Mubita v. State of Idaho

Filing 39

MEMORANDUM DECISION AND ORDER. Respondent's Motion for Partial Summary Dismissal 29 is GRANTED in part: Claim One is dismissed with prejudice, and any state law issues or Fourth Amendment issues raised in Claim Three are dismissed with prejudi ce. Respondent's Motion for Partial Summary Dismissal 29 is CONDITIONALLY GRANTED in part. Within the next 30 days, Petitioner may file a motion and memorandum asking the Court to apply one or both exceptionsto the defaulted claims. Petitioner 's Motion to Show Cause Why Respondent Has Not Filed an Answer 31 is DENIED. Respondent shall file an answer to the remaining claims within 90 days after entry of this Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KANAY MUBITA,
Case No. 1:08-cv-00310-BLW
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
WARDEN TIM WENGLER,
Respondent.

This habeas corpus matter was stayed pending completion of Petitioner’s state
court appeal challenging the same conviction and sentence. (Dkt. 17.) After the state court
action concluded, this case was re-opened. (Dkt. 20.) Respondent filed a Motion for
Partial Summary Dismissal, which is now ripe for adjudication, with the parties having
filed a Response, Reply, and Sur-Reply. (Dkt. 29, 32, 37, 38.)
Having reviewed the record, including the state court record, and having
considered the arguments of the parties, the Court finds that oral argument is unnecessary.
Accordingly, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

MOTION FOR PARTIAL SUMMARY DISMISSAL
The pro se Petition for Writ of Habeas Corpus filed in this action contains seven
substantive claims, though they are numbered one through three with one “new claim.”
(Dkt. 3, pp. 2-6.) For ease of reference, the claims will be addressed in this Order as
Claims One through Seven. Respondent argues that Claims One, Two, Three, Four, and
Seven should be dismissed with prejudice on procedural grounds, leaving only Claims
Five (erroneous jury instruction) and Six (confrontation of lab technicians) for
adjudication on the merits. The Court will review each of the claims for which
Respondent seeks dismissal.
1.

Standard of Law Governing Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily

dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the
district court.” In such case, the Court construes the facts in a light most favorable to the
petitioner. It is appropriate for the Court to take judicial notice of court dockets from state
court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir.
2006).
2.

Claim One
Petitioner was charged with and convicted by jury of eleven felony counts of

transfer of bodily fluid which may contain the human immunodeficiency virus (HIV), in
violation of Idaho Code § 39-608. Claim One is that Petitioner was denied his Fourth
MEMORANDUM DECISION AND ORDER - 2

Amendment rights when the State obtained his medical records from the Idaho
Department of Health without a court order or his consent and used them as evidence at
trial that he knew he was HIV-positive when he had sexual relations with the victims.
Petitioner asserts that the medical records were private and not public records. (Dkt. 3,
p.1.)
A.

Standard of Law

The threshold issue in a Fourth Amendment claim presented in a federal habeas
corpus petition is whether the state provided the petitioner an opportunity for full and fair
litigation of his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). If the
federal district court determines that full and fair litigation of the claim took place in state
court, then it cannot grant habeas corpus relief on the ground that the evidence was
obtained in violation of the Fourth Amendment. Id.
A federal district court must first “inquire into the adequacy and fairness of
available state court procedures for the adjudication of Fourth Amendment claims.”
Sanna v. Dipaolo, 265 F.3d 1, 8-9 (1st Cir. 2001) (internal citation omitted). If the court
determines that the state court procedures are adequate, the inquiry generally ends there.
Id. That is, “[s]o long as a state prisoner has had an opportunity to litigate his Fourth
Amendment claims by means of such a set of procedures, a federal habeas court lacks the
authority, under Stone, to second-guess the accuracy of the state court’s resolution of
those claims.” Id. at 9. Stated another way, “[t]he relevant inquiry is whether petitioner
had the opportunity to litigate his claim, not whether he did in fact do so or even whether
MEMORANDUM DECISION AND ORDER - 3

the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.
1996). Petitioner bears the burden of establishing that the state courts did not consider the
Fourth Amendment claim fully and fairly. Mack v. Cupp, 564 F.2d 898, 901 (9th Cir.
1977).
B.

State Court Litigation

Petitioner filed a motion to suppress evidence before trial, asserting that his Fourth
Amendment rights were violated and that prosecutors should not be able to use the
following evidence at trial: (1) health and other records of Petitioner obtained from the
Idaho Department of Health without Petitioner’s permission; (2) statements made by
Petitioner about his health condition to a police officer prior to his arrest; and (3)
Petitioner’s health intake and booking information from the jail. (State’s Lodging A-2,
pp. 272-73.) The motion was supported with affidavits, documents, and a brief that relied
upon testimony from the preliminary hearing. (State’s Lodging A-2, pp. 272-92.) The
state district court set the motion for a suppression hearing and was prepared to take
evidence on the motion, but Petitioner did not have any additional evidence to present
beyond what was attached to his motion; he instead presented only argument at the
suppression hearing. (State’s Lodging A-4, pp. 7, 13-21, 39.) The motion to suppress was
denied as to the Health Department records and the statements to the officer, but granted
as to the jail’s health intake and booking information. (State’s Lodging A-2, pp. 360-61.)
On direct appeal, Petitioner raised the suppression issue before the Idaho Supreme
Court, where he filed a brief, a reply, and an amended reply. (State’s Lodgings B-1, B-3,
MEMORANDUM DECISION AND ORDER - 4

and B-5.) The law and the facts were well-briefed. (Id.) The Idaho Supreme Court held
oral argument on the suppression issue. (See State’s Lodging B-6.) The Idaho Supreme
Court fully considered and extensively addressed the suppression issue under the United
States Constitution, the Idaho Constitution, federal case law, state case law, state statutes,
state regulations, federal statutes, and federal regulations. After a full review of the issue,
the Idaho Supreme concluded that Petitioner’s Fourth Amendment rights were not
violated, and that, if another legal provision, such as HIPAA,1 had been violated,
suppression was “not the proper remedy.” (State’s Lodging B-6, p.13.)
C.

Analysis

Respondent argues that all of the foregoing litigation demonstrates that Petitioner
received a full and fair opportunity to litigate his issue in the state courts. Respondent also
argues that Petitioner has not borne the burden of showing that the Idaho courts did not
give his Fourth Amendment issue full and fair consideration.
After reviewing the state court record and considering the parties’ arguments on
the Fourth Amendment issue, the Court concludes that the state court proceedings were
adequate to provide Petitioner with a full and fair opportunity to litigate his claim at both
the initial and appellate levels of the state court system. Petitioner was provided with a
suppression hearing. He was given an opportunity to present additional evidence at that
hearing. Petitioner declined the invitation to present any further evidence, likely because

1

The Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320,

et seq.
MEMORANDUM DECISION AND ORDER - 5

the facts were not at issue, but only the legal question of whether the medical records
could be used at trial because of the way they were obtained. The Idaho Supreme Court
heard oral argument and reviewed the suppression issues very carefully. Hence, under
Stone v. Powell, no further litigation on the Fourth Amendment can occur in this Court.
Petitioner’s reliance on the Fourteenth Amendment as an alternative basis for his
Fourth Amendment claim does not permit him to avoid the Stone v. Powell rule (Dkt. 3,
p. 2), as the United States Supreme Court has instructed federal district courts to analyze
constitutional claims using an “explicit textual source of constitutional protection,” such
as the Fourth Amendment, rather than using “the more generalized notion of ‘substantive
due process’” under the Fourteenth Amendment. Graham v. Connor, 490 U.S. 386, 395
(1989) (civil rights context); see Herrera v. Kelly, 667 F. Supp. 963, 970 (E.D. N.Y.
1987) (petitioner not entitled to “avoid running into the brick wall of Stone v. Powell” by
re-casting what is clearly a Fourth Amendment claim into a Fourteenth Amendment
claim).
For all of the foregoing reasons, this claim will be dismissed with prejudice.

MEMORANDUM DECISION AND ORDER - 6

3.

Claims Two, Three, Four, and Seven
Respondent asserts that Claims Two, Three, Four, and Seven are procedurally

defaulted.
A.

Standard of Law Governing Procedural Default

Habeas corpus law requires that a petitioner “exhaust” his state court remedies
before pursuing a claim in a federal habeas corpus petition. 28 U.S.C. § 2254(b). To
exhaust a claim, a habeas petitioner must fairly present it to the highest state court for
review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). Unless a petitioner has exhausted his state court remedies relative to a
particular claim, a federal district court may deny the claim on its merits, but it cannot
otherwise grant relief on unexhausted claims. 28 U.S.C. § 2254(b). The petitioner can
satisfy the exhaustion requirement by showing that (1) he has “fairly presented” his
federal claim to the highest state court with jurisdiction to consider it (proper exhaustion),
or (2) that he did not present the claim properly to the highest state court, but no state
court remedy is available when he arrives in federal court (improper exhaustion). Johnson
v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To exhaust a habeas claim properly, a habeas petitioner must “invok[e] one
complete round of the State’s established appellate review process,” O’Sullivan v.
Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the
alleged constitutional error at each level of appellate review. See Baldwin v. Reese, 541
U.S. 27, 29 (2004). Improperly exhausted claims are deemed “procedurally defaulted.”
MEMORANDUM DECISION AND ORDER - 7

Procedurally defaulted claims include those within the following circumstances: (1) when
a petitioner has completely failed to raise a particular claim before the Idaho courts; (2)
when a petitioner has raised a claim, but has failed to fully and fairly present it as a
federal claim to the Idaho courts; or (3) when the Idaho courts have rejected a claim on an
independent and adequate state procedural ground. See Martinez v. Klauser, 266 F.3d
1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.
1994)). Under these circumstances, the claim is considered “procedurally defaulted” for
habeas corpus purposes. See Coleman v. Thompson, 501 U.S. 722, 731 (1991).
B.

Discussion of Claim Two

Claim Two is that Petitioner’s Fourteenth Amendment due process rights were
violated when he was not provided with an interpreter during state court proceedings,
because his native language is Zulu, not English. (Dkt. 3, pp. 2-3.) Petitioner raised this
claim in his first post-conviction petition. After reviewing Petitioner’s arraignment
testimony, listening to Petitioner testify at the post-conviction hearing, and considering
the testimony of Petitioner’s trial counsel regarding assessment of Petitioner’s ability to
communicate with him, the state district court concluded that there was no question that
Petitioner understood English and that an interpreter was not necessary. (State’s Lodgings
C-11, pp. 216-20; C-13, pp. 1-82.) Petitioner did not include the interpreter claim in his
appeal, which was heard by the Idaho Court of Appeals; nor was it included in his
petition for review and briefing before the Idaho Supreme Court. (State’s Lodging D-3,
D-7, D-8.)
MEMORANDUM DECISION AND ORDER - 8

In his successive post-conviction petition, Petitioner raised a similar claim that his
trial counsel was ineffective for failure to use an interpreter at trial. To meet the threshold
for filing a successive petition, Petitioner also asserted that his post-conviction counsel
was ineffective for not raising the claim in the first post-conviction proceeding. (State’s
Lodging E-1, p. 50.) The trial court denied the claim in the successive proceeding because
Petitioner’s post-conviction counsel did raise and pursue the underlying English language
claim, which was without merit. (Id., p. 181.) Petitioner did not include the issue in his
successive post-conviction appeal, but brought other issues instead. (State’s Lodging F-2,
F-6.)
Because the claim was not included in either post-conviction appeal, it is
procedurally defaulted.
C.

Discussion of Claim Three

Claim Three is that Petitioner’s rights under the Fourth Amendment and under the
Confrontation Clause of the Sixth Amendment were violated as a result of the following
events:
The State used illegally-obtained evidence and testimony when a
requested blood test would invalidate the Petitioner’s conviction.
Petitioner's alleged “confession” of his HIV status was also illegally
obtained and used.... Petitioner was “railroaded” by North Central Health
District when he filled out blank forms that were filled in after he signed
them and used as evidence by the State against him.
(Petition, Dkt. 3 p. 3.)

MEMORANDUM DECISION AND ORDER - 9

The only Confrontation Clause claim presented in the state courts was on direct
appeal, and the claim was based on whether the district court erred in admitting the
laboratory results of Mr. Mubita’s HIV test without permitting cross-examination of the
lab technicians. (State’s Lodging B-1, pp. 229-30.) That subject is encompassed by Claim
Six, which is not the subject of Respondent's Motion for Partial Summary Dismissal and
which will be heard on the merits later in this proceeding.
Because Petitioner raised no other Confrontation Clause claim based on any other
set of facts in his appeal, Claim Three is procedurally defaulted. To the extent that Claim
Three is based upon state law grounds, such as improper evidentiary rulings, it is not
cognizable in a habeas corpus proceeding. See Lewis v. Jeffers, 497 U.S. 764, 780
(1990)(“Federal habeas corpus relief does not lie for errors of state law.”) To the extent
that Claim Three is based upon the Fourth Amendment, it is encompassed by Claim One
and is precluded by Stone v. Powell, as discussed above.
D.

Discussion of Claim Four

Claim Four is that Petitioner was not permitted to testify at trial. Petitioner raised
this claim in his successive post-conviction petition. (State’s Lodging E-1.) He also raised
it before the Idaho Court of Appeals. (State’s Lodging F-2, p. 2.) However, the Idaho
Court of Appeals determined that the claim should have been raised on direct appeal (if
presented as a claim that the trial court erred) under Idaho Code § 9-4901(b) or in the first
post-conviction petition (if presented as an effective assistance of counsel claim). (State’s
Lodging F-5, pp. 6-8.)
MEMORANDUM DECISION AND ORDER - 10

As a result, the Court of Appeals concluded that the claim was barred in the
successive post-conviction action, because Petitioner could not show that his initial postconviction counsel was ineffective for failing to raise it in the first action. The court
reasoned: “Mubita’s conclusory statement that post-conviction counsel was negligent
does not suffice because Mubita makes no assertion that he requested post-conviction
counsel to raise the issue of Mubita’s right to testify or that post-conviction counsel’s
failure to raise the issue was of no fault of Mubita.” (State’s Lodging F-5, p. 8.)
Respondent argues that, even if the Idaho Court of Appeals also suggested that the
claim had no merit, the Court of Appeals relied upon the procedural bar as an adequate
and independent ground for rejecting this claim. The Court agrees. The Idaho Court of
Appeals’s conclusion leaves no room for doubt that the claim was procedurally barred:
“We conclude Mubita failed to establish a sufficient reason to raise the issue of his right
to testify in a successive petition. Consequently, the issue is forfeited because it was not
brought on direct appeal.” (Id., p. 11.) Therefore, Claim Four is procedurally defaulted.
E.

Discussion of Claim Seven

Claim Seven is that the jury was biased because of media coverage and
Petitioner’s race. (Dkt. 3, p. 6.) Petitioner filed a motion for change of venue, which
contained numerous attachments. (State’s Lodging A-1, pp. 180-270.) The trial court held
a hearing on the motion, and afterward denied the motion without prejudice. (State’s
Lodging A-2, pp. 358-59; A-4, pp. 39-40.)

MEMORANDUM DECISION AND ORDER - 11

Petitioner did not raise this claim before the Idaho Court of Appeals or the Idaho
Supreme Court on direct appeal, post-conviction review, or successive post-conviction
review. Because there is no state court avenue of relief remaining open, the claim is
procedurally defaulted.
F.

Conclusion of Procedural Default Analysis

Claim One is subject to dismissal with prejudice on Stone v. Powell grounds.
Claims Two, Three, Four, and Seven appear subject to dismissal with prejudice on
procedural grounds. Petitioner may proceed to the merits of Claim Five and Six.
Petitioner did not present a cause and prejudice or miscarriage of justice argument
to excuse the default of Claims Two, Three, Four and Seven, but, instead, in his SurReply, he asserted that any type of exhaustion–proper or improper–should serve to open
the procedural gateway to have his claims heard in federal court, which is a
misconception. Petitioner also addressed the merits of his claims in his Response and SurReply, but the merits are not at issue until the procedural questions are resolved. The
Court will provide Petitioner with an opportunity to make a cause and prejudice and/or
miscarriage of justice argument if he wishes to submit a motion and memorandum to
address cause and prejudice or a miscarriage of justice for only the procedurally defaulted
claims (Two, Three, Four, and Seven). The standards of law for these showings are
addressed below.
4.

Cause and Prejudice

MEMORANDUM DECISION AND ORDER - 12

If a petitioner’s claim is procedurally defaulted, a federal district court cannot hear
the merits of the claim unless a petitioner meets one of two exceptions: a showing of
adequate legal cause for the default and prejudice arising from the default, see Coleman v.
Thompson, 501 U.S. 722, 731 (1991), or a showing of actual innocence, which means that
a miscarriage of justice will occur if the claim is not heard in federal court. See Murray v.
Carrier, 477 U.S. 478, 488 (1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982). This “cause
and actual prejudice” test, more often termed simply “cause and prejudice,” was adopted
and clarified as a grounds for excusing procedural default in 1991 in Coleman v.
Thompson. 501 U.S. at 745.
Several cases have clarified whether and how to apply the cause and prejudice test
in various factual circumstances. For example, if a petitioner points to an instance of
ineffective assistance of counsel during direct appeal that prevented the petitioner from
properly exhausting his claims, he cannot rely on that instance unless he has first
exhausted that particular ineffective assistance of counsel claim. If a petitioner has not
MEMORANDUM DECISION AND ORDER - 13

exhausted an ineffective assistance of direct appeal counsel claim, then he cannot rely on
such a claim for “cause” in a “cause and prejudice” argument. See Edwards v. Carpenter,
529 U.S. 446 (2000) (ineffective assistance of direct appeal counsel cannot serve as cause
for the default of another claim unless the ineffective assistance of counsel claim is not
itself procedurally defaulted or cause and prejudice for the default of the ineffective
assistance claim can be shown).
A petitioner does not have a federal constitutional right to effective assistance of
counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule
is that any errors of his counsel during the post-conviction action cannot serve as a basis
for cause to excuse Petitioner’s procedural default of his claims. See Coleman, 501 U.S.
at 752.
The holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), established a limited
exception to the Coleman rule–that inadequate assistance of post-conviction review
(PCR) counsel or lack of counsel “at initial-review collateral review proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.” Id. at 1315.2

2

Martinez applies only if the ineffective assistance of counsel claim is exhausted (no further
avenue of state court relief is available) and procedurally defaulted (an adequate and independent state
procedural ground for the default exists). If the new claim is unexhausted and not procedurally defaulted,
then the petitioner may be able to return to state court to assert the claim under the stay-and-abey
procedure. See Rhines v. Weber, 544 U.S. 269 (2005).
MEMORANDUM DECISION AND ORDER - 14

The Martinez exception applies only to the ineffectiveness of PCR counsel in the
initial post-conviction review proceeding. It “does not extend to attorney errors in any
proceeding beyond the first occasion the State allows a prisoner to raise a claim of
ineffective assistance at trial.” 132 S.Ct. at 1320. Rather, Martinez, is singularly
concerned that, if ineffective assistance of trial counsel (IATC) claims were not brought
in the collateral proceeding which provided the first occasion to raise such claims, the
effect was that the claims could not be brought at all. See 132 S.Ct. at 1316. Therefore, a
petitioner may not use as cause attorney error that occurred in “appeals from
initial-review collateral proceedings, second or successive collateral proceedings, and
petitions for discretionary review in a State’s appellate courts.” 132 S.Ct. at 3120.
In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the United States Supreme Court
described the Martinez test as consisting of four requirements or prongs:
We consequently read Coleman as containing an exception, allowing
a federal habeas court to find “cause,” thereby excusing a defendant’s
procedural default, where (1) the claim of “ineffective assistance of trial
counsel” was a “substantial” claim; (2) the “cause” consisted of there being
“no counsel” or only “ineffective” counsel during the state collateral review
proceeding; (3) the state collateral review proceeding was the “initial”
review proceeding in respect to the “ineffective-assistance-of-trial-counsel
claim”; and (4) state law requires that an “ineffective assistance of trial
counsel [claim] ... be raised in an initial-review collateral proceeding.”
133 S.Ct. at 1918 (citing Martinez, 132 S.Ct. at 1318–19, 1320–21).
Thus, as a necessary first prong for the Martinez exception to apply, a petitioner
must bring forward some facts demonstrating that his ineffective assistance of trial
counsel claim is substantial. The United States Supreme Court has defined “substantial”
MEMORANDUM DECISION AND ORDER - 15

as a claim that “has some merit.” Martinez, 132 S.Ct. at 1318 (comparing the standard for
certificates of appealability from Miller–El v. Cockrell, 537 U.S. 322 (2003)). Stated
inversely, a claim is “insubstantial” if “it does not have any merit or . . . is wholly without
factual support.” Id. at 1319.
Determining whether a claim is substantial requires a federal district court to
examine both prongs of an IATC claim under Strickland v. Washington, 466 U.S. 668
(1984)–deficient performance and prejudice. As to deficient performance, Strickland
emphasizes that there is a strong presumption that a trial attorney performed within the
wide range of professional competence; the attorney’s performance will be deemed
deficient only if it fell below an objective standard of reasonableness measured under
prevailing professional norms. Strickland, 466 U.S. at 689-90.
Prejudice under Strickland means that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable probability is one “sufficient to undermine confidence
in the outcome.” Id.
These standards from Strickland for determining deficient performance and
prejudice, are, of course, the standards for an eventual review of the merits of the IATC
claim. The first Martinez prong is not the same as a merits review, but, as the Martinez
Court explained, it is more akin to a preliminary review of a Strickland claim for purposes
of determining whether a certificate of appealability should issue. See Martinez, 132 S.Ct.
at 1318-19 (comparing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Therefore, a court
MEMORANDUM DECISION AND ORDER - 16

may conclude that a claim is substantial when a petitioner has shown that “resolution” of
the merits of the Strickland claim would be “debatable among jurists of reason,” or that
the issues presented are “adequate to deserve encouragement to proceed further.” MillerEl, 537 U.S. at 336 (internal citation and punctuation omitted). Thus, the first prong of
Martinez requires the district court to review but not determine whether trial counsel’s
acts or omissions resulted in deficient performance and in a reasonable probability of
prejudice, and to determine only whether resolution of the merits of the claim would be
debatable among jurists of reason and whether the issues are deserving enough to
encourage further pursuit of them.
A second necessary prong of Martinez is a showing that petitioner had no counsel
on initial PCR review, or that PCR counsel was “ineffective under the standards of
Strickland.” 132 S.Ct. at 1318; see Trevino, 133 S.Ct. at 1918. “Ineffectiveness” is a term
defined by Strickland as deficient performance and a reasonable probability of prejudice
caused by the deficient performance. 466 U.S. at 694, 700.
As to deficient performance, not just any error or omission of PCR counsel will be
deemed “deficient performance” that will satisfy Martinez; if the PCR “attorney in the
initial-review collateral proceeding did not perform below constitutional standards,” the
PCR attorney’s performance does not constitute “cause.” 132 S.Ct. at 1319. The
Strickland standards for analyzing deficient performance set forth above apply with equal
force to PCR counsel.

MEMORANDUM DECISION AND ORDER - 17

As to prejudice, in Detrich v. Ryan, – F.3d –, 2013 WL 4712729 (9th Cir. 2013)
(en banc) (plurality opinion), a plurality of judges concluded: “A prisoner need not show
actual prejudice resulting from his PCR counsel's deficient performance, over and above
his required showing that the trial-counsel IAC claim be ‘substantial’ under the first
Martinez requirement.” Id. at *6. That set of judges reasoned:
If a prisoner who had PCR counsel were required to show prejudice,
in the ordinary Strickland sense, resulting from his PCR counsel’s deficient
performance in order to satisfy the second Martinez requirement, the
prisoner would have to show, as a condition for excusing his procedural
default of a claim, that he would succeed on the merits of that same claim.
But if a prisoner were required to show that the defaulted trial-counsel IAC
claims fully satisfied Strickland in order to satisfy the second Martinez
requirement, this would render superfluous the first Martinez requirement
of showing that the underlying Strickland claims were “substantial”—that
is, that they merely had “some merit.” See Martinez, 132 S.Ct. at 1318–19.
Id.

MEMORANDUM DECISION AND ORDER - 18

B.

Analysis of Applicability of Martinez - Claim Two

Because the Martinez exception applies only to ineffective assistance of trial
claims, the only defaulted claim for which it might apply is Claim Two, if it is liberally
construed as a claim that trial counsel was ineffective for failing to obtain an interpreter
(as the Idaho Court of Appeals construed it). After a thorough review of the record, the
Court concludes that Petitioner is unable to show that Claim Two is substantial or that his
PCR counsel performed deficiently.
The state district court rejected Petitioner’s attempt to present an IATC claim
regarding failure to obtain an interpreter in Petitioner’s successive PCR action because
Petitioner failed to show that his PCR counsel was ineffective in the first proceeding for
not bringing the claim. Instead, the state district court pointed out the fact that PCR
counsel had used the same facts to bring a claim that the court had failed to provide an
interpreter for Petitioner at trial. (State’s Lodging C-1, p. 181). That claim was rejected on
the merits in the first post-conviction action based upon a clear record that Petitioner did
in fact speak and understand English at the time of trial; therefore, an IATC claim based
on those same facts also would have been deemed without merit.
Accordingly, PCR counsel did not perform deficiently when he did not bring a
companion ineffective assistance of trial counsel claim,3 nor did Petitioner suffer any

3

The Court need not resolve whether the state court’s determination in the successive
PCR petition that initial PCR counsel was not ineffective has a res judicata effect here, because
Petitioner’s claim is clearly without merit.
MEMORANDUM DECISION AND ORDER - 19

prejudice. Therefore, Petitioner cannot meet the Martinez first prong (substantiality of the
claim) or the second prong (deficient performance).
By the same token, even if Petitioner could provide some basis for “cause” under
Coleman v. Thompson other than the ineffective assistance of post-conviction counsel,
Petitioner still cannot show prejudice to excuse the default of Claim Two, because the
state court record clearly reflects that Petitioner did not need an interpreter because he
spoke and understood English at the time of trial.
Claims Four or Seven of the Petition for Writ of Habeas Corpus are not framed as
ineffective assistance of trial counsel claims, and, thus, Martinez is inapplicable to them.
Petitioner is free to assert another factual basis to serve as “cause” in the Coleman v.
Thompson “cause and prejudice” exception to excuse the default of these claims. In other
words, as grounds for “cause,” Petitioner should very simply state the factual reasons
why he did not bring these claims on appeal, focusing on a showing that some
objective factor external to his defense prevented him from bringing the claims on appeal.
See Murray v. Carrier, 477 U.S. at 488.
6.

Standard of Law for Showing Actual Innocence
If a petitioner cannot show cause and prejudice for his procedural default, he can

still bring the claim in a federal habeas petition if he demonstrates that failure to consider
the claim will result in a “fundamental miscarriage of justice,” which means that a
constitutional violation has probably resulted in the conviction of someone who is

MEMORANDUM DECISION AND ORDER - 20

actually innocent. Murray v. Carrier, 477 U.S. at 496. To satisfy this standard, a
petitioner must make a colorable showing of factual innocence. Herrera v. Collins, 506
U.S. 390, 404 (1993). If a petitioner brings forward new evidence not presented at trial
which tends to show his innocence, the Court must then determine whether, “in light of
the new evidence, no juror, acting reasonably, would have voted to find [the defendant]
guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. at 329. However, “actual
innocence” requires that one make a colorable showing that he is factually, not merely
legally, innocent of the charges. Herrera v. Collins, 506 U.S. 390, 404 (1993).
Types of evidence “which may establish factual innocence include credible
declarations of guilt by another, see Sawyer v. Whitley, 505 U.S. 333, 340 (1992),
trustworthy eyewitness accounts, see Schlup, 513 U.S. at 331, and exculpatory scientific
evidence.” Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir. 1996).
If Petitioner chooses to make an actual innocence argument, he must bring forward
new evidence not presented at trial, and he must not simply argue that the evidence
presented at trial was misconstrued, erroneous, or inadmissible.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 29) is
GRANTED in part: Claim One is dismissed with prejudice, and any state
law issues or Fourth Amendment issues raised in Claim Three are dismissed

MEMORANDUM DECISION AND ORDER - 21

with prejudice. Petitioner shall not submit any further briefing on these
claims or issues.
2.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 29) is
CONDITIONALLY GRANTED in part: Claims Two, Four and Seven will
be dismissed with prejudice unless Petitioner can show that the cause and
prejudice or miscarriage of justice exceptions should be applied to permit
the Court to hear his claims. Within the next 30 days, Petitioner may file a
motion and memorandum asking the Court to apply one or both exceptions
to the defaulted claims. The page limit for this combined filing is 15 pages.

4.

Petitioner’s Motion to Show Cause Why Respondent Has Not Filed an
Answer (Dkt. 31) is DENIED. No answer is required until after the Motion
for Partial Summary Dismissal has been decided, pursuant to the Court’s
Order of October 4, 2012, which authorized an “answer” or “pre-answer
motion.” (Dkt. 25, p. 2.)

5.

Respondent shall file an answer to the remaining claims within 90 days
after entry of this Order. The answer should also contain a brief setting forth
the factual and legal basis of grounds for dismissal and/or denial of the
remaining claim. Petitioner shall file a reply (formerly called a traverse),
containing a brief rebutting Respondent’s answer and brief, which shall be
filed and served within 30 days after service of the answer. Respondent has

MEMORANDUM DECISION AND ORDER - 22

the option of filing a sur-reply within 14 days after service of the reply. At
that point, the case shall be deemed ready for a final decision.
6.

No party shall file supplemental responses, replies, affidavits or other
documents not expressly authorized by the Local Rules without first
obtaining leave of Court.

7.

No discovery shall be undertaken in this matter unless a party obtains prior
leave of Court, pursuant to Rule 6 of the Rules Governing Section 2254
Cases.

DATED: September 28, 2013

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

MEMORANDUM DECISION AND ORDER - 23