Zivkovic v. Reinke

Filing 25

MEMORANDUM DECISION AND ORDER granting 20 MOTION for Extension of Time to File Answer; deeming timely 21 Response to Habeas Petition; denying and dismissing with prejudice 3 Petition for Writ of Habeas Corpus. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID ZIVKOVIC,
Case No. 1:11-cv-00624-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
BRENT REINKE, Idaho Department of
Correction,
Respondent.

Pending before the Court is Petitioner David Zivkovic’s Petition for Writ of
Habeas Corpus (Dkt. 3). Respondent has filed an Answer and Brief in Support of
Dismissal (Dkt. 21).1 Petitioner has filed a Reply and Objection to Respondent’s Answer
(Dkt. 23), and Respondent has filed a Sur-reply (Dkt. 24). The Court takes judicial notice
of the records from Petitioner’s state court proceedings, lodged by Respondent on June
28, 2012, and May 13, 2013 (Dkt. 12 & 22). See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
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 record and that the decisional process would not be significantly aided by oral

1

Respondent’s Motion for Extension of Time to File Answer and Brief in Support of Dismissal
(Dkt. 20) will be granted, and the Answer is deemed timely.

MEMORANDUM DECISION AND ORDER - 1

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 Petition and dismissing this case.
BACKGROUND
On April 8, 1992, the Idaho Legislature enacted Idaho Code § 18-3316, which
criminalizes the possession of a firearm by any “person who previously has been
convicted of a felony.” In July of 1995, Petitioner was convicted in Utah of felony theft.
(State’s Lodging A-1 at 3.) He later pleaded guilty to another Utah crime, that of being a
felon in possession of a firearm, in 2001. Petitioner served two years in prison for that
conviction and, upon his release on parole, he moved to Idaho. (Id.) Petitioner was
informed by his parole officer that he was prohibited from possessing a firearm in Idaho
because he had been previously convicted of a felony. (Id.)
In 2007, Petitioner pleaded guilty in state district court to one felony count of
illegal possession of a firearm under Idaho Code § 18-3316—the conviction at issue in
the instant habeas Petition—along with various misdemeanors. (Id. at 2.) Sentencing was
held in abeyance pending Petitioner’s completion of the Oneida County DUI/Drug Court
Program. When Petitioner was later terminated from the program, the state court
sentenced him to five years in prison with the first three years fixed on the felony gun
charge. (Id.; State’s Lodging B-6 at 1.)
Petitioner did not file a direct appeal, having waived his right to appeal as part of
the drug court diversion program, and he instead chose to submit a petition for
MEMORANDUM DECISION AND ORDER - 2

postconviction relief. (Id. at 2.) In that petition, Petitioner claimed that Idaho Code §
18-3316 violates the Ex Post Facto and Bill of Attainder clauses of the United States
Constitution, and that his trial counsel was ineffective in not raising those issues. (Id. at
3.) The district court noted that Petitioner should have raised his claims on direct appeal,
but it nonetheless denied relief on the merits, finding no ex post facto or bill of attainder
violations, and thus no ineffective assistance of counsel. (Id. at 35.) On appeal, the Idaho
Court of Appeals concluded that because the ex post facto and bill of attainder arguments
were without merit, Petitioner’s counsel was not ineffective in failing to raise those
arguments during the criminal proceedings. (State’s Lodging B-6 at 3-7.) The Idaho
Supreme Court declined to review the case, and the United States Supreme Court later
denied certiorari. (State’s Lodging B-9, B-11.)
Petitioner next filed a Petition for Writ of Habeas Corpus in this Court, which, in
an Initial Review Order, Chief Magistrate Judge Candy W. Dale construed as alleging (1)
that Idaho Code § 18-3316 is unconstitutional because it is a bill of attainder and an ex
post facto law, and (2) that the State’s “tandem use of [Idaho Code §] 18-3316 with
19-3807 [allowing for the confiscation of illegal firearms] constitutes double jeopardy.”
(Dkt. 8 at 2) (quoting Dkt. 3 at 5) (first alteration in original).
Respondent filed a Motion for Summary Dismissal, arguing that Petitioner failed
to properly exhaust his claims in the state courts. (Dkt. 11-1 at 5.) The Court agreed with
Respondent that Claim 2—Petitioner’s double jeopardy claim—was procedurally
defaulted and that cause and prejudice did not exist to excuse the default. (Dkt. 18 at 3,
MEMORANDUM DECISION AND ORDER - 3

5.) However, the Court held that Claim 1—Petitioner’s bill of attainder and ex post facto
claim—was not procedurally defaulted. (Id. at 5-6.) The Court now analyzes Claim 1, the
only remaining claim, on the merits.
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.

28 U.S.C. § 2254(d).

MEMORANDUM DECISION AND ORDER - 4

When a party contests the state court’s legal conclusions, including 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.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

MEMORANDUM DECISION AND ORDER - 5

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). However,
circuit law may not be used “to refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that [the] 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.” The United States Supreme Court has admonished that 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).
The United States Court of Appeals for the Ninth Circuit has identified four types
of unreasonable factual determinations in state court proceedings: (1) when state courts
fail to make a finding of fact; (2) when state courts mistakenly make factual findings
under the wrong legal standard; (3) when “the fact-finding process itself is defective”; or
(4) when state courts “plainly misapprehend or misstate the record in making their
findings, and the misapprehension goes to a material factual issue that is central to
MEMORANDUM DECISION AND ORDER - 6

petitioner’s claim.” Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th Cir. 2004). If the state
court’s decision was based on an unreasonable determination of the facts, then the Court
is not limited by § 2254(d)(1), but proceeds to a de novo review of the petitioner’s claims,
which may include consideration of evidence outside the state court record. Maxwell v.
Roe, 628 F.3d 486, 494-95 (9th Cir. 2010).
2.

Petitioner Is Not Entitled to Relief on Claim 1
A.

Bill of Attainder

The United States Constitution prohibits bills of attainder. See U.S. Const. art. 1, §

9, cl. 3 & art. 1, § 10, cl. 1. The Supreme Court has explained that a bill of attainder is a
law that legislatively determines guilt and inflicts punishment upon an identifiable
individual or group of individuals without provision of the protections of a judicial trial.
United States v. Brown, 381 U.S. 437, 448-50 (1965) (holding that a law prohibiting
members of the Communist Party from serving as officers or employees of labor unions
was unconstitutional as a bill of attainder). There are three requirements for a bill of
attainder: (1) specification of the affected person or persons; (2) punishment; and (3) lack
of a judicial trial. Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841,
847 (1984).
The Idaho Court of Appeals correctly identified Brown as controlling United
States Supreme Court precedent with respect to bills of attainder and rejected Petitioner’s
claim that Idaho Code § 18-3316 is unconstitutional:

MEMORANDUM DECISION AND ORDER - 7

A bill of attainder is any legislation that targets an easily
ascertainable group, determines guilt, and inflicts punishment
without the protections of a judicial trial. United States v.
Brown, 381 U.S. 437, 448–49, 85 S. Ct. 1707, 1714-15, 14 L.
Ed. 2d 484, 491-92 (1965); State v. Lovelace, 140 Idaho 53,
71, 90 P.3d 278, 296 (2003), on reh’g 140 Idaho 73, 90 P.3d
298 (2004); State v. Gee, 107 Idaho 991, 993, 695 P.2d 376,
378 (1985). Three requirements must be met to establish a
violation of the Bill of Attainder Clause— specification of the
affected persons, punishment, and lack of judicial trial. United
States v. Munsterman, 177 F.3d 1139, 1141 (9th Cir. 1999).
Idaho Code Section 18-3316(1), the unlawful
possession of a firearm by a felon statute, provides, in
relevant part:
A person who previously has been convicted of
a felony who purchases, owns, possesses, or has
under his custody or control any firearm shall be
guilty of a felony and shall be imprisoned in the
state prison for a period of time not to exceed
five (5) years and by a fine not to exceed five
thousand dollars ($5,000).
Whether this statute constitutes a bill of attainder has never
been addressed in Idaho, although other states have analyzed
their own similar felon in unlawful possession of firearm
statutes and have held that such statutes do not constitute bills
of attainder. See, e.g., State v. Swartz, 601 N.W.2d 348, 35152 (Iowa 1999); State v. Myrick, 436 A.2d 379, 383-84 (Me.
1981); State v. Whitaker, 364 N.C. 404, 700 S.E.2d 215, 220
(2010).
The first indicator of a bill of attainder is the specificity
of the persons who are affected by the legislation. Langford v.
Day, 134 F.3d 1381, 1382-83 (9th Cir. 1998). Idaho Code
Section 18-3316 sets forth a rule generally applicable to all
persons having a certain characteristic— being convicted of a
felony. Any person who has been convicted of a felony in
Idaho is subject to I.C. § 18-3316 and prohibited from
possessing a firearm. I.C. § 18-3316(1). Therefore, the group
MEMORANDUM DECISION AND ORDER - 8

of individuals affected by I.C. § 18-3316 is specific and
ascertainable.
However, the second characteristic of a bill of
attainder—that it imposes punishment on the specified group
or individual—is not present here. The prohibition against
bills of attainder relates only to penal laws which inflict a
disability for the purpose of punishment. United States v.
Donofrio, 450 F.2d 1054, 1056 (1971). The regulation of guns
in the hands of previously convicted felons is designed to
accomplish a nonpunitive public purpose—to keep firearms
out of the hands of persons who, having been convicted of
felonies, may have a greater likelihood than other citizens to
misuse firearms. Munsterman, 177 F.3d at 1142. When the
disability is designed to accomplish some legitimate
government purpose other than punishment, it does not
constitute a bill of attainder. Donofrio, 450 F.2d at 1056.
Here, I.C. § 18-3316 accomplishes the legitimate government
purpose of keeping firearms out of the hands of felons who
are more likely than others to misuse them. [Petitioner] was
not being punished for his membership in a particular group
but, rather, for his violation of a regulation validly imposed
upon that group through the legislative process. See Swartz,
601 N.W.2d at 351.
Finally, a bill of attainder imposes punishment on the
specified group without the protection of a judicial trial.
Langford, 134 F.3d at 1382-83; Lovelace, 140 Idaho 53, 71,
90 P.3d 278, 296. Statutes, which set forth a generally
applicable rule and leave to courts and juries the job of
deciding what persons have committed the specified acts, do
not constitute bills of attainder. United States v. Brown, 381
U.S. 437, 449-50, 85 S. Ct. 1707, 1715-16, 14 L. Ed. 2d 484,
492-93 (1965). Whether the trial is before a judge or a jury,
the defendant is guaranteed the protections of the judicial
process prior to a finding that he or she is guilty of unlawful
possession of a firearm under I.C. § 18-3316. [Petitioner’s]
conviction in the present case was not punishment imposed
without judicial process. He was given an opportunity to
present his case to a jury, but voluntarily chose to enter a
guilty plea and enter the drug court program. In this case,
MEMORANDUM DECISION AND ORDER - 9

[Petitioner] received all of the judicial protections that could
be afforded him.
(State’s Lodging B-6 at 4-6.) This decision was not contrary to or an unreasonable
application of Brown or any other Supreme Court case. The Supreme Court has never
held any felon-in-possession statute unconstitutional as a bill of attainder.
Petitioner relies on Cummings v. Missouri, 71 U.S. 277 (1866), in arguing that the
state court’s decision was unreasonable. Cummings involved provisions in the Missouri
constitution that required a specific oath by anyone holding “any office of honor, trust, or
profit under its authority, or of being an officer, councilman, director, or trustee, or other
manager of any corporation, public or private, . . . or of acting as a professor or teacher in
any educational institution, or in any common or other school, or of holding any real
estate or other property in trust for the use of any church, religious society, or
congregation.” Id. at 317 (internal quotation marks omitted). No one could hold such a
position without taking an oath that he had never, inter alia, been in armed hostility to the
United States or manifested adherence to the cause of the enemies of the United
States—an oath aimed primarily at former members of the Confederacy. Cummings was a
priest who had failed to take the required oath before preaching and teaching. Id. at 316.
The Cummings Court held that the “disabilities created by the constitution of
Missouri must be regarded as penalties” and declared the provision unconstitutional as a
bill of attainder; the provisions “presume[d] the guilt of the priests and clergymen, and
adjudge[d] the deprivation of their right to preach or teach unless the presumption be first

MEMORANDUM DECISION AND ORDER - 10

removed by their expurgatory oath—in other words, they assume[d] the guilt and
adjudge[d] the punishment conditionally.” Id. at 325.
Cummings is inapplicable to Petitioner’s case because, as the Idaho Court of
Appeals explained, the Idaho felon-in-possession statute does not legislatively determine
guilt or presume the guilt of those charged with violating it. It simply prohibits the
possession of firearms by felons—a “nonpunitive public purpose . . . to keep firearms out
of the hands of persons who, having been indicted for felonies, may have a somewhat
greater likelihood than other citizens to misuse firearms.” United States v. Munsterman,
177 F.3d 1139, 1142 (9th Cir. 1999). Nor does Idaho Code § 18-3316 withhold the
protections of a judicial trial. Every person charged with violating the statute has the right
to a fair trial in accordance with the United States Constitution. The Idaho Court of
Appeals reasonably determined that § 18-3316 is not a bill of attainder.
B.

Ex Post Facto Law

“Although the Latin phrase ‘ex post facto’ literally encompasses any law passed
‘after the fact,’ it has long been recognized . . . that the constitutional prohibition on ex
post facto laws applies only to penal statutes which disadvantage the offender affected by
them.” Collins v. Youngblood, 497 U.S. 37, 41 (1990). The ex post facto provisions of the
United States Constitution, art. 1, § 9, cl. 3 & art. 1, § 10, cl. 1, forbid Congress and the
States from passing (1) any law “that makes an action done before the passing of the law,
and which was innocent when done, criminal; and punishes such action”; (2) any law
“that aggravates a crime, or makes it greater than it was, when committed”; (3) any law
MEMORANDUM DECISION AND ORDER - 11

“that changes the punishment, and inflicts a greater punishment, than the law annexed to
the crime, when committed”; or (4) any law “that alters the legal rules of evidence, and
receives less, or different, testimony, than the law required at the time of the commission
of the offence, in order to convict the offender.” Id. at 42 (internal quotation marks,
citation, and emphasis omitted). To constitute an ex post facto violation, the challenged
law “must be retrospective, that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29
(1981) (emphasis added) (footnote omitted).
Petitioner challenges the state district court’s factual determination that “there is
no claim that possession of the [Zivkovic’s] firearm occurred prior to the enactment of the
statute prohibiting a felon from possessing a firearm.” (Dkt. 23 at 4) (quoting State’s
Lodging A-1 at 34) (alteration in original). The court of appeals similarly stated that
Petitioner’s “possession of the firearm occurred after the effective date” of Idaho Code
§ 18-3316. (State’s Lodging B-6 at 7.) Petitioner alleges that, on the contrary, he had
indeed owned and possessed the firearm since before the effective date of § 18-3316, and
Respondent does not refute this contention.
However, in the context in which the state courts made their respective statements
regarding the timing of Petitioner’s possession of the firearm, it is clear that they were
referring to the criminal possession of the firearm for which Petitioner was charged. That
possession did not begin until Petitioner became a felon in 1995, after the enactment of
the felon-in-possession statute in 1992. Petitioner was not charged for his pre-1992 lawful
MEMORANDUM DECISION AND ORDER - 12

conduct of possessing the firearm, but for his 2007 conduct of continuing to possess the
firearm after he had been convicted of a felony. The state court’s decision thus did not
rest on an unreasonable determination of the facts.
Nor was the decision of the Idaho Court of Appeals based on an unreasonable
application of the ex post facto jurisprudence of the Supreme Court. The state court
appropriately cited Collins v. Youngblood (State’s Lodging B-6 at 6) and went on to
determine that Idaho’s felon-in-possession statute was not an ex post facto law:
The Ex Post Facto Clause of the United States
Constitution prohibits a law which imposes a greater
punishment on a defendant than when he or she was convicted
of the underlying offense, makes a punishment for a crime
greater than it was when it was committed, or deprives a
defendant of a defense available at the time the act was
committed. United States v. George, 625 F.3d 1124, 1130 (9th
Cir. 2010). For a criminal law to be ex post facto, it must be
retrospective and disadvantage the offender affected by it. Id.
A law is retrospective if it changes the legal consequences of
acts completed before its effective date. Id. So long as the
actual crime for which a defendant is being sentenced
occurred after the effective date of the new statute, however,
there is no ex post facto violation. United States v. BacaValenzuela, 118 F.3d 1223, 1231 (8th Cir. 1997). In this case,
Zivkovic’s [criminal] possession of the firearm occurred after
the effective date of the “new” statute. Therefore, I.C. § 183316 did not operate as an ex post facto law.
(Id. at 7.)
Petitioner’s 2007 conduct of possessing a firearm even though he had been
convicted of a felony occurred after the effective date of the 1992 law prohibiting felons

MEMORANDUM DECISION AND ORDER - 13

from possessing firearms. Therefore, the Idaho Court of Appeals’ decision was
reasonable.
C.

Heller and McDonald

Petitioner also argues that the state courts “failed to apply controlling new law in
Petitioners [sic] proceedings.” (Dkt. 23 at 4) (capitalization omitted). He cites District of
Columbia v. Heller, 554 U.S. 570, 592 (2008), which held that the right to bear arms
under the Second Amendment is an individual right, and McDonald v. City of Chicago,
130 S. Ct. 3020, 3026 (2010), which held that the Second Amendment right to bear arms
identified in Heller applies to the States through the Due Process Clause of the Fourteenth
Amendment.
But the Supreme Court in Heller itself clarified that “nothing in our opinion should
be taken to cast doubt on longstanding prohibitions on the possession of firearms by
felons.” 554 U.S. at 626 (emphasis added). Such regulatory measures are “presumptively
lawful.” Id. at 627 n.26; see also United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir.
2010) (upholding, after Heller, convictions under the federal felon-in-possession statute
because “felons are categorically different from the individuals who have a fundamental
right to bear arms.”). The fact that “law-abiding, responsible citizens” have a fundamental
right under the Second Amendment “to use arms in defense of hearth and home,” Heller,
554 U.S. at 635, simply has no relevance to the constitutionality of prohibiting convicted
felons like Petitioner from possessing firearms under Idaho Code § 18-3316. Petitioner

MEMORANDUM DECISION AND ORDER - 14

has failed to establish that he is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(A).
CONCLUSION
Petitioner is not entitled to habeas relief on Claim 1, the only remaining claim in
the Petition, because the Idaho Court of Appeals’ decision rejecting Petitioner’s bill of
attainder and ex post facto claim was not contrary to or an unreasonable application of
clearly established federal law as determined by the Supreme Court of the United States,
nor was it based on an unreasonable determination of the facts. Therefore, the Court will
dismiss the Petition with prejudice.

ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Extension of Time (Dkt. 20) is GRANTED. The
Answer and Brief in Support of Dismissal (Dkt. 21) is deemed timely.

2.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED, 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

MEMORANDUM DECISION AND ORDER - 15

Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
DATED: December 31, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 16