Videgain v. Valdez et al

Filing 27

MEMORANDUM DECISION AND ORDER granting 22 Motion for Summary Judgment; A certificate of appealabilty will not issue in this case. If Petitioner files atimely notice of appeal, and not until such time, the Clerk of Court shallforward a copy of the n otice of appeal, together with this Order, to the Ninth Circuit Court of Appeals. The district courts file in this case is available for review online at www.id.uscourts.gov.. 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

VINCENT B. VIDEGAIN,
Case No. 1:10-cv-00104-EJL
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.

PHILLIP VALDEZ, Warden, Idaho
Correctional Institution; and the IDAHO
ATTORNEY GENERAL,
Respondents.

Currently pending in this habeas corpus matter is Respondents’ Motion for
Summary Judgment. (Dkt. 26.) The Court finds that decisional process would not be
aided by oral argument, and it will resolve this matter on the record after consideration of
the parties’ written submissions. D. Idaho L. Civ. R. 7.1(d).
For the reasons set forth below, the Court will grant Respondents’ Motion for
Summary Judgment, and this case will be dismissed.
BACKGROUND
In 2004, Petitioner and a co-defendant, Brandon Hussey, were charged with
attempting to rob a taxi driver at gunpoint (attempted robbery, Idaho Code § 18-6501) and
with shooting at the driver as he fled (aggravated assault, Idaho Code §§ 18-901(a), 18905(a)). (State’s Lodging A-1, p. 7.) The driver testified that two men approached him,
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one of whom stuck a gun in the window and demanded money. (State’s Lodging A-2, p.
30.) When he saw the gun, the driver sped away and heard gunshots before crashing his
taxi into a cement post. (Id. at 34.) The driver later identified Petitioner as the man who
had threatened him with the gun and demanded money. (State’s Lodging A-2, p. 30.)
Petitioner testified at his trial, however, that Hussey brandished the gun and fired the
shots. (State’s Lodging A-2, pp. 177-78.) Petitioner was found guilty as charged, and the
state trial court sentenced him to a unified term of 25 years, with a minimum period of
confinement of 10 years, for attempted robbery, and a concurrent term of five years for
aggravated assault. (State’s Lodging A-1, pp. 127-30.)
Before the direct appeal, Petitioner’s counsel filed a motion for a new trial based
on comments that he had overhead from Hussey’s attorney, Stewart Morris, who
allegedly said that “he had resolved a case in which his client had shot up a taxicab in an
attempted robbery.” (State’s Lodging A-1, p. 140.) When asked, Morris told Petitioner’s
counsel that Hussey was the client about whom he was speaking. (Id.) The trial court
scheduled a hearing on the motion, but Petitioner’s counsel failed to serve a subpoena on
Morris to testify. (State’s Lodging A-5.) The trial court denied the motion after
concluding that the statement attributed to Morris was unreliable and would not be
admissible at a trial. (State’s Lodging A-5, pp. 56-57.)
On direct appeal, Petitioner raised a single claim, that the trial court abused its
discretion in sentencing him. (State’s Lodging C-2.) The Idaho Court of Appeals

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affirmed, and Petitioner’s Petition for Review was denied by the Idaho Supreme Court.
(State’s Lodgings C-5, C-8.)
Petitioner next filed a pro se Petition for Post-Conviction Relief, which he
amended with the assistance of counsel, raising numerous claims of ineffective assistance
of counsel. (State’s Lodging D-1, pp. 1-15, 125-30.) The State filed a motion to
summarily dismiss the Petition, and the state court dismissed all but six of the claims.
(State’s Lodging D-2, pp. 38-45.) After an evidentiary hearing on the remaining claims,
the court denied relief. (State’s Lodging D-1, pp. 140-150.)
Petitioner appealed, but the Idaho Court of Appeals affirmed. (State’s Lodging E11.) In addition to affirming the summarily dismissed claims, the Court of Appeals
addressed, in relevant part, Petitioner’s claim that his trial counsel was ineffective at the
hearing on the motion for new trial because he failed to subpoena Morris to testify in
support of the motion. (Id. at pp. 8-11.) On that claim, the Court of Appeals concluded
that Petitioner “failed to meet his burden of proving that trial counsel’s performance was
deficient and that he was prejudiced thereby.” (Id. at 11.)
Petitioner was granted permission to file a late Petition for Review, which the
Idaho Supreme Court denied. (State’s Lodgings E-8, E-10.)
On February 23, 2010, Petitioner filed his Petition for Writ of Habeas Corpus in
this Court, alleging (1) that he was denied his right to due process of law under the Fifth
and Fourteenth Amendments when the state court “summarily and absent adequate notice

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dismissed several of his post-conviction claims without an evidentiary hearing” (Claim
A), and (2) that he was deprived of his Sixth Amendment right to the effective assistance
of trial counsel on various grounds (Claims B-1 and B-2). (Dkt. 1, p. 4.) Chief Magistrate
Judge Candy W. Dale conducted an initial review of the Petition and ordered the Clerk to
serve it on Respondents. (Dkt. 6.) Respondents filed a Motion for Partial Summary
Dismissal, and the case was then reassigned to the undersigned District Judge due to lack
of consent from all parties to proceed before a United States Magistrate Judge. (Dkt. 19.)
The Court thereafter granted Respondents’ Motion and dismissed Petitioner’s first
claim as not cognizable in a federal habeas corpus matter and found that the second claim
was properly exhausted only to the extent that it raised an ineffective assistance of trial
counsel claim based on counsel’s handling of the motion for a new trial (Claim B-1).
(Dkt. 8, pp. 1-2.)
The Court ordered Respondents to file an Answer on the remaining claim, and they
have done so. (Dkt. 21.) Respondents have also submitted a Motion for Summary
Judgment in which they contend that relief should be denied. (Dkt. 22.) Petitioner has
filed his Response (Dkt. 26), and the Court is now prepared to resolve this matter.
LEGAL FRAMEWORK FOR HABEAS REVIEW
The provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA)
are applicable to this case. Under AEDPA, the Court cannot grant relief on any federal
claim that the state court adjudicated on the merits, unless the state court’s adjudication of

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the claim:
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.

28 U.S.C. § 2254(d).
Section 2254(d)(1) has two clauses, each with independent meaning. For a
decision to be “contrary to” clearly established federal law, the petitioner must establish
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).
To satisfy the “unreasonable application” clause, 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 independent judgment that the decision is incorrect or wrong; the state
court’s application of federal law must be objectively unreasonable. Lockyer v. Andrade,
538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). Moreover, a federal
habeas court’s review under § 2254(d)(1) “is limited to the record that was before the

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state court that adjudicated the claim on the merits,” and new evidence offered for the
first time in federal court will not be considered. Cullen v. Pinholster, 131 S.Ct. 1388,
1398 (2011).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the state
court’s decision was based upon factual determinations that were “unreasonable in light
of the evidence presented in the State court proceeding.” Id.
CLEARLY ESTABLISHED FEDERAL LAW
To show a violation of the Sixth Amendment based on a claim of ineffective
assistance of counsel, a petitioner must establish (1) that his counsel’s performance was
unreasonably deficient and (2) that the defense was prejudiced as a result. Strickland v.
Washington, 466 U.S. 668, 686-87 (1984).
The standard for attorney performance in a criminal case is that of reasonably
effective assistance, measured under prevailing professional norms. Strickland, 668 U.S.
at 687-88. In assessing whether the representation fell below an objective standard of
reasonableness, counsel’s conduct must be viewed under the facts that existed at the time
that the challenged act or omission occurred, rather than through the benefit 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.
“There are countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in the same way.”

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Strickland, 466 U.S. at 689. As a result, “[t]he question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom.” Harrington v. Richter,
131 S.Ct. at 788 (internal quotations and citation omitted).
If a petitioner can show unreasonably deficient representation, he must still
establish actual prejudice under Strickland’s second prong. To do so, the petitioner must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
A state court has significant freedom to apply rules of general applicability, such
as the rule for ineffective assistance of counsel, to the different fact patterns that come
before it. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). The Supreme Court has
recently reaffirmed that “[w]hen §2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Harrington, 131 S.Ct. at 778.
DISCUSSION
In turning aside Petitioner’s remaining Sixth Amendment claim, the Idaho Court of
Appeals found that Petitioner has shown neither deficient performance nor prejudice.
(State’s Lodging E-4, pp. 10-11.) The Court of Appeals noted that trial counsel testified
in the post-conviction matter that he made a strategic decision to attempt service on
Attorney Morris at the last minute so that he might be caught by surprise, but that the

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strategy backfired when Morris could not be located. (State’s Lodging B-11, p. 10.) In
finding a lack of prejudice, the Court of Appeals relied on trial counsel’s admission at the
post-conviction hearing that Morris likely would have refused to testify that he had made
a statement that incriminated his client. (Id. at 11.) The Court of Appeals also pointed to
trial counsel’s testimony that he thought the motion was generally “weak” and had little
probability of success. (Id.) This Court has reviewed the state court’s decision and
concludes that Petitioner has not established that its adjudication of the claim was
contrary to or involved an unreasonable application of Strickland and its progeny, or was
based on an unreasonable determination of the facts in light of the evidence presented. 28
U.S.C. § 2254(d).
Whatever else might be said about whether it was a reasonable strategy for trial
counsel to delay serving the subpoena on Morris, Petitioner’s claim suffered from a lack
of evidence that, but for counsel’s supposed error, there is a reasonable probability of a
different outcome. That is, the state court’s determination that Petitioner had not shown
prejudice is reasonable. First, it is entirely speculative what Morris might have testified to
had he been properly subpoenaed: he may have denied making the statements attributed to
him; he may have testified that he could not recall making the statements; he may have
testified that the statements were different than how trial counsel described them; or,
perhaps most likely, he may have invoked attorney-client privilege and refused to testify.
Moreover, the statements were lacking in foundation and context. It is unknown why

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Morris may have believed that his client was the shooter, and Petitioner offered no other
evidence to corroborate that view. As the record stands, the proffer before the state court
amounted to the co-defendant’s attorney’s off-hand comment in an informal setting that
he thought the wrong guy may have been prosecuted as the shooter. Even if the trial court
had considered that evidence, without more, there is no reasonable probability that
Petitioner would have received a new trial.
In sum, Petitioner had an opportunity to prove his claim of ineffective assistance in
the state post-conviction hearing, yet he offered no evidence to establish how the hearing
on the motion for a new trial might been changed materially in his favor had his counsel
subpoenaed Morris. The evidence that was presented, mainly speculation from trial
counsel himself, was unfavorable. Trial counsel admitted that he thought the motion was
“very weak . . . but it was all we had.” (State’s Lodging D-3, p. 85.)
Accordingly, the Court concludes that Petitioner has not established that he is
eligible for relief under 28 U.S.C. § 2254(d). Respondents’ Motion for Summary
Judgment will be granted, and this case will be dismissed.1
CERTIFICATE OF APPEALABILITY
As required by Rule 11 of the Rules Governing Section 2254 Cases, the Court now
evaluates this case for suitability of a certificate of appealability (“COA”). See also 28

1

Petitioner claims that there are many factual issues that are still in dispute, but AEDPA requires
the federal court’s review to be based on the record developed in the state court and does not allow for
new factual development in federal court, absent unusual circumstances not present here. See 28 U.S.C.
§ 2254(e)(2).
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U.S.C. § 2253(c).
A habeas petitioner cannot appeal unless a COA has issued. 28 U.S.C. § 2253. A
COA may issue only when the petitioner “has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing can be established by
demonstrating 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 were
“adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
The Court does not believe that reasonable jurists would debate its determination
that Claim A in the Petition is not cognizable, Claim B-2 is procedurally defaulted, and
that Petitioner is not entitled to habeas relief on Claim B-1. The Court will not issue a
COA, though Petitioner is advised that he may still seek one in the Ninth Circuit Court of
Appeals pursuant to Rule 22 of the Federal Rules of Appellate Procedure and Local Ninth
Circuit Rule 22-1. To do so, he must first file a timely notice of appeal in this Court.
ORDER
IT IS ORDERED:
1.

Respondents’ Motion for Summary Judgment (Dkt. 22) is GRANTED.

2.

A certificate of appealabilty will not issue in this case. If Petitioner files a
timely notice of appeal, and not until such time, the Clerk of Court shall
forward a copy of the notice of appeal, together with this Order, to the

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Ninth Circuit Court of Appeals. The district court’s file in this case is
available for review online at www.id.uscourts.gov.
DATED: March 6, 2012

Honorable Edward J. Lodge
U. S. District Judge

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