The Ninth Circuit held that because counsel could not
have been expected to argue their own ineffectiveness at the time that they were required
to do so, strict enforcement of Idaho Code § 19-2719 frustrated the petitioner’s right to
raise that particular constitutional claim in state court in the time frame required by the
statute. Id. at 534-36. In reaching that conclusion, the Court remarked that “Idaho’s fortytwo day filing deadline, as applied to Hoffman, is uniquely harsh.” Id. at 534. Because
Ҥ 19-2719 effectively prevented Hoffman from timely raising his ineffective assistance

4

The Court notes that Idaho Supreme Court has recognized that claims of ineffective assistance
of appellate counsel are not knowable within 42 days of judgment because the direct appeal has not yet
begun before the deadline expires. See Paz v. State, 852 P.2d 1355, 1357 (Idaho 1993). As a result, the
Idaho Supreme Court has generally required that claims of ineffective assistance of appellate counsel be
raised within a reasonable time of when they could have been discovered, which is tied to the date on
which the opening brief on appeal was filed. This could implicate a slightly different analysis with respect
to the application of a “heightened” pleading requirement to bar those particular claims.
But because of the interconnected manner in which Stuart has asserted his allegations in Claim
27, it is difficult to disentangle those claims alleging ineffectiveness at trial from those claims alleging
ineffectiveness on appeal. In any event, as discussed below, the default of all claims would be excused
under the Hoffman rationale.
MEMORANDUM DECISION AND ORDER - 35

of counsel claims,” he was allowed to go forward with those claims in federal court. Id. at
536.
The fairness concerns that animated Hoffman also exist here. Stuart had the same
attorney, Robert Kinney, at trial, on direct appeal, and again in post-conviction matters
until 1995. As in Hoffman, Kinney failed to raise his own ineffectiveness on Stuart’s
behalf when he would have been required to do so to avoid a presumed waiver under
Idaho Code § 19-2719(3) and (5), and Stuart’s right to seek review of this fundamental
constitutional right was frustrated by the harsh application of the statute. This is also true
of Stuart’s claims of ineffective assistance of appellate counsel because Kinney continued
to represented Stuart beyond the “reasonable time” that those claims must have been
raised to be timely. See Paz v. State, 852 P.2d 1355, 1357 (Idaho 1993) (marking the
beginning of the statute of limitations for these claims as the filing of the opening brief on
appeal).
In reaching this latter conclusion, the Court is not persuaded by Respondent’s
assertion that Leavitt v. Arave, 371 F. 3d 663 (9th Cir. 2004), determined conclusively
that the Hoffman rule can never excuse the default of claims of ineffective assistance of
appellate counsel. It is true that the Ninth Circuit noted that “Hoffman has nothing to say”
about the default of such claims in Leavitt because “we have not been directed to any case
that construes ‘reasonable time’ in an overly restrictive manner.” Id. at 693. But the Ninth
Circuit was focused on whether the time frame for raising this type of claim was itself
unduly restrictive, and apparently did not consider whether the reasoning in Hoffman
MEMORANDUM DECISION AND ORDER - 36

would logically apply when an otherwise “reasonable time” expired while the same
attorney continued to represent the petitioner in post-conviction matters for many years.
In an apparent effort to avoid Hoffman, Respondent separates the heightened
pleading requirement from the timeliness and waiver provisions in Idaho Code § 19-2719.
He suggests that, unlike Hoffman, the Idaho Supreme Court never reached the question of
whether Stuart’s claims were timely or waived:
[I]t was Stuart’s failure to comply with the heightened pleading requirement
that prevented the court from determining whether his claims fit within the
exception of I.C. § 19-2719, particularly in light of the Ninth Circuit’s
decision in Hoffman, and his request that the supreme court reconsider its
prior holding. If Stuart had complied with the “heightened pleading
requirement” of I.C. § 19-2719, the court could have determined whether
his claims were timely.
(Dkt. 118, p. 9.)
In the Court’s view, this is a distinction without a meaningful difference. The
heightened pleading requirement does not exist for its own sake; it is the only means by
which a petitioner can prove the limited exception to the automatic waiver rule for claims
that were not raised within the statutory deadline in Idaho Code § 19-2719(3). In other
words, the statute operates in such a way as to raise a presumption that any claim not
asserted “within the time limits specified” in Idaho Code § 19-2719(3) is untimely and
therefore waived, subject only to the petitioner taking on a heightened burden to rebut
that presumption by pleading specific facts to show that he could not have known of the
claim by the deadline. Idaho Code § 19-2719(5). As applied to this case, then, the Idaho
Supreme Court necessarily decided that the new claims were untimely and waived by
MEMORANDUM DECISION AND ORDER - 37

operation of the statute because Stuart had not carried his burden to plead facts showing
that the exception for unknown claims applied. And because the limitations period that
resulted in the time bar and waiver expired when Robert Kinney was still representing
Stuart – either within 42 days of the statute’s enactment in 1984 for trial counsel claims or
within a “reasonable time” of the opening brief on appeal for appellate counsel claims –
Hoffman is on point.
As a rear-guard effort, Respondent turns to Justice Kidwell’s concurring opinion.
(Dkt. 92-1, p. 42; Dkt. 118, p. 12.) Apparently persuaded by the logic of Hoffman, Justice
Kidwell concluded that “ineffective assistance of counsel claims raised by petitioners
represented by the same counsel at trial and during initial post-conviction proceedings
cannot be ‘reasonably known’ under I.C. § 19–2719(5).” 232 P.3d at 826 (Kidwell, J. Pro
Tem, concurring). He instead believed that the limitations period for those claims should
be tolled until new counsel is appointed. Id. In his view, Stuart had a reasonable time in
which to present his claims after the appointment of new counsel in 1995, and a delay of
seven years was not reasonable. Id. at 826-27.
Respondent argues that the concurring opinion tends show that Stuart’s claims
would still be barred under state law because he did not raise them within a reasonable
time after the appointment of a new attorney in state district court. (Dkt. 92-1, p. 42.) This
was not the majority opinion’s rationale, and Justice Kidwell’s sensible approach did not
command even a single additional vote. See Stuart, 232 P.3d at 825 (“[w]e do not adopt
the broad rule pronounced in Hoffman in this case.”). The majority’s reluctance to follow
MEMORANDUM DECISION AND ORDER - 38

Justice Kidwell’s lead on this point is perplexing considering that since the mid-1990s
new attorneys are routinely appointed to represent death-sentenced defendants in Idaho
post-conviction matters, and the practical effect of re-visiting its pre-Hoffman decisions to
find that a petitioner cannot reasonably know of these particular claims until new counsel
has been appointed would have been negligible. In fact, this Court is unaware of any case
other than Stuart’s that has not yet worked its way once through state and federal postconviction proceedings that still presents a potential Hoffman problem. A state procedural
bar is “independent and adequate only if the last state court to which the petitioner
presented the claim ‘actually relied’ on a state rule that was sufficient to justify the
decision.” Carter v. Gurbino, 385 F.3d 1194, 1197 (9th Cir. 2004). This Court is not free
to shift from the procedural bar that the state court actually invoked to one that may be
more appropriate.
For these reasons, the Court concludes that Respondent has failed to carry his
burden to establish that the state court’s reliance on Idaho Code § 19-2719 is adequate to
prevent review of Claim 27.
Claim 28
Stuart alleges that cumulative error deprived him of a fair trial and a reliable
sentencing hearing. He has never raised a cumulative error issue in the Idaho Supreme
Court, and this claim is procedurally defaulted.
Claim 29
For his final claim in the Amended Petition, Stuart asserts that the length of time
MEMORANDUM DECISION AND ORDER - 39

that he has been under a death sentence, and the conditions under which he has served his
time in prison, violate the Eighth Amendment’s prohibition on cruel and unusual
punishment. To the extent that Stuart is challenging his conditions of confinement, such a
claim is more appropriately brought in a civil rights lawsuit under 42 U.S.C. § 1983.
While Stuart raised constitutional claims based on the length of confinement under
a death sentence in the state trial court in his successive post-conviction petition, he chose
not to re-assert the claim in the Idaho Supreme Court. As a result, that aspect of the claim
is procedurally defaulted.
CONCLUSION
The Court finds that the following claims were properly exhausted or that any
default has been excused: 2A (as limited), 5, 6, 7 (limited), 8 (reserved ruling), 10, 11, 13
(limited), 14-21, 22 (limited), 24A, 24C, and 27. Stuart may proceed with these claims.
Conversely, the Court finds that the following claims are procedurally defaulted: 1, 2B,
2C, 2D, 2E, 3, 4, 9, 12, 23, 24B, 24D, 25, 26, 28, and 29.
A habeas petitioner has an opportunity to excuse a procedural default if he can
establish valid cause for the default and actual prejudice as a result of the constitutional
error. Murray v. Carrier, 477 U.S. 478, 488 (1986). To show cause, the 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. Id. at 488. To show
prejudice, the petitioner bears the burden of demonstrating that the errors “worked to his
actual and substantial disadvantage, infecting his entire [proceeding] with errors of
MEMORANDUM DECISION AND ORDER - 40

constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
Stuart contends that the ineffectiveness of his counsel in state court is the cause for
the default of many of the underlying claims in his Amended Petition. (Dkt. 105, p. 29.)
Because this Court has determined that Stuart’s substantive claims of ineffective
assistance of counsel will not be dismissed as procedurally defaulted, it is possible that
they could either serve as an independent basis for relief or as cause to excuse the default
of certain other claims. For that reason, it would be premature to dismiss the defaulted
claims, and the Court will not enter an order of dismissal until such time as Stuart’s
allegations of ineffective assistance of counsel can be resolved.
The Court’s decision regarding all other procedural default matters with respect to
these claims is final.5
ORDER
IT IS ORDERED:
1.

Respondent’s Motion to Dismiss Procedurally Defaulted Claims (Dkt. 92)
is CONDITIONALLY GRANTED in part and DENIED in part, as set forth
above.

2.

The following claims are procedurally defaulted: 1, 2B, 2C, 2D, 2E, 3, 4, 9,

5

The Court recently vacated its order setting a supplemental briefing schedule on whether
ineffective assistance of post-conviction counsel should serve as a cause to excuse any defaulted
substantive claims of ineffective assistance of counsel (here, Claim 27) under Martinez v. Ryan, 132 S.Ct.
1309 (2012). (Dkt. 125.) The Court indicated that it would reset the briefing schedule, if necessary, after
it addressed the procedural default status of the claims at issue in Respondent’s Motion. (Id.) Because the
Court has concluded that Claim 27 will be reviewed, there is no need for additional briefing on Martinez
issues.
MEMORANDUM DECISION AND ORDER - 41

12, 23, 24B, 24D, 25, 26, 28, and 29. The Court reserves its ruling whether
these claims will be dismissed with prejudice on that basis until later in this
proceeding.
3.

The following claims will not be dismissed as procedurally defaulted: 2A
(as limited herein), 5, 6, 7 (limited), 8 (deferred ruling), 10, 11, 13 (limited),
14-21, 22 (limited), 24A, 24C, and 27.

4.

No later than 21 days from the date of this Order, the parties shall confer on
a proposed scheduling order for additional filings in this case and shall
submit a joint proposed scheduling order to the Court, or shall submit
proposed litigation plans separately if the parties cannot agree. The Court
intends to consolidate additional briefing in this case into as few steps as
possible under the circumstances while still maintaining efficiency. It will
likely follow the same course that it followed in Hairston v. Paskett, 1:00cv-00303-BLW, (Dkt. 131, pp. 6-7), requiring: (1) an Answer from
Respondent; (2) Petitioner’s brief on the merits of non-defaulted claims,
which also contains argument as to why new evidentiary development is
needed on selected claims (such as discovery or an evidentiary hearing), or
a motion for new evidentiary development on selected claims filed
separately but simultaneously with a brief on the merits; and (3)
Respondent’s responses to Petitioner’s filings. In fashioning a proposed
scheduling order, counsel should strive to work within this general

MEMORANDUM DECISION AND ORDER - 42

framework in mind, or indicate why departing from it would be more
efficient. To avoid repeated requests for extensions of time, the Court will
consider allowing longer deadlines between filings, within reason, than it
might otherwise consider under a more piecemeal approach.

DATED: September 5, 2012

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

MEMORANDUM DECISION AND ORDER - 43