Melton v. Wengler et al

Filing 75

MEMORANDUM DECISION AND ORDER granting 60 Respondent's Motion for Summary Dismissal; granting 62 Petitioner's Motion for Extension of Time to File Response; granting 64 Petitioner's Second Motion for Extension of Time to File Res ponse; granting 66 Petitioner's Motion for Leave to File an Oversize Brief; granting 68 Respondent's Motion for Extension of Time to File Reply; denying 71 Respondent's Motion to Strike. This entire action is DISMISSED with preju dice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RAYMOND JULIUS MELTON,
Case No. 1:10-cv-00364-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

BRENT REINKE, Director of the Idaho
Department of Correction,
Respondent.

Pending before the Court is Petitioner Raymond Julius Melton’s Amended Petition
for Writ of Habeas Corpus. (Dkt. 47.) This case was stayed for a time while Petitioner
pursued state postconviction remedies and has now been reopened.
On February 19, 2014, the Court dismissed Claims Five, Seven, and Nine of the
Petition with prejudice as non-cognizable. (Dkt. 50.) Respondent has filed a Motion for
Summary Dismissal with respect to Petitioner’s remaining claims. (Dkt. 60.) Petitioner
MEMORANDUM DECISION AND ORDER 1

has filed a response to the Motion, and Respondent has filed a Reply. (Dkt. 67, 69.) The
Court takes judicial notice of the records from Petitioner’s state court proceedings, lodged
by Respondent on March 14, 2011; October 19, 2012; June 6, 2013; and May 20, 2014.
(Dkt. 13, 30, 37, 59.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551
(9th Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 12.)
Having carefully 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 oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly,
the Court enters the following Order granting Respondent’s Motion and dismissing this
habeas case with prejudice.
BACKGROUND
Petitioner pleaded guilty in the Fifth Judicial District Court, in Gooding County,
Idaho, to one count of lewd conduct with a minor child under 16 years of age, in violation
of Idaho Code § 18-1508. He was sentenced to a unified term of life imprisonment with
25 years fixed. (State’s Lodging B-4 at 1.) Petitioner appealed his sentence, arguing that
his sentence was an abuse of discretion under Idaho law. (State’s Lodging B-1.) The
Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s
Lodging B-4, B-7.)

MEMORANDUM DECISION AND ORDER 2

While his direct appeal was still pending, Petitioner filed an initial petition for
postconviction relief, which he later amended through counsel. (State’s Lodging C-1 at 15, 36-38.) The amended petition alleged that Petitioner’s guilty plea was not knowing and
voluntary and that trial counsel rendered ineffective assistance by (a) pressing Petitioner
to plead guilty, (b) advising Petitioner that a guilty plea was the only way to resolve the
matter, (c) failing to advise Petitioner of any defenses, (d) failing to prepare pre-trial or to
file motions to suppress, (e) failing to take the time or make the effort required to take
Petitioner’s case to trial, (f) failing to investigate the case, and (g) failing to explain the
true nature of the charge and the consequences of pleading guilty. (State’s Lodging C-1 at
37.) At the evidentiary hearing on the petition, Petitioner claimed that his trial counsel
was also ineffective for failing to move for a reduction of sentence under Idaho Criminal
Rule 35 and for failing to procure a plea agreement that was binding as to sentencing.
(State’s Lodging C-2 at 72-73, 127.)
The state district court denied postconviction relief on all claims, including the
Rule 35 claim and the claim regarding a binding sentencing agreement. (State’s Lodging
C-1 at 42-55; C-2 at 131, 134-35, 140.) Petitioner appealed with the aid of the State
Appellate Public Defender’s Office; however, postconviction appellate counsel later
moved to withdraw after concluding that the appeal was frivolous. (State’s Lodging D-4,
D-5.) The Idaho Supreme Court granted the motion, and Petitioner proceeded without
counsel. His appeal was dismissed when he did not file a timely opening brief. (State’s

MEMORANDUM DECISION AND ORDER 3

Lodging D-10.)
Shortly thereafter, Petitioner returned to the trial court and filed a second
postconviction petition, arguing that his initial postconviction counsel rendered
ineffective assistance by failing “to submit any evidence or lagimate [sic] argument at my
evidentiary hearing.” (State’s Lodging E-1 at 2.) The trial court summarily dismissed the
petition without addressing Petitioner’s motion for appointment of counsel, and the Idaho
Court of Appeals affirmed. (Id. at 89-104; State’s Lodging F-6.) The Idaho Supreme
Court granted review and affirmed, concluding that, “although the district court erred in
not considering [Petitioner’s] motion for appointment of counsel” before dismissing the
petition, that error was not prejudicial. (State’s Lodging F-13 at 9.)
Petitioner later filed a third postconviction petition in state court. (State’s Lodging
G-1 at 1-7.) Petitioner argued that his postconviction appellate counsel rendered
ineffective assistance by (1) not raising a claim of ineffective assistance of previous
postconviction counsel, and (2) not “federaliz[ing]” Petitioner’s claims. (Id. at 3-6.) The
trial court denied Petitioner’s motion to appoint counsel and dismissed the petition. (Id. at
33-42, 44-45.)
Petitioner was appointed counsel to represent him on appeal from the dismissal of
his third postconviction petition, but counsel later withdrew after Petitioner decided to
represent himself. (State’s Lodging H-4 to H-7.) The Idaho Court of Appeals affirmed,
concluding that the petition was untimely. (State’s Lodging H-9.) The Idaho Supreme

MEMORANDUM DECISION AND ORDER 4

Court denied review. (State’s Lodging H-12.)
DISCUSSION
Because the Court previously dismissed Claims Five, Seven, and Nine of the
Petition, the following seven claims remain at issue in this case:
Claim One: Ineffective assistance of trial counsel for failing
to advise Petitioner that he was not required to
participate in the court-ordered psychosexual
evaluation (Dkt. 47-1 at 1);
Claim Two: Ineffective assistance of trial counsel for failing
to move to suppress the psychosexual
evaluation (id.);
Claim Three: Ineffective assistance of trial counsel for failing
to ensure that Petitioner’s allegedly binding plea
agreement was enforced (id. at 5);
Claim Four: Ineffective assistance of trial counsel for (a)
pressing Petitioner to plead guilty and failing to
ensure his guilty plea was knowing and
voluntary, (b) failing to advise Petitioner of any
defenses, (c) failing to prepare pretrial or to file
motions to suppress, (d) failing to take the time
or make the effort to take the case to trial, (e)
failing to investigate the case, and (f) failing to
explain the true nature of the charge and the
consequences of pleading guilty (id. at 10);
Claim Six:

Prosecutorial misconduct based on the
prosecutor allegedly eliciting false testimony
from the victim at the preliminary and
sentencing hearings (id. at 16);

Claim Eight: Ineffective assistance of direct appeal counsel
for raising a sentencing claim instead of federal
constitutional claims, particularly his claim of
MEMORANDUM DECISION AND ORDER 5

prosecutorial misconduct (id. at 41); and
Claim Ten:

Ineffective assistance of trial counsel for failing
to move for a reduction of sentence under Idaho
Criminal Rule 35 (id. at 47).

Respondent now seeks dismissal of all of these remaining claims on the ground
that they are procedurally defaulted. (Dkt. 60-1.)
1.

Standard of Law Governing Summary Dismissal
Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”) authorizes

the Court to summarily dismiss a petition for writ of habeas corpus or claims contained in
the petition when “it plainly appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court.” The Court may
also deny a habeas petition on the merits even if it otherwise procedurally barred. See 28
U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State.”)
2.

Standard of Law Governing Procedural Default
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 to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors

MEMORANDUM DECISION AND ORDER 6

at each level of appellate review. Id. at 845. 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.
Id. at 847.
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995). General references in state court to broad constitutional principles, such as
due process, equal protection, or the right to a fair trial, are likewise insufficient. See
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear that, for proper
exhaustion, a petitioner must bring his federal claim before the state court by “explicitly”
citing the federal legal basis for his claim, “regardless of whether the petitioner [is]
proceeding pro se.” Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended,
247 F.3d 904 (9th Cir. 2001) (emphasis omitted).
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, 161-62 (1996). Procedurally defaulted claims include
those within the following circumstances: (1) when a petitioner has completely failed to
raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim,
but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3)

MEMORANDUM DECISION AND ORDER 7

when the Idaho courts have rejected a claim on an adequate and independent state
procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson,
501 U.S. 722, 750 (1991).
To be an “adequate” state ground, a state court’s procedural bar must be one that is
“‘clear, consistently applied, and well-established’ at the time of the petitioner’s
purported default.” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting
Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is
“independent” of federal law if it does not rest on federal grounds and is not intertwined
with federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
A.

General Standard of Law for Cause and Prejudice under Coleman v.
Thompson

Even if a claim is a procedurally defaulted, that claim may still be heard on the
merits if a petitioner establishes cause and prejudice to excuse the default.1 Coleman v.
Thompson, 501 U.S. 722, 750 (1991). To show “cause” for a procedural default, a
petitioner must ordinarily demonstrate that some objective factor external to the defense
impeded his or his counsel’s efforts to comply with the state procedural rule at issue.
Murray v. Carrier, 477 U.S. 478, 488 (1986). To show “prejudice,” a petitioner generally
bears “the burden of showing not merely that the errors [in his proceeding] constituted a

1

Although there is also a miscarriage of justice exception to the procedural default
doctrine, Schlup v. Delo, 513 U.S. 298, 324 (1995), Petitioner does not allege that he is factually
innocent of the crime, see Bousley v. United States, 523 U.S. 614, 623 (1998). (Dkt. 67.)
Therefore, the Court need not address the miscarriage of justice exception.
MEMORANDUM DECISION AND ORDER 8

possibility of prejudice, but that they 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).
B.

Standard of Law for Cause and Prejudice under Martinez v. Ryan

A petitioner does not have a federal constitutional right to effective assistance of
counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule
is that any errors of counsel during the postconviction action cannot serve as cause to
excuse a procedural default. Coleman, 501 U.S. at 752.
Martinez v. Ryan, 132 S. Ct. 1309 (2012), established a limited exception to this
general rule that applies only to Sixth Amendment ineffective assistance of counsel
(“IAC”) claims. Martinez held that inadequate assistance of postconviction review
(“PCR”) counsel or lack of counsel “at initial-review collateral review proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.” Id. at 1315. In Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir. 2013), the Ninth
Circuit extended Martinez, holding that it can also apply to procedurally defaulted claims
of ineffective assistance of direct appeal counsel.
In Trevino v. Thaler, the Supreme Court described the Martinez analysis as
consisting of four prongs:
We consequently read Coleman as containing an
exception, allowing a federal habeas court to find “cause,”
MEMORANDUM DECISION AND ORDER 9

thereby excusing a defendant’s procedural default, where (1)
the claim of “ineffective assistance of trial counsel” was a
“substantial” claim; (2) the “cause” consisted of there being
“no counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to
the “ineffective-assistance-of-trial-counsel claim”; and (4)
state law requires that an “ineffective assistance of trial
counsel [claim] . . . be raised in an initial-review collateral
proceeding.”
133 S. Ct. 1911, 1918 (2013) (citing Martinez, 132 S. Ct. at 1318-19, 1320-21)
(alterations in original). Trevino also extended Martinez to apply not only where a state
requires IAC claims to be raised in postconviction proceedings, but also where a state’s
“procedural framework, by reason of its design and operation, makes it highly unlikely in
a typical case that a defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal.” Trevino, 133 S. Ct. at 1921.
Therefore, Martinez applies in Idaho where the postconviction setting was the first forum
in which the ineffective assistance of trial counsel claim based on matters arising outside
the record could have been raised and developed. See Matthews v. State, 839 P.2d 1215,
1220 (Idaho 1992) (recognizing that in Idaho the post-conviction setting is the “preferred
forum for bringing claims of ineffective assistance of counsel,” though in limited
instances such claims may be brought on direct appeal “on purported errors that arose
during the trial, as shown on the record”).

MEMORANDUM DECISION AND ORDER 10

3.

Discussion
Petitioner does not dispute Respondent’s contention that his remaining claims are

procedurally defaulted. Rather, Petitioner argues that cause and prejudice excuse the
default of each claim. For the reasons that follow, the Court disagrees.
A.

Claim Six and Any Claim of an Involuntary Plea

Petitioner does not assert that traditional, or Coleman, cause and prejudice exist to
excuse the default of any of his claims. Further, Martinez v. Ryan applies only to
underlying claims of ineffective assistance of counsel. See Hunton v. Sinclair, 732 F.3d
1124, 1126-27 (9th Cir. 2013) (declining to extend Martinez to underlying Brady claims),
cert. denied, 134 S. Ct. 1771 (2014). Thus, it does not apply to Claim Six, which alleges
prosecutorial misconduct.
Although the Petition does not include a claim that Petitioner’s guilty plea was not
knowing, intelligent, and voluntary, Petitioner attempts to raise that issue in his response
to the Motion for Summary Dismissal. (Dkt. 67 at 12-14.) Like Claim Six, any claim of
an involuntary guilty plea is not subject to a Martinez analysis because it is not an IAC
claim.
Petitioner has not established Coleman cause and prejudice to excuse the default of
Claim Six or of any claim that his guilty plea was not knowing and voluntary.
B.

Claims Three, Four, and Ten

Martinez does not apply to Claims Three, Four (including all sub-claims), or Ten.

MEMORANDUM DECISION AND ORDER 11

Those claims were defaulted not because of ineffective assistance of initial PCR counsel,
but because Petitioner’s first postconviction appeal was dismissed for failure to file an
opening brief.
The Martinez exception applies only to the lack of counsel or ineffectiveness of
counsel in the initial postconviction review proceeding. It “does not extend to attorney
errors in any proceeding beyond the first occasion the State allows a prisoner to raise a
claim of ineffective assistance.” Martinez, 132 S. Ct. at 1320. Rather, the Court in
Martinez was singularly concerned that, if ineffective assistance of trial counsel claims
were not brought in the collateral proceeding which provided the first occasion to raise
such claims, the effect was that the claims could not be brought at all. Id. at 1316.
Therefore, a petitioner may not assert as cause attorney error that occurred in “appeals
from initial-review collateral proceedings, second or successive collateral proceedings,
[or] petitions for discretionary review in a State’s appellate courts.” Id. at 1320.
Here, Petitioner’s initial PCR counsel raised all of the grounds in Claims Three,
Four, and Ten in the initial postconviction proceedings, either in the amended petition
itself or at the evidentiary hearing on the petition. (State’s Lodging C-1 at 37; C-2 at 119127.) The state district court denied all of these claims on the merits. (State’s Lodging C1 at 44-55; C-2 at 128-39.) The default of these claims occurred on appeal from the
dismissal of the initial PCR proceedings, rather than at the initial postconviction review
stage. Thus, Martinez cannot be used to establish cause and prejudice for the default of

MEMORANDUM DECISION AND ORDER 12

Claims Three, Four, or Ten.
C.

Claims One, Two, and Eight

Claims One, Two, and Eight were not raised by initial PCR counsel, either in the
petition or at the evidentiary hearing. Thus, pursuant to Martinez, the Court will now
consider whether those claims are substantial and whether initial PCR counsel was
ineffective in failing to raise them.
i.

Prong One of Martinez: Substantiality of Underlying IAC Claims

For the Martinez exception to apply, a petitioner must bring forward facts
demonstrating that his underlying IAC claim is substantial. The United States Supreme
Court has defined “substantial” as a claim that “has some merit.” Martinez, 132 S. Ct. at
1318 (comparing the standard for certificates of appealability from Miller-El v. Cockrell,
537 U.S. 322 (2003)). Stated inversely, a claim is “insubstantial” if “it does not have any
merit or . . . is wholly without factual support.” Id. at 1319.
Determining whether an IAC claim is substantial requires a federal district court to
examine the claim under Strickland v. Washington, 466 U.S. 668 (1984). A petitioner
asserting ineffective assistance of counsel must show that (1) “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment,” and (2) counsel’s errors “deprive[d] the defendant of a fair trial, a
trial whose result is reliable.” Id. at 687.
Whether an attorney’s performance was deficient is judged against an objective

MEMORANDUM DECISION AND ORDER 13

standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. 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.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense or what evidence to present,
“are virtually unchallengeable” if “made after thorough investigation of law and facts
relevant to plausible options.” Strickland, 466 U.S. at 690. Moreover, an attorney who
decides not to investigate a particular theory or issue in the case is not ineffective so long
as the decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
MEMORANDUM DECISION AND ORDER 14

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 reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91.
If a petitioner shows that counsel’s performance was deficient, the next step in the
Strickland inquiry is the prejudice analysis. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Id. at 691. To satisfy the prejudice standard, a
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.” Id. at 694.
As the Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
MEMORANDUM DECISION AND ORDER 15

Id. at 695-96. For a petitioner to establish Strickland prejudice, “[t]he likelihood of a
different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S.
86, 131 S. Ct. 770, 792 (2011).
These standards from Strickland for determining deficient performance and
prejudice are, of course, the standards for an eventual review of the merits of the
underlying IAC claim. The question whether an IAC claim is substantial under Martinez
is not the same as a merits review; rather, it is more akin to a preliminary review of a
Strickland claim for purposes of determining whether a certificate of appealability should
issue. See Martinez, 132 S.Ct. at 1318-19. Therefore, a court may conclude that a claim is
substantial when a petitioner has shown that resolution of the merits of the Strickland
claim would be “debatable amongst jurists of reason” or that the issues presented are
“adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336
(internal quotation marks omitted). Thus, to determine whether a claim is substantial,
Martinez requires the district court to review but not determine whether trial or appellate
counsel’s acts or omissions resulted in deficient performance and in a reasonable
probability of prejudice, and to determine only whether resolution of the merits of the
claim would be debatable among jurists of reason and the issues are deserving enough to
encourage further pursuit of them.
ii.

Prong Two of Martinez: Ineffective Assistance of PCR Counsel

In addition to showing that the underlying IAC claim is substantial, a petitioner

MEMORANDUM DECISION AND ORDER 16

seeking to invoke Martinez must also show either that he had no counsel on initial
postconviction review, or that his PCR counsel was “ineffective under the standards of
Strickland.” 132 S. Ct. at 1318; see Trevino, 133 S. Ct. at 1918. “Ineffectiveness” is a
term defined by Strickland as (1) deficient performance and (2) a reasonable probability
of prejudice caused by the deficient performance. 466 U.S. at 694, 700.
As to PCR counsel’s performance, not just any error or omission of PCR counsel
will be deemed “deficient performance” that will satisfy Martinez; if the PCR “attorney in
the initial-review collateral proceeding did not perform below constitutional standards,”
the PCR attorney’s performance does not constitute “cause.” 132 S. Ct. at 1319. The
Strickland standards for analyzing deficient performance set forth above apply with equal
force to PCR counsel in the context of a Martinez argument. Importantly, PCR counsel
“is not necessarily ineffective for failing to raise even a nonfrivolous claim.” Sexton v.
Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).
If PCR counsel’s performance is deficient, then the court must consider whether
that performance was prejudicial under Strickland. See Clabourne v. Ryan, 745 F.3d 362,
377 (9th Cir. 2014). Therefore, even if a petitioner shows that his IAC claims are
substantial under the first Martinez prong, he must still show that postconviction counsel
rendered deficient performance and that, “but for post-conviction counsel’s failure to
raise [the substantial IAC] claims, there is a reasonable probability that the result of the
post-conviction proceeding would have been different” under the second Martinez prong.

MEMORANDUM DECISION AND ORDER 17

Id. at 378. These two inquiries will, at times, collapse into one. Id. at 382 (“Under the
circumstances of this case, if [the petitioner] succeeds in demonstrating that he was
prejudiced by the failure of his post-conviction counsel, he will necessarily have
established that there is at least ‘some merit’ to his claim that he suffered ineffective
assistance of trial counsel at resentencing.”).
The Court may address either inquiry first, and the resolution of one prong may
obviate the need to address the other. See Martinez, 132 S. Ct. at 1319 (“When 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 not have any
merit or that it is wholly without factual support, or that the attorney in the initial-review
collateral proceeding did not perform below constitutional standards.”).
iii.

Claims One, Two, and Eight are Not Substantial, and Initial PCR
Counsel Was Not Ineffective in Failing To Raise Them

Claims One and Two—that trial counsel rendered ineffective assistance by (1)
failing to advise Petitioner he had a right not to participate in the psychosexual evaluation
for purposes of sentencing and (2) failing to move to suppress that evaluation—are based
on the Idaho Supreme Court’s decision in Estrada v. State, 149 P.3d 833 (Idaho 2006).
Estrada held that the Sixth Amendment right to effective assistance of counsel applies
during a court-ordered psychosexual evaluation and that trial counsel’s failure to advise a
defendant of his Fifth Amendment right to remain silent at such an evaluation can
constitute deficient performance under Strickland. Id. at 837-39.
MEMORANDUM DECISION AND ORDER 18

However, initial PCR counsel filed Petitioner’s amended postconviction petition in
June 2004, more than two years before Estrada was decided. Initial PCR counsel was not
ineffective for failing to anticipate the Estrada decision. See Lowry v. Lewis, 21 F.3d 344,
346 (9th Cir. 1994) (“[Petitioner’s] lawyer cannot be required to anticipate our decision in
[a] later case, because [counsel’s] conduct must be evaluated for purposes of the
performance standard of Strickland ‘as of the time of counsel’s conduct.’”) (quoting
Strickland, 466 U.S. at 690). Before Estrada, there was no reason for initial PCR counsel
to litigate an IAC claim with respect to a psychosexual evaluation because the courts had
not yet recognized that such a claim was viable. See Veenstra v. Smith, 2014 WL 1270626
*17 (D. Idaho Mar. 26, 2014) (“Claim Nine, which is based on trial counsel’s failure to
advise Petitioner of his right to remain silent during the psychosexual evaluation, is not
substantial because prior to the Idaho Supreme Court’s 2006 decision in Estrada, such a
right had not been recognized, and such a claim would have been entirely novel.”).
Further, the Idaho Court of Appeals held in 2009 that Estrada is not retroactive;
thus, it would not have applied to Petitioner’s case, which became final long before
Estrada was decided. Kriebel v. State, 219 P.3d 1204, 1207 (Idaho Ct. App. 2009).
Finally, Petitioner has offered nothing to support a claim that had he refused to participate
in the psychosexual evaluation, there is a reasonable probability that his sentence would
have been different.2 Therefore, Claims One and Two are insubstantial, and PCR counsel
2

A defendant’s refusal to participate in the psychosexual evaluation “does not mean . . .
that the sentencing court would not conduct a presentence investigation (PSI) and have a PSI
MEMORANDUM DECISION AND ORDER 19

was not ineffective in failing to raise them during Petitioner’s initial-review
postconviction proceedings.
Claim Eight alleges that direct appeal counsel was ineffective for raising only a
state-law sentencing claim instead of any federal constitutional claims. (Dkt. 47-1 at 4146.) Specifically, Petitioner argues that instead of pursuing a claim that was a “dead bang
loser,” direct appeal counsel should instead have argued that the prosecutor committed
misconduct by eliciting false statements from Petitioner’s victim at the preliminary
hearing or at sentencing through a letter she wrote to the court. (Id. at 43.)
Petitioner cannot show a substantial claim of ineffective assistance of direct appeal
counsel for failing to raise a prosecutorial misconduct claim related to the victim’s
testimony at the preliminary hearing or the statements in her letter. Petitioner himself
admitted during postconviction proceedings that he had genital-to-anal contact with the
victim, but claimed that some of the victim’s other statements were untrue:
Petitioner:

. . . And I didn’t want to put her [the victim]
through the stuff you [the prosecutor] were
telling her to say.

Prosecutor:

Which was to tell the truth?

Petitioner:

Which was forcefully to get her to testify
against her will.

report prepared; rather, the PSI report would be based only on interviews with other people,
Petitioner’s criminal record, and other materials derived from sources other than Petitioner.” See
Hoak v. Idaho, 2013 WL 5410108, *15 (D. Idaho Sept. 25, 2013). Petitioner has not established
a colorable claim that the PSI report or the state court’s sentencing decision would have any been
different had he refused to participate in the psychosexual evaluation.
MEMORANDUM DECISION AND ORDER 20

Prosecutor:

Did she lie on the stand?

Petitioner:

Yes, sir.

Prosecutor:

How did she lie on the stand, Mr. Melton?

Petitioner:

When she was doing her last statement in the
courtroom where she said that she seen me
choke . . . her mother. I have never choked her
mother or hurt her mother in any way.

Prosecutor:

That was during the sentencing part?

Petitioner:

Yes.

Prosecutor:

And did I tell her to lie on the stand?

Petitioner:

It was a letter that she didn’t write, from what I
understand.

Prosecutor:

Okay, so that’s when she lied. She didn’t come
here and testify at sentencing, did she?

Petitioner:

I did not try to stick it up her butt like you guys
told me. I rubbed it up against the crack of her
butt. I didn’t put it up the part where she takes a
shit at. Excuse my way of putting that, sir.

Prosecutor:

She didn’t come into the courtroom and lie, as
you previously stated?

Petitioner:

Well, that I threw her on the bed, yes, that was a
lie. I did not throw [her] on the bed. I sat her on
the bed.

(State’s Lodging C-2 at 95-96) (emphasis added).
Petitioner offers nothing more than his conclusory and self-serving statements that
the victim lied at the preliminary hearing or in the letter read at sentencing. Such
MEMORANDUM DECISION AND ORDER 21

allegations are woefully insufficient and do not allow the Court to conclude that Claim
Eight is substantial.
Moreover, even if the victim had lied when she stated that Petitioner choked her
mother and that he threw the victim on the bed when he molested her—which the Court
does not find—it is plain that any prosecutorial misconduct claim raised on appeal, as
well as any argument that appellate counsel was ineffective in failing to raise such a
claim, fails for lack of prejudice. Petitioner’s own words show unequivocally that he
molested the victim in a vicious and violent manner. Petitioner’s attempts to minimize his
crime are unavailing in this Court, just as they would have been in the state courts. Any
alleged mistakes in the victim’s testimony would have been minor misstatements, which,
even if incorrect, could not have affected the outcome of Petitioner’s criminal
proceedings in any way. Petitioner simply cannot establish a substantial claim that the
prosecutor committed misconduct, that the victim actually lied, or that his direct appeal
counsel was ineffective for failing to raise these issues on appeal. Therefore, Petitioner’s
initial PCR counsel was not ineffective in failing to raise an IAC claim based on the
conduct of direct appeal counsel. As with Claims One and Two, Petitioner has not shown
Martinez cause and prejudice for the default of Claim Eight.
CONCLUSION
Petitioner does not dispute that his remaining claims—Claims One, Two, Three,
Four, Six, Eight, and Ten—are procedurally defaulted. Petitioner has not established

MEMORANDUM DECISION AND ORDER 22

cause and prejudice to excuse the default, under either the traditional Coleman analysis or
the more recent Martinez analysis. Therefore, the Petition will be dismissed with
prejudice.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Extension of Time to File Response (Dkt. 62) is
GRANTED.

2.

Petitioner’s Second Motion for Extension of Time to File Response (Dkt.
64) is GRANTED. Petitioner’s response (Dkt. 67) is deemed timely.

3.

Petitioner’s Motion for Leave to File an Oversize Brief (Dkt. 66) is
GRANTED.

4.

Respondent’s Motion for Extension of Time to File Reply (Dkt. 68) is
GRANTED. Respondent’s reply (Dkt. 69) is deemed timely.

5.

Respondent’s Motion to Strike (Dkt. 71) is DENIED.

6.

Respondent’s Motion for Summary Dismissal (Dkt. 60) is GRANTED, and
this entire action is DISMISSED with prejudice.

7.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a

MEMORANDUM DECISION AND ORDER 23

certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: November 7, 2014

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER 24