Anderson, et al v. Idaho, State of

Filing 57

MEMORANDUM DECISION AND ORDER. The Amended Petition for Writ of Habeas Corpus (Dkt. 22 ) is DENIED, and this entire action is DISMISSED with prejudice. A certificate of appealability will not issue. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEVEN ANDERSON,
Petitioner,
vs.

Case No. 1:02-cv00204-BLW
MEMORANDUM DECISION AND
ORDER

WARDEN CARLIN,
Respondent.

On March 31, 2014, Magistrate Judge Larry M. Boyle denied Respondent Warden
Carlin’s Amended Motion for Partial Summary Dismissal on Claims Two, Three, Eight,
and Nine (Dk. 38-2) in this habeas corpus matter, concluding that determining the claims
on the merits would be the most judicially efficient way to address all of Petitioner
Steven Anderson’s claims. Respondent has addressed the merits of the claims and
reserved all procedural defenses in her Response to the Petition for Writ of Habeas
Corpus. Petitioner has filed a Traverse, with exhibits. (See Dkt. 56.)
The Amended Petition, which contains twelve claims, is now fully briefed. (Dkt.
22.) Having reviewed the parties’ briefing and the record in this matter, including the

MEMORANDUM DECISION AND ORDER - 1

state court record, the Court concludes that oral argument is unnecessary. Accordingly,
the Court enters the following Order.
INTRODUCTION AND SUMMARY OF RULING
Petitioner Steven Anderson was convicted of aggravated battery in the Fifth
Judicial District Court in Twin Falls County, Idaho. A judgment of conviction was
entered on May 14, 1999. Petitioner received a unified sentence of fifteen years with
seven years fixed.
The Idaho Court of Appeals has thrice reviewed Petitioner’s conviction and
sentence, and has provided Petitioner with no relief. Petitioner’s conviction and sentence
were affirmed on direct appeal on February 27, 2001. (State’s Lodging B-7.) The state
district court order summarily dismissing Petitioner’s post-conviction petition was
affirmed on June 2, 2006. (State’s Lodging D-15.) The state district court order
summarily dismissing Petitioner’s successive post-conviction petition as procedurally
barred was affirmed on May 30, 2012. (State’s Lodging F-4.)
On direct review, the Idaho Court of Appeals summarized the facts underlying the
conviction as follows:
Pertinent events began with a conversation between Anderson and
his girlfriend, C.B., as C.B. and Brenda Owens were sitting in a car about to
leave Owen's home. While Anderson and C.B. were discussing their
relationship through the passenger window, Anderson became upset,
reached in, and grabbed C.B.’s glasses. C.B., in need of her glasses because
she is able to discern only colors and shapes without them, exited the car
and pursued Anderson up the driveway. On the assumption that Anderson
had put her glasses in a black bag that he carried, C.B. tried to take the bag
MEMORANDUM DECISION AND ORDER - 2

away. The two struggled over the bag, with C.B. either giving up or
Anderson prevailing. C.B. then entered the residence while two friends,
Owens and Dan Winkler, looked for her glasses on the ground. Anderson
also entered the residence a minute or two after the struggle ended.
C.B. testified that she was seated at a table when Anderson entered.
She was able to identify him by his size, shape, and voice. The only other
person in the room was Pam Olsen, whom C.B. was able to identify after
talking to her. According to C.B. the argument between Anderson and C.B.
continued. C.B. testified that she saw [“somebody”] [“lean over”] the table.
The next thing she remembers is being on the floor holding her face and
screaming from pain. She then saw Anderson's shoes as he was leaving the
room. Witnesses who entered the kitchen immediately thereafter testified
that they found C.B. lying on the floor, screaming and holding her face. It
was later determined that C.B.'s jaw was broken.
(State’s Lodging B-7, pp. 1-2; parentheticals added to reflect actual trial testimony.)
C.B. did not report the battery incident until two weeks later, when she reported
that Petitioner had raped her. (State’s Lodging B-7, p. 2.) Petitioner was charged with
aggravated battery and rape, but the two charges were severed for trial. Separate juries
convicted him of both offenses. (States’ Lodgings A-1, pp. 52-53; D-15, pp. 2-3.)
On direct appeal of the aggravated battery conviction, the Idaho Court of Appeals
concluded that the evidence of Petitioner Anderson’s guilt “was overwhelming and was
not based merely on C.B.'s testimony.” (State’s Lodging B-5, p. 5.) That evidence
included the following:
Witnesses observed Anderson and C.B. in a heated argument
immediately before the battery and saw him enter the room where the
injury occurred. Witnesses who entered the room immediately thereafter
saw C.B. lying on the floor, crying and holding her face in pain. Both C.B.
and another witness testified that Anderson was wearing some type of
fingerless glove on his right hand a few days after the incident. C.B. also
MEMORANDUM DECISION AND ORDER - 3

testified that Anderson's right hand was swollen, that he complained that
her face had injured his hand, and that in a subsequent argument Anderson
threatened to break her jaw again if she did not stop screaming. Dr. Mark
A. Plant, the surgeon who operated on C.B.'s broken jaw, testified that the
injury could not have been caused by a fall on the chin or cheek, and that
she must have been struck with a great deal of force by a blunt object, such
as a human fist, right below the cheekbone.
(State's Lodging B-7, pp. 5-6.)
In addition to the above, the Idaho Court of Appeals cited the following as part of
the “overwhelming evidence” that supported Petitioner’s aggravated battery condition:
“[T]here was testimony from witnesses who heard Anderson brag that he had broken
C.B.’s jaw.” (State’s Lodging B-, p.6.) No such evidence was introduced at the
aggravated battery trial. However, at the rape trial, which followed the battery trial,
Patrick Gilbert testified that Petitioner told Patrick that he had broken C.B.’s jaw. (State’s
Lodging E-3, p. 482.)
In this federal habeas corpus action, Petitioner asserts that, if certain evidence
available at the time of trial had been presented to the jury by the prosecutor and defense
counsel, he would not have been convicted of aggravated battery, but only misdemeanor
battery. The difficulty with Petitioner’s claims is that—amidst witnesses’ imperfect
memories and inconsistencies in the descriptions of what happened—there remains a
clear causal connection running from Petitioner striking C.B. in the kitchen with enough
force to knock her from her chair, to C.B. screaming in pain, to the subsequent

MEMORANDUM DECISION AND ORDER - 4

conclusions that C.B.’s jaw was broken and Petitioner’s right hand was injured as a result
of striking C.B.
Petitioner makes much ado over variations between what C.B. and other witnesses
said prior to trial and what they testified to at trial. In the videotaped police investigation
interview, C.B. said Petitioner hit her in the face when she was trying to get her glasses
back, and Dan Winkler said he honestly did not think that Petitioner broke her jaw at that
point. Winkler also reported that, after C.B. was hit and had fallen to the floor, either Pam
Olsen or Brenda Owens “hollered, ‘He hit her right at the table.’” Winkler said he
thought this was the point when Petitioner broke C.B.’s jaw. In the videotape, C.B. said
that she did not remember Petitioner hitting her in the house. (Dkt. 22, pp. 16-17.) C.B.
testified at trial that she did not remember being hit, and when asked why she didn’t
remember, she testified: “I don’t know. I just know there was a lot of pain.” (State’s
Lodging E-3, p.199.) She also testified at trial that she and Petitioner argued at the
kitchen table, she saw someone lean across and hit her, and she saw Petitioner’s shoes by
her head as she lay on the floor.
Petitioner also challenges his trial counsel’s defense strategy, which was to
demonstrate that (1) no one actually saw Petitioner hit C.B. in the kitchen, and (2)
Petitioner later told some acquaintances that her ex-husband, Dan Winkler, had hit her.
Petitioner’s proposed defense strategy was twofold: he only slapped C.B., which could
not have caused her injury, and she instead broke her jaw falling from her bicycle.

MEMORANDUM DECISION AND ORDER - 5

Petitioner’s preferred defense is supported by his own new accident reconstruction
opinion (with diagrams), where he argues that it was “100% physically impossible” for a
man who is 5'6'' to reach across a 45 to 60'' table to strike C.B. with enough force to
knock her out of the chair. (Dkt. 56, pp. 14-17; 56-3.) Petitioner also outlines the
proposed testimony he would have given at trial had he been afforded the opportunity to
testify. He states that he slapped C.B. when she wouldn’t give him back his camera in the
kitchen, and that it was not the slap, but C.B.’s own efforts in continuing to struggle for
the camera that made her fall out of the chair. (Dkt. 56, pp. 26-31.) Petitioner states that
C.B. did not break her jaw until she fell from her bicycle one or two days after the
slapping incident. He alleges that C.B. was riding her bike and looking for him without
her glasses on when she ran into Dan Winkler’s astroturf-covered mobile home patio
stairs. He alleges that he was wearing one black glove because he had a large blister on
his hand from a paint-scraping job that hurt when he held onto his bicycle handlebars.
After an extensive review of the record and of the parties’ arguments and exhibits,
this Court concludes that Petitioner’s version would not have changed the outcome of the
trial or affected the clear causal connection existing among the strike, the scream, and the
broken jaw and injured hand. Petitioner seems to believe that conflicting testimony and
evidence should not have been admitted at all; to the contrary, the jury, as the factfinder,
is charged with examining and weighing all of the evidence, and accepting or rejecting
certain pieces of evidence as it sees fit under the law and all of the circumstances.

MEMORANDUM DECISION AND ORDER - 6

The best way to dispel Petitioner’s fallacious thinking is to explain that
prosecutors and jurors must use “abductive reasoning” to reach conclusions in a criminal
case. “Abductive reasoning” is formulating and testing a hypothesis on the best
information available, and eventually coming to a conclusion based on that information,
because it is the best explanation for the phenomenon, despite a lack of certain or
complete information.1 On the date and time set for trial, both sides are required to bring
forward the favorable evidence they have been able to garner so that the jury can test the
truth of all the evidence. The law prevents parties from presenting irrelevant, unduly
prejudicial, and known false evidence, but it is otherwise up to the jury to weigh the
strength and accuracy of each piece of evidence, and to reject what doesn’t fit.
Petitioner has not shown that any evidence presented by the prosecution was known to
be false; Petitioner merely argues with the witnesses’ perceptions, memories, and the
words they selected to describe what they believed they saw and heard.
Even if Petitioner would have been able to present all of his additional evidence,
the entirety of the evidence still overwhelmingly supports his conviction. In addition, the
Idaho Court of Appeals’ mistake regarding Patrick Gilbert’s testimony does not affect the
1

See “Deductive Reasoning v. Inductive Reasoning,” at livescience.com. 10 July 2012. Web.
http://www.livescience.com/21569-deduction-vs-induction.html. See also “Deductive, Inductive, and Abductive
Reasoning, at butte.edu. Web. http://www.butte.edu/departments/cas/tipsheets/thinking/reasoning.html, for several
examples:
A medical diagnosis is an application of abductive reasoning: given this set of symptoms, what is
the diagnosis that would best explain most of them? Likewise, when jurors hear evidence in a
criminal case, they must consider whether the prosecution or the defense has the best explanation
to cover all the points of evidence. While there may be no certainty about their verdict, since there
may exist additional evidence that was not admitted in the case, they make their best guess based
on what they know.

MEMORANDUM DECISION AND ORDER - 7

outcome of this case. Omitting Gilbert’s testimony still leaves the evidence supporting
the conviction at an “overwhelming” level. The Court concludes that Petitioner is not
entitled to habeas corpus relief, and his claims will be denied and dismissed with
prejudice, for the reasons that follow.
PETITIONER’S HABEAS CORPUS CLAIMS
Petitioner brings the following claims in his Amended Petition for Writ of Habeas
Corpus (Dkt. 22):
1. Claim One is that Petitioner’s counsel was ineffective for refusing to allow
Petitioner to testify even after Petitioner requested the opportunity to testify. (Dkt.
22, pp. 4-9.)
2. Claim Two is prosecutorial misconduct, particularly, that the prosecutor knew the
victim, C.B., had told a detective that Petitioner punched her outside near the car,
but the prosecutor instead elicited testimony from the victim that she was slapped
inside the house. (Dkt. 22, p. 14.)
3. Claim Three, the ineffective assistance counterpart of Claim Two, is that “trial
counsel during the jury trial failed to perform fully and effectively the functions of
trial counsel in that he did not bring to the attention of the court the wrongful
actions of the state in presenting the incorrect testimony of C.B.” (Dkt. 22, p. 15
(spelling and punctuation regularized).) Specifically, “the Prosecutor should have
been constrained by knowledge of C.B.’s prior recorded statement, and
[Petitioner] was harmed by her failure to do so.” (Id., p. 16.)
4. Claim Four is that trial counsel was ineffective for (a) failing to adequately
investigate the defense, including a failure to “interview Dr. Plant about the cause
of C.B.'s injuries” (Dkt. 22, p. 26) and learn he would testify that an open-handed
slap could not have fractured C.B.’s jaw, and (b) failing to join in the state’s
motion for a continuance so that Pam Olsen (who told police Anderson hit C.B.
with an open hand) would be present at trial. (Id., pp. 27-36; see State’s Lodging
C-1, p.109.)

MEMORANDUM DECISION AND ORDER - 8

5. Claim Five is that counsel was ineffective for failing to call Detective Lewin as a
witness to present, as exculpatory evidence, Pam Olsen's statement that Anderson
slapped C.B. with an open hand (Dkts. 22, pp.37-38; 22-1, pp.1-2), and for failing
to inform the court that the prosecutor engaged in misconduct by misleading the
jury into believing Anderson punched C.B. with a closed fist. (Id.)
6. Claim Six is that counsel was ineffective for failing to investigate C.B.’s initial
statement that he fell off a bicycle onto the porch of her ex-husband’s mobile
home, which may have caused her to fracture her jaw. (Dkt. 22-1, pp.3-5.)
7. Claim Seven is that direct appeal counsel performed ineffectively when counsel
failed to challenge the trial court's denial of Anderson's motion for a mistrial based
on a juror's revelation, made during trial, that he may have been the pre-op and
post-op nurse for C.B. when she had surgery for her broken jaw. (Dkt. 22-1, pp.611.)
8. Claim Eight consists of the following prosecutorial misconduct allegations: (a) the
prosecutor knowingly, willfully, intentionally, and fraudulently misrepresented
facts to produce a wrongful conviction; (b) Dr. Plant testified that a slap to the face
could not have caused C.B.’s injuries, but the prosecutor elected to falsify material
facts to obtain a conviction and misled the jury to secure a conviction; (c) in
closing argument, the prosecutor told the jury that they must find petitioner guilty
of punching C.B. in the jaw with his closed fist; (d) the prosecutor’s statements
were not consistent with the facts of the case as reported to the police by the
eyewitnesses; (e) Pam Olsen was the only eyewitness who could testify correctly
that C.B. was slapped across the face by Petitioner, but she did not appear for the
trial, and even though the prosecution sought a continuance to produce Olsen, the
trial court refused to allow a continuance; (f) the prosecution moved the court to
preclude Detective Lewin from being called as a witness, who could have testified
that Olsen told him that Petitioner only slapped C.B., and that the slapping
occurred in the kitchen; (g) the prosecutor “suppressed this evidence” to mislead
the jury into believing Petitioner hit C.B. with a closed fist, because no trial
witness testimony or document showed that Petitioner had hit C.B. with a closed
fist. (Dkt. 22-1, pp. 12-20.)
9. Claim Nine is that prosecutorial misconduct occurred when the prosecution called
Dan Winkler as a witness to testify that Petitioner had repeatedly hit C.B. outside,
when the prosecutor knew these statements to be untrue, particularly because the
other witness, Brenda Owens, testified that Petitioner never hit C.B. outside her

MEMORANDUM DECISION AND ORDER - 9

residence. Petitioner argues that police reports show otherwise. (Dkt. 22-1, pp. 1921, Exhibits B and J.)
10. Claim Ten is that the prosecution committed a Brady violation when prosecutors
failed to disclose the exculpatory evidence that Dr. Plant would testify that C.B.'s
fractured jaw could not have been caused by a hand slap. (Dkt. 22-1, pp.22-24.)
11. Claim Eleven is that Petitioner’s Sixth Amendment rights to confrontation and due
process were violated in the following circumstances: At trial defense sought to
introduce statements made by the complaining witness that a magistrate had ruled
that she could not gain custody of her child as long as she continued to reside with
[Petitioner]. This evidence was relevant to the complaining witness [sic]
motivation to lie in order to convict Mr. Anderson and ensure his incarceration.
The district court held that if this testimony was elicited, the prosecution would be
allowed to "rehabilitate" the complaining witness by introducing the magistrate’s
ruling in the child custody proceeding regarding Mr. Anderson; that he was a
convicted felon. (Dkt. 22-1, p.25 (capitalization modified).)
12. Claim Twelve is that trial counsel was ineffective for informing the jury during
opening statement that C.B. had a motive to lie because a judge told her during a
child protection proceeding she would not be reunified with her son as long as
Anderson was living in her residence, without having admissible evidence to
support such statement. (Dkt. 22-1, pp.31-36.)
Although several claims may be procedurally defaulted, Judge Boyle previously
determined that, because the procedural default analysis was complex, it was more
efficient to review the claims on the merits
HABEAS CORPUS STANDARD OF LAW
Federal habeas corpus relief may be granted where a petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Where the petitioner challenges a state court judgment in which the
petitioner’s federal claims were adjudicated on the merits, then Title 28 U.S.C.§ 2254(d),

MEMORANDUM DECISION AND ORDER - 10

as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
applies. Title 28 U.S.C.§ 2254(d) limits relief to instances where the state court’s
adjudication of the petitioner’s claim:
1.

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

2.

resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991).
Where a petitioner contests the state court’s legal conclusions, including
application of the law to the facts, § 2254(d)(1) governs. That section consists of two
alternative tests: the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although it identified “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
MEMORANDUM DECISION AND ORDER - 11

applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the state court’s decision is incorrect or wrong; rather, the
state court’s application of federal law must be objectively unreasonable to warrant relief.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If fairminded jurists
could disagree on the correctness of the state court’s decision, then relief is not warranted
under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court
emphasized that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted).
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent may be persuasive
authority for determining whether a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).

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If the state appellate court did not decide a properly-asserted federal claim, if the
state court’s factual findings are unreasonable under § 2254(d)(2), or if an adequate
excuse for the procedural default of a claim exists, then § 2254(d)(1) does not apply, and
the federal district court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002). In such a case, as in the pre-AEDPA era, a district court can draw
from both United States Supreme Court and well as circuit precedent, limited only by the
non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).
Under de novo review, if the factual findings of the state court are not
unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. §
2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a
state court factual determination is unreasonable, or if there are no state court factual
findings, the federal court is not limited by § 2254(e)(1), and the federal district court
may consider evidence outside the state court record, except to the extent that §
2254(e)(2) might apply. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
DISCUSSION OF CLAIM ONE
Claim One is that Petitioner’s counsel, Anthony Valdez, was ineffective for
refusing to allow Petitioner to testify, even after Petitioner requested the opportunity to
testify. (Dkt. 22, pp. 4-9.)

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1. State Court Decision
The Idaho Court of Appeals affirmed the state trial court’s summary dismissal of
this ineffective assistance claim because Petitioner failed to show any prejudice resulting
from his failure to testify. The Idaho Court of Appeals concluded: “Even assuming that
counsel was deficient, [Petitioner] has failed to prove that he suffered prejudice from
counsel's alleged deficiency in light of the overwhelming evidence that his attack caused
C.B.'s broken jaw.” (State’s Lodging D-15, p. 6.)
The Idaho Court of Appeals considered all of Petitioner’s ineffective assistance of
counsel claims cumulatively:
Even if counsel had presented evidence that Anderson had slapped
but not punched C.B., had shown that C.B. had fallen from a bicycle, had
refrained from referencing a defense that could not be supported, and had
demonstrated that witnesses may have had some motive to lie, it is highly
unlikely that the jury would have concluded that Anderson did not cause
C.B.'s injury. In our view, any reasonable jury would have concluded that
Anderson inflicted C.B.'s injuries because there was no question that he hit
her in the face, that shortly thereafter it was discovered that she had a
broken jaw where he had struck her, and that the injury was not consistent
with an accidental fall but was consistent with a penetrating blow.
Further, calling Pam Olsen as a witness likely would have been more
helpful to the prosecution than the defense. She was the only witness who
could confirm C.B.'s testimony that she was struck in the kitchen by
Anderson. There is no reason to believe that the jury would have doubted
that Anderson inflicted the blow that broke C.B.'s jaw upon hearing Pam
Olsen's testimony. Given all of the other evidence of his guilt, the jury more
likely would have concluded that Olsen was mistaken or deceitful in her
report that Anderson used an open hand.

MEMORANDUM DECISION AND ORDER - 14

Accordingly, the district court did not err in dismissing these claims
because Anderson has failed to make a prima facie showing of prejudice
from the alleged ineffective assistance of counsel.
(State's Lodging D-15, pp.6-7.)
2. Clearly-Established Law
The Idaho Court of Appeals correctly identified Strickland v. Washington, 466
U.S. 668 (1984), as governing case law from the United States Supreme Court. A
defendant challenging his counsel’s performance as ineffective must meet a two-prong
test. See id. First, the defendant must show that counsel’s performance was so deficient
that he failed to function as the “counsel” guaranteed by the Sixth Amendment. Id. at
691-92. The second prong requires that the defendant show that the deficient
performance prejudiced the defense. Id. Unless both showings are made, a defendant is
not entitled to relief. Id.
When undertaking an analysis of counsel’s performance using the “doublydeferential judicial review that applies to a Strickland claim under the § 2254(d)(1)
standard,” Knowles v. Mirzayance, 536 U.S. 111, 123 (2009), the federal habeas court
must determine which arguments could have supported the state courts’ decisions.
Richter, 562 U.S. at 102.
An accused’s right to testify is a constitutional right of fundamental dimension,
but it is a right that is not without limitations. Rock v. Arkansas, 483 U.S. 44, 51-54
(1987). The Rock Court acknowledged that “the right ‘may, in appropriate cases, bow to

MEMORANDUM DECISION AND ORDER - 15

accommodate other legitimate interests in the criminal trial process.’” Id. at 56 (quoting
Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). Because the right to testify is
personal, it may be relinquished only by the defendant. Jones v. Barnes, 463 U.S. 745,
751 (1983).
Counterbalancing the right to testify are important implications arising from a
defendant’s choice to be represented by counsel. The Jones Court noted, “The purpose of
the constitutional guaranty of a right to counsel is to protect an accused from conviction
resulting from his own ignorance of his legal and constitutional rights.” 304 U.S. at 465.
Whether a defendant testifies is usually attributed to the tactical strategy of counsel, who
has weighed the benefits and risks of testifying, including exposing the defendant to
cross-examination. The Supreme Court has opined that, “absent exceptional
circumstances, a defendant is bound by the tactical decisions of competent counsel.”
Reed v. Ross, 468 U.S. 1, 13 (1984).
3. Analysis
Petitioner asserts that his trial counsel was ineffective for refusing to allow
Petitioner to testify. (Dkt. 22, pp. 4-9.) Petitioner argues that the state courts erred in
determining that whether Petitioner should be called to testify was within the bounds of a
strategic decision of counsel. (Id., pp. 4-5.) Petitioner asserts that a defendant has a
fundamental right to testify, even if his counsel believes it would be a strategic mistake,
and his counsel should not have prevented him from testifying on his own behalf.

MEMORANDUM DECISION AND ORDER - 16

Petitioner originally intended to remain silent at trial. After he heard Dr. Plant
testify that an open hand could not have caused the break, and Petitioner realized that
Pam Olsen was not going to be called to testify that Petitioner hit C.B. with an open hand,
Petitioner changed his mind, because he wanted to testify that he slapped C.B. with an
open hand. Petitioner asked his counsel, Mr. Valdez, if he could testify, and Mr. Valdez
“refused to allow him to do so.” (Dkt. 22, p. 4.)
However, the trial record does not reflect any facts tending to show that Petitioner
sought to override his counsel’s advice by bringing the disagreement to the attention of
the court (such as by trying to take the stand despite his counsel’s advice, or asking the
court to require counsel to withdraw from the case due to the disagreement), which
supports the state court’s decision that the failure to testify can be classified as a strategic
call. Petitioner counters that, during several pretrial hearings, he had attempted to address
the Court, and the Court specifically directed him to speak with his counsel and then
speak to the Court through counsel (for example, the court explained that this was a
precautionary measure, because anything he said could be used to prosecute him). (Dkt.
56, p. 6.) Petitioner states that he became too intimidated to address the Court again.
However, nothing prevented Petitioner from asking his counsel to bring the disagreement
about testifying to the court’s attention, or from asking his counsel to withdraw so that
Petitioner could testify and complete the trial according to his own strategy. To the extent
that Petitioner argues that the Idaho Court of Appeals erred in the application of the law

MEMORANDUM DECISION AND ORDER - 17

to the facts or in the finding of the facts, he has not carried his burden to show any error
or unreasonableness in that court’s characterization of the facts as a call of strategy rather
than an absolute denial of the right to testify.2
The Court next reviews whether counsel’s allegedly wrongful advice about
whether Petitioner should testify amounted to ineffective assistance of counsel.3 Pam
Olsen was the only witness who saw Petitioner strike C.B., and she had reported to
Detective Lewin that Petitioner “hit [C.B.] [‘with an open hand’] with great force across
the face, knocking [C.B.] out of the chair onto the floor.” (State’s Lodging C-1, PostConviction Petition, Exhibit B). In the absence of Pam Olsen’s and Petitioner’s
testimony, no witness testified at trial that Petitioner actually struck C.B.
The Idaho Court of Appeals reviewed only the prejudice prong of the ineffective
assistance of counsel test, concluding that, even if the jury had heard Petitioner’s or Pam
Olsen’s testimony about the open-handed hit, there was too much corroborating evidence
in the record from other sources to reach any conclusion but that Petitioner’s strike to
C.B.’s face in the kitchen caused the broken jaw. This Court agrees. On this record, the
evidence and chronology lead to the conclusion that it was Petitioner’s hand that broke
2

Petitioner’s argument that a defendant need not object at trial to preserve a claim that counsel prevented him from
exercising the right to testify is not relevant to the issue here. The issue is not whether Petitioner preserved the claim
so that it could be asserted in a post-conviction matter, but the issue is whether Petitioner’s counsel actually
prevented Petitioner from testifying, against Petitioner’s will; or whether Petitioner’s counsel advised him not to
testify and, though Petitioner disagreed, he willfully decided to put aside his disagreement, accept the advice, and
continue with counsel’s strategy.

3

Petitioner argues in his Traverse that he did not even know that he had the ultimate right to decide whether to
testify or that he had the right to override his attorney’s advice that he should not testify. This is a different
ineffective assistance of counsel claim—the failure to advise the defendant that he, not counsel, has the right to
determine whether he should testify. Even if that is the case, Petitioner’s claim still fails on the prejudice prong.

MEMORANDUM DECISION AND ORDER - 18

C.B.’s jaw, and it was the broken jaw that caused C.B. to immediately start screaming in
pain in the kitchen on July 12, 1998. It makes little sense that Petitioner believes if he
would have testified that he merely “slapped” C.B., the jury would have concluded that
Petitioner’s broken jaw was caused by a random bicycle accident sometime between July
12 and July 14, and not by his blow to C.B.’s face, even though C.B. was found on the
floor screaming in pain from her jaw directly after the blow. This Court concludes that
the decision of the Idaho Court of Appeals that no prejudice resulted from Petitioner’s
failure to testify at trial was not an unreasonable application of Strickland.
DISCUSSION OF CLAIMS TWO, EIGHT, AND NINE
Claims Two, Eight, and Nine are all prosecutorial misconduct claims. Respondent
previously asserted that these claims are procedurally defaulted. Rather than conduct a
procedural default and cause and prejudice analysis, the Court concludes that the claims
have no merit on de novo review, for the following reasons.
The standard of law governing prosecutorial misconduct is as follows. A
prosecutor’s misconduct will require reversal of a state court conviction only where the
comments or actions sufficiently infected the trial so as to make it fundamentally unfair,
and, therefore, a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). Inquiry into the fundamental fairness of a trial requires the court to examine the
effect of any misconduct within the context of the entire proceedings. Id.

MEMORANDUM DECISION AND ORDER - 19

1. Claim Two
Claim Two, based on prosecutorial misconduct, is that the prosecutor knew the
victim, C.B., had told a detective that Petitioner punched her outside near the car, but the
prosecutor instead elicited testimony from the victim that she was slapped inside the
house. (Dkt. 22, p. 14.) The Court concludes that, even under a de novo standard,
Petitioner has not shown that any prejudice resulted from the prosecution selectively
eliciting statements from the victim at trial.
The Idaho Court of Appeals opined:
Even accepting as true Anderson's assertions that C.B. originally
told police that Anderson broke her jaw during a physical altercation in the
driveway, instead of in the house as she testified at trial, such an
inconsistency does not demonstrate that C.B. perjured herself, that the
prosecutor elicited false testimony, or that Anderson's trial attorney was
ineffective because he did not object to the testimony. First, Anderson
incorrectly assumes that we must presume that C.B.'s earlier statements to
the police were true and any later inconsistent statements were false. We
know of no authority to support such a presumption. While the existence of
a prior inconsistent statement may provide fertile ground for the
impeachment of a witness, see I.R.E. 801(d)(1)(A), it does not necessarily
preclude a party from eliciting subsequent contrary testimony. C.B.'s trial
testimony may have been slightly different than her earlier statements to the
police, but Anderson has not demonstrated that it was false. Second,
whether Anderson broke the victim's jaw in the driveway, as she told the
police, or in the house, as she testified at trial, is of little importance as the
specific location is not an element of the offense. The victim consistently
stated that Anderson took her glasses, that she argued with Anderson in the
driveway as she attempted to recover her glasses, and that Anderson hit her
in the face, breaking her jaw. Third, even if defense counsel could have
prevented the admission of C.B.'s testimony that was inconsistent with prior
statements, this deficiency was not prejudicial.
(State’s Lodging F-4, p. 11.)
MEMORANDUM DECISION AND ORDER - 20

In her videotaped interview with Detective Lewin during investigation of the
crime, C.B. said that Petitioner struck her outside, and that she did not remember being
struck in the kitchen. (State’s Lodging C-1, Post-Conviction Petition, Exhibit B;
videotaped interview from Case No. 1:02-cv-00205-LMB.) At trial, C.B. testified that she
sat down at the kitchen table, Petitioner came into the kitchen and argued with her, then
someone leaned over the table, and the next thing she knew she was on the floor
screaming because her face was hurt. (State’s Lodging E-3, p. 158.) She did not know
who struck her, because she did not have her glasses on. She testified at trial that she
“believed” it was Petitioner who hit her in the kitchen because she had argued with him.
(State’s Lodging E-3, p. 159.) C.B. also testified at trial that she did not remember being
hit, and when asked why she didn’t remember, she testified: “I don’t know. I just know
there was a lot of pain.” (State’s Lodging E-3, p.199.) At trial, the prosecutor did not ask
C.B. if Petitioner struck C.B. outside.
At trial, Dan Winkler testified that, during the struggle outside, “Steve had hit
[C.B.] I did not see [C.B.] hit Steve, but she may have, trying to grab the bag.” (State’s
Lodging E-3, p.65.) Also in his interview with Detective Lewin, Dan Winkler had stated
that he believed it was the blow inside the kitchen that broke C.B.’s jaw. At trial, Brenda
Owen testified that she did not see any physical contact between Petitioner and C.B. other
than Petitioner grabbing C.B.’s glasses off her face, which cut C.B.’s nose. (Id., p. 129.)

MEMORANDUM DECISION AND ORDER - 21

Petitioner has not shown that prosecutorial misconduct occurred when C.B. was
not asked about whether she was hit outside. That fact has little relevance to the incident
that obviously caused C.B. tremendous jaw pain—the strike to her jaw in the kitchen. In
addition, the witnesses’ testimony all differed as to whether C.B. had been struck outside,
depending upon each witness’s observation or perception. A prosecutor is not required to
bring forward all evidence at trial, just disclose it before trial.
Petitioner argues that C.B. must have been lying because “she could not testify to
what the argument was.” (Dkt. 56, p. 14.) The fact that an argument had taken place
inside the kitchen, however, is uncontested, as Petitioner testified about the argument in
allocution at sentencing. (State’s Lodging A-3, p. 110.) Therefore, Petitioner is hardpressed to assert that C.B. was lying at trial about having an argument simply because she
did not mention an argument to the detective during the initial investigation. Similarly,
Petitioner’s own proposed testimony is that he slapped C.B. in the kitchen, which is
consistent with C.B.’s trial testimony that she believed it was Petitioner who struck her in
the kitchen, though she didn’t know. The testimony of other witnesses showing that C.B.
was in no obvious physical distress after having been hit in the yard by Petitioner, and
that she was screaming and crying in pain on the floor after being hit by Petitioner in the
kitchen shows that it is more likely that the broken jaw occurred after the kitchen
incident—regardless of what C.B. said at any time. That both C.B. and the prosecutor

MEMORANDUM DECISION AND ORDER - 22

used the process of abductive reasoning to determine that Petitioner hit C.B. in the
kitchen and broke her jaw does not equal deceit or prosecutorial misconduct.
This Court concludes that there is no procedural misconduct resulting from the
prosecutor having surveyed all of the evidence and having discarded irrelevant evidence,
such as whether C.B. believed Petitioner struck her outside. Neither did this act or
omission by the prosecutor sufficiently infect the trial to make it fundamentally unfair,
for the reason that the outside altercation was only remotely relevant.
2. Claim Eight
Claim Eight is a set of variations on Claim Two. Claim Eight consists of the
following prosecutorial misconduct allegations: (a) the prosecutor knowingly, willfully,
intentionally, and fraudulently misrepresented facts to produce a wrongful conviction; (b)
Dr. Plant testified that a slap to the face could not have caused C.B.’s injuries, but the
prosecutor elected to falsify material facts to obtain a conviction and misled the jury to
secure a conviction; (c) in closing argument, the prosecutor told the jury that they must
find petitioner guilty of punching C.B. in the jaw with his closed fist; (d) the prosecutor’s
statements were not consistent with the facts of the case as reported to the police by the
eyewitnesses; (e) Pam Olsen was the only eyewitness who could testify correctly that
C.B. was slapped across the face by Petitioner, but she did not appear for the trial, and
even though the prosecution sought a continuance to produce Olsen, the trial court
refused to allow a continuance; (f) the prosecution moved the court to preclude Detective

MEMORANDUM DECISION AND ORDER - 23

Lewin from being called as a witness, who could have testified that Olsen told him that
Petitioner only slapped C.B., and that the slapping occurred in the kitchen; (g) the
prosecutor “suppressed this evidence” to mislead the jury into believing Petitioner hit
C.B. with a closed fist, because no witness testimony or document was admitted to show
that Petitioner had hit C.B. with a closed fist. (Dkt. 22-1, pp. 12-20.)
A. Claim that the prosecutor knowingly, willfully, intentionally, and fraudulently
misrepresented facts to produce a wrongful conviction
As outlined above, Petitioner and C.B. had two encounters that witnesses observed
on the day of the crime. One was the tussle outside over C.B.’s glasses and Petitioner’s
black bag. The second was the incident in the kitchen, where C.B. and Petitioner briefly
argued, and then Petitioner struck C.B.’s face, causing her to fall to the floor. The original
police investigation focused on the outdoor incident, based on C.B.’s report of the
incident. Additional analysis showed that the indoor incident was the more likely cause of
C.B.’s broken jaw, given that the strike to the face was so forceful that it knocked C.B. to
the floor; that C.B. exhibited signs of great pain directly after the indoor incident, but not
after the outdoor incident; that Petitioner had an injured right hand after the incident; and
that Dr. Plant’s opinion about the mechanism of injury to C.B.’s law and Petitioner’s
hand matched the kitchen incident. That the prosecutor reviewed all of the evidence,
selected that evidence favorable to the prosecution’s position, and did not present the
unfavorable testimony is not prosecutorial misconduct. The bulk of the evidence
supported the theory that the jaw was broken in the kitchen.
MEMORANDUM DECISION AND ORDER - 24

B. Claim that Dr. Plant testified that a slap to the face could not have caused
C.B.’s injuries, but the prosecutor elected to falsify material facts to obtain
a conviction and misled the jury to secure a conviction; and in closing
argument, the prosecutor told the jury that they must find petitioner guilty
of punching C.B. in the jaw with his closed fist
The closing argument is the time when the prosecutor reviews everything
favorable and unfavorable that was presented at trial and tries to causally connect the
evidence to the defendant. Evidence that doesn’t seem to fit with the majority of the
evidence is discarded. The most likely conclusion that can be drawn from all of the
evidence presented at this trial was that Petitioner struck C.B. in the kitchen with his hand
so hard that it caused an injury to his hand and a broken jaw to C.B. There is no
prosecutorial misconduct evident from the manner in which the prosecutor presented her
closing argument.
C. Claim that the prosecutor’s statements were not consistent with the facts of
the case as reported to the police by the eyewitnesses
As shown above, the prosecution’s case was consistent with some, but not all, of
the witnesses’ testimony. It is not possible to put on a case that is completely consistent
with all witnesses’ testimony, because each witness’s testimony varies with his or her
own perception, attention, involvement, and memory. In addition, how a witness
responds depends on how a question is framed, and in what context it is asked, and so the
same witness seldom gives identical testimony twice. No prosecutorial misconduct is
evident from the prosecution’s selection of evidence to present at trial.

MEMORANDUM DECISION AND ORDER - 25

D. Claim that Pam Olsen was the only eyewitness who could testify correctly
that C.B. was slapped across the face by Petitioner, but she did not appear
for the trial, and even though the prosecution sought a continuance to
produce Olsen, the trial court refused to allow a continuance
It is inconsistent and untenable that the prosecution wanted to hide Olsen’s
testimony about the “opened handed” strike, and at the same time wanted to continue the
trial to obtain her presence as a trial witness. In addition, the prosecution proactively
addressed the issue that Petitioner allegedly had slapped C.B. in its case in chief by
introducing the unfavorable evidence via the expert witness. There is no prosecutorial
misconduct evident in these allegations. Because there was no one else in the kitchen but
Olsen, Petitioner, and C.B., and because witnesses came into the kitchen directly after the
strike and found C.B. on the floor screaming in pain, Olsen’s testimony was not essential
to the prosecution’s case. In addition, Olsen’s testimony that Petitioner, in fact, inflicted
the blow, that the blow was inflicted “with great force,” and that it was enough to “knock
C.B. out of the chair” would have cemented the prosecution’s case. That is why the
prosecutor sought the trial continuance to produce Olsen. The open-handed versus the
close-fisted nature of the strike would have been of minimal value to Petitioner’s case,
and Petitioner’s counsel would not have been able to argue that someone else
altogether—Dan Winkler—struck Petitioner and caused C.B.’s broken jaw. There is no
prosecutorial misconduct evident in these allegations.

MEMORANDUM DECISION AND ORDER - 26

E. Claim that the prosecution moved the court to preclude Detective Lewin from
being called as a witness, who could have testified that Olsen told him that
Petitioner only slapped C.B., and that the slapping occurred in the kitchen
Petitioner planned to call Detective Lewin to testify that C.B. told him that (1)
Petitioner hit her outside, and (2) she needed to get Petitioner out of her home (which
would have provided a motive for her to make up the story that it was Petitioner who hit
her). The trial court ruled that if Petitioner cross-examined C.B. on the second point, then
the prosecutor could rehabilitate her by eliciting testimony from her that “she was afraid
of him, based on a history of beatings and a rape.” (B-7, p. 4.) The scope of the ruling
was unclear, and seemed to include Petitioner’s “past crimes and misconduct that were
not relevant because they did not bear upon C.B.’s incentive to go to the police.” (Id., p.
5.) In the face of this ruling, Petitioner’s counsel withdrew his request to call Detective
Lewin regarding the motive to lie. (Id., p. 3.) However, the court and counsel agreed that
Detective Lewin could be called regarding only the statement by C.B. that she was hit
outside the house, and didn’t remember being hit in the house. (E-3, p. 118-19.)
At trial C.B. testified consistently with her police statement that she didn’t
remember being hit in the house. (E-3, p. 207.) Therefore, defense counsel did not need
to call Detective Lewin or use the statement to impeach her. It would not have been
helpful for counsel to draw out testimony from C.B. regarding whether Petitioner hit her
outside because that would have corroborated Dan Winkler’s testimony that Petitioner hit

MEMORANDUM DECISION AND ORDER - 27

C.B. outside. Petitioner’s counsel was trying to establish that Petitioner did not hit C.B. at
all.
The prosecution did not commit misconduct by moving in limine to prevent
Petitioner’s counsel from delving into the child custody matter between C.B. and
Winkler, in response to Petitioner’s counsel’s opening statement. The prosecution was
well within permissible bounds in arguing that the judge’s comments were inadmissible
and the child custody matter was not relevant to the aggravated assault. The prosecution
did not try to stop Petitioner from eliciting information regarding whether Petitioner
stated that she did not remember being hit in the house. That point simply became moot
when C.B. testified consistently with her prior statement at trial.
F. Claim that the prosecutor “suppressed” evidence to mislead the jury into
believing Petitioner hit C.B. with a closed fist, because no trial witness or
document showed that Petitioner had hit C.B. with a closed fist
Petitioner also argues that the prosecutor “suppressed” evidence to mislead the
jury into believing Petitioner hit C.B. with a closed fist, because no witness and no
document at trial showed that Petitioner had hit C.B. with a closed fist. (Dkt. 22-1, pp.
12-20.) It is true that the evidence presented at trial showed that no one actually saw
Petitioner hit C.B. in the kitchen, and only Dan Winkler testified that Petitioner hit C.B.
outside (with no mention of a closed fist). Petitioner simply does not believe that this
evidence was better for his defense than having Pam Olsen testify that Petitioner in fact
struck C.B. with an open hand in the kitchen. As discussed above, there is no showing of

MEMORANDUM DECISION AND ORDER - 28

any suppression of evidence by the prosecution regarding an open hand or closed fist,
because Petitioner already knew that Olsen had said “open hand.” Neither attorney chose
to use that testimony at trial, based on permissible strategy grounds.
3. Claim Nine
Claim Nine is that prosecutorial misconduct occurred when the prosecution called
Dan Winkler as a witness to testify that Petitioner had repeatedly hit C.B. outside, when
the prosecutor knew these statements to be untrue, particularly because the other witness,
Brenda Owens, testified that Petitioner never hit C.B. outside her residence. (Dkt. 22-1,
pp. 19-21, Exhibits B and J.)
Petitioner has produced no definitive evidence that either Dan Winkler’s
perception or Brenda Owen’s perception of the struggle between C.B. and Petitioner for
C.B.’s glasses and Petitioner’s black bag was completely correct. One testified that
Petitioner struck C.B. repeatedly outside, and the other testified that Petitioner did not
strike C.B., but grabbed C.B.’s glasses from her face, which cut C.B.’s face. Witnesses
can testify only to what they saw or believed they saw. The fact that witness accounts of
the same incident vary is not a ground for prosecutorial misconduct. Rather, the jury is
the factfinder at trial, deciding, among all the evidence placed before it, which evidence
is true and which is untrue.

MEMORANDUM DECISION AND ORDER - 29

DISCUSSION OF CLAIM THREE
Claim Three is the ineffective assistance counterpart of Claim Two, that trial
counsel failed to bring to the attention of the court the wrongful actions of the state in
presenting the “incorrect” testimony of C.B. (Dkt. 22, p. 15.) Specifically, Petitioner
alleges that “the Prosecutor should have been constrained by knowledge of C.B.’s prior
recorded statement, and [Petitioner] was harmed by her failure to do so.” (Dkt. 22, p. 16.)
As discussed in the context of Claim Two, the Idaho Court of Appeals, in its alternative
ruling on the successive post-conviction petition, determined that no prejudice resulted
from any alleged failure of counsel, and, thus, Petitioner’s claim failed under Strickland.
(State’s Lodging F-4.)
For the reasons set forth directly above, this Court agrees that no prejudice
resulted. Any objection to the prosecutor’s elicitation of only selective portions of C.B.’s
prior statement on prosecutorial misconduct grounds would have been denied by the trial
court as without an adequate legal or factual basis. Accordingly, Claim Three is subject to
dismissal or denial.
DISCUSSION OF CLAIMS FOUR, FIVE, AND SIX
Claim Four is that trial counsel was ineffective for failing to adequately investigate
the defense, including a failure to interview Dr. Plant about the cause of C.B.'s
injuries (Dkt. 22, p. 26), failure to learn that Dr. Plant would testify that an open-handed
hit could not have fractured C.B.'s jaw (id.), and failure to join in the state’s motion for a

MEMORANDUM DECISION AND ORDER - 30

continuance so that Pam Olsen could be present at trial (id., pp.27-36; see State's Lodging
C-1, p.109).
Claim Five is that counsel was ineffective for failing to call Detective Lewin as a
witness to present, as exculpatory evidence, Pam Olsen's statement that Anderson hit
C.B. with an open hand (Dkts. 22, pp.37-38; 22-1, pp.1-2), and for failing to inform the
court that the prosecutor engaged in misconduct by misleading the jury into believing
Anderson punched C.B. with a closed fist. (Id.)
Claim Six is that counsel was ineffective for failing to investigate C.B.'s original
statement to Dr. Plant that she sustained the broken jaw when she fell off her bicycle and
hit the porch of her ex-husband's mobile home. (Dkt. 22-1, pp.3-5; see State’s Lodging
C-1, post-conviction petition, Exhibit D, photographs of porch).
The Strickland Court outlined how to use the factors of deficient performance and
prejudice to assess a claim that counsel failed to investigate a defendant’s case:
[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to counsel’s
judgments.
466 U.S. at 690-91.

MEMORANDUM DECISION AND ORDER - 31

In its discussion that follows, the Court groups Petitioner’s claims according to
topic, rather than in the order presented by Petitioner.
1. Failure to Call Pam Olsen and Detective Lewin
Pam Olsen witnessed Petitioner walk into the kitchen and hit C.B. in the face with
great force, knocking C.B. out of the chair onto the floor. Olsen said that Petitioner hit
C.B. with an open hand. The information that Petitioner struck C.B. with great force and
that the blow knocked C.B. out of the chair would have been much more damaging to
Petitioner’s case than the information about the open hand would have been helpful to his
case.
It is an appropriate defense strategy to refrain from calling witnesses such as Pam
Olsen whose overall testimony would have resulted in a net loss rather than a gain.
Similarly, the Lewin police report and/or testimony contained the same problematic facts
for Petitioner’s case. Because there was no testimony at trial that anyone actually saw
Petitioner strike C.B. in the kitchen, Petitioner’s counsel called Lana Caudill to testify
that C.B. told her that Dan Winkler broke her jaw. (State’s Lodging E-3, pp. 213-215.)
The Court concludes that calling a witness who could confirm that Petitioner struck C.B.
in the kitchen would not have aided Petitioner’s defense and would have weakened the
defense’s reliance on Lana Caudill. Petitioner has not shown any prejudice resulting from
his attorney’s failure to investigate Pam Olsen or any part of Detective Lewin’s report.

MEMORANDUM DECISION AND ORDER - 32

2. Failure to Investigate Dr. Plant’s Opinions and C.B.’s Bicycle Accident Story
Defense counsel did not try to interview Dr. Plant either after the prosecution
disclosed him as a witness, or when the prosecution finally turned over Dr. Plant’s
opinion to Petitioner’s counsel four days before trial. In addition, counsel had not
gathered other evidence to support Petitioner’s preferred defense that Petitioner merely
slapped C.B. in the kitchen, and that C.B. instead broke her jaw later when she got on her
bike without her glasses and rode into Dan Winker’s porch. Had these investigations been
done, Petitioner argues, he would have been found guilty only of misdemeanor assault for
slapping C.B., not felony aggravated assault for breaking her jaw.
Dr. Plant testified at trial that he was immediately suspicious of C.B.’s bicycle
accident story when she came to his office for a diagnosis, because the story was
inconsistent with her injuries in several ways. Dr. Plant suspected that someone had
punched C.B., which was a mechanism consistent with the injury. Dr. Plant also opined
that an open-handed hit could not have caused the jaw to be broken in two places.
(State’s Lodging E-3, pp.34-35.) Dr. Plant testified that the force required to break the
coronoid process in the jaw (a rarely-seen injury that occurs in only five of one thousand
fractures) was so great that he would expect such a blow to injure both the jaw of the
victim and the hand of the perpetrator. (Id.)
With additional investigation, Petitioner argues, he could have capitalized on Dr.
Plant’s additional testimony that, if C.B. had fallen into a rounded or padded object, she

MEMORANDUM DECISION AND ORDER - 33

could have sustained such an injury without having any bruising. (State’s Lodging E-3, p.
33-35.) Petitioner argues that his counsel should have brought photographs of Winkler’s
astroturf-covered stairs leading to his mobile home, to prove the porch was a padded
object that would not have left a mark on C. B.’s face, just as Dr. Plant described.
Petitioner’s argument ignores the remainder of Dr. Plant’s testimony. Petitioner is
correct that his nearly-implausible preferred defense would have been slightly better with
a photo of the stairs, but he errs in believing additional items would have led the jury to
believe the fall, not the hit, caused the broken jaw. Dr. Plant testified:
Q.
So you were able to determine – so you’re stating that the
injuries you observed matched your description that she got hit in the face?
A.
That would be my initial suspected [sic], unless there was
something that came up off the porch that was completely round, which I
haven’t seen anything on a porch like that, from her description, that could
fit that. If you fall flat on your face like that, you’re going to break your
cheekbone, and you could break that joint, but you won’t break this.
You have to get up under the cheekbone, because it’s such a
prominent thing on your face, to even get to that area to break that.
And so that’s really where a blunt object of some sort has been directly hit
right below the cheekbone to that area (indicating).
(State’s Lodging E-3, pp. 31-32 (emphasis added).)
Dr. Plant further emphasized on cross-examination:
[W]hen I see a fracture of this magnitude – and in the x-ray when you look
at that where that is fractured, there had to be a direct blow. And if you look
at where everything joins together, that would be just right below the
cheekbone. But this is so far deep in, that it’s basically consistent with the
story that I got in September, that there had to be a fist, would be the only

MEMORANDUM DECISION AND ORDER - 34

object I can come up with that would not leave a mark, other than swelling,
and it would fracture right in that spot.
(Id., p. 43.)
In summary, while Dr. Plant testified that an open hand could not have caused the
broken jaw and a completely rounded object on the porch possibly could have, Dr. Plant
also confirmed that the cortoid process of the jaw could not be broken without a
tremendous amount of direct force applied directly under the cheekbone.4 Petitioner’s
argument requires the jury to disregard the majority of Dr. Plant’s opinion, as well as all
of the evidence regarding the kitchen incident and the reports that Petitioner injured his
hand. Had Petitioner’s counsel performed a more thorough investigation into Dr. Plant’s
opinion and the bicycle accident story, such a defense would not have been fruitful.
Because Dr. Plant testified that someone’s fist broke C.B.’s jaw, the better defense was
the one that Petitioner’s counsel presented—to point to another possible perpetrator—
C.B.’s ex-husband, Dan Winkler. Accordingly, Petitioner has shown neither deficient
performance nor prejudice.
3. Failure to Object to Prosecution’s Conclusion that C.B. Was Punched
Because the majority of the evidence presented at trial suggested that the hit had to
have been a punch, and the hit was delivered by Petitioner, the prosecutor did not engage
in misconduct when she described it to the jury as a fist or punch. This conclusion is the

4

This does not mean, as Petitioner suggests, that the strike had to be an “uppercut.” It simply means that the blow
had to strike below the cheekbone, the most prominent facial bone on the side of the face.

MEMORANDUM DECISION AND ORDER - 35

product of acceptable abductive reasoning, not prosecutorial misconduct. Therefore,
Petitioner’s counsel’s objections would have been futile.
Accordingly, this Court concludes that the Court of Appeals’ decision that there
was no prejudice regarding any of these alleged deficiencies is a reasonable application
of Strickland. Habeas corpus relief is not warranted.
DISCUSSION OF CLAIM SEVEN
Claim Seven is that direct appeal counsel performed ineffectively when counsel
failed to challenge the trial court’s denial of Petitioner’s motion for a mistrial based on a
juror’s disclosure, made during trial, that he may have been the pre-op and post-op
nurse for C.B. when she had surgery for her broken jaw (Dkt. 22-1, pp.6-11).
The Strickland principles apply to determining ineffective assistance of appellate
counsel claims. “Effective legal assistance” does not mean that appellate counsel must
appeal every question of law or every nonfrivolous issue requested by a criminal
defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). To show prejudice on appeal, a
petitioner must show that his attorney failed to raise an issue obvious from the trial record
that probably would have resulted in reversal. See Miller v. Keeney, 882 F.2d 1428, 1434
n.9 (9th Cir. 1989). If a petitioner does not show that an attorney’s act or omission
probably would have resulted in reversal, then he cannot satisfy either prong of
Strickland: appellate counsel was not ineffective for failing to raise such an issue, and

MEMORANDUM DECISION AND ORDER - 36

petitioner suffered no prejudice as a result of it not having been raised. See Miller, 882
F.2d at 1435.
The Idaho Court of Appeals relied on state law standards to determine whether the
result of the direct appeal probably would have been reversal if appellate counsel would
have brought the mistrial claim on direct appeal. That is, within the Strickland analytical
framework, the Idaho Court of Appeals looked through to the standard for the granting of
a mistrial: “A mistrial may be declared when there occurs during the trial an error or legal
defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial
to the defendant and deprives the defendant of a fair trial.”(State’s Lodging D-15, p. 9
(citing Idaho Criminal Rule 29.1).) In particular, “[j]ury misconduct shown to have a
reasonable probability of prejudicing the defendant may be the basis for a mistrial.” (Id.,
relying on State v. Rhoades, 829 P.3d 665, 668 (1991); and Roll v. City of Middleton, 771
P.3d 54, 58-60 (Idaho Ct. App. 1989).)
Other precedent regarding juror bias includes the following. A criminal defendant
has a fundamental right under the Sixth and Fourteenth Amendments to a fair trial by “a
panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). To be
impartial, the jury must be “capable and willing to decide the case solely on the evidence
before it.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). A
juror may still be qualified to serve even though he is not “totally ignorant of the facts
and issues involved.” Murphy v. Florida, 421 U.S. 794, 800 (1975). Rather, “it is

MEMORANDUM DECISION AND ORDER - 37

sufficient if the juror can lay aside his impression or opinion and render a verdict based
on the evidence presented in court.” Id.
The record reflects that Mr. Holm, a juror, disclosed during voir dire that he knew
C.B.’s surgeon and had worked with him on a limited basis at an area hospital. Petitioner
did not attempt to strike Mr. Holm from the jury panel after that disclosure. After the trial
started, Mr. Holm, who was crying and greatly distraught, informed the trial judge and
both counsel in chambers that he recognized C.B.’s face and thought he had provided
pre-op and post-op care to C.B. for the surgery to repair her broken jaw. (State’s Lodging
E-3, pp. 169-93.) After the inquiry, the trial court allowed Mr. Holm to remain on the
jury.
The Idaho Court of Appeals rejected Petitioner’s speculation that (1) Mr. Holm
had been a private employee of the surgeon and would have had access to C.B.’s
complete medical records, such that Mr. Holm would have known that Petitioner was the
cause of the injury; (2) that Mr. Holm had engaged in ongoing contact with C.B.; and (3)
that Mr. Holm harbored deep sympathy for C.B.’s pain. (State’s Lodging D-15, pp. 9-10.)
There was no evidence in the record showing these allegations to be true. Rather, the
record reflected that Mr. Holm was a hospital employee who worked with the surgeon
from time to time and who provided limited pre-op and post-op care to C.B.
The Idaho Court of Appeals rejected Petitioner’s contention that he was prejudiced
when the trial court permitted the trial to proceed with Mr. Holm on the jury. The record

MEMORANDUM DECISION AND ORDER - 38

reflects that Mr. Holm stated in chambers that he did not remember any specific
conversation with C.B., and that his normal routine would have been to speak with her
about how she was doing, to reassure her, and to monitor her condition and level of pain.
(State’s Lodging A-2, pp. 175-78.) Mr. Holm had no extrinsic knowledge about C.B.’s
condition other than an awareness that C.B was treated for a fractured jaw. The fact that
C.B. sustained a fracture of the jaw was uncontested. (Id., p.179.) Importantly, Mr. Holm
stated that, although he had treated C.B. for her injury, he could still weigh the evidence
at trial in an objective manner. (Id., pp.180, 183-184.)
The Idaho Court of Appeals determined that Petitioner had not produced any
evidence showing that Mr. Holm had access to extrinsic information on a material fact of
the case, such as the type of blow that could have caused the injury or whether Petitioner
had inflicted it.
Thus, the Court of Appeals concluded:
Even if appellate counsel had proceeded on this claim, [Petitioner] has not
shown a substantial likelihood that this Court would have reversed the
district court’s order denying a mistrial. Because he has not shown how he
was prejudiced by appellate counsel’s alleged deficiencies, we cannot say
that the post-conviction court erred in dismissing this claim.
(State’s Lodging D-15, pp.9-10 (emphasis added).)
Petitioner argued that, because Mr. Holm was crying and distraught during the in
camera interview, Mr. Holm had undue sympathy for C.B. However, the trial judge, who
had opportunity to observe Mr. Holm and interview him in the presence of counsel,

MEMORANDUM DECISION AND ORDER - 39

determined that Mr. Holm was simply worried about whether he himself “would be
perceived as a liar to th[e] court, and . . .he was very afraid that he had violated his oath
to th[e] court.” (State’s Lodging E-3, pp. 190-91.)
When reviewing an ineffective assistance of appellate counsel claim, the Court
must remain mindful that the Strickland standard of review that gives deference to
counsel’s decisionmaking is the de novo standard of review. Another layer of deference–
to the state court decision– is afforded on federal habeas corpus review. In giving
guidance to district courts reviewing Strickland claims on habeas corpus review, the
United States Supreme Court explained:
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.
Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct review
of a criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are different. For
purposes of § 2254(d)(1), “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams, supra, at
410, 120 S.Ct. 1495. A state court must be granted a deference and latitude
that are not in operation when the case involves review under the Strickland
standard itself.
Richter, 562 U.S. at 101.
The question before this Court, then, is whether the Idaho Court of Appeals’
application of Strickland was reasonable, not whether it was erroneous. In its survey of
cases from across the country on the underlying mistrial issue, this Court found two
cases, in particular, that were somewhat similar to the facts in Petitioner’s case. These
MEMORANDUM DECISION AND ORDER - 40

cases are not of precedential value, but are included only to show the range of issues and
outcomes when a selected juror discovers he or she has a relationship with someone tied
to the case; Idaho law governs mistrial issue underlying the Strickland claim. However,
these are the types of cases an appellate attorney might have reviewed to determine
whether the juror issue regarding Mr. Holm should be asserted on appeal.
In Franklin v. Texas, 138 S.W. 3d 351 (Tex. Crim. App. 2004), the defendant was
charged with aggravated sexual assault of a child. During trial, after the State’s first
witness—the victim—testified, a juror revealed that, while she did not recognize the
victim’s name, when she saw the victim, the juror realized that she was the victim’s
assistant Girl Scout troop leader, and that her daughter was also in the same Girl Scout
troop as the victim. The trial judge asked the juror whether she could consider the
evidence and base her decision on the evidence, to which the juror responded
affirmatively; however, the trial judge both denied the defendant the opportunity to
interview the juror to discover whether the relationship affected the juror’s ability to be
impartial, and denied the defendant’s motion for a mistrial. The Texas Criminal Court of
Appeals affirmed the intermediate court of appeals’ decision to vacate the conviction and
require a new trial, agreeing with the reasoning that, because the trial court “refused to
admit the information that would have permitted [it] to apply a harm analysis to the
juror's failure to answer counsel’s voir dire questions accurately,” there was an “absence

MEMORANDUM DECISION AND ORDER - 41

of evidence that would allow [it] to determine beyond a reasonable doubt that the error
did not contribute to the conviction.” 138 S.W. 3d at 358.
In Alvies v. Indiana, 795 N.E. 2d 493 (Ind. Ct. App. 2003), a murder trial, three
jurors revealed to the court that they had ties to the victim or witnesses, but after the court
and counsel examined them, the court was confident they would be unbiased and the
three jurors were not replaced with available alternate jurors. After being selected but
before being sworn, the first juror revealed that, after she had returned home from being
selected as a juror, her mother-in-law called her and said that her father-in-law was a
second cousin of one of the victims. However, the first juror assured the trial court that
regardless of what she had learned the evening prior, she would be able to listen to the
evidence and jury instructions and base her decision solely on the evidence and
testimony.
After the State’s first witness testified, the second juror reported that he knew a
former police officer witness. They currently worked together at a masonry and concrete
business, where they served on different crews and saw each other “once in a while in the
mornings.” They had only a casual working relationship, and had engaged in no
discussions about the Alvies case. Regarding the second juror, the court determined that
the former officer’s testimony would involve only what he saw when he arrived at the
scene of the crimes.

MEMORANDUM DECISION AND ORDER - 42

A third juror disclosed during trial that she knew the coroner because he had
installed carpet in her home and that she knew him well enough to say “hi” if she saw
him. The juror had no opinion of the witness in his capacity as coroner and made it clear
that her knowledge of the witness would not affect her ability to serve as a juror. The trial
court denied the defendant’s motion to remove her from the jury. Id. at 502-03. The state
court of appeals affirmed the trial court’s decision to leave all three jurors on the jury,
because there was no prejudice to the defense.
These cases highlight the general principle that defense counsel must be afforded a
thorough opportunity to probe a selected juror in camera to determine whether,
notwithstanding the relationship the juror revealed, the juror can serve as an unbiased
factfinder. The trial court reviews the juror’s responses to determine whether the juror
will be able to base his or her decision solely on the evidence and testimony. Declaring a
mistrial is required only when the juror misconduct is shown to have a reasonable
probability of prejudicing the defendant and depriving him of a fair trial. The trial court’s
decision is discretionary, and it will be overturned on appeal in the state courts only if it
constitutes an abuse of discretion. In Idaho, the Idaho Court of Appeals has made it clear
that there is no presumption of prejudice regarding juror misconduct. 5

5

The Idaho appellate courts have rejected the analytical model that begins with a presumption of prejudice, as
Petitioner argues (Dkt. 56, p. 18, relying on United States v. Madrid, 842 F.2d 1090, 1093 (9th Cir. 1988)). The
United States Supreme Court also rejected the presumption of prejudice model in McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 553 (1984) (“We have also come a long way from the time when all trial error was
presumed prejudicial and reviewing courts were considered ‘citadels of technicality.’”). Petitioner’s citation to
Madrid regards a juror’s ex parte contact with a court clerk during deliberations, and is not legally or factually
applicable here.

MEMORANDUM DECISION AND ORDER - 43

Petitioner admits that, during voir dire, he and his counsel obtained information
from Mr. Holm that Mr. Holm had worked with C.B.’s surgeon at a local regional
hospital from time to time. Apparently, nothing Mr. Holm revealed about that working
relationship prompted Petitioner to strike him for cause or peremptorily; for example,
Petitioner must not have been concerned that Mr. Holm might consider or weigh Dr.
Plant’s testimony more or less favorably because of their casual working relationship.
Beyond the working relationship of Dr. Plant and Mr. Holm, the fact that Mr.
Holm actually treated the victim for the very injury that was at issue in the criminal case
raises more cause for concern than the mere casual business relationship of a nurse/juror
and the surgeon/witness. However, the record reveals no bias or prejudice of Mr. Holm
against Petitioner. Mr. Holm’s recollection of having treated the victim was vague. Mr.
Holm’s extraneous information about the case was limited to having (1) a knowledge of
the injury, the pre-operative care, and the post-operative care, and (2) a short,
nonpersonal nurse-patient relationship. The fact of the injury was uncontested at trial. Mr.
Holm did not obtain any information from the patient about how the injury was caused.
Accordingly, there is no reasonable probability that Petitioner would have
prevailed on this issue on appeal, had Petitioner’s appellate counsel brought it before the
Idaho Court of Appeals, given: (1) the overwhelming evidence from several different
sources that Petitioner caused C.B.’s broken jaw in the kitchen, (2) Mr. Holm had no
extrinsic evidence about the cause of the injury, but knowledge only about the

MEMORANDUM DECISION AND ORDER - 44

uncontested fact of the injury; (3) Mr. Holm did not express any undue sympathy toward
the victim or any bias against Petitioner; and (4) Petitioner and his counsel already knew
that Mr. Holm and Dr. Plant had a casual working relationship at the regional hospital.
Under these circumstances and the doubly deferential standard of Harrington v. Richter,
the Court concludes that the Idaho Court of Appeals’ decision was not an unreasonable
application of Strickland because Petitioner has not demonstrated deficient performance
or prejudice regarding counsel’s failure to raise the issue on direct appeal.
DISCUSSION OF CLAIM TEN
Claim Ten is that the prosecution committed a Brady violation when it failed to
disclose the exculpatory evidence that Dr. Plant would testify that C.B.'s fractured jaw
could not have been caused by a hand slap. (Dkt. 22-1, pp.22-24.) Petitioner alleges that,
on December 11, 1998, the prosecution mailed a notice to defense counsel that it would
be calling Dr. Plant to testify, but it did not disclose the content and basis of the expert
testimony, nor did it disclose medical records or examination reports of Dr. Plant
concerning C.B.’s broken jaw. On February 12, 1999, the prosecution provided defense
counsel with Dr. Plant’s medical consultation form, but still had not provided a summary
of Dr. Plant’s proposed trial testimony. Petitioner alleges that, because he was charged
with breaking C.B.’s jaw by an open-handed strike to the face, Dr. Plant’s testimony that
an open-handed strike could not have caused the broken jaw was exculpatory evidence

MEMORANDUM DECISION AND ORDER - 45

subject to the Brady disclosure rule. Also, as a result of the nondisclosure, Petitioner was
not prepared to call Pam Olsen, who could have testified to the open-handed strike.
It is well established that the prosecution has a duty under the Due Process
Clause of the Fourteenth Amendment to disclose to the defendant exculpatory evidence
that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963); United
States v. Bagley, 473 U.S. 667, 676 (1985). A meritorious Brady claim contains three
essential components: (1) the evidence must be favorable to the accused, either because it
is exculpatory or impeaching; (2) the prosecution must have withheld the evidence, either
intentionally or inadvertently; and (3) the evidence must be material to guilt or
punishment. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Suppressed evidence is material under Brady, and its non-disclosure is
prejudicial, when there is a reasonable probability that had the evidence been disclosed,
the result of the proceeding would have been different. Bagley, 473 U.S. at 682; Kyles v.
Whitley, 514 U.S. 419, 433-34 (1995). In determining “materiality,” the court must assess
the weight and force of the withheld evidence collectively, rather than item by item.
Kyles, 514 U.S. at 433-34.
The Idaho Court of Appeals rejected Petitioner’s Brady claim, reasoning:
Even assuming that this was error, Anderson has failed to show how the
alleged misconduct amounted to prejudice or reversible error. See
Raudebaugh v. State, . . . 21 P.3d 924, 928 (Idaho 2001) (the petitioner did
not demonstrate how the State's nondisclosure of documents could have
altered the outcome of the trial). As we previously noted, even if Anderson
had presented a defense that he had slapped but not punched C.B., in light
MEMORANDUM DECISION AND ORDER - 46

of the other evidence, it is highly unlikely that the jury would have
concluded that Anderson did not cause C.B.’s injury.
(State’s Lodging D-15, p.13.)
To prevail on this claim, Petitioner must demonstrate that the decision of the
Court of Appeals is an unreasonable application of Brady, Bagley, and Kyles, which
includes a showing that there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different. Even if Petitioner
would have had time to subpoena Pam Olsen to trial and bring in photos of the astroturfcovered stairs, the other evidence is still overwhelming and would have outweighed the
“open-handed slap” theory, including (1) Petitioner hit C.B. in the kitchen with great
force, enough to knock her from her chair; (2) witnesses saw C.B. screaming in pain
directly after the strike; (3) Petitioner injured his hand when he struck C.B.; and (4)
expert witness testimony of the unlikeliness that the injury was sustained by falling. This
Court concludes that the Idaho Court of Appeals’ decision was not unreasonable under
§2254(d)(1).
DISCUSSION OF CLAIM ELEVEN
Claim Eleven is that Petitioner’s Sixth Amendment rights to confrontation and due
process were violated when the trial judge required Petitioner to choose between
foregoing cross-examination of C.B. about her motive to go to the police to report the
broken jaw incident two weeks after the incident or having Petitioner’s other bad acts
come in on rehabilitation examination if he chose to cross-examine C.B. about motive.
MEMORANDUM DECISION AND ORDER - 47

Particularly, at trial Petitioner’s counsel announced during his opening statement that the
jury would hear that C.B. had a motive for making a false report that Petitioner hit her—
in her child protection case, a magistrate judge told her she could not continue to reside
with Petitioner if she wanted to regain custody of her son (who resided with Dan
Winkler), and C.B. wanted to ensure that Petitioner was convicted and incarcerated. The
prosecution then moved in limine to exclude information regarding the child custody
hearing that was irrelevant to the assault and that might unduly prejudice C.B. and Dan
Winkler. The prosecutor successfully argued that, if Petitioner cross-examined C.B. about
motive, C.B. should be able to discuss on rehabilitation her fear that Petitioner might kill
her, based on the rape and other violent conduct. Petitioner’s counsel chose to forego
cross-examination into C.B.’s motive.
Petitioner did not raise the issue under the Confrontation Clause, but only as a
state law evidentiary issue, and, therefore, he is not eligible for federal habeas corpus
relief on a state law ground. However, this Court will review the reasonableness of the
Idaho Court of Appeals’ ruling on the claim under §2254(d)(1), to the extent that it states
a federal due process cause of action, a claim that is often intertwined with state
evidentiary issues, and then it will consider the Confrontation Clause argument.
1. State Court Ruling
The Idaho Court of Appeals determined:
We begin by noting that the district court's ruling was imprecise as
to exactly what type of evidence would be admitted if Anderson crossMEMORANDUM DECISION AND ORDER - 48

examined C.B. about her motive to lie. However, from the entire lengthy
colloquy between the two counsel and the district court on this issue, we
discern that the court was accepting the State’s position that on redirect
examination, C.B. should be allowed to testify about her motivation for
going to the police, which could include her allegation that Anderson had
just raped her and could also include an explanation that she was afraid that
she would never see her son again because she feared that Anderson was
going to kill her based upon multiple acts of violence against her. We find
no error in this aspect of the court's ruling. Clearly, testimony that C.B.
sought Anderson's arrest because she was afraid of him, based on a history
of beatings and a rape, would be relevant to rehabilitate her with respect to
her motive in going to the police.
(State’s Lodging B-7, p. 4.)
The Idaho Court of Appeals agreed with Petitioner that the trial court’s ruling was
too broad regarding the scope of evidence that could have been included in the
rehabilitative testimony. As a result of that error, the Idaho Court of Appeals performed a
harmless error analysis under Chapman v. California, 386 U.S. 18, 22 (1976). (State’s
Lodging B-7, p. 5.) The Court of Appeals determined that, to the extent that the trial
court’s ruling was overbroad as to the admissibility of Anderson’s prior conduct, which
“dissuaded [Petitioner] from impeaching C.B., with her alleged motive to fabricate, any
such error could not have contributed to the verdict.” (Id., p. 5.)
2. Due Process Clause and Harmless Error Analysis
The United States Supreme Court has clarified that, when a state appellate court
has undertaken a Chapman harmless error review, the federal district court reviewing the
decision under § 2254 applies the Brecht harmless error analysis. See Fry v. Pliler, 551
U.S. 112, 120 (2007) (“Brecht obviously subsumes AEDPA/Chapman review”) (citing
MEMORANDUM DECISION AND ORDER - 49

Brecht v. Abrahamson, 507 U.S. 619 (1993)). Under Brecht, a federal habeas court that
determines constitutional error occurred cannot grant a writ of habeas corpus unless the
error “had substantial and injurious effect or influence in determining the jury’s verdict.”
507 U.S. at 638.
This Court concludes that, even if the limitation on cross-examination violated
Petitioner’s due process rights, such an error was harmless under Brecht. If in error, the
limitation did not have substantial and injurious effect or influence in determining the
jury’s verdict. As the Court has explained, the evidence pointing to Petitioner as the
person who broke C.B.’s jaw is overwhelming, and evidence regarding motive to report
the crime and/or past bad acts simply would not have called into question the sequence of
events in the kitchen and the medical evidence supporting the verdict.
3. Confrontation Clause Analysis
Alternatively, the court agrees with Respondent that, as a Confrontation Clause
claim under de novo review, Claim Eleven fails. The “main and essential purpose of
confrontation is to secure for the opponent the opportunity of cross-examination.” Davis
v. Alaska, 415 U.S. 315-316 (1974). A trial judge is permitted to impose reasonable limits
on cross-examination, without violating a defendant’s right to confrontation.” Delaware
v. Van Ardsall, 475 U.S. 673, 679 (1986). In other words, “the Confrontation Clause
guarantees only an opportunity for effective cross-examination, not cross-examination

MEMORANDUM DECISION AND ORDER - 50

that is effective in whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original).
The right to confront witnesses includes the right to cross-examine witnesses to
attack their general credibility or to show their possible bias or self-interest in testifying.
Davis, 415 U.S. at 316. The right is not unlimited, however, and a trial judge retains wide
discretion in limiting the scope of cross-examination. Van Arsdall, 475 U.S. at 674. In
determining whether there has been a Confrontation Clause violation, the court should
examine the probative value of the proposed cross-examination. Id.
Petitioner was free to introduce the statements of C.B. that he thought established
that she had an ulterior motive for fabricating the battery and rape charges against him—
she wanted him to leave her household so that she could regain custody of her child. The
trial court ruled that if Petitioner introduced these statements, the prosecution was free to
rehabilitate C.B. by drawing out her testimony that it was Petitioner’s past violent
behavior that motivated her to report the crime. This is a reasonable limitation on crossexamination that balanced Petitioner’s right to cross-examine C.B. on this particular
point, and the state’s interest in rebutting the allegations of improper motive. Petitioner
otherwise had great leeway in cross-examining C.B. on all aspects of her allegations
behind the aggravated assault charge. Cf. Van Arsdall, 475 U.S. at 677 (Confrontation
Clause was violated when court prohibited all cross-examination into a witness’s bias);
U.S. v. Strothers, 77 F.3d 1389 (D.C. Cir. 1996) (foregoing cross-examination to avoid

MEMORANDUM DECISION AND ORDER - 51

admission of negative rebuttal evidence was a strategic choice, not a limitation on crossexamination).6 Based on the foregoing, the trial court’s decision that cross-examination
would open the door to certain rebuttal evidence did not violate the Confrontation Clause.
DISCUSSION OF CLAIM TWELVE
Claim Twelve is that trial counsel was ineffective for informing the jury during
Petitioner’s opening statement that C.B. had a motive to lie because a judge told her
during a child protection proceeding she would not be reunified with her son so long as
Anderson was living in her residence, because counsel knew or should have known he
did not have admissible evidence to support such statement. (Dkt. 22-1, pp.31-36.)
Petitioner asserts that his credibility was damaged when the judge’s ruling rendered him
unable to support the opening statement reference to C.B.’s improper motive for
attributing the broken jaw to Petitioner.
As discussed above, Petitioner’s counsel planned to cross-examine C.B. regarding
her inability to regain custody of her son if Petitioner continued to reside with her.
However, the prosecution stepped in after opening argument with an oral motion in
6

In Strothers, the appellate court explained:
The court at no time prohibited the appellants from impeaching Pratt's reliability by crossexamining him about his mental health but simply ruled that if they did the government could put
Pratt's mental health into context on redirect. The appellants themselves then made the strategic
choice to limit their examination of Pratt. They cannot now transform that choice into judicial
error. Cf. United States v. Tarantino, 846 F.2d 1384, 1407 (D.C.Cir.) (holding that forcing
defendant to make tactical decision whether to cross-examine witness and thereby open door to
prejudicial contextual information did not violate confrontation clause or constitute abuse of
discretion), cert. denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988).

77 F.3d at 1393.

MEMORANDUM DECISION AND ORDER - 52

limine to prohibit Petitioner’s counsel from referencing what the judge in the custody
matter had said and from bringing in evidence about C.B. and Dan Winkler’s custody
case. After the motion, the court heard extensive argument from both sides, and then
required Petitioner to choose between including this subject on cross-examination and
having C.B. testify about the rape incident and prior domestic abuse. The trial court also
determined that any statements made by the judge presiding over the child custody case
would have been inadmissible and should not have been included in the opening
argument. (State’s Lodging E-3, pp. 94-95.)
Petitioner provides much argument regarding trial counsel’s reference to
inadmissible evidence—the child custody judge’s statement—as deficient performance.
However, Petitioner’s counsel could have cross-examined C.B. about other aspects
regarding the child custody matter without specifically referencing the judge. Petitioner’s
counsel need not have anticipated that the prosecution would attempt to (wrongly) argue
that the scope of rehabilitation regarding motive should be so broad. Petitioner’s
counsel’s reference to the judge in the opening argument does not show that counsel’s
plan was a futile one focused solely on the judge’s statements. For example, he could
have cross-examined C.B. about her understanding of what she needed to do to regain
custody of her child, to avoid asking about the judge’s statements.
This Court need not determine deficient performance, however, because the Idaho
Court of Appeals assumed that Petitioner’s counsel performed deficiently, and then

MEMORANDUM DECISION AND ORDER - 53

concluded that Petitioner still failed to meet the prejudice prong of the Strickland test.
“Even if counsel had presented evidence that [Petitioner] had slapped but not punched
C.B., had shown that C.B. had fallen from a bicycle, had refrained from referencing a
defense that could not be supported, and had demonstrated that witnesses may have had
some motive to lie, it is highly unlikely that the jury would have concluded that
[Petitioner] did not cause C.B.’s injury,” the Court of Appeals reasoned. (State’s Lodging
D-15.)
As detailed above, this Court agrees that the straightforward cause and effect
analysis required to determine how C.B.’s jaw was broken is not affected by defense
counsel’s reference to a tangential fact that he did not support at trial, or by the jury not
hearing whether C.B. had a motive to lie about the cause of her broken jaw. Petitioner’s
story that he merely slapped C.B., she independently fell out of the chair as a result of her
efforts to grab his camera bag, and that she sustained her injury well after the slapping
incident as a result of riding her bike without her glasses (though nearly blind) is simply
untenable in light of all of the evidence. As a result, the Court concludes that the Idaho
Court of Appeals’ Strickland analysis is not unreasonable, and habeas corpus relief is not
warranted.

MEMORANDUM DECISION AND ORDER - 54

DISCUSSION OF PETITIONER’S CONTENTION THAT THE IDAHO COURT
OF APPEALS UNREASONABLY DETERMINED THE FACTS
1. Standard of Law
When a party contests the reasonableness of the state court’s factual
determinations under § 2254(d)(2), the petitioner must show that the state court decision
was based upon factual determinations that were “unreasonable in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The United States Court
of Appeals for the Ninth Circuit has identified five types of unreasonable factual
determinations that result from procedural flaws that occurred in state court proceedings:
(1) when state courts fail to make a finding of fact; (2) when courts mistakenly make
factual findings under the wrong legal standard; (3) when “the fact-finding process itself
is defective,” such as when a state court “makes evidentiary findings without holding a
hearing”; (4) when courts “plainly misapprehend or misstate the record in making their
findings, and the misapprehension goes to a material factual issue that is central to
petitioner’s claim; or (5) when “the state court has before it, yet apparently ignores,
evidence that supports petitioner’s claim.” Taylor v. Maddox, 366 F.3d. 992, 1000-01
(9th Cir. 2004). State court findings of fact are presumed to be correct, and the petitioner
has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
If the state court factual determination was unreasonable, then the federal court is
not limited by § 2254(d)(1), but proceeds to a de novo review of the claims, which may
MEMORANDUM DECISION AND ORDER - 55

include consideration of evidence outside the state court record, subject to the limitations
of § 2254(e)(2). Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
2. Patrick Gilbert Testimony
Here, the Idaho Court of Appeals plainly misstated the record in including the
testimony of Patrick Gilbert as part of the “overwhelming evidence” supporting the
conviction in the aggravated battery case. While that testimony clearly supports the
conviction in theory, the testimony was presented to a different jury in the subsequent
rape trial, and, thus the jury in the aggravated battery trial did not have an opportunity to
weigh that testimony in coming to the guilty verdict in the battery case. However, it is
clear that, without the Patrick Gilbert testimony, the evidence still was overwhelming;
with addition of this evidence under the de novo standard—when the Court surveys all
possible evidence that could have been presented—it adds to the overwhelming nature of
the evidence supporting the aggravated battery conviction. Therefore, either under a
§2254(d)(2) or de novo review standard, the misstatement of the record did not cause the
overall factual finding to be unreasonable and does not materially affect the outcome on
federal habeas corpus review. Accordingly, no relief is warranted on this basis.
3. General Contention of Unreasonable Fact Finding
In his Traverse, Petitioner generally contends that the Idaho Court of Appeals
unreasonably determined the facts underlying its decisions. However, he makes no clear
arguments under 28 U.S.C. §2254(d)(2). (Dkt. 56, p. 1.) To the extent that Petitioner’s

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§2254(d)(2) arguments are embodied in the claims that are subject to AEDPA, the Court
concludes that Petitioner has not met his burden to show the factual findings of the state
courts are unreasonable, for the reasons set forth above. To the extent that Petitioner
simply disagrees with the facts found by the jury at trial or found by the state courts in the
course of reviewing the conviction, he is not entitled to relief, for the reasons set forth
above.
CONCLUSION
A review of the entire record demonstrates that Petitioner is not entitled to relief
on any of his habeas corpus claims, whether under an AEDPA or de novo standard of
review. Therefore, the Amended Petition for Writ of Habeas Corpus will be denied, and
this entire case will be dismissed with prejudice.
REVIEW OF THE CLAIMS AND THE COURT’S DECISION
FOR PURPOSES OF CERTIFICATE OF APPEALABILITY
In the event Petitioner files a notice of appeal from the Order and Judgment in this
case, the Court now evaluates the claims within the Petition for suitability for issuance of
a certificate of appealability (COA), which is required before a habeas corpus appeal can
proceed. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Rule 11(a), Rules Governing Section 2254 Cases.
A COA will issue only when a petitioner has made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has
explained that, under this standard, a petitioner must show “that reasonable jurists could
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debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal citation and
punctuation omitted).
When a court has dismissed the petition or claim on the merits, the petitioner must
show that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. The COA standard
“requires an overview of the claims in the habeas petition and a general assessment of
their merits,” but a court need not determine that the petitioner would prevail on appeal.
Miller-El, 537 U.S. at 336.
Here, the Court has denied Petitioner’s claims on the merits. The Court finds that
additional briefing on the COA is not necessary. Having reviewed the record again, the
Court concludes that reasonable jurists would not find debatable the Court’s decision on
the merits of the claims raised in the Petition and that the issues presented are not
adequate to deserve encouragement to proceed further. As a result, the Court declines to
grant a COA on any issue or claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth Circuit,
Petitioner must file a notice of appeal in this Court within thirty (30) days after entry of
this Order, and he may file a motion for COA in the Ninth Circuit Court of Appeals,
pursuant to Federal Rule of Appellate Procedure 22(b)(2).

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ORDER
IT IS ORDERED:
1. The Amended Petition for Writ of Habeas Corpus (Dkt. 22) is DENIED, and this
entire action is DISMISSED with prejudice.
2. A certificate of appealability will not issue. If Petitioner files a timely notice of
appeal, the Clerk of Court shall forward a copy of the notice of appeal, together
with this Order, to the United States Court of Appeals for the Ninth Circuit.
Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a
request in that court.

DATED: March 31, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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