Horonzy v. Smith
Filing
33
MEMORANDUM DECISION AND ORDER granting Respondent's 8 MOTION for Summary Dismissal; granting 27 MOTION for Extension of Time to Lodge Transcript; considered timely 28 Notice; mooting Petitioner's 30 Objection; denying 30 -1 Petiti oner's Motion for Application of Martinez v. ryan to Excuse Procedural Default of Claims. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm) Modified on 7/17/2013 to add to text (cjm).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN E. HORONZY,
Case No. 1:11-cv-00235-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
JOHANNA SMITH,
Respondent.
On September 12, 2012, the Court conditionally granted Respondent’s Motion for
Summary Dismissal based on the procedural default of Petitioner's claims.1 (Dkt. 25)
During the course of briefing the summary dismissal issue, Petitioner contended that his
initial post-conviction counsel (Mr. Rockstahl) was ineffective, causing the default of his
claims of ineffective assistance of trial counsel (Ms. Paul). Therefore, the Court
determined that Martinez v. Ryan, 132 S.Ct. 1309 (2012), was potentially applicable to
Claim 1.
1
Petitioner argues that Respondent is wrong in characterizing his position as “conceding” that his
claims are procedurally defaulted. (Dkt. 32, pp. 1-2.) It is clear that Petitioner disagrees with the Court’s
decision that the claims are procedurally defaulted, but that is no longer at issue and can be pursued on
appeal if Petitioner obtains a certificate of appealability.
MEMORANDUM DECISION AND ORDER - 1
Respondent was ordered to obtain and lodge the following within 60 days after
entry of this Order: (1) the pretrial record of the state court, including the motions filed by
Petitioner’s counsel, the conviction, and the judgment; (2) the presentence investigation
report (under seal); and (3) the sentencing hearing transcript. Respondent was also
ordered to provide a copy of items (1) and (3) to Petitioner, and lodge item (2) as a sealed
document.
Petitioner was ordered to file a “Motion for Application of Martinez v. Ryan to
Excuse Procedural Default,” with any exhibits, no later than January 10, 2013. (Dkt. 25.)
Respondent lodged the supplemental state court records on December 10, 2012, and
provided Petitioner with a copy. (Dkt. 28.)
Petitioner filed an “Objection and Formal Notice,” “Motion for Application of
Martinez v. Ryan to Excuse Procedural Default of Claims,” and various exhibits on
January 10, 2013. (Dkt. 30, 30-1, 30-2, 30-3.) Petitioner argues that Respondent failed to
provide transcripts of the oral arguments of trial counsel and pretrial hearings.
Respondent has filed a Response to all of Petitioner’s requests and arguments (Dkt. 31),
and Petitioner has filed a Reply. (Dkt. 32.)
Having reviewed the record, the Court concludes that oral argument is not
necessary. Accordingly, the Court enters the following Order.
MEMORANDUM DECISION AND ORDER - 2
PROCEDURAL DEFAULT OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL CLAIMS
1.
Standard of Law
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). 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
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule
is that any errors of his counsel during the post-conviction action cannot serve as a basis
for cause to excuse Petitioner’s procedural default of his claims. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991).
The holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), established a “limited
qualification” to the Coleman rule. Id. at 1319. In Martinez, the court held that inadequate
assistance of counsel “at initial-review collateral review proceedings may establish cause
for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 1315.
“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.
MEMORANDUM DECISION AND ORDER - 3
The Martinez 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. at 1318.
In Trevino v. Thaler, 133 S.Ct. 1911 (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 an ineffective-assistance-of-trial-counsel claim on direct appeal,” the exception
recognized in Martinez applies, meaning that a petitioner may assert that his postconviction 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. 133 S.Ct. at 1921. 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 purported errors that arose
during the trial, as shown on the record” (as opposed to matters arising outside the
record). Matthews v. State, 839 P.2d 1215, 1220 (Idaho 1992). 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
MEMORANDUM DECISION AND ORDER - 4
record could have been brought and developed in an evidentiary hearing. See Matthews,
839 P.2d at 1120.
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.
132 S.Ct. at 1320 (citations omitted).2
2.
Discussion
While Petitioner argues that Mr. Rockstahl, as initial post-conviction counsel, was
ineffective in presenting the ineffective assistance of trial counsel claims because he
failed to adequately develop the facts and seek an evidentiary hearing (which, if true,
would be within the Martinez exception), the threshold issue in this case is whether Mr.
Rockstahl’s acts caused the default of Petitioner’s claims, or whether, thereafter,
2
The Martinez Court also reiterated that § 2254(i) 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.
MEMORANDUM DECISION AND ORDER - 5
Petitioner’s post-conviction appellate counsel’s failure to appeal dismissal of the claims
to the Idaho Supreme Court caused the default of Petitioner’s claims.
In its earlier Order, the Court determined that the state district court heard and
ruled on all of Petitioner’s post-conviction claims–including the ineffective assistance of
trial counsel claims–regardless of where or how the claims were brought. (State’s
Lodging C-3, p. 3; Dkt. 25, p. 9.)
Petitioner could have contested dismissal of the merits of his claims on appeal.
However, Petitioner’s post-conviction appellate counsel, Diane Walker, of the State
Appellate Public Defender’s Office, chose to raise only the broad claim of whether the
district court erred in not giving Petitioner adequate notice of its intent to dismiss the new
claims.3 The United States Supreme Court specifically exempted ineffective assistance of
post-conviction appellate counsel from the scope of Martinez. See 132 S.Ct. at 1320.
Because the Court concludes that the default of Petitioner’s claims on federal
habeas review was caused by the failure of post-conviction appellate counsel to include
3
This is not to suggest that Ms. Walker was negligent or ineffective in failing to include those
issues. The case against Mr. Horonzy was very strong, including his confession to killing the victim. Ms.
Walker’s performance is not an issue that is before the Court.
“Effective legal assistance” does not mean that appellate counsel must appeal every question of
law or every nonfrivolous issue requested by a criminal defendant. Jones v. Barnes, 463 U.S. 745, 751-54
(1983). “[N]othing in the Constitution” requires “judges to second-guess reasonable professional
judgments and impose on appointed counsel a duty to raise every ‘colorable claim’ suggested by a client.”
Id., 463 U.S. at 754. “Experienced advocates since time beyond memory have emphasized the importance
of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on
a few key issues.” Id. at 751-52.
MEMORANDUM DECISION AND ORDER - 6
them in the post-conviction appellate case, Martinez is inapplicable to excuse the default
of Petitioner’s ineffective assistance of trial counsel claims. The Court is not persuaded
by Petitioner’s arguments that the default was caused by Mr. Rockstahl's filing of a
deficient notice of appeal4 or failure to inform appellate counsel of the issues that should
have been raised on appeal. These arguments attempt to blur the line between initial postconviction counsel’s duties and post-conviction appellate counsel’s duties. Martinez
specifically draws the line between the initial post-conviction action and the appeal,
which means that this Court must do so here. As Martinez emphasized:
The holding in this case does not concern attorney errors in other
kinds of proceedings, including appeals from initial-review collateral
proceedings. . . . 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. . . .
Id. 132 S.Ct. at 1320.
Other courts addressing similar Martinez issues have likewise held. See Arnold v.
Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (“Arnold’s multiple ineffective assistance
claims were litigated in his initial-review collateral proceeding, but not preserved on
appeal. Thus, unlike Martinez, Arnold has already had his day in court; deprivation of a
second day does not constitute cause.”); Bray v. Belleque, 2012 WL 1409328 (D. Or.
4
The record reflects that post-conviction appellate counsel filed an amended notice of appeal,
identifying the issues for appeal as: “Did the district court err in dismissing the appellant’s Petition for
Post Conviction Relief?” In addition, the Notice stated: that “any such list of issues on appeal [provided
in the amended notice] shall not prevent the appellant from asserting other issues on appeal.” (State’s
Lodging B-1, p. 210.) Therefore, appellate counsel’s amended notice was broad enough to encompass
dismissal of the merits of Petitioner’s claims.
MEMORANDUM DECISION AND ORDER - 7
2012) (same); Cook v. Ryan, 2012 WL 2798789 (D. Ariz. 2012) (same); cf. Cook v. Ryan,
2012 WL 2798789 (D. Ariz. 2012) (same).
In addition, these cases are aligned with the purpose of Martinez, which singularly
was concerned that, if ineffective assistance of trial counsel claims were not brought in
the collateral proceeding which provided the first occasion to raise a claim of ineffective
assistance at trial, the effect was that the claims could not be brought at all:
As Coleman recognized, [there is] a key difference between
initial-review collateral proceedings and other kinds of collateral
proceedings. When an attorney errs in initial-review collateral proceedings,
it is likely that no state court at any level will hear the prisoner’s claim. This
Court on direct review of the state proceeding could not consider or
adjudicate the claim. And if counsel’s errors in an initial-review collateral
proceeding do not establish cause to excuse the procedural default in a
federal habeas proceeding, no court will review the prisoner's claims.
The same is not true when counsel errs in other kinds of postconviction
proceedings. While counsel’s errors in these proceedings preclude any
further review of the prisoner’s claim, the claim will have been addressed
by one court, whether it be the trial court, the appellate court on direct
review, or the trial court in an initial-review collateral proceeding.
132 S.Ct. at 1316 (citations omitted).
In contrast, in Petitioner’s case, the claims were brought in the initial-review
collateral proceeding, giving one court the opportunity to hear them. Thus, the aim of
Martinez was satisfied in Petitioner’s case. It was Petitioner’s failure to bring the claims
before a second court, which is not a concern of Martinez, that caused the default of his
claims for federal habeas corpus purposes.
MEMORANDUM DECISION AND ORDER - 8
Further, because the record demonstrates that Petitioner had the opportunity to,
and did, bring his claims before the state district court, equity is satisfied without resort to
the cause and prejudice exception:
The rules for when a prisoner may establish cause to excuse a
procedural default are elaborated in the exercise of the Court's discretion.
These rules reflect an equitable judgment that only where a prisoner is
impeded or obstructed in complying with the State’s established procedures
will a federal habeas court excuse the prisoner from the usual sanction of
default. Allowing a federal habeas court to hear a claim of ineffective
assistance of trial counsel when an attorney’s errors (or the absence of an
attorney) caused a procedural default in an initial-review collateral
proceeding acknowledges, 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.
132 S.Ct. at 1318 (citations omitted) (emphasis added).
In this instance, had post-conviction appellate counsel appealed the merits of the
claims (no matter how deficiently they were raised by initial post-conviction counsel), the
state appellate court could have had the opportunity to conclude that the claims were
rightly dismissed on the merits, and the claims would not have been procedurally
defaulted for federal habeas purposes. Petitioner’s failure to present them on appeal
deprived the state appellate courts of an opportunity to hear the merits of the claims,
which is the concept at the heart of procedural default, as described in O’Sullivan v.
Boerckel:
MEMORANDUM DECISION AND ORDER - 9
Section 2254(c) requires only that state prisoners give state courts a
fair opportunity to act on their claims. State courts, like federal courts, are
obliged to enforce federal law. Comity thus dictates that when a prisoner
alleges that his continued confinement for a state court conviction violates
federal law, the state courts should have the first opportunity to review this
claim and provide any necessary relief. This rule of comity reduces friction
between the state and federal court systems by avoiding the
“unseem[liness]” of a federal district court's overturning a state court
conviction without the state courts having had an opportunity to correct the
constitutional violation in the first instance.
Because the exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts, we conclude that state prisoners
must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established appellate
review process.
526 U.S. 838, 844-45 (1999) (citations omitted).
In Petitioner’s case, the state has in place several safeguards for ensuring that
substantial ineffective assistance of trial counsel claims can be adjudicated, but Petitioner
did not use them. For example, Petitioner could have appealed dismissal of the merits of
his claims to the Idaho Supreme Court. Or, Idaho state procedural law permits a
successive post-conviction petition to be filed, where ineffective assistance of initial postconviction counsel may be asserted as grounds for hearing the second petition.5 Thus, an
5
Idaho Code § 19-4908, provides:
All grounds for relief available to an applicant under this act must be raised in his
original, supplemental or amended application. Any ground finally adjudicated or not so
raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted
in the conviction or sentence or in any other proceeding the applicant has taken to secure
relief may not be the basis for a subsequent application, unless the court finds a ground
for relief asserted which for sufficient reason was not asserted or was inadequately raised
MEMORANDUM DECISION AND ORDER - 10
Idaho petitioner forgoes two different avenues for post-conviction relief by failing to file
an appeal and failing to file a successive post-conviction petition. Both failures ultimately
result in depriving the Idaho Supreme Court of an opportunity to hear the original claims.
To permit a petitioner to use Martinez to bypass the state court system by not filing an
appeal and not filing a successive post-conviction action does not serve the comity
interests behind the procedural default rule as explained in O’Sullivan v. Boerckel and
does not fit the purposes of the Martinez v. Ryan exception, as explained above.6
in the original, supplemental, or amended application.
See Nguyen v. State, 126 Idaho 494, 887 P.2d 39 (Idaho Ct. App.1994) (“This Court has
consistently held that . . . alleged ineffectiveness of counsel in a post-conviction proceeding may
constitute “sufficient reason” for allowing the filing of a second application under I.C. § 19-4908. . . .”)
6
Similarly, the Court has already rejected Petitioner’s argument that, because Idaho case law
precludes represented convicted felons from submitting supplemental pro se briefing when they are
represented by counsel, his procedural default should be excused. (Dkt. 32, p. 2; Dkt. 25, p. 15.) If a
convicted felon does not agree with his counsel’s decisions during the course of direct appeal or a postconviction matter, he can file a motion to have counsel withdrawn and proceed pro se. There is no law
supporting a position that the Constitution or equity require that a convicted felon should be able to have
it both ways: be represented and also represent himself pro se. In any event, the state district court did, in
fact, consider Petitioner's pro se addendum alongside his counsel's submissions, and, thus, the argument
has no application to the facts at hand. (State's Lodgings B-1, pp. 169-87 and C-3, p. 3; Dkt. 25, p. 9.)
Petitioner further argues that he did not know a successive post-conviction petition could be filed
because of deficiencies in the prison law library. (Dkt. 32, pp. 5-6.) However, he does not provide any
facts showing that he actually tried to discover additional avenues of relief but was unable to find them in
the prison legal resource center. Ignorance of the legal process, alone, does not constitute cause for
procedural default. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986).
MEMORANDUM DECISION AND ORDER - 11
3.
Conclusion
The Court agrees with Respondent that Martinez v. Ryan cannot be applied to cure
the default of Petitioner’s claims because he did not appeal dismissal of the merits of the
claims. As a result, Petitioner’s requests for additional records, transcripts, and files from
his trial and initial post-conviction counsel are moot. (Dkt. 30.) The Petition for Writ of
Habeas Corpus will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.
Respondent’s Motion for Summary Dismissal (Dkt. 8) is GRANTED.
2.
Respondent’s Motion for Extension of Time to Lodge Transcript (Dkt. 27)
is GRANTED. The transcript is considered timely. (Dkt. 28.)
3.
Petitioner's Objection (Dkt. 30) is MOOT.
4.
Petitioner's “Motion for Application of Martinez v. Ryan to Excuse
Procedural Default of Claims” (Dkt. 30-1) is DENIED.
5.
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
MEMORANDUM DECISION AND ORDER - 12
Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
DATED: July 16, 2013
Honorable Edward J. Lodge
U. S. District Judge
MEMORANDUM DECISION AND ORDER - 13
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