Santistevan v. Smith

Filing 27

MEMORANDUM DECISION AND ORDER granting in part and denying in part 16 Motion to Dismiss. No later than 45 days from the date of this Order, Petitioner may file a Motion to Proceed With Procedurally Defaulted Claims, together with a supporting br ief, addressing whether the Martinez cause and prejudice issue noted above is applicable to excuse the default of his defaulted claims of ineffective assistance of counsel. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID L. SANTISTEVAN,
Case No. 1:11-cv-00319-LMB
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.

JOHANNA SMITH, Warden,
Respondent.

Pending before the Court in this habeas corpus matter is Respondent’s Motion for
Partial Summary Dismissal. (Dkt. 16.) The parties have consented to a United States
Magistrate Judge conducting all proceedings, in accordance with 28 U.S.C. § 636(c).
(Dkt. 14.) The Court finds that the parties have adequately stated the facts and legal
arguments in their briefs and that the decisional process would not be significantly aided
by oral argument. In the interests of avoiding further delay, the Court will decide this
matter on the written motion, briefs, and record without oral argument. D. Idaho L. Civ.
R. 7.1.
For the reasons set forth below, Respondent’s Motion will be granted in part and
denied in part. The Court finds that certain claims of ineffective assistance of counsel are
procedurally defaulted, but before those claims are dismissed, Petitioner will have an
opportunity to submit additional briefing to show cause and prejudice under Martinez v.
MEMORANDUM DECISION AND ORDER - 1

Ryan, 132 S.Ct. 1309 (2012).
BACKGROUND
On April 13, 2004, the State charged Petitioner with two counts of attempted
second degree murder, with a sentencing enhancement for the use of a firearm, based on
an incident in which Petitioner shot two individuals in an alley behind a bar in Bellevue,
Idaho. (State’s Lodging A-1, pp. 65-66; A-2, pp. 217-28.) The case proceeded to a jury
trial, and Petitioner was found guilty as charged. (State’s Lodging A-2, pp. 285-87.) The
trial court sentenced Petitioner to an aggregate prison term of 25 years, with the first 11
years fixed, and his motion to reduce his sentences under Idaho Criminal Rule 35 was
denied. (State’s Lodging A-2, pp. 300-05; State’s Lodging C-1, p. 34.)
On direct appeal, Petitioner raised two issues: (1) whether his right to selfincrimination under the Fifth Amendment had been violated by a court-ordered
psychological examination with the State’s mental health expert before trial; and (2)
whether his right to claim a psychotherapist/patient privilege had been violated. (Dkt. 5-2,
p. 4.) The Idaho Court of Appeals concluded that these issues lacked merit, and it
affirmed. (Dkt. 5-1, pp. 4-8.) Petitioner did not file a petition for review in the Idaho
Supreme Court within the 21-day deadline, and his attempt to file a petition nearly two
years late was denied. (State’s Lodgings B-2 - B-8.) In a separate appeal, the Idaho Court
of Appeals affirmed the denial of Petitioner’s Rule 35 motion to reduce his sentences.
(State’s Lodging D-5.)

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Petitioner next submitted an application for post-conviction relief in state district
court. (State’s Lodging E-1, pp. 6-9.) The court appointed counsel, who filed an amended
petition on Petitioner’s behalf raising numerous claims, including claims of ineffective
assistance of trial and appellate counsel. (State’s Lodging E-1, pp. 21-24, 164-73.) The
court eventually granted the State’s motion to dismiss, and the petition was dismissed
without an evidentiary hearing. (State’s Lodging E-2, pp. 372-405.)
Petitioner represented himself on appeal from the district court’s post-conviction
order. Among other issues, he argued that the district court had erred in summarily
dismissing his ineffective assistance of counsel claims, but the Idaho Court of Appeals
concluded that “as to most of his claims[,] he points this Court to no evidence in
particular that would have created a genuine issue of material fact precluding summary
dismissal.” (Dkt. 6, p. 3.) Because of this deficiency, the Court of Appeals did not reach
the merits of “any of [Petitioner’s] claims for which he has presented no more specific
argument,” finding those issues to be waived. (Id.) Instead, the Court of Appeals
addressed only whether Petitioner’s counsel was ineffective in (1) conceding the weapons
enhancement charge during the criminal trial, (2) failing to file a petition for review
during the direct appeal, and (3) failing to introduce a medical report and testimony at the
trial. (Dkt. 6, pp. 5-7.) Finding no merit to these or any other issues, the Idaho Court of
Appeals affirmed the district court. (Id. at 9.) Petitioner filed a petition for review in the
Idaho Supreme Court, which was denied. (State’s Lodgings F-3, F-4.)

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With the assistance of retained counsel James K. Ball, Petitioner submitted a
Petition for Writ of Habeas Corpus in this Court on July 14, 2011, which he amended on
August 24, 2011. (Dkts. 1, 4-1, 25.) In his Amended Petition, Petitioner alleges that he
was deprived of the effective assistance of counsel on numerous grounds (Claim A), that
his Fifth Amendment rights were violated by the trial court’s order that he submit to a
psychological evaluation with the State’s expert and that his own mental health expert
prepare a report (Claim B), and that he was not afforded due process of law in the postconviction matter because the trial court prohibited him from testifying (Claim C).1 (Dkt.
25, pp. 8-15.)
Respondent has filed a Motion for Partial Summary Dismissal, in which she
contends that Petitioner did not satisfy the exhaustion requirement as to all claims in the
Amended Petition – except Subclaim A-1 and Claim B – and that those claims must now
be dismissed as procedurally defaulted. (Dkt. 16.) Respondent also seeks dismissal of
Subclaim A-8 and Claim C on the alternative ground that those claims are not cognizable
in this federal habeas proceeding because they assert errors in the state post-conviction
process. (Id.)
Petitioner has filed his Response (Dkt. 26), and the case is now ripe for review.

1

To avoid confusion, the Court will use the same labels for the claims that the parties have used.

MEMORANDUM DECISION AND ORDER - 4

STANDARD OF LAW
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to dismiss a
petition for writ of habeas corpus summarily when “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the
district court.” When a court is considering a motion to dismiss, it may take judicial
notice of facts outside the pleadings. Mack v. South Bay Beer Distributors, 798 F.2d
1279, 1281 (9th Cir. 1986).2 A court may look beyond the complaint to matters of public
record, and doing so does not convert a motion for summary dismissal into a motion for
summary judgment. Id. The Court shall take judicial notice of those portions of the state
court record lodged by Respondent.
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. Baldwin v. Reese, 541 U.S. 27 (2004). 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. O’Sullivan v. Boerckel, 526 U.S. at 845.

2

abrogated on other grounds by Astoria Federal Sav. and Loan Ass'n v. Solimino, 501 U.S. 104,
111 S.Ct. 2166 (1991).
MEMORANDUM DECISION AND ORDER - 5

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 (1996). A habeas claim is also procedurally
defaulted when the petitioner actually raised the claim in state court, but the state court
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). A federal court cannot reach the merits of a procedurally defaulted
claim unless the petitioner can establish cause for his default and actual prejudice, or he
can show a miscarriage of justice in his case, which means that he is probably innocent.
Coleman, 501 U.S. at 750.
DISCUSSION
Initially, the Court agrees with Respondent that Petitioner’s allegations of error in
the state post-conviction process are not cognizable on federal habeas review. In
Subclaim A-8, Petitioner asserts that his appointed counsel did “not allow him to testify at
the hearing on his post-conviction matter, despite his request that he do so.” (Dkt. 25, p.
14.) In Claim C, Petitioner contends that the trial court prohibited him from testifying at
the post-conviction hearing. (Id. at 15.)
Petitioner’s application for post-conviction relief was dismissed summarily,
meaning that there was no evidentiary hearing at which testimony was taken. Whether

MEMORANDUM DECISION AND ORDER - 6

any error occurred because Petitioner was not given an opportunity to speak at the hearing
on the State’s motion to dismiss is a question that arises solely under state law, and
federal habeas relief does not lie for errors of state law. See, e.g., Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). In particular, “a petition alleging errors in the state post-conviction
review process is not addressable through habeas corpus proceedings.” Franzen v.
Brinkman, 877 F.2d 26 (9th Cir. 1989).
In addition, there is no constitutional right to the effective assistance of counsel in
a post-conviction proceeding that would give rise to a claim for relief on that basis. 28
U.S.C. § 2254(i); Coleman v. Thompson, 501 U.S. 722, 752-57 (1991). Although the
United States Supreme Court has recently held that inadequate assistance of counsel in a
state post-conviction action can be a reason to excuse the procedural default of
ineffective assistance of trial counsel claims, the Court did not change its longstanding
course and hold that there is a constitutional right to counsel in such a proceeding.
Martinez v. Ryan,132 S.Ct. 1309, 1315 (2012). As a result, a meritorious argument under
that theory will, at most, allow the federal court to review otherwise procedurally barred
claims rather than offer a habeas petitioner an independent basis for relief. The Court will
address Martinez at the end of this Memorandum Decision.
For these reasons, Subclaim A-8 and Claim C will be dismissed as not stating
claims on which relief may be granted in this habeas matter.
Respondent seeks dismissal of the remainder of the ineffective assistance of

MEMORANDUM DECISION AND ORDER - 7

counsel claims set out in Claim A in the Amended Petition as procedurally defaulted,
except Subclaim A-1 (based on counsel’s alleged “concession” of the weapons
enhancement charge). (Dkt. 16-1, p. 6.) Respondent argues that Petitioner did not fairly
present these claims to the Idaho Court of Appeals when he had an opportunity to do so
during the post-conviction appeal. (Id.) According to Respondent, while Petitioner
provided a conclusory list of several ineffective assistance of counsel issues in the
Statement of Facts section of his opening brief on appeal, the only claim that he presented
squarely to the Idaho Court of Appeals was an issue that corresponds to Subclaim A-1.
After reviewing the state court record, this Court agrees with Respondent insofar
as Petitioner’s passing reference in his Statement of Facts to his counsel’s supposed
deficiencies is not the type of “serious and meaningful” presentation of federal
constitutional claims that gives the state appellate courts a full and fair opportunity to
correct federal constitutional errors. Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
Nor were the Idaho appellate courts required to comb through the trial court record to
discern which constitutional claims Petitioner wished to appeal. See, e.g., Baldwin v.
Rees, 541 U.S. 27, 31 (2004). Importantly, the Idaho Court of Appeals concluded that it
would not consider the merits of any ineffective assistance of counsel claims for which
Petitioner had offered no argument or authority in his brief, finding those claims to be
waived under State v. Zichko, 923 P.2d 966, 970 (1996). (Dkt. 6, p. 3.) A “Zichko waiver”
is an independent and adequate state procedural bar. Zichko v. Idaho, 247 F.3d 1015,

MEMORANDUM DECISION AND ORDER - 8

1021 (9th Cir. 2001).
This Court parts company with Respondent, however, as to the exhaustion status
of two additional issues that the Idaho Court of Appeals concluded had been supported by
argument and authority; that is, to the extent that Petitioner claims that his counsel was
ineffective in not presenting a medical report and testimony at trial (here, Subclaim A-2)
and in not filing a petition for review in the Idaho Supreme Court during the direct appeal
(Subclaim A-5). The Idaho Court of Appeals did not apply a waiver bar to dispose of
these two issues, see Dkt. 6, pp. 5-6, and if a state court overlooks a procedural deficiency
to rule on a constitutional claim directly, the exhaustion requirement has been satisfied.
Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011).
Accordingly, the Court concludes that Subclaims A-3, A-4, A-6, A-7, and A-9 are
procedurally defaulted. These claims will be dismissed unless Petitioner can show cause
and prejudice to excuse the default. To show cause, a habeas petitioner must ordinarily
demonstrate that some objective factor external to the defense impeded his or his
counsel’s efforts to comply with the state procedural rule at issue. Murray v. Carrier, 477
U.S. 478, 488 (1986). To show prejudice, the petitioner bears the burden of demonstrating
that the errors “worked to his actual and substantial disadvantage, infecting his entire
[proceeding] with errors of constitutional dimension.” United States v. Frady, 456 U.S.
152, 170 (1982).

MEMORANDUM DECISION AND ORDER - 9

In an attempt to show cause, Petitioner contends that his appellate counsel’s failure
raise issues of a juror’s bias, insufficiency of the evidence, and erroneous jury instructions
on direct appeal, and his failure to file a petition for review in the Idaho Supreme Court,
resulted in the forfeiture of those underlying trial claims in the state courts. (Dkt. 26, pp.
8-9.) The relevancy of this argument is not entirely clear to this Court. Aside from the
Fifth Amendment claim (Claim B), which Respondent is not seeking to dismiss, the Court
is unaware of any other substantive claims of trial error that Petitioner has raised in his
Amended Petition. He has instead raised ineffective assistance of counsel claims, which
in Idaho must generally be asserted in a post-conviction petition in the district court rather
than on direct appeal. The default of those claims occurred not because of counsel’s
errors on appeal, but because Petitioner failed to present the claims properly during the
post-conviction appeal. Moreover, a claim that counsel was constitutionally deficient in
forfeiting claims in the state courts cannot save the default of the underlying issues unless
the ineffective assistance claim has, itself, been properly exhausted in the state courts.
Edwards v. Carpenter, 529 U.S. 446, 453-54 (2000). This particular ineffective assistance
of appellate counsel claim is itself procedurally defaulted because it has never been fairly
presented to the Idaho Supreme Court.
Petitioner also asserts that he is actually innocent of attempted second degree
murder under the theory that he acted in self-defense. (Dkt. 26, pp. 13-14.) A compelling
showing of actual innocence can satisfy the fundamental miscarriage of justice exception

MEMORANDUM DECISION AND ORDER - 10

to procedural default, allowing a court to review otherwise defaulted claims on their
merits. Schlup v. Delo, 513 U.S. 298, 315, 324 (1995). To establish such a claim, a
petitioner must come forward with “new reliable evidence – whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that
was not presented at trial.” Schlup, 513 U.S. at 324. The petitioner bears the burden of
demonstrating that “in light of all the evidence, including evidence not introduced at trial,
it is more likely than not that no reasonable juror would have found [him] guilty beyond a
reasonable doubt.” Id. at 327; see also House v. Bell, 547 U.S. 518, 539 (2006). The
standard is demanding and permits review only in the “‘extraordinary’” case. Schlup, 513
U.S. at 327 (citation omitted).
Petitioner points to what he perceives to be the weaknesses in the evidence that
was offered at the criminal trial and to his counsel’s failure to offer medical evidence to
show that he had been beaten at the bar near where the confrontation occurred some two
months before the shooting in this case. (Dkt. 26, pp. 16-17.) The Court is not persuaded
by this argument. A habeas proceeding is not a proper forum in which to re-litigate the
case that has already been tried. “When confronted with a challenge based on trial
evidence, courts presume the jury resolved evidentiary disputes reasonably so long as
sufficient evidence supports the verdict.” House v. Bell, 547 U.S. at 539. A persuasive
claim of actual innocence must be based on new evidence that was not presented to the
jury that is so compelling that the reviewing court must conclude that it is now probable

MEMORANDUM DECISION AND ORDER - 11

that no rational juror would vote to convict the defendant. See id. at 538-39. Petitioner
does not have that type of evidence, and his reliance on a medical report that was created
after an unrelated bar fight that occurred long before the shooting in this case, considered
in light of the record as a whole, does not establish that it is more probable than not that
any rational juror would now find that he acted in self-defense.
Finally, Petitioner contends that he was not given adequate assistance of counsel in
the post-conviction proceeding, which the Supreme Court has held can be a valid cause to
excuse a default of ineffective assistance of trial counsel claims under limited
circumstances. Martinez v. Ryan, 132 S.Ct. 1309 (2012). It is possible that this new rule
could have some bearing on the procedural default issues here, but Martinez was decided
after the parties had submitted their briefing. The Court would benefit from the parties’
positions on the matter, and before it dismisses claims of ineffective assistance of counsel
as being procedurally defaulted, it will give Petitioner leave to show cause and prejudice
under Martinez, in accordance with the following scheduling order.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 16) is
conditionally GRANTED in part and DENIED in part.

2.

Claims A-8 and C are DISMISSED as failing to state claims on which relief
may be granted.

MEMORANDUM DECISION AND ORDER - 12

3.

Claims A-3, A-4, A-6, A-7, and A-9 are procedurally defaulted. The Court
will not dismiss these claims until the parties have filed supplemental
briefing.

4.

Claims A-1, A-2, A-5, and B will not be dismissed.

5.

No later than 45 days from the date of this Order, Petitioner may file a
“Motion to Proceed With Procedurally Defaulted Claims,” together with a
supporting brief, addressing whether the Martinez cause and prejudice issue
noted above is applicable to excuse the default of his defaulted claims of
ineffective assistance of counsel. No later than 30 days after receiving a
motion, Respondent shall file a response. Petitioner’s reply, if any, shall be
filed within 14 days of receiving a response.
DATED: September 6, 2012.

Honorable Larry M. Boyle
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 13