Gable v. Wengler

Filing 21

MEMORANDUM DECISION AND ORDER granting 18 Second MOTION for Extension of Time to File Answer and Brief in Support of Dismissal; denying and dismissing with prejudice 1 Petition for Writ of Habeas Corpus. The Court does not find its resolut ion of this habeas matter to be reasonablydebatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

Gable v. Wengler

Doc. 21

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK WESLEY GABLE,
Case No. 1:10-cv-00644-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
WARDEN TIMOTHY WENGLER,
Respondent.

Pending before the Court is Petitioner Mark Wesley Gable’s Petition for a Writ of
Habeas Corpus (Dkt. 1). Respondent has filed a Second Motion for Extension of Time to
File Answer and Brief in Support of Dismissal (Dkt. 18), which the Court will grant.
Respondent’s Answer and Brief in Support of Dismissal (Dkt. 19) is deemed timely, and
Petitioner has filed a Reply (Dkt. 20).
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). (See Dkt.
10.) Having reviewed the record, including the state court record, the Court concludes
that oral argument is unnecessary. Accordingly, the Court enters the following Order
denying the Petition and dismissing this case.
BACKGROUND
On January 10, 2005, a loss prevention officer at a Fred Meyer store in Meridian,

MEMORANDUM DECISION AND ORDER 1

Dockets.Justia.com

Idaho, observed a man and a woman acting suspiciously in the cold medicine aisle of the
store. (State’s Lodging B-4, p. 1.) The couple left the store and met Mark Gable
(“Petitioner”) by a car in the parking lot, where they tossed a baby carrier that the woman
had been carrying into the back seat. (Id.) The loss prevention officer called the civil
supervisor of the local police crime prevention unit, who arrived at the scene in plain
clothes and watched as the group repeated similar behavior at four nearby stores. (Id.)
Police officers stopped the car, and Petitioner was arrested for driving on a
suspended license. (State’s Lodging B-4, p. 2.) A search of the car revealed
approximately one thousand pseudoephedrine pills, empty blister packs,
methamphetamine, drug paraphernalia, and a ledger with numbers written on it. (Id. at 2.)
The baby carrier had only a doll in it, and a diaper bag was lined with aluminum foil. (Id.)
Petitioner and his two companions were charged with four counts burglary and one
count of conspiracy to traffic in methamphetamine by manufacturing. (State’s Lodging
A-1, pp. 30-33.) After a jury trial—at which Petitioner’s accomplices testified against
him—Petitioner was convicted of three counts of aiding and abetting burglary and one
count of conspiracy to traffic in methamphetamine. (State’s Lodging B-4, p. 3.) On the
burglary counts, the trial court sentenced him to one year fixed, two years fixed, and two
years fixed, respectively, and the court sentenced him to twenty-five years with fifteen
years fixed for conspiracy to traffic in methamphetamine. (State’s Lodging A-1, pp.
127-30.) Petitioner is serving these sentences consecutively, for an aggregate term of
twenty to thirty years in prison. (Id.)
MEMORANDUM DECISION AND ORDER 2

On direct appeal, Petitioner raised three issues: (1) he contended that the
prosecutor violated his right to due process of law when he cross-examined Petitioner
about his “failure to tell his side of the story” at the time of his arrest; (2) Petitioner
asserted that the trial court erred in denying his motion to suppress, which defense
counsel had raised for the first time during the criminal trial; and (3) he claimed that the
trial court abused its discretion by imposing excessive sentences. (State’s Lodging B-1,
pp. 10-25.)
The Idaho Court of Appeals declined to consider the merits of the suppression
issue after concluding that the trial court should not have entertained the motion because
it was untimely and there was no showing of good cause or excusable neglect. (State’s
Lodging B-4, p. 4.) The Court of Appeals next assumed, without deciding, that Petitioner
had shown a violation of his fundamental rights based on the prosecutor’s improper
cross-examination, but it concluded that the error was harmless. (Id. at 7-8.) Finally, the
Court of Appeals ruled that the lower court did not abuse its discretion in sentencing. (Id.
at 9.) Petitioner filed a petition for review in the Idaho Supreme Court, re-asserting these
claims, but the petition was denied. (State’s Lodgings B-5, B-6, B-7.)
Petitioner returned to the state district court with an application for post-conviction
relief. (State’s Lodging C-1, pp. 5-9.) The district court summarily dismissed all claims
that could have been raised on direct appeal, but it appointed counsel for Petitioner and
held an evidentiary hearing on his claim of ineffective assistance of trial counsel. (State’s
Lodging C-1, pp. 42-43; State’s Lodging C-2.) At the conclusion of the evidentiary
MEMORANDUM DECISION AND ORDER 3

hearing, the claim had been narrowed to two grounds: first, Petitioner alleged that his
counsel, D.C. Carr, was ineffective in failing to file a timely motion to suppress, a
deficiency that had resulted in the Idaho Court of Appeals declining to consider the merits
of the issue on appeal; and, second, Petitioner faulted Carr for not objecting to testimony
about Petitioner’s methamphetamine use and other prior bad acts. (State’s Lodging C-1,
p. 52.) The district court determined that Petitioner had not established that Carr’s
representation fell below an objective standard of reasonable representation on either of
these grounds, or that he had been prejudiced by any errors. (Id. at 53-55.)
With the assistance of new counsel, Petitioner appealed, but he limited the issue on
appeal to Carr’s failure to file a timely motion to suppress. (State’s Lodging D-1.) The
Idaho Court of Appeals affirmed, finding that a motion to suppress would have lacked
merit because police officers had reasonable suspicion to stop Petitioner’s car. ([State’s
Lodging D-6] at 4-10.) Petitioner raised the issue again in a petition for review, but the
Idaho Supreme Court declined to review the case. (State’s Lodging D-8, D-9.)
Petitioner filed his Petition for Writ of Habeas Corpus in this Court on December
29, 2010. (Dkt. 1.) In his Petition, he claims that (1) his right to be free from unreasonable
searches and seizures under the Fourth Amendment was violated; (2) he was deprived of
his due process right to a fair trial because of (a) prosecutorial misconduct, (b) the
admission of “tainted” evidence, (c) police misconduct, (d) the prosecution’s failure to
disclose exculpatory evidence, and (e) cumulative errors; (3) he was deprived of his Sixth
and Fourteenth Amendment rights to the effective assistance of counsel; (4) he is being
MEMORANDUM DECISION AND ORDER 4

subjected to cruel and unusual punishment in violation of the Eighth Amendment; and (5)
various other errors violated his right to due process and equal protection under the
Fourteenth Amendment. (Dkt. 1, pp. 5-16.)
The Court conducted an initial review of the Petition and ordered the Clerk to
serve it on Respondent. (Dkt. 6.)
Respondent then lodged the state court record with the Court and filed a Motion
for Partial Summary Dismissal (Dkt. 12), contending that with the exception of claims
related to (1) the prosecutor’s allegedly improper cross-examination and argument, and
(2) ineffective assistance of trial counsel based on Carr’s failure to file a timely motion to
suppress (aspects of Claims 2 and 3), Petitioner’s claims were not properly exhausted in
the state courts and were therefore procedurally defaulted. Respondent also moved to
dismiss Claim 1 on the alternative ground that the substantive Fourth Amendment issue is
not cognizable in this federal habeas proceeding.
This Court granted in part Respondent’s Motion for Summary Dismissal. The
Court agreed that Claim 1 failed to state a claim upon which relief could be granted. (Dkt.
15 at 7.) The Court concluded that Petitioner “had an opportunity to litigate all search and
seizure issues in the Idaho state courts,” and thus the rule of Stone v. Powell, 428 U.S.
465, 481-82, 494 (1976), applied to prohibit federal habeas review of Petitioner’s Fourth
Amendment claim:
Even though Petitioner’s counsel failed to comply with the procedural rule,
the district court nonetheless considered the Fourth Amendment claim on its merits
when counsel raised it at trial. It is of no import to the Stone analysis that the Idaho
MEMORANDUM DECISION AND ORDER 5

Court of Appeals later concluded that the trial court should not have entertained
the motion. What matters is whether Petitioner had an opportunity to develop the
issue, and he clearly did. Petitioner discounts the value of that opportunity, but the
fact that the issue was raised, considered, and ultimately decided by the trial court
is immutable.
Moreover, the Idaho Court of Appeals also eventually reviewed the merits
of the Fourth Amendment issue in the post-conviction appeal when it addressed
whether trial counsel had been ineffective in handling the suppression motion.
Respondent is not seeking dismissal of Petitioner’s ineffective assistance of
counsel claim here. For these reasons, Claim 1 will be dismissed as non-cognizable
under the Stone doctrine.
(Dkt. 15 at 8.)
The Court also dismissed Claims 2 (in part), 4, and 5 (in part) as procedurally
defaulted. The Court declined at that time to dismiss the remaining claims—in which
Petitioner claims ineffective assistance of trial counsel—to give the parties an opportunity
to address the Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
Therefore, the remaining claims fall into two broad categories. First, there are
ineffective assistance of counsel claims that are procedurally defaulted unless Petitioner
can show cause and prejudice under Martinez: aspects of Claims 2, 3, and 5. Second,
there are the claims that Petitioner raised before the Idaho state courts, which the Court
will decide on the merits: Claims 3(5) and 5(E), which allege ineffective assistance of
counsel based on trial counsel’s failure to file a timely motion to suppress; and Claim
2(C), which alleges a violation of the Fifth Amendment’s protection against compelled
self-incrimination based on the prosecutor’s cross-examination of Petitioner, and
reference in closing argument, to Petitioner’s failure to speak to police officers when he

MEMORANDUM DECISION AND ORDER 6

was arrested.
DISCUSSION
1.

Specific Factual Basis of Petitioner’s Claims
Petitioner’s two-day trial began on August 29, 2005. Petitioner was convicted

based on physical evidence, the testimony of eye witnesses including law enforcement
personnel, and the testimony of his accomplices, Sara Rogers and Robert Hamby.
Rogers testified that Petitioner recruited her in Oregon to travel with him to the
Boise area to help him steal cold medicine pills containing pseudoephedrine that
Petitioner would then use to manufacture methamphetamine. (State’s Lodging A-4, pp.
73-75.) The plan was to steal 5,000 pills. (Id., pp. 79-80.) Hamby also joined the crew,
and they all traveled to the Boise area in January 2005. Petitioner drove Rogers and
Hamby to several stores. Rogers and Hamby went into the stores with a foil-lined diaper
bag, as well as a baby carrier holding a doll with a blanket over it. According to Hamby,
the ruse was meant to be a cover, so they would attract less notice and “have a place to
put the box and the pills.” (Id., pp. 188.) Petitioner remained in the car most of the time.
A loss prevention officer at a Fred Meyer store, Sabrina Lythgoe, noticed Rogers
and Hamby acting suspiciously, looking around nervously as they walked down the cold
medicine aisle. (Id., pp. 16-17.) Rogers saw Lythgoe and asked her a question about the
difference in brands of pseudoephedrine pills, but Lythgoe said she did not know and that
she did not work at the store. (Id., p. 18.) After Rogers and Hamby left the store, they met
Petitioner at the car and threw the baby carrier in the back seat. (Id., p. 19.) Lythgoe
MEMORANDUM DECISION AND ORDER 7

testified that she did not know whether there was a baby in the carrier and that the
couple’s actions were suspicious: “I mean, who is going to come into a store with a baby
carrier and a baby bag and just throw the baby carrier in the back of the car?” (Id., p. 27.)
Meanwhile, Lythgoe had contacted Kurt Crum, the civilian supervisor of the crime
prevention unit of the police department, and notified him of the suspicious couple. Crum
arrived at the Fred Meyer store and began surveillance. He saw Petitioner enter Fred
Meyer while Lythgoe was watching Rogers and Hamby. Petitioner went inside through
the front door but left through a different door, which Crum stated was a common tactic
used by thieves. (Id., pp. 43-45.) As Petitioner left the store, Crum saw that there was a
bulge in Petitioner’s pocket and that Petitioner kept “indexing” the pocket—“a behavior
that’s pretty common either to theft activity or people [who] are even caring [sic]
weapons where they almost subconsciously draw attention to it when they are trying not
to by pushing it down or looking down.” (Id. at 44.) Crum followed the group to several
other stores, where Rogers and Hamby repeated their suspicious behavior. (Id., pp. 4351.)
Crum notified the Meridian police. Sergeant Mike De St. Germain and Lieutenant
Gene Trackel observed and followed Petitioner and his accomplices. (Id., p. 49.) The
police eventually stopped Petitioner’s car and discovered that Petitioner was driving on a
suspended license. (Id., pp. 141.) The police arrested Petitioner and searched the car,
finding, among other things, various pills and packaging for cold medicine. (Id., pp. 16566.) While in the car, Rogers and Hamby had been taking stolen pills out of the boxes and
MEMORANDUM DECISION AND ORDER 8

sorting them by type and dosage. (Id., pp. 195, 257-58.)
Crum, the civilian supervisor of the police department’s crime prevention unit,
testified that he believed the primary reason the officers stopped Petitioner’s car was
concern over the handling of the baby carrier:
[C]learly it caused us some concern. Because at that point, we had no idea whether
there was really a baby in there or not. From the initial call we got about them
throwing the carrier in the back seat to our observations, certainly would be
something we would be very concerned about if there had actually been a baby in
there. Which we couldn’t determine, because they had a blanket over it.”
(Id., p. 52.)
Sergeant De St. Germain, however, noticed at one point that a doll flew out of the
baby carrier after Hamby “chucked the child care carrier in the back.” (Id., p. 225.)
Therefore, when De St. Germain determined that there was reasonable suspicion1 to stop
the car, he “was going on the fact that there was [sic] three subjects that he said were
taking or stealing pseudoephedrine tablets,” not on the concern that a baby might be in
danger. (Id., p. 240.)
After Lythgoe’s testimony, Carr moved to suppress the evidence found in the car
on the grounds that the police lacked reasonable suspicion to believe there was a baby in
the carrier because De St. Germain knew it was actually a doll. (Id., pp. 29-30, 245-46.)
1

In state court, the parties at various times discussed the Fourth Amendment issue in
terms of probable cause. However, to stop the car the police needed only reasonable suspicion to
believe that a violation of law had occurred. See United States v. Becerra-Garcia, 397 F.3d
1167, 1173 n.3 (9th Cir. 2005). “[R]easonable suspicion exists when an officer is aware of
specific, articulable facts which, when considered with objective and reasonable inferences, form
a basis for particularized suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129
(9th Cir. 2000) (en banc) (emphasis omitted).
MEMORANDUM DECISION AND ORDER 9

Carr stated,
Well, this is somewhat painful for me; but, Judge, it appears that even
though [a motion to suppress] was not filed, that it appears to me from just
questioning [Lythgoe] as far as the probable cause even to search the car is in
question.
And I know it is far a pass [sic], here we are on the first day of trial, it is far
past to do a suppression issue on this. I just want to take note of the fact that that
was probably missed. And that probably should have happened, because it just
doesn’t seem from her answers, you know, I was expecting her to say that, well,
she knew that there was a baby in there, and that they were rough handling the
baby. But from her answers, it appears to me that she had – I mean she was just
taking a wild shot at it.
(Id., pp. 29-30.) The trial court reserved ruling on Carr’s untimely motion to suppress.
After De St. Germain finished testifying, defense counsel renewed the suppression
argument:
Judge, I just need a clear record because I think we are all in agreement that
there is beginning to be overwhelming evidence against my client here. I know
[Gable] is going to testify, but this gets more sorted [sic] as we go regarding this
probable cause to stop the car.
And I have just heard testimony here today that basically, no, it was stopped
because somebody was boosting something. It wasn’t because of the baby carrier.
It wasn’t because of the baby in the baby carrier. That [De St. Germain] says that
he actually saw a doll fly out of the baby carrier.
[Kurt] Crum says, well, we were worried about the safety of the baby, and
he has just confirmed that there wasn’t any baby in there. So I am wondering about
the reasonable suspicion of stopping the car at this point.
....
Judge, just note the fact that my point that I made about the difference
between the baby and the doll as far as the testimony between Kurt Crum and the
Sergeant in regards to what they saw. That basically, Kurt Crum was saying that
his observations were that there may be a baby in danger, and that was one of the
MEMORANDUM DECISION AND ORDER 10

reasons for the probable cause of stopping.
I will concede to the Court regarding the other suspicious activity that’s
already been plentifully put on the record regarding the suspicious activity of
going from one store to the other. And, also, as far as the conversation that Miss
Lythgoe had with one of the defendants regarding Sudafed. I understand that. I
will leave that in your discretion. I just wanted to note as far as regards to the doll
and the baby.
(Id., pp. 241-46.) Despite its untimeliness, the district court denied the motion to suppress
on the merits.
Petitioner testified in his own defense. He claimed that he and Hamby drove to
Boise to pick up Rogers, who had been living in Boise, and take her back to Oregon; he
claims he was not involved in any conspiracy. (Id., pp. 277-78.) Petitioner testified that he
did not find it odd that Rogers and Hamby repeatedly took a baby carrier (without a baby)
into several stores, because Rogers had said “it made it easier for her to return [some cold
medicine] with the baby [carrier], because she had no ID.” (Id., p. 291.) Petitioner also
stated that he never saw any of the stolen pills or boxes that Rogers and Hamby opened
and sorted in Petitioner’s car. (Id., pp. 259, 297.)
On cross-examination, the prosecutor asked several questions going to Petitioner’s
credibility, some of which touched upon his decision not to speak to the police upon his
arrest:
Q.

Now you have come in here and explained to the jury exactly what happen
[sic]. Correct? Is that a yes?

A.

Yes.

....
MEMORANDUM DECISION AND ORDER 11

Q.

Why did you wait until today to tell us?

A.

Because this is the first time anybody has ever asked me.

Q.

The officers at the scene never asked you what happened?

A.

I thought – he asked me if I wanted to get an interview at the Meridian
Police.

Q.

What did you tell him?

A.

I told him I had nothing to say to him. I was arrested for driving while
suspended.

Q.

Okay. You didn’t – you weren’t there when they were pulling these pills out
of the car?

A.

Nope.

Q.

Where were you at?

A.

I was in the back of a police car.

Q.

You couldn’t see what was going on?

A.

No.

Q.

Why didn’t you have anything to say to them about driving on a suspended
license then?

A.

I told them I had a suspended license. What more could I say?

(State’s Lodging A-4, pp. 288-89.)
The prosecutor returned to this theme during closing argument:
Ladies and gentlemen, I want to talk [sic] one last thing about the credibility
a little bit more of Mr. Gable. He would have you believe that he was arrested that
day and that he’s in custody today, and he’s never had an opportunity to tell
anyone his side of the story.

MEMORANDUM DECISION AND ORDER 12

He told you himself that the officers asked him if he wanted to talk, and he
said no. If a person is sitting in jail on a crime that they didn’t commit—he’s been
aware of the crime that he was charged with—wouldn’t it make sense that that
person would be crying out, not just sitting there stoic?
His testimony today is not credible.
(State’s Lodging A-5, p. 11.)
1.

Procedural Default and Martinez v. Ryan
A.

Standard of Law

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 they have a full and fair opportunity to correct alleged constitutional errors 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.
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). A habeas claim is also procedurally
defaulted when the petitioner actually raised the claim in state court, but the state court

MEMORANDUM DECISION AND ORDER 13

denied or dismissed the claim after invoking a state law ground that is independent of
federal law and is adequate to support the judgment. Coleman v. Thompson, 501 U.S.
722, 729-30 (1991).
If a petitioner’s claim is procedurally defaulted, a federal district court cannot hear
the merits of the claim unless the petitioner meets one of two exceptions: (1) a showing of
adequate legal cause for the default and prejudice arising from the default; or (2) a
showing that a miscarriage of justice will occur if the claim is not heard in federal court,
which means that the alleged constitutional violation has probably resulted in the
conviction of someone who is actually innocent.2 See Schlup v. Delo, 513 U.S. 298, 329
(1995); Murray v. Carrier, 477 U.S. 478, 488 (1986).
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, 477 U.S. at 488. To show
“prejudice,” a petitioner bears “the burden of showing, not merely that the errors [in his
proceeding] constituted a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire [proceeding] with error of constitutional

2

Although Petitioner states in his Reply that actual innocence “is his claim on his
conviction” (Dkt. 20 at 1), he did not assert actual innocence in his Petition. Actual innocence in
this context “means factual innocence, not mere legal insufficiency.” Bousley v. United States,
523 U.S. 614, 623 (1998). Petitioner has not met the high standard of showing that, “in light of
all of the evidence, ‘it is more likely than not that no reasonable juror would have found [him]
guilty beyond a reasonable doubt.’” United States v. Avery, No. 12-35209, ___ F.3d ___, 2013
WL 2995806 (9th Cir. June 18, 2013) (alteration in original) (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)).
MEMORANDUM DECISION AND ORDER 14

dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).
A petitioner does not have a federal constitutional right to effective assistance of
counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551,
555 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general
rule is that any errors of a petitioner’s counsel during the post-conviction action cannot
serve as a basis for cause to excuse a procedural default. See Coleman, 501 U.S. at 752.
Martinez v. Ryan established a “limited qualification” to this rule. 132 S. Ct. at
1319. There, the Court held that “[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner’s procedural default of a claim
of ineffective assistance at trial.” Id. at 1315. “To overcome the default, a prisoner must
also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim has
some merit.” Id. at 1318. The Court explained that the limited exception was created “as
an equitable matter, that the initial-review collateral proceeding, if undertaken without
counsel or with ineffective counsel, may not have been sufficient to ensure that proper
consideration was given to a substantial claim.” Id.
In Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013), the Supreme Court determined
that, 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,” the exception
recognized in Martinez applies. This means that a petitioner may assert that his postMEMORANDUM DECISION AND ORDER 15

conviction counsel was ineffective for failing to raise an ineffective assistance of trial
counsel claim in that proceeding, because it was the first meaningful opportunity to raise
such a claim. In Idaho, the post-conviction setting is the “preferred forum for bringing
claims of ineffective assistance of counsel,” although in limited instances such claims
may be brought on direct appeal “on the purported errors that arose during the trial, as
shown on the record” (as opposed to matters arising outside the record). Matthews v.
Idaho, 839 P.2d 1215, 1220 (Idaho 1992) (citation omitted). Thus, in Idaho, Martinez can
be applied to ineffective assistance of trial counsel claims arising from Idaho state court
convictions and sentences, where the post-conviction setting was the first forum in which
the ineffective assistance of trial counsel claim based on matters arising outside the record
could have been brought and developed in an evidentiary hearing. See id.
The Martinez Court explained that its holding was based on equitable rather than
constitutional grounds and emphasized that it was not to be applied generally to
procedural default circumstances:
The rule of Coleman governs in all but the limited circumstances
recognized here. The holding in this case does not concern attorney errors in other
kinds of proceedings, including appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions for discretionary review
in a State’s appellate courts. 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 at trial, even though that initial-review collateral proceeding may be
deficient for other reasons.

MEMORANDUM DECISION AND ORDER 16

132 S. Ct. at 1320 (citation omitted).3 Because the Martinez rule is not a constitutional
one, “an ineffective assistance of [post-conviction] counsel claim used to establish cause
for a procedural default of a claim for ineffective assistance of [trial or] sentencing
counsel need not be exhausted itself.” Dickens v. Ryan, 688 F.3d 1054, 1072 (9th Cir.
2012).
The Ninth Circuit has summarized the Martinez test as follows: “a reviewing court
must determine whether the petitioner’s attorney in the first collateral proceeding was
ineffective under Strickland [v. Washington, 466 U.S. 668 (1984)], whether the
petitioner’s claim of ineffective assistance of trial counsel is substantial, and whether
there is prejudice.” Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (emphasis
omitted). Under Strickland, a petitioner must show that his post-conviction counsel’s
performance was both unreasonably deficient and that the defense was actually
prejudiced as a result of counsel’s errors. 466 U.S. at 684. In Sexton, the court reiterated:
“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so
clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.”
679 F.3d at 1157 (citation omitted).
Under Strickland, there is a strong presumption that an attorney performed within
the wide range of professional competence, and the attorney’s performance will be

3

The Martinez Court also reiterated that the habeas statute specifically provides that
“‘incompetence of counsel during Federal or State collateral post-conviction proceedings shall
not be a ground for relief’” in proceedings arising under section 2254. 132 S. Ct. at 1320
(quoting 28 U.S.C. § 2254(i)).
MEMORANDUM DECISION AND ORDER 17

deemed deficient only if it fell below an objective standard of reasonableness measured
under prevailing professional norms. Strickland, 466 U.S. at 689-90. To prove prejudice,
the petitioner must demonstrate “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. “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. As a result, “[t]he question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated
from best practices or most common custom.” Harrington v. Richter, 131 S.Ct. 770, 778
(2011) (quoting Strickland, 466 U.S. at 690).
The application of the Strickland test in this instance requires Petitioner to show
that counsel’s representation during the post-conviction proceeding was objectively
unreasonable, and that, but for counsel’s errors, there is a reasonable probability that
Petitioner would have received relief in the state post-conviction matter on a claim of
ineffective assistance of trial counsel.
This standard is a high one. Stated another way, to overcome procedural default
under Martinez, a petitioner must show that post-conviction counsel’s “failure to raise the
claim that trial counsel was ineffective was an error ‘so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,’ and
caused [the petitioner] prejudice.” Sexton, 679 F.3d at 1157 (quoting Strickland, 466 U.S.
at 687).
MEMORANDUM DECISION AND ORDER 18

B.

Analysis of Procedural Default

As noted above, post-conviction counsel argued that Petitioner was denied his
Sixth Amendment right to effective trial counsel when Carr failed to file a timely motion
to suppress. No other ineffectiveness claim was presented to the state courts.
Petitioner claims that his post-conviction counsel should also have argued that
Carr was ineffective for (1) permitting the trial to be delayed; (2) failing to further
impeach on cross-examination the loss prevention officer and Petitioner’s two
accomplices; (3) failing to “investigate the facts of the case”; (4) failing to “make the jury
aware of the fact that the law requires that there be actual evidence, other than the
testimony of co-defendants, in order to rule for a conviction,” (5) failing to “develop
and/or present a cognizant defense,” and (6) failing to object to the trial court’s statement
at sentencing that “[d]ue to the presence of other precursor chemicals, he had come to the
determination to pronounce a more severe sentence[,] [w]hen in fact, there were no other
chemicals present.” (Petition at 10-14, 17-18.)
For the reasons that follow, the Court concludes that the ineffective assistance
claims that Petitioner argues should have been raised in post-conviction proceedings are
not substantial. Therefore, post-conviction counsel was not ineffective for failing to raise
them, and Petitioner has suffered no prejudice. See Sexton, 679 F.3d at 1159.
i.

Trial Delay

Petitioner alleges that trial counsel should not have “permit[ted] the trial to be
pushed back” from June to August 2005. (Petition at 10; State’s Lodging A-1, p. 36.)
MEMORANDUM DECISION AND ORDER 19

There are two rights at issue here: the federal constitutional right to a speedy trial, and the
Idaho statutory right to trial within six months.
The Sixth Amendment guarantee of a speedy trial is not violated simply because
there is a delay, even a substantial one, in bringing a defendant to trial, and there is no set
number of days within which a defendant must be tried. See Baker v. Wingo, 407 U.S.
514, 530-31, 534-36 (1972) (holding that five-year delay did not violate defendant’s right
to speedy trial even though most of the delay was not based on a “strong excuse”). Courts
must balance the interests of the government and the defendant in determining whether
the right has been violated. Factors in this analysis include (1) the length of the delay, (2)
the reason for the delay, (3) the defendant’s assertion of his speedy trial right, and (4)
prejudice to the defendant. Id. at 530.
Although a federal court cannot grant habeas relief based on a violation of state
law, if Petitioner’s counsel was ineffective in failing to move for dismissal under Idaho’s
speedy trial statute, and if that failure prejudiced Petitioner, then Petitioner’s federal
constitutional right to effective assistance of counsel would be implicated. The Idaho
statute provides that a criminal case must be dismissed “[i]f a defendant, whose trial has
not been postponed upon his application, is not brought to trial within six (6) months from
the date that the information is filed with the court.” Idaho Code § 19-3501(2). Whether
good cause exists for the delay is primarily based on the reason for the delay, although
Idaho courts also take into consideration the other factors identified in Baker: “(1) the
length of the delay; (2) whether the defendant asserted the right to a speedy trial; and (3)
MEMORANDUM DECISION AND ORDER 20

the prejudice to the defendant.” Idaho v. Moore, 231 P.3d 532, 544 (Idaho Ct. App.
2010).
Respondent acknowledges that because the information was filed on February 25,
2005, the statutory six-month period ended on August 25, 2005—four days before the
trial began. (Answer, Dkt. 19, at 34.) On the first day of trial, Petitioner’s counsel
informed the judge that Petitioner “had a question regarding speedy trial.” (State’s
Lodging A-4, p. 3.) Trial counsel used the date of the arraignment, rather than the
information, to determine when the clock ran out and told the judge that he believed the
trial began within the statutory speedy trial time frame.4 In response, the trial judge stated,
“I think when the new trial was set, all parties agreed there was no objection to the new
date.” (Id. at 3-4.) Neither the prosecution nor the defense contradicted that statement.
The judge described the reason for the delay as “the handling of the matter and various
motions, as well as consolidation of the cases and the plea of a co-defendant.” (Id. at 2-3.)
Considering the speedy trial factors under both federal and state law, the Court
concludes that a motion to dismiss based on a speedy trial violation would have been
denied. The reason for the delay included the consolidation of the three cases and
involved the plea of a co-defendant, which understandably took time. The period from
information to trial was only four days too long. Even assuming that Petitioner invoked
his speedy trial rights before the first day of trial, which is not clear from the record,

4

Petitioner was arraigned on March 3, 2005. Six months from that date was September
3, five days after trial began.
MEMORANDUM DECISION AND ORDER 21

Petitioner has not shown that he suffered any prejudice as a result of the four-day delay.
He asserts only that the delay “served no purpose for the defense and simply provided the
state with the time needed to coerce Rogers and Hamby with threats of life imprisonment
and to suggest that they could avoid such a punishment by blaming Mr. Gable.” (Petition
at 10.) The Court is not persuaded that an extra four days made any difference in the
accomplices’ decision to testify.
For these reasons, a speedy trial motion would not have been granted. Therefore,
even assuming that post-conviction counsel should have raised this issue, and even
assuming that trial counsel should have made a speedy trial motion, Petitioner’s claim of
ineffective assistance is not substantial—Petitioner cannot show that he was prejudiced
by the alleged deficient performance of trial or post-conviction counsel.
ii.

Impeachment of Witnesses

Petitioner claims that Carr’s cross-examination of the loss prevention officer,
Sabrina Lythgoe, was deficient. According to Petitioner, counsel should have
“impeached” Lythgoe because she “was presented as a highly trained, professional loss
prevention officer, one step below the Loss Prevention Manager[,] [w]hen in fact she had
actually completed very little training.” He also takes issue with counsel’s failure to
cross-examine Lythgoe about her statement that Gable left the trunk of his car open while
Rogers and Hamby were in the store, because such a fact is “highly unlikely.”
Petitioner also argues that Carr should have exploited the differences between

MEMORANDUM DECISION AND ORDER 22

Hamby’s and Rogers’s testimony and more thoroughly questioned Rogers about (1) the
ounce of meth she sold, at Petitioner’s request, for $250.00 and (2) the amount of money
that she testified Petitioner had promised her in exchange for her aid in obtaining
pseudoephedrine. (Petition at 12.)
Courts give “great deference to counsel’s decisions at trial, such as refraining from
cross-examining a particular witness,” Brown v. Uttecht, 530 F.3d 1031, 1036 (9th Cir.
2008) (internal quotation marks omitted), or, as here, choosing to ask—or not to
ask—particular questions on cross-examination. With respect to Lythgoe’s training,
Petitioner fails to cite any testimony that actually misrepresented how much training she
had. Petitioner’s belief that Lythgoe’s testimony was likely false does not indicate in the
least that trial counsel was ineffective, because that belief is not based on any evidence in
the record—it is just Petitioner’s opinion. Counsel did cross-examine Lythgoe, focusing
on the fact that while Rogers and Hamby were in the store, she did not actually see them
do anything illegal. (State’s Lodging A-4, pp. 26.) Then, Lythgoe answered a question
about what she thought the couple was doing in the store by stating, “they didn’t have
time to steal anything. They were too paranoid.” (Id. p. 28.) Counsel sensibly chose this
moment to end his cross-examination.
Petitioner’s claim that counsel should have asked Rogers and Hamby different or
more questions on cross-examination is even more thin. Trial counsel elicited from
Rogers testimony that she had not yet been sentenced for her crimes and that, although

MEMORANDUM DECISION AND ORDER 23

she had not been promised anything in return for their testimony, she hoped that her
testimony against Petitioner would help her receive a favorable sentence. (State’s
Lodging A-4, pp. 268-69.) When Hamby claimed he was testifying out of the goodness of
his heart and because he was an honest man who tells the truth, Carr got Hamby to admit
that an honest man would not steal—an obvious advantage for the defense. (Id., p. 201.)
Rogers’s and Hamby’s testimony varied only slightly5 and never with respect to
Petitioner’s leadership role in the conspiracy or his actions and intent on the day the
group was arrested. The credibility of both accomplices was arguably impeached by
Carr’s questioning, which showed that they had a strong motive to lie.
Petitioner has not shown that he has a substantial ineffective assistance claim
under these circumstances.
iii.

Factual Investigation

Petitioner testified at trial that, rather than driving Rogers and Hamby from Oregon
to Boise to steal pseudoephedrine pills, Petitioner and Hamby drove to Boise to pick up
Rogers, who had been living there, and drive her back to Oregon. (State’s Lodging A-4,
pp. 277-78.) As part of this account, Petitioner states that he had to take his spare tire out
of the trunk of his car at a Boise motel so all of Rogers’s belongings would fit in the car.
(Id., p. 279.) Petitioner now accuses trial counsel of failing to investigate the facts of his
5

For example, Rogers testified that Petitioner planned to manufacture the
methamphetamine himself, while Hamby testified that Petitioner planned to take the
pseudoephedrine pills back to Portland so that a friend of his could make the drug. (State’s
Lodging A-4, pp. 80, 181.)
MEMORANDUM DECISION AND ORDER 24

case because counsel did not “check with the Budget Inn and determine if there had been
a spare tire left behind as Gable testified. To be able to present proof that there had been a
spare tire left there would have increased Gable’s credibility.” (Petition at 13.)
Even if the existence of the spare tire would have bolstered Petitioner’s credibility
as to the size of his trunk, the amount of items Rogers had with her, or the initial reason
for his drive to Idaho, it would have done nothing to shore up Petitioner’s credibility as to
what he intended when he, Rogers, and Hamby drove around to different stores to steal
pseudoephedrine so they could manufacture methamphetamine. Counsel was not deficient
in this respect, and Petitioner cannot show prejudice. Thus, this ineffective assistance
claim is not substantial.
iv.

Instruction Regarding Accomplice Testimony

Petitioner claims that trial counsel should have made the jury “aware of the fact”
that the testimony of co-conspirators is not sufficient to support a conviction. (Petition at
14.) The jury was instructed that “[a] person may not be found guilty based solely on the
testimony of accomplices. . . . There must be evidence, other than testimony of
accomplices, that tends to connect the defendant with the commission of the crime.”
(State’s Lodging A-1, p. 94) The prosecutor expressly called the jury’s attention to this
instruction; defense counsel’s repetition of the instruction in his closing argument would
not have added anything. The jury was not misled about the requirement of other
evidence.

MEMORANDUM DECISION AND ORDER 25

Further, there was plenty of evidence pointing to Petitioner’s guilt other than the
testimony of Rogers and Hamby. This evidence included eyewitness testimony and
physical evidence such as the pills and boxes found in Petitioner’s car. Petitioner’s claim
is insubstantial.
v.

Presenting a Defense

Petitioner asserts that counsel “failed or refused to develop and/or present a
cognizant defense, merely informing the jury that they had heard the testimony and it was
up to them to determine who they believed[,] [r]ather than pointing out all of the legal
considerations and violations which would have required the jury” to find Petitioner not
guilty. (Petition at 14.) It appears that Petitioner is referring to his counsel’s closing
argument to the jury:
We talk about the law. You wonder what we talk about when you guys
leave. We talk about the law a lot of times. You guys have it harder because
you’ve got to talk about the facts. And we gave you a bunch of facts here and a lot
of contradictory facts.
That is, you’ve got a couple of stories to compare, and that’s up to you to
figure that out. That’s a hard job for twelve people to figure that out. That’s what
you’ve got to do basically.
If you believe Sara, if you believe Hamby, you vote accordingly. If you
believe my client, you vote accordingly. That’s what it comes down to. It just
comes down to credibility.
And I’m not taking away from the other witnesses. You saw a lot of
witnesses. And you saw a lot of detail witnesses. And that’s what they were. It was
like tying things together. But that’s what you have to look at. You have to look at
who says what.

MEMORANDUM DECISION AND ORDER 26

And then you have to decide. And that’s basically what you have to do. I’m
not telling you anything. You already knew that.
(State’s Lodging A-5, pp. 13-14.)
It was a short summation, but not an incompetent one. Counsel was
correct—Petitioner told one story, and the other witnesses told another. Petitioner does
not identify any of the “legal considerations and violations” that, if brought to the jury’s
attention, would have resulted in an acquittal and therefore has not shown that he suffered
any prejudice from Carr’s closing argument. (Petition at 14.)
To the extent that Petitioner is challenging counsel’s decision to present the entire
defense case as one that rested on the jury’s credibility determinations, Carr “was entitled
to formulate a strategy that was reasonable at the time and to balance limited resources in
accord with effective trial tactics and strategies.” Harrington, 131 S. Ct. at 789; see also
Strickland, 466 U.S. at 690-91 (“[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.”). That
strategy is a reasonable one in the circumstances of the trial, particularly given the
impeachment that Carr was able to accomplish of both Rogers and Hamby. There was
little else trial counsel could have done or said that the jury would have accepted, given
the mountain of evidence against his client.
For the above reasons, Petitioner’s claim regarding counsel’s closing argument is

MEMORANDUM DECISION AND ORDER 27

not substantial.
vi.

Sentencing

Petitioner claims that an audio recording of the sentencing hearing would show
that the trial court found that the presence of precursor chemicals justified a harsher
sentence for Petitioner. (Petition at 17-18.) Petitioner has submitted no such recording,
and the official transcript of the sentencing hearing does not include any comment about
precursor chemicals. The judge’s reasoning for the twenty-to-thirty year sentence was as
follows:
The circumstances of this case, as both counsel know, involve the defendant
traveling to Idaho with two other parties. They came into the State of Idaho with a
specific intent. And that specific intent was to enter into drugstores and other
stores which carried ephedrine and pseudoephedrine; to steal the ephedrine and
pseudoephedrine, and other materials which they would need for the cooking of
methamphetamine from those stores.
And then to return to the State of Oregon and to cook methamphetamine
both for their own use and for resale. The parties undertook that plan traveling
down Fairview Avenue in Boise, stopping into various stores, going in with a baby
cart with a doll in it to set up to remain as to appear as though it was a child. And
then using that to steal these materials.
And then were eventually caught by the authorities with hundreds of pills in
their possession, which they had been breaking out of their containers to utilize
later in the making of methamphetamine.
In the case of Mr. Gable, this is not the first instance in which Mr. Gable
has been involved in the preparation of methamphetamine, nor the cooking of
methamphetamine. His criminal record is a lengthy one going back to 1990 when
he was convicted of criminal conspiracy with regard to a controlled substance and
manufacturing [and] delivery of a controlled substance.
Possession in 1997, possession of the controlled substance and delivery of a

MEMORANDUM DECISION AND ORDER 28

controlled substance in 2002. Those charge [sic] were dismissed. Pending charges
of manufacturing a controlled substance, two counts in Multona County, Oregon.
Possession of a controlled substance in trafficking, and a controlled substance, the
charge here today.
The defendant has, in fact, been a professional drug manufacturer and
dealer producing a substance which addicts others. He himself has apparently
become addicted to this substance. But the Court believes that it is precisely for
individuals that intentionally manufacture methamphetamine and controlled
substances, that significant sentencing options are provided to the Court for prison
sentences up to life in prison with regard to those individuals who choose to
manufacture substances which create so much pain, cost to our society, and to the
individuals who become addicted to them.
(State’s Lodging A-4, pp. 316-18.) The trial judge said nothing about any precursor
chemicals, and Petitioner’s claim of ineffective assistance is not substantial.
C.

Conclusion Regarding Procedural Default

In sum, even if post-conviction counsel had raised all of these claims of ineffective
assistance of trial counsel, it would not have resulted in a grant of post-conviction relief.
Therefore, Petitioner cannot show cause and prejudice under Martinez v. Ryan for the
failure to exhaust these claims, and the claims are procedurally defaulted.
2.

The Merits of Petitioner’s Remaining Claims
The Court will now address the remaining claims in the Petition—those that

Petitioner properly exhausted. Claim 2(C) alleges that Petitioner was denied due process
“when the prosecutor implied that Mr. Gable had to be guilty because he chose to observe
his fifth amendment right to be silent.” (Petition at 8.) Claim 3(5) alleges that trial counsel
was ineffective for failing to file a timely motion to suppress the evidence obtained in the

MEMORANDUM DECISION AND ORDER 29

search of Petitioner’s car “which, had it been properly . . . litigated, might have caused the
entire case to have been thrown out of court due to a lack of evidence due to the states
[sic] illegal search and seizure.” (Id. at 13.) Claim 5(E), although stated as a separate
claim, is really an extension of Claim 3(5); Petitioner alleges that Carr failed to
investigate the facts because had Carr known what Lythgoe would have testified to—that
she did not know whether there was a baby in the carrier—counsel “would have filed the
proper pretrial motion[]” to suppress. (Id. at 17.)
A.

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). A federal habeas court reviews the state court’s “last reasoned
decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
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

MEMORANDUM DECISION AND ORDER 30

that “the state court applie[d] 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
objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75-76 (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).
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

MEMORANDUM DECISION AND ORDER 31

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.
B.

Merits Analysis

For the reasons that follow, the Court concludes that Petitioner has failed to
establish that he is entitled to habeas relief on the merits of his exhausted claims.
i.

Ineffective Assistance of Counsel: Motion to Suppress

The last reasoned state court decision for purposes of Petitioner’s argument that
trial counsel was ineffective for not filing a timely motion to suppress is the decision of
the Idaho Court of Appeals on post-conviction review:
Sergeant de St. Germain of the Meridian Police Department, who was
conducting surveillance outside the store, testified that the pair exited the store and
Hamby “chucked the child care carrier in the back and this doll ejected out of the
carrier.” Sergeant de St. Germain and Crum conferred regarding their observation
and ultimately decided to have a marked unit stop the vehicle. The vehicle was
stopped based upon the collective observations of the officers. Crum testified that
the primary reason for the stop “was to check the welfare of a child, if there indeed
was a child in there.” Sergeant de St. Germain testified that the vehicle was
stopped based on Crum’s observations regarding shoplifting as well as the fact that
it was very “suspicious” that “somebody would be carrying a baby carrier with a
baby doll inside of it and just chuck it in the back of a car.”
(State’s Lodging D-6, p. 7.)

MEMORANDUM DECISION AND ORDER 32

The court of appeals held that the investigatory stop of Petitioner’s car was
supported by a reasonable suspicion that the occupants of the car had violated the law:
Rogers exhibited nervous and paranoid behaviors. The group traveled to four
stores in a short period of time. On each occasion they took a baby carrier into the
store, but they put the carrier in the back of the automobile without due care. They
entered and exited through different doors. Gable indexed a bulge in his pocket.
The officers later observed a baby doll, rather than a real baby, inside the baby
carrier adding to the suspicion of shoplifting. On each occasion they entered the
Sudafed aisle. Bags or carriers are sometimes used to get stolen items past
detectors by use of foil lining. The officers were free to draw reasonable inferences
from the facts in their possession, which inferences may be drawn from the
officers’ experience and law enforcement training. . . . Based upon the collective
knowledge of the officers involved in the investigation and the totality of
circumstances known to the officers at the time of the stop, the stop was based
upon “reasonable suspicion supported by articulable facts that ‘criminal activity
may be afoot.’” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)).
(Id. at 9.) The court concluded that because a motion to suppress would not have been
successful, Petitioner could show no prejudice.
The state court’s decision was eminently reasonable. Plenty of evidence supported
the officers’ suspicion that the individuals in the car had been shoplifting. That an officer
or officers might give different reasons for why they made an investigatory stop is
irrelevant for purposes of determining whether reasonable suspicion supported the stop.
“[T]he subjective motives of the officers do not invalidate an otherwise proper stop. All
that is required is that, on an objective basis, the stop ‘not be unreasonable under the
circumstances.’” United States v. Mariscal, 285 F.3d 1127, 1130 (9th Cir. 2002) (quoting
Whren v. United States, 517 U.S. 806, 810 (1996)).

MEMORANDUM DECISION AND ORDER 33

Even if trial counsel had made a timely motion to suppress, that motion would not
have been granted, and Petitioner has thus failed to show he was prejudiced by trial
counsel’s failure to file a timely motion to suppress.6 Therefore, Petitioner is not entitled
to habeas corpus relief because he has not shown that the decision of the Idaho Court of
Appeals constitutes an unreasonable application of Strickland v. Washington under
§ 2254(d)(1).
ii.

Fifth Amendment: Cross-Examination and Closing Argument

With respect to Petitioner’s Fifth Amendment claim, the last reasoned state court
decision is that of the Idaho Court of Appeals on direct appeal. (See State’s Lodging B-4.)
For purposes of its decision, the Idaho Court of Appeals accepted, without
deciding on its merits, the Petitioner’s argument that the prosecutor’s questioning and
comments in closing argument regarding Petitioner’s failure to speak to police officers
upon his arrest violated the Fifth Amendment. That court decided, however, that any
Fifth Amendment error that might have occurred was harmless beyond a reasonable
doubt.
“The erroneous admission of evidence in violation of the Fifth Amendment’s

6

Petitioner also claims that Carr was ineffective when he conceded “other suspicious
activity” to the court during argument on the untimely motion to suppress. (See State’s Lodging
A-4, p. 245.) But counsel was not deficient in focusing his argument on the baby-versus-doll
distinction while acknowledging Gable’s, Rogers’s, and Hamby’s suspicious behavior, to which
multiple witnesses testified. It has long been recognized that counsel who are willing to concede
weaker points so as to focus on the stronger points serve their clients well. Indeed, winnowing
out losing arguments is perhaps one of the most important tasks faced by an attorney.
MEMORANDUM DECISION AND ORDER 34

guarantee against self-incrimination . . . [is] subject to harmless-error analysis . . . .”
Neder v. United States, 527 U.S. 1, 18 (1999). The harmless error standard that state
courts must apply when evaluating instances of constitutional error on direct appeal was
announced in Chapman v. California, 386 U.S. 18 (1967). If a constitutional violation
occurred, the state must prove beyond a reasonable doubt that the violation “did not
contribute to the verdict obtained.” Id. at 24. On federal habeas review, however, the
court does not consider whether the state court’s Chapman analysis was unreasonable
under § 2254(d). Fry v. Pliler, 551 U.S. 112, 119-120 (2007). Rather, the federal court
must decide whether the state court’s constitutional error “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 623 (1993) (internal quotation marks omitted); Fry, 551 U.S. at 119-20.
Assuming that Petitioner’s Fifth Amendment rights were violated by the
prosecutor’s questions and closing argument, this Court concludes that any such violation
had no effect—let alone a substantial and injurious one—on the jury’s verdict. As
explained by the state court of appeals,
[T]he jury would have reached the same result absent the testimony and reference
during closing argument to Gable’s silence. Both of Gable’s companions gave
detailed testimony regarding the plan to come to Boise and steal pseudoephedrine.
Their stories were consistent and corroborated each other. They each testified that
they removed pseudoephedrine pills from their boxes and blister packs while in the
vehicle in front of Gable. Each testified that they had not entered into a plea
agreement with the state, but rather that they may receive some favorable
consideration at their sentencing hearings for testifying honestly. Additionally,
there was testimony offered by the loss prevention employee, the supervisor of the
crime prevention unit of the police department, and an officer with the police

MEMORANDUM DECISION AND ORDER 35

department describing, in detail, Gable’s suspicious actions as he drove his two cocompanions to four different stores and waited for them to remove the baby
carrier, enter the store, and return to the vehicle.
In addition to the testimony, there was also strong physical evidence against
Gable that corroborated the testimony of his companions. The officer who
searched Gable’s vehicle testified that there were empty Dimetap packages found
in a backpack in the back seat and that the pseudoephedrine pills were in a lunch
pail under the front passenger seat. There was also testimony that the lunch pail
belonged to Gable. The testimony of Gable’s companions, bolstered by the
testimony of the officers, and the tangible evidence found in Gable’s vehicle
convinces us beyond a reasonable doubt that a jury would have found Gable guilty
without these impermissible questions and remarks. Therefore, we conclude that
any error was harmless.
(State’s Lodging B-4, p. 7-8.)
Petitioner’s story was not credible and would still defy credulity even had the
prosecutor never mentioned Petitioner’s silence to police officers after his car was
stopped. Petitioner claimed he had no idea that Rogers and Hamby were opening,
counting, and sorting pills in Petitioner’s car—while Petitioner was also inside the car.
Petitioner himself was seen acting suspiciously, entering and leaving the stores through
different doors and “indexing” his front pocket after he left one of the stores. Even
without the prosecutor’s references to Petitioner’s silence after his arrest, the evidence of
Petitioner’s guilt was overwhelming. Therefore, Petitioner has failed to establish that he is
entitled to relief under § 2254(d) based on the prosecutor’s cross-examination and closing
argument.
3.

Conclusion
For the foregoing reasons, the Petition for Writ of Habeas Corpus will be denied.

MEMORANDUM DECISION AND ORDER 36

ORDER
IT IS ORDERED:
1.

Respondent’s Second Motion for Extension of Time to File Answer and
Brief in Support of Dismissal (Dkt. 18) is GRANTED.

2.

The Petition for Writ of Habeas Corpus (Dkt. 1) 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: August 13, 2013

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER 37