Cobell v. Smith

Filing 29

MEMORANDUM DECISION AND ORDER, The Petition for Writ of Habeas Corpus is Dismissed. re: 1 Petition for Writ of Habeas Corpus filed by Eugene Ray Cobell. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EUGENE RAY COBELL
Case No. 1:10-cv-00159-CWD
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.

WARDEN JOHANNA SMITH,
Respondent.

Previously in this habeas corpus matter, the Court dismissed as procedurally
defaulted Petitioner’s third claim in his Petition for Writ of Habeas Corpus and all of the
claims in his Supplemental Petition. (Dkt. 19, p. 8.) Respondent has since filed an Answer
(Dkt. 24), Petitioner has submitted a Reply (Dkt. 25), and the Petition is now at issue. The
parties have consented to a United States Magistrate Judge conducting all proceedings, in
accordance with 28 U.S.C. § 636(c). (Dkt. 8.) 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 concludes that Petitioner is not entitled
to habeas relief, and the Petition will be dismissed.
BACKGROUND
In the early morning hours of November 12, 2007, Petitioner, then 72 years of age,
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forced his 20-year-old grand-niece to have sex with him. (State’s Lodging B-4, pp. 1-2.)
Based on this incident, the State charged him with one count of rape and one count of
penetration by a foreign object. (State’s Lodging A-1, pp. 7-8.) He was convicted on both
counts, and the district court sentenced him to concurrent terms of life in prison, with the
first ten years fixed. (State’s Lodging A-1, pp. 80-81.)
On direct appeal, Petitioner argued, in relevant part: (1) that the district court
violated his constitutional rights when it allowed the prosecutor to cross-examine him in a
manner that permitted the jury to infer his guilt from his silence after he had been given
Miranda warnings; and (2) that prosecutor committed prejudicial misconduct on crossexamination and in closing argument that deprived him of his Sixth and Fourteenth
Amendment rights to a fair trial. (State’s Lodging B-1, pp. 8-32.) While the Idaho Court
of Appeals agreed with Petitioner that one question the prosecutor had asked him on
cross-examination violated his constitutional rights, it found that the error was harmless
beyond a reasonable doubt. (State’s Lodging B-4, pp. 5-6.) The Idaho Court of Appeals
rejected the prosecutorial misconduct claim, finding no fundamental error. (State’s
Lodging B-4, pp. 8-9.) Petitioner filed a petition for review, but the Idaho Supreme Court
declined to review the case. (State’s Lodgings B-7.)
Petitioner next filed a Petition for Writ of Habeas Corpus in this Court, raising
three claims of constitutional error. (Dkt. 1.) Claims 1 and 2 generally correspond to the
“use of silence” and prosecutorial misconduct claims that Petitioner raised during his
direct appeal in state court. (Dkt. 1, pp. 2-3.) In his third claim, Petitioner contends that
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his concurrent sentences of ten years to life amount to cruel and unusual punishment, in
violation of the Eighth Amendment. (Dkt. 1, p. 3.) This Court conducted an initial review
of the Petition and ordered Respondent to submit a response. (Dkt. 5.)
While the federal matter was pending, Petitioner returned to state court and raised
numerous claims in a petition for post-conviction relief. (State’s Lodging C-5.) The state
court eventually dismissed the petition without an evidentiary hearing, and Petitioner did
not appeal. (State’s Lodging C-5, p. 3; State’s Lodging C-6.) Instead, he lodged a
Supplemental Petition in this Court, in which he reiterated the allegations in the original
Petition and included new claims of ineffective assistance of trial and appellate counsel.
(Dkt. 12.)
Respondent responded to the Petition and the Supplemental Petition with a Motion
for Partial Summary Dismissal. (Dkt. 15.) The Court granted Respondent’s Motion and
dismissed, as procedurally defaulted, the Eighth Amendment claim in the original Petition
(Claim 3) and all of the new claims in the Supplemental Petition. (Dkt. 11-1, pp. 5-10.)
The Court ordered Respondent to file an answer to Claims 1 and 2, which he has
now done. (Dkt.24.) Petitioner has submitted a Reply (Dkt. 25), and the Court is prepared
to issue its ruling.
STANDARD OF LAW
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
MEMORANDUM DECISION AND ORDER - 3

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
state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388,
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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.
Under all circumstances, state court findings of fact are presumed to be correct,
and the petitioner has the burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
ANALYSIS
1.

Claim 1 – The Prosecutor’s Use of Petitioner’s Silence
At trial, Petitioner admitted that he and his grand-niece had engaged in sexual

conduct, but he testified that it was consensual. This was the first time that he had
asserted a defense of consent, and the prosecutor asked him several questions about his
failure to come forward with an exculpatory story when he had an opportunity to do so
before trial.
Petitioner’s first claim in his Petition is that the prosecutor’s cross-examination on
this subject violated his constitutional rights because it allowed the jury to infer guilt from
his previous invocation of his right to silence. The Idaho Court of Appeals agreed, but
found the error to be harmless in light of the strength of the evidence against Petitioner
and the isolated nature of the improper comment. This Court is persuaded by
Respondent’s argument that Petitioner cannot establish that the Idaho Court of Appeals’
decision is contrary to or involved an unreasonable application of clearly established
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federal law.
A.

Clearly Established Supreme Court Precedent

In Miranda v. Arizona, 384 U.S. 436 (1966),the Supreme Court held that whenever
a criminal suspect is subjected to custodial interrogation, police officers must warn him of
his right to remain silent and his right to counsel during an interrogation. Id. at 444. These
warnings are intended to be a procedural safeguard to “secure the [Fifth Amendment]
privilege against self-incrimination.” Id. In Doyle v. Ohio, 426 U.S. 610 (1976), the
Supreme Court determined that a criminal defendant who testifies at trial has a due
process right not to be impeached on cross-examination about his failure to tell police
officers his exculpatory version of the events after receiving Miranda warnings. Id. at
618-19. This is so because the warnings implicitly promise a suspect that his silence will
carry no penalty. Id. at 617-19.
The key aspect of the due process right defined in Doyle, however, is that the
suspect must be given Miranda warnings and then remain silent. A prosecutor is free to
impeach a testifying defendant about his failure to tell his story to officers or others
before he was “Mirandized,” or even after his arrest if he was never given Miranda
warnings. See Jenkins v. Anderson, 447 U.S. 231, 240 (1980) (“no governmental action
induced petitioner to remain silent before arrest); see also Fletcher v. Weir, 455 U.S. 603,
605-07 (holding that impeachment with post-arrest silence is not a due process violation
in the absence of Miranda warnings). Similarly, a defendant who chooses to speak to
investigators but who later offers a different story at trial is not immune from a
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prosecutor’s cross-examination about why he failed to tell investigators the same version
of the events when he was interviewed. Anderson v. Charles, 447 U.S. 404, 407-08
(1980). In that circumstance, the prosecutor is using the defendant’s inconsistent
statements as impeachment rather than his “silence.” Id.
A Doyle violation, like most constitutional errors, is subject to harmless error
analysis. That is, if a reviewing court concludes beyond a reasonable doubt that the error
did not affect the jury’s verdict, then the conviction may stand without offending the
Constitution. Chapman v. California, 386 U.S. 18, 24 (1967).
B.

Discussion

Here, the Idaho Court of Appeals accepted Petitioner’s argument that the
prosecutor violated his constitutional rights when she asked a question on crossexamination that implicated his post-Miranda silence. The court nonetheless concluded
that the Doyle violation was harmless beyond a reasonable doubt.
In reaching its conclusion, the Idaho Court of Appeals found that the State’s case
against Petitioner was strong. It pointed to testimony from the victim’s family members
who said that the victim did not delay in reporting the assault to them and that she was
highly agitated when she did so. (State’ Lodging B-4, p. 6.) The description of the
victim’s emotional state was corroborated by the first police officers to arrive. (Id.)
Additionally, a medical examination at the hospital revealed that the victim had injuries
that were consistent with her version of the events. (Id.)
The Idaho Court of Appeals further concluded that any prejudice to Petitioner was
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minimized because the constitutional violation consisted of a single question about postMiranda silence that “fell within a long string of permissible questions attacking the
credibility of [Petitioner’s] testimony that the sexual encounter was consensual.” (State’s
Lodging B-4, p. 6.) These other questions “highlighted inconsistencies in [Petitioner’s]
testimony with the version related on the night in question, including his pre-Miranda
failure to claim that the encounter was consensual.” (Id.) Petitioner had also opened the
door to examination on the subject to a certain degree when he volunteered, during his
direct examination, that he had decided not to speak to the police.1
For these reasons, the Idaho Court of Appeals was “convinced beyond a
reasonable doubt that the jury would have found [Petitioner] guilty of rape and
penetration with a foreign object absent the prosecutor’s passing question implicating his
post-Miranda silence at the police station.” (State’s Lodging B-4, p. 6.)
The state court’s decision was not contrary to or an unreasonable application of
clearly established federal law. This Court concurs with the state court that the record

1

The Court notes that Petitioner waived an argument in state court that the prosecutor’s
questioning about his pre-arrest, pre-Miranda silence was improper. (State’s Lodging B-3, p. 3; State’s
Lodging B-4, pp. 2-3.) Even if he had not waived the issue, the prosecutor’s cross-examination about
Petitioner’s failure to tell the victim’s mother and the responding police officer that the sexual encounter
was consensual did not violate his constitutional rights because he had made statements to these witnesses
and was not “silent”at that time. See Anderson v. Charles, 447 U.S. 404, 407-08 (1980). Because such a
claim on this theory is plainly without merit, the Court sees no reason to address Respondent’s argument
that it is also procedurally defaulted. (Dkt. 24, pp. 6-10.)
In addition, although the government’s use of a defendant’s pre- or post-Miranda silence as
substantive evidence of guilt in its case-in-chief, rather than to impeach a testifying defendant, would
likely violate the defendant’s Fifth Amendment privilege against self-incrimination, see, e.g., United
States v. Velarde, 269 F.3d 1023, 1030-31 (2001), that situation is not present in this case.

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contains a strong case of Petitioner’s guilt. Petitioner’s testimony that his grand-niece –
52 years his junior – instigated and willingly engaged in sexual activity with him was
highly implausible on its face and, more important, was not corroborated by any other
evidence. The evidence also showed that there was no significant delay between the
encounter and the victim’s disclosure that might have bolster’s Petitioner’s claim that the
victim consented before later fabricating a rape charge, and the victim seemed credible in
light of her apparently genuine post-assault emotional state and the medical examination
that followed. Petitioner’s repeated claim that his medical condition made him impotent
and incapable of full intercourse was immaterial, as the victim testified that he was
partially flaccid during the encounter. Further minimizing the prejudicial sting from the
prosecutor’s improper cross-examination is that the question was buried among similar
yet proper questions that contrasted Petitioner’s new story with his protestations of
innocence in the immediate aftermath of the event but before he had been Mirandized.
Accordingly, Petitioner is not entitled to habeas relief on Claim 1.
2.

Claim 2 – Prosecutorial Misconduct
In his second claim, Petitioner asserts that the prosecutor committed misconduct

that deprived him of his right to a fair trial under the Sixth and Fourteenth Amendments.
Part of his claim rests on the prosecutor’s cross-examination of Petitioner using his postMiranda silence; the remainder of the claim is based on aspects of the prosecutor’s
closing argument in which she focused on Petitioner’s failure to tell his story when he had
the chance before trial and when she stated that his impotence was “situational.” The
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Idaho Court of Appeals rejected these arguments after concluding that the prosecutor’s
use of silence, to the extent that it was improper, was harmless for the reasons that it had
addressed in the Doyle discussion, and that while the prosecutor misstated the evidence
on one occasion regarding Petitioner’s impotence, it did not rise to a fundamental error.
(State’s Lodging B-4, pp. 8-9.)
This Court has reviewed the record and finds that the Idaho Court of Appeals’
adjudication of the constitutional claim was reasonable. The scope of a prosecutorial
misconduct issue on habeas review is a “narrow one of due process, and not the broad
exercise of supervisory power.” 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.
The Court has already concluded that the Idaho Court of Appeals’ harmless error
determination as to the Doyle violation was reasonable, and Petitioner cannot show that
the remaining instances of alleged misconduct so infected his trial as to make it
fundamentally unfair. The Court finds nothing unreasonable in the Idaho Court of
Appeals’ conclusion that, because Petitioner had made statements to the victim’s mother
and the first police officer to arrive on the scene, the prosecutor was permitted to
comment about Petitioner’s failure to tell them that the victim consented to the sexual
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activity:
[I]t is clear when read in context that the prosecutor was referencing the
impeachment of [Petitioner’s] story based on his different responses – the
response to the victim’s mother and the investigating officer when
[Petitioner] stated that he did not rape the victim and he could not have
raped her compared with the version [Petitioner] offered at trial that the
encounter was consensual.
(State’s Lodging B-4, p. 8.) There is no constitutional infirmity in a prosecutor’s
questions or comments about inconsistent or incomplete statements that a defendant has
made to different witnesses at different times. And, although the prosecutor misstated the
evidence regarding the permanency of Petitioner’s impotence, the misstatement was
inconsequential because his condition did not contradict the sexual conduct that had been
described by the victim.
For these reasons, relief will also be denied on Claim 2.
CERTIFICATE OF APPEALABILITY
In the event Petitioner files a timely notice of appeal, the Court must on its own
initiative has evaluated this case for suitability of a certificate of appealability (“COA”).
See 28 U.S.C. § 2253(c); Rule 11 of the Rules Governing Section 2254 Cases.
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

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“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)).
This Court does not believe that reasonable jurists would debate its determination
that Petitioner is not entitled to habeas relief on Claims 1 and 2 and that the additional
claims in his Petition were not properly exhausted and are now procedurally defaulted.
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.

The Petition for Writ of Habeas Corpus (Dkt. 1) is DISMISSED.

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
Ninth Circuit Court of Appeals. The district court’s file in this case is
available for review online at www.id.uscourts.gov.
DATED: November 26, 2012

Honorable Candy W. Dale
United States Magistrate Judge

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