Jones v. Valdez et al
Filing
56
MEMORANDUM DECISION AND ORDER- Respondent's Motion for Summary Judgment (Dkt. 45 ) is Respondent's Motion for Leave to File Excess Pages (Dkt. 46 ) isGRANTED. Petitioner's First and Second Motions for Enlargement of Time to File Res ponse to Motion for Summary Judgment (Dkt. 49, 51) are GRANTED. Docket Nos. 54-8 through 54-28, which were mistakenly filed in this case, are STRICKEN from the record. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT RICHARD JONES,
Case No. 1:09-cv-00132-MHW
Petitioner,
MEMORANDUM DECISION
AND ORDER
v.
PHILLIP VALDEZ, Warden, Idaho
Correctional Institution; and IDAHO
ATTORNEY GENERAL,
Respondents.
Pending before the Court in this habeas corpus action is Respondent Philip
Valdez’s Motion for Summary Judgment. (Dkt. 11.) The Motion is now fully briefed. The
parties have consented to the jurisdiction of a United States Magistrate Judge to enter
final orders in this case. (Dkt. 7 & 13.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having fully 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, in the interest of avoiding delay, the Court will decide this matter on the
written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d).
MEMORANDUM DECISION AND ORDER - 1
Accordingly, the Court enters the following Order granting Respondents’ Motion for
Summary Judgment.
BACKGROUND
Troy Vance (Vance) was murdered in his home in Canyon County, Idaho, in 1979.
In 1980, the State brought charges against Petitioner Robert Jones (Petitioner) and Jose
Alfonso Martinez (Martinez). In 1982, the charges were dismissed. (State’s Lodging F11, p. 1.)
In 1989, Petitioner’s former wife, Sherry Wystrach (Wystrach) came forward with
new evidence. As a result, a grand jury issued an indictment against Jones, Martinez,
Donna Cordell (Cordell), and Rebecca Spalding (Spalding) for the Vance murder.
Third Judicial District Judge Jim A. Doolittle presided over Petitioner’s trial, and
Canyon County Prosecutor Richard Harris prosecuted the case on behalf of the state of
Idaho. At the trial, the testimony of Wystrach “was integral to the prosecution’s case,
providing first-hand knowledge of the conspiracy, its subject matter and payoffs.” (State’s
Lodging F-11, p. 1.) In fact, Wystrach’s “testimony was particularly important because
there was no forensic evidence linking [Petitioner] to the crime.” (Id.) At trial, defense
counsel impeached Wystrach by introducing evidence, “both extrinsically and via crossexamination, of Wystrach’s prior alcohol and drug abuse, her failed relationships, her
vindictiveness, her propensity to lie and become confused or forgetful, and the immunity
from prosecution that was granted her by the State.” (Id., p. 2.)
MEMORANDUM DECISION AND ORDER - 2
The prosecution also relied on convicted felon Charles Tisdale (Tisdale) to
corroborate Wystrach’s testimony. Tisdale testified at trial that, when he and Petitioner
were inmate legal assistants, Petitioner confessed that he was involved in Vance’s
murder. (State’s Lodging A-6, pp. 764-70.) At the time of the trial, Tisdale was on parole
from the state of Idaho, but he was living in Utah. He was facing new federal criminal
charges, as well as an Idaho parole violation stemming from the federal charges.
Petitioner’s counsel sought to impeach Tisdale by showing that he had received favorable
treatment from the government in exchange for his agreement to testify for the
prosecution at Petitioner’s trial.
A jury found Petitioner guilty of first degree murder. The State sought the death
penalty. After a two-part sentencing hearing between April and June of 1991, the judge
sentenced Petitioner to a fixed life term of imprisonment. Judgment was entered on June
24, 1991.
Counsel filed a motion for a new trial for Petitioner, which was denied by the state
district court. No appeal was taken. (State’s Lodging A-2, pp. 587-92 & 601-04.)
Also through counsel, Petitioner pursued a direct appeal challenging his conviction
and sentence, where he did not obtain relief. (State’s Lodgings B-1 through B-12.) While
his appeal was pending, Petitioner’s counsel filed a second motion for a new trial. (State’s
Lodging C-1, pp. 21-31.) It was denied, and an appeal was taken. (State’s Lodging D-1.)
The denial of the motion was affirmed on appeal. (State’s Lodging D-7.)
MEMORANDUM DECISION AND ORDER - 3
Petitioner later filed a state pro se post-conviction relief application. He was
appointed counsel, and his counsel filed an amended post-conviction application on
Petitioner’s behalf. The State filed a motion to dismiss. Third Judicial District Judge
Sergio A. Gutierrez1 issued an order conditionally dismissing the post-conviction relief
application on April 29, 1999. In response, Petitioner’s counsel filed a “bifurcated
response and objection to the State’s motion to dismiss and the court’s notice of intent to
dismiss summarily” on June 11, 1999. Petitioner’s counsel simultaneously filed a motion
to amend and a second amended application. (State’s Lodgings E-1 & E-2.)
District Judge Gutierrez denied the motion to amend on May 29, 2001. (State’s
Lodging E-2, pp. 272-81.) However, no action was taken on Petitioner’s bifurcated
response and objection for over three years, and the case was closed for inactivity. On
December 30, 2004, Petitioner filed a motion to re-open the case, which was granted.
Third Judicial District Judge Juneal C. Kerrick then issued a decision dismissing the case.
(State’s Lodging E-2, pp. 326-33.) The dismissal and denial were affirmed on appeal by
the Idaho Court of Appeals. Petitioner’s petition for review with the Idaho Supreme Court
was denied. (State’s Lodgings F-1 through F-18.)
Petitioner subsequently filed this federal habeas corpus action, and Respondent
filed a Motion for Partial Summary Dismissal. As a result, the following claims were
dismissed: Claim A(3) (Wystrach was intoxicated during trial), A(4) (prosecutorial
1
Judge Gutierrez was later appointed to the Idaho Court of Appeals, but had no role in
determining Petitioner’s appellate cases.
MEMORANDUM DECISION AND ORDER - 4
misconduct as relating to Tisdale), A(7) (prosecutor failed to correct false evidence at
sentencing to obtain death penalty), Claim C (improper settlement of record on postconviction appeal); Claim D (marital privilege), Claim E(1), (2), (3) and (4) (Petitioner’s
polygraph results), and Claim E(7) (PSI report).
Respondent then filed a Motion for Summary Judgment on the remaining claims.
(Dkt. 45.) Petitioner has filed a Response and Objections, with exhibits. (Dkt. 54.) The
Court notes that, on July 7, 2011, the Clerk of Court mistakenly filed documents
pertaining to a different litigant and a different case (Docket Nos. 54-8 through 54-28) in
this case, and those items will be stricken from the record. To clarify, Docket Nos. 54,
and 54-1 through 54-7 belong in this case and have been considered, and Docket Nos. 548 through 54-28 belong to a different case, have not been considered, and have been
sealed, because they cannot be “removed” from the electronic docket. The Court also
takes notice that Attorney James D. Huegli has filed a notice of appearance of co-counsel
for Petitioner, appearing together with Petitioner. (Dkt. 55.)
RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
1.
Standard of Law Governing Summary Judgment
Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment only 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. § 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective
MEMORANDUM DECISION AND ORDER - 5
Death Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances
where the state-court adjudication of the merits:2
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.
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 are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrived at a result different from
the Court’s precedent.” Williams v. Taylor, 529 U.S. 362, 404-06 (2000).
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.” Williams, 529 U.S.
at 413. A federal court cannot grant relief simply because it concludes in its
2
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 - 6
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).
In Harrington v. Richter, 131 S.Ct. 770 (2011), the United States Supreme
Court reiterated that a federal court may not simply re-determine a claim on its
merits after the highest state court has done so, just because the federal court
would have made a different decision. Rather, the review is necessarily deferential.
The 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 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. (internal citation omitted).
When a party contests the state court’s factual determinations, the court
must undertake a § 2254(d)(2) analysis. To be eligible for relief 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
MEMORANDUM DECISION AND ORDER - 7
in the State court proceeding.” Id. The United States Supreme Court has
admonished that a “state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the
first instance.” Wood v. Allen, 130 S.Ct. 841, 849 (2010) (citations omitted).
The United States Supreme Court has yet to decide “whether, in order to
satisfy § 2254(d)(2), a petitioner must establish only that the state-court factual
determination on which the decision was based was ‘unreasonable,’ or whether §
2254(e)(1) additionally requires a petitioner to rebut a presumption that the
determination was correct with clear and convincing evidence.” Wood v. Allen,
130 S.Ct. 841, 848 (2010). Rather, that Court first applies the “unreasonable” test
of § 2254(d)(2), and, if it does not conclude that the state court decision is an
unreasonable determination of the facts based on the state court record, it does not
reach the question of whether the higher standard of § 22254(e)(1) applies. See
Wood, 1130 S.Ct. at 849. The United States Court of Appeals for the Ninth Circuit
Court, on the other hand, has resolved the conflict presented by these two
sections–it applies only § 2254(d)(2) if the review is based upon the same factual
record that was before the state courts (“intrinsic review”), while it applies §
2254(e)(1) to factual challenges that involve evidence presented for the first time
in federal court (“extrinsic evidence”). Here, the parties do not seek to introduce
new evidence in federal court, but are relying on the state court record.
MEMORANDUM DECISION AND ORDER - 8
If the federal court concludes that a state court adjudication was based on an
unreasonable determination of fact, then the federal court must “consider the
petitioner’s related claim de novo” to determine whether the petitioner has shown
that relief under § 2254(a) is warranted. Maxwell v. Roe, 628 F.3d 486, 494-95
(9th Cir. 2010). See also Jones v. Walker, 540 F.3d 1277 (11th Cir. 2008) (en
banc).3
2.
Discussion of Petitioner’s Request for an Evidentiary Hearing
Petitioner asserts that he is entitled to an evidentiary hearing in this action
on the merits of his claims. The United States Supreme Court has recently clarified
the law regarding when habeas corpus petitioners can bring additional evidence
into federal court. Particularly, in Cullen v. Pinholster, 131 S.Ct. 1388, 1400
(2011), the Court explained: “If a claim has been adjudicated on the merits by a
state court, a federal habeas petitioner must overcome the limitation of §
2254(d)(1) on the record that was before that state court.” Id. at 1400 (footnote
3
The Jones Court reasoned:
[W]hen a state court’s adjudication of a habeas claim results in a decision that is based on
an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding, this Court is not bound to defer to unreasonably-found facts or to the
legal conclusions that flow from them.... Because the Georgia Supreme Court
unreasonably determined the facts relevant to Jones’ Sixth Amendment claim, we do not
owe the state court’s findings deference under AEDPA. We therefore apply the
pre-AEDPA de novo standard of review to Jones’ habeas claims. ”
540 F.3d at 1288 n.5 (quotations, citations, and alterations omitted).
MEMORANDUM DECISION AND ORDER - 9
omitted, emphasis added.); see also Holland v. Jackson, 542 U.S. 649, 652 (2004)
(“[W]e have made clear that whether a state courts decision was unreasonable
must be assessed in light of the record the court had before it.”) (citations omitted).
Therefore, Petitioner’s request is denied because it is without a proper basis in the
law.
3.
Discussion of Merits of Claims
A.
Abandoned Claims
In his Response to the Motion for Summary Judgment, Petitioner abandons
two of his claims: A(1), that his due process rights were violated by the
prosecution when it presented inadmissible evidence to the grand jury, and B(3),
that counsel was ineffective for failing to employ a forensic expert to examine the
murder weapon. (Dkt. 54, p. 2.) Petitioner clarifies that he still wishes to argue that
the prosecution’s cumulative misconduct regarding the grand jury (the subject of
Claim A(1)) should be considered as support for Claim A(5) and A(6), but not as a
separate claim. Petitioner also states that he “sets aside further argument” on
Claims B(2) and B(4). (Id.) It is not clear that Petitioner has abandoned Claims
B(2) and B(4), and, thus, the Court will address them based on the briefing and
record before the Court.
B.
Claim A(2)
In claim A(2), Jones contends he was denied due process in violation of
Brady v. Maryland, 373 U.S. 83 (1963), based upon the state suppressing and
MEMORANDUM DECISION AND ORDER - 10
destroying evidence that Wystrach “was cultivating and using marijuana during
and subsequent to the trial.” (Dkt. 19, p.5.)
It is well established that the prosecution has a duty under the due process
clause of the Fourteenth Amendment to disclose exculpatory evidence to the
defense that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83
(1963); United States v. Bagley, 473 U.S. 667, 676 (1985). A meritorious Brady
claim contains three essential components: (1) the evidence must be favorable to
the accused, either because it is exculpatory or impeaching; (2) the prosecution
must have withheld the evidence, either intentionally or inadvertently; and (3) the
evidence must be material to guilt or punishment. Strickler v. Greene, 527 U.S.
263, 281-82 (1999).
Suppressed evidence is material under Brady, and its non-disclosure is
prejudicial, when there is a reasonable probability that had the evidence been
disclosed, the result of the proceeding would have been different. Bagley, 473 U.S.
at 682; Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). In determining
“materiality,” the court must assess the weight and force of the withheld evidence
collectively, rather than item by item. Kyles, 514 U.S. at 433-34.
The Court first addresses Petitioner’s contention that, although he is not
entitled to relief on his claim based on prosecutorial misconduct during grand jury
proceedings, he can still “cumulate” that conduct with other alleged prosecutorial
misconduct to prove another claim: that the prosecutor did not disclose evidence
MEMORANDUM DECISION AND ORDER - 11
about Wystrach’s potential current drug use. Petitioner misunderstands the law,
which is that, in assessing materiality, the court must assess the weight and force
of the withheld evidence collectively, rather than item by item. Kyles, 514 U.S. at
436-37. The prosecutor’s alleged misdeeds before the grand jury are not a factor in
the withheld evidence at issue in Claim A(2); rather, the Court is to assess only the
evidence withheld that pertained to Wystrach’s cultivation and use of marijuana
during and subsequent to the trial.
At the Motion to Dismiss stage of this case, this Court concluded that
Petitioner arguably raised this issue as part of Claim XIX on direct appeal. (State’s
Lodging B-1, pp. 68 & 71.) The Idaho Supreme Court rejected all claims in
Petitioner’s entire appeal, but did not address the claim in particular. It is important
to note that, the second time Petitioner attempted to present this issue on appeal
(during post-conviction review), the Idaho Court of Appeals determined that he
had not properly presented it to state district court. (State’s Lodging F-11, p. 16.)
That court went on to determine that, “[e]ven if these claims had been properly
presented, they would not warrant relief.” (Id.) Therefore, what the Court can
consider is the evidence was placed before the Idaho Supreme Court on direct
appeal, not the additional evidence gathered by Petitioner on post-conviction
review. Accordingly, the Court will first address the claim as it was presented on
direct appeal, and then as it was presented on post-conviction appeal.
MEMORANDUM DECISION AND ORDER - 12
A time line of events is helpful to understanding Petitioner’s claim that the
prosecutor violated Brady by failing to disclose evidence of Wystrach’s drug use:
December 5, 1990 At Petitioner’s trial, Sherry Wystrach testified that she began
having an affair with Petitioner when she was 13 and he was
about 30 years old. (State’s Lodging A-5, p. 521-22.) At the
time, she and her older sister were involved in selling
marijuana with Petitioner. (Id., pp. 520-21) After living with
Petitioner for several years, Wystrach married Petitioner when
she was 16. (Id., pp. 522-23.) Wystrach testified that
Petitioner was employed by a company until a few months
after their marriage, and, when he was fired, he never worked
at a job receiving a salary or wage again. (Id., p. 524)
Wystrach testified that Petitioner became involved with his
co-defendant, Jose Alfonso Martinez, in a business buying
and selling drugs. (Id., p. 525) Wystrach testified that she,
Petitioner, and a woman involved in the drug business named
Donna, met and discussed that Troy (the murder victim) was
physically abusing Donna’s sister, that Troy should be done
away with, and that there was a lot of money to be made by
that being done.(Id., pp. 537-389.)
Wystrach further testified that Donna was to give Petitioner
half of the money up front and half after the job was done,
and that Donna, in fact, handed Wystrach the first instalment
of the beginning payment of $2,000 in cash in an envelope,
which she handed to Petitioner. (Id., pp. 541-43.) Other
similar payments followed before the murder. (Id., pp. 54445.) Wystrach testified that she and Petitioner drove out to
Troy Vance’s house, where Petitioner stopped, got out, and
used binoculars to look through the windows of Vance’s
home. (Id., pp. 546-47.) She further testified that Martinez
and Petitioner cleaned guns, went out at dusk, made other
preparations for several days before the murder, and also
prepared the guns on the night of the murder. (Id., pp. 55052.) She also testified that the final payment was eventually
made. (Id., p. 564.)
April 5, 1991:
Wystrach testified at the sentencing hearing. (State’s Lodging
A-12, pp. 188-220.) She testified that in 1989 when she was
MEMORANDUM DECISION AND ORDER - 13
living with Petitioner, he was involved in a methamphetamine
business. She testified that she and Petitioner used drugs
together, and that she had tried to be more careful with drugs
after that, because she knew she had a propensity for getting
into trouble with drugs. (Id., pp. 190-94.) She also testified
that Petitioner worked transporting stolen guns for sale. (Id.,
pp. 200-01.) She testified that Petitioner had helped Martinez
murder someone in Las Vegas before the Troy Vance murder.
(Id., pp. 202-03.)
At the end of her testimony, Wystrach volunteered the
following:
Wystrach:
Your Honor, may I also state something for the
record?
The Court:
Yes.
Wystrach:
I am no longer under any influence of any drugs
or alcohol. I will be completely clean from
alcohol as of July 1st for one year. Prior to any
prescription drugs for almost two years now
[sic]. So I am no longer under the influence of
any substances. I just wanted that known for the
record. And I’m willing to subject to tests.
(Id., pp. 215-16.) Afterward, the judge continues the
remainder of the sentencing hearing to June 24, 1991.
April 27, 1991
Canyon County Prosecutor’s Investigator Dick Appleton went
to Oregon to interview witnesses. On this date, Wystrach
showed Appleton a room in their home where she said her
boyfriend, Norm O’Driscoll, was cultivating four large
marijuana plants. Appleton took Wystrach out to dinner and
then returned to her home and pulled up the plants, later
destroying them before his return flight to Idaho. (Dkt. 54-5,
pp. 6-7.)
June 7, 1991
Prosecutor Richard Harris discloses to Petitioner’s counsel
that Appleton had found marijuana growing in Wystrach’s
home and destroyed the plants. Harris also disclosed that,
MEMORANDUM DECISION AND ORDER - 14
prior to this episode, he had notified Wystrach that aid with
her rent was to be terminated. He further disclosed that
Wystrach and O’Driscoll were no longer together. (Dkt. 54-5,
pp. 1-2.)
June 14, 1991
Defense made a motion to vacate the sentencing hearing
based on information about the marijuana plants. (State’s
Lodging A-12, p. 221.)
June 18, 1991
At the hearing on the motion to vacate the sentencing hearing,
Petitioner argued that Wystrach was the only witness
presented by the State at the aggravation hearing to request
the death sentence, and they would like additional time to
conduct discovery about the disclosures made by the State
regarding the marijuana plants. The prosecution argued that
the information had been disclosed, that it was not relevant to
the testimony of Wystrach at trial, and that it was irrelevant to
sentencing.
The sentencing court agreed with the prosecution:
The Court:
What – what I think we are really talking about
here is, what if any possible illegal activities of
Sherry Wystrach in another jurisdiction in
growing, or possessing, or being around in any
way marijuana. How is that relevant to the
remaining issues in this case, State versus
Robert Jones?
As far as I’m concerned, it’s totally irrelevant.
The issues remaining for – in the case of State
Mr. – versus Mr. Jones are what factors can be
adduce that bear upon mitigation of punishment.
What does he have to offer as mitigating
factors. That’s the only thing left in this case as
far as I’m concerned.
And Sherry Wystrach is not on trial, and I’m not
going to delay his sentence so that you can
MEMORANDUM DECISION AND ORDER - 15
purport to put her on trial cause it’s – it’s totally
irrelevant.
As a matter of fact, I can tell you right now that
what little testimony that she gave at the socalled sentencing hearing wouldn’t make a
pinch of salt as far as difference to me because
what I look for in the question of whether the –
the aggravating factors are is the evidence I
heard at trial.
Her casual opinions, or offhand views are not
significant to me at all.
(A-12, pp. 226-27.)
June 24, 1991
Petition for writ of prohibition and ex parte application for
stay of sentencing is denied by Idaho Supreme Court.
The first Brady factor is whether the evidence is favorable to the accused,
either because it is exculpatory or impeaching, and, here, certainly the evidence is
favorable because it is impeaching. The second factor is whether the prosecution
withheld the evidence, either intentionally or inadvertently. Nothing in the record
before the Idaho Supreme Court on direct review suggests that the prosecution
withheld the evidence. In fact, the prosecution disclosed the evidence within a few
months of discovering it. The prosecution did not have the evidence in hand when
Wystrach testified at trial and at the first half of the sentencing hearing.
Nor was the evidence material, given that (1) Wystrach’s testimony was
itself only marginally relevant to sentencing, (2) Wystrach was not to be recalled
for the second sentencing hearing, and (3) the Court found her testimony
MEMORANDUM DECISION AND ORDER - 16
insignificant. Accordingly, based on the record before the Idaho Supreme Court on
direct appeal, the claim fails under § 2254(d)(1): it is abundantly clear that the
impeachment evidence was disclosed and that Wystrach’s sentencing testimony
was of little value. Because the Idaho Supreme Court’s decision was not contrary
to, or an unreasonable application of, Brady and its progeny, habeas corpus relief
is unwarranted.
The Idaho Supreme Court did not have before it the Norm O’Driscoll
Affidavit, which avers that (1) Wystrach had continuous problems with drugs and
alcohol, and (2) police officers knew in October 1989 that she had taken some of
his prescription pain medication and appeared intoxicated at a polygraph
examination. As noted above, this “expanded version” of the Brady claim was
rejected on procedural grounds by the Idaho Court of Appeals on post-conviction
appellate review. However, even with the O’Driscoll Affidavit, the claim does not
warrant habeas corpus relief, as the Court will now explain.
After noting that “[e]ven if these claims had been correctly presented, they
would not warrant relief,” the Idaho Court of Appeals explained:
While this information that Wystrach was under the influence
of drugs when she appeared for a polygraph examination was
inconsistent with the trial testimony, it does not meet the Brady
standard for materiality because there is no reasonable probability
that it would have altered the result of Jones’ trial. It moves the date
of Wystrach’s most recent intoxication from her claimed date of
August 1989 to a date two months later, October 1989, which was
still more than a year prior to Jones’ trial. Any impeachment value
would have been negligible.
MEMORANDUM DECISION AND ORDER - 17
(State’s Lodging F-11, at 17.)
The Court of Appeals’s reasoning makes abundant sense. It is quite clear
from Wystrach’s own testimony that she had a longstanding substance abuse
problem. (Dkts. A-5, A-12.) It is a matter of common knowledge that addicts often
relapse, going back and forth between substance abuse and sobriety. Having the
added information about Wystrach’s abuse would not have made a difference to
the jury, who, on the record before it, already had to weigh her substance abuse
history and her personal problems against her testimony on the criminal charges
against Petitioner.
The lack of materiality is clear, and Petitioner’s claim fails under Brady,
whether one looks at the dismissal of this claim on direct appeal or at the Idaho
Court of Appeals’s alternative decision on post-conviction review with the
additional information from O’Driscoll. Therefore, federal habeas corpus relief is
unwarranted.
C.
Claim A(5) & A(6)
Claims A(5) and A(6) are based upon three statements in the prosecutor’s
closing arguments regarding Charles Tisdale. Jones contends he was denied due
process because the prosecutor (1) elicited false testimony from Tisdale on direct
examination; (2) relied on the Tisdale testimony in closing argument to corroborate
Wystrach’s testimony; and (3) lied to defense counsel regarding rewards for
Tisdale’s testimony. (Dkt. 19, pp. 6-7.)
MEMORANDUM DECISION AND ORDER - 18
Defendants argue that Claims A(5) and A(6) are subject to dismissal
because they are procedurally defaulted. The Court agrees. On post-conviction
review, Petitioner’s counsel submitted both a first amended post-conviction
application (State’s Lodging E-1, pp. 102-26), and a second amended postconviction application (State’s Lodging E-2, pp. 218-42.) Any claims similar to
Claims A(5) and A(6) were presented only as ineffective assistance of counsel
claims. Therefore, under the reasoning set forth in the Court’s earlier
Memorandum Decision and Order on Respondent’s Motion for Summary
Dismissal (Dkt. 38), the Court concludes that Claims A(5) and A(6) are
procedurally defaulted. Also, as that Order explains, “cause” for the default is not
present, because Petitioner’s counsel twice strategically decided which claims to
present, and a prosecutorial misconduct claim regarding Tisdale was not among
those. Therefore, Claims A(5) and A(6) are subject to dismissal with prejudice.
D.
Claim B(1)
Claim B(1) is that trial counsel failed to properly investigate Charles
Tisdale which allowed the “elicitation and subornment of Tisdale’s perjured
testimony to remain hidden from the jury.” (Dkt. 19, pp.7-8.) This claims centers
on whether Tisdale received consideration from the government for testifying
against Petitioner.
MEMORANDUM DECISION AND ORDER - 19
The clearly-established law governing a claim of ineffective assistance of
counsel is found in Strickland v. Washington, 466 U.S. 668 (1984). There, the
United States Supreme Court determined that, to succeed on an ineffective
assistance claim, a petitioner must show that (1) counsel’s performance was
deficient in that it fell below an objective standard of reasonableness, and (2) the
petitioner was prejudiced by the deficient performance. Id. at 684.
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 Strickland Court outlined how to use the factors of deficient
performance and prejudice to assess a claim that counsel failed to investigate a
defendant’s case:
These standards require no special amplification in order to define
counsel’s duty to investigate, the duty at issue in this case. As the
Court of Appeals concluded, strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for
MEMORANDUM DECISION AND ORDER - 20
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.
466 U.S. at 690-91.
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.
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.
The foregoing standard, giving deference to counsel’s decisionmaking, is
the de novo standard of review. Another layer of deference–to the state court
decision–is afforded on federal habeas corpus review. In giving guidance to district
courts reviewing Strickland claims on habeas corpus review, the United States
Supreme Court explained:
The pivotal question is whether the state court’s application of
the Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be
no different than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is a necessary
premise that the two questions are different. For purposes of §
2254(d)(1), “an unreasonable application of federal law is different
from an incorrect application of federal law.” Williams, supra, at
MEMORANDUM DECISION AND ORDER - 21
410, 120 S.Ct. 1495. A state court must be granted a deference and
latitude that are not in operation when the case involves review
under the Strickland standard itself.
Richter, 131 S.Ct. at 785.
The facts before the Idaho Court of Appeals were these. In 1989, convicted
felon Charles Tisdale was on parole from Idaho, but had permission from the
Idaho Commission of Pardons and Parole to live in Utah. Sometime prior to July
15, 1989, Tisdale was charged with several new federal crimes, including illegal
transfer of firearms. On July 15, 1989, Tisdale was charged with an Idaho parole
violation, illegally possessing a firearm, and he was imprisoned in Utah. (Dkt. 546, p. 7.) Tisdale was incarcerated for 220 days while awaiting disposition of the
federal and state charges. (Id., p. 4.)
As a result of discussions with federal agents about other criminal incidents
for which Tisdale had information, Tisdale revealed that he knew Petitioner and
Petitioner’s co-defendant, Alfonso “Al” Martinez. At some point in time, it
appears that the Canyon County prosecutor and the United States Attorney General
discussed having Tisdale testify for the prosecution in Petitioner’s case. In May or
June of 1990, Tisdale told authorities that he wanted to see two things done if he
were to testify: (1) he wanted the Idaho parole hold dismissed, and (2) he wanted
to be released rather than imprisoned on the federal charges. (State’s Lodging A-6
773-76.)
MEMORANDUM DECISION AND ORDER - 22
As of early October 1990, there was a plea bargain offer on the table from
the United States to Tisdale in the Utah criminal case, which was contingent upon
Petitioner being released from the state of Idaho and testifying for the prosecution
at the Jones trial. Petitioner knows this to be the case because of a lengthy report
from Tisdale’s October 17, 1990, parole violation hearing, which was not
discovered by Petitioner’s counsel and not presented at the December 1990 trial.
The parole hearing report states:
Gaspar [the parole officer] interjected that he spoke with
Heather Cooke, Assistant United States Attorney General, on
October 2, 1990, and she confirmed that a plea bargain offer had be
made [sic] to Charles.
Charles said that this plea bargain would require him to
cooperate with the Canyon County Prosecuting Attorney’s Office as
a witness on another criminal case. If he accepted this plea bargain,
the pending federal charge (with the exception of the Illegal Transfer
of Firearms charge) would be dismissed. Charles said that if he
cooperates in this plea bargain, the U.S. Attorney General’s Office
would be recommend [sic] that he receive probation, and no
incarceration. Charles said it is difficult for him to realistically
consider this plea bargain because of his incarceration for the parole
violation.
(Dkt. 54-6, p. 8.)
As noted, Tisdale could not accept the plea bargain without the cooperation
of Idaho. (Id.) At that time (in 1990), Idaho refused to cooperate with the Canyon
County prosecutor to allow leniency in return for testimony, as later described in
Executive Director Olivia Craven’s November 13, 1998 Affidavit:
MEMORANDUM DECISION AND ORDER - 23
[T]he Canyon County Prosecuting Attorney requested that the Idaho
State Parole Commission drop the parole hold and parole violation
charges regarding Charles Tisdale so that Charles Tisdale would
testify at the trial of Robert Richard Jones.
Your Affiant then stated to the Canyon County Prosecuting
Attorney, ‘How do you know that Tisdale is telling the truth. He has
done this before.’ The Canyon County Prosecuting Attorney then
stated to your Affiant, ‘It doesn’t matter, you must help us on this
one.’ Your Affiant informed the Canyon County Prosecuting
Attorney that such an arrangement was not acceptable to your
Affiant and then the Canyon County Prosecuting Attorney left the
office angry.
(State’s Lodging E-2, pp. 244-458.)
On October 17, 1990, two months before Petitioner’s trial, the Idaho
Commission of Pardons and Parole traveled to Utah and held a hearing. The
Commission determined that there was insufficient evidence presented at the
hearing to find Petitioner guilty of the parole violation charge of felon in
possession of a firearm or to find that he illegally transferred firearms, pursuant to
the federal charge. (The primary witness, Robert Pederson, was not present, and
his affidavit was not certified or sufficient by itself to support the charges; Special
Agent Ott said he could not testify for sure without his notes, and to state that
Tisdale was even the person he observed.) The Commission suspected that Tisdale
was guilty, but because there was insufficient evidence of that guilt presented at
the hearing, the parole violation charge was dismissed. (Dkt. 54-6.)
Tisdale was still in custody in Utah on November 7, 1990, when
Petitioner’s counsel interviewed him. (State’s Lodging A-6, p. 772.) Tisdale was
MEMORANDUM DECISION AND ORDER - 24
released from custody the day before Thanksgiving because he was able to post a
bond in the Utah federal court, the Idaho parole violation charge having been
dismissed. (Id., pp. 772-73.)
On December 6, 1990, Tisdale testified at Petitioner’s trial, having been
permitted to travel to Idaho while on bond by the Utah federal court. Tisdale
testified that no one had “made any deals with him for testimony,” and that he had
not “received any consideration for testimony.” (State’s Lodging A-6, p. 771.)
Tisdale testified that, although his “first condition”—dismissal of the Idaho parole
violation—had occurred, it occurred because the Idaho Parole Commission had
subsequently dismissed it of their own volition. (Id., pp. 775-76.) Tisdale also
testified that he had been “charged” with the federal crimes, but had not been
prosecuted, had not pleaded guilty or not guilty, and had not been sentenced. (Id.,
p. 781.)
Tisdale further testified under cross-examination:
Defense counsel:
Mr. Tisdale, I believe on questioning by
Mr. Harris you had indicated that they
had made no promises to you or have
done nothing to induce you to testify
here today.
Tisdale:
Well, they were going to attempt to have
the parole hold dropped, but the parole
board did that by themselves. They just
couldn’t find enough evidence to sustain
it. And so before they could do anything,
the parole board had already dropped the
parole. So that’s how that was.
MEMORANDUM DECISION AND ORDER - 25
Defense counsel:
Have they indicated to you that they will
attempt to assist you on the current
pending charges?
Tisdale:
Possibility.
Defense counsel:
What is your understanding of the
possibility?
Tisdale:
If they can help, they will.
Defense counsel:
And you will appreciate any help they
can give you?
Tisdale:
Certainly.
(Id. pp. 783-84.)
Upon further cross-examination, Tisdale continued:
Defense counsel:
You would appreciate any assistance you
can get on your pending charges?
Tisdale:
Certainly.
Defense counsel:
Mr. Tisdale, when did you decide to
testify in this matter?
Tisdale:
When did I?
Defense counsel:
Yes.
Tisdale:
When I was subpoenaed to be up here at
a certain date and time.
Defense counsel:
And it’s not the result of anything that
any authorities have done to assist you in
your current situation?
MEMORANDUM DECISION AND ORDER - 26
Tisdale:
I told you, they haven’t done anything to
assist me.
(State’s Lodging A-6, p. 785.)
Defense counsel continued his cross-examination of Tisdale and showed
that Tisdale had previously said that he would testify if his two conditions were
met, and Tisdale agreed that the two conditions had been met, even though he
continued to assert that the Idaho Parole Commission dropped the parole violation
for lack of evidence, not as consideration for his testimony. (Id., pp. 786-77.) On
re-direct examination, the prosecutor elicited testimony from Tisdale that the Idaho
Parole Commission actually came to Salt Lake City and conducted a hearing, after
which they found that the federal agents had not presented “any conclusive
evidence or any evidence at all.” (Id. at 787.)
Petitioner’s trial ended, and he was found guilty of first degree murder on
December 13, 1990. (State’s Lodging A-2, pp. 458-61.) On January 23, 1991, the
Idaho Parole Commission ordered Tisdale to be returned to Idaho, noting that he
was being permitted to reside in Utah only temporarily. (Dkt. 54-6, p. 1.)
However, after the Commission’s session ended, Executive Director Craven was
informed that Tisdale’s federal bond required him to remain in the state of Utah.
(Id.) On March 21, 1991, the Commission elected to allow Tisdale to remain in
Utah, as a result of the federal bond condition that he not leave Utah. (Dkt. 54-6,
pp. 1-2.)
MEMORANDUM DECISION AND ORDER - 27
Sometime prior to April 24, 1991, Tisdale pleaded guilty to one federal
charge, and his sentencing originally was set for April 24, 1991. (Dkt. 54-6, p. 2.)
However, the sentencing was continued to a later date.
On July 2, 1991, Tisdale was finally sentenced. He received 12 months’
incarceration, with credit for the 220 days served, followed by 3 years of
supervised release; he immediately began serving the remainder of the 12-month
sentence in the Davis County Jail in Farmington, Utah. (Dkt. 54-6, p. 4.) On July
25, 1991, the Idaho Parole Commission discharged Tisdale from Idaho parole. (Id.)
In its opinion on post-conviction review, the Idaho Court of Appeals noted
that the “additional information that Jones contends that counsel was deficient for
not discovering was a conversation between Olivia Craven, the Executive Director
of the Commission of Pardons and Parole, and the prosecuting attorney regarding
Tisdale’s pending parole violation charge.” (State’s Lodging F-11, p. 8.)
The Idaho Court of Appeals noted that, in cross-examining Tisdale,
Petitioner’s attorney was able to draw out testimony from Tisdale that he had
specified to authorities certain preconditions that must be met in order for him to
testify, and that those preconditions had been met by the governmental agencies,
even though Tisdale claimed that the favorable treatment of the charges and
violation was unrelated to his testimony. The Idaho Court of Appeals found no
deficiency in the cross-examination. That court further found that no prejudice
resulted from the failure to conduct a more thorough investigation to obtain the
MEMORANDUM DECISION AND ORDER - 28
information contained in Craven’s Affidavit, because the information was simply
that the prosecutor had tried, but had failed, to obtain an agreement for leniency in
the disposition of the parole violation in consideration for Tisdale testifying
against Petitioner. (State’s Lodging F-11, pp. 8-9.)
Petitioner is asserting that the Idaho Court of Appeals made a mistake of
fact or misunderstood Petitioner’s argument because that court did not specifically
address any of Petitioner’s arguments other than Craven’s Affidavit, such as the
argument that “Tisdale has testified under oath that he received no consideration at
his parole hearing or with regard to his federal charges, and yet competent
evidence has been submitted that the opposite is true.” (State’s Lodging F-1, p.
15.) More specifically, Petitioner had argued in the state district court and
submitted evidence that an actual plea offer by federal agents was made to
Petitioner before trial. (State’s Lodging E-1, pp. 15-16; E-5, Exhibit 24.) However,
simply because the Idaho Court of Appeals chose not to directly address
Petitioner’s entire argument, or the factual basis of his argument, does not mean
that the entire record was not, in fact, considered. On that basis, Petitioner is not
entitled to § 2254(d)(1) relief; rather, Petitioner has failed to show that the Idaho
Court of Appeals’s opinion rejecting the entire claim (on whatever basis) is
contrary to, or an unreasonable application of, Strickland.
However, if the state appellate court factfinding was mistaken and the Idaho
Court of Appeals did not realize that the government had made an actual plea offer
MEMORANDUM DECISION AND ORDER - 29
to Petitioner prior to trial, then this Court must review the claim de novo on all the
facts in the state court record to determine if relief is warranted. The United States
Supreme Court has determined that a clear factual error “reflects ‘an unreasonable
determination of the facts’” under § 2254(d)). Wiggins v. Smith, 539 U.S. 510, 528
(2003); see also Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) (“[W]here the
state 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, that misapprehension can fatally undermine the fact-finding
process, rendering the resulting factual finding unreasonable.”) Id. at 1001 (citing
Wiggins). When a state court adjudication was based on an unreasonable
determination of fact, the reviewing court is to “consider the petitioner’s related
claim de novo.” Maxwell v. Roe, 628 F.3d 486, 494-95 (9th Cir. 2010). See also
Jones v. Walker, 540 F.3d 1277 (11th Cir. 2008) (en banc).4
4
The Jones Court reasoned:
[W]hen a state court’s adjudication of a habeas claim results in a decision that is based on
an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding, this Court is not bound to defer to unreasonably-found facts or to the
legal conclusions that flow from them.... Because the Georgia Supreme Court
unreasonably determined the facts relevant to Jones’ Sixth Amendment claim, we do not
owe the state court’s findings deference under AEDPA. We therefore apply the
pre-AEDPA de novo standard of review to Jones’ habeas claims.”
540 F.3d at 1288 n.5 (quotations, citations, and alterations omitted).
MEMORANDUM DECISION AND ORDER - 30
Reviewing all of the facts in the state court record, the Court finds that the
inherent difficulty with Petitioner’s claim is that he is looking at Charles Tisdale’s
circumstances from hindsight, including now having knowledge of what happened
in Tisdale’s Utah and Idaho cases after trial. Petitioner has submitted a great deal
of information showing the facts and possibilities of leniency available to Tisdale
for testifying at Petitioner’s trial. Although the trial was held in December 1990,
Petitioner submits records showing that Tisdale was sentenced for a federal charge
of illegal transfer of a firearm and was discharged from state parole in July 1991.
These records obviously were unavailable to Petitioner’s counsel prior to trial.
What the records contemporaneous to trial do show is that the Canyon
County Prosecutor was attempting to obtain leniency for Tisdale from two
jurisdictions. At the time of trial, it appeared that the federal government had
cooperated, but the state government had not. The federal plea agreement was
apparently contingent upon the state agreement. The records themselves, had they
been obtained by counsel, show that there was an offer but no finalized agreement
between Petitioner and the federal agents. The Craven Affidavit makes it clear that
the State had said “no deal”–and that was brought out by the prosecutor’s
examination of Petitioner. While the prosecutor knew that he had tried to work a
deal with the federal government, that deal was contingent upon Petitioner being
released by the state of Idaho, which the state refused to do, for the purpose of
providing testimony. Rather, the state eventually released Petitioner due to lack of
MEMORANDUM DECISION AND ORDER - 31
evidence on the federal charges after the Parole Commission conducted a hearing
in Utah. The testimony of Tisdale reflects that deals were in the works as a result
of his anticipated cooperation, but that he had not actually received anything for
testifying:
Prosecutor: Are you under an indictment or under investigation for
anything currently?
Tisdale:
I am.
Prosecutor: Is that how you came to have the conversation with the
ATF people?
Tisdale:
Yes, sir, it is.
Prosecutor: And is that how come you revealed your
acquaintenceship with Al Martinez, the Defendant
Jones and this Frank Helm?
Tisdale:
Yes.
Prosecutor: As a result of disclosing information concerning this
case, has anyone made any deals with you for
testimony?
Tisdale:
No.
Prosecutor: Have you received any consideration for testimony?
Tisdale:
No.
(State’s Lodging A-6, p. 771.)
Contrary to Petitioner’s argument, the facts in the October 1990 report show
little more than cross-examination brought out at trial—that a deal was started, but
not finished at the time of trial; therefore, Tisdale had not “received” any
MEMORANDUM DECISION AND ORDER - 32
consideration for testifying at the time he testified. As a result, Petitioner has not
shown that failure to discover the report was prejudicial to the defense. The report
suggests that, without cooperation from Idaho’s Parole Commission, Tisdale could
not accept the federal plea bargain. The Craven Affidavit suggests that Idaho
would not cooperate. Tisdale testified that the federal agents were going to do all
that they could to get him a good deal, and that a deal was a possibility—this
testimony is reflective of the facts in the missing pieces of evidence.
In addition to the foregoing, the trial transcript shows that Petitioner’s
attorney had traveled to Utah to interview Tisdale prior to trial. (State’s Lodging
A-6, p. 772) Petitioner’s attorney also devoted a fair amount of his crossexamination to probing Tisdale’s reasons for testifying and exposed the fact that
Petitioner had laid down conditions to testify, and those conditions had been met,
regardless of the reasons the government gave to justify the fulfillment of those
conditions. (Id., pp. 772-87; 788-89.)
Based on the facts placed before the Idaho Court of Appeals, and under a de
novo standard of review, the Court concludes that Petitioner has not shown
prejudice, such that Strickland was violated. Therefore, federal habeas corpus
relief under § 2254(d)(1) is unwarranted.
E.
Claim B(2)
In Claim B(2), Petitioner contends his trial attorney was ineffective for
failing to “properly cross-examine Wystrach on at least 15 points of perjured
MEMORANDUM DECISION AND ORDER - 33
testimony.” (Dkt. 19, p. 8.) This is one of the claims on which Petitioner has
chosen not to make further argument.
The Idaho Court of Appeals examined the trial transcript to determine
whether Petitioner’s trial attorney had been deficient in cross-examination of
Wystrach, the leading witness for the prosecution. The Idaho Court of Appeals
summed up Petitioner’s contentions as failing to impeach Wystrach about her
“inconsistent statements regarding the number of meetings between Jones and the
individual who hired him, the specific contract amount, the timing of the final
payment, her presence during the final payment, details about surveillance of the
victim prior to the crime, which vehicle was used the night of the murder, the
identity of the driver and passengers of the vehicle, the events of the day after the
murder, and whether Wystrach had threatened the individual who had ordered the
murder.” (State’s Lodging F-11, p. 10.)
After reviewing the trial testimony, the Court of Appeals determined:
Contrary to Jones’s assertions, the trial transcript clearly
shows that defense counsel did cross-examine and impeach
Wystrach on a number of these subjects, as well as many others. (Tr.
p. 607-744; 754-762.) To the extent that counsel did not draw out
every inconsistent statement that Wystrach had made, that is a trial
tactic or strategy choice that we will not second-guess without
evidence of inadequate preparation, ignorance of the relevant law, or
other shortcomings capable of objective evaluation. Counsel’s crossexamination of Wystrach was extensive, and demonstrates more than
adequate preparation and investigation. Jones has not made a prima
facie showing that counsel was deficient in his tactical decisions
about how best to impeach Wystrach during cross-examination.
MEMORANDUM DECISION AND ORDER - 34
(State’s Lodging F-11, p.10.)
Respondent argues that Petitioner has not shown deficient performance or
prejudice, failing to meet either prong of the Strickland ineffective assistance of
counsel test, even under a de novo review standard. The Court agrees. The record
does reflect that counsel extensively cross-examined Wystrach, showing that he
adequately investigated Wystrach and prepared for cross-examination. (State’s
Lodging A-6, pp. 607-744; 754-60; 761-62.) Counsel hit upon Wystrach’s
extensive history of drug and alcohol abuse, including the fact that it has been hard
for her to recall events in her life because of her alcohol abuse; upon the fact that
she may have refreshed her recollection of the incident with newspaper articles;
upon letters manifesting Wystrach’s love for Petitioner and desire to continue a
relationship with him during the same time period she accused him of domestic
violence and the murder of Troy Vance; upon her immunity agreement for her
testimony; upon her receipt of over $6,000 in living expenses payments for her
testimony from the state; upon her inquiry into the $50,000 reward for information
leading to the arrest of a suspect in the Troy Vance case; upon how she had no real
means of supporting herself; and upon inconsistencies in her testimony about the
murder and payment for the murder.(Id.)
Petitioner points to no serious deficiency in his counsel’s cross-examination
that creates a reasonable probability that the outcome of his trial would have been
MEMORANDUM DECISION AND ORDER - 35
different. Broad deference must be given to counsel’s performance at trial, as the
Richter Court emphasized:
Strickland does not guarantee perfect representation, only a
“‘reasonably competent attorney.’” 466 U.S. at 687, 104 S.Ct. 2052
(quoting McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441,
25 L.Ed.2d 763 (1970)); see also Gentry, supra, at 7, 124 S.Ct. 1.
Representation is constitutionally ineffective only if it “so
undermined the proper functioning of the adversarial process” that
the defendant was denied a fair trial. Strickland, supra, at 686, 104
S.Ct. 2052. [T]here is no expectation that competent counsel will be
a flawless strategist or tactician. . . .
131 S.Ct. at 791. Because Petitioner has failed to meet the de novo standard, it is
clear he cannot meet the “double deference” standard of § 2254(d)(1). See Richter,
131 S.Ct. at 788. Accordingly, this claim fails to merit habeas corpus relief.
F.
Claim B(4)
In Claim B(4), Jones contends trial counsel failed to adequately object to
the introduction into evidence of other crimes, wrongs, or acts and failed to timely
object to privileged testimony from Wystrach’s doctor about marital conversations
surrounding an uncharged murder Petitioner allegedly had committed. (Dkt. 19,
p.8.) At trial, the prosecution called Arthur Hamblin, Wystrach’s psychologist, to
testify. Dr. Hamblin testified that, in a counseling session, Wystrach stated that
Petitioner had “murdered someone.” (State’s Lodging A-7, pp. 900-06.)
On direct appeal, the Idaho Supreme Court determined that the testimony of
Dr. Hamblin was improperly admitted under Idaho Rule of Evidence 403, but that
the error was harmless. (State’s Lodging B-11, p. 13.) The Idaho Supreme Court
MEMORANDUM DECISION AND ORDER - 36
reasoned: “The most that the complained of testimony could have contributed was
to bolster the credibility of Wystrach. The jury had ample other opportunity to
discern the credibility of Wystrach and weigh it against that of appellant.” (Id.)
Petitioner attempted to use this direct appeal ruling as a springboard for an
ineffective assistance of counsel claim on post-conviction review, but the Idaho
Court of Appeals determined that because the testimony was harmless, Petitioner
failed to show prejudice under Strickland. (State’s Lodging F-11, p. 12.) Here,
Respondent aptly points out that counsel did, in fact, object to Dr. Hamblin’s
testimony, but the trial court overruled the objection, concluding that the testimony
could be admitted to corroborate Wystrach, “whose credibility had been attacked
on cross-examination.” (State’s Lodging A-7, pp. 901-04.) Accordingly, Petitioner
has failed to show the counsel could have done more to prevent introduction of the
evidence; rather, once an objection is made and denied, then the issue becomes one
for appeal. Neither deficient performance or prejudice under Strickland has been
shown; therefore, Petitioner meets neither the de novo standard of Strickland or the
“doubly deferential” standard of AEDPA.
G.
Claim B(5)
Claim B(5) is that Petitioner’s direct appeal counsel performed ineffectively
when “he failed to ‘technically’ appeal Jones’ first motion for new trial, thereby
causing Jones a loss of several issues and points of fact.” (Dkt. 19, p.8.) Petitioner
asserted in his first motion for a new trial “that he had discovered new evidence
MEMORANDUM DECISION AND ORDER - 37
that Wystrach had been growing marijuana at the time of trial, in contradiction of
her testimony that she was no longer involved in drugs or alcohol, and that the
prosecution knew or should have known of this and nevertheless elicited this
perjury.” (State’s Lodging F-11.)
The Strickland principles also apply to determining ineffective assistance of
appellate counsel claims. To show prejudice on appeal, a petitioner must show that
his attorney failed to raise an issue obvious from the trial record that probably
would have resulted in reversal. See Miller v. Keeney, 882 F.2d 1428, 1434 n.9
(9th Cir. 1989). If a petitioner does not show that an attorney’s act or omission
would have resulted in reversal, then he cannot satisfy either prong of Strickland:
appellate counsel was not ineffective for failing to raise such an issue, and
petitioner suffered no prejudice as a result of it not having been raised. See Miller,
882 F.2d at 1435.
“Effective legal assistance” does not mean that appellate counsel must
appeal every question of law or every nonfrivolous issue requested by a criminal
defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). “[N]othing in the
Constitution” requires “judges to second-guess reasonable professional judgments
and impose on appointed counsel a duty to raise every ‘colorable claim’ suggested
by a client.” Id., 463 U.S. at 754.
Addressing this claim, the Idaho Supreme Court decided:
MEMORANDUM DECISION AND ORDER - 38
To the extent that Jones argues that, had counsel properly
appealed, he would have been entitled to a new trial because of
prosecutorial misconduct, this argument is unavailing because the
only grounds upon which a new trial may be granted in a criminal
case are those set forth in I.C. § 19-2406, which do not include
prosecutorial misconduct. Jones II, 127 Idaho at 481, 903 P.2d at 70.
If his argument is that, had counsel properly appealed, he would
have been entitled to a new trial because of newly discovered
evidence that part of Wystrach’s testimony had been perjurious, this
argument also fails because, for the purposes of a motion for a new
trial, newly discovered evidence must be material and not merely
impeaching. State v. Drapeau, 97 Idaho 685, 691, 551 P.2d 972, 978
(1976). Jones has not shown ineffective assistance from counsel’s
decision not to appeal the denial of Jones’s first motion for a new
trial.
(State’s Lodging F-11, p. 13.)
Idaho Code § 19-2406 provides an exclusive list of grounds for the granting
of a new trial; prosecutorial misconduct is not among the enumerated grounds.5
See State v. Weise, 410, 273 P.2d 97, 100 (1954) (“The grounds for a new trial are
purely statutory. The court cannot provide any other ground.”) The Idaho Supreme
5
Grounds for a new trial set forth in the statute are as follows:
(1) When the trial has been had in [the defendant’s] absence, if the indictment is for a
felony; (2) When the jury has received any evidence out of court other than that resulting from a
view of the premises; (3) When the jury has separated without leave of the court after retiring to
deliberate upon their verdict, or been guilty of any misconduct by which a fair and due
consideration of the case has been prevented; (4) When the verdict has been decided by lot or by
any means other than a fair expression of opinion on the part of all the jurors; (5) When the court
has misdirected the jury in a matter of law, or has erred in the decision of any question of law
arising during the course of the trial; (6) When the verdict is contrary to law or evidence; (7)
When new evidence is discovered material to the defendant, and which he could not with
reasonable diligence have discovered and produced at the trial.
MEMORANDUM DECISION AND ORDER - 39
Court has decided that, under the statute, new evidence must not be mere
impeachment evidence. State v. Drapeau, 551 P.2d 972, 978 (1976).
Based on the foregoing law, in light of the Strickland standard, Petitioner’s
direct appeal counsel did not perform deficiently in failing to raise the Brady
claims in a motion for a new trial, nor did prejudice accrue, because such a claim
would have had no basis in law. It is not necessary to look through the “double
deferential lens” of § 2254(d)(1), because there is no room for debate that the
Idaho Supreme Court’s decision confirming that a motion for new trial was not the
proper vehicle for this type of claim is correct. Therefore, Petitioner is not entitled
to relief on this claim.
H.
Claim B(6)
Claim B(6) is that his counsel “was ineffective and contributed to the jury’s
decision to convict when he failed to complain of the missing portion of the record
containing the closing arguments of the prosecutor further suborning the perjury of
Charles Tisdale.” (Dkt. 19, p.8.) This claim is better explained in Petitioner’s
second amended state post-conviction petition:
Counsel was ineffective in that counsel received and review
[sic] the record on appeal and passed such record. Such record is
absent of the closing remarks of the Prosecuting Attorney. In that the
Petition was raising allegations of prosecutorial misconduct. The
closing argument by the Prosecuting Attorney is and was an essential
portion of the record. Petitioner informed counsel of this missing
portion of the record and counsel failed to timely request that a
complete trial record be supplied to the Appellate Court. Exhibit
MEMORANDUM DECISION AND ORDER - 40
“A”, tab 9. That had the Appellate Court had the entire trial record
before it the outcome would have been different.
(State’s Lodging E-2, p. 238.)
Because failure of counsel to provide the closing argument portion of the
trial transcript to the appellate courts has nothing to do with “contributing to the
jury’s decision to convict,” as the conviction obviously occurred before direct
appeal proceedings, the Court construes this claim as one that direct appeal
counsel should have included the initial closing argument of the prosecutor in the
record on direct appeal, rather than only the prosecutor’s final closing argument.
(State’s Lodging A-11, pp. 1509-15.)
In considering the appeal of the dismissal of the second amended postconviction petition, the Idaho Court of Appeals addressed the omitted portion of
the transcript in a footnote, determining that, because neither Petitioner nor his
counsel provided the initial closing argument to the state district court during postconviction proceedings, the appellate court could not consider it as support for
Petitioner’s claim that his trial counsel was ineffective for failing to object to the
improper remarks made during closing argument. (State’s Lodging F-11, p. 14
n.4.) The Court of Appeals did not address the failure to provide the transcript as a
separate claim, and it is unclear whether it was a topic addressed in Petitioner’s
appellate brief (State’s Lodging F-1.) This Court previously determined that it
MEMORANDUM DECISION AND ORDER - 41
would first review the merits of this claim de novo, and then, if the claim had any
merit, revisit the procedural default issue.
The two statements of the prosecutor made during closing argument about
the testimony of Charles Tisdale that form the basis of Petitioner’s claim are as
follows: (1) “Charles Tisdale, who came and testified as to admissions made to
him by this defendant is corroborative evidence that supports, validates, and
confirms the testimony of Sherry Wystrach” (State’s Lodging F-15, Exhibit R-3,
p.4); and (2) “Her testimony is confirmed by Charles Tisdale” (id., p.15). Both
statements are from the omitted initial closing statement of the prosecutor.
The trial court record reflects that several jury instructions explained the
purpose of closing arguments to the jury. The first instruction explained, “You
must not be influenced by any personal likes or dislikes, opinions, prejudices or
sympathy. That means that you must decide the case solely on the evidence before
you and according to the law in accordance with your oath to do so.” (State’s
lodging E-4, Exhibit 68, Jury Instruction 1, p.1.) The jury was expressly advised it
must decide the facts from evidence which “will consist of the testimony of
witnesses, documents and other things received into evidence as exhibits and any
facts on which the lawyers agree or which I may instruct you to accept.” (Id., Jury
Instruction 1, p.2.) The jury was further advised, “Arguments and statements by
lawyers are not evidence. The lawyers are not witnesses. What they say in their
opening statements, closing arguments, and at other times is intended to help you
MEMORANDUM DECISION AND ORDER - 42
to interpret the evidence, but it is not evidence. If the facts as you remember them
differ from the way the lawyers state them, your memory of them controls.” (Id.)
On federal habeas corpus review, the scope of the issue regarding
prosecutorial misconduct during trial argument is a “narrow one of due process,
and not the broad exercise of supervisory power” that is a matter of state law.
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974)). A prosecutor’s comments or actions
that may be considered inappropriate under the rules of fair advocacy, or even
reversible error on direct review, do not warrant habeas relief unless the alleged
misconduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly, 416 U.S. at 643.
Here, Petitioner’s argument is that, if, on direct appeal, the appellate court
would have had the two statements of the prosecutor included in the record before
it, Petitioner’s claim for prosecutorial misconduct would have been successful on
appeal. Petitioner has failed to show that the two statements so infected the trial
with unfairness such that a due process violation occurred. Both statements argue
that Tisdale corroborated Wystrach’s testimony. Both statements are fair argument
based on the record. Wystrach testified that Petitioner was hired to kill Troy
Vance, made preparations to kill him, appeared to have gone to kill Vance on the
night in question, and received payment for killing Vance; while Tisdale said that
Petitioner confessed the killing to Tisdale while Petitioner and Tisdale were in
MEMORANDUM DECISION AND ORDER - 43
prison together. Issues affecting the credibility of both of these witnesses was a
matter for the jury to decide after hearing all of the evidence and considering the
arguments of counsel, in light of the specific jury instructions addressing the
difference between evidence and argument.
The Court also considers whether the two statements of argument that
Tisdale corroborated Wystrach’s testimony in the content of the other prosecutorial
statement that Petitioner objects to, a statement that was provided in the transcript
on direct appeal: “And Tisdale came forward with information and admissions,
and the record is that there is – there’s nothing to gain by it. And the record is that
it is the abnormality of the situation. Cons don’t rat on cons, that’s part of the
unwritten code. But occasionally it happens” (State’s lodging A-11, p.1510). This
statement, added to the two others discussed above, does not clearly tip the
prosecutor’s statements over the edge of the line from a matter of trial court
discretion to one of due process. As noted above, the testimony of Tisdale reflects
that deals were in the works as a result of his anticipated cooperation, but that he
had not actually received anything, or finalized an agreement with either the state
or the federal government, as a result of agreeing to testify at the time of trial. That
the prosecutor also pointed out that the testimony of Wystrach and Tisdale both
pointed to Petitioner as the murderer is something the jury naturally would have
been considering from the evidence presented at trial.
MEMORANDUM DECISION AND ORDER - 44
Petitioner has failed to show that any prejudice occurred as a result of
counsel failing to include the omitted portions of the prosecutor’s closing
argument in the record on direct appeal. Accordingly, the claim does not warrant
federal habeas corpus relief under a de novo application of the due process
standards set forth above.
I.
Claims E(5) & E(6)
In claims E(5) and (6), Petitioner contends the prosecutor presented false
evidence from Wystrach regarding Petitioner having committed another murder in
Nevada, people with whom he was involved in Seattle having been arrested for
“methamphetamine activity,” and Wystrach having been free of drugs and alcohol
“for the past one and two years respectively.” (Dkt. 19, p.12.)
Specifically, at the sentencing hearing Wystrach testified to the following:
(1) Petitioner’s involvement in a “methamphetamine lab to produce
methamphetamine” with Al Martinez and Ken Hegge (State’s Lodging A-12,
pp.192-200); (2) Petitioner having committed another murder in Nevada (id., pp.
203-04); and, (3) that Wystrach was “no longer under any influence of any drugs
or alcohol. I will be completely clean from alcohol as of July 1st for one year.
Prior to any prescription drugs for almost two years now. So I am no longer under
the influence of any substances.” (Id., pp. 215-16).
On direct appeal, the Idaho Supreme Court construed this claim as one
“attack[ing] the fairness and neutrality of the sentencing process.” (State’s
MEMORANDUM DECISION AND ORDER - 45
Lodging B-11, p. 16.) The Idaho Supreme Court determined that, on the record,
the trial court “properly and fairly weighed the evidence,” and “properly
entertained and resolved” Petitioner’s objections to the presentence investigation
report. (Id.)
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
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).
The Napue rule, cited above, is applicable to the sentencing phase of a
criminal case. See Evans v. Virginia, 471 U.S. 1025, 1028 (1985). The usual
remedy for the knowing use of false evidence by the prosecutor at sentencing is a
new sentencing hearing. Id. The United States Supreme Court has determined that
if a court finds that a constitutional violation occurred under Brady v. Maryland,
MEMORANDUM DECISION AND ORDER - 46
which is similar to Napue, the court need not conduct a harmless error analysis.
Kyles v. Whitley, 514 U.S. at 435.
It is unclear whether the Idaho Supreme Court applied Napue, or some
broader standard of due process, in considering the sentencing record as a whole.
However, a state court need not “give reasons before its decision can be deemed to
have been ‘adjudicated on the merits.’” Richter, 131 S.Ct. at 770.
Petitioner has not shown that the prosecution knew that the evidence was
false. The marijuana plants were found several weeks after Petitioner testified that
she was drug free, and she told the State’s investigator that the plants belonged to
O’Driscoll, not her. Neither does Petitioner point to evidence in the record
showing that he was not involved in illegal drugs or did not previously kill
someone in Nevada and that the prosecutor knew that.
As to Wystrach’s sentencing hearing testimony given in the first half of the
sentencing hearing, the trial court indicated to the parties prior to the second half
of the sentencing hearing:
I can tell you right now that what little testimony that she gave at the
so-called sentencing hearing wouldn’t make a pinch of salt as far as
difference to me because what I look for in the question of whether
the – the aggravating factors are is the evidence I heard at trial.
Her casual opinions, or offhand views are not significant to me at all.
(State’s Lodging A-12, p. 227.)
MEMORANDUM DECISION AND ORDER - 47
While the prosecution sought the death penalty in Petitioner’s case, based
on all of the evidence, the sentencing court declined to sentence Petitioner to
death, but gave him a life sentence in prison. Thus, Petitioner has not shown any
reasonable likelihood that the Wystrach sentencing testimony could have affected
his sentence.
Therefore, Petitioner has failed to meet either prong of the Napue test.
Neither does his claim succeed as a general due process claim, as decided by the
Idaho Supreme Court. Consequently, this claim does not merit federal habeas
corpus relief.
CONCLUSION
Having addressed all of Petitioner’s remaining claims, the Court concludes
that Petitioner has failed to meet his burden to show that federal habeas corpus
relief is warranted. As a result, Respondents’ Motion for Summary Judgment will
be granted, and Petitioner’s Petition will be dismissed with prejudice.
MEMORANDUM DECISION AND ORDER - 48
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
MEMORANDUM DECISION AND ORDER - 49
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 Petition and that the issues
presented are not adequate to deserve encouragement to proceed further. As a
result, the Court declines to grant a COA on any issue or claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth
Circuit, Petitioner must file a notice of appeal in this Court, and simultaneously
file a motion for COA in the Ninth Circuit Court of Appeals, pursuant to Federal
Rule of Appellate Procedure 22(b), within thirty (30) days after entry of this
Order.
MEMORANDUM DECISION AND ORDER - 50
ORDER
IT IS ORDERED:
1.
Respondent’s Motion for Summary Judgment (Dkt. 45) is
2.
Respondent’s Motion for Leave to File Excess Pages (Dkt. 46) is
GRANTED.
3.
Petitioner’s First and Second Motions for Enlargement of Time to
File Response to Motion for Summary Judgment (Dkt. 49, 51) are
GRANTED.
4.
Docket Nos. 54-8 through 54-28, which were mistakenly filed in ths
case, are STRICKEN from the record.
5.
The Court will not grant a Certificate of Appealability in this case. If
Petitioner chooses to file a notice of appeal, the Clerk of Court is
ordered to forward a copy of this Order, the record in this case, and
Petitioner’s notice of appeal, to the United States Court of Appeals
for the Ninth Circuit.
DATED: March 23, 2012
Honorable Mikel H. Williams
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 51
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