Santistevan v. Smith

Filing 45

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Second Motion to Extend Time to File Traverse 38 is GRANTED. Petitioner's Amended Second Motion to Extend Time to File Traverse 41 is GRANTED. Petitioner's Traverse (Dkt. 4 2) is deemed timely. The Amended Petition for Writ of Habeas Corpus 25 is DENIED, and this entire action is DISMISSED with prejudice. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

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

v.
JOHANNA SMITH, Warden,
Respondent.

Pending before the Court is Petitioner David L. Santistevan’s Amended Petition
for Writ of Habeas Corpus (Dkt. 25). Respondent has filed an Answer and Brief in
Support of Dismissal (Dkt. 32). Petitioner has filed a reply brief entitled
Traverse/Response to Motion for Dismissal of Amended Petition (“Traverse”) (Dkt. 42).
The Court takes judicial notice of the records from Petitioner’s state court proceedings
lodged by Respondent on January 25, 2012 (Dkt. 17).
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). (Dkt. 14.)
Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and

MEMORANDUM DECISION AND ORDER - 1

record and that the decisional process would not be significantly aided by oral argument.
Therefore, the Court shall decide this matter on the written motions, briefs and record
without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
following Order denying the Amended Petition and dismissing this case.
PRELIMINARY MOTIONS
The Court will grant Petitioner’s Second Motion to Extend Time to File Traverse,
as well as Petitioner’s Amended Second Motion to Extend Time to File Traverse.
Petitioner’s Traverse (Dkt. 42) is deemed timely.
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 people in an alley behind a bar in Bellevue,
Idaho. (State’s Lodging A-1 at 65-66; A-2 at 217-28.) The case proceeded to a jury trial,
and Petitioner was found guilty as charged. (State’s Lodging A-2 at 285-87.) The trial
court sentenced Petitioner to a prison term of 11 years fixed on each of the attempted
murder counts, to be served consecutively, and an indeterminate term of 13 years for a
firearm enhancement, also to be served consecutively. (State’s Lodging A-2 at 300-05;
State’s Lodging C-1 at 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

MEMORANDUM DECISION AND ORDER - 2

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
at 4.) The Idaho Court of Appeals concluded that these issues lacked merit, and it
affirmed. (Dkt. 5-1 at 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 later was denied. (State’s Lodgings B-2 through 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.)
Petitioner next submitted an application for post-conviction relief in state district
court. (State’s Lodging E-1 at 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 at 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 at 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 at 3.) Because of this deficiency, the Court of Appeals did not reach

MEMORANDUM DECISION AND ORDER - 3

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 with
the Idaho Supreme Court during the direct appeal and the Rule 35 proceedings, and (3)
failing to introduce a medical report and medical testimony at the trial. (Dkt. 6 at 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.)
With the assistance of retained counsel, 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 he was denied his
Fifth Amendment right against compelled self-incrimination on grounds related to his
examination by two psychiatrists (Claim B); and that he was not afforded due process of
law in the post-conviction matter because the trial court prohibited him from testifying
(Claim C). (Dkt. 25 at 8-15.)
Respondent then filed a Motion for Partial Summary Dismissal (Dkt. 16),
contending that all of the claims in the Amended Petition were procedurally defaulted
except Subclaim A-1 and Claim B. (Dkt. 16.) The Court granted the motion in part and

MEMORANDUM DECISION AND ORDER - 4

denied it in part, dismissing Claim A-8 and Claim C but allowing the parties to address
the applicability of Martinez v. Ryan, 131 S. Ct. 1309 (2012), to the remaining claims
subject to the motion to dismiss. (Dkt. 27.) The Court concluded that Claims A-2 and
Claim A-5 were not procedurally defaulted. (Id.)
After Petitioner notified the Court that he would not be making a Martinez
argument (Dkt. 28), the Court dismissed Claims A-3, A-4, A-6, A-7, and A-9. (Dkt. 30.)
Therefore, the only claims remaining to be addressed are Claims A-1, A-2, A-5, and B.
Claim A-1 alleges that Petitioner was denied his Sixth Amendment right to
effective assistance of counsel when trial counsel conceded that Petitioner used a firearm
during the attempted murder offenses, which allegedly denied him the right to a fair trial
on the sentencing enhancement charge. (Dkt. 25 at 8.) Claim A-2 alleges that trial counsel
was also ineffective for failing to submit a medical report and call a witness regarding
Petitioner’s injuries from a previous beating—not committed by Petitioner’s two
victims—to support his claim of self-defense. (Id. at 9.) Claim A-5 alleges ineffective
assistance based on trial counsel’s failure to inform Petitioner “about the process for
seeking review from the Idaho Supreme Court,” as well as his failure “to preserve a due
process error alleged to have been made at sentencing.” (Id. at 12.) Claim B alleges that
Petitioner was denied his Fifth Amendment right not to be a witness against himself
when—after Petitioner notified the government that he would be calling a psychiatrist as
an expert witness to testify as to Petitioner’s mental state on the night of the

MEMORANDUM DECISION AND ORDER - 5

shooting—the trial court ordered Petitioner to disclose the contents of Petitioner’s
psychiatrist’s expert report to the government and to submit to a psychological
examination by the government’s expert. Petitioner also claims his Fifth Amendment
rights were violated when the prosecutor cross-examined Petitioner about statements that
he made to his own psychiatrist and expert witness. (Id. at 14.)
DISCUSSION
1.

Standard of Law
Federal habeas corpus relief may be granted on claims adjudicated on the merits in

a state court judgment when the federal court determines that the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). A federal habeas court reviews the state court’s “last reasoned decision” in
determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797,
804 (1991).
Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), federal habeas relief is generally limited to instances where the
state court’s adjudication of the petitioner’s 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.

MEMORANDUM DECISION AND ORDER - 6

28 U.S.C. § 2254(d).
When a party contests the state court’s legal conclusions, including the application
of the law to the facts, § 2254(d)(1) governs. Section 2254(d)(1) has two clauses, each
with independent meaning. That section consists of two alternative tests: the “contrary to”
test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court, although identifying “the
correct governing legal rule” from Supreme Court precedent, nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams v. Taylor, 529
U.S. 362, 407 (2000). A federal court cannot grant habeas relief simply because it
concludes in its independent judgment that the decision is incorrect or wrong; rather, the
state court’s application of federal law must be objectively unreasonable to warrant relief.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. The standard of
§ 2254(d) is onerous and is satisfied only if “there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [Supreme Court] precedents.”

MEMORANDUM DECISION AND ORDER - 7

Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
Though the source of clearly established federal law must come from the holdings
of the United States Supreme Court, circuit precedent may be persuasive authority for
determining whether a state court decision is an unreasonable application of Supreme
Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). Circuit
law may not be used “to refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013).
When a petitioner contests the reasonableness of the state court’s factual
determinations, a federal court must undertake a § 2254(d)(2) analysis. To be eligible for
relief under § 2254(d)(2), the petitioner must show that the state court decision was
“based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Because it does not appear that Petitioner is challenging any
particular factual findings of the state courts, the Court treats the Amended Petition as a
challenge to the state courts’ legal analysis pursuant to § 2254(d)(1).
Importantly, a “state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).
2.

Specific Factual Basis for Petitioner’s Claims
In January 2004, before the incident for which Petitioner was charged, Petitioner

MEMORANDUM DECISION AND ORDER - 8

was allegedly attacked and beaten at the Silver Dollar Bar in Bellevue, Idaho by both
known and unknown assailants. He reported the attack to Sergeant Will Fruehling of the
Blaine County Sheriff’s Department, who told Petitioner that it would be difficult to
pursue the case because “there were no marks on [Petitioner].” (Dkt. 7-3 at 21.) Petitioner
then told Sergeant Fruehling that “it was more of a psychological beating” and that he did
not “bruise easily.” (Id.) After Petitioner learned that no charges would be pursued,
Petitioner asked Sergeant Fruehling, “So if you’re not going to do anything, what will
happen if I go down there and shoot them?” (Id.) Frueling responded that it would not be
good idea. (Id.) Although it is unclear how severe Plaintiff’s physical injuries were as a
result of the January attack, Petitioner visited Dr. Kathy Haisley four days afterwards, and
her medical report states that Petitioner had multiple abrasions on his forearms and left
knee, and that his knee was swollen and bruised. (Dkt. 7-12 at 1.)
The events giving rise to the attempted murder charges against Petitioner occurred
two months later, in March 2004. The altercation between Petitioner and his two teenage
victims began when the two boys were riding a four-wheeler toward Petitioner’s car,
which he was driving down a narrow road. The boys pulled over to let Petitioner pass.
(Dkt. 7-6 at 8.) Petitioner was angry at the boys for being in his way and began yelling at
them and threatening to call the police. (Id. at 19.) Later that same night, the boys saw
Petitioner in an alley behind the Silver Dollar Bar—the same bar where Petitioner was
beaten two months earlier. (Id. at 9.)

MEMORANDUM DECISION AND ORDER - 9

Petitioner stated that he was in the alley because he wanted to gather some
information about his previous attackers. (Id. at 16.) When the boys arrived, Petitioner
was writing down license plates of cars that were in the alley. One of the boys, Marshall
Hooten, walked over to Petitioner to talk to him about what happened in the road earlier.
(Id. at 8-9.) Hooten asked Petitioner what his problem was. (Id. at 4.) Petitioner, allegedly
feeling threatened, reached into his car to retrieve his loaded pistol and—after firing a
shot into the ground at Hooten’s feet—shot Hooten in the gut.1 (Id. at 5, 9-10, 17.)
Petitioner then shot the other boy, Tyrel Peak, in the buttock as Peak was trying to ride
away on the four-wheeler. (Dkt. 7-3 at 8.) Both of the boys were seriously injured but
survived.
After the shooting, Petitioner drove home without checking to see if either boy was
alive, called a girlfriend over to have sex, took a shower, and made tea. (Dkt. 7-7 at 21.)
Petitioner confirmed that this was “a pretty normal evening between” him and the woman,
April Kildare. (Id.) The police later found pieces of a dismantled gun near a bike path
south of Petitioner’s house. The gun was registered to Petitioner, the caliber matched that
of the gun used to shoot Hooten and Peak, and the gun appeared to have been soaked in
saltwater. (State’s Lodging E-2 at 382; Dkt. 7-5 at 11-12; Dkt. 7-6 at 2.) Petitioner later

1

Though Petitioner testified that he fired a warning shot into the air before he shot the ground at
Hooten’s feet, Hooten testified that Petitioner’s first shot was into the ground. A defense witness testified
that he thought he heard four gunshots the night of the shooting, but during the prosecution’s rebuttal
case, three witnesses testified that they heard only three shots—one at the ground and one for each
victim. (Dkt. 7-7 at 18-19.)

MEMORANDUM DECISION AND ORDER - 10

claimed that he did not remember doing anything with the gun other than throwing it
away. (Dkt. 7-6 at 21.)
Prior to trial and at the state’s expense, defense counsel arranged for Petitioner to
be examined by Dr. Richard Worst, a psychiatrist. (Dkt. 5-1 at 1.) Just three weeks before
trial, Petitioner’s counsel notified the state that Petitioner would be calling Dr. Worst to
testify for the defense, and the prosecution objected. (Id. at 1-2.) The trial court
determined that Dr. Worst would be allowed to testify as to Petitioner’s mental state at the
time of the shooting, but that Petitioner would have to disclose Dr. Worst’s reports to the
state and submit to an examination by a state psychologist. (Id. at 2.) The court postponed
the trial and ordered that any evidence gained through this second examination could be
used by the prosecution only in rebuttal. (Id. at 2 & n.1.) The judge also warned Petitioner
that he had a constitutional right to remain silent if asked about the events surrounding the
shooting and that “any incriminating statements he [made] to the State’s experts could be
used against him at trial, in the event defendant place[d] his mental status in issue at
trial.” (Id. at 3 n.1.) Dr. Robert Engle evaluated Petitioner on behalf of the state, but
ultimately did not testify. (Id. at 2-3.)
Petitioner’s defense at trial was that Hooten threatened to kill him and that
Petitioner defended himself. (Dkt. 7-6 at 16; Dkt. 7-7 at 1-2.) Petitioner also stated that he
did not know where precisely Peak was when he fired the last shot: “It was such a blur. It
was so fast. I knew they were both coming and I didn’t know where they were. I knew

MEMORANDUM DECISION AND ORDER - 11

they were there.” (Dkt. 7-7 at 2.)
On cross-examination of Petitioner, the prosecutor asked Petitioner questions
based on statements he had made to Dr. Worst, Petitioner’s psychiatrist and expert
witness. (Dkt. 7-6 at 26; Dkt. 7-7 at 1.) Petitioner identifies three questions asked by the
prosecutor that allegedly violated his Fifth Amendment right against compelled selfincrimination.2 (Traverse at 42.) The prosecutor asked Petitioner: (1) “[T]he first shot was
straight up in the air, is that what you told Dr. Worst?” (Dkt. 7-6 at 26); (2) “But didn’t
you tell Dr. Worst that in-between each one of those shots Marshall Hooten kept coming
after you and kept yelling at you?” (Dkt. 7-7 at 1); and (3) “[Y]ou told Dr. Worst that you
were devastated when that shot hit Marshall Hooten, did you not?” (Dkt. 7-7 at 1).
Petitioner answered all of these questions in the affirmative.
Notably, at the time of the prosecutor’s questions, Petitioner had already testified
on direct examination as follows:
And [Hooten] came up to me and he said, “What are
you going to do, shoot me?” And I said, “Just stay the fuck
away from me.” And he said, “Come on, fucking shoot me.”
And he was flailing his arms like this (indicating), and he was
doing this (indicating) and he was going to his chest. And he
came right up to me and he said, “Come on.” And I said,
“Stay the —” I kept telling him, “Stay away from me. Just
go.” And he said, “I’m going to pound your fucking face and
you’re going to die, motherfucker.” I fired a shot in the air,
and I said, “Stay away from me.” And I fired another one in

2

Though the prosecutor asked other questions about Petitioner’s statements to Dr. Worst, these
three are the only questions challenged in Petitioner’s briefing.

MEMORANDUM DECISION AND ORDER - 12

the ground, I said, “Stay away.” And he kept coming. He said,
“Come on fucker.” I said, “Just go, stay away from me.” I
fired another shot in the ground, and he just kept coming and
he was right on me, and I fired to stop him. And I saw the
other guy and I fired at the other guy.
(Dkt. 7-6 at 17) (emphases added). Petitioner had also testified on direct that he did not
intend to kill Hooten or Peak when he fired the shots. (Id. at 18.)
With respect to Petitioner’s mental state, Dr. Worst testified “to a reasonable
degree of medical certainty” that at the time of the shooting, Petitioner was suffering from
acute stress disorder. (Dkt. 7-7 at 7.) Dr. Worst explained acute stress disorder as
a psychological reaction to a terrifying event in which the
individual is so terrified and in such fear of their life that they
lose their normal psychological faculties. They lose their
ability to be rational, to process, to problem solve, to control
their behavior, to control their emotions. It’s a very powerful
reaction to an event that is so terrifying that the average
person would agree.
(Id.) Dr. Worst testified that Petitioner was in a state of dissociation when he shot Hooten
and Peak and that “it was one overwhelming, traumatic experience.” (Id. at 8.)
The January beating was one of several pieces of information that Dr. Worst relied
on in arriving at the conclusion that Petitioner suffered from acute stress disorder. (Id. at
11.) Dr. Worst testified on cross-examination that the January beating was “selfreporting,” meaning that the only evidence of the attack was Petitioner’s own account.
(Id.) The prosecutor attempted to call into doubt Dr. Worst’s diagnosis by asking him
whether he knew that “the police in that particular case [the January beating] went to

MEMORANDUM DECISION AND ORDER - 13

[Petitioner’s] house, looked at him, examined him, and didn’t find his alleged injuries
consistent with his report?” (Id.) Dr. Worst stated that he had not known that, but that he
believed Petitioner had described “his reality as he perceived it.” (Id.) Petitioner’s counsel
did not attempt to introduce the medical report from Dr. Haisley, nor did counsel call Dr.
Haisley as a witness to testify as to the extent of Petitioner’s injuries sustained in the
January attack.
Petitioner was convicted of both counts of attempted murder. The following
exchange then took place in front of the jury:
The Court:

There’s one other matter, members of the jury, I need to take
up before I discharge you. There is an enhancement on these
charges under Idaho Code.
Mr. Roark [defense counsel], you indicated Mr. Santistevan
was prepared to admit that—in the event he was found guilty,
that he would admit that a firearm was used, displayed,
threatened or attempted to be used in the commission of the
crime?

Mr. Roark:

That is correct, Your Honor.

The Court:

And, Mr. Santistevan, I have to ask you if you’re prepared to
make that admission?

[Petitioner]: I defended myself. These guys came looking for me. I didn’t
cause this. How could this be?
....
The Court:

Do you wish to present any additional evidence?

Mr. Roark:

No, Your Honor. Mr. Santistevan is on record under oath
testifying before the jury that he, indeed, did use a firearm, so

MEMORANDUM DECISION AND ORDER - 14

I think, quite clearly, on the enhancement portion of the
information the State’s evidence is sufficient.
The Court:

And I appreciate that, however, under the U.S. Supreme Court
cases of late, the jury must make a finding or there has to be
an admission. And if Mr. Santistevan can’t make that
admission, I’m going to reinstruct the jury and send them
back out.

(Dkt. 7-7 at 29.)
Petitioner was then removed from the courtroom after an outburst. The jury
deliberated and found that Petitioner did use a firearm in the commission of the offense.
(Id. at 30.)
3.

Analysis of Claims A-1, A-2, and A-5: Ineffective Assistance of Counsel
The standard for ineffective assistance of counsel claims was identified in

Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective
assistance of counsel must show that (1) “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and
(2) those errors “deprive[d] the defendant of a fair trial, a trial whose result is reliable.”
Id. at 687.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse
MEMORANDUM DECISION AND ORDER - 15

sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as which evidence to present or which witnesses to call,
“are virtually unchallengeable” if “made after thorough investigation of law and facts
relevant to plausible options.” Strickland, 466 U.S. at 690. Moreover, an attorney who
decides not to investigate a potential defense theory is not ineffective so long as the
decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
MEMORANDUM DECISION AND ORDER - 16

Id. at 690-91.
The Ninth Circuit has provided some insight into the Strickland standard when
evaluating an attorney’s “strategy calls.” These cases are instructive in the Court's
assessment of whether the Idaho Supreme Court reasonably applied Strickland. See
Duhaime, 200 F.3d at 600. First, a questioned tactical decision is not tantamount to
ineffective assistance simply because in retrospect better tactics are known to have been
available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Second, a mere
difference of opinion as to trial tactics does not constitute denial of effective assistance.
United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981).
If a petitioner is able to show that counsel’s performance was deficient, the next
step is the prejudice analysis. “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a
petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
As the Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
MEMORANDUM DECISION AND ORDER - 17

trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96.
When evaluating a claim of ineffective assistance of counsel in a federal habeas
proceeding under § 2254(d)(1), the Court’s review of that claim is “doubly deferential.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).
A.

Claim A-1: Trial Counsel’s Concession of Guilt on Firearm
Enhancement Charge

Petitioner claims that his trial counsel rendered constitutionally deficient
performance by conceding, after the jury returned the guilty verdicts on the attempted
murder charges but before deliberation on the sentencing enhancement charge, that
Petitioner had used a firearm during the incident. However, Petitioner himself admitted
on the witness stand that he shot the two boys with his gun. (State’s Lodging E-1 at 45354.) There was never any question as to that fact. Petitioner’s defense theory was that he
used a gun to defend himself, not that he did not use a gun at all. There is no conceivable
prejudice arising from any alleged error in counsel’s statements, and the Idaho Court of
Appeals reasonably applied Strickland when it rejected Petitioner’s argument. Therefore,
Petitioner is not entitled to relief on Claim A-1.

MEMORANDUM DECISION AND ORDER - 18

B.

Claim A-2: Trial Counsel’s Failure to Introduce Medical Evidence of the
January Attack

Petitioner next claims that counsel was ineffective for failing to call Dr. Haisley or
to introduce her medical report regarding the injuries suffered by Petitioner at the Silver
Dollar Bar in January 2004.
On review of Petitioner’s state postconviction petition, the Idaho Court of Appeals
held that trial counsel’s failure to call Dr. Haisley or to introduce her report was a
strategic decision and that Petitioner had failed to meet his burden of establishing that his
counsel’s performance was deficient:
Decisions about what witnesses to call and what
evidence to introduce at trial are generally matters of trial
tactics or strategy. State v. Payne, 146 Idaho 548, 563, 199
P.3d 123, 138 (2008); Bagshaw v. State, 142 Idaho 34, 38,
121 P.3d 965, 969 (Ct. App.2005); Drapeau v. State, 103
Idaho 612, 616, 651 P.2d 546, 550 (Ct. App.1982). Such
tactical or strategic decisions of trial counsel will not be
second-guessed unless they were based on inadequate
preparation, ignorance of relevant law, or other shortcomings
capable of objective evaluation. Baxter v. State, 149 Idaho
859, 863, 243 P.3d 675, 679 (Ct. App.2010); Howard v. State,
126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App.1994). A
post-conviction petitioner must overcome a strong
presumption that counsel’s performance fell within the wide
range of acceptable professional assistance. Payne, 146 Idaho
at 561, 199 P.3d at 136; State v. Hairston, 133 Idaho 496,
511, 988 P.2d 1170, 1185 (1999).
The decision of [Petitioner’s] attorney to not present
medical evidence of some marks on his body is a tactical
decision of the sort that will not be deemed deficient
performance absent a showing that it was based upon
inadequate preparation, ignorance of the law, or other
MEMORANDUM DECISION AND ORDER - 19

objectively identifiable shortcomings. [Petitioner] has made
no such showing to create a genuine issue as to whether his
counsel was deficient. Rather, [Petitioner] attached the report
to his petition and stated in a conclusory manner that the
evidence was “vital” to his self-defense claim. However, his
argument on appeal and below show that the evidence was
actually quite tangential to the self-defense issue. It would
have corroborated only a portion of his story that had nothing
to do with self-defense but, as stated by [Petitioner], merely
explained why he was in the alleyway where the altercation
started. The State’s witness that he contends this evidence
would have discredited [Sergeant Fruehling] did not testify on
a topic relevant to [Petitioner’s] self-defense claim, but rather
on the topic of this alleged prior beating and the reasons why
the officer did not pursue charges or investigate. Even if the
evidence would have discredited the officer’s veracity in a
general way, counsel would have had to weigh the usefulness
of that potential and make a tactical decision whether it
would materially advance the defense. Because [Petitioner]
has shown no reason to believe that this tactical decision was
objectively unreasonable or based on ignorance of law or lack
of preparation, this claim was properly dismissed.
(Dkt. 6 at 6-7) (emphasis added).
The state appellate court’s decision was consistent with a reasonable application of
Strickland. The record is insufficient to establish that trial counsel’s decision not to call
Dr. Haisley or to introduce her report fell so far below an objective standard of
reasonableness that “counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
Dr. Haisley’s testimony and medical report would have bolstered Dr. Worst’s
testimony and the acute stress disorder defense. However, the totality of the evidence
shows that the medical evidence had only marginal probative value. The report does not
MEMORANDUM DECISION AND ORDER - 20

suggest that Petitioner’s abrasions, swelling, and bruising were especially severe. And
Petitioner’s testimony that he was in the alley to gather information about the previous
beating was already corroborated by Petitioner’s green notebook, which Petitioner said he
was using that night and which police found at the scene of the shooting. (Dkt. 7-6 at 21.)
The double deference that applies when reviewing ineffective assistance claims in habeas
proceedings leaves no room for this Court to second-guess the tactical decision of
Petitioner’s counsel with the benefit of hindsight. Pinholster, 131 S. Ct. at 1403;
Strickland, 466 U.S. at 689. Thus, Petitioner has not shown that his counsel performed
deficiently.
Furthermore, Petitioner has not shown a reasonable probability that he was
prejudiced by his attorney’s decision not to present the medical evidence. Petitioner
concedes that “Dr. Haisley’s testimony and her medical report may not bear directly on
one particular element of the State’s case,” but argues that the evidence “did inform the
self-defense issue and would have rebutted the attacks on [Petitioner’s] testimony and
credibility.” (Traverse at 10-11.) But while the medical evidence would have corroborated
Petitioner’s self-report of the January beating, that evidence would have been countered
by Petitioner’s admission at trial that he told Sergeant Fruehling the January attack was
“more of a psychological beating” than a physical one.” (Dkt. 7-6 at 20.)
In addition, Dr. Haisley’s testimony and medical report could have impeached
Sergeant’s Fruehling’s testimony with respect to the January attack, as the court of

MEMORANDUM DECISION AND ORDER - 21

appeals noted. However, the only aspect of Fruehling’s testimony the medical evidence
might have have called into question was Fruehling’s stated reason for not filing charges
relating to the January beating, which has nothing to do with the shooting of Hooten and
Peak. The report would have shown, at most, that Petitioner’s injuries from the January
attack were not as minor as Fruehling believed.
With respect to shoring up Petitioner’s testimony and credibility, the benefit that
arguably might have been gained from the medical evidence pales in comparison to the
evidence casting doubt on Petitioner’s side of the story. When Sergeant Fruehling told
Plaintiff he would likely not file any charges regarding the January beating because
Petitioner did not have a mark on him, Petitioner asked Fruehling what would happen if
Petitioner just went down to the bar and started shooting. (Dkt. 7-3 at 21.) Though
Petitioner confirmed Fruehling’s testimony as to the content of nearly all of their
conversation, he testified that he did not remember asking Fruehling that particular
question. (Dkt. 7-6 at 20.) But the fact of, and the extent of any, physical injuries he had
in January would not have rehabilitated Petitioner’s credibility on this point.
Petitioner’s actions after the shooting also support the prosecution’s theory that,
rather than shooting the victims in self-defense, Petitioner was not in fear for his life and
intended to kill them when he shot them. Peak was riding away from Petitioner when
Petitioner shot him. Although Hooten fell to the ground after being shot in the gut and
thus posed no threat to Petitioner, Petitioner did not check to see if he was alive. (Dkt. 7-7

MEMORANDUM DECISION AND ORDER - 22

at 21.) Petitioner did not call the police or an ambulance, but instead went home and had a
“normal” evening with his girlfriend April Kildare, during which he had sex and drank
tea. (Id.) Kildare testified that Petitioner said nothing to her about having just shot two
boys in self-defense and that he was acting normally that night. (Dkt. 7-4 at 13.)
Petitioner also initially lied to the police and said he did not know anything about the
shooting. Such are not the actions of a man who believed he was justified in using deadly
force. The evidence of Petitioner’s intent in attempting to kill his victims was
overwhelming, and it is no surprise that the jury rejected Petitioner’s story. The Idaho
Court of Appeals reasonably denied Petitioner relief on Claim A-2.
C.

Claim A-5: Counsel’s Failure To Advise Regarding a Petition for Review
and Failure To Preserve an Alleged Due Process Error at Sentencing

Claim A-5 alleges that defense counsel failed to file a petition for review from the
decision of the Idaho Court of Appeals or to preserve an alleged due process error at
sentencing.3 As the state court reasonably held, citing the U.S. Supreme Court’s decision
in Ross v. Moffitt, there is no constitutional right to the effective assistance of counsel on
discretionary review of an appellate decision. (Dkt. 6 at 5.) See Ross v. Moffitt, 417 U.S.
600, 610 (1974) (“We do not believe that the Due Process Clause requires North Carolina
to provide respondent with counsel on his discretionary appeal to the State Supreme
Court.”). (See Dkt. D-6 at 5-6.)

3

Petitioner offers no description or explanation as to this alleged sentencing error.

MEMORANDUM DECISION AND ORDER - 23

Moreover, even assuming that appellate counsel should have filed a petition for
review, Petitioner alleges only generally that he was prejudiced by any such error.
Petitioner states that counsel should have informed him about the option of petitioning for
review, that Petitioner “had issues he wanted to bring on direct appeal that would have
added context to the two claims trial counsel raised on appeal,” and that his counsel’s
failure to “includ[e] the other issues [Petitioner] wanted to [raise] prejudiced him and rise
to the level of a violation of his Sixth Amendment right to effective assistance of
counsel.” (Traverse at 12.)
First, one cannot raise in a petition for review any new issues that were not raised
in the initial appellate briefing. Second, Petitioner does not state how the failure to raise
any other issues prejudiced him. He does not even identify those other issues, except with
respect to his vague assertion of a “due process error at sentencing.” (Am. Pet. at 12.) In
short, Petitioner has not met his heavy burden of showing that the Idaho Court of
Appeals’ decision rejecting Claim A-5 was an unreasonable application of Ross or
Strickland.
4.

Analysis of Claim B: Fifth Amendment Right To Be Free from Compelled
Self-Incrimination
Petitioner argues that his Fifth Amendment rights were violated by three separate

events: (1) the court’s order compelling him to submit to a psychiatric examination; (2)
the requirement that he disclose to the prosecution Dr. Worst’s report; and (3) the
prosecutor’s cross-examination of Petitioner based on his statements to Dr. Worst. (Dkt.
MEMORANDUM DECISION AND ORDER - 24

25 at 14.
The Fifth Amendment to the United States Constitution provides, in relevant part,
that “[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” Every criminal defendant has a right not to testify, and a jury may not draw an
adverse inference from a defendant’s choice not to testify.
However, when a defendant does testify, he or she may not elect to answer some
questions and assert the Fifth Amendment privilege with respect to others:
Where an accused party waives his constitutional privilege of
silence, takes the stand in his own behalf and makes his own
statement, it is clear that the prosecution has a right to
cross-examine upon such statement with the same latitude as
would be exercised in the case of an ordinary witness, as to
the circumstances connecting him with the alleged crime.
While no inference of guilt can be drawn from his refusal to
avail himself of the privilege of testifying, he has no right to
set forth to the jury all the facts which tend in his favor
without laying himself open to a cross-examination upon
those facts.
Fitzpatrick v. United States, 178 U.S. 304, 315 (1900).
The Fifth Amendment applies to situations involving compelled mental
examinations. In Estelle v. Smith, 451 U.S. 454, 456-57 (1981), the trial court ordered the
defendant to undergo an examination for purposes of determining whether the defendant
was competent to stand trial. The defendant was found competent, proceeded to trial, and
was convicted of murder. During the capital sentencing phase of the trial, the prosecutor
called the doctor who had examined the defendant for competency and whose report

MEMORANDUM DECISION AND ORDER - 25

identified the defendant as “a severe sociopath.” Id. at 458-59. The doctor testified that, in
his opinion, the defendant had no regard for other human beings or their property and
would continue his criminal behavior in the future. (Id. at 459-60.) The defendant was
sentenced to death.
The Supreme Court held that the admission at the penalty phase of the examining
doctor’s testimony and report violated the defendant’s Fifth Amendment privilege against
compelled self-incrimination because the prosecutor “used [the defendant’s] own
statements, unwittingly made without an awareness that he was assisting the State’s
efforts to obtain the death penalty.” (Id. at 466.) The Court distinguished the case from
lower court cases approving court-ordered mental evaluations where the defendant puts
his mental status at issue: “When a defendant asserts the insanity defense and introduces
supporting psychiatric testimony, his silence may deprive the State of the only effective
means it has of controverting his proof on an issue that he interjected into the case.” Id. at
465.
The Supreme Court returned to the issue in Buchanan v. Kentucky, 483 U.S. 402
(1987). There, the prosecutor and the defense attorney had jointly requested a mental
evaluation for purposes of determining whether the defendant should be involuntarily
hospitalized. Id. at 404, 410-11. At trial, the defendant asserted the affirmative defense of
extreme emotional disturbance. Id. at 408. On direct examination by defense counsel, a
social worker who had been assigned to the defendant read into evidence “several reports

MEMORANDUM DECISION AND ORDER - 26

and letters dealing with evaluations of [the defendant’s] mental condition.” Id. at 409.
On cross-examination, the prosecutor asked the witness to read from a different
report, one prepared by the psychologist who had examined the defendant to determine
whether he should be hospitalized. The defense objected, and the prosecutor argued that
the report dealt with the same subject matter that the defendant had elicited from the
social worker on direct examination. The court allowed the social worker to read from the
report. Id. at 412.
In holding that this cross-examination of the social worker did not violate the Fifth
Amendment, the Court explained that Estelle involved a defendant who “neither placed at
issue [his] competency to stand trial nor had offered an insanity defense.” Id. at 421. The
Court held that “if a defendant requests such an evaluation or presents psychiatric
evidence, then, at the very least, the prosecution may rebut this presentation with evidence
from the reports of the examination that the defendant requested.” Id. at 422-23
(emphasis added). The Court noted that the report that was read into evidence was based
solely on the doctor’s general observations of the defendant; the report did not describe
any statements by the defendant “dealing with the crimes for which he was charged. The
introduction of such a report for this limited rebuttal purpose does not constitute a Fifth
Amendment violation.” Id. at 423-24.
The Supreme Court recently made clear that Buchanan is not limited to situations
where the prosecution and defense jointly request a mental evaluation of the defendant.

MEMORANDUM DECISION AND ORDER - 27

Kansas v. Cheever, 134 S. Ct. 596, 301 (2013). In Cheever, the defendant filed a notice
that he intended to introduce expert testimony “relating to his intoxication” on the day he
killed the victim. In response, the federal district court presiding over the trial ordered the
defendant to submit to a psychiatric evaluation. Id. at 599. After the charges were
dismissed without prejudice as a result of defense counsel’s unavailability, the defendant
was charged in state court. The defendant presented the testimony of a specialist in
psychiatric pharmacy, who opined that the defendant’s methamphetamine use had
damaged his brain and that on the day of the crime, the defendant had been “very much
influenced” by his use of the drug. Id. at 600. In rebuttal, the state called the expert who
had earlier examined the defendant by order of the federal court. The trial court allowed
the testimony “for the purpose of showing that [the defendant] shot [the victim] ‘because
of his antisocial personality, not because his brain was impaired by methamphetamine.’”
Id.
The Court held that the rebuttal evidence did not violate the Fifth Amendment:
“The rule of Buchanan, which we reaffirm today, is that where a defense expert who has
examined the defendant testifies that the defendant lacked the requisite mental state to
commit an offense, the prosecution may present psychiatric evidence in rebuttal. Any
other rule would undermine the adversarial process, allowing a defendant to provide the
jury, through an expert operating as proxy, with a one-sided and potentially inaccurate
view of his mental state at the time of the alleged crime.” Id. at 601.

MEMORANDUM DECISION AND ORDER - 28

The claim that Petitioner raised to the Idaho Court of Appeals was that the
compelled psychiatric examination by Dr. Engle, by itself, violated his right not to
incriminate himself. Cheever had not been decided at the time the Idaho Court of Appeals
rejected that claim. The Idaho Court of Appeals held:
Although neither the United States Supreme Court nor the
Idaho appellate courts have directly addressed the issue,
virtually all federal circuit courts and state appellate courts
considering the matter have held that if a defendant
announces and intention to introduce psychiatric evidence to
support a claim of mental defect, a court-ordered mental
examination of the Defendant by an expert for the State does
not violate the privilege against self-incrimination. While the
grounds for the decisions vary, the overarching rationale can
be described as one of fundamental fairness and judicial
common sense, taking practical considerations into account in
determining the reach of the Fifth Amendment privilege
against self-incrimination. . . . [W]hen a defendant
introduce[s] psychiatric testimony to show why he should not
be punished for a crime, the state must be able to follow
where he has led. To hold that the Fifth Amendment prevents
a compelled examination in this circumstance would deprive
the State of the only adequate means to meet the defense
expert’s testimony.
(Dkt. 5-1 at 4-5) (emphasis added) (internal quotation marks and citations omitted).
The decision of the Idaho Court of Appeals was a reasonable application of Estelle
and Buchanan. Indeed, Cheever has now made clear that when a defendant seeks to
introduce evidence of his mental state, a court may order the defendant to undergo a
psychiatric evaluation by a state expert so that the state may rebut defendant’s psychiatric
evidence. Thus, the state court’s decision was not based on an unreasonable application of

MEMORANDUM DECISION AND ORDER - 29

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
The other two aspects of Petitioner’s Fifth Amendment claim—regarding the
disclosure of Dr. Worst’s report and the cross-examination of Petitioner—fail for two
reasons. First, in state court Petitioner expressly waived his argument that the state should
not have cross-examined Petitioner with the statements he made to Dr. Worst. Defense
counsel stated to the trial court that “whatever [Petitioner has] told Dr. Worst is waived in
terms of privilege.” (Dkt. 7-2 at 8) (emphasis added).
Second, these two arguments fail on the merits. With respect to the disclosure of
Dr. Worst’s report to the state and the prosecutor’s cross-examination of Petitioner based
on that report, this case falls into the gap between Estelle on the one hand, and Buchanan
and Cheever on the other. Petitioner was ordered to undergo an examination with state
psychologist Dr. Engle, like the defendant in Estelle. But unlike the defendant in Estelle,
Dr. Engle did not testify, and Petitioner himself had put his mental state at issue by
introducing evidence that he suffered from acute stress disorder at the time of the crimes.
Cheever instructs us that the prosecution was entitled to counter Petitioner’s evidence of
his mental state.
The Court concludes that Petitioner was not deprived of his Fifth Amendment right
against compelled self-incrimination. The primary factor supporting that conclusion is
that Petitioner took the stand. Petitioner put his mental status at issue by calling Dr.
Worst, and he also waived his privilege not to testify. The holding of Fitzpatrick allows

MEMORANDUM DECISION AND ORDER - 30

cross-examination of a defendant to the same extent as cross-examination of any other
witness. Further, the prosecutor did not use any of Dr. Engle’s reports at all in questioning
Petitioner (even though, under Cheever, the state could have done so in rebuttal); the
questions were entirely based on Petitioner’s statements to Dr. Worst during the
evaluation that Petitioner himself requested.
In summary, the Fifth Amendment privilege against self-incrimination does not
allow a defendant to have his cake and eat it too. Petitioner put his mental status at issue
and testified in his own defense. Therefore, the state was not required to stand mute.4
5.

Cumulative Error
Petitioner asserts that even if none of his individual habeas claims entitle him to

relief, his petition should nonetheless be granted because, taken together, the errors in his
trial constitute prejudicial cumulative error. The Court rejects this argument. “While the
combined effect of multiple errors may violate due process even when no single error
amounts to a constitutional violation or requires reversal, habeas relief is warranted only
where the errors infect a trial with unfairness.” Payton v. Cullen, 658 F.3d 890, 896-97

4

The Court also concludes that even if Petitioner’s Fifth Amendment rights had been violated by
the disclosure of Dr. Worst’s report or the prosecutor’s resulting cross-examination, Petitioner cannot
show that any such error “had substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). The three
questions from the prosecutor to which Petitioner objects could not have contributed in any way to the
guilty verdicts. Petitioner himself had already testified (on direct examination) that (1) he fired the first
shot in the air; (2) Hooten kept coming at Petitioner while he was firing warning shots; and (3) he did not
intend to kill Hooten. Thus, the jury had already heard his answers to the prosecutor’s questions about
the trajectory of the first shot, Hooten’s approach toward Petitioner, and how Petitioner felt when he shot
Hooten. That Petitioner also made these statements to Dr. Worst and that the prosecutor learned of them
via Worst’s expert report does not alter the Brecht inquiry.

MEMORANDUM DECISION AND ORDER - 31

(9th Cir. 2011). Petitioner has simply not established that his trial was rendered
fundamentally unfair.
CONCLUSION
Petitioner was not denied his Sixth Amendment right to effective assistance
counsel or his Fifth Amendment right to be free from compelled self-incrimination.
Because Petitioner’s other claims have been dismissed as procedurally defaulted, the
Court will deny the habeas petition and dismiss this case.
ORDER
IT IS ORDERED:
1.

Petitioner’s Second Motion to Extend Time to File Traverse (Dkt. 38) is
GRANTED.

2.

Petitioner’s Amended Second Motion to Extend Time to File Traverse (Dkt.
41) is GRANTED. Petitioner’s Traverse (Dkt. 42) is deemed timely.

3.

The Amended Petition for Writ of Habeas Corpus (Dkt. 25) is DENIED,
and this entire action is DISMISSED with prejudice.

4.

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 - 32

Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
DATED: January 9, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 33