Hoak v. State of Idaho

Filing 62

MEMORANDUM DECISION AND ORDER conditionally granting 52 Motion for Summary Judgment; denying 56 Motion to Strike ; denying 57 Motion for Rule 60(A)(B) Requesting Relief ; finding as moot 59 Motion - Transcripts; Respondent shall suppleme nt the State Court Record lodged with the Court with a copy of the filings from Ada County Case Hoak v. State, Case No. CVPC200824620 by 11/16/12. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LARRY M. HOAK,
Case No. 1:09-cv-0389-EJL
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.

STATE OF IDAHO,
Respondent.

Pending before the Court in this habeas corpus matter is Respondent’s Motion for
Summary Dismissal. (Dkt. 52.) Other non-dispositive motions are also pending (Dkts. 56,
57, 59.) The Court finds that the parties have adequately stated the facts and legal
arguments in their briefs and that the decisional process would not be significantly aided
by oral argument. In the interest of avoiding delay, the Court will decide this matter on
the written motion, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1.
For the reasons set forth below, Respondent’s Motion for Summary Dismissal will
be conditionally granted. Before the Court enters judgment, however, Respondent shall
supplement the existing lodging of the state court record with documents from
Petitioner’s state court post-conviction proceeding, and the parties shall have an
MEMORANDUM DECISION AND ORDER - 1

opportunity to address the applicability of Martinez v. Ryan, 132 S.Ct. 1309 (2012), or
Maples v. Thomas, 132 S.Ct. 912 (2012), to this case.
BACKGROUND
After a jury trial in state court, Petitioner was convicted of felony stalking. (State’s
Lodging A-2, pp. 216-17.) The trial court applied a persistent violator enhancement and
sentenced him to life in prison, with the first ten years fixed. (Id. at 218.)
On appeal, Petitioner’s counsel argued that the trial court had erred in admitting
evidence of Petitioner’s prior bad acts under Idaho Rule of Evidence 404(b) (“I.R.E.
404(b)”). (State’s Lodging B-1.) Petitioner also submitted his own pro se supplemental
brief, in which he alleged primarily that the trial judge should have disqualified herself
because she was biased against him. (State’s Lodging B-2.) The Idaho Court of Appeals
rejected the I.R.E. 404(b) argument and it did not address Petitioner’s supplemental brief.
(State’s Lodging B-5.) Petitioner’s counsel filed a petition for review in the Idaho
Supreme Court, reasserting the same evidentiary claim that he had raised in the Court of
Appeals, but the Idaho Supreme Court declined to review the case. (State’s Lodging B-8.)
While the direct appeal was still pending, Petitioner filed an application for postconviction relief in the state district court. (State’s Lodging C-1.) The trial court then
stayed the proceedings pending the completion of the direct appeal. (Id.)
Before the Idaho Supreme Court had issued its remittitur on direct appeal and
while the post-conviction matter was still pending in the state district court, Petitioner
filed a Petition for Writ of Habeas Corpus in this Court. (Dkt. 2.) The case was assigned
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to United States Magistrate Judge Ronald E. Bush, who conducted an initial review of the
Petition and ordered it to be served on Respondent. (Dkt. 7.) Because Petitioner’s state
court matters had not yet concluded, the Judge Bush later stayed the federal case. (Dkt.
17.) Petitioner’s state post-conviction petition was then dismissed in late 2010, but
Petitioner did not appeal the state district court’s decision to the Idaho Supreme Court.
(State’s Lodging C-1.)
The stay of the federal case was lifted, and Petitioner filed an Amended Petition on
July 7, 2011. (Dtk. 36.) In his Amended Petition, he claims that (1) his rights under the
Fifth, Sixth, and Fourteenth Amendments were allegedly violated because the prosecutor
withheld favorable evidence and lied about having a tape recording of Petitioner’s threats
to the victim;1 (2) the trial court violated his Sixth Amendment right to call witnesses on
his behalf and conspired with the prosecutor and appointed defense counsel; (3) he was
deprived of his Sixth Amendment right to the effective assistance of trial counsel; and,
liberally construed, (4) his sentence violates the Eighth Amendment’s prohibition on cruel
and unusual punishment. (Dkt. 36, pp. 2-3.)
Respondent has responded to the Amended Petition by filing a Motion for
Summary Dismissal, arguing that all claims must be dismissed because Petitioner did not
exhaust them properly in the state courts and, because it is too late to do so, the claims are

1

In his Petition, Petitioner initially contends, without elaboration, that Claim 1 is based on the
prosecutor charging him with lewd conduct with a minor. (Dkt. 36, p. 2.) The Court construes this claim
instead to be based on the factual allegations that Petitioner has included in the section he has labeled,
“First Claim, Supporting Facts,” in which he discusses the prosecutor’s alleged withholding of favorable
evidence.
MEMORANDUM DECISION AND ORDER - 3

now procedurally defaulted. (Dkt. 52.) Petitioner has filed a “Motion: Response to
Respondent’s Motion for Summary Dismissal” (Dkt. 54), in addition to other nondispositive motions (Dkts. 57, 59.)
The case was reassigned to the undersigned District Judge because not all parties
consented to a United States Magistrate Judge under 28 U.S.C. § 636(c). (Dkt. 61.)
Having been fully informed in these matters, the Court is now prepared to issue its
ruling
PETITIONER’S PRELIMINARY MOTIONS
Petitioner has submitted two motions, which he has labeled (1) a “Motion: Rule
60(A)(B) Requesting Relie[f]” and (2) a “Motion - Transcripts To: J.” (Dkts. 57, 59.)
With respect to the second motion, the Court finds that the transcript that Petitioner
apparently seeks to have the Court review is already a part of the state court record that
Respondent has lodged. Because the transcript is in the existing record, Petitioner’s
“Motion - Transcripts To: J” will be dismissed as moot.
In Petitioner’s “Motion: Rule 60(A)(B) Requesting Relief,” he appears to seek
reconsideration of Judge Bush’s order granting Respondent’s Motion to Strike some of
his filings from the record. Judge Bush entered this order after Petitioner had failed to
follow the Court’s explicit instruction that Petitioner raise all grounds for relief in a
single amended pleading. (Dkt. 47.) In reaching his conclusion, Judge Bush noted that
“although the Court construes pro se filings liberally and may overlook technical
violations of certain procedural requirements when warranted, Petitioner has been
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specifically advised to submit his claims in one pleading rather than in a piecemeal
fashion.” (Id. at 2.) Judge Bush also found that Petitioner would not be prejudiced
because he had presented his claims in his Amended Petition and would have an
opportunity to respond to Respondent’s arguments for denial of relief or dismissal in
due course. (Id.) After reviewing the record, this Court agrees with Judge Bush’s
analysis, and Petitioner has offered no reason to reconsider the order to strike.
Petitioner has also recently re-submitted a reply brief that he previously filed in
support of a motion for a telephonic hearing, which Judge Bush denied on October 31,
2011. (Dtk. 47.) For reasons that he does not specify, he has attached assorted new
documents with the reply. While the Court will deny Respondent’s request to strike
these documents from the record, it finds them to be irrelevant to the matters at hand
and will not consider them.
The Court now turns to Respondent’s argument that all claims in the Amended
Petition must be dismissed as procedurally defaulted.

RESPONDENT’S MOTION FOR SUMMARY DISMISSAL
1.

Standard of Law
A habeas petitioner must exhaust his remedies in the state courts before a

federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). This means that the petitioner must invoke one complete round of the
state’s established appellate review process, fairly presenting all constitutional claims
MEMORANDUM DECISION AND ORDER - 5

to the state courts so they have a full and fair opportunity to correct alleged
constitutional errors at each level of appellate review. Baldwin v. Reese, 541 U.S. 27
(2004). In a state that has the possibility of discretionary review in the highest appellate
court, like Idaho, the petitioner must have presented all of his federal claims at least in
a petition seeking review before that court. O’Sullivan v. Boerckel, 526 U.S. at 845.
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be “procedurally defaulted.”
Gray v. Netherland, 518 U.S. 152, 161 (1996). A habeas claim is also procedurally
defaulted when the petitioner actually raised the claim in state court, but the state court
denied or dismissed the claim after invoking a state law ground that is independent of
federal law and is adequate to support the judgment. Coleman v. Thompson, 501 U.S.
722, 729-30 (1991). A federal court cannot reach the merits of a procedurally defaulted
claim unless the petitioner can establish cause for his default and actual prejudice, or
he can show a miscarriage of justice in his case, which means that he is probably
innocent. Coleman, 501 U.S. at 750.
2.

Discussion
The analysis of the exhaustion issue in this case is relatively straightforward:

Petitioner has never presented any of his current constitutional claims to the Idaho
Supreme Court. On direct appeal, his attorney raised a single issue challenging the
district court’s admission of certain evidence, but he framed the issue entirely under
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Idaho state evidentiary rules, and he did not rely on the United States Constitution to
support his argument. The failure to provide a federal constitutional basis in state court
means that the state courts did not have a full and fair opportunity to address the same
claim that Petitioner has raised in federal court. Baldwin v. Reese, 541 U.S. 27 (2004).
Although Petitioner lodged a pro se supplemental brief in the Idaho Court of
Appeals during the direct appeal, there is no indication that the Idaho Court of Appeals
considered the brief to be properly filed. To the contrary, Petitioner did not request
permission to file the brief and the Court of Appeals did not mention it in its opinion.
In any event, to exhaust a claim properly, a habeas petitioner must have asserted all
claims in the highest state court, see O’Sullivan v. Boerckel, 526 U.S. at 845, and the
petition for review that was filed in the Idaho Supreme Court did not contain any claim
from Petitioner’s supplemental brief.
Likewise, while Petitioner filed an application for post-conviction relief in the
state district court, he failed to appeal after the district court summarily dismissed the
petition. (State’s Lodging C.) Therefore, no claims that Petitioner had raised in the
post-conviction matter were properly exhausted.
All of the claims must be dismissed as procedurally defaulted unless Petitioner
can show cause and prejudice to overcome the default, or he can establish that the
failure to consider the claims will result in a miscarriage of justice, also known as a
compelling showing of actual innocence. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show cause, a habeas petitioner must ordinarily demonstrate that some
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objective factor external to the defense impeded his or his counsel’s efforts to comply
with the state procedural rule at issue. Murray, 477 U.S. at 488. To show prejudice, the
petitioner bears the burden of demonstrating that the errors “worked to his actual and
substantial disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
The Court has reviewed Petitioner’s Response, which focuses on the alleged
“lies” that the victim told and Petitioner’s other generalized complaints about the
fairness of the trial. (Dkt. 54.) This does not show an external impediment that
prevented Petitioner from complying with state procedural rules for raising his claims
at the correct time and in the correct manner. It is therefore not a valid “cause” that
would excuse a procedural default.
It may be that Petitioner is asserting that he is actually innocent, though that is
not entirely clear. Such an argument would not entitle him to relief, however. A
compelling showing of actual innocence can satisfy the fundamental miscarriage of
justice exception to procedural default, allowing a court to review otherwise defaulted
claims on their merits. Schlup v. Delo, 513 U.S. 298, 315, 324 (1995). But to establish
such a claim, a petitioner must come forward with “new reliable evidence – whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence – that was not presented at trial.” Schlup, 513 U.S. at 324. The
petitioner bears the burden of demonstrating that “in light of all the evidence, including
evidence not introduced at trial, it is more likely than not that no reasonable juror
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would have found [him] guilty beyond a reasonable doubt.” Id. at 327; see also House
v. Bell, 547 U.S. 518, 539 (2006).
In addition, a habeas proceeding is not a proper forum in which to re-litigate the
case that has already been tried. “When confronted with a challenge based on trial
evidence, courts presume the jury resolved evidentiary disputes reasonably so long as
sufficient evidence supports the verdict.” House v. Bell, 547 U.S. at 539. A persuasive
claim of actual innocence must be based on new evidence that was not presented to the
jury that is so compelling that the reviewing court must conclude that it is now
probable that no rational juror would vote to convict the defendant. See id. at 538-39.
Here, Petitioner has not offered that type of evidence, instead relying primarily on his
personal opinion about the veracity of the trial witnesses and the reliability of the
evidence that was presented. Based on the current showing, the miscarriage of justice
exception does not apply.
Finally, earlier in this proceeding, Petitioner asserted that he had been appointed
an attorney in the post-conviction proceeding in state district court but that the result of
a hearing on the petition was “kept secret from [him].” (Dkt. 19, p. 2.) He further
complained that he could not contact his appointed counsel, and that he would like to
“waive [his] post-conviction for lack of intrust [sic] on Judge Cherie Copsey and [his]
attorney Theresa Martin.” (Id.) It is not clear whether Petitioner was kept informed of
the status of his post-conviction case by his counsel or to what extent he is arguing that
his failure to go forward in that matter was due to counsel’s action or inaction.
MEMORANDUM DECISION AND ORDER - 9

A petitioner does not have a federal constitutional right to effective assistance of
counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, until recently,
a petitioner could not argue that his counsel’s errors during the post-conviction action
serve as a basis to excuse the procedural default of his claims. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 752 (1991).
Last term, however, the United States Supreme Court held that a persuasive
showing of ineffective assistance of post-conviction counsel that resulted in the default
of ineffective assistance of trial counsel claims may be a reason to ignore the
procedural bar and reach the merits of those claims. Martinez v. Ryan, 132 S.Ct. 1309,
1315 (2012). The Court explained that the limited exception to the longstanding
general rule was created “as an equitable matter, that the initial-review collateral
proceeding, if undertaken without counsel or with ineffective counsel, may not have
been sufficient to ensure that proper consideration was given to a substantial claim.”
Id. at 1318.
In setting out the rule, the Court described two potential restrictions. First, the
state post-conviction proceeding must represent the initial opportunity under state law
for a defendant to raise claims of ineffective assistance of trial counsel (it must be an
“initial-review collateral proceeding” as to those claims). Id. at 1317. Second, “[w]hen
faced with the question whether there is cause for an apparent default, a State may
answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does
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not have any merit or it is wholly without factual support, or that the attorney in the
initial-review collateral proceeding did not perform below constitutional standards.” Id.
at 1319.
The Ninth Circuit has summarized the Martinez test as follows: “a reviewing
court must determine whether the petitioner’s attorney in the first collateral proceeding
was ineffective under the test set out in Strickland [v. Washington, 466 U.S. 668
(1984)], whether the petitioner’s claim of ineffective assistance of trial counsel is
substantial, and whether there is prejudice.” Sexton v. Cozner, 679 F.3d 1150, 1159
(9th Cir. 2012).
In addition to Martinez, the Supreme Court also held in a different case in the
same term that an attorney’s complete abandonment of his or her client in a postconviction proceeding, which leaves the petitioner unrepresented at a critical time, may
serve as cause. Maples v. Thomas, 132 S.Ct. 912, 917 (2012).
These cases were decided after the parties submitted their briefing on the
procedural default issue, and Respondent has not lodged the record of the postconviction proceedings beyond a register of actions showing the docket sheet. For
those reasons, and in light of Petitioner’s complaints about his post-conviction counsel,
the Court is unable to discern whether the rules from Martinez or Maples might be
applicable to this case.
The Court will therefore conditionally grant Respondent’s Motion for Summary
Dismissal, but will withhold entering final judgment until after Respondent has lodged
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with the Court a copy of the filings in the state court post-conviction matter. The Court
will also give Petitioner leave to file a supplemental brief to establish why his postconviction counsel’s ineffectiveness or abandonment, if any, should excuse the default
of any of his claims. Respondent may respond, and Petitioner may file a reply. These
are the only filings that will be permitted. The Court will then take up the cause and
prejudice issue and either enter judgment dismissing the Petition on the ground of
procedural default, if warranted, or set a schedule for additional pleadings, if cause and
prejudice is shown.

ORDER
IT IS ORDERED:
1.

The Clerk of Court shall substitute Randy Blades, Warden of the Idaho
State Correctional Institution, for the State of Idaho as the proper
Respondent this matter.

2.

Respondent’s Motion to Strike Response re: Telephone Conference (Dkt.
56) is DENIED.

3.

Petitioner’s Motion: Rule 60(A)(B) Requesting Relie[f] (Dkt. 57) is
DENIED.

4.

Petitioner’s Motion – Transcripts To: J (Dkt. 59) is DEEMED MOOT.

5.

Respondent’s Motion for Summary Dismissal (Dkt. 52) is conditionally
GRANTED, but the Court will not enter judgment until the parties have

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had an opportunity to address the cause and prejudice issue outlined
above.
6.

No later than November 16, 2012, Respondent shall supplement the State
Court Record lodged with the Court with a copy of the filings from Ada
County Case Hoak v. State, Case No. CV–PC–2008–24620.

7.

No later than November 16, 2012, Petitioner may submit a supplemental
brief, which he shall label a “Motion to Proceed With Habeas Petition,”
showing why cause and prejudice excuses any procedural default
because of his post-conviction counsel’s ineffectiveness or abandonment.
Respondent shall file a response within 30 days of receiving a motion,
and Petitioner may file a reply within 14 days of receiving a response.
Petitioner’s failure to comply with this Order may result in dismissal
without further notice.

DATED: September 13, 2012

Honorable Edward J. Lodge
U. S. District Judge

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