Ngabirano v. Wengler

Filing 32

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Motion to Proceed with Habeas Petition 30 is DENIED. The Court's conditional grant (Dkt. 28) of Respondent's Motion for Summary Dismissal (Dkt. 10) is hereby CONFIRMED, and this entire action is DISMISSED with prejudice. 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 (st)

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 Petitioner Ronald William Ngabirano’s Petition for
Writ of Habeas Corpus (Dkt. 1). On March 19, 2013, the Court conditionally granted
Respondent’s Motion for Summary Dismissal after it concluded that Petitioner’s habeas
claims are procedurally defaulted. (Dkt. 28.) The Court declined to enter a final order of
dismissal at that time, instead allowing the parties to submit additional briefing
addressing whether Maples v. Thomas, 132 S. Ct. 912 (2012), should apply to excuse the
procedural default of those claims. Additionally, the Court declined to decide whether
Martinez v. Ryan, 132 S. Ct. 1309 (2012), excused the default of Petitioner’s ineffective
assistance of trial counsel claims because the Supreme Court was considering the case of
Trevino v. Thaler, 133 S. Ct. 1911 (2013), which was ultimately dispositive of one of
Respondent’s arguments against the application of Martinez to Petitioner’s claims.

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Petitioner has now filed a Motion to Proceed with Habeas Petition and Supplemental
Brief (Dkt. 30). Both parties have filed their briefs, and the issue is ripe for adjudication.
Having fully 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
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 dismissing the Petition with prejudice.
BACKGROUND
This case stems from Petitioner’s sexual predation of several young children.
Petitioner was a friend of a couple with children and sometimes stayed at their apartment.
Petitioner would baby-sit the children in exchange for a place to stay. One day, the 6-year
old girl living in the apartment told her stepfather that “Will” (the name used by
Petitioner) had touched her inappropriately and that he had taken photographs. (State’s
Lodging A-4 at 227-28.) The stepfather then searched the room where Petitioner slept
when he stayed over (a room shared with one of the couple’s younger boys) and found 6
pairs of blood-soaked panties stuffed into Petitioner’s work boots. The panties belonged
to the little girl. (Id. at 229-30.) A later search of the room revealed a cell phone
containing pictures of the little girl’s genitalia, as well as pictures of her with Petitioner’s
penis in her mouth. (Id. at 239, 271-72.)

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When Petitioner was arrested, police found that he had a list of names he had
written. On this list was the little girl’s name, as well as many others. Police later learned
of other children who disclosed that Petitioner had sexually abused them. Many of those
names were also on Petitioner’s list. In one of Petitioner’s interviews with police, a
detective used that list to question Petitioner about other potential victims. (Id. at 273.)
The night of Petitioner’s arrest, he made several incriminating statements to the
investigating detective after receiving Miranda warnings.
After Petitioner was appointed counsel, he requested another interview with the
detective, who told him she could not talk to him because he had a lawyer. The detective
later came back to interview Petitioner because Petitioner wrote a note requesting to
speak to her without his lawyer. In this second interview, Petitioner made more
incriminating statements, again after Miranda warnings were given. (State’s Lodging A-1
at 65-68.)
Petitioner pleaded 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 at 77-82; State’s Lodging A-2 at 1.) In exchange for the guilty plea,
the State dismissed several additional counts involving yet more child victims. (Id.) The
State also agreed not to seek a fixed life sentence, and it ultimately recommended a
unified life sentence with 30 years fixed. (State’s Lodging A-2 at 61.) The district court
sentenced Petitioner to life imprisonment without the possibility of parole on each lewd

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conduct count and to 10 years fixed for possession of sexually exploitative material.
(State’s Lodging A-1 at 98-100.) On direct appeal, Petitioner argued that his sentences
were excessive under state law. 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 postconviction 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, postconviction 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 at 6.) After the court granted the State’s motion
and ordered the 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

MEMORANDUM DECISION AND ORDER - 4

wide array of federal claims arising out of the state criminal process, including: (1) a
violation of his right, as a foreign national, to consular access after his arrest under the
Vienna Convention on Consular Relations; (2) a violation of the Eighth Amendment’s
prohibition on excessive bail, which allegedly resulted in Petitioner’s 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 counsel’s
alleged failure to investigate and argue (a) search and seizure issues, (b) issues related to
Petitioner’s confession, (c) Petitioner’s inability to access the law library in the county
jail, as well as (d) counsel’s allegedly deficient advice about the plea agreement; (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. 11 at 1-26.)
Respondent filed a Motion for Summary Dismissal, arguing that Petitioner failed
to properly exhaust his claims in the state courts, and because it was now too late to do so,
the claims had to be dismissed as procedurally defaulted. (Dkt. 10.) The Court determined
that all of Petitioner’s claims were procedurally defaulted and conditionally granted
Respondent’s motion, but allowed the parties to submit supplemental briefing on whether
cause and prejudice excuses the default under either Maples v. Thomas or Martinez v.
Ryan.

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DISCUSSION
1.

Standard of Law Governing Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily

dismiss a petition for writ of habeas corpus or claims contained in the petition when “it
plainly appears from the face of the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court.” In such case, the Court construes the facts in a
light most favorable to the petitioner. It is appropriate for the Court to take judicial notice
of court dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney,
451 F.3d 550, 551 n.1 (9th Cir. 2006). Therefore, the Court takes judicial notice of the
state court records lodged by Respondent on July 7, 2012, July 12, 2012, November 26,
2012, and January 29, 2013. (See Dkt. 8, 11, 19, 26.)
2.

Standard of Law for Procedural Default
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 that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.

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Id. at 847.
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Procedurally defaulted claims include
those within the following circumstances: (1) when a petitioner has completely failed to
raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim,
but has failed to fully and fairly present it as a federal claim to the Idaho courts, as
discussed directly above; or (3) when the Idaho courts have rejected a claim on an
independent and adequate state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32
(2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
If a claim is procedurally defaulted, a federal court cannot hear the merits of that
claim unless the petitioner meets one of two exceptions: (1) a showing of adequate legal
cause for the default and prejudice arising from the default; or (2) a showing that a
miscarriage of justice will occur if the claim is not heard, meaning that the state court
proceedings have probably resulted in the conviction of someone who is actually
innocent. See Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478,
488 (1986). Because Petitioner does not contend that he is actually innocent, the Court
will address only cause and prejudice in this Order. (See Motion to Proceed, Dkt. 30.)
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate

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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,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982). This cause
cause and prejudice test was clarified in Coleman, 501 U.S. at 745, as a basis for excusing
procedural default.
3.

Abandonment by Postconviction Counsel under Maples v. Thomas
A.

Standard of Law

Until relatively recently, the Supreme Court had long held that a criminal
defendant generally bears the risk of error by postconviction counsel, 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, 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 counsel cannot excuse the
petitioner’s failure to raise a claim properly in state court. 501 U.S. at 753 (“We reiterate
that counsel’s ineffectiveness will constitute cause only if it is an independent

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constitutional violation.”). This general rule is based on the principle that the
postconviction attorney is the agent of the petitioner. See Towery v. Ryan, 67. F.3d 933,
941 (9th Cir. 2012) (“A federal habeas petitioner—who as such does not have a Sixth
Amendment right to counsel—is ordinarily bound by his attorney’s negligence, because
the attorney and the client have an agency relationship under which the principal is bound
by the actions of the agent.”).
However, twenty years later, the Supreme Court held that complete abandonment
of a petitioner by a postconviction attorney—as opposed to the ineffective assistance of
that attorney—can constitute cause for excusing the procedural default of habeas claims.
Maples v. Thomas, 132 S. Ct. 912, 924 (2012). In Maples, the attorneys representing the
petitioner on postconviction review—out-of-state attorneys from a large law firm—left
the firm while the postconviction petition was still pending in state court and took new
jobs that precluded their representation of the petitioner. They did not notify Maples, take
steps to procure the assistance of other attorneys to represent him, or move to withdraw as
counsel of record. Id. at 916-17.
When the state court denied Maples’s postconviction petition, the order was sent to
the law firm, which returned the order to the court as undeliverable. Local counsel, who
had helped the out-of-state attorneys obtain pro hac vice admission, took no action on the
order, assuming that the out-of-state attorneys were handling the matter. Thus, the
deadline to appeal the denial of the state postconviction petition came and went, without

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the petitioner having any idea that he could no longer rely on his attorneys to file that
appeal.
The Maples Court held that the Coleman rule—that an attorney’s errors during
postconviction proceedings are attributable to the client under agency principles—does
not apply when the petitioner’s postconviction attorneys have effectively severed the
attorney-client relationship without notice to the client. Id. at 922-23. Although it held the
attorneys’ abandonment of Maples constituted cause for excusing the procedural default,
the Court did not disturb the requirement that the petitioner also show prejudice stemming
from the default. Id. at 927-28 (remanding for a prejudice determination).
B.

Application of Maples to Petitioner’s Procedural Default

A petitioner seeking to use Maples to excuse the procedural default of an
underlying habeas claim must make a prima facie showing of a severance of the attorneyclient relationship. Such a severance occurs if postconviction counsel abandons the
petitioner without notice to the client or permission by the court to withdraw as counsel of
record. See Maples, 132 S. Ct. at 922-23; Moormann v. Schriro, 672 F.3d 644, 647 (9th
Cir. 2012); Mackey v. Hoffman, 682 F.3d 1247, 1253 (9th Cir. 2012). A serious breach of
loyalty may also sever the attorney-client relationship, but a mere “failure to raise a
colorable habeas claim” does not “amount to a serious breach of loyalty that severs the
attorney-client relationship. Towery, 673 F.3d at 942.
Here, Petitioner has failed to make a prima facie showing of a severance of the

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attorney-client relationship. Although postconviction counsel had minimal contact with
Petitioner and did not file a response to the State’s motion to dismiss Petitioner’s state
postconviction petition, he did appear at the hearing on Petitioner’s behalf and stated his
reasons for not responding. Failing to move the case forward for two years, not
responding in writing to a motion to dismiss, and having poor communication with
Petitioner “may be a claim of serious negligence, but it is not ‘abandonment.’” Moorman,
672 F.3d at 648. Further, Petitioner has not established that postconviction counsel
committed a breach of loyalty so serious that it can be considered termination of the
agency relationship. For these reasons, Maples does not apply to excuse the procedural
default of Petitioner’s habeas claims.
4.

Ineffective Assistance of Postconviction Counsel under Martinez
The Court’s conclusion that Petitioner was not abandoned by his postconviction

attorney does not end the cause and prejudice inquiry. Petitioner also argues that his
postconviction counsel was ineffective in failing to investigate his claims of ineffective
assistance of counsel at trial and on direct appeal.
A.

Standard of Law

Again, the general rule from Coleman is that ineffective assistance of
postconviction counsel cannot constitute cause to excuse a procedural default. Coleman
left for another day the question of whether a limited exception may exist when a postconviction proceeding represents the first opportunity under state law for a convicted state

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defendant to litigate claims of ineffective assistance of trial counsel. 501 U.S. at 755. In
2012, after issuance of the Maples v. Thomas decision, the Supreme Court answered that
question and recognized another “narrow exception” to the Coleman rule, holding 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.
Martinez established a limited exception to the Coleman rule and held that
inadequate assistance of postconviction review (PCR) counsel or lack of counsel “at
initial-review collateral review proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.”1 132 S. Ct. at 1315. In
Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir. 2013), the Ninth Circuit extended
Martinez, holding that it can apply to excuse the procedural default not only of claims of
ineffective assistance of trial counsel (IATC), but also ineffective assistance of appellate
counsel (IAAC).
The Martinez exception2 applies only to the ineffectiveness of PCR counsel in the

1

Respondent asserts that Petitioner cannot benefit from Martinez because Petitioner’s argument
that postconviction counsel was ineffective “is itself procedurally defaulted.” (Response to Petitioner’s
Motion to Proceed, Dkt. 31, at 3.) However, the Court has already rejected the argument that a Martinez
“cause” argument based on ineffective assistance of postconviction counsel must itself be properly
exhausted. (Dkt. 28 at 8 n.2.)
2

Martinez applies only if the underlying ineffective assistance of counsel claim is exhausted (no
further avenue of state court relief is available) and procedurally defaulted (an adequate and independent
state procedural ground for the default exists). If the new claim is unexhausted and not procedurally
defaulted, then the petitioner may be able to return to state court to assert the claim under the stay-andabey procedure. See Rhines v. Weber, 544 U.S. 269 (2005).

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initial postconviction review proceeding as potential cause in the cause and prejudice
analysis. It “does not extend to attorney errors in any proceeding beyond the first occasion
the State allows a prisoner to raise a claim of ineffective assistance at trial.” Id. at 1320.
Rather, the Martinez Court was singularly concerned that, if ineffective assistance of trial
counsel claims were not brought in the collateral proceeding which provided the first
occasion to raise such claims, the effect was that the claims could not be brought at all.
See 132 S. Ct. at 1316. Therefore, a petitioner may not use as cause attorney error that
occurred in “appeals from initial-review collateral proceedings, second or successive
collateral proceedings, and petitions for discretionary review in a State’s appellate
courts.” 132 S. Ct. at 1320.
In Trevino v. Thaler, the United States Supreme Court described the Martinez test
as consisting of four requirements or prongs:
We consequently read Coleman as containing an
exception, allowing a federal habeas court to find “cause,”
thereby excusing a defendant’s procedural default, where (1)
the claim of “ineffective assistance of trial counsel” was a
“substantial” claim; (2) the “cause” consisted of there being
“no counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to
the “ineffective-assistance-of-trial-counsel claim”; and (4)
state law requires that an “ineffective assistance of trial
counsel [claim] . . . be raised in an initial-review collateral
proceeding.”
133 S. Ct. 1911, 1918 (2013) (citing Martinez, 132 S. Ct. at 1318-19, 1320-21)
(alterations in original).
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Thus, as a necessary first prong for the Martinez exception to apply, a petitioner
must bring forward some facts demonstrating that his ineffective assistance of counsel
(IAC) claim is substantial. The United States Supreme Court has defined “substantial” as
a claim that “has some merit.” Martinez, 132 S. Ct. at 1318 (comparing the standard for
certificates of appealability from Miller-El v. Cockrell, 537 U.S. 322 (2003)). Stated
inversely, a claim is “insubstantial” if “it does not have any merit or . . . is wholly without
factual support.” Id. at 1319.
Determining whether an IAC claim is substantial requires a federal district court to
examine the claim under the standards of 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
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
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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 the choice of which evidence to present or which
arguments to make, “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 particular theory or issue in the case 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.
Id. at 690-91.
If a petitioner shows that counsel’s performance was deficient, the next step is the

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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.” Id. 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,
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.
These standards from Strickland for determining deficient performance and
prejudice, are, of course, the standards for an eventual review of the merits of the
underlying IAC claim. The first Martinez prong is not the same as a merits review; rather,
it is more akin to a preliminary review of a Strickland claim for purposes of determining
whether a certificate of appealability should issue. See Martinez, 132 S.Ct. at 1318-19.
Therefore, a court may conclude that a claim is substantial when a petitioner has shown
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that “resolution” of the merits of the Strickland claim would be “debatable amongst
jurists of reason” or that the issues presented are “adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336 (internal quotation marks omitted). Thus, the
first prong of Martinez requires the district court to review but not determine whether trial
counsel’s acts or omissions resulted in deficient performance and in a reasonable
probability of prejudice, and to determine only whether resolution of the merits of the
claim would be debatable among jurists of reason and whether the issues are deserving
enough to encourage further pursuit of them.
A second necessary prong of Martinez is a showing that the petitioner had no
counsel on initial PCR review, or that PCR counsel was “ineffective under the standards
of Strickland.” 132 S. Ct. at 1318; see Trevino, 133 S. Ct. at 1918. “Ineffectiveness” is a
term defined by Strickland as deficient performance and a reasonable probability of
prejudice caused by the deficient performance. 466 U.S. at 694, 700.
As to deficient performance, not just any error or omission of PCR counsel will be
deemed “deficient performance” that will satisfy Martinez; if the PCR “attorney in the
initial-review collateral proceeding did not perform below constitutional standards,” the
PCR attorney’s performance does not constitute “cause.” 132 S. Ct. at 1319. The
Strickland standards for analyzing deficient performance set forth above apply with equal
force to PCR counsel in the context of a Martinez argument.
As to prejudice, in Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729, at *6 (9th

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Cir. 2013) (en banc) (plurality opinion), a plurality of judges concluded that “[a] prisoner
need not show actual prejudice resulting from his PCR counsel’s deficient performance,
over and above his required showing that the trial-counsel IAC claim be ‘substantial’
under the first Martinez requirement.” Those judges reasoned:
If a prisoner who had PCR counsel were required to
show prejudice, in the ordinary Strickland sense, resulting
from his PCR counsel’s deficient performance in order to
satisfy the second Martinez requirement, the prisoner would
have to show, as a condition for excusing his procedural
default of a claim, that he would succeed on the merits of that
same claim. But if a prisoner were required to show that the
defaulted trial-counsel IAC claims fully satisfied Strickland in
order to satisfy the second Martinez requirement, this would
render superfluous the first Martinez requirement of showing
that the underlying Strickland claims were “substantial”—that
is, that they merely had “some merit.” See Martinez, 132 S.Ct.
at 1318-19.
Id.
B.

Application of Martinez to Petitioner’s Procedural Default

Because the Martinez exception applies only to ineffective assistance of counsel
claims, the only defaulted claims to which it might apply are Claims 5 (ineffective
assistance of trial counsel) and 7 (ineffective assistance of direct appeal counsel). After a
thorough review of the record, the Court concludes that Petitioner is unable to show that
Claim 5 or 7 is substantial.
i.

Claim 5: IATC

Petitioner identifies various ways in which his trial counsel was allegedly

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ineffective; he claims that trial counsel failed to (a) competently address the issue of
search and seizure and thereby obtain suppression of evidence; (b) competently address
his confessions to law enforcement and thereby obtain suppression of those confessions;
(c) fight for Petitioner’s right to access a law library while in jail; and (d) explain the plea
agreement sufficiently, rendering Petitioner’s guilty plea involuntary and unknowing.
Petitioner’s first three claims can be disposed of without elaborate discussion. The
record shows that trial counsel moved to suppress the panties and cell phone found in the
room used by Petitioner, as well as the list of names found on Petitioner himself. He
argued several grounds to challenge the admission of that evidence, but the trial court
denied the motion. (State’s Lodging A-4 at 326-335.) The court also denied, after
extensive argument, counsel’s motion to exclude Petitioner’s two confessions. (Id. at 290310; State’s Lodging A-1 at 69-72.) That the trial court did not accept counsel’s
arguments does not mean that counsel performed deficiently. Further, Petitioner has not
alleged any facts supporting a conclusion that he was prejudiced by his inability to access
legal materials before and during trial. Thus, these three IATC claims are insubstantial.
Petitioner’s claims regarding his counsel’s advice and actions with respect to the
plea agreement warrant further discussion. To show prejudice based on deficient
performance of counsel in a case where the defendant pleaded guilty, “the defendant must
show that there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.

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52, 59 (1985).
Petitioner argues that trial counsel was ineffective because he “convinced the
petitioner to change his plea by making promises that were outside his authority, by
failing to disclose every detail of the plea agreement, . . . by never fully and correctly
explaining the full ramifications of what a guilty plea would entail,” and by not “lock[ing]
in” the prosecutor’s recommended sentence by entering into a binding plea agreement.
(Pet., Dkt. 1-1, at 10.) Petitioner states that counsel promised him that the judge would
follow the prosecutor’s recommendation as to sentencing and that he “would not have
pleaded guilty if properly informed that the penalty of doing so would be exactly the same
as if he exercized [sic] his right to go to trial and possibly receive a more favorable
outcome.” (Motion to Proceed, Dkt. 30 at 4.)
The Idaho criminal justice system allows for several types of plea agreements. In
exchange for a guilty plea, the prosecutor may “(A) move for dismissal of other charges;
or (B) make a recommendation, or agree not to oppose the defendant’s request, for a
particular sentence, with the understanding that such recommendation or request shall not
be binding upon the court; or (C) agree that a specific sentence is the appropriate
disposition of the case; or (D) agree to any other disposition of the case.” Idaho Crim. R.
11(f)(1). A plea agreement under Rule 11(f)(1)(C), where the prosecutor agrees to a
specific sentence, is binding on the sentencing court to the extent that if the court rejects
the plea agreement, the defendant has a right to withdraw his guilty plea. Idaho R. Crim.

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P. 11(f)(4). However, a prosecutor does not have to agree to a specific sentence. Instead,
he or she may agree to make a particular recommendation of sentence, or promise not to
recommend a particular sentence, and leave the actual sentencing decision up to the trial
judge. See Idaho Crim. R. 11(f)(1)(B). In such a case, the defendant has no right to
withdraw his guilty plea even if the judge decides not to accept the recommended
sentence.
This case deals with the latter type of plea agreement. The prosecutor agreed not to
recommend fixed life, and she stood by that promise, recommending a unified sentence of
life with 30 years fixed. The sentencing court, however, was not bound by that
recommendation. Petitioner argues that his counsel was ineffective in failing to enter into
a binding plea agreement pursuant to Rule 11(f)(1)(C), which would have allowed him a
chance to withdraw his plea if the judge rejected the agreed-upon sentence.
Petitioner’s IATC claim with respect to the non-binding nature of his plea
agreement is not substantial because it is merely speculative. No prosecutor is required to
enter into a binding plea agreement, and there is no evidence showing that the prosecutor
either offered or would have accepted a specific sentence that would be binding on the
court, especially given that such an agreement permits a defendant to withdraw his plea if
the judge refuses to impose the sentence agreed upon and given the alarming number of
incidents for which Petitioner was charged. Further, Petitioner has presented no evidence
that he would have preferred or fared better after a jury trial—where he would be facing

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not four, but twelve charges and, if found guilty, would have been subjected to the
possibility of multiple fixed life sentences in any event. There is no doubt that any later
relief Petitioner might seek—such as a commutation of sentence—would be much less
likely if Petitioner had been convicted of twelve counts instead of only four. Thus,
Petitioner cannot show that (1) trial counsel performed deficiently in not obtaining a
binding plea agreement, or (2) that Petitioner was prejudiced by the lack of such an
agreement.
As to counsel’s alleged promises that the judge would not exceed the
recommended sentence and alleged failure to inform Petitioner that he could receive life
in prison without the possibility of parole, the transcript of Petitioner’s plea colloquy
shows unequivocally that Petitioner knew full well the potential consequences of his plea.
The plea agreement allowed the prosecutor to use the dismissed counts in aggravation at
sentencing, and the prosecutor and defense counsel confirmed that specific agreement in
open court, with Petitioner present. (State’s Lodging A-2 at 2.) Before accepting
Petitioner’s plea, the court engaged him in the following discussion:
The Court:

Let me go through some things with you, Mr.
Ngabirano, before I take your pleas here today. What’s
binding on the court would be the dismissal of Counts
2, 3, 5, 6, 7, 8, 9, and 12. If those are dismissed, they
are dismissed. The state has indicated that they may
bring in, potentially, victims to testify before the court
at a sentencing on those. But as far as those charges
are concerned, they are dismissed, and you would no
longer be held accountable for those. Do you
understand that?

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The Defendant:

Yes, sir.

....
The Court:

Now, the state has made a sentencing promise here that
they would not seek a fixed life sentence in this case.
Do you remember hearing that?

The Defendant:

Yes.

The Court:

Now the judge is not—this court is not bound by that.
Do you understand that?

The Defendant:

I know.

The Court:

In this case, the court could sentence you to prison for
the rest of your natural life. Do you understand that?

The Defendant:

Yes.

The Court:

Even if the state says they’re not recommending that,
the court has that authority still. Do you understand
that?

The Defendant:

Yes.

The Court:

Did you have any questions of your lawyer at this
time?

The Defendant:

No.

The Court:

Mr. Ngabirano, this is an important decision in your
life. Do you need more time to think about this and to
confer with family or your attorney, for that matter?

The Defendant:

No.

(Id. at 4-6) (emphasis added).
As this colloquy reveals, Petitioner was under no illusion that his plea agreement
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provided for a specific sentence or that the dismissed conduct could not be used by the
prosecution at sentencing. He did not plead guilty in exchange for anything like that.
Rather, he pleaded guilty in exchange for the prosecution’s agreement not to recommend
fixed life and to dismiss the many other charges against him. Petitioner got precisely what
he bargained for. The judge specifically informed Petitioner that, although the other
counts would be dismissed, the state was allowed to introduce evidence of that conduct
for sentencing purposes, and that the judge had the authority to disregard the prosecutor’s
recommendation and sentence him to life without the possibility of parole.
Petitioner cannot show that he would not have pleaded guilty if counsel had
advised him any differently than he did, because Petitioner went into the sentencing
proceedings with his eyes wide open and he gained a substantial advantage by the
dismissal of eight other charges. After the trial court denied the motions to suppress the
evidence seized from one of the victim’s homes and the list of names seized from
Petitioner’s person, the guilty plea may well have been Petitioner’s best option.
It is easy to look back, in hindsight, and conclude that Petitioner would not have
pleaded guilty if he had known his sentence “would be” fixed life. (Motion to Proceed at
4.) What matters is that Petitioner did know, because of the judge’s statements to him,
that he might receive a fixed life sentence, and he chose to plead guilty anyway in the
reasonable hope that the judge would choose a lesser sentence. This was a rational
decision, and Petitioner made it knowing all the relevant information. That Petitioner

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ultimately received the harshest sentence possible does not render his counsel ineffective
under the Sixth Amendment.
For these reasons, Petitioner does not have a substantial claim that he was
prejudiced by any error on the part of trial counsel, and Martinez does not excuse the
default of his IATC claims.
ii.

Claim 7: IAAC

Plaintiff also claims that his counsel on direct appeal performed deficiently by
failing to “inform the petitioner of his right to file a pro se supplemental brief, or give him
notice and opportunity to do so. The result is that the appellate court was never presented
with certain additional reviewable errors contained within this petition which may result
in their being procedurally barred.” (Pet. at 24.)
The Strickland principles apply to IAAC claims just as they do to IATC claims. To
show prejudice on appeal, a petitioner must show that his appellate attorney failed to raise
an issue obvious from the trial record that probably would have resulted in reversal. See
Miller v. Keeney, 882 F.2d 1428, 1434 n.9 (9th Cir. 1989). If a petitioner does not show
that an attorney’s act or omission would have resulted in reversal, then he cannot satisfy
either prong of Strickland: appellate counsel was not ineffective for failing to raise such
an issue, and petitioner suffered no prejudice as a result of that failure. Id. at 1435.
The right to effective legal assistance does not mean that appellate counsel must
appeal every question of law or raise every nonfrivolous issue requested by a criminal

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defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). “[N]othing in the Constitution”
requires “judges to second-guess reasonable professional judgments and impose on
appointed counsel a duty to raise every ‘colorable’ claim suggested by a client.” Id. at
754. “Experienced advocates since time beyond memory have emphasized the importance
of winnowing out weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues.” Id. at 751-52.
Petitioner has not shown that anything he might have written in a supplemental
appellate brief would probably have resulted in reversal. Appellate counsel raised
Petitioner’s strongest argument—that three sentences of fixed life, plus 10 years fixed on
the child pornography count, were excessive. Appellate counsel reasonably determined
that the excessive sentencing claim was the best chance for Petitioner to obtain relief, and
the decision not to raise weaker claims does not establish that Petitioner’s appellate
counsel was ineffective.
Petitioner’s IAAC claim—like his IATC claim—is not substantial, and therefore
Martinez does not apply to excuse the procedural default of this claim.
CONCLUSION
Having reviewed all of the submissions by both parties, the relevant case law, and
the entire record before it, the Court concludes that Petitioner is not excused from the
procedural default of any of the claims in his Petition. Therefore, the Petition will be
dismissed with prejudice.

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ORDER
IT IS ORDERED:
1.

Petitioner’s Motion to Proceed with Habeas Petition (Dkt. 30) is DENIED.

2.

The Court’s conditional grant (Dkt. 28) of Respondent’s Motion for
Summary Dismissal (Dkt. 10) is hereby CONFIRMED, and this entire
action is DISMISSED with prejudice.

3.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner
files a timely notice of appeal, the Clerk of Court shall forward a copy of
the notice of appeal, together with this Order, to the United States Court of
Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.

DATED: February 7, 2014

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

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