Ngabirano v. Wengler

Filing 28

MEMORANDUM DECISION AND ORDER conditionally granting 10 Motion to Dismiss; deeming as moot 17 Motion for Extension of Time to File Response/Reply; granting 18 Motion for Extension of Time to File Response/Reply; granting 20 Motion for Leave t o File Excess Pages; denying without prejudice 22 Motion for Extension of Time to File Response/Reply. No later than 30 days after the Supreme Court releases an opinion in Trevino v. Thaler, Case No. 11-10189, Petitioner may file a suppleme ntal brief, together with a Motion to Proceed with Habeas Petition, addressing the cause and prejudice issues raised herein. Respondent shall file a response within 30 days of receiving Petitioners motion and brief, and Petitioner may file a reply within 21 days of receiving a response. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RONALD WILLIAM NGABIRANO,
Case No. 1:11-cv-00450-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

WARDEN TIM WENGLER,
Respondent.

Pending before the Court is Respondent’s Motion for Summary Dismissal. (Dkt.
10.) Other preliminary motions are also pending.1
The Court finds that oral argument is not necessary to resolve this matter, and for
the reasons to follow, the Court will conditionally grant Respondent’s Motion, but no
claims will be dismissed until the parties have had an opportunity to submit supplemental
briefing on cause and prejudice issues, in accordance with the instructions to follow in
this Memorandum Decision.

1

Respondent’s motions for extension of time and to file an oversize brief are granted, and the
Reply is deemed properly filed. Petitioner’s motion for an extension of time to file an “addendum” is
denied, but Petitioner will be given another opportunity to brief the cause and prejudice issues.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Petitioner pled guilty in Idaho state court to three counts of lewd conduct with a
child under the age of 16 and to one count of possessing sexually exploitative material.
(State’s Lodging A-1, pp. 77-82; State’s Lodging A-2, p. 1.) As part of a plea agreement,
the State dismissed several additional counts involving different children. (Id.) The
district court sentenced Petitioner to life in prison without the possibility of parole on
each lewd conduct count and to 10 years fixed for possession of sexually exploitative
material. (State’s Lodging A-1, pp. 98-100.) On direct appeal, Petitioner argued only that
his sentences were excessive under state law, but the Idaho Court of Appeals affirmed the
judgment of the lower court, and the Idaho Supreme Court declined to review the case.
(State’s Lodgings B-3, B-6, B-9.)
Petitioner next filed an application for post-conviction relief in state district court,
raising numerous claims, including claims of ineffective assistance of trial counsel, each
with several sub-parts. (State’s Lodging C-2.) The district court appointed an attorney for
Petitioner, but other than enter an appearance and file a motion to unseal the presentence
investigation report, counsel did nothing to move the case forward, and it sat idle for
almost two years. (State’s Lodging C-1.) Eventually, the State filed a motion for summary
dismissal, to which Petitioner’s counsel did not respond. (Id.) At the hearing on the
State’s motion, counsel agreed with the district court’s characterization that he chose not
to “contest what’s in the brief filed by the State as far as the legal and factual evidence.”
(State’s Lodging C-8, p. 6.) After the court granted the State’s motion and ordered the
MEMORANDUM DECISION AND ORDER - 2

case dismissed, counsel informed the court that “the reason we didn’t file a response was
I – we concluded that under Rule 11 we would not really have anything to say. I think
Rule 11 prohibits us from making arguments that are without legal merit.” (Id.) No appeal
was filed from the district court’s decision. (State’s Lodging C-1.)
Petitioner next filed his Petition for Writ of Habeas Corpus in this Court, alleging a
wide array of federal claims arising out of the state criminal process, including: (1) a
violation of his right to consular access after his arrest, as a foreign national, under the
Vienna Convention on Consular Relations; (2) a violation of the Eighth Amendment’s
prohibition on excessive bail, which allegedly resulted in Petitioner not being able to
retain counsel of his choice; (3) a biased judge; (4) prosecutorial misconduct; (5)
ineffective assistance of trial counsel under a variety of theories, including, but not
limited to counsel’s failure to investigate and argue (a) search and seizure issues, (b)
issues related to Petitioner’s confession, and (c) Petitioner’s inability to access the law
library in the county jail; (7) an involuntary guilty plea; (8) cruel and unusual punishment
under the Eighth Amendment; and (9) ineffective assistance of counsel on direct appeal.
(Attachment to Petition, Dkt. 1-1, pp. 1-26.)
Chief United States Magistrate Judge Candy W. Dale conducted an initial review
of the Petition and ordered the Clerk of Court to serve it on Respondent. (Dkt. 5.)
Respondent has now filed a Motion for Summary Dismissal, arguing that Petitioner failed
to properly exhaust his claims in the state courts, and because it is now too late to do so,
the claims must be dismissed as procedurally defaulted. (Dkt. 10.) Petitioner has filed a
MEMORANDUM DECISION AND ORDER - 3

Response (Dkt. 16), Respondent has submitted a Reply (Dkt. 21), and the case has been
reassigned to the undersigned United States District Judge because not all parties have
consented to a magistrate judge exercising jurisdiction. (Dkt. 25.)
As explained below, the Court agrees that all of Petitioner’s claims are
procedurally defaulted, but the Court will reserve its final ruling as to whether those
claims must be dismissed on that ground until the parties have had a chance to submit
additional briefing on whether “cause and prejudice” excuses the default.
STANDARD OF LAW
A habeas petitioner must first exhaust his state court remedies before a federal
court can grant relief on a constitutional claim. 28 U.S.C. § 2254(b); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To exhaust state court remedies properly, the
petitioner must have fairly presented his constitutional claims, giving the state courts a
full and fair opportunity to correct the alleged error, at each level of appellate review.
Baldwin v. Reese, 541 U.S. 27 (2004).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation, and vague references in state court to
broad constitutional principles, such as due process, equal protection, and the right to a
fair trial, are likewise insufficient. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995)
(similarity of claims is insufficient); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
Cir. 1999) (appeal to broad principles insufficient). The petitioner must clearly alert the
state court to the federal constitutional provision that supports her claim, or she must rely
MEMORANDUM DECISION AND ORDER - 4

on state or federal cases that apply the constitutional rule. Lyons v. Crawford, 232 F.3d
666, 670 (9th Cir. 2000); Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003).
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 firmly established procedural rules, the claim is said to have been
“procedurally defaulted.” Gray v. Netherland, 518 U.S. 152, 161 (1996). A habeas claim
is also defaulted when the petitioner actually raised the constitutional claim in state court,
but the state court denied or dismissed the claim after invoking a procedural bar that is
independent of federal law and is adequate to support the judgment. Murray v. Carrier,
477 U.S. 478, 488 (1986); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
A claim that rests upon an independent and adequate state law ground will not be
considered in a habeas proceeding unless the petitioner can establish cause for his
procedural 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. To show
“cause,” the petitioner must 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 - 5

DISCUSSION
Petitioner does not dispute that he failed to present any of his current federal
claims to the Idaho Supreme Court. (Dkt. 16, p. 2.) Given this concession, the Court can
easily conclude that no claims were exhausted in the Idaho Supreme Court and that they
are now procedurally defaulted.
The resolution of Respondent’s Motion turns instead on whether Petitioner can
establish cause and prejudice to excuse the default of his claims. In attempting to do so,
Petitioner contends that his post-conviction counsel “completely and utterly abandoned”
him in the state court proceeding in which his claims could have been developed. (Dkt.
16, p. 1.) He relies on the Supreme Court’s recent decision in Martinez v. Ryan, 132 S.Ct.
1309 (2012), arguing that ineffective assistance of post-conviction counsel is the cause
that excuses the default of his claims.
Before Martinez, the Supreme Court had long held that a criminal defendant
generally bears the risk of attorney error, and “[t]he mere fact that counsel failed to
recognize the factual or legal basis for a claim, or failed to raise the claim despite
recognizing it, does not constitute cause for a procedural default,” though counsel’s errors
that rise to an independent constitutional violation may serve as cause. Murray, 477 U.S.
at 486.
More specifically, in Coleman v. Thompson, 501 U.S. 722, 753 (1991), the
Supreme Court found that because it had never held that there is a constitutional right to
counsel in post-conviction matters, a claim of ineffective assistance of post-conviction
MEMORANDUM DECISION AND ORDER - 6

counsel cannot excuse the petitioner’s failure to raise a claim properly in state court. The
Court left for another day the question of whether a limited exception may exist when a
post-conviction proceeding represents the first opportunity under state law for a convicted
state defendant to litigate claims of ineffective assistance of trial counsel. Id. at 755. But
the Ninth Circuit and other circuits later determined that such an exception does not exist.
Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v. Calderon, 77 F.3d
1155, 1159 (9th Cir. 1996).
Twenty years later, the Supreme Court recognized “a narrow exception” that
ineffective assistance of post-conviction counsel – while not stating a constitutional claim
itself – can be a sufficient equitable reason, or a “cause,” to excuse defaulted claims of
ineffective assistance of trial counsel. Martinez, 132 S.Ct. at 1315. In setting out the rule,
however, the Court described two potential restrictions. First, the state post-conviction
proceeding must represent the initial opportunity under state law for a defendant to raise
claims of ineffective assistance of trial counsel (it must be an “initial-review collateral
proceeding” for those claims). Id. at 1317. Second, “[w]hen faced with the question
whether there is cause for an apparent default, a State may answer that the ineffectiveassistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or it is
wholly without factual support, or that the attorney in the initial-review collateral
proceeding did not perform below constitutional standards.” Id. at 1319.
In this case, Petitioner seeks refuge in the safe harbor created by Martinez.
Respondent counters that the Martinez has no applicability to non-capital cases in Idaho.
MEMORANDUM DECISION AND ORDER - 7

This is so, according to Respondent, because while Idaho law may strongly encourage a
convicted non-capital defendant to wait until the post-conviction proceeding to raise
claims of ineffective assistance of trial counsel, it does not require that course of action.
(Dkt. 21, p. 6.) In other words, Respondent suggests that it is possible to raise such claims
on direct appeal, when counsel is provided, taking Idaho out reach of Martinez. (Id.)
In making this argument, Respondent acknowledges that Judge Lodge has
previously concluded that Martinez applies in non-capital Idaho cases “where the postconviction setting is the first forum in which the ineffective assistance of trial counsel
claim based on matters arising outside of the record could have brought and developed in
an evidentiary hearing.” Horonzy v. Smith, 1:11-cv-00235-EJL (Dkt. 25, pp. 11-12.)
Respondent has also alerted this Court to a case that is currently pending before the
United States Supreme Court, Trevino v. Thaler, Case No. 11-10189, cert granted at 133
S.Ct. 524 (2012), which may clarify Martinez’s reach into states that discourage but do
not prohibit defendants from raising ineffective assistance of counsel claims on direct
appeal. Trevino has been orally argued and a decision should be released before July.
www.supremecourt.gov /oral_arguments. Given that Trevino may inform or even be
dispositive of Respondent’s argument regarding Martinez’s application to non-capital
cases in Idaho, the Court finds that it would be prudent to await the Supreme Court’s
decision before ruling on the cause and prejudice issue presented in this case.2
2

In reaching this conclusion, the Court is not persuaded by Respondent’s argument that a
“Martinez claim” to excuse a procedural default must be independently exhausted in the state courts. The
Supreme Court did not announce a constitutional right to counsel in a state post-conviction proceeding,
MEMORANDUM DECISION AND ORDER - 8

However, Martinez only addresses defaulted claims of ineffective assistance of
trial counsel, and Petitioner has raised numerous other constitutional claims in his
Petition. Even if the Martinez rule applies, it would not save these additional claims from
dismissal. But another case decided by the Supreme Court in the same term might have
some bearing on all claims. In Maples v. Thomas, 132 S.Ct. 912 (2012), the Supreme
Court held that “abandonment” by a post-conviction attorney severs the principal-agent
relationship and can be an “extraordinary circumstance” beyond the petitioner’s control
that provides an equitable reason to excuse a procedural default. Id. at 924.
Though Petitioner, who is proceeding pro se, has not cited Maples, he does allege
that his post-conviction counsel “completely and utterly abandoned” him when counsel
failed to offer any argument in Petitioner’s favor, acquiesced in the district court’s
granting of the State’s motion to dismiss, and did not file a notice of appeal. (Dkt. 16, pp.
1-2.) The Court expresses no opinion on this issue other than to note that the existing state
court record shows very minimal involvement by post-conviction counsel and no obvious
advocacy on Petitioner’s behalf. Accordingly, the Court also invites the parties to address
the relevance of Maples to the facts and circumstances in this case.
For these reasons, the Court concludes that Petitioner’s habeas corpus claims are
procedurally defaulted and subject to summary dismissal. Respondent’s Motion for

only an equitable right to seek relief from a procedural default in a federal habeas matter. Post-Martinez,
neither Idaho nor any other state has an obligation under the Constitution to provide counsel in postconviction actions or to offer a remedy if post-conviction counsel is ineffective. There is no requirement
that a habeas petitioner exhaust his argument – or “claim” – for cause.
MEMORANDUM DECISION AND ORDER - 9

Summary Dismissal will be granted conditionally, and the Petition will be dismissed
unless Petitioner is able to demonstrate cause and prejudice in accordance with the
schedule to follow.
ORDER
IT IS ORDERED:
1.

Respondent’s [Second] Motion for Extension of Time (Dkt. 18) is
GRANTED.

2.

Respondent’s [First] Motion for Extension of Time (Dkt. 17) is DEEMED
MOOT.

3.

Respondent’s Motion to File Oversize Brief (Dkt. 20) is GRANTED.

4.

Petitioner’s Motion for Extension of Time (Dkt. 21) is DENIED without
prejudice. Petitioner will have an opportunity to file a supplemental brief.

5.

Respondent’s Motion for Summary Dismissal (Dkt. 10) is
CONDITIONALLY GRANTED. No later than 30 days after the Supreme
Court releases an opinion in Trevino v. Thaler, Case No. 11-10189, cert
granted at 133 S.Ct. 524 (2012), Petitioner may file a supplemental brief,
together with a “Motion to Proceed with Habeas Petition,” addressing the
cause and prejudice issues raised herein. At his option, Petitioner may
submit affidavits or other evidence to support of his motion to proceed.

//
//
MEMORANDUM DECISION AND ORDER - 10

Respondent shall file a response within 30 days of receiving Petitioner’s
motion and brief, and Petitioner may file a reply within 21 days of receiving
a response.

DATED: March 19, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 11