Hansen v. Idaho, State of

Filing 73

MEMORANDUM DECISION AND ORDER The Amended Petition for Writ of Habeas Corpus (Dkt. 46 ) is DENIED, and this entire action is DISMISSED with prejudice. The Court will not grant a Certificate of Appealability in this case. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TIMOTHY J. HANSEN,
Case No. 1:03-cv-00212-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

BRENT REINKE,
Respondent.

Petitioner Timothy J. Hansen filed a Petition for Writ of Habeas Corpus on May 7,
2003. This case was stayed for eight years while Petitioner was attempting to exhaust his
claims in state court. The case was reopened in 2011, after which Petitioner filed a
Amended Petition. (Dkt. 46.)
Previously in this habeas corpus action, the Court granted in part and denied in
part Respondent’s Motion for Partial Summary Dismissal. (Dkt. 64.) As a result, Claim
One (A) was dismissed for failure to state claim, and Claims One (B) and (C), Two (A)
and (B), Three (B), and Five were dismissed as procedurally defaulted.
Claims Three (A) and (C), Four, and Six were not dismissed, but proceeded to
additional pleading and briefing. Respondent has filed an Answer and Brief in Support of
Dismissal of Petitioner’s Amended Petition for Writ of Habeas Corpus (Dk. 67),
Petitioner has filed a Reply (Dkt. 70), and Respondent has filed a Sur-reply. (Dkt. 71.)
MEMORANDUM DECISION AND ORDER - 1

Having reviewed the record, including the state court record, the Court finds that the
parties have adequately presented the facts and legal arguments in the briefs and record
and that the decisional process would not be significantly aided by oral argument.
Therefore, the Court will decide this matter on the record without oral argument. D. Idaho
L. Civ. R. 7.1(d).
BACKGROUND
1.

Circumstances Leading to Arrest and Search of Petitioner’s Residence
In August 2000, the Idaho State Police (ISP) began investigating the Jerry Windle1

property, located at 7695 Pocatello Creek Road, in Bannock County, Idaho, where they
suspected methamphetamine was being manufactured. (State’s Lodging B-10, p. 1.) At
that time, Timothy Hansen (“Petitioner”) lived in a bus parked on Windle’s property. (Id.)
On September 12, 2000, under the direction of ISP Detective Gary Brush,
Petitioner was stopped by Trooper John Kempf for driving without privileges, and
Petitioner had two false identification cards in his possession. (State’s Lodging A-2, p.
141-48.) On December 7, 2000, Petitioner purchased a gallon of iodine in Idaho. After
that date, he traveled to Utah. On January 6, 2001, Petitioner was arrested in Utah on a
charge of driving under the influence, and he spent the next six months in a Utah jail.

1

The state record contains references to three spellings of this name, “Windle,”
“Windell,” and “Wendell.” The spelling “Windle” appears in the trial transcript and is used here.
Similarly, Petitioner sometimes refers to State’s informant James Mitchell Burt as “Burke,” but
the trial transcript reflects “Burt,” which is used here.
MEMORANDUM DECISION AND ORDER - 2

On April 18, 2001, while Petitioner was in jail in Utah, a confidential informant
met with Detectives Charles Burke and Glen Boodry and told them a person named
Steven King was living in Petitioner’s “old bus” and manufacturing methamphetamine
there. The informant said that, in April 2001, “Steven King’s residence [was] the same
place Timothy Hansen lived prior to being sent to jail.” (State’s Lodging E-2, pp. 62-63.)
The report of the interview mentioned Robert Zazweta and Troy Hall as sources of
phosphorus used to make the drug. The report also mentioned that this activity was taking
place on Windle’s property, and that Windle was given one-fourth of the
methamphetamine that King produced. (Id.)
Petitioner alleges that, after he was released from the Utah jail, he returned to
Idaho on June 5, 2001. During that time, ISP investigators were conducting surveillance
on the Windle property. At about 2:00 p.m. on June 7, detectives saw Petitioner leave the
Windle property. (State’s Lodging B-10, p. 1.) They stopped Petitioner’s car because he
had an outstanding Utah felony arrest warrant, and because he was driving without
privileges. (Id.) Detectives arrested Petitioner at gunpoint, but without incident, and they
handcuffed him and placed him in the back of a patrol car. (Id. at 2.)
Detective John Ganske told Petitioner that ISP believed that methamphetamine
was being produced at 7695 Pocatello Creek Road, and Ganske asked Petitioner whether
he knew anything about that. (State’s Lodging B-1, p. 2.) Petitioner denied knowledge of
a methamphetamine lab and he refused to consent to a search of the bus or the Windle

MEMORANDUM DECISION AND ORDER - 3

house. (Id.) Petitioner was left alone in the patrol car for about 50 minutes while Ganske
searched Petitioner’s vehicle and had discussions with other officers. (Id.)
Petitioner alleges that Ganske persisted in trying to pressure Petitioner to agree to
take Ganske onto the Windle property. Ganske inquired whether Petitioner had any
particular tow company that he wanted to tow his vehicle. (State’s Lodging B-2, p. 2.)
Petitioner asked that his vehicle not be towed. Ganske then tried to strike a deal with
Petitioner, and the two discussed whether Ganske could try to call Utah officials
regarding the warrant, whether Petitioner would be charged with driving on a suspended
license, and what to do with Petitioner’s car. Petitioner felt pressured by the detectives to
agree to some terms to avoid additional criminal charges, and so he agreed that they could
drive Petitioner’s car back to the property, and that the detectives could search only the
bus, looking for items only in plain view. Petitioner signed a consent-to-search form.
(State’s Lodging B-2, and Petitioner’s Amended Petition, Dkt. 46, pp. 5-6.)
Petitioner has asserted that he was not living in the bus on June 7, 2001, but that he
had just returned from Utah to retrieve some things he had in a storage shed on the
Windle property. (Dkt. 46, p. 5.) However, Petitioner made various statements to officers
that the bus and its contents were “his.” For example, Detective Kempf testified that
Petitioner had said, “he didn’t want [officers] pawing through his shit.” (State’s Lodging
A-2, p. 294.)
Officer John Kempf saw enough evidence in and around the bus to suspect that
methamphetamine was being manufactured on the Windle property. (Id.) The ISP then
MEMORANDUM DECISION AND ORDER - 4

obtained a search warrant for the entire premises, and they found a methamphetamine lab
inside the residence. (Id.)
On October 3, 2001, the prosecutor in Bannock County charged Petitioner with
conspiracy to traffic in methamphetamine by manufacturing, between the dates of August
12, 2000, and August 1, 2001, in violation of Idaho Code § 37-2732B(a)(3) and § 372732(f). (State’s Lodging A-1, pp.18-20.) An Amended Information charged that one of
the parties to the conspiracy agreement performed at least one of the following overt acts
during that time period: “(1) Purchased and/or supplied precursors for the manufacture of
methamphetamine; or (2) Actively participated in the cooking process for the
manufacture of methamphetamine; or (3) Provided a location for Steven King and/or
other unnamed individuals to manufacture methamphetamine; or (4) Aided in the storage
of equipment and chemicals used for manufacturing methamphetamine; or (5) Distributed
methamphetamine.” (State’s Lodgings A-1, pp. 53-54, Amended Information; B-1, Jury
Instruction 14.) Because Petitioner asserts he was in a Utah jail from January to June of
2001, the relevant time period for Petitioner’s participation in the conspiracy is roughly
August 12, 2000 to December 31, 2000.

MEMORANDUM DECISION AND ORDER - 5

2.

State Court Proceedings
Petitioner filed a motion to suppress all evidence that was found during the

warrantless search of the bus and during the later warrant search of the Windle property,
asserting that his consent to search was obtained by duress. (Id., pp.44-45.) The trial court
denied the motion after an evidentiary hearing. (State’s Lodging A-2, pp.1-49.)
The case proceeded to a jury trial on December 18, 2001. (State’s Lodging A-2,
pp.50-439.) At trial, witnesses testified that the following individuals had been involved
in manufacturing methamphetamine in the Windle residence and in Petitioner’s bus:
Petitioner Timothy Hansen, Jerry Windle, Steven King, Robert Zazweta, Amy Flukiger,
and Theodora “Teddy” Salazar. The prosecution argued that these persons were members
of the conspiracy that formed the basis of the manufacturing charges against King and
Hansen. King was tried separately several weeks before Petitioner’s trial.
At Petitioner’s trial, Detective Gary Brush was called as a witness to testify about
the complex process of manufacturing methamphetamine. He testified about the
ingredients (including iodine, phosphorus, matchboxes, coffee filters, kitty litter,
ephedrine pills), the cooking, the straining, the mixing, and the drying. He testified that
the amount of iodine needed for methamphetamine production is far above a householdtype use, and is more like the amount that a rancher would use to treat 400 cattle or a
veterinarian would use to treat large animals in a year. (State's Lodging A-2, p. 252.)
Detective Brush also testified about the organization of a drug manufacturing
conspiracy:
MEMORANDUM DECISION AND ORDER - 6

They’re basically organized – they’re a group of people with one
goal, and that’s to manufacture meth. One may be the cook, one may be the
helper, several may go out and get precursors, the ephedrine, the iodine, the
phosphorus, that type of stuff, and then they bounce back and forth. One
day we have may a person who – what we call a throw house, and he allows
people to come to his house and make drugs, and then next time he may buy
iodine and go to another house and trade that iodine for drugs.
(Id., p. 132.)
Detective Brush testified that he had been investigating Zazweta, Fluckiger,
Windle, Petitioner, and King as members of an organization. (Id., p. 154.) Brush testified
that Petitioner left the Windle property in his car with an empty propane tank and
Petitioner met King in a KOA campground. When King was arrested shortly thereafter,
he began to eat a piece of paper that was on his person. When officers took the remainder
of the piece of paper from him, they discovered it was a recipe for manufacturing
methamphetamine. (Id., pp. 158-164.)
Detective Brush testified that a search of Windle’s property revealed many signs of
a methamphetamine lab. (Id., pp. 174-90.) Residue from a container from the property
testified positive for methamphetamine.2 (Id., p. 191.) Brush testified that Petitioner had
two fake identification cards, “Rafeal Espin” and “Jeremy Sorter”—both bearing
Petitioner’s photograph. (Id., p. 142-147.) Brush testified that people in drug

2

Idaho State Police forensic lab senior criminalist Michael Anthony testified that he
tested the container and found it positive for methamphetamine. (State's Lodging A-2, pp. 382412.)
MEMORANDUM DECISION AND ORDER - 7

organizations commonly have different identities and use them when they make
purchases of the supplies for methamphetamine production. (Id., pp. 142-43.)
Brush also testified that he found “items of occupancy” on the bus, indicating that
Petitioner lived on the bus, including letters sent to Petitioner at that address, letters
Petitioner had written, court paperwork bearing Petitioner’s name, and a check from Ada
County Jail written to Petitioner. (State’s Lodging A-2, p. 258.) Detective Donald
Broughton testified he found “items of occupancy” on the bus belonging to Petitioner,
Fluckiger, King, Dale Pfister, and Jan Keller. (Id., p. 364.)
Detective John Kempf testified about the arrest of Petitioner and search of the bus.
Outside the bus, Kempf observed a section of carpeting with a large iodine stain and a
burn, as well as an igloo cooler with a glass tube fixed into the bottom of it, like a
homemade condenser column. (Id., p. 283-84.) Once inside, Kempf saw a
methamphetamine pipe, a digital scale, and some small plastic baggies, and he testified
about how the scales and bags are used to prepare methamphetamine for sale. (Id., 27383.) He also found two fake ID cards with Petitioner’s photograph next to the scale. (Id.,
pp. 294-95.)
While James Mitchell Burt was in jail with King and Petitioner, Burt offered to be
an informant for the State. Burt testified at King’s trial, and then at Petitioner’s trial. Burt
told the jury at Petitioner’s trial that he had agreed to testify because methamphetamine
had been devastating to his life and his family, he wanted the get the drug off the street,

MEMORANDUM DECISION AND ORDER - 8

and he wanted to sever his ties to the people that he was involved with. (State’s Lodging
A-2, pp. 62-64.)
Burt testified that he had been friends with Petitioner and with King. He testified
that he had been to Petitioner’s bus several times, and saw Zazweta, Salazar, and
Petitioner engaged in the production of methamphetamine. (State’s Lodging A-2, p. 67.)
Burt testified that Zazweta was the “main cook” in the operation, and Petitioner was “like
an assistant” to Zazweta, doing the cleaning and running errands to purchase ingredients.
(Id.)
Burt testified that, while he, King, and Petitioner were in jail, they discussed the
fact that, on December 7, 2000, King and Petitioner had gone to Idaho Falls to pick up
some material and had purchased a gallon of iodine. (Id., p. 70.) King and Petitioner had
noticed police in the area, so they did not go back to the lab, but, instead, King rode his
bike down the road so that an outstanding warrant on him would be executed away from
the Windle property, to prevent the lab from being discovered. (Id., pp. 71-72.)
Burt further testified that Petitioner said he would transport the drug to Utah on the
airport shuttle bus so he did not have to drive it there himself. (Id., p. 73.) Burt also
testified that he, King, and Petitioner discussed how Petitioner had thought the lab had
been cleaned up, making Petitioner think it was okay to allow Officer Ganske on the
property, but, when Officer Ganske had exited his car, he had almost tripped over a
condenser sitting in the yard. Burt testified, “We thought that was pretty funny, real
humorous.” (Id., p. 74.)
MEMORANDUM DECISION AND ORDER - 9

Amy Fluckiger testified that she was the mother of a seven-year old girl. Fluckiger
said she had been involved in the drug business for some time. On direct examination, the
prosecutor asked Fluckiger why she was testifying, and she stated that she was trying to
turn her life around, because her daughter didn’t “deserve the lifestyle that doing drugs
and making drugs gives her,” and because she was offered immunity from prosecution
regarding manufacturing drugs with Petitioner, King, and Windle. (Id., p. 304-10.)
Fluckiger testified that Zazweta would do the cooking, and Petitioner would “make
sure [Zazweta] had everything he needed to do the cook and, you know, he’d keep all the
stuff there for him, sometimes clean up, just kind of like his helper.” (Id., p. 313.) She
testified that she and Petitioner bought bottles of ephedrine pills, and that Petitioner
bought iodine and anything Zazweta needed. (Id., pp. 314-321.) Fluckiger testified that
Petitioner called himself “the Prizemaster” because he would bring gifts for other people
in the group when he came back from his shopping trips.3 (Id., pp. 321-23.)
On cross-examination, Petitioner’s counsel reviewed Fluckiger’s extensive
criminal history, and the reasons she needed immunity from prosecution. (Id., 322-34.)
When asked whether she ever saw James Mitchell Burt on the Windle property, Fluckiger
said that she never saw him cooking there. (Id., p. 333.)

3

The police reports indicate that Burt said Petitioner called himself the “Pricemaster”
[sic], which tends to corroborate what Fluckiger said. (State’s Lodging F-2.) Burt did not include
this term in his trial testimony.
MEMORANDUM DECISION AND ORDER - 10

A store clerk, Pamela Esta, testified that Petitioner had come into her store and
purchased a gallon of iodine and some HooFlex4 on December 7, 2000. She had seen his
valid identification, “Timothy Hansen,” and had written his driver’s license number on
the receipt, which was introduced as an exhibit at trial. (Id., pp. 336-340.) She testified
that the store policy was to notify the manager and call the police whenever a large
quantity of iodine was sold. (Id., p. 340.)
Petitioner did not testify at trial. He called as a witness a longtime female friend
who testified about Petitioner’s trustworthiness as a friend. Petitioner also called his
mother, in an effort to show that Petitioner worked as a drywaller in Windle’s
construction business, to show that Petitioner went to Utah to remodel a friend’s
basement, and to establish that Windle had horses on his property (part of Petitioner’s
theory of defense was that Windle had asked him to purchase iodine and HooFlex for
Windle’s horses). (Id., pp. 422-23.) Both witnesses tried to establish that Petitioner had
been living in Utah in 2001. Neither witness knew anything about what was going on at
the Windle property.
After trial, Petitioner was convicted of the charged offense. At sentencing,
Petitioner told the judge:
Your Honor, Mr. Windle asked me to pick up some iodine and some
HooFlex for his horses up at his house. I stopped at the C-A-L Ranch not
thinking any big deal of it and picked it up and gave it to him. At that time I
didn’t know that iodine was even used for the making of methamphetamine.

4

“HooFlex” is a horse hoof treatment.

MEMORANDUM DECISION AND ORDER - 11

State’s Lodging A-2, p. 452.) Petitioner stated that he was not aware of any other
ingredients needed to make methamphetamine. (Id., p. 453.) Petitioner and his mother
both commented at sentencing that Petitioner would not have used his true identity to
purchase iodine and HooFlex if it was not for a legitimate purpose—to treat horses.
Petitioner also stated at sentencing: “I just want the court to know that I wasn’t up
at Jerry Windle’s house for six months to a year straight making methamphetamine,” and
“I just wanted to clarify the fact that I wasn’t there during that time that they were doing
this.” (State’s Lodging A-2, p. 461.)
The Court responded: “The state never accused you of being up there all that
time,” and: “Nor do you have to be to be guilty.” (Id.) Petitioner was sentenced to ten
years fixed with five years indeterminate. (State’s Lodging A-1, pp.65-67.)
The state court appellate and post-conviction procedural history is long and
complex. The Court will mention only those parts that are relevant to the remaining
issues.
Over a year after his conviction, Petitioner filed a (second) pro se “Motion to
Dismiss Criminal Conviction” on a new factual ground, asserting that he recently learned
that former county jail inmate James Mitchell Burt was acting as a state agent while they
were in custody together at the jail, which amounted to a Massiah violation, and that the
prosecutor knowingly presented false testimony when Burt testified at trial that he
received nothing for his testimony. (State’s Lodging E-1, pp.1-5). The trial court
construed Petitioner’s motion as a post-conviction relief application, and then denied
MEMORANDUM DECISION AND ORDER - 12

relief because the application was untimely and alleged no material facts that would
support post-conviction relief.5 (Id., pp.7-10.)
Petitioner filed an appeal, but the case was remanded by consent of the parties
because the trial court had erred in construing the motion to dismiss as a post-conviction
application instead of a motion for new trial. (State’s Lodgings F-1 to F-9.) On remand, a
different state district judge held a brief hearing, in which Petitioner testified by
telephone, and then denied Petitioner’s motion to dismiss.6 (State’s Lodging E-2, pp.128,
140; E-3.) Petitioner then filed a notice of appeal.
Petitioner next filed a post-conviction relief application, which included a direct
Massiah claim and a Strickland ineffective assistance of counsel claim based on Massiah.
The application was later dismissed. (State’s Lodging I-1, pp. 201-29.)
The appeal of the denial of the “Motion to Dismiss Conviction” and the appeal of
the denial of the post-conviction application were initially consolidated before the Idaho
Supreme Court, but Petitioner filed a motion to voluntarily dismiss the appeal from the
denial of the “Motion to Dismiss Conviction.” (State’s Lodgings F-14, F-15.) The Idaho
Supreme Court granted the motion, leaving only the appeal from the post-conviction
action. (State’s Lodging F-16).

5

This decision was authored by State District Judge William H. Woodland, who presided
over Petitioner’s criminal trial.
6

The new judge was the Honorable Ronald E. Bush, now a United States Magistrate
Judge for the District of Idaho, who has had no part in deciding the present habeas corpus case.
MEMORANDUM DECISION AND ORDER - 13

During the pendency of the appeal, Petitioner filed a successive post-conviction
application in the trial court. (State’s Lodging I-1, pp.1-21.) The parties entered into a
stipulation to complete the post-conviction cases based on briefing and documents
submitted by the parties rather than an evidentiary hearing. (Stage’s Lodging I-1,
pp.77-79.) On September 24, 2008, the trial court dismissed all of the claims in both
post-conviction applications. (Id., pp. 201-24.)
Petitioner filed a notice of appeal, and was appointed new counsel. (State’s
Lodging I-1, pp. 230-32.) Petitioner’s appellate counsel withdrew the Massiah claim at
oral argument. (State’s Lodging J-4, p.6 n.3.) The Idaho Court of Appeals resolved the
remaining issues (including the Strickland claim based on the Massiah issue), affirming
the state district court’s decisions. (State’s Lodging J-4.)
The federal Petition for Writ of Habeas Corpus was filed in the midst of
Petitioner’s state court actions on May 27, 2003. (Dkt. 3.) The Court granted a stay of the
case until the state court matters were concluded. (Dkt. 12.) After the state court actions
were completed and the stay in this action was lifted, Petitioner filed an Amended
Petition in 2011. (Dkt. 46.) Petitioner has since been released from physical custody.

MEMORANDUM DECISION AND ORDER - 14

3.

Earlier Proceedings in this Habeas Corpus Matter
The following is a brief summary of the disposition of Petitioner’s claims after the

Court decided Respondent’s summary dismissal motion.
A.

Failure to State a Claim Upon Which Relief Can be Granted

Earlier in this matter, Claim One (A), that an illegal search and seizure took place
when the Idaho State Police allegedly coerced his consent to search the property where
the evidence was found, in violation of the Fourth Amendment (Dkt. 46, p. 9), was
dismissed for failure to state a federal habeas corpus claim upon which relief can be
granted.
B.

Procedurally Defaulted Claims Subject to Dismissal

The following claims were determined to be procedurally defaulted:
Claim One (B)

Violation of the Fifth Amendment “when he was illegally
interrogated on the side of the road after being arrested and
the State Police failed to advise him of his Miranda Rights.”
(Dkt. 46, p. 9.)

Claim One (C)

Violation of the Fourteenth Amendment “when the statements
from the illegal interrogation as well as the evidence found on
the Windell property was used against him at his trial.” (Dkt.
46, p .9.)

Claim Two (A)

“[T]he State deliberately tried to suppress the videotape of
Hansen’s June 7, 2001 stop and arrest” violating the
Fourteenth Amendment and Brady.” (Dkt. 46, pp.16-22);

Claim Two (B)

The prosecutor suborned perjury when he allegedly presented
false testimony regarding the existence of the videotape
violating Napue. (Dkt. 46, pp.16-22.)

MEMORANDUM DECISION AND ORDER - 15

Claim Three (B)

Informant Burt receiving favorable treatment after he testified
in violation of Brady. (Dkt. 46, p. 25.)

Claim Five

Suppression by the State of the videotape. (Dkt. 46, pp.
42-51.)

The Court determined that Petitioner failed to show cause and prejudice or actual
innocence to excuse the default of these claims. Because the new exception set forth in
Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), applies only to procedurally defaulted
ineffective assistance of trial or direct appeal counsel claims, and Petitioner’s
procedurally defaulted claims do not fit within those categories, the Martinez exception
has no applicability to the cause and prejudice issue before the Court.
C.

Revisiting Procedurally Defaulted Claim Three (A)

Claim Three (A) is that the State’s use of James Burt as a jailhouse informant to
solicit incriminating statements from Petitioner violated his Sixth Amendment right to be
represented by counsel, as defined by Massiah v. United States, 377 U.S. 201, 206
(1964).
The Court earlier determined that Claim Three (A) was procedurally defaulted, but
because cause existed under Edwards v. Carpenter, 529 U.S. 446, 454 (2000)—that
Petitioner had fully exhausted his ineffective assistance of counsel claim asserting that
trial counsel should have brought the Massiah claim in a motion to suppress prior to
trial—Petitioner would be permitted to proceed on that claim if he could also show
prejudice at the time the Court decided the merits of his claims.

MEMORANDUM DECISION AND ORDER - 16

Upon analysis of the merits of the Massiah claim, the Court concludes that the
basis upon which it relied earlier to find “cause” for this claim under Edwards v.
Carpenter—ineffective assistance of trial counsel for failing to file a motion to
suppress—has no causal connection to the default of this claim, because the State did not
disclose to trial counsel that Burt was a State informant, and, thus, trial counsel would
have had no reason to assert a Massiah claim at that time. Neither was the claim known at
the time of the direct appeal, which concluded May 1, 2003 (the Motion to Dismiss
asserting that Burt’s informant status was newly discovered was filed on June 11, 2003).
As for other means of establishing “cause,” the Court concludes that Martinez v.
Ryan does not extend to Massiah claims, and, therefore, Petitioner cannot rely on that
exception as “cause.” Accordingly, the Court reconsiders its earlier decision and
concludes that there is no “cause” for the procedural default of the Massiah claim, and it
is subject to dismissal with prejudice.
However, because Petitioner’s Massiah issue was the basis for a Strickland
ineffective assistance of trial counsel claim that was properly exhausted, the Court will
address it on the merits in that context.
STANDARD OF LAW FOR CLAIMS PROCEEDING
TO A MERITS DETERMINATION
Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment when the federal court determines that the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

MEMORANDUM DECISION AND ORDER - 17

§ 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances where
the state court adjudication of the merits:
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.7

When a party 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, for a decision to be “contrary to” clearly established
federal law, the petitioner must show that the state court applied a rule of law
different from the governing law set forth in United States Supreme Court
precedent, or that the state court confronted a set of facts that were materially
indistinguishable from a decision of the Supreme Court and nevertheless arrived at
a result different from the Supreme Court’s precedent. Williams v. Taylor, 529
U.S. 362, 404-06 (2000).

7

A state court need not “give reasons before its decision can be deemed to have been
‘adjudicated on the merits.’” Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
MEMORANDUM DECISION AND ORDER - 18

Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court was “unreasonable in
applying the governing legal principle to the facts of the case.” Id. at 413. The
United States Supreme Court has explained: “Section 2254(d)(1) provides a
remedy for instances in which a state court unreasonably applies this Court’s
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 relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; 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 v. Cone, 535 U.S. 685, 694
(2002). To warrant habeas corpus relief, a petitioner must show that the challenged
state-court ruling “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).
In Richter, the United States Supreme Court explained that, under §
2254(d), a habeas court (1) “must determine what arguments or theories supported
or . . . could have supported, the state court’s decision;” and (2) “then it must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of this Court.” Id. at
MEMORANDUM DECISION AND ORDER - 19

786. If fairminded jurists could disagree on the correctness of the state court’s
decision, then a federal court cannot grant relief under § 2254(d)(1). Id. The
Supreme Court emphasized: “It bears repeating that even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id.
As to the facts, the United States Supreme Court has recently clarified “that
review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388,
1398 (2011). This means that evidence not presented to the state court may not be
introduced on federal habeas review if a claim was adjudicated on the merits in
state court and if the underlying factual determination of the state court was not
unreasonable. See Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014).
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
MEMORANDUM DECISION AND ORDER - 20

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 include consideration of evidence outside the state court record,
subject to the limitations of § 2254(e)(2). Murray v. Schriro, 745 F.3d at 1000.
REVIEW OF MERITS OF INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS
1.

Standard of Law
A criminal defendant has a constitutional right to the assistance of counsel

under the Sixth Amendment, made applicable to the states through the Fourteenth
Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). In Strickland v.
Washington, 466 U.S. 668 (1984), the United States Supreme Court established the
proper test to be applied to claims alleging constitutionally inadequate
representation. To succeed on such a claim, a petitioner must show that (1)
counsel’s performance was deficient in that it fell below an objective standard of

MEMORANDUM DECISION AND ORDER - 21

reasonableness and that (2) the petitioner was prejudiced thereby. Id. at 684.
Prejudice under these circumstances means that there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been
different. Id. at 684, 694. A reasonable probability is one sufficient to undermine
confidence in the outcome. Id. at 694.
In assessing whether trial counsel’s representation fell below an objective
standard of competence under Strickland’s first prong, a reviewing court must
view counsel’s conduct at the time that the challenged act or omission occurred,
making an effort to eliminate the distorting lens of hindsight. Id. at 689. The court
must indulge in the strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance. Id. The pertinent inquiry “is not what
defense counsel could have pursued, but rather whether the choices made by
defense counsel were reasonable.” Siripongs v. Calderon, 133 F.3d 732, 736 (9th
Cir. 1998).
A petitioner must establish both incompetence and prejudice to prove an
ineffective assistance of counsel claim. 466 U.S. at 697. On habeas review, the
court may consider either prong of the Strickland test first, or it may address both
prongs, even if one is deficient and will compel denial. Id.
2.

Claim Three (A) as a Strickland Claim re: Massiah Issue
Claim Three (A) is that the State’s use of James Mitchell Burt as a jailhouse

informant to solicit incriminating statements from Petitioner violated his Sixth
MEMORANDUM DECISION AND ORDER - 22

Amendment right to be represented by counsel, as defined by Massiah v. United
States, 377 U.S. 201, 206 (1964).
A.

Counsel Could Not Have Pursued a Motion to Suppress

The ineffective assistance of counsel claim based on Massiah fails to state a
federal habeas corpus claim upon which relief can be granted because neither trial
counsel nor direct appeal counsel knew that Burt was an informant prior to or
during trial or during direct appeal, due to the prosecution’s failure to disclose that
information. Without that information, there would have been no reason to assert a
Massiah claim during either counsel’s representation of Petitioner. Because
Petitioner has not asserted facts that would support a Strickland claim, and
amendment would not cure the deficiency, the claim is subject to dismissal with
prejudice.
B.

Merits of Strickland/Massiah Claim Adjudicated by State Court

Notwithstanding the fact that trial counsel could not have known of the
facts supporting a Massiah claim during counsel’s representation of Petitioner, the
Idaho Court of Appeals nevertheless adjudicated the merits of a Strickland claim,
and, in the course of doing so, determined that the underlying Massiah issue was
without merit. (State’s Lodging J-4, pp. 13-14.) Therefore, alternatively, the Court
reviews the underlying merits of the Strickland/Massiah claim without regard to
whether counsel could have known that the Massiah claim existed at the time of
representation.
MEMORANDUM DECISION AND ORDER - 23

(1)

Massiah Standard of Law

Plaintiff alleges that Burt’s testimony violated Massiah v. United States,
which provides that, under the Sixth Amendment, a government agent cannot
“deliberately elicit” incriminating statements from a charged defendant without the
presence of counsel. 377 U.S. at 206. In Massiah, the government recruited a codefendant and installed a listening device in his car, and then the co-defendant had
conversations in the car with the defendant, which resulted in the defendant
making several incriminating statements that were used against him at
trial—notwithstanding the fact that the statements were collected post-indictment
and without the defendant’s counsel present. 377 U.S. at 202-03. The United States
Supreme Court held that this government action violated Massiah’s Sixth
Amendment right to counsel.
Massiah applies in the context of jailhouse informants. In United States v.
Henry, 447 U.S. 264 (1980), a government agent working on a robbery case
contacted an inmate named Nichols, who was housed in the same cellblock as
Henry, a defendant in the robbery case. Nichols was instructed to “be alert to any
statements made by the federal prisoners, but not to initiate any conversation with
or question Henry regarding the bank robbery.” 447 U.S. at 266. According to
Nichols’ statements, “Nichols was not a passive listener; rather, he had ‘some
conversations with Mr. Henry’ while he was in jail and Henry’s incriminatory
statements were ‘the product of this conversation.’” Id. at 271.
MEMORANDUM DECISION AND ORDER - 24

Nichols informed the agent that Henry had told him about the robbery of
the bank, and Nichols was paid for furnishing the information. Id. This
government action violated Henry’s Sixth Amendment rights. In Henry, the
Supreme Court clarified: “In Massiah, no inquiry was made as to whether Massiah
or his codefendant first raised the subject of the crime under investigation,” id. at
271-72; and “[w]hether Massiah’s codefendant questioned Massiah about the
crime or merely engaged in general conversation about it was a matter of no
concern to the Massiah Court.” 447 U.S. at 272 n.10. Rather, application of the
Massiah rule turned on whether the state had “intentionally creat[ed] a situation
likely to induce Henry to make incriminating statements without the assistance of
counsel.”
Id. at 274.
In 1985, the Supreme Court further explained that the Massiah rule applies
even when the defendant initiates the contact with the informant, if the state
“knowingly circumvent[s] the accused’s right to have counsel present.” Maine v.
Moulton, 474 U.S. 159, 176 (1985). It is only when, “by luck or happenstance”
that “the State obtains incriminating statements from the accused after the right to
counsel has attached,” that the Sixth Amendment is not violated. Id. at 176.
In Henry, the Court acknowledged that it had not been “called upon to pass
on the situation where an informant is placed in close proximity but makes no
effort to stimulate conversations about the crime charged.” 447 U.S. at 272 n.9. In
MEMORANDUM DECISION AND ORDER - 25

1986, the United States Supreme Court filled in some of the holes left by its earlier
cases following Massiah, holding that the defendant must demonstrate not only
that “the informant, either through prior arrangement or voluntarily, reported his
incriminating statements to the police,” but that “the police and their informant
took some action, beyond merely listening, that was designed deliberately to elicit
incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986).
In Kuhlmann, the Court explained:
The state court found that Officer Cullen had instructed Lee
only to listen to respondent for the purpose of determining the
identities of the other participants in the robbery and murder. The
police already had solid evidence of respondent’s participation. The
court further found that Lee followed those instructions, that he “at
no time asked any questions” of respondent concerning the pending
charges, and that he “only listened” to respondent’s “spontaneous”
and “unsolicited” statements. The only remark made by Lee that has
any support in this record was his comment that respondent’s initial
version of his participation in the crimes “didn’t sound too good.”
477 U.S. at 460 (emphasis added).
The United States Supreme Court held that the court of appeals wrongly
decided that the police “deliberately elicited” the defendant’s incriminating
statements under these circumstances. To “deliberately elicit” incriminating
information, the defendant must show more than the mere fact that an informant
reported the information to police officers. Id. at 459. No violation is shown
“where an informant is placed in close proximity but makes no effort to stimulate
conversations about the crime charged.” See Henry, 447 U.S. at 271 n. 9. In

MEMORANDUM DECISION AND ORDER - 26

Kuhlmann, the informant did not know the defendant prior to being placed in the
same cell, did not hold a conversation with him, but made only one remark in
response to the defendant’s outpouring.
In Fellers v. United States, 540 U.S. 519 (2004), in a slightly different
context, the Court again explained that Massiah covers not only questions, but a
discussion about the crime:
The Court of Appeals erred in holding that the absence of an
“interrogation” foreclosed petitioner’s claim that the jailhouse
statements should have been suppressed as fruits of the statements
taken from petitioner at his home. First, there is no question that the
officers in this case “deliberately elicited” information from
petitioner. Indeed, the officers, upon arriving at petitioner’s house,
informed him that their purpose in coming was to discuss his
involvement in the distribution of methamphetamine and his
association with certain charged co-conspirators. 285 F.3d at 723.
Because the ensuing discussion took place after petitioner had been
indicted, outside the presence of counsel, and in the absence of any
waiver of petitioner’s Sixth Amendment rights, the Court of Appeals
erred in holding that the officers’ actions did not violate the Sixth
Amendment standards established in Massiah, supra, and its
progeny.
Id. at 524-25.
(2)

Evidence Presented to State Court

James Mitchell Burt testified that Petitioner made several incriminating
statements to Burt when Petitioner, Burt, and Steven King were incarcerated in the
Bannock County Jail together. Petitioner alleges that Burt was placed in a cell with
Petitioner by State investigators to elicit incriminating statements from Petitioner,

MEMORANDUM DECISION AND ORDER - 27

and, therefore, Burt was a State agent whose actions violated the Sixth
Amendment.
The Affidavit of Detective Gary Brush outlines the extent of police
involvement with James Burt. Detective Brush states: “On November 1, 2001, I
interviewed James Burt at the Bannock County Jail in Pocatello, Idaho. Mr. Burt
informed myself and Detective Kyle Fulmer that he had information regarding the
investigation of Timothy Hansen and wanted to cooperate with law enforcement in
order to clean up his life and help get his wife off methamphetamine.” (State’s
Lodging I-1, pp.198-99.)
During the interview on November 1, 2001, Mr. Burt reported: (1) he knew
King and Petitioner prior to their incarceration; (2) King called himself “the
master” and “the chef” because of his methamphetamine manufacturing skills; (3)
King said he was always one step ahead of the police and would stay that way; (4)
Petitioner called himself “the Pricemaster” because of his burglary skills, and
Petitioner revealed how he stole small, expensive items by putting them in boxes
of less expensive items; (5) the lab equipment on Windle’s property belonged to
Windle; (6) King had items in his truck at the time of his arrest that would have
put him in prison for a long period of time, had the items been found; (7) the
condenser Officer Ganske tripped over during the consent search of the bus
belonged to Petitioner, but King and Petitioner was going to say that it belonged to
Windle; (8) after looking over the police reports, King said one stated he
MEMORANDUM DECISION AND ORDER - 28

manufactured methamphetamine16 times a week, but it was only about twice a
week on the Windle property; (9) Petitioner was going to testify in court that the
gallon of iodine he purchased was ordered by Windle for the care of Windle’s
brother’s horses; (10) Windle was King’s helper, but King and Petitioner were
going to testify that Windle was the mastermind of the methamphetamine
production operation; and (11) Petitioner’s job when he was released from jail was
to keep Windle from testifying. (State’s Lodging F-2.) The interview lasted about
25 minutes. (State’s Lodging I-1, p. )
Detective Brush states that he provided warnings to Burt about the extent to
which he could discuss the criminal case with Petitioner in future encounters: “We
informed him that he was forbidden from attempting to elicit any information from
Mr. Hansen while incarcerated. We stressed continually through our interview that
he could not ask Hansen any questions regarding any crime or our investigation.”
Brush states: “Mr. Burt acknowledged that he would not do this.” (State’s Lodging
I-1, pp.198-99.)
Later in the day on November 1, 2001, and on November 2, 2001, Burt
called Detective Fullmer to inform him that King told him King injured his hand
on November 1 with a glass tube that had exploded during the methamphetamine
manufacturing process.
On November 13, 2001, Burt had a second interview with Detective Brush,
Detective Russell Wheatley, and with Prosecutor Dennis Wilkinson. Detective
MEMORANDUM DECISION AND ORDER - 29

Brush declares by affidavit: “I verified with Mr. Burt that the information that he
had was completely voluntary and that he did not elicit any statements from Mr.
Hansen.” (State’s Lodging I-1, p. 199.)
On November 13, 2001, Burt provided the following information: (1)
Petitioner used a fictitious ID to purchase the iodine; (2) officers did not find glass
tubes in their search that were hidden in the bus that were of the same type that
injured King’s hand; (3) King had asked Burt to ask Petitioner why he didn’t do
something to keep Windle from testifying against them when Petitioner was out of
jail; when Burt asked him, Petitioner replied that it would be harassing a witness;
but Petitioner then asked another inmate, Ernesto Morna to stop Windle from
testifying, and the “price master” would give him a prize; (4) Burt had observed
Salazar, Zazweta, Petitioner, and Karen Honas manufacturing methamphetamine
in the bus; (5) Burt had observed Zazweta and Petitioner manufacturing
methamphetamine in the bus; (6) Petitioner said the police made a mess of their
operation, and, before then, they “really had it going” for over a year before the
police caught them; (7) Burt overhead Petitioner say to someone else that he
transported a lot of methamphetamine from Pocatello to Salt Lake City on the
airport shuttle bus; (8) on November 11, 2001, Petitioner threatened Burt by telling
him he didn’t want to have the same thing happen to him as was going to happen
to Windle, and so Burt should not talk to the police, and should tell them only that
“he has never been on the bus”’ (9) Petitioner gave Brian Hicks four ounces of
MEMORANDUM DECISION AND ORDER - 30

methamphetamine the day he was released from jail; (10) King said he was with
Petitioner when Petitioner bought the iodine; (11) King said he left the Windle
property on his bike on December 7, 2000, the day of the arrest, because he was
willing to sacrifice himself to keep officers from discovering the
methamphetamine lab on the property; (12) Petitioner said it was a good trick for
King to ride off on his bike to throw off officers; (13) Petitioner believed Windle’s
daughter might testify, and he said he would rape her when he was released if she
testified; (14) Petitioner said if Windle testified against him, he would hunt Windle
down and get even, and that he would try not to kill him, but he probably would;
(15) Petitioner used to have a direct wire phone to the bus; (16) King said it was
his job to turn the iodine into iodine crystals. (State’s Lodging F-2.)
At the end of the interview, “Mr. Burt was again told that he was not to
elicit any information from Mr. Hansen.” (State’s Lodging I-1, p. 199.) Detective
Brush reported that Burt “acknowledged that he had not and would not elicit any
information from Mr. Hansen.” (Id.)
At the hearing on the motion to dismiss conviction (motion for a new trial),
Petitioner testified as follows:
Q.

You have a complaint about a fellow that was in jail
with you that turned State’s evidence, is that correct?

A.

Yes, that’s James Burke [sic].

Q.

And do you feel that he was an agent for the State to
illicit incriminating evidence from you?

MEMORANDUM DECISION AND ORDER - 31

A.

He’s taken certain questions that I was asked of Stevie
King and he was involving himself in these
conversations and then he is taking these statements
and construing them around to get himself immunity.
Then he comes in and testifies at Court that he hasn’t
been given any immunity. Well, Mr. Burke is a felon
that is parole [sic]. He has violated his parole and he’s
in jail waiting to go back to prison.

Q.

Did you make the statements that . . . .?

A.

They took Mr. Burke [sic] and then on November 1st
they moved him down in the trustee pod in a bed right
next to mine, and Mr. Burke [sic] is down there
following me around asking me questions.

Q.

The statements that Mr. Burke [sic] made in Court, did
you in fact make those statements to him?

A.

No I — some of the statements we talked about some
things but lots of the stuff Mr. Burke testified to in
Court he takes and construes around and . . . said I
made these statements I never made to him.

Q.

There was a witness or two at the trial that indicated
that they saw you cooking. Do you recall that
testimony?

A.

Yes, I remember that testimony.

Q.

And by cooking that was cooking methamphetamine,
correct?

A.

Yes.

Q.

Were you cooking on the dates that they told you—that
they testified you were cooking?

A.

I have never cooked methamphetamine in my life.

(State’s Lodging E-3, pp. 10-11.)
MEMORANDUM DECISION AND ORDER - 32

Although Petitioner and his counsel were given the police reports of the
interviews with Burt (State’s Lodging F-2) prior to trial, the State did not reveal to
Petitioner and his counsel the information that Burt was an informant. (State’s
Lodging E-1, p. 4.) That fact was apparent at the hearing on the “Motion to
Dismiss Conviction,” when the prosecutor argued:
[W]ith regard to the newly discovered evidence, the defendant
knew when he was in jail. That is not newly discovered evidence.
His attorney had an opportunity to question James Burke whether or
not he was a government informant. That was clearly questions at
trial [sic].”
(State’s Lodging E-3, p. 17.)
In support of Petitioner’s “Motion to Dismiss Conviction,” Petitioner filed
the affidavits of three inmates to support his claim that he did not know Burt was a
state informant: (1) David Hill declared that Burt told him on several occasions
that he was going to meet with detectives because they wanted him to try to get
Steven King and Timothy Hansen to make incriminating statements about the
methamphetamine manufacturing charges, and that Burt told Hill that he never saw
anything going on at the bus and didn’t tell the detectives anything; (2) Bryan Ellis
said that he saw Burt talking with narcotics detectives, but Burt said he had
nothing to tell them, and that Ellis never heard Petitioner discussing his case with
Burt or anyone else; and (3) Adrian Flores declared that “[o]n a daily basis from
the end of October 2001 to mid-November 2001, I observed James Burt frequently
coming and going from the Detective Division located in Administration,” that
MEMORANDUM DECISION AND ORDER - 33

Burt said detectives wanted him to talk about King and Petitioner, but Burt would
not talk about them, and that it was common knowledge that Burt was working as
an agent for the detectives. (State’s Lodging F-2.)
At Petitioner’s trial, Burt testified that Petitioner told Burt, “we had it going
on up there,” meaning that Petitioner was involved in manufacturing
methamphetamine. Burt also testified that Petitioner said that one way of
transporting the drugs to Utah was via an airport shuttle bus because it was better
than driving it himself, and that the methamphetamine they produced was for sale.
(State’s Lodging A-2, pp. 64-73.)
Burt also testified that he had a three-way conversation among himself,
King, and Petitioner, while they were reviewing discovery papers on one of their
cases, and Burt learned that King and Petitioner thought the police were watching
them, and that Petitioner stopped at the store to buy a gallon of iodine. Also during
the three-way conversation, they discussed how Officer Ganske tripped over the
homemade condenser when he went to search the property around the bus. Burt
testified that Petitioner did not say the condenser was his, but that he just “took it
that it was his [Petitioner’s].” (Id., pp. 70-74.)
(3)

State Court Decisions

In the context of determining the “Motion to Dismiss Conviction,”
construed as a motion for a new trial in the criminal case, the state district court
found that the evidence “when taken as a whole, does appear to show that Burt was
MEMORANDUM DECISION AND ORDER - 34

working on behalf of the state to obtain incriminating statements.” (State’s
Lodging E-2, p. 142.) The state district court then determined that Petitioner had
produced insufficient evidence to support his Massiah claim, and that the court
could not “determine whether Burt in fact took affirmative action to elicit
incriminating statements from Petitioner or whether any such action was fruitful,
i.e., whether Hansen answered Burt’s questions with incriminating statements.”
(Id.) The state district court also found “a credibility issue with Hansen’s
testimony: While Hansen may have been the only person to testify as to Burt’s
efforts to elicit incriminating statements, the Court is not required to believe
Hansen’s testimony, especially in light of the fact that Hansen is currently in
prison, he seeks to be granted a new trial, his testimony is self-serving and there is
no corroboration.” (Id.)
The state district court again denied the claim in the context of the postconviction matter, reasoning, in part:
The record . . . indicates, and Hansen himself relies upon the
fact, that Steven King requested Burt to contact Hansen in the jail to
ask the allegedly incriminating questions. King is not a State actor
and there is no evidence that King was seeking to incriminate
Hansen in his request to Burt. Significantly, the only allegations
Hansen makes regarding Burt’s actions in eliciting statements is
Burt’s alleged participation in this three-way conversation with
Steven King. Hansen does not contest the veracity of the information
summarized in the statements from Burt’s “Report of Investigation”
regarding (1) the fact that the methamphetamine lab had been in
production for over a year, (2) that Hansen had transported
methamphetamine from Pocatello to Salt Lake City, (3) that Hansen
had given Brian Hicks four ounces of methamphetamine, (4) that
MEMORANDUM DECISION AND ORDER - 35

King and Hansen were cooking methamphetamine on December 7,
2000, (5) that Hansen had purchased a quantity of iodine on
December 7, 2001 [sic], or (6) that it was Hansen’s job to turn iodine
into iodine crystals for the manufacturing process.”[8] Hansen does
not present any evidence that Burt sought to elicit the remainder of
this information while acting as a State agent.
(State’s Lodging I-1, pp. 222-23.)
The Idaho Court of Appeals recognized that Plaintiff had withdrawn the
Massiah claim from the post-conviction action, and that Plaintiff had not presented
any argument to support his claim that his counsel was ineffective for failing to file
a motion to suppress the Burt testimony. The Idaho Court of Appeals nevertheless
addressed the merits of the claim as an ineffective assistance of counsel claim, and
rejected it, concluding that Petitioner “failed to demonstrate deficient performance
or prejudice,” because “a motion to suppress would not have been successful.”
(State’s Lodging J-4, p. 13.) That court reasoned:
With regard to the element that the informant must take some
action, beyond merely listening, in order to deliberately elicit
incriminating statements, Hansen points to his testimony at the
hearing on his second motion for new trial where he stated: “They
took Mr. Burke (sic) and then on November 1st they moved him
down in the trustee pod in a bed right next to mine, and Mr. Burke
[sic] is down there following me around asking me questions.”
Hansen contends that this demonstrates that Burt was not merely a
passive listener and that he deliberately elicited incriminating
statements.

8

The police report simply says: “King informed him it was his job to turn the iodine to
iodine crystals.” (State’s Lodging F-2, emphasis added.) Amy Fluckiger testified that Steven
King’s primary role was “to get the iodine crystals from the iodine.” (State’s Lodging A-2, p.
313.) It appears that the state district court mistakenly attributed this job to Hansen, not King.
MEMORANDUM DECISION AND ORDER - 36

When placed in context of Hansen’s entire testimony at the
hearing, it becomes apparent that Hansen did not testify that Burt
elicited incriminating statements. Rather, Hansen denied having
made any incriminating statements to Burt at all. In denying
Hansen’s motion for a new trial, the district court, reviewing the
evidence presented by Hansen, stated: “Additionally, Hansen’s own
testimony at the hearing does not show that Burt asked him any
incriminating questions or otherwise took affirmative action to elicit
any incriminating statements from Hansen.” Hansen presented no
evidence in his post-conviction proceedings as to what specific
questions were asked, what specific answers were given, and
whether any of the questions or answers were incriminating in
nature. Therefore, Hansen has failed to demonstrate deficient
performance or prejudice as a motion to suppress would not have
been successful.
(State’s Lodging J-4, p. 14.)
(4)

Analysis

There is no question that the state court record established that law
enforcement officers recruited Burt to obtain information from Petitioner and
placed Burt in Petitioner’s cell, which is one element of a Massiah claim. The
more pointed question is when Burt was recruited, because only the information
obtained after recruitment is subject to Massiah. The record reflects that the first
interview between Burt and the detectives took place on November 1, 2001, at
9:55 a.m. Nothing in the record suggests that detectives moved Burt to Petitioner’s
cell before Burt approached detectives to tell them information and to volunteer to
be an informant. Neither does anything suggest that Burt had not obtained the
information from Petitioner that he disclosed on November 1 during the pre-

MEMORANDUM DECISION AND ORDER - 37

informant time that they were incarcerated together at the jail between September
20, 2001 and November 1, 2001.9
Rather, the record reflects that Burt obtained information from Petitioner on
his own, volunteered to be an informant, told detectives what he knew, and then
after the detectives were aware that Burt wanted to be an informant and had
relevant information to offer, they accepted his offer and moved him into the bed
next to Petitioner later in the day on November 1, 2001. Therefore, anything
Petitioner said to Burt before November 1, 2001, is outside the scope of Massiah,
because Burt was not then a government agent. See U.S. v. Stevens, 83 F.3d 60, 64
(2d Cir. 1996).
Before detectives accepted the offer to use Burt as an informant, they told
him not to elicit statements from Petitioner. The focus of this claim is whether
Burt’s actions constitute “deliberately eliciting” statements from Petitioner
between November 1, 2001, and November 13, 2001, the next time he reported to
detectives.
A preliminary task is determining which trial testimony of Burt corresponds
to information in the second police report that Burt learned from Petitioner after he
became a government informant. Those items in common are that Petitioner told

9

The police report states that King, Burt, and Petitioner spent a lot of time together while
being incarcerated at the Bannock County Jail, and Burt was incarcerated on September 1, 2001,
while King was incarcerated on September 20, 2001. (State’s Lodging F-2.) Inmate Adrian
Flores’s Affidavit shows that the relevant time period when Burt and Petitioner were in jail was
between September or October and November 2001. (Id.)
MEMORANDUM DECISION AND ORDER - 38

Burt, “we had it going on up there,” and that Petitioner said that the
methamphetamine they produced was for sale.10 (State’s Lodging A-2, pp. 64-73.)
Burt testified, and Petitioner seems to agree, that this information was
produced during a three-way conversation between Burt, King, and Petitioner.11
Burt’s testimony at trial established that Petitioner, King, and Burt were good
friends, and they engaged in friendly conversation in the jail, sitting together trying
to determine the dates of events that were relevant to their criminal charges, and
laughing about how Petitioner thought they had cleaned up the drug manufacturing
equipment and supplies from the bus, but the officer who was there to search the
premises almost tripped over a homemade condenser outside the bus.
The state district court also had before it the transcript of King’s trial, where
Burt testified that his conversations with Petitioner were mainly about the
incidents relevant to the pending criminal charges:
Q.

Was Tim Hansen also in jail with you?

A.

Yes, he was.

10

The following items that are common to the November 13, 2001 police report and
Burt’s trial testimony are not subject to Massiah, because they were the product of Burt’s own
observations outside of the jail, not the product of a conversation between Petitioner and Burt
during Burt’s agency relationship with the State: (1) Burt had observed Salazar, Zazaweta,
Petitioner, and Karen Honas manufacturing methamphetamine in the bus, and (2) Burt had
observed Zazweta and Petitioner manufacturing methamphetamine in the bus.
11

In addition, Burt stated to the detectives that he overhead Petitioner say to someone
else that he transported a lot of methamphetamine from Pocatello to Salt Lake City on the shuttle
bus. This is even beyond the “passive listener” test, because Petitioner was not talking to Burt
when he allegedly said this. Massiah does not apply to this statement.
MEMORANDUM DECISION AND ORDER - 39

Q.

And what was your relationship like with Mr. Hansen?

A.

My relationship with Mr. Hansen was just more or less of a social
thing. He was — I knew Timmy from a couple of years ago, and we
talked more about things that have happened, why we were in jail,
than we did during the two years that I’ve known him.

(State’s Lodging I-1, p. 122.)
The Idaho courts that addressed Petitioner’s Massiah claim do not
acknowledge that information obtained in a conversation that is derived from a
situation set up by the State to obtain information from a defendant without the
presence of his attorney—even though there is no active questioning—still can be
a Massiah violation. The facts of Massiah, outlined above, are much like
Petitioner’s facts. Despite the fact that the testimony of Burt at trial established that
the information was obtained during a conversation with Petitioner and King, and
that the information was incriminating, the Idaho Court of Appeals rejected the
claim, stating: “Hansen presented no admissible evidence in his post-conviction
proceedings as to what specific questions were asked, what specific answers were
given, and whether any of the questions or answers were incriminating in nature.”
(State’s Lodging J-4, p. 14.) Contrary to the basis on which the Idaho Court of
Appeals rejected Petitioner’s Massiah claim, in Henry the Court explained that
“[w]hether Massiah’s codefendant questioned Massiah about the crime or merely
engaged in general conversation about it was a matter of no concern to the
Massiah Court.” 447 U.S. at 272 n.10. Rather, application of the Massiah rule

MEMORANDUM DECISION AND ORDER - 40

turned on whether the state had “intentionally creat[ed] a situation likely to induce
Henry to make incriminating statements without the assistance of counsel.”
Id. at 274.
Petitioner’s testimony at the Motion to Dismiss hearing that Burt followed
him around asking questions established that Burt actively participated in the
conversation. Petitioner’s testimony was nonspecific, but it was similar to that
given in Henry, where the only evidence cited by the United States Supreme Court
was that, “according to his own testimony, Nichols [the informant] was not a
passive listener; rather, he had “some conversations with Mr. Henry” while he was
in jail and Henry’s incriminatory statements were “the product of this
conversation” (emphasis added). It is difficult to see why the Idaho Court of
Appeals required Petitioner to state “what specific questions were asked, what
specific answers were given, and whether any of the questions or answers were
incriminating in nature,” when Mr. Henry won his case on equally vague
descriptions. Petitioner’s and Nichols’s statements are almost equally vague,
except Petitioner states that Burt actually asked him questions, while Nichols’
testimony was centered only on “conversation.”
While the state district court used a negative credibility determination of
Petitioner to reject the testimony that Burt followed him around and asked him
questions, Petitioner’s credibility has no bearing on (1) the fact that the trial
testimony of Burt at Petitioner’s trial and King’s trial established that the
MEMORANDUM DECISION AND ORDER - 41

information was gained in conversations with Petitioner, and (2) the fact that the
Burt testimony was incriminating, based on a review of the content of the
testimony.
The state district court placed much emphasis on the fact that Steven King
requested Burt to contact Hansen in the jail to ask him questions, and Steven King
was not a state actor. However, the only topic in the record that King asked Burt to
ask Petitioner was why he did not do something more to ensure that Windle would
not testify against them. There is nothing in the record establishing that either
detectives or King asked Petitioner to find out any other information from
Petitioner. Burt did not testify about Windle at trial. Therefore, the Massiah issue
cannot be disposed of on the basis that this was either a three-way conversation, or
that King asked Burt to find out the answer to a very specific question, the answer
to which was not relevant to Burt’s actual trial testimony.
The state district court also used as the basis for denying the Massiah claim
the fact that “Hansen does not contest the veracity of the information obtained in
the three-way conversation and summarized in the statements in the police report.
The court of appeals, relying on a similar conclusion of the state district court
notes: “Hansen did not testify that Burt elicited incriminating statements. Rather,
Hansen denied having made any incriminating statements to Burt at all.” This
Court finds that these conclusions are not reflective of the evidence in the state
court record. Petitioner testified at the hearing that they did speak of some things
MEMORANDUM DECISION AND ORDER - 42

related to the charges but Burt then “construed the statements around” in his trial
testimony. In addition, the trial transcript of Burt’s testimony, together with the
police report, show exactly which incriminating statements Burt testified that
Petitioner made.
The point of Massiah is that Burt should have been prevented from
testifying at all about the statements Petitioner made that could have been
construed by Burt to be incriminating statements. In addition, whether or not
Petitioner contests the veracity of the statements—in other words, whether the
statements Burt made were true—is not a reason to deny a Massiah claim, because
the Massiah rule exists to keep out the truth or what a witness propounds as truth,
allegedly spoken without the presence or advice of counsel.
In reviewing the factual findings of the state court, the Court concludes that
the state courts made unreasonable findings of fact under Taylor v. Maddox,
because the courts “plainly misapprehend[ed] the record in making their findings,
and the misapprehension goes to a material factual issue that is central to
petitioner’s claim,” or, because the state court “ha[d] before it, yet apparently
ignore[d], evidence that supports petitioner’s claim.” 366 F.3d. at 1000-01.
In addition, though Petitioner was afforded something of an evidentiary
hearing in state court on his Massiah claim, the brief telephonic evidentiary
hearing in this circumstance amounted to a “defective fact-finding process” under
Taylor v. Maddox, because of its cursory nature and because Petitioner was present
MEMORANDUM DECISION AND ORDER - 43

only by telephone, obscuring the important element of observation of a witness’s
demeanor.
Because the factual findings were unreasonable, this Court can review the
claim de novo. To show entitlement to habeas corpus relief on de novo review,
Petitioner must not only show a Massiah violation based on the facts in the record
or any new facts in a federal evidentiary hearing, he must also show that he
suffered prejudice at trial as a result of the Massiah violation. See U.S. v. Bagley,
641 F.2d 1235, 1239 (9th Cir. 1981) (Massiah requires a showing of prejudice, and
that showing was not disturbed by later case law, including Henry). Assuming that
there is enough evidence in the record that Petitioner has shown a Massiah
violation, and that an evidentiary hearing is not needed to make that point, the
Court turns to whether Petitioner has shown that he suffered prejudice.
In assessing the impact of a Massiah error, the court must determine how
the jury would reasonably perceive the case without the error. As set forth above,
Burt’s testimony that was derived from overhearing others or from speaking to
Petitioner prior to the government engaging him as an agent was admissible. The
only portions of Burt’s testimony that were derived from a conversation with
Petitioner are that Petitioner told Burt he was involved in manufacturing
methamphetamine when they had a discussion in jail about “we had it going on up
there,” and that Petitioner said that the methamphetamine they produced was for
sale. (State’s Lodging A-2, pp. 64-73.)
MEMORANDUM DECISION AND ORDER - 44

In assessing the impact of the inadmissible testimony from Burt, the Court
must also review the elements of the crime charged. Petitioner was charged with
conspiracy to traffic in methamphetamine by manufacturing, between the dates of
August 12, 2000, and August 1, 2001, pursuant to Idaho Code § 37-2732B(a)(3)
and 37-2732(f). (State’s Lodging A-1, pp.18-20.) The charge included the
elements that one of the parties to the conspiracy agreement performed at least one
of the following overt acts: “(1) Purchased and/or supplied precursors for the
manufacture of methamphetamine; or (2) Actively participated in the cooking
process for the manufacture of methamphetamine; or (3) Provided a location for
Steven King and/or other unnamed individuals to manufacture methamphetamine;
or (4) Aided in the storage of equipment and chemicals used for manufacturing
methamphetamine; or (5) Distributed methamphetamine.” (State’s Lodging B-1,
Jury Instruction 14.)
If the jury had not heard from Burt that Petitioner allegedly said, “We had it
going on up there”—meaning “the production of the methamphetamine, the lifestyle that we were having,” and Petitioner’s admission that the methamphetamine
they produced was for sale (State’s Lodging A-2, p. 64), then the jury nevertheless
had ample evidence before it that Petitioner was involved with Amy Fluckiger,
Robert Zazweta, Theodora Salazar, and Steven King in the production of
methamphetamine in one or more of the five ways described in the Amended
Information. Burt testified of Petitioner’s involvement from his own experience.
MEMORANDUM DECISION AND ORDER - 45

Fluckiger testified of that fact from her own experience, including that Petitioner
bought pseudoephedrine pills, kept Zazweta’s manufacturing equipment in a closet
in Petitioner’s bus, and ran errands to get items Zazweta needed to manufacture
methamphetamine. Fluckiger testified that they made the methamphetamine to sell,
and that Petitioner received a portion of the money. (State’s Lodging A-2, p. 31920.)
The detectives testified that they found equipment and chemicals in and
around Petitioner’s bus, including scales and small baggies. Officers saw Petitioner
leave the Windle property to refill a propane tank, and saw him with King in the
KOA campground, and retrieved written methamphetamine recipes from King’s
person the same date. The store clerk testified that Petitioner bought a gallon of
iodine. The detective testified that a gallon of iodine is enough to treat 400 cattle.
Petitioner had told someone else in jail that he transported methamphetamine to
Utah via airport shuttle bus. Petitioner carried two fake ID cards.
The Court concludes that proof of Petitioner’s guilt during the time period
of August to December 2000 was substantial, even without the erroneous
admission of the two statements of Burt showing that Petitioner had admitted he
was involved in the manufacturing and sale of methamphetamine. Therefore,
Burt’s testimony on these two points did not have a prejudicial effect or influence
on the jury’s verdict. Accordingly, the Court concludes that any Massiah error did
not prejudice Petitioner’s defense.
MEMORANDUM DECISION AND ORDER - 46

Accordingly, Petitioner has not shown prejudice under Massiah or
Strickland. Hence, habeas corpus relief under a de novo standard of review, either
based on a direct Massiah claim or a Strickland claim, is not warranted.
3.

Claim Four (A): Failing to Obtain King Trial Transcript
Claim Four (A) is that trial counsel rendered ineffective assistance by

failing to obtain a transcript of Burt’s testimony from the Steven King trial or to
impeach Burt’s testimony with prior inconsistent statements (Dkt. 46, pp. 32-34.)
Petitioner asserts that Burt’s testimony about who and what he saw regarding the
methamphetamine production in Petitioner’s bus between King’s trial and
Petitioner’s trial was contradictory, and that Petitioner’s counsel could have used
the King trial transcript to impeach Burt.
The Idaho Court of Appeals addressed the claim, concluding that Burt’s
testimony was not inconsistent:
[T]he fact that a witness testifies in greater detail at a
subsequent trial does not render testimony at a prior trial
inconsistent. This is especially true in light of the fact that specific
questions were asked of Burt at Hansen’s trial regarding Hansen’s
involvement in methamphetamine production to which he gave
specific answers. Contrary to his argument, Hansen has not shown a
“marked difference” in testimony such that an evidentiary hearing
should have been granted on this issue. The testimony was not
inconsistent. Moreover, as the post-conviction court pointed out,
Hansen’s trial counsel attended King’s trial and made his own notes.
Hansen has failed to show that trial counsel rendered deficient
performance.
(State’s Lodging J-4, pp. 9-10.)

MEMORANDUM DECISION AND ORDER - 47

At the King trial, Burt testified that the first time he went to the bus on the
Windle property was at the behest of his fiancee, to check to see how Zazweta was
doing in the face of his recent separation from his wife. (State’s Lodging I-1, p.
123.) “And at that time Robert was doing what he was doing up there, and I
witnessed on three occasions of the lab in production.” (Id.)
Counsel asked Burt about the physical layout of the Windle property, and
then went back to Burt’s comment that he had seen methamphetamine being
produced on the bus three times, to which Burt responded, “Yes.” (Id.) Counsel
then asked Burt, “And can you please describe, I guess, what you saw, what it as
when you went in the bus? What did you see?” This question was not clearly
directed at a first, second, or third time, or all three times.
Burt testified, “[Well, when I went in, Robert [Zazweta] had a beaker of—it
would be red phos, and in this beaker he was heating it up with a torch.” (Id.,
emphasis added.) He then described the layout of the bus and said, “When I walked
in the one time, Robert [Zazweta] was in the front room heating up the red phos.”
(Id., emphasis added.)
When Burt was asked whether he believed, based on his experience, what
he saw was a methamphetamine lab, Burt responded:
Well, yeah, because at that time Robert [Zazweta] said, “You
look very nervous, Mitch.” And I go, “Yeah, I am, Robert. This is
not cool.” I go, “I don’t even want to be any part of this.”

MEMORANDUM DECISION AND ORDER - 48

(State’s Lodging I-1, p. 24.) When asked who was in the bus when he “saw that,”
Burt identified “Timmy Hansen [Petitioner],” “Teddy [Salazar],” “Karen Honas,”
“Robert Evans,” and said there were also about five other people he did not know.
(Id., pp. 24-25.)
At Petitioner’s trial, Burt again testified that the first time he went to the bus
was because his fiancee had asked him to go check on Zazweta, who was
separating from his wife. (State’s Lodging A-2, p. 67.) He testified that when he
went into the bus, he saw Zazweta, Salazar, and Petitioner “cooking dope, cooking
methamphetamine,” and, in particular, Petitioner “had a Mountain Dew bottle in
his hand, and Petitioner was duct taping it onto a tube, and in the tube was
phosphate, which is one of the ingredients to manufacture methamphetamine.”
(State’s Lodging A-2, p. 67.)
As the state courts, this Court concludes that these descriptions of the “first
time” Burt went to the bus and observed the production of methamphetamine are
consistent, but that an expanded version regarding Petitioner’s role was included at
Petitioner’s trial.
At the King trial, Burt was not asked to describe the second time he went to
the bus and saw the methamphetamine production. (See State’s Lodging I-1, pp.
24-39.) At Petitioner’s trial, Burt was asked what he saw the second time he went
to the bus. He testified that he saw Petitioner “over a burner drying the meth.” (Id.,
p. 68-69.) The Court concludes that there is nothing contradictory between Burt’s
MEMORANDUM DECISION AND ORDER - 49

testimony on this point between the two trials, because it simply was not addressed
in King’s trial.
At the King trial, Burt was not asked to describe what he saw on his third
visit to the bus. At Petitioner’s trial, Burt testified that, on the third visit, he saw
Petitioner sleeping, and he saw “Teddy [Salazar] drying it and Robert [Zazweta]
was just looking at the condenser and showing me how the beaker dripped dope –
dripped methamphetamine into the other beaker, which is in oil. And I told Robert
I didn’t want to learn, and we kind of got in an argument over it.” (State’s Lodging
A-2, p. 69.)
The Court concludes that there is an ambiguity, but no clear inconsistency,
between the trial testimonies regarding whether Burt and Zazweta argued during
Burt’s first trip to the bus or his third trip to the bus. Burt was testifying about the
first incident at the King trial, but then counsel interrupted him with questions
about all three times; it is unclear whether Burt then testified about his first,
second, or third trip to the bus. At Petitioner’s trial, counsel was careful to ask
about the first, second, and third incidents in chronological order. In any event,
cross-examining Burt over whether he argued with Zazweta on the first or third
visit to the bus would have been a weak challenge to the substance of Burt’s
testimony or his credibility.
In reviewing this claim, the Court further notes that Burt was adept at
explaining perceived differences in his testimony. For example, on crossMEMORANDUM DECISION AND ORDER - 50

examination, Petitioner’s counsel questioned Burt about seeing Zazweta and
Petitioner in September 2000, because Zazweta had been arrested and jailed on
September 5, 2000. Burt then corrected himself and said, September of 2000, “and
the end of August of 2000.” (Id., p. 82.)
On a similar point, counsel specifically asked Petitioner about conflicts in
testimony between what he reported to police officers and what he had stated
during direct examination about Petitioner’s involvement:
Q.

You testified the second time you went up to the
residence that you saw Tim with a glass Pyrex, is that
correct?

A.

Yes.

Q.

Do you recall doing an interview on 11/13, 2001, with
Detective Russell Wheatley and Gary Steven Brush?

A.

Yes.

Q.

In the police report on that date there’s a comment in
the police report that you stated you observed
Theodora Salazar moving a Pyrex style cake pan over
a burner and stirring the substance inside the pan at the
rear of the bus. Is that correct?

A.

What was the name?

Q.

Theodora S-a-l-a-z-a-r.

A.

Yes, she – I witnessed that.

Q.

I’m confused. Did you witness her doing it or did you
witness Tim Hansen doing it?

A.

I witnessed them both. At the time that –

MEMORANDUM DECISION AND ORDER - 51

Q.

That’s fine.

A.

Okay.

(State’s Lodging A-2, pp. 83-84 (emphasis added.)
This testimony shows that Petitioner’s counsel questioned Burt about a
perceived inconsistency between Petitioner’s trial and a police report, just as he
might have done between Petitioner’s trial and Burt’s trial, had counsel obtained a
transcript, but that Petitioner was able to easily explain the perceived discrepancy.
The only major discrepancy between Petitioner’s trial and Burt’s trial is regarding
the timing of an argument between Burt and Zazweta, which is only slightly
relevant to the substance of the testimony and would have been only slightly
impeaching. Petitioner does not acknowledge the greater risk that Burt could have
testified to more damaging information about Petitioner’s involvement in the
conspiracy on re-direct examination had counsel gone further in his crossexamination about “discrepancies.”
An examination of the trial transcripts demonstrates that the Idaho Court of
Appeals’ opinion is based on a reasonable determination of the facts in the record
and is not an unreasonable determination of Strickland. Petitioner has shown
neither deficient performance nor prejudice. Therefore, under the doublydeferential standard for Strickland claims discussed in Richter, § 2254(d) relief is
not warranted.

MEMORANDUM DECISION AND ORDER - 52

4.

Claim Four (B): Failing to Obtain Accomplice Instruction
Claim Four (B) is that trial counsel was ineffective for failing to obtain a

jury instruction that Burt was an accomplice in the conspiracy. (Dkt. 46, pp.
34-37.) Petitioner argues that, had an accomplice instruction been given regarding
Burt, then his testimony could not have been used to corroborate Fluckiger’s
testimony, but both would have needed independent corroborating evidence.
The Idaho Court of Appeals concluded that it was of no consequence to the
outcome of the trial that an accomplice instruction was not given:
The corroborating evidence is sufficient to tend to connect
Hansen to the crime independent of the accomplices’ testimony.
Therefore, Hansen has failed to demonstrate that the post-conviction
court erred in summarily dismissing his claim because he suffered no
prejudice in any failure to include Burt as an accomplice.
(State’s Lodging J-4, pp. 12-13.)
Petitioner argues that the State’s entire case rested only on “the testimony of
two drug manufacture[r]s who both have prior felony drug convictions and who
were both involved in a methamphetamine producing operation a year prior to
Hansen being arrested.” (Dkt. 46, p. 7.) The characterization that Hansen and
Fluckiger provided the only evidence of Petitioner’s involvement in the
methamphetamine production is not supported by the record. Ample additional
independent evidence was produced from the detectives, store clerk, and lab
criminalist to show that Petitioner was involved in the methamphetamine
production in the bus during the latter half of the year 2000. Idaho law requires
MEMORANDUM DECISION AND ORDER - 53

only that the corroborative evidence be “slight” and need only “tend” to connect
the defendant to the crime. State v. Stone, 216 P.3d 648, 651 (Idaho Ct. App.
2009). All of the additional evidence beyond the testimony of Fluckiger and Burt
meets this low standard.
In addition, the record contains little evidence that Burt was an accomplice
to the conspiracy that was charged—the production of methamphetamine in
Petitioner’s bus during the year in question. Burt testified at King’s trial that he
was “a little bit involved” with Fluckiger, who was herself involved with King, but
no details of the extent of his involvement are apparent, other than he was at the
her house one time with Fluckiger and King, and that he gave her an advance
warning that he heard on his police scanner that police were going to raid her
residence. (State’s Lodging I-1, pp. 35-37.) Burt testified at Petitioner’s trial that
he used methamphetamine, visited the bus on several occasions (and told the
conspiracy participants that he did not want to be involved), and spent time
partying with the members of the conspiracy. Amy Fluckiger particularly testified
that Burt was not involved in the production process, and, while the detectives who
were investigating the lab mentioned the names of others that they had investigated
in connection with the lab, Burt’s name was not among them.
Based upon the entire record, Petitioner has failed to show that the Idaho
Court of Appeals’s decision rejecting this claim was unreasonable, particularly

MEMORANDUM DECISION AND ORDER - 54

because Petitioner has not shown any prejudice arising from the failure to seek an
accomplice instruction regarding Burt. Thus, habeas corpus relief is not warranted.
5.

Claim Four (C): Confidential Informant Police Report
Claim Four (C) is that trial counsel performed ineffectively when he failed

to properly use the report of Detectives Charles Burke and Glen Boodry (Mixing
up their names, Petitioner has called this the report of “Charles Broody”). (Dkt. 46,
pp. 38-40.) Detective Burke’s report contains information about an interview with
a confidential informant, “CI-397,” who told police that, in April 2011, Steven
King normally manufactured 20 to 30 grams of methamphetamine at a time, that
King lived in Petitioner’s old bus while Petitioner was in jail, that he saw and
helped King manufacture methamphetamine in the bus, and that King usually
obtained phosphorus from Robert Zazweta or Troy Hall. (State’s Lodging E-2, pp.
62-63.) The report did not mention that Petitioner or Amy Fluckiger were present
or provided supplies for the methamphetamine production in April 2001.
The post-conviction court rejected this claim on the basis that it was a
strategic part of the defense to exclude the report from evidence at trial.
Petitioner’s trial counsel’s Affidavit stated:
I acknowledge that I did not use the police reports as way of
exhibits or for impeachment purposes. This decision was done in the
exercise of my reasonable professional judgment. I talked with Mr.
Hansen about the potential listed witnesses and their expected
testimony. Mr. Hansen’s [sic] did tell me not to worry “I’ve got my
ducks lined up.”
***
MEMORANDUM DECISION AND ORDER - 55

I reviewed with Mr. Hansen all defense witnesses and exhibits
that he wished to use during his trial. Specially, Mr. Hansen and I
talked about who to use for a witness or what exhibit to use and the
specific reason to use that person or exhibit. Any person we did not
call as a witness was based upon my professional reasonable
judgment and agreed upon with Mr. Hansen.
I had legitimate strategic or tactical purposes not to call
certain witnesses or use the police reports.
(State’s Lodging I-1, pp. 178-79.)
The post-conviction court recognized that the report linked Petitioner’s
residence (the bus) to the manufacturing of methamphetamine described by the
confidential informant—evidence that strengthened the State’s case. Based on this
information, the Affidavit of counsel, and Petitioner’s failure to dispute the fact
that counsel declared that Petitioner did not have an objection to not using the
police reports as exhibits, the post-conviction court concluded that exclusion was
strategic and counsel had not performed deficiently.
Petitioner argued on appeal that the state district court decision was
erroneous because the Affidavit of counsel failed to identify the police report or
give a specific reason for excluding the police report, and because his counsel
actually tried to question one of the officers about the report during the trial, but it
was not one of the officers who had written or witnessed the report (and who were
not called at trial). In cross-examining Detective Donald Broughton, Petitioner’s
counsel asked: “I received a police report dated 4/18, 2001, in which one of the
details in there states that Steven King’s residence is the same place Timothy
MEMORANDUM DECISION AND ORDER - 56

Hansen lived prior to being sent to jail. Do you have any knowledge of this police
report?” The witness answered, “No.” (State’s Lodging A-2, p. 365.)
Petitioner did not address on appeal the threshold admissibility question
regarding confidential informant statements contained within a police report—an
obvious double hearsay problem. The Court of Appeals addressed this issue sua
sponte, concluding that Petitioner failed to show that the statements were
admissible. (State’s Lodging J-4, p. 15.)
If the statements were inadmissible, then Petitioner’s counsel did not
perform deficiently, and he was not prejudiced by the failure to try to introduce the
police report into evidence. There does not appear to be an Idaho case specifically
addressing informant statements contained in police reports, but cases from other
jurisdictions show that the Idaho Court of Appeals’s opinion on admissibility of
double hearsay echoes the interpretation of similar evidentiary codes in other
states. See Gronland v. Illinois Farmers Ins. Co., 1994 WL 121627 (Minn. App.
1994) (police reports containing an out-of-court statement by a detective to a
police officer that a confidential informant had said a sibling of her former
boyfriend had told her that the former boyfriend admitted to setting the fires was
inadmissible because the evidence is multiple hearsay and each statement was not
shown to qualify as an exception to the hearsay rule. See Minn.R.Evid. 805). See
also People v. $53,240 U.S. Currency, 2012 WL 752071 (Mich. App. 2012) (“We
assume without deciding that the police report itself satisfies the admissibility
MEMORANDUM DECISION AND ORDER - 57

requirements of MRE 803(6), the business record exception to the hearsay rule.
However, the statements of Felix and the confidential informant recounted in the
police report constitute second-level hearsay, inadmissible under any exception to
the hearsay rule.”)
At least one case from Idaho regarding a witness’s statements in a police
report follows the same rule, though not specifically involving a confidential
informant, and no Idaho cases to the contrary exist. See, e.g., State v. Vivian, 924
P.2d 637, 640 (Idaho Ct. App. 1996) (Assuming the district court ruled correctly
regarding the police report, we must then determine whether Vivian’s statement,
recorded within the police report, was admissible. References to Vivian’s
statement was hearsay and not admissible unless it met a separate hearsay
exception.”).
In addition to addressing the admissibility issue, the Idaho Court of Appeals
rejected Petitioner’s arguments on other grounds, pointing to the fact that
Petitioner’s counsel had declared by affidavit that he reviewed all of the exhibits
with Petitioner, that Petitioner was made aware of the strategic or tactical reasons
for not using the evidence that was not used, that Petitioner agreed with the
decisions, and that Petitioner did not bring any evidence to the contrary in the postconviction proceeding. The Idaho Court of Appeals agreed with the district court
that the reports contained both helpful and harmful facts, and Petitioner had not

MEMORANDUM DECISION AND ORDER - 58

come forward with enough to overcome the strong presumption that counsel
performed deficiently, or that any prejudice resulted.
One reasonable inference that can be drawn from counsel’s actions at trial
supports Petitioner’s position that his counsel did, in fact, try to gain admissibility
of the police report, but did so incorrectly, essentially gutting counsel’s
explanation that he did not use the report as a matter of strategy. However, another
reasonable inference supports his counsel’s position that the nonadmission of the
report was strategy—counsel may have recognized that the confidential informant
statements within the police report likely were inadmissible, and so he tried to use
a back-door approach to placing this information before the jury by merely
questioning an officer about the contents, without attempting to introduce the
report into evidence. Petitioner did not produce evidence in the post-conviction
proceeding to support his theory over his counsel’s theory. Petitioner bore the
burden to refute the statements in the Affidavit by coming forward with testimony
showing that counsel did not go over the police report with Petitioner, that
Petitioner did not agree that it should not be used, or that the internal statements
were admissible and should not have been merely discussed with a witness.
Petitioner had ample opportunity to do so in post-conviction proceedings, and yet
did not. Therefore, the only evidence in the record is Petitioner’s counsel’s
statement of what he did, what Petitioner did, and why.

MEMORANDUM DECISION AND ORDER - 59

The Court further agrees that Petitioner has not shown that his defense was
prejudiced by the failure to introduce the police report. Petitioner's argument seems
based upon a misapprehension of the charges against him. The State did not need
to show that he was involved during the entire year, only during part of the year.
Therefore, even if evidence was introduced that Steven King lived in the bus
between April 2001 and June 2001, while Petitioner was in Utah, and that
Petitioner did not help manufacture methamphetamine between April 2001 and
June 2001, that does nothing to refute the evidence that witnesses placed him in
the methamphetamine manufacturing conspiracy between August 2000 and
December 2000. Burt testified that he saw Petitioner aiding in the manufacturing
between August 2000 and October 2000. (State’s Lodging A-2, pp. 67-70.)
Fluckiger testified that Petitioner aided in the manufacturing between August 2000
and December 2000. (Id., p. 311.) Petitioner’s mother testified that Petitioner was
living in the bus from August to December 2000, when she took lunch to him and
visited with his daughter on the Windle property. (Id., pp. 425-426.) Several
witnesses testified that Petitioner bought a gallon of iodine in December 2000.
In addition, the State did not have to show that he was a main player in the
conspiracy. Rather, the evidence showed he was a “helper” or a “gofer,” which is
enough under the statute to be a conspirator. The confidential informant did not
mention Amy Fluckiger as a conspirator in April 2001, but Fluckiger herself
admitted her role and testified about Petitioner’s role during a time period within
MEMORANDUM DECISION AND ORDER - 60

the year included in the charging document. The police report did not exonerate
Petitioner or Fluckiger; it was merely a piece of evidence that methamphetamine
production continued to go on in the bus Petitioner usually used as a home while
he was away from home.
Petitioner’s ineffective assistance of trial counsel claim fails for lack of a
showing of deficient performance and lack of prejudice.
DISCUSSION OF MERITS OF NAPUE CLAIM
Claim Three (C) and Claim Six are that recruited informant Burt testified
falsely regarding his motive for testifying, and the prosecutor allowed and failed to
correct the false testimony, in violation of Napue. (Dkt. 46, pp. 26, 51-56.)
Petitioner alleges that Burt testified that he was providing testimony out of
community spirit and good will and that the State had not offered him any special
treatment in exchange for his testimony, and, yet, two weeks after trial, all of
Burt’s remaining charges were dropped. Later, Petitioner testified at King’s trial
that he used and manufactured methamphetamine while on parole, and, yet, the
State did not charge him with a parole violation. Petitioner asserts that the
prosecutor should have corrected Burt’s testimony regarding his motivation to
testify.
1.

Standard of Law
In Napue v. Illinois, 360 U.S. 264 (1959), the United States Supreme Court

held that the prosecution (1) cannot present evidence it knows is false and (2) must
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correct any falsity of which it is aware. Id. at 269. A claim that the prosecution
knew that a witness perjured himself is cognizable under 28 U.S.C. § 2254(d)(1),
but a petitioner must establish that the prosecutor knew that testimony was false.
See Napue, 360 U.S. at 269. A conviction meets the Napue test and a writ will
issue if there is a showing that (1) the prosecution knowingly presented false
evidence or testimony at trial, and (2) that the testimony was material, meaning
there is a reasonable likelihood that the false evidence or testimony could have
affected the judgment of the jury. See Hayes v. Brown, 399 F.3d 972, 984 (9th Cir.
2005) (en banc).
It is well established that evidence of an agreement or promise of lenient
treatment in exchange for a witness’s testimony against a defendant may constitute
evidence that must be disclosed under Brady and Napue. See Giglio v. United
States, 405 U.S. 150, 154–55 (1972)); see also Banks v. Dretke, 540 U.S. 668, 685,
700–02 (2004) (finding a Brady violation where prosecution failed to disclose that
key witness “was an informant and that he had been paid $200 for his involvement
in the case”).
2.

State Court Decision
The Idaho Court of Appeals addressed this claim on appeal of denial of the

post-conviction application. That court concluded that the state trial court’s
“findings and conclusions are supported by the record, and the inferences drawn
by the trial court are reasonable,” even though it was possible to draw conflicting
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inferences from the facts. (State’s Lodging A-4, pp. 6-8.) The Idaho Court of
Appeals relied on the Affidavit of Burt’s attorney, Kent Reynolds, that directly
contradicted Petitioner’s allegation that an agreement existed between Burt and the
State for favorable treatment in exchange for his testimony. (State's Lodging I-1,
pp. 195-96.) In addition, at trial, the prosecutor solicited on direct examination
testimony from Amy Fluckiger, an accomplice, that she had been granted
immunity in exchange for her testimony against Petitioner; therefore, the court
reasoned, it is unlikely the prosecutor would have hidden a grant of immunity for
another witness.
3.

Analysis
This Court agrees that the record supports two different inferences: one that

Burt had no agreement with the prosecution for favorable treatment, and one that
Burt and the prosecution had an implicit agreement that, if Burt testified against
Petitioner, he would receive favorable treatment in his own pending criminal case.
Four items strongly favor the inference that the state district court selected: (1)
Burt’s attorney’s Affidavit declaring that there was no agreement or
understanding, and that he specifically warned Burt about testifying without an
agreement in place; (2) the fact that the prosecution actually raised the issue of
Fluckiger’s grant of immunity on direct examination; (3) the fact that Burt
volunteered to provide information to detectives without requesting recompense in
his case; and (4) Burt’s long and detailed explanation of how his life and his
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children’s lives had been severely impacted by Burt’s heavy involvement in drugs.
(State’s Lodging A-6, pp. 62-63.) On the other hand, factors tending to show that
there was an implicit agreement in place include: (1) Burt’s criminal charges were
dismissed two weeks after he testified at Petitioner’s trial; and (2) police officers
asked Burt to obtain information about Petitioner in jail, but that was not disclosed
to Petitioner’s counsel or raised by the prosecution on direct examination.
The Court disagrees with Petitioner that there was so much evidence
showing there was an implicit agreement or promise of action between the
prosecution and Burt prior to Petitioner’s trial that the testimony of Burt at trial
amounted to false testimony that the prosecution was duty-bound to “correct.”
There is more evidence weighing in favor of finding there was no agreement or
understanding, especially given Burt’s attorney’s advice to him about the risks of
testifying without an agreement in place. In any event, under the Richter standard,
if fairminded jurists could disagree on the correctness of the state court’s decision,
as here, then a federal court cannot grant relief under § 2254(d)(1).
The facts of this case raise the question of when an expectation that is
induced by State recruitment crosses the line into a promise or an agreement.
Under AEDPA, Petitioner must show that United States Supreme Court precedent
exists that addresses this question. Precedent from lower cases can be examined to
determine the reasonableness of the Idaho Court of Appeals’s decision.

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Cases in which a constitutional violation has been found include those in
which there is evidence of either an express agreement, an implicit agreement, or a
benefit conferred upon the witness prior to trial. See United States v. Sipe, 388
F.3d 471, 488 (5th Cir. 2004) (illegal alien witnesses were given social security
cards, witness fees, trip permits to Mexico, travel expenses, phone expenses, and
other benefits); United States v. Soto–Beniquez, 356 F.3d 1, 40 (1st Cir. 2003)
(prosecution witnesses received oral assurances of leniency in exchange for their
testimony); Reutter v. Solem, 888 F.2d 578, 581 (8th Cir. 1989) (the Court found
the government knew but did not disclose that its main witness had applied for a
commutation hearing and the hearing was twice rescheduled to occur after the
witness testified at defendant's trial).
A witness’s “general and hopeful expectation of leniency is not enough to
create an agreement or an understanding that they would, in fact, receive leniency
in exchange for their testimony.” Collier v. Davis, 301 F.3d 843, 849 (7th Cir
.2002), cert. denied, 537 U.S. 1208 (2003). Shabazz v. Artuz, 336 F.3d 154, 165
(2d Cir. 2003); (“that a prosecutor afforded favorable treatment to a government
witness [post-trial], standing alone, does not establish the existence of an
underlying promise of leniency”); Hill v. Johnson, 210 F.3d 481, 487 (5th Cir.
2000) (a witness’s “nebulous expectation of help from the [S]tate” is not Brady
material).

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An explicit agreement is not necessary, but there needs to be sufficient
evidence in the record for the court to be able to find that an implicit understanding
or agreement to grant the witness favorable treatment existed. In Sivak v.
Hardison, 658 F.3d 898 (9th Cir. 2011), where the same issue arose regarding
State’s witness Jimmy Leytham, the United States Court of Appeals for the Ninth
Circuit determined that
although there is no evidence of an explicit meeting of the
minds between Leytham and the prosecutor’s office, there is ample
evidence of an implicit quid pro quo between the prosecutor’s office
and Leytham, and that this agreement was known to Harris, Killeen,
and Leytham. We therefore agree with the Idaho Supreme Court’s
factual conclusion “that Leytham and the prosecutor had reached
some type of deal in exchange for his cooperation.” Sivak V, 8 P.3d
at 643.
658 F.3d at 910.
During the guilt phase of the trial, Leytham testified that he had “a wife and
kids out on the streets,” and he did not “want anything to happen to them.” He
denied that he had asked for any particular favor from the State in exchange for his
testimony. Asked whether the prosecutor's “office or any other State agency” took
any actions “with regard to [his] incarceration [in] the Ada County jail,” Leytham
said only that his escape charge was dismissed after the preliminary hearing, and a
charge pending in another city was also dismissed. Leytham said that he did not
know whether the prosecutor’s office was involved in the dismissals.
The Idaho Supreme Court concluded that:

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Much of [Leytham's] testimony the prosecutor knew to be
inaccurate. As Killeen’s letter makes obvious, Leytham approached
Killeen about a “deal,” not out of a sense of familial or civic
responsibility. Leytham also asked the prosecutor for monetary
compensation. Leytham knew that the prosecutor’s office was
responsible for his pending charges being dismissed. Although he
denied receiving any other consideration, he also knew that the
prosecutor’s office was largely responsible for him receiving parole.
658 F.3d at 910.
Those letters included the following information to support a Napue claim:
The first letter was written on May 7, 1981, by Ada County
prosecutor Jim Harris to Dennis Albers, the prosecutor of a
neighboring county in which a charge was pending against Leytham
for escaping jail. Harris explained that Leytham had “come to law
enforcement in Ada County with very damaging eviden[ce] against
three inmates in the Ada County Jail presently being held on murder
charges.” Harris acknowledged that “[t]he escape charge that you
have presently pending against Mr. Leytham is ... of serious concern
to you and your office[,]” but he nevertheless “request[ed] that
charges against Mr. Leytham in Idaho County, relating to the escape
above mentioned, be dismissed by your office.” Harris explained that
his request was “[b]ased on [Leytham's] cooperation, as well as the
fact that Mr. Leytham is presently serving a sentence in the Ada
County Jail resulting from” a prior offense. Harris concluded by
adding, “I do believe that based on the fact that Mr. Leytham will
obviously not be sentenced to the State Penitentiary (based on his
willingness to testify against these individuals), justice will be served
adequately without proceeding further on the escape charge pending
in your jurisdiction.”
The second letter was written a few days later by Harris to the
chairman of the state Commission for Pardons and Parole. Harris
“recommend[ed]” that Leytham “be given additional consideration
for parole from the Idaho State Correctional Institute” during his
upcoming parole hearing the following week. Harris's
“recommendation [was] based upon Mr. Leytham's cooperation”
with respect to the two trials in the Wilson murder, the murder trial
in Kansas, and an additional local murder investigation.
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The third letter was written on July 13, 1981, by Leytham to Jerry
Brown, who was “evidently a Kansas prosecutor.” Sivak V, 8 P.3d at
640. Leytham wrote that Idaho investigator “Vaughn [Killeen] told
me you are in the same position Idaho is in. They say they will help
me when I get out but don't do any thing [sic] about it.” Leytham
added that he wanted $6,000 “cash” as “wit[ ]ness fees as soon as
you can.” A few weeks later, Brown forwarded this letter to Killeen.
The fourth letter was written on July 27, 1981, by Killeen to
Leytham. The letter began: “Your witness fee should arrive
shortly.... I also wanted to communicate to you about your status and
what this office has done in regards to your current status. If you
recall you had information regarding the Bainbridge–Sivak case and
you approached me about a ‘deal.’ I informed you we couldn't make
‘deals' but if you desired to testify I would attempt to do something
for you but there would be no guarantees.” Killeen then summarized
the “arrangements” that were made in anticipation of Leytham's
testimony in the Sivak, Bainbridge, and Crispin cases: “the
dismissing of criminal charges against you in two jurisdictions, a
reduction in sentence and a parole from the Idaho State Correctional
Institute.” Killeen closed by stating that “[w]ithout our intervention
you would still be in prison with other pending criminal charges
against you. I would suggest you stop trying to make a living off the
system.... I will see you at the deposition” in Sivak's case. Sivak V, 8
P.3d at 645.
Id. at 909-10.
The Ninth Circuit Court of Appeals determined that these findings about
Leytham’s testimony established the first two elements of a Napue violation: that
the testimony was false, and that the prosecution knew or should have known that
it was false. Id. at 911.
In contrast to all of the examples above from several different courts,
Petitioner shows little more than that Burt hoped and unilaterally anticipated he

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would receive favorable treatment in his case, but that nothing was promised, and
no agreement—implicit or explicit—existed. Rather, the evidence in the record,
especially the Affidavit of Burt’s counsel, shows that an agreement or promise did
not exist.
4.

Conclusion
The totality of the evidence weighs in favor of the Idaho Court of Appeals’s

decision, and Petitioner has not shown that fairminded jurists could not disagree on
the correctness of the state court’s decision that there was no explicit or implicit
agreement or understanding that Burt would receive leniency in his own case for
testifying against Petitioner. Accordingly, relief cannot be afforded under
§ 2254(d)(1).
SUMMARY AND DISPOSITION OF PETITION
No trial and no review of a trial record on appeal or collateral review is
perfect, but the Constitution does not require perfection for a conviction to stand.
This Court has combed through the record to determine whether prejudice resulted
from any of the errors evident in the record, and it has found none. Because
Petitioner’s claims do not warrant relief for the specific reasons above, the Court
will deny the Amended Petition and dismiss this entire action with prejudice.

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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 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 a petition or claim on procedural grounds, in
addition to showing that the petition “states a valid claim of the denial of a
constitutional right,” as explained above, the petitioner must also show that
reasonable jurists would find debatable whether the court was correct in its
procedural ruling. Slack, 529 U.S. at 484. When a court has dismissed the petition
or claim on the merits, the petitioner must show that “reasonable jurists would find

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the district court’s assessment of the constitutional claims debatable or wrong.” Id.
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 dismissed some of Petitioner’s claims on procedural
grounds, and some 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 procedural
issues and the merits of the claims raised in the case 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).

ORDER
IT IS ORDERED:
1.

The Amended Petition for Writ of Habeas Corpus (Dkt. 46) is
DENIED, and this entire action is DISMISSED with prejudice.

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2.

The Court will not grant a Certificate of Appealability in this case.
DATED: July 22, 2014

Honorable Edward J. Lodge
U. S. District Judge

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