Dalrymple v. Wengler

Filing 21

MEMORANDUM DECISION AND ORDER Respondent's Motion for Summary Judgment (Dkt. 14 ) is GRANTED. Petitioner's Motion for Summary Judgment (Dkt. 15 ) is DENIED. Petitioner's case is DISMISSED with prejudice. 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 (jm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID ALLEN DALRYMPLE,
Case No. 1:10-CV-00494-CWD
Petitioner,
v.

MEMORANDUM DECISION AND
ORDER

TIMOTHY WENGLER, WARDEN,
Respondent.

Petitioner David Allen Dalrymple (Petitioner) filed a Petition for Writ of Habeas
Corpus on September 30, 2010. Both parties have consented to the jurisdiction of a
United States Magistrate Judge to enter final orders in this case. (Dkt. 6, 7.) See 28 U.S.C.
§ 636(c) and Fed. R. Civ. P. 73.
Pending before the Court are both parties’ Motions for Summary Judgment. (Dkt.
14, 15.) 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, in the interest of avoiding delay, the Court will 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.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Petitioner lived with his girlfriend, Shelley, and Shelley’s minor daughter, K.B.,
for approximately three years. Near the end of their relationship, Petitioner had been
using methamphetamine. (State’s Lodging A-4, pp. 320-21.) On October 5, 2003,while
Petitioner was under the influence of methamphetamine, Petitioner and Shelley had an
argument, during which Petitioner handcuffed Shelley behind her back, pinched her
breast, and pulled her into a bathroom. During this scene, Shelley called for her daughter
to run for help. K.B., who was 11 years old at the time of the incident, tried to escape, but
Petitioner caught her, physically restrained her, and pulled her through the house, during
which time K.B.’s head hit the bathroom door. Petitioner would not allow Shelley or K.B.
to leave the home, and he pulled a telephone cord out of the wall after K.B. called 911.
State v. Dalyrmple, 167 P.3d 765, 769 (Idaho 2007); (State’s Lodging B-19, A-4).
After the October 5, 2003 incident, K.B. told her mother that Petitioner had been
repeatedly abusing her sexually for three years. The child described how Petitioner
“would show her pornographic magazines and videos, would pose her in sexually
suggestive positions, and would touch her over her body with his hands, tongue, and
penis.” Dalrymple, 167 P.3d at 769. The child also reported that Petitioner “would also
handcuff and tie up K.B. with rope, all while imploring her not to tell her mother.” (Id.)
As a result of all of these incidents, Petitioner was arrested, tried, and convicted
after trial by jury of two counts of lewd conduct with a minor, two counts of kidnaping,
sexual abuse of a minor, domestic battery, injury to a child, intentional destruction of a
MEMORANDUM DECISION AND ORDER - 2

telecommunication line, and two counts of violation of a no-contact order, in the Fourth
Judicial District Court in Ada County, Idaho.
Petitioner’s claims arise from his disagreements with trial counsel over defense
strategy and evidence. The Idaho Supreme Court summarized the trial court proceedings
as follows:
In February and March 2004, Dalrymple filed several motions to
disqualify his public defender and on April 7, 2004—approximately six
weeks before trial—the district court heard the motions. Dalrymple
expressed dissatisfaction with his attorney on a number of grounds,
including a belief that his attorney was not looking for exonerating
evidence. The district court found that Dalrymple's attorney met
professional standards and denied the motions to disqualify. Dalrymple then
inquired about representing himself. The district court warned him of both
the potential consequences of representing himself and the benefits of
retaining counsel. Dalrymple indicated he understood the pitfalls of
proceeding pro se, stating that it would be “foolish” to represent himself,
and chose to keep his attorney for trial.
After close of the evidentiary phase of the trial, Dalrymple sought the
court's permission to present an additional defense that his attorney had not
presented. He wished to argue that he used hypnotherapy on K.B. to
convince her that he had molested her, when in fact no molestation had
occurred. His attorney claimed to lack the proper foundation to raise this
hypnosis defense, even after an investigation, and that it would be
“tantamount to just asking the jury to come back with a guilty verdict.”
According to his attorney, Dalrymple had no training or education in
hypnosis. Moreover, in the course of the investigation, one of Dalrymple's
brothers told the defense investigator that he never heard him discuss
hypnosis. Another brother was vague, stating that he may have heard about
Dalrymple performing hypnosis at a barbecue but provided no further
details to substantiate Dalrymple's claim.
The district court allowed Dalrymple two options: either to proceed to
closing arguments without presenting his defense or to reopen the case,
discharge his attorney, and present his hypnosis defense pro se. At that
time, the district court alerted Dalrymple that he would be subject to
MEMORANDUM DECISION AND ORDER - 3

cross-examination and would make his own closing argument, but offered
no other warnings about the risks of representing himself. Dalrymple chose
to discharge his attorney, who remained as standby counsel, and the case
was reopened. Later, after closing arguments, the district court made
findings on the record that Dalrymple had received full warnings about
representing himself at the April 7 pretrial hearing.
Dalrymple testified first. When he began to explain hypnosis to the jury, the
prosecutor objected, citing a lack of foundation. In sustaining the objection,
the district court told him that he would need to establish his qualifications
before testifying further on the practice of hypnosis. The district court
permitted him to testify about what actions he took to hypnotize K.B. After
his testimony, Dalrymple recalled Shelley to testify. He then sought to
recall K.B. but the district court refused, stating that she was released from
her subpoena and was at school. The district court allowed Dalrymple to
make an offer of proof as to how he believed K.B. would testify, namely
that he had gone through hypnotherapy with her over the past three years.
The jury convicted Dalrymple on all charges. On the felony counts, the
district court sentenced Dalrymple to two unified terms of twenty years
fixed with an indeterminate life sentence for each count of lewd conduct,
fifteen years fixed for the count of sexual abuse, and ten years fixed for
each count of kidnaping.
Id. at 769-70. Judgment of conviction was entered on November 1, 2004.
After conviction, Petitioner pursued a direct appeal. The Idaho Court of Appeals
determined that, on the record before the court, there were insufficient findings that
Petitioner was “aware of his rights and of the consequences of waiving his right to
counsel.” (State’s Lodging B-4, p. 8.) As a result, the court determined that Petitioner’s
waiver of his Sixth Amendment right to counsel was invalid, because of the lack of
findings showing the waiver was knowing, intelligent, and voluntary. (Id.) The Idaho
Court of Appeals vacated the judgment and remanded the case for a new trial. The Idaho
Supreme Court granted the State’s petition for review in the case and affirmed the

MEMORANDUM DECISION AND ORDER - 4

conviction. (State’s Lodging B-14.)
Petitioner’s federal Habeas Corpus Petition contains two claims arising from his
direct appeal: (1) that the waiver of Petitioner’s Sixth Amendment right to counsel was
not made knowingly, voluntarily, or intelligently; and (2) that he was deprived of his right
to present evidence in his favor and present a complete defense. Each party asserts
entitlement to summary judgment in this case.
MOTIONS FOR SUMMARY JUDGMENT
1.

Standard of Law
Summary judgment is appropriately granted where “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Federal Rules of Civil Procedure apply to
habeas corpus actions except where application of the rules would be inconsistent with
established habeas practice and procedure. Rule 11, Rules Governing Section 2254 Cases.
Accordingly, summary judgment motions are appropriate in habeas corpus proceedings
where there are no genuine disputes as to any material facts and the moving party is
entitled to judgment as a matter of law. Blackledge v. Allison, 431 U.S. 63, 80-81 (1977).
Judicial notice will be taken of the court docket in the underlying state court proceedings.
Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment only when the federal court determines that the petitioner “is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
MEMORANDUM DECISION AND ORDER - 5

U.S.C. § 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective
Death Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances
where the state-court adjudication of the merits:1
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.

When a party contests the state court’s legal conclusions, including
application of the law to the facts, § 2254(d)(1) governs. That section consists of
two alternative tests: the “contrary to” test and the “unreasonable application” test.
Under the first test, for a decision to be “contrary to” clearly established federal
law, the petitioner must show 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).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), 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.
1

A state court need not “give reasons before its decision can be deemed to have been ‘adjudicated
on the merits.’” Harrington v. Richter, 131 S.Ct. 770, 785 (2011).

MEMORANDUM DECISION AND ORDER - 6

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 to warrant relief.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694
(2002).
In Harrington v. Richter, 131 S.Ct. 770 (2011), the United States Supreme
Court reiterated that a federal court may not simply re-determine a claim on its
merits after the highest state court has done so, just because the federal court
would have made a different decision. Rather, the review is necessarily deferential.
The Supreme Court explained that, under § 2254(d), a habeas court (1) “must
determine what arguments or theories supported or . . . could have supported, the
state court’s decision;” and (2) “then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.” Id. at 786. If fairminded jurists could
disagree on the correctness of the state court’s decision, then a federal court cannot
grant relief under § 2254(d)(1). Id. The Supreme Court emphasized: “It bears
repeating that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted).2
2

A federal habeas court can look only to the record before the state court in reviewing a state
court decision under section 2254(d)(1). Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011) (“If a claim
has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court.”) (footnote omitted); Holland v.
Jackson, 542 U.S. 649, 652 (2004) (“[W]e have made clear that whether a state courts decision was
MEMORANDUM DECISION AND ORDER - 7

2.

Claim One: Waiver of Right to Counsel
In Claim One, Petitioner alleges his Sixth Amendment right to counsel was

violated because the trial court coerced him into waiving his right to counsel by
forcing him to “choose between his constitutional right to counsel and his
constitutional right to testify.” (Dkt. 1, pp.2-3.) Petitioner further asserts that his
waiver of the right to counsel was involuntary, “because at the time of the waiver,
he did not have full awareness of the rights and consequences of waiving counsel
and/or the record does not show that he appreciated the risks of proceeding pro
se.” (Dkt. 1, p.2.)
A.

Standard of Law Governing Waiver Claim

A criminal defendant has a Sixth Amendment right to waive counsel and
represent himself. Faretta v. California, 422 U.S. 806, 807 (1975). “The right to
defend is given directly to the accused; for it is he who suffers the consequences if
the defense fails.” Id. at 819-20. Based on these foundational principles, the United
States Supreme Court reasoned and concluded in Faretta:
When an accused manages his own defense, he relinquishes,
as a purely factual matter, many of the traditional benefits associated
with the right to counsel. For this reason, in order to represent
himself, the accused must “knowingly and intelligently” forgo those
relinquished benefits. Although a defendant need not himself have
the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware
of the dangers and disadvantages of self-representation, so that the

unreasonable must be assessed in light of the record the court had before it.”) (citations omitted).
MEMORANDUM DECISION AND ORDER - 8

record will establish that “he knows what he is doing and his choice
is made with eyes open.”
422 U.S. at 835 (internal citations omitted).
In Faretta, the Supreme Court found that the state court record showed
Faretta “clearly and unequivocally declared to the trial judge that he wanted to
represent himself,” and that Faretta was “literate, competent, understanding, and
that he was voluntarily exercising his informed free will.” Id. at 835. The Faretta
Court pointed out that the trial judge had warned Faretta that “he thought it was a
mistake not to accept the assistance of counsel,” and that he would be “required to
follow all of the ‘ground rules’ of trial procedure.” Id. Finally, the Supreme Court
noted that whether Faretta had an adequate technical knowledge of legal principles
such as the hearsay rules or the jury selection process “was not relevant to an
assessment of his knowing exercise of the right to defend himself.” Id.
In Iowa v. Tovar, 541 U.S. 77, 87-88 (2004), the United States Supreme
Court emphasized that, to be valid, a waiver of the right to counsel must be
knowing, voluntary, and intelligent. In Tovar, the Court further elaborated that
there was no specific formula a trial court must follow to meet the “knowing,
voluntary, and intelligent” standard:
We have not, however, prescribed any formula or script to be read to
a defendant who states that he elects to proceed without counsel. The
information a defendant must possess in order to make an intelligent
election, our decisions indicate, will depend on a range of
case-specific factors, including the defendant's education or
sophistication, the complex or easily grasped nature of the charge,
MEMORANDUM DECISION AND ORDER - 9

and the stage of the proceeding.
541 U.S. at 88 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
In Patterson v. Illinois, 487 U.S. 285 (1988), the Supreme Court further
clarified the meaning of Faretta’s admonition that the defendant must be made
aware of and understand “the dangers and disadvantages of self-representation.”
The Patterson Court advised trial courts to use a “pragmatic approach to the
waiver question,” based on “what purposes a lawyer can serve at the particular
stage of the proceedings in question, and what assistance he could provide to an
accused at that stage,” in order “to determine the scope of the Sixth Amendment
right to counsel, and the type of warnings and procedures that should be required
before a waiver of that right will be recognized.” Id. at 298. Less rigorous
warnings are required when trial is not imminent–in Patterson, a standard Miranda
warning by a prosecutor and police officer was sufficient in a post-indictment
questioning setting. Id. at 293. Similarly, some procedures, such as a
“postindictment photographic display identification,” do not require warnings at
all, “because this procedure is not one at which the accused requires aid in coping
with legal problems or assistance in meeting his adversary.” Id. at 298 (internal
citation and punctuation omitted).
However, at the trial stage, more rigorous warnings are necessary, because
the dangers and disadvantages of self-representation are more substantial and less
obvious to the accused. Tovar, 541 U.S. at 90. “The information a defendant must
MEMORANDUM DECISION AND ORDER - 10

possess in order to make an intelligent election,” the Supreme Court again
emphasized, “will depend on a range of case-specific factors, including the
defendant's education or sophistication, the complex or easily grasped nature of the
charge, and the stage of the proceeding.” Id. at 88.
Because “[t]here is a presumption against the waiver of constitutional
rights,” Brookhart v. Janis, 384 U.S. 1, 4 (1966) (internal citation omitted), the
State bears the burden to prove “an intentional relinquishment or abandonment of a
known right or privilege.” Brewer v. Williams, 430 U.S. 387, 404 (1977) (internal
citation omitted). “This strict standard applies equally to an alleged waiver of the
right to counsel whether at trial or at a critical stage of pretrial proceedings.” Id.
(internal citation omitted).
The law is also clear that, under the Sixth Amendment, “a defendant’s right
to present relevant evidence is not unlimited, but rather is subject to reasonable
restrictions.” United States v. Scheffer, 523 U.S. 303, 308 (1998). “A defendant’s
interest in presenting such evidence may thus ‘bow to accommodate other
legitimate interests in the criminal trial process,’” and “state and federal
rulemakers have broad latitude under the Constitution to establish rules excluding
evidence from criminal trials,” so long as the rules are not “arbitrary” or
“disproportionate to the purposes they are designed to serve.” Id. (citing Rock v.
Arkansas, 483 U.S. 44, 55-56 (1987) (quoting Chambers v. Mississippi, 410 U.S.
284, 295 (1973)).
MEMORANDUM DECISION AND ORDER - 11

B.

Discussion of Waiver Claim

The Idaho Supreme Court determined that Petitioner’s Sixth Amendment
right to counsel and to testify on his own behalf were not violated. Citing Faretta
and Scheffer, the Idaho Supreme Court looked to the entire record when
considering the issue of whether the trial court violated Petitioner’s Sixth
Amendment right by forcing him to choose between his right to testify on his own
behalf and his right to counsel:
To determine if Dalrymple’s waiver was constitutionally
valid, we view the record as a whole, not just at the particular
moment of waiver. The Faretta Court stated the defendant must “be
made aware of the dangers and disadvantages of self-representation.”
422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582. Faretta
warnings, however, do not need to be given contemporaneously to
the defendant’s waiver. Instead, such warnings must be given “so
that the record will establish that ‘he knows what he is doing and his
choice is made with eyes open.’” Id. (quoting Adams v. United States
ex. rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268,
275 (1942)). Therefore, the district court at a minimum must be
satisfied that Dalrymple understood the inherent risks involved in
waiving the right to counsel. Hunnel, 125 Idaho at 626, 873 P.2d at
880. While contemporaneous Faretta warnings are perhaps the most
prudent means to ensure the defendant's grasp of the disadvantages
of self-representation, we look to the record as a whole to determine
if Dalrymple knowingly, intelligently, and voluntarily waived his
constitutional right. Lovelace, 140 Idaho at 64, 90 P.3d at 289.
Dalrymple knowingly, intelligently, and voluntarily waived
his right to counsel. While Dalrymple asks us to consider that he
waived his right to counsel in the heat of the moment, the entirety of
the record shows that he understood the risks and consequences of
self-representation. Approximately six weeks before trial, the district
court provided Dalrymple an extensive set of Faretta warnings when
he first suggested that he might proceed pro se, advising him both of

MEMORANDUM DECISION AND ORDER - 12

the advantages of retaining a lawyer at trial and the disadvantages of
representing himself. At that time, Dalrymple declared such a waiver
would be foolish. The district court told him again at trial that he was
subject to cross-examination. The statements of Dalrymple's counsel
at that time should have given him great pause—that the attorney, a
trained professional, could not figure out how to establish a
foundation for the hypnosis testimony, that the hypnosis defense
“doesn't make sense to me,” that presentation of the testimony would
be “tantamount to just asking the jury to come back with a guilty
verdict,” and that he had told Dalrymple on a couple of occasions
that they had “no scientific background that we could establish this.”
Dalrymple has a GED and went to a year of college. He testified at
the pretrial hearing that he has never been diagnosed or treated for a
mental illness, nor did anyone advise or threaten him not to have a
lawyer. The record as a whole indicates that Dalrymple understood
his rights and that he validly waived his Sixth Amendment right to
counsel. A knowing and voluntary waiver is not necessarily a wise or
dispassionate waiver.
(State’s Lodging B-19, pp. 5-6.)
To analyze Petitioner’s claim on federal habeas corpus review under
§ 2254(d)(1), this Court must determine whether the Idaho Supreme Court’s
decision was contrary to, or involved an unreasonable application of, the holdings
in Faretta, Scheffer, and Tovar. This standard, explained in Richter in terms of
whether fairminded jurists could disagree with the state court’s decision, amounts
to a rule that a petitioner is not entitled to relief unless he shows that all fairminded
jurists would agree that the state court decision was wrong under the United States
Supreme Court precedent governing the issue. See Richter, 131 S.Ct. at 786.
Nothing in the governing precedent specifically requires that the Faretta
warning be given contemporaneously with the waiver, or that the trial court’s

MEMORANDUM DECISION AND ORDER - 13

probing of the defendant or findings of waiver must follow a specific formula.
However, if a warning is given early in the case, when the risk is not as high as
later in the case, then whether that early warning was sufficient for the later risk
must be assessed. However, the governing precedent does not address what is
required when the waiver occurs when a defendant asks to have a trial re-opened
after the close of evidence, when the only tasks remaining are to put on a
supplemental defense and give a closing argument. In such instance, it can be
inferred from the precedent that the risks have diminished, consequently allowing
for a diminished level of warning.
The first discussions Petitioner had with appointed counsel and the trial
court occurred many months prior to trial, on February 5, 2004. (State’s Lodging
A-5, pp. 1-10.) Petitioner was first warned about the dangers and disadvantages of
self-representation approximately six weeks before trial, on April 7, 2004, when
the trial court held a hearing on Petitioner’s motion to disqualify his public
defender. (Id., pp 14-15.) The first warning was lengthy and detailed, because
preparations for trial were coming to a close and the trial was drawing near.
During the warning, the trial court used all of the following language to
describe what Petitioner would face if he represented himself: he would be at a
“significant disadvantage” (State’s Lodging A-5, p. 37); the advantages of having
a lawyer included the fact that “the lawyer has the experience and knowledge of

MEMORANDUM DECISION AND ORDER - 14

the entire trial process” (Id.); a lawyer can “call witnesses and issue subpoenas”
(Id.); a lawyer can “question potential jurors to make sure they are fair and
impartial” (Id.); a lawyer can advise a client on whether to testify or remain silent
(Id.); a lawyer can object to improper or inadmissible evidence (Id.); a lawyer “has
studied the rules of evidence and knows what the rules of evidence are” (Id.); a
lawyer “will argue for your side during the trial and present the best legal
argument for your defense” (Id.); if Petitioner represented himself, he would have
to “follow all of the procedural and substantive rules of criminal law” (Id., p. 38);
Petitioner would be “limited to the resources that are available while [he] was in
custody, where[as] a lawyer has less restriction on researching [the] defense” (Id.);
Petitioner’s “access to the State’s attorney will be severely reduced as compared to
a lawyer” (Id.); the State would not go easier on him or give him special treatment
because he was pro se (Id.); the State would present the case against him using an
experienced lawyer (Id.); and Petitioner would not be able to speak to the victim or
the witnesses, but a lawyer may be allowed to speak to them on his behalf (Id., p.
39).
The state court also fully probed Petitioner’s own abilities and motives for
wanting to represent himself pro se: Petitioner said he understood what the court
described as “very, very significant” charges against him (Id.); Petitioner
understood that conviction could result in him spending the rest of his life in prison

MEMORANDUM DECISION AND ORDER - 15

(Id.); Petitioner could read, write, and understand English (Id.); Petitioner had a
ninth grade education, with a GED and one year of college (Id.); Petitioner was not
taking any medications (Id., p. 40); Petitioner did not have a mental illness (Id.);
no one told Petitioner not to use a lawyer (Id.); and no one threatened Petitioner if
he did use a lawyer (Id.). After this lengthy and detailed discussion, Petitioner
stated that he understood the disadvantages of representing himself and that he
thought it would be “foolish” to represent himself, and, therefore, he chose to keep
his attorney for trial. (Id., pp. 40-41.)
Petitioner had the assistance of counsel throughout his entire case; he
became pro se only after the close of evidence, at his request. Petitioner wished to
present a defense that he had not molested the child at all, but, instead, he had
hypnotized her, so that if they were ever separated, she would accuse him of lewd
conduct, and that would cause them to be reunited, whereupon he would remove
the hypnotism, and she would be able to say that he did not, in fact, commit the
lewd conduct. (State’s Lodging C-3, pp. 118-19.) Petitioner’s counsel, Mr.
DeAngelo, indicated the hypnosis defense did not make any sense to him, that
there was not an adequate foundation for the defense, and that the typical juror was
going to believe that, if Petitioner had the ability to make a young child make those
kind of claims, he was very dangerous to the community. (Id., pp. 117-119.)
Petitioner’s counsel also stated that neither he nor his investigator could find

MEMORANDUM DECISION AND ORDER - 16

grounds to present the defense, and their opinions had been discussed with
Petitioner before trial, including the fact that Petitioner was not a member of the
National Guild of Hypnotists or similar organization. (Id., p.350.) Because
Petitioner’s counsel did not present the hypnosis defense, at the close of evidence
Petitioner asked to have the case re-opened so that the defense could be presented
through counsel.3
Petitioner had already been warned by the court that proceeding without
counsel was very risky and very difficult. Petitioner clearly understood this,
because he elected to retain counsel for trial. Petitioner was privy to counsel’s
discussion about the negative and harmful aspects of the defense. (State’s Lodging
A-4, p. 350.) The trial court perceived counsel’s statements as “a conflict of
interest on this issue,” and determined “that pursuant to the canons of ethics, for
him to go forward with such evidence . . . could conceivably be violating those
canons.” (Id., p. 395.) Balancing the interests at stake, the trial court determined
that Petitioner could choose to represent himself and assert the hypnosis defense,

3

The Court also notes that Petitioner’s dilemma was somewhat of his own making, as the
state district court pointed out. (State’s Lodging A-4, p. 395.) During the February 5 hearing,
counsel complained that Petitioner refused to speak with him about what theory Petitioner
wished to use for his defense. (State’s Lodging A-5, p. 9.) During the April 7 hearing when
Petitioner wished to fire his counsel but decided to retain him, the court attempted to probe
Petitioner in detail about the defense that Petitioner wished to present but refused to share with
counsel. Petitioner refused to disclose the defense to the court. (State’s Lodging A-5, pp. 20-24.)
Had he done so, he would have had much more time and information to contemplate whether
presenting his defense was a good idea.
MEMORANDUM DECISION AND ORDER - 17

or he could proceed to closing argument through his defense counsel, but that
defense counsel would not be required to present the hypnosis defense in the face
of the perceived conflict.
At that time, the court warned Petitioner that he (1) would have to testify on
his own, (2) be subject to re-cross-examination, and (3) would be required to make
his own closing argument. (State’s Lodging A-4, pp. 354-55.) No other warnings
about the dangers of self-representation were given at that time. After closing
arguments, the trial court made short and general “findings” on the record of the
grounds for the waiver, referring specifically to the discussions held at the earlier
hearing on April 7, 2004. (Id., pp. 394-95.) While Petitioner is correct that the
findings were not a model of comprehensiveness and clarity, he minimizes the
remainder of the record and the context of the waiver.
When Petitioner did elect to proceed without counsel, the only remaining
tasks were to put on a supplemental defense on what the trial court deemed the
“single issue alone” of the hypnosis defense (Id., p. 395), and to make a closing
argument. Counsel had carried nearly the entire weight of the trial for Petitioner,
regardless of whether Petitioner disagreed with counsel’s strategy.
At the time Petitioner began his self-representation, he encountered
objections about foundation. (Id., p. 359.) He had full awareness from the
discussion with counsel and the Court about self-representation, shortly before he

MEMORANDUM DECISION AND ORDER - 18

made his choice, that foundation would be an issue. Despite this information,
Petitioner chose to proceed with the defense anyway. When the objections to
foundation arose, the trial court sustained the objections but advised Petitioner on
how to lay foundation–that he must establish his qualifications before testifying
about the practice of hypnosis. (Id., p. 360, 365.) The trial court also permitted
Petitioner to testify as a lay witness about the actions he took to hypnotize the
child, which were topics within his own personal knowledge. (Id., pp. 360-66.)
After Petitioner testified, he recalled Shelley to testify. Petitioner then
attempted to recall the child. The trial court refused to require the child to come
back to court, because she already had been released from her subpoena and had
returned to school. The district court permitted Petitioner to make an offer of proof
to show that the child would have testified that he had hypnotized her at various
times over the past three years. (Id., 379-90.)
Petitioner’s arguments on habeas corpus review serve to highlight other
courses of action fairminded jurists might have taken under the circumstances of
the case. However, the Court is not persuaded that all, or even most, fairminded
jurists would see it Petitioner’s way. The Idaho Supreme Court’s opinion applies
United States Supreme Court precedent to the record as a whole, while Petitioner
relies on more particular law from the United States Court of Appeals for the Ninth
Circuit and focuses on the lack of structured colloquy between Petitioner and the

MEMORANDUM DECISION AND ORDER - 19

trial court at the time of waiver or in the post-waiver findings.4
The Court disagrees with Petitioner’s assessment that the Idaho Supreme
Court failed to allocate the burden of proof to the State in its analysis and
conclusion. (State’s Lodging B-19.) The State met its burden of proof to show
validity of the waiver by relying on the totality of the record. The record reflects
that the trial court informed Petitioner of the legal tasks he would have to perform
on his own if he proceeded with his defense. The record reflects that Petitioner
already had sat through his entire trial at the time he decided to go ahead with
presenting a dangerous defense pro se. Petitioner heard counsel’s evaluation of the
defense, and privately consulted with his counsel out of earshot of the judge before
making his decision (State’s Lodging A-4, p 355); afterwards, he decided to
relinquish his right to counsel in favor of putting on a defense that counsel thought
beyond imprudent.
The Idaho Supreme Court made its decision upon a record reflecting: (1)
that Petitioner was actively involved in the discussions of the risks of self-

4

The Court is aware that Petitioner’s counsel is citing cases from the United States Court
of Appeals for the Ninth Circuit as persuasive authority for determining whether a state court
decision is an unreasonable application of Supreme Court precedent, rather than in place of
United States Supreme Court precedent. See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th
Cir. 1999). Nevertheless, Petitioner’s reliance on United States v. Forrester, 512 F.3d 500 (9th
Cir. 2008), McCormick v. Adams, 621 F.3d 970 (9th Cir. 2010), and United States v. Balough,
820 F.2d 1485 (9th Cir. 1987), is misplaced because none of the circuit cases is quite like
Petitioner’s, where he sought a “re-do” after the close of evidence.

MEMORANDUM DECISION AND ORDER - 20

representation and the risks of the particular defense with counsel and the trial
court, and (2) that the trial court already had probed Petitioner’s ability to
understand the proceedings; therefore, it cannot be said that the Idaho Supreme
Court merely presumed Petitioner understood the dangers and disadvantages of
self-representation at the conclusion of trial. (State’s Lodging A-4, p. 342.)
While other fairminded jurists might disagree and require either an express finding
of the trial court that Petitioner understood the risks and consequences of selfrepresentation or an affirmative explanation from Petitioner on the record, other
jurists would find the totality of the record sufficient, as does this Court.
Petitioner further argues that he never requested an opportunity to proceed
pro se, but only wanted a different attorney. What is evident from the whole record
is that Petitioner was bent on pursuing a certain defense, but his counsel thought it
an imprudent and harmful defense. For example, at the time of the February 5
hearing on Petitioner’s pro se motion to disqualify counsel (State’s Lodging A-1,
p. 71; A-5), Petitioner had refused to cooperate with his counsel in preparation of a
defense, and had refused to discuss with counsel his desire to present the hypnosis
defense unless counsel could set up a meeting with Shelley. (State’s Lodging A-5,
p. 5, 9.) At that point, the judge asked Petitioner whether he wanted to proceed
with the public defender or represent himself, and, after consultation with his
counsel, Petitioner decided to remain with counsel. Petitioner fails to acknowledge

MEMORANDUM DECISION AND ORDER - 21

that a refusal to cooperate with the public defender is a circumstance that itself
invites the question of self-representation.
At the time of the April 7 pretrial conference, the trial court indicated it had
received “quite a bit of correspondence” from Petitioner about his allegations that
his attorney was performing ineffectively, and the court laid out Petitioner’s three
options: hire a new lawyer, keep the same public defender, or represent himself.
This set of choices, again, was appropriate under the circumstances, where the
court found no deficiencies in counsel’s representation and where Petitioner
refused to discuss his defense with the trial court. (Id., pp. 15-24.)
Similarly, after the close of evidence, Petitioner again was given the choice
of pursuing a defense that counsel thought would destroy Petitioner’s chances of
acquittal, or continuing to have counsel aid him with the closing argument. (State’s
Lodging A-4, pp. 354-55.) Because a client cannot force his attorney to take a
course of action harmful to the client, nor can the court force an attorney to take a
course of action harmful to his client, the natural consequence of Petitioner’s
failure to cooperate and his insistence on pursuing a harmful defense was to
represent himself. Therefore, Petitioner is hard-pressed to argue that he never
asked for, but was “forced” to accept, pro se status.
Petitioner further asserts that the allegedly coerced choice was contrary to
Rock v. Arkansas, 483 U.S. 44 (1987), and that he should not have been forced to

MEMORANDUM DECISION AND ORDER - 22

choose between the right to counsel or the right to testify. While there is no doubt
that Petitioner had the right to counsel and the right to testify, Rock does not stand
for the proposition that Petitioner has the right to force his counsel to take up a
new and detrimental defense after the close of evidence. Rather, the holding of
Rock is that a per se rule excluding all hypnotically-refreshed testimony
impermissibly infringed on a criminal defendant’s right to testify on her own
behalf, a different issue.
As noted above, Petitioner had full opportunity to probe his defense and
share it with his attorney and with the court at the February 5 and April 7 pretrial
hearings. Petitioner chose to insist on not revealing his defense or what evidence
was needed for his defense unless he met with the K.B.’s mother (also a victim in
the consolidated case), even though the prosecutor refused to recommend the
meeting and two protective orders prohibited such a meeting. Petitioner’s counsel
and his investigator had not found any foundation for the defense, and so informed
Petitioner prior to trial. Petitioner was well-aware that the hypnosis defense was
not going to be utilized at trial, and yet he waited until after the child had been
released from testifying to attempt to re-open his case.
The trial court weighed the options and did not force Petitioner to forgo his
preferred defense, but provided him two reasonable choices given the procedural
posture of the case and the nature of the defense he was proffering. Under the

MEMORANDUM DECISION AND ORDER - 23

Sixth Amendment, “a defendant’s right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions.” United States v.
Scheffer, 523 U.S. at 308. The trial court’s decision to permit the additional
defense but not require counsel to put on that defense was within the bounds of
governing precedent under the totality of the circumstances, and did not amount to
a forced waiver of the right to counsel or an unconstitutional choice between the
right to counsel and the right to testify. The record contains sufficient facts to
support the Idaho Supreme Court’s conclusion that Petitioner’s waiver of the right
to be represented by counsel for the presentation of the additional defense and
closing arguments was knowing, voluntary, and intelligent.
Considering the overall record–especially that Petitioner’s selfrepresentation occurred after the close of evidence and that Petitioner was insistent
on providing a nonsensical defense that he was heavily engaged in hypnotizing the
child to protect her from imminent harm during the same time period he was under
the influence of methamphetamine, the Court concludes that Petitioner has failed
to show that the Idaho Supreme Court’s disposition of this claim was contrary to,
or involved an unreasonable application of, governing United States Supreme
Court precedent such that habeas relief is warranted. See Tovar, 541 U.S. at 88 (no
formulaic warning need be given).

MEMORANDUM DECISION AND ORDER - 24

3.

Claim Two
Claim Two alleges Petitioner was denied his Sixth Amendment right to

present a defense “when the district court refused to allow him to recall [the
victim] after his counsel was discharged and he was presenting his defense pro se.”
(Dkt. 1, p.5.)
A.

Standard of Law Governing Confrontation of Witnesses Claim

The Sixth Amendment affords a criminal defendant the right to present a
defense and confront his accusers, but, as previously noted, the right is subject to
limitation and may “‘in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.’” Rock v. Arkansas, 483 U.S. at 55 (quoting
Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). For example, a trial
court may reasonably limit cross-examination that is harassing, confusing,
repetitive, or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986). Regarding the right to examine adverse witnesses, the Supreme Court
has stated that, although the “Confrontation Clause guarantees an opportunity for
effective cross-examination,” it does not guarantee “cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.” Id.
(citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
A mere deprivation of testimony does not amount to a Sixth Amendment
violation; rather, it is a deprivation of favorable testimony that is key. United

MEMORANDUM DECISION AND ORDER - 25

States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). In Washington v. Texas,
388 U.S. 14 (1967), the Supreme Court held that the right to have compulsory
process for obtaining witnesses in the defendant’s favor was violated when “the
State arbitrarily denied him the right to put on the stand a witness who was
physically and mentally capable of testifying to events that he had personally
observed, and whose testimony would have been relevant and material to the
defense.” Id. at 23.
B.

Discussion of Confrontation of Witnesses Claim

Based on the evidence in the state court record, the Idaho Supreme Court
determined:
The district court did not abuse its discretion in declining to allow
Dalrymple to recall K.B. for cross-examination on the hypnosis
defense. In the first place, Dalrymple had been unable to lay a
foundation for testimony to establish the defense. Further,
Dalrymple’s counsel had the opportunity to cross-examine K.B.
when she initially testified. At that time the attorney attempted to
impeach K.B. and asked her whether Dalrymple ever told her to
make anything up or say the things to which she testified, receiving a
reply in the negative. Thus, Dalrymple had his opportunity to
confront this witness and there was no error in not allowing
additional cross-examination after he discharged his attorney.
167 P.3d at 772.
The procedural posture of Petitioner’s case is distinctly different from the
procedural posture of the governing precedent. In Valenzuela-Bernal and
Washington, the defendants were denied the right to compel witnesses to testify at

MEMORANDUM DECISION AND ORDER - 26

trial in the first instance. Here, K.B. had already testified, and Petitioner made no
effort at the time of her testimony to either ask her about hypnosis or ask the trial
court to allow her to be recalled at a later time. (State’s Lodging A-4, p. 87-155.)
In addition, without being able to lay a foundation for the testimony about
hypnosis, the testimony he would have attempted to elicit from K.B. would not
have been admissible. In addition, special concerns about child witnesses exist,
and the trial court exercised its discretion in refusing to recall her to trial after she
had been excused and already had returned to school. All of these factors weigh
against Petitioner’s argument.
Certainly, under similar circumstances, other trial judges might have
recalled the child from school to testify. However, as explained above, Petitioner
had full opportunity while the child was on the stand to bring up his hypnosis
defense. He did not; nor did his attorney; nor did Petitioner attempt to raise this
issue with the court at that time. This Court agrees with Petitioner that his
counsel’s questions to the child about whether Petitioner ever asked her to lie
about being sexually abused did not adequately address the hypnosis defense (the
theory of which was that the child was unaware that she had been hypnotized to
allege abusive conduct that never happened). (State’s Lodging B-19, p. 7-8; State’s
Lodging A-4, p. 146.) However, the Court disagrees that Petitioner did not have
adequate opportunity to confront the witness in any reasonable manner he desired

MEMORANDUM DECISION AND ORDER - 27

while the witness was on the stand.
Petitioner also argues that the Idaho Supreme Court wrongly applied Idaho
evidentiary rules to the circumstances, and that it should not have used “lack of
foundation” to support a conclusion that the child’s additional testimony would not
have been material or favorable. (State’s Lodging B-19, p. 7.) However,
Petitioner’s argument is directed toward showing an erroneous application of law,
rather than an unreasonable application of law, which is outside the scope of
habeas corpus review. See Williams, 529 U.S. at 411 (a petitioner cannot prevail
under the unreasonable application clause “simply because that court concludes in
its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”)
Particularly, Petitioner takes issue with the trial court’s comment that
foundation for testifying about how hypnosis works could be laid only by showing
that he was “certified or qualified to discuss the subject of hypnosis . . . through
educational certification or some type of professional certification, some type of
course of study.” (State’s Lodging, p. 360.) The court did not tell Petitioner that,
alternatively, he could lay foundation to show an expertise in a subject area by
having adequate experience.
However, under similar circumstances, many trial judges would find that
Petitioner’s attempts to lay foundation for his knowledge of hypnosis were

MEMORANDUM DECISION AND ORDER - 28

inadequate to show that he either had training or was an expert through experience:
At 16, I learned how to do hypnosis by watching an
entertainer that was doing hypnosis. I used it. I tried it. I was amazed
that it actually did work. Had quite a bit of fun with it at parties at
different times. In the military, I was a driver for a man who had
done – his name was Captain Dolla. I was a driver for him for about
a year and he worked in some type of military intelligence and he
knew a lot more about it than I did. Also during this time, I was
going to Fort Steilacoom College, and I was – it was my first year in
college, and I wanted to study psychology so he and I had a lot of
talks about subliminal messaging and hypnosis and how to make it
happen and how to make it undetectable; how to do it so that it was
not detectable.
(Id., p. 365.)
Some of Petitioner’s testimony arguably was within the purview of “expert”
opinion rather than testimony based on personal experience, supporting the trial
court’s and the Idaho Supreme Court’s conclusion that additional foundation as an
expert was required. For example, Petitioner’s first question to himself was, “Is
hypnosis provable?” The trial court told Petitioner the question was impermissible
and that he needed to lay a foundation. (State’s Lodging A-4, p. 365.) Petitioner
then asked himself: “How much do you know about hypnosis?” The court
permitted Petitioner to testify about how he was trained in hypnosis, and he did so,
as set forth in the quotation directly above. (Id., pp. 365-66.) When Petitioner
again asked himself: “How is what you are saying provable?,” the court again
ruled that such testimony was impermissible. (Id., p. 366.) However, the court
permitted Petitioner to testify about what procedures he used to hypnotize the child

MEMORANDUM DECISION AND ORDER - 29

and why he hypnotized her, such as with the court’s direction: “I don’t want you to
give them [the jury] a discussion about how people are hypnotized. I want you to
specifically related what you did to [K.B.] to hypnotize her.” (Id., p. 361.)
Petitioner so testified.
The Court agrees that the question of foundation arguably would have
arisen had Petitioner been permitted to recall the child. As the prosecutor pointed
out at trial, admissibility rules for “hypnotically induced testimony” were adopted
in State v. Iwakiri, 682 P.2d 571 (1984). While Petitioner’s own testimony was not
an attempt to introduce “hypnotically induced testimony,” the child’s testimony
could have reached into this difficult area, requiring foundation that Petitioner
could not lay. In addition, other considerations, such as Petitioner’s ability to
examine the witness during his case before evidence was closed and the special
circumstances involving child witnesses in sex crime cases, weigh in favor of not
recalling the witness.
Based on the foregoing, the Court concludes that Petitioner has failed to
show that the Idaho Supreme Court’s decision is contrary to, or an unreasonable
application of, United States Supreme Court precedent governing this issue.
Accordingly, Petitioner is not entitled to relief under § 2254(d)(1).

MEMORANDUM DECISION AND ORDER - 30

CERTIFICATE OF APPEALABILITY
In the event Petitioner files a notice of appeal from the Order and Judgment
in this case, the Court now evaluates the claims within the Petition for suitability
for issuance of a certificate of appealability (COA), which is required before a
habeas corpus appeal can proceed. 28 U.S.C. § 2253(c)(1)(A); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Rule 11(a), Rules Governing Section 2254
Cases.
A COA will issue only when a petitioner has made “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court
has explained that, under this standard, a petitioner must show “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 presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal citation and punctuation omitted).
When a court has dismissed the petition or claim on the merits, the
petitioner must show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. at 484. The COA
standard “requires an overview of the claims in the habeas petition and a general
assessment of their merits,” but a court need not determine that the petitioner
would prevail on appeal. Miller-El, 537 U.S. at 336.

MEMORANDUM DECISION AND ORDER - 31

Here, the Court has dismissed Petitioner’s claims on the merits. The Court
finds that additional briefing on the COA is not necessary. Having reviewed the
record again, the Court concludes that reasonable jurists would not find debatable
the Court’s decision on the procedural issues and the merits of the claims raised in
the Petition and that the issues presented are not adequate to deserve
encouragement to proceed further. As a result, the Court declines to grant a COA
on any issue or claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth
Circuit, Petitioner must file a notice of appeal in this Court, and simultaneously
file a motion for COA in the Ninth Circuit Court of Appeals, pursuant to Federal
Rule of Appellate Procedure 22(b), within thirty (30) days after entry of this
Order.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Summary Judgment (Dkt. 14) is
GRANTED.

2.

Petitioner’s Motion for Summary Judgment (Dkt. 15) is DENIED.

3.

Petitioner’s case is DISMISSED with prejudice.

4.

The Court will not grant a Certificate of Appealability in this case. If
Petitioner chooses to file a notice of appeal, the Clerk of Court is

MEMORANDUM DECISION AND ORDER - 32

ordered to forward a copy of this Order, the record in this case, and
Petitioner’s notice of appeal, to the United States Court of Appeals
for the Ninth Circuit.
DATED: March 22, 2012

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 33