Hebert v. Reinke

Filing 33

ORDER re 27 Memorandum Decision and Order. Respondent shall file an answer within 90 days after entry of this Order. Petitioner shall file a reply (formerly called a traverse) within 30 days after service of the answer. Respondent has the option of filing a sur-reply within 14 days after service of the reply. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMES E. HEBERT,
Case No. 1:09-CV-324-BLW
Petitioner,
ORDER
v.
ISCI WARDEN JOHANNA SMITH,
Respondent.

Petitioner filed an appeal of the United States Magistrate Judge’s decision of
September 24, 2010, to the United States District Court, based on lack of consent,
whereupon the Clerk of Court reassigned this case to this Court. Thereafter, the Court
informed the parties that the Memorandum Decision and Order of September 24, 2010
(Dkt. 27) would be deemed a Report and Recommendation, and permitted the parties to
file objections within twenty (20) days after entry of this Order. Petitioner has filed a
Notice of Objection (Dkt. 32), which the Court now reviews.
PETITIONER’S NOTICE OF OBJECTION
In the Motion for Partial Summary Dismissal at issue, Respondent argued that a
number of Petitioner’s claims were procedurally defaulted: Claim One; Claim Two;
Claim Three, with the exception of the two sub-parts addressing investigation of defense

ORDER- 1

witnesses; and Claim Four, with the exception of the portion involving the trial judge
entering the jury room.
In objection, Petitioner generally argues that he has afforded the state courts many
opportunities to correct the constitutional errors in his case, but they have refused to do
so. (Objection, Dkt. 32, pp. 2-4.) However, this broad statement is not enough. Rather, the
federal habeas corpus statute mandates that Petitioner show each claim was properly
exhausted as a federal claim through the level of the Idaho Supreme Court in the manner
required by the state court system. 28 U.S.C. § 2254(b)(1).
Claim One
Claim One is that “Petitioner was given an attorney that would not be my voice in
court,” in violation of the right to access the courts for the redress of grievances, a First
Amendment claim. (Petition, Dkt. 3, p. 2.) Having reviewed the state court record, this
Court agrees with Judge Boyle’s analysis that Petitioner’s pro se post-conviction
application did not contain this First Amendment claim, and that this claim was not
presented by Petitioner’s later-appointed counsel to the state district court. (State’s
Lodging C-1, pp. 1-12 & 40-46.)
The issue was included in Petitioner’s pro se appellate brief. (State’s Lodging D-5,
p. 49.) However, there is no evidence in the record that the Court of Appeals decided the
First Amendment claim on the merits on appeal, because the issue was not properly
presented or argued to the state district court. (State’s Lodging D-8.) Before addressing

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some of Petitioner’s claims on the merits, the Idaho Court of Appeals stated in its opinion,
as to the claims it would not address:
Some of Hebert’s assignments of error were not alleged in his
original post-conviction application or in his amended post-conviction
application or were not argued before the district court. See Small v. State,
132 Idaho 327, 332, 971 P.2d 1151, 156 (Ct. App. 1998) (refusing to
address post-conviction claims on appeal that were not presented first
before the district court). Therefore, we will address only Hebert’s
assignments of error that are legitimate, supported by argument and
authority, and properly preserved for appellate review.
(D-8, p. 3.)
Claims that are not properly presented to the state district court and are rejected by
the state appellate courts on adequate and independent procedural grounds are deemed
procedurally defaulted on federal habeas corpus review. Ford v. Georgia, 498 U.S. 411,
422-24 (1991). 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)). If the procedural bar rests on federal
grounds or is intertwined with federal grounds, it is not an “independent” state ground,
and a federal court may properly review the matter. Bennett v. Mueller, 322 F.3d 573, 581
(9th Cir.), cert. denied, 540 U.S. 938 (2003). “A state law ground is so interwoven if the
state has made application of the procedural bar depend on an antecedent ruling on
federal law [such as] the determination of whether federal constitutional error has been
committed.” Id. at 581 (internal citations and punctuation omitted).
To be an “adequate” state ground, the procedural bar must be one that is “‘clear,
consistently applied, and well-established at the time of the petitioner’s purported

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default.” Martinez v. Klauser, 266 F.3d at 1093-94 (quoting Wells v. Maass, 28 F.3d
1005, 1010 (9th Cir. 1994)); see also Lee v. Kemna, 534 U.S. 362 (2002).
The Martinez Court explained that when there is “an absence of prior authority
supporting the [state court’s] decision” and the decision appears “contrary to [state] law,”
such a decision does not rest on a “clear, consistently applied, and well-established” state
procedural rule, and the procedural default may not be applied to bar consideration of the
merits of a petitioner’s claim in a federal habeas corpus action. Id.
A state procedural rule is not automatically “inadequate” under the adequate state
ground doctrine—and therefore unenforceable on federal habeas review—because the
state rule is discretionary rather than mandatory. Beard v. Kindler, 130 S.Ct. 612, 618
(2009); Walker v. Martin, 131 S.Ct. 1120, 1125 (2011). The Walker Court reiterated that
a “rule can be ‘firmly established’ and ‘regularly followed’ . . . even if the appropriate
exercise of discretion may permit consideration of a federal claim in some cases but not
others.” 131 S.Ct. at 1128 (citing Kindler, 130 S.Ct. at 618). However, a “state ground, no
doubt, may be found inadequate when ‘discretion has been exercised to impose novel and
unforeseeable requirements without fair or substantial support in prior state law,’” or, in
other words, “in a surprising or unfair manner.” Walker, 131 S.Ct. at 1130 (citation
omitted).
In Petitioner’s case, the Idaho Court of Appeals cited to Small v. State for the
principle that the appellate courts could properly refuse to address post-conviction claims
on appeal that were not presented to the district court. There is nothing in the record or in
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its independent research of this issue that convinces the Court that this ground cited by
the Court of Appeals is not adequate. In Person v. State, 210 P.3d 561 (Idaho Ct. App.
2009), the Idaho Court of Appeals described the Small rule as “the general rule that issues
not raised below may not be considered for the first time on appeal.” Id. at 563. See also
Row v. State, 21 P.3d 895, 902 (Idaho 2001).1
The Court finds and concludes that the procedural rule barring Petitioner’s claims
from being heard on appeal–that they were not fully presented to the state district court,
but rather presented for the first time on appeal–is both adequate and independent. As a
result, the Court concludes that the First Amendment claim is procedurally defaulted.
Claim Two
Claim Two is that Petitioner was denied due process under the Fifth Amendment
(made applicable to the states through the Fourteenth Amendment) when his attorney
failed to ensure that the Petitioner was bound over properly in Case No. CR-02-00383.
(Petition, Dkt. 3, p. 2.)
Judge Boyle noted that this due process claim was presented in the original pro se
post-conviction application. (State’s Lodging C-1, p. 5.) However, when counsel was
appointed to represent Petitioner, counsel properly narrowed the claims; as a result, this
1

In Row, the Idaho Supreme Court stated:

“The longstanding rule of this Court is that we will not consider issues that are
raised for the first time on appeal. State v. Fodge, 121 Idaho 192, 824 P.2d 123
(1992). The exception to this rule is that constitutional issues may be considered
for the first time on appeal if such consideration is necessary for subsequent
proceedings in the case. Id.
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due process claim was not included in the stipulated pretrial order delineating which
claims would be presented to the state district court. (C-1, pp. 40-46.) Because the claim
was not litigated before the state district court, that court did not address the claim. (C-1,
pp. 14-141.)
Nevertheless, Petitioner included the claim in his appellate brief. (D-5, p. 4.)
However, because it was not properly presented to the state district court, it was among
the claims the Idaho Court of Appeals refused to rule upon, under the Small rule. (D-8, p.
3.) There is no indication in the record that the Idaho Court of Appeals ruled on the merits
of this claim. (D-8.)
Therefore, Petitioner’s due process claim regarding not being bound over is
procedurally defaulted and cannot be heard in this case. (Claim Two is the same as Claim
Four (10), and thus Four (10) is also procedurally defaulted.)
Claim Three
Judge Boyle found and concluded that Petitioner had properly exhausted Claims
Three (1), (2), (5), (6), (7), (8) and (10); Claims Three (3) and (9) (ineffective assistance
of trial counsel as to number of peremptory challenges and juror Michelle Curtis only);
and Claims Three (4) (as a judicial misconduct due process claim only). Judge Boyle
found that Claims Three (3) and (9) (ineffective assistance of trial counsel as challenges
to any juror other than Michelle Curtis only) and Claim Three (4) (as an ineffective
assistance claim) were procedurally defaulted.

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As to Claims Three (3) and (9), having reviewed the record, the Court agrees with
Judge Boyle’s analysis on the juror claim. Petitioner did not present a claim regarding
jurors other than Michelle Curtis to the state district court, and, therefore, his efforts to
present an expanded claim to the Idaho Court of Appeals was met with that court’s
general refusal to hear all such improperly-presented claims (D-8, p. 3); the Idaho Court
of Appeals treated this claim as one regarding Michelle Curtis only. (D-8, pp. 8-9.)
As to Claim Three (4), Petitioner brought up the claim that his counsel should have
objected to the judge wrongfully entered the jury room during deliberations in the
following filings: the stipulated issues for the district judge to consider (C-1 , p. 42), the
appellate brief (D-5, p. 55) and the petition for review (D-9, pp. 17 & 20). Little or no
argument accompanied the statement of the claims, supporting Judge Boyle’s decision.
However, the Court will liberally construe the filings as presenting the ineffective
assistance claim to the Idaho Supreme Court, and will permit Petitioner to proceed on
Claim Three (4) as both a judicial misconduct claim and an ineffective assistance claim.
This is the only change to the Magistrate Judge’s Order, and will not work a fundamental
change, given that proving the ineffective assistance claim will require proof of one
additional element–deficient performance.
Claims Four (12) and (14) are the same as Claims Three (3) and (9), and therefore
the same result applies (Petitioner can proceed only as to the number of peremptory
challenges and juror Michelle Curtis). Claim Four (16) is the same as Claim Three (4),

ORDER- 7

and Petitioner can now proceed on this claim as a due process claim and an ineffective
assistance of counsel claim.
Claim Four (15)
Claim Four (15), and the general un-numbered “equal protection and due process”
claims asserted in Claim Four are the only subparts of Claim Four that are not repetitive
of other claims and that were found to be procedurally defaulted by Judge Boyle. Claim
Four (15) is that the trial court violated Petitioner’s due process rights when the court
ordered Petitioner’s new counsel to proceed to trial without giving additional time for
counsel to prepare for trial. This was not among the issues stipulated to and presented to
the trial court; therefore, it could not have been properly presented to the state appellate
courts. There is nothing in the Court of Appeals’s order suggesting that this claim was
addressed on the merits. (Dkt. D-8.) As a result, the Court agrees that the claim is
procedurally defaulted. The Court further concludes that Claim Four’s general equal
protection and due process subparts are procedurally defaulted for the same reason.
Plaintiff’s Other Arguments
Petitioner also argues that a fundamental miscarriage of justice will occur if his
claims are not heard. This argument was rejected on adequate grounds in the Order issued
by Judge Boyle, and the Court adopts that reasoning in full. (Dkt. 27, pp. 16-17.) The
record does not reflect that Petitioner is actually innocent.
Petitioner argues that Judge Boyle did not give adequate consideration to
Petitioner’s pro se status. That argument is not supported by the record. Judge Boyle
ORDER- 8

notes several instances where Petitioner’s claims have been liberally construed in order to
allow him to proceed. (See Order of September 24, 2010, pp. 11-12 & 14.) Here, the
Court goes beyond Judge Boyle’s extensive efforts to comb through and liberally
construe Petitioner’s lengthy pleadings and papers to be able to permit Petitioner to
proceed on an additional portion of a subclaim.
However, notwithstanding the liberal reading of pro se filings, the Court must
require pro se petitioners to meet the same procedural requirements as counseled
petitioners. If Petitioner’s claims are defaulted, he must show cause and prejudice, or a
miscarriage of justice. Pro se status alone is enough to excuse the failure to properly bring
claims in state court.
No adequate arguments or facts exist to support the application of cause and
prejudice to excuse the procedural default of Petitioner’s claims. Accordingly, with the
one addition, the Court will adopt Judge Boyle’s recommendations in full and set this
case for final briefing on the remaining claims.

ORDER- 9

ORDER
IT IS ORDERED:
1.

Petitioner’s objections are OVERRULED, with the exception of Claim
Three(4) (same as Claim Four(16)), which will be construed as both an
ineffective assistance claim and a judicial misconduct claim. The Magistrate
Judge’s Opinion is ADOPTED in all other regards.

2.

Petitioner may proceed on Claim Three (1), (2), (5), (6), (7), (8) and (10)
(same as Claims Four (5), (6), (7), (8), (9), (11), & (13)) (ineffective
assistance of trial counsel); Claim Three (3) and (9) (same as Claims Four
(12) & (14)) (ineffective assistance of trial counsel as to number of
peremptory challenges and Juror Michelle Curtis only); Claim Three (4)
(same as Four (16)) (as a judicial misconduct due process claim and, newly,
an ineffective assistance of counsel claim); and Claim Four (17) through
(20) (ineffective assistance of appellate counsel, only as to the three
subissues addressed by the Idaho Court of Appeals).

3.

All other claims are dismissed.

4.

Respondent shall file an answer, containing a brief setting forth the factual
and legal basis of grounds for dismissal and/or denial of each claim within
ninety (90) days after entry of this Order. 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 thirty days after

ORDER- 10

service of the answer. Respondent has the option of filing a sur-reply
within fourteen days after service of the reply. At that point, the case shall
be deemed ready for a final decision, and neither party shall file anything
further without leave of court.

DATED: July 18, 2011

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

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