Ellis v. Wengler
Filing
57
MEMORANDUM DECISION AND ORDER Petitioner's Answer to Brief in Support of Dismissal of Petition for Writ of Habeas Corpus, construed as a motion to file a second amended petition (Dkt. 54 ), is DENIED. Claim 6 of the Amended Petition for Writ of Habeas Corpus (Dkt. 34 ) is DENIED, and this entire action is DISMISSED with prejudice. 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 (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WILLIAM EARL ELLIS,
Case No. 1:10-cv-00405-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
WARDEN WENGLER,
Respondent.
Pending before the Court is Petitioner William Earl Ellis’s Amended Petition for
Writ of Habeas Corpus (Dkt. 34). Respondent has filed an Answer and Brief in Support
of Dismissal (Dkt. 51). Petitioner has submitted to the Court a letter containing argument
on the Amended Petition (Dkt. 55), which the Court construes as his Reply. The Court
takes judicial notice of the records from Petitioner’s state court proceedings, lodged by
Respondent on January 28, 2011, and December 9, 2011. (See Dkt. 14, 37.)
Having fully 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 the decisional process would not be significantly aided by oral argument.
Therefore, the Court shall decide this matter on the written motions, briefs and record
without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
following Order denying the Amended Petition and dismissing this case.
MEMORANDUM DECISION AND ORDER - 1
BACKGROUND
Pursuant to a plea agreement that reduced the number of criminal charges against
him from two to one, Petitioner pleaded guilty to and was convicted of one count of lewd
and lascivious conduct with a minor, arising from criminal charges in the Fifth Judicial
District Court in Twin Falls, Idaho, Case No. CR-2005-11076. The judgment of
conviction was entered on October 10, 2006. He received a unified sentence of life in
prison with 15 years fixed. (State’s Lodging A-1.) Petitioner filed a Rule 35 motion for
reconsideration of sentence with the state district court, which was denied. (Id. at 64-66,
74-80.)
Petitioner then filed a direct appeal, which was heard by the Idaho Court of
Appeals. Petitioner raised issues of excessive sentencing and failure of the trial court to
grant his Rule 35 motion for leniency. (State’s Lodging B-4.) Petitioner did not file a
timely petition for review with the Idaho Supreme Court. After the Idaho Court of
Appeals issued its remittitur, Petitioner filed a petition for review, brief, and motion to
accept the untimely petition for review. (State’s Lodgings B-5 to B-7.) The Idaho
Supreme Court granted the motion permitting the untimely petition for review to be filed
and denied the petition. (State’s Lodging B-8, B-9.)
Petitioner next filed a petition for post-conviction relief, and the state district court
appointed counsel for Petitioner. (State’s Lodging C-1.) The State filed a motion for
summary dismissal, and the state district court issued a notice of intent to dismiss the
post-conviction petition. (Id.) After Petitioner’s counsel filed a response brief, the trial
MEMORANDUM DECISION AND ORDER - 2
court issued an opinion and order granting summary dismissal of the petition. (Id. at
80-88).
Petitioner filed an appeal, in which he presented only one issue: whether, under
Estrada v. State, 143 P.3d 833 (Idaho 2006), his Sixth Amendment rights were violated
due to trial counsel’s alleged failure to advise him of his right to remain silent during his
psychosexual evaluation (State’s lodging D-1). The Idaho Court of Appeals affirmed the
dismissal of the petition, determining that Petitioner failed to show that he suffered
prejudice because, during his change of plea colloquy with the trial court, he “waiv[ed]
his right to remain silent and participat[ed] in the psychosexual evaluation. The waiver
was voluntary, knowing and intelligent.” (State’s Lodging D-4 at 6-7.) Petitioner’s
petition for review with the Idaho Supreme Court was denied. (State’s Lodging D-5.)
Petitioner next filed a successive petition for state post-conviction relief, and then
an amended petition through counsel, which included three claims of ineffective
assistance of trial counsel: (1) counsel coerced Petitioner into waiving his preliminary
hearing; (2) counsel failed to object to statements that Petitioner had intercourse with the
victim and failed to inform the trial court that the victim’s medical assessment did “not
provide evidence of intercourse”; and (3) counsel failed to explore Petitioner’s mental
health issues, which might have allowed counsel “to recommend treatment options
outside prison.” (State’s Lodging E-1 at 43-44.) Pursuant to a motion to dismiss filed by
the State, the state district court entered a memorandum decision and a separate judgment
dismissing Ellis’s successive post-conviction petition with prejudice. (Id., pp.156-173.)
MEMORANDUM DECISION AND ORDER - 3
Petitioner appealed, challenging only the summary dismissal of his successive
post-conviction claim that his trial “counsel failed to object to an inaccurate statement of
the sentencing judge that Petitioner had ‘full blown intercourse repeatedly with a 9 year
old girl.’” (State’s Lodging F-1, p.6). The Idaho Court of Appeals affirmed the summary
dismissal. (State’s Lodging F-6.) The Idaho Supreme Court denied the petition for
review, concluding all state court proceedings. (State’s Lodging F-7, F-8.)
This federal habeas corpus case, filed on August 18, 2010, was stayed for a brief
time, pending Petitioner’s completion of his state court matters challenging the same
conviction and sentence. (Dkt. 22.) The Court re-opened the case when the state court
proceedings concluded, and Petitioner filed his Amended Petition.
Respondent lodged the state court record with the Court and filed a Motion for
Partial Summary Dismissal. The Court granted the Motion, dismissing as procedurally
defaulted all of Petitioner’s claims except Claim 6. (Dkt. 50 at 7, 8-9.) Therefore, Claim
6—that counsel rendered ineffective assistance in failing to object to the sentencing
court’s statement that he had “full blown intercourse” with his child victim—is the only
claim remaining in this matter.
DISCUSSION
1.
Request for Leave to File Second Amended Petition
Petitioner has filed a document entitled “Answer to Brief in Support of Dismissal
MEMORANDUM DECISION AND ORDER - 4
of Petition for Writ of Habeas Corpus” (Dkt. 54), in which Petitioner seeks “an extension
of time in order to prepare another amended petition.” Because there is presently no
deadline for further amendment, the Court construes this document as a motion to file a
second amended petition. So construed, the motion will be denied.
The Federal Rules of Civil Procedure apply to habeas corpus proceedings to the
extent that they are not inconsistent with established habeas practice and procedure. See
Rule 11 of the Rules Governing Section 2254 Cases. By statute, an application for habeas
relief may be amended “as provided in the rules of procedure applicable to civil actions.”
28 U.S.C. § 2242.
Federal Rule of Civil Procedure 15 governs the amendment of civil pleadings.
Pursuant to Rule 15(a)(1), a party may amend a pleading once “as a matter of course”
within either (A) 21 days after serving the pleading; or, (B) if the amended pleading
requires a responsive pleading to be filed thereafter, within the earlier of 21 days after
service of a responsive pleading or a Rule 12(b), (e), or (f) motion. Any other amended
pleadings cannot be filed absent written consent of the opposing party or leave of court,
though “[t]he Court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2).
Although public policy favors amendment, a court retains the discretion to deny
leave to amend after considering factors such as bad faith, undue delay, prejudice to the
opposing party, futility of the amendment, and whether the party has previously amended
his pleadings. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). These factors need
MEMORANDUM DECISION AND ORDER - 5
not be given equal weight, and futility of the amendment alone may justify the denial of
the request. Id.
In a habeas case that has been initiated after the enactment of the Antiterrorism and
Effective Death Penalty Act (AEDPA), a request for leave to amend must also be
construed in light the provisions and policies of AEDPA, which is designed to promote
finality, comity, and federalism. Williams v. Taylor, 529 U.S. 420, 436 (2000). In
particular, to advance the finality of judgments, Congress included a one-year statute of
limitations in AEDPA, see 28 U.S.C. § 2244(d), and an amended habeas claim that has
been tendered after the expiration of AEDPA’s statute of limitations will relate back to
the initial filing date only when it is “tied to a common core of operative facts” in the
original pleading, Mayle v. Felix, 545 U.S. 644, 664 (2005) (construing the interplay
between AEDPA and Federal Rule of Civil Procedure 15(c)).
The Court concludes that the factors identified in Bonin v. Calderon weigh against
allowing Petitioner to file a second amended petition. There is no specific evidence that
Petitioner requested amendment in bad faith. However, Petitioner’s first Amended
Petition was filed nearly two years ago, and Petitioner gives no explanation for the delay
in seeking further amendment.
Petitioner has already amended his Petition once, and Respondent has fully briefed
the issues in the Amended Petition. Respondent would be prejudiced if required to begin
the process all over again. Finally, Petitioner has not explained how he would further
amend the Amended Petition, and in light of the Court’s analysis of the Amended Petition
MEMORANDUM DECISION AND ORDER - 6
as set forth below, the Court concludes that further amendment would be futile.
2.
Standard of Law
Petitioner’s case is subject to the strict standards set forth in the Anti-terrorism and
Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the Court cannot grant
habeas relief on any federal claim that the state court adjudicated on the merits unless the
adjudication of 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 different from the governing law set forth in [the
Supreme Court’s] cases, or [that] it decide[d] a case differently than [the Court has] done
on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002).
A state court’s decision satisfies the “unreasonable application” clause “if the state
court correctly identifies the governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies it to the facts of the particular case.” Id. 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
MEMORANDUM DECISION AND ORDER - 7
objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The state court
need not cite or even be aware of the controlling United States Supreme Court decision to
be entitled to AEDPA deference. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). The
Supreme Court has clarified “that 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, 1398 (2011).
With respect to the factual findings of the state court, the habeas statute has two
separate provisions. The first, § 2254(d)(2)’s “unreasonable determination of the facts”
provision, applies to “situations where petitioner challenges the state court’s findings
based entirely on the state record. Such a challenge may be based on the claim that the
finding is unsupported by sufficient evidence, that the process employed by the state court
is defective, or that no finding was made by the state court at all.” Taylor v. Maddox, 366
F.3d 992, 1000 (9th Cir. 2004) (internal quotation marks and citations omitted). Under
this provision, “a federal court may not second-guess a state court’s fact-finding process
unless, after review of the state-court record, it determines that the state court was not
merely wrong, but actually unreasonable.” Id. at 999. The second provision, found in
§ 2254(e), provides that a “determination of a factual issue made by a State court shall be
presumed to be correct,” and that the petitioner has the burden of rebutting this
presumption of correctness by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
This subsection applies to “any challenge based on extrinsic evidence, i.e., evidence
presented for the first time in federal court.” Taylor, 366 F.3d at 1000.
MEMORANDUM DECISION AND ORDER - 8
A federal habeas court reviews the state court’s “last reasoned decision.” Ylst v.
Nunnemaker, 501 U.S. 797, 804 (1991). The standard of § 2254(d) is onerous and is
satisfied only if “there is no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 131
S. Ct. 770, 786 (2011).
Claim 6 alleges that Petitioner was denied effective assistance of trial counsel in
violation of the Sixth Amendment. The standard for ineffective assistance of counsel
claims was identified in 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) those 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
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
MEMORANDUM DECISION AND ORDER - 9
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).
If a petitioner shows that counsel’s performance was deficient, the next step 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.” Strickland, 466 U.S. 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
MEMORANDUM DECISION AND ORDER - 10
reasonably likely have been different absent the errors.
Id. at 695-96.
3.
Petitioner Is Not Entitled to Habeas Relief on Claim 6
A.
Specific Facts of the Crime
Petitioner sexually abused his step-daughter from when she was nine until she was
at least eleven years old.1 The child reported that Petitioner called it a “game.” (State’s
Lodging A-3, PSI, at 2.) When Petitioner wanted the child to submit to the abuse, he
would call her into his room and say, “Hey, you wanna start that game over again?” (Id.)
When she tried to walk away, Petitioner became angry and made her sit still for 12 hours,
“call[ed] her names, put[] her on the wall, muscle[d] her, or spank[ed] her.”
A social worker described the child’s statement about the abuse:
[Petitioner] would call her into his bedroom when her mother
was gone. Sometimes he would come up behind her while she
was doing the dishes and grab her breasts. She said he would
tell her to come sit with him and he would tell her he gets a
hard-on. One day when he called her in “there,” he said,
“Okay, let’s play the game again.” [The child] said her mother
walked in on them while he was messing with her breasts and
he had her pants down. She said he would mess with her
“boobs” with his hands or sometimes with his mouth. She said
her mother always wanted to give him another chance and
1
It is not entirely clear when the abuse started, or how long it lasted. The child stated at
one point that she was eleven when it started, but Petitioner admitted to the state court that he
had abused her when she was “the age of 10 or 11 years old.” (State’s Lodging A-3 at 2; State’s
Lodging A-2 at 9.) Petitioner also stated during a psychosexual evaluation that his “sexual
encounters” with the child occurred over two and a half years, when she was nine to eleven years
old. (State’s Lodging A-3, Psychosexual Evaluation, at 17-18.) Faced with all of this evidence,
the state district court found that the abuse began when the child was nine. (State’s Lodging A-2
at 41.)
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would not report it.
[The child] continued by stating that when it was her turn, she
would mess with him. When the [child was asked] what
[Petitioner] wanted her to do when it was her turn, she said,
“sometimes I would suck his dick and then sometimes he tells
me to suck his balls.” She stated that [Petitioner] “licks my
no-no spot or plays with it with his fingers,” but she said she
jerks away. . . .
(Id.)
Petitioner used violence and intimidation to commit the abuse. He would hold a
pillow over the child’s face, “but she learned to ‘shut up’ so she wouldn’t get hurt.” (Id.)
In a statement to the sentencing court, the child recounted another violent incident:
“Another time when we were at the shooting range he got mad at me and started shooting
toward me.” (State’s Lodging A-2, Victim’s Statement at 2.)
Throughout the abuse, the child told Petitioner that she did not want him to do
what he was doing to her, but he “told her it was okay and they would only do it every
once in awhile. . . . ‘But he lied. It’s happened a lot of times. These are just the times I
remember.’” (Id.) The child stated that Petitioner told her to fear him, not to respect him.2
(Id.)
Although Petitioner claims that he never had sexual intercourse with the child,
there is evidence in the record to the contrary. The child told a social worker that when
2
In his reply letter to the Court, Petitioner challenges this statement, claiming that during
a Bible lesson, he told the child to respect him, not to fear him, and that his words were “twisted
around” in court. (Dkt. 55 at 1.) However, the statement about fear and respect is not related to
Petitioner’s claim that he was denied his Sixth Amendment right to effective assistance of
counsel.
MEMORANDUM DECISION AND ORDER - 12
Petitioner was lying down, he would call her into the bedroom and tell her to take off her
clothes and lie on top of him. (State’s Lodging A-2, PSI, at 3.) As described in an
officer’s warrant affidavit, the child said that Petitioner would then “put his in there, not
in there but like that (gestured with marker toward her genitals).” (State’s Lodging A-2,
Affidavit in Support of Complaint and Arrest Warrant, at 3.) The child told the social
worker that this is what happened next:
It was weird. It was really hot and it hurt and I told him that
but he said to shut up. His dick was hard, it gets hard. He says
that’s when the game is almost over. The game ends when the
white stuff comes out and I leave the room. My mother called
it fucking. It’s happened a lot of times, like ten. I turned
eleven when it barely started. My mom said he’s getting
riskier. She was really mad.
(State’s Lodging A-2, PSI, at 3) (emphasis added). Petitioner also forced the child to take
a pregnancy test. (Id.)
In one instance, Petitioner took the child out of school for what he said was an
emergency, “but there really wasn’t an emergency. He made her take a shower with him
and they ‘did it’ in the shower.” (Id.) He also made her “do it” a second time. (Id.) The
child described another occasion when Petitioner threw her CD player against wall
because he was angry. He then told her that he wouldn’t hurt her if she “would stand up
and he would put the thing in again.” (Id.) The child also said that sometimes Petitioner
would make her “do it backwards” and “suck it.” (Id.)
Petitioner did not deny that he abused the child, but told police that he did it only
to keep his other children safe. He claimed that his step-daughter tried to have sexual
MEMORANDUM DECISION AND ORDER - 13
contact with her younger brother and sister, as well as with other children in the
neighborhood, and that he “tried to curb her sexual habits by letting her experiment” with
him, “teaching [her] to keep her sexual actions towards him” in order to spare the other
children. (Id. at 4) (spelling regularized). Petitioner told the presentence investigator that
“if he had it to do all over again, he would ‘definitely try to get help with [his] problems
and not deal with them on [his] own.’” (Id. at 5-6.)
As part of his plea, Petitioner underwent a psychosexual evaluation, including an
attempted polygraph examination. During the pretest interview with the polygrapher,
Petitioner “said that he performed oral sex on [the child] and would have [her] perform
oral sex on him. When asked, [Petitioner] did not deny that these sexual encounters
happened more than 50 times and stated that it ‘happened a lot.’” (States’ Lodging A-3,
Psychosexual Evaluation, at 17.) The polygrapher did not complete the examination,
however, determining that Petitioner’s mental health issues would make it difficult to
obtain an accurate result. (Id. at 17, 19.)
B.
The Sentence
At sentencing, the prosecution asked for a 20 to 35 year sentence. (State’s Lodging
A-2 at 27.) Petitioner’s counsel recognized that “this case represents, quite frankly, a
fairly reprehensible and shocking case.” (Id.) Counsel focused, however, on the fact that
when the allegations came to light, Petitioner voluntarily checked himself into a
psychiatric hospital and admitted his actions to police; counsel also noted that Petitioner
had a “horrendously bad childhood.” (Id. at 27-29.) The defense requested a 3 to 15 year
MEMORANDUM DECISION AND ORDER - 14
sentence with retained jurisdiction. (Id. at 32.)
The court sentenced Petitioner to 15 years to life in prison. The court gave
numerous reasons for its decision, including that the abuse occurred over two and a half
to three years and that the child would suffer the effects of the abuse throughout her life.
(Id. at 37-38.) In addition, the sentencing judge stated, “I also have a problem trivializing
the types of behavior before me, Mr. Ellis, in this case as bad judgment or poor choices.
The file is replete with evidence of long-standing repetitive abuse, as I’ve already alluded
to, including incidences of violence in order to keep the victim in line.” (Id. at 40.) The
court considered Petitioner’s “use of a gun, the pillow over the victim’s face, the hand
over her mouth, throwing her CD player against the wall to show complete intimidation,
the length of time and the number of incidences that went on for the extended period I’ve
already alluded to. The incidences include full-blown intercourse, repeatedly, with a 9year old girl, along with other depravities contained in the presentence report.” (Id. at 41)
(emphasis added). In sentencing Petitioner, the court also relied on an evaluating doctor’s
assessment that Petitioner had “all kinds of justifications and excuses for [his] behavior,
typically blaming the victim for the problems and the difficulties [he] encountered during
the period of time that [he was] abusing the victim.” (Id.)
C.
The Decision of the Idaho Court of Appeals
Petitioner argued in state post-conviction proceedings, as he does in his federal
petition, that his trial counsel was ineffective for failing to object to the sentencing court’s
statement that he repeatedly had “full-blown intercourse” with the child. The Idaho Court
MEMORANDUM DECISION AND ORDER - 15
of Appeals rejected Petitioner’s argument on both prongs of the Strickland analysis. With
respect to the deficient performance prong, the court stated:
The sentencing court had information before it from which it
could conclude that Ellis had engaged in sexual intercourse
with the victim even though Ellis denied such conduct. The
victim’s own statements, contrary to Ellis’s assertion, can
reasonably be interpreted to support the district court’s
conclusion. Given this support, and the fact that Ellis’s
contrary assertion was also before the court in the materials
that it considered at sentencing, it was not deficient or
unreasonable for Ellis’s attorney not to object to the
sentencing court’s expression of its disbelief of Ellis’s version
and its conclusion that sexual intercourse had occurred.
(State’s Lodging F-6 at 4.)
With respect to the prejudice inquiry, the state court relied on two factors in
determining that Petitioner had failed to show that “his sentence would have been
different if the attorney had objected.” (Id.) First, the court stated that because “there was
some support in the PSI for the sentencing court’s conclusion, it is doubtful that any
objection would have been successful, and therefore the court still would have considered
the fact of sexual intercourse in its sentencing decision.” (Id.)
Second, the court of appeals determined that the sentencing court’s “belief that
Ellis had sexual intercourse with his victim was not a major factor in the sentencing
decision—the court relied on a number of other factors to support the length of its
sentence” and “devot[ed] particular focus and time to the effect of sexual abuse on the
victim and the repetitive, long-term, and violent manner in which Ellis perpetrated the
abuse. In fact, there was only one short reference to the fact that the nature of Ellis’s
MEMORANDUM DECISION AND ORDER - 16
conduct included sexual intercourse.” (Id. at 4-5.) The court stated that Petitioner’s
“contention that the sentencing court was more repulsed by the notion of intercourse than
by Ellis’s other conduct, including forced fellatio and cunnilingus, and act of physical
violence to force the child’s submission, bears no support in logic or in the record.” (Id. at
6.) Thus, the court concluded that an objection by trial counsel would not have resulted in
a lesser sentence.
D.
The Decision of the Idaho Court of Appeals Was Neither Contrary To,
Nor an Unreasonable Application of, Strickland v. Washington.
The Idaho Court of Appeals correctly identified Strickland as the governing law
regarding claims of ineffective assistance of counsel, and its application of Strickland to
Petitioner’s case was eminently reasonable. (State’s Lodging F-4 at 3.). Trial counsel
knew, at the time of sentencing, that the child had told a social worker that her mother
used the term “fucking” to describe one of the things that Petitioner was forcing the child
to do. Counsel also knew that Petitioner had forced the child to take a pregnancy test. For
obvious reasons, Petitioner would not have been so concerned that the child was pregnant
if the abuse did not include intercourse. Because there was support for the district court’s
conclusion in the record, trial counsel’s decision not to object to the sentencing court’s
statement did not fall below an objective standard of reasonableness, and the court of
appeals therefore reasonably determined that counsel had not performed deficiently.
The court also appropriately concluded there was no reasonable possibility that an
objection from Petitioner’s counsel would have resulted in a lesser sentence. The aspects
MEMORANDUM DECISION AND ORDER - 17
of the crime that the district court found most relevant in its sentencing decision were (1)
that Petitioner used intimidation and violence to cow the child into submission, and (2)
that Petitioner blamed the child for his actions. As Petitioner told the presentence
investigator, if he could do it all over again, he would “try to get help with [his] problems
and not deal with them on [his] own.” (State’s Lodging A-2, PSI, at 5-6.) Petitioner was
worried about his problems, which he claimed were the child’s fault. He did not express
remorse for the pain he inflicted upon his young victim. Petitioner thus revealed himself
as a criminal who consistently blamed a young child for causing the repugnant and
violent abuse committed against her. Therefore, the Idaho Court of Appeals reasonably
held that even if defense counsel had objected to the sentencing court’s statement that the
abuse included not only forced fellatio and forced cunnilingus, but also forced
intercourse—a statement supported by the evidence—Petitioner suffered no prejudice
because the other sexual acts were sufficiently egregious to support the sentence.
The totality of the record supports the court of appeals’ decision that Petitioner
was not denied his Sixth Amendment right to effective assistance of counsel. Petitioner
has not shown that the state court’s decision is an unreasonable application of either
prong of Strickland under § 2254(d)(1), or that the decision resulted from an unreasonable
determination of the facts under § 2254(d)(2) based on the evidence in the record.
Therefore, the Court will deny Claim 6 of the Amended Petition, the only remaining
claim, and this case will be dismissed with prejudice.
MEMORANDUM DECISION AND ORDER - 18
ORDER
IT IS ORDERED:
1.
Petitioner’s Answer to Brief in Support of Dismissal of Petition for Writ of
Habeas Corpus, construed as a motion to file a second amended petition
(Dkt. 54), is DENIED.
2.
Claim 6 of the Amended Petition for Writ of Habeas Corpus (Dkt. 34) is
DENIED, and this entire action is DISMISSED with prejudice.
3.
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); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner
files a timely notice of appeal, the Clerk of Court shall forward a copy of
the notice of appeal, together with this Order, to the United States Court of
Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
DATED: October 21, 2013
Honorable Edward J. Lodge
U. S. District Judge
MEMORANDUM DECISION AND ORDER - 19
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