Reed v. Wengler et al

Filing 22

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: The Petition for Writ of Habeas Corpus is DENIED, and this entire action is DISMISSED with prejudice. The Court will not grant a Certificate of Appealability in this case. 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

JONATHAN D. REED,
Case No. 1:12-cv-00080-BLW
Petitioner,
v.

MEMORANDUM DECISION AND
ORDER

TIMOTHY WENGLER, Warden, and
LAWRENCE G. WASDEN, Attorney
General,
Respondents.

Jonathan D. Reed (“Petitioner”), a person in the legal custody of the Idaho
Department of Correction, seeks a Writ of Habeas Corpus. (Dkt. 3.) Respondents
Timothy Wengler and Lawrence G. Wasden (“Respondent”) filed an Answer to the
Petition and a Brief in Support of Dismissal. (Dkt. 10.) Petitioner filed a Reply; and
Respondent, a Sur-Reply. (Dkts. 18, 19.) The Petition is now fully briefed. Having
reviewed the record, including the state court record in this matter, and having considered
the arguments of the parties, the Court concludes that oral argument is unnecessary.
Accordingly, the Court enters the following Order denying relief.
BACKGROUND
Petitioner alleges that, in 2007, he was a full-time student at Boise State
University. He was also going through a divorce and working full-time. Petitioner alleges

MEMORANDUM DECISION AND ORDER - 1

that, after his separation, he was in the process of moving, and he inadvertently neglected
to maintain his sex offender registration. He voluntarily turned himself in to authorities
for this offense. (Traverse Reply, pp. 1-2.)
Petitioner was charged with failure to register as a sex offender, and he was
represented by a series of attorney, the first being a public defender, Richard Toothman.
(State’s Lodging A-1.) Before the preliminary hearing, the prosecutor offered to
recommend a sentence of one year fixed with four years indeterminate if Petitioner would
plead guilty to that charge. (State’s Lodging B-3.) Petitioner alleges that Mr. Toothman
did not convey the offer to him. After the preliminary hearing, the prosecutor withdrew
the offer and amended the Information to include a persistent violator sentencing
enhancement. (State’s Lodgings B-1, B-2, A-1.)
Petitioner later pleaded guilty to both charges. (State’s Lodgings A-2, B-1, pp. 4,
30.) The state district court sentenced Petitioner to three years fixed, with 22 years
indeterminate, but retained jurisdiction for six months, to permit Petitioner to demonstrate
that he should be granted probation. (State’s Lodgings A-1, B-1, B-3.) At the end of the
six-month period, the Court relinquished jurisdiction and imposed the prison sentence.
(State’s Lodgings A-1, B-1.)
Petitioner filed a pro se petition for post-conviction relief, and the state district
court appointed counsel for Petitioner. (State’s Lodging B-1.) Among other claims,
Petitioner alleged that his trial counsel was ineffective for failing to inform him of the
original plea offer before it was withdrawn and before the Information was amended to
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include the persistent violator charge. (State’s Lodging B-1, pp. 4-9.)
At the post-conviction evidentiary hearing, Petitioner testified that, during his first
meeting with Mr. Toothman, Petitioner explained to Mr. Toothman that he wished to go
back to college. Mr. Toothman replied that many times the State would ask for probation
for a failure-to-register charge, and, sometimes, the court would dismiss the charge.
Petitioner then told Mr. Toothman, “Let’s try for one of those two options.” (State’s
Lodging B-2, pp. 20-21.) Petitioner stated that this explanation ended the conversation,
and that Mr. Toothman did not tell him that a plea offer had been made, or that the next
step was to go directly to the preliminary hearing. (Id., pp. 20-24.) Petitioner testified that
he had no other contact with Mr. Toothman other than this two-to-three-minute meeting
before the preliminary hearing. (Id., p.24.)
Petitioner testified that, after the preliminary hearing, his next public defender,
Eric Rolfsen, spoke to him only three times and informed him that the State had offered
one-plus-four years, but that the offer was no longer on the table because Petitioner had
decided to go through with the preliminary hearing. (State’s Lodging B-2, pp. 24-25, 36.)
Petitioner testified that he told Rolfsen he would like to agree to the offer, and Rolfsen
said that he would try to go to the prosecutor to see if they would put the offer back on the
table. (Id., pp. 25-26.)
In the post-conviction hearing, the state district court noticed that Petitioner’s
testimony at the hearing (that he first learned about the plea offer from his second
attorney, public defender Eric Rolfsen) appeared to differ from the facts alleged in the
MEMORANDUM DECISION AND ORDER - 3

post-conviction petition (that he first learned about the plea offer from his third attorney,
private counsel Jared Martens). Particularly, in the post-conviction petition, Petitioner
declared, under oath, that neither public defender had conveyed the offer:
Unaware of he aforementioned plea offer, the Petitioner hired Jared
B. Martens, a private attorney to represent him. Notice of Substitution of
counsel was filed on or about February 25, 2008. Mr. Reed expressed a
desire to plead guilty to which Mr. Martens inquired as to the rationale to
reject the earlier plea offer. It was then learned the offer was no longer
available. Ada Public Defender’s [sic] withheld critical information from
the Defendant, which amounts to ineffective assistance of counsel. The
proximate result of their deficient performance was realized when the
Court, on January 8, 2008, granted the State leave to file an Amended
Information, Count II, Persistent Violator, I.C. § 19-2514, a charge that
carries a potential life sentence. The Defendant had an absolute right to
have plead [sic] guilty when he first expressed a desire to do so with his
former government appointed attorney’s [sic] Messrs. Toothman and
Rolfsen.
(State’s Lodging B-1, p. 6 (emphasis added).) Another discrepancy was whether
Petitioner first saw the written plea offer when he discussed pleading guilty with Mr.
Martens, the third attorney, or whether he first saw it when Mr. Martens sent Petitioner
discovery materials. (State’s Lodging B-2, pp. 28-32.)
When the state district court tried to obtain clarification about this apparent
contradiction at the evidentiary hearing so that the court could understand what, exactly,
Petitioner was alleging in the Petition, counsel for Petitioner objected, arguing that the
state court was “cross-examining” his client. In response to the court’s questions,
Petitioner testified that he wrote the petition himself, but had help typing it up; he also
testified that he swore it was correct when he signed it. (State’s Lodging B-2, p. 29.)

MEMORANDUM DECISION AND ORDER - 4

Petitioner explained that what he meant in the Petition was that he had learned about the
plea offer from Mr. Rolfsen, but had not seen the offer in written form until Mr. Martens
took over representation.
After the hearing, the state district court found that Petitioner’s testimony
regarding his claim that he had not been informed of the plea agreement by Mr.
Toothman was not credible. ((State’s Lodging B-1, p. 34.) Particularly, the state district
court found that Petitioner’s “testimony in court was very inconsistent with his sworn
statements in his petition.” (Id.) Based on the entire record, the state district court also
determined that Petitioner’s explanations of the inconsistencies between the petition and
the evidentiary hearing testimony “made no sense.” (State’s Lodging B-1, p. 35.)
The court further determined that the two defense attorneys’ testimony was
credible. (State’s Lodging B-1, p. 35-36.) Mr. Toothman, the first public defender, had
been a practicing criminal defense lawyer since 1974. (Id., p. 35.) Mr. Toothman testified
that he met with Petitioner not one, but three times. Mr. Toothman’s notes indicated that,
on the day of the preliminary hearing, he wrote “J2" then “J2 again, offer, hearing,”
which meant that he went to the J2 housing area to give Petitioner the discovery, he went
upstairs to talk to the prosecutor to see if there was an offer, he went back to J2 to convey
the offer, and then he went to the hearing, because the offer was not accepted by
Petitioner. (State’s Lodgings B-3, B-2, pp. 53-56.) Mr. Toothman indicated that he did
not have a present recollection of a conversation with Petitioner about the offer, but that

MEMORANDUM DECISION AND ORDER - 5

he was basing his testimony on his notes and on “past recollection recorded by habit and
custom.” (Id., p. 58.)
The second public defender, Mr. Rolfsen, who had been a public defender for over
20 years, testified that his notes indicated that he met with Petitioner at least six times,
plus had several phone calls with Petitioner. (State’s Lodging B-2, p. 69.) Mr. Rolfsen
further testified that he had no specific recollection of discussing the plea offer with
Petitioner, but he knew that the State would not make the same offer after the preliminary
hearing. (Id., p. 62.) Mr. Rolfsen testified that, in the beginning, Petitioner never said that
he was willing to accept an offer that included prison time, but indicated he was only
interested about an offer for probation; Petitioner said that, if there was no such offer, he
was interested in going to trial. (State’s Lodging B-2, pp. 61-64.) Mr. Rolfsen testified
that, later, Petitioner said he would plead to a prison recommendation, but only if it
allowed him to argue for a non-prison recommendation. (Id., p. 71.) Mr. Rolfsen testified
that the prosecutor rejected all of Petitioner’s proposals.
Based on the testimony of the two public defenders about the type of sentence
Petitioner said he wanted, the state court found that, contrary to Petitioner’s contentions,
Petitioner would not have accepted a plea offer containing a prison term prior to the
preliminary hearing. (State’s Lodgings B-1, p. 10 & C-4, p.5.)
Near the end of the hearing, Petitioner’s counsel requested leave to put on
evidence that would effectively change Petitioner’s claim from one that Mr. Toothman

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did not communicate the plea offer to him, to a claim that Mr. Toothman did extend the
plea offer to him, but did not explain it. (State’s Lodging B-2, pp. 78-93.) The following
colloquy then ensued:
The Court: Okay. Counsel, I’m going to – I’m going to tell you right now. This
post-conviction is not a moving target. The claim was – and he
testified [sic]. That’s one reason I asked him several questions so I
can understand what his claim was. His claim both in the postconviction as well as on the stand is that Mr. Toothman never
communicated the offer. Period. That – you are going to be bound by
that. You can’t now come back and say, but if he did communicate
it, it wasn’t adequate because your client said it was never
communicated.
Mr. Davis:

Well, Your Honor, until the evidence closes, I think that we can
argue that the facts have been elicited.

The Court:

Then we need to bring all of the people back in because that’s not
what your client testified to. The evidence – and I’m going to make a
factual finding, Mr. Davis, the factual finding is your client’s
testimony is it was never communicated until Mr. Rolfsen came in
and even then he was never shown a sheet. But his testimony was
Mr. Toothman never told him, not Mr. Toothman told me, but he
didn’t adequately explain it to me. He didn’t tell me.

Mr. Davis:

That is his testimony, Your Honor.

The Court:

That’s right, and that’s what you are stuck with.

State’s Lodging B-2, pp. 92-93.)
Because the state district court found Petitioner not credible and found his defense
attorneys credible, the state district court concluded that (1) Petitioner had not shown
deficient performance because it found that counsel advised him of the offer; and (2)
Petitioner had not shown prejudice, because it found he would have rejected a pre-hearing

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plea offer containing a prison term. Petitioner’s post-conviction petition was denied and
dismissed with prejudice. (State’s Lodging B-1, p. 38.)
Petitioner filed an appeal of the denial of the post-conviction petition. (State’s
Lodging C-1.) The Idaho Court of Appeals reviewed the underlying record and the factual
findings of the state district court and determined:
The record clearly indicates that Reed was allowed to argue all of his
claims. Reed relied solely on his testimony to support his claims. The
district court found Reed’s testimony to be inconsistent and not credible. In
contrast, the district court found the testimonies of Reed’s attorneys to be
credible and that Reed was advised of the plea offer. Those credibility
determinations will not be disturbed by this Court. Therefore, the record
does not demonstrate proof [of] ineffective assistance of counsel by a
preponderance of the evidence. The district court did not err in denying
Reed’s application for post-conviction relief.
(State’s Lodging C-4.) The Idaho Supreme Court denied Petitioner’s petition for review
without comment. (State’s Lodging C-7.)
In this federal habeas corpus action, Petitioner brings one claim, that his public
defenders failed to relay a settlement offer to him for one year fixed and four years
indeterminate, and when he finally learned of the offer, it had been withdrawn, the
persistent violator charge was added, and he ended up with a much harsher sentence of
three years fixed with 22 years indeterminate.

MEMORANDUM DECISION AND ORDER - 8

REVIEW OF PETITION FOR WRIT OF HABEAS CORPUS
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). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances where
the state-court adjudication of the merits:
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.1

When a party contests the state court’s legal conclusions, including
application of the law to the facts, § 2254(d)(1) governs. That section consists of
two alternative tests: the “contrary to” test and the “unreasonable application” test.
Under the first test, for a decision to be “contrary to” clearly established
federal law, the petitioner must show that the state court applied “a rule of law
different from the governing law set forth in United States Supreme Court

1

A state court need not “give reasons before its decision can be deemed to have been
‘adjudicated on the merits.’” Harrington v. Richter, 131 S.Ct. 770, 785 (2011).

MEMORANDUM DECISION AND ORDER - 9

precedent, or that the state court confronted a set of facts that are materially
indistinguishable from a decision of the Supreme Court and nevertheless arrived at
a result different from the Court’s precedent.” Williams v. Taylor, 529 U.S. 362,
404-06 (2000).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court was “unreasonable in
applying the governing legal principle to the facts of the case.” Williams, 529 U.S.
at 413. The United States Supreme Court has explained: Section 2254(d)(1)
provides a remedy for instances in which a state court unreasonably applies this
Court’s precedent; it does not require state courts to extend that precedent or
license federal courts to treat the failure to do so as error.” White v. Woodall, 134
S.Ct. 1697, 1706 (2014).
A federal court cannot grant relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; 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 v. Cone, 535 U.S. 685, 694
(2002). To warrant habeas corpus relief, a petitioner must show that the challenged
state-court ruling “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).

MEMORANDUM DECISION AND ORDER - 10

In Richter, the United States Supreme Court explained that, under §
2254(d), a habeas court (1) “must determine what arguments or theories supported
or . . . could have supported, the state court’s decision;” and (2) “then it must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of this Court.” Id. at
786. If fairminded jurists could disagree on the correctness of the state court’s
decision, then a federal court cannot grant relief under § 2254(d)(1). Id. The
Supreme Court emphasized: “It bears repeating that even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id.
(internal citation omitted).
As to the facts, the United States Supreme Court has recently clarified “that
review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388,
1398 (2011). This means that evidence not presented to the state court may not be
introduced on federal habeas review if a claim was adjudicated on the merits in
state court and if the underlying factual determination of the state court was not
unreasonable. See Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014).
When a party contests the reasonableness of the state court’s factual
determinations under § 2254(d)(2), the petitioner must show that the state court
decision was based upon factual determinations that were “unreasonable in light of

MEMORANDUM DECISION AND ORDER - 11

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
The United States Court of Appeals for the Ninth Circuit has identified five
types of unreasonable factual determinations that result from procedural flaws that
occurred in state court proceedings: (1) when state courts fail to make a finding of
fact; (2) when courts mistakenly make factual findings under the wrong legal
standard; (3) when “the fact-finding process itself is defective,” such as when a
state court “makes evidentiary findings without holding a hearing”; (4) when
courts “plainly misapprehend or misstate the record in making their findings, and
the misapprehension goes to a material factual issue that is central to petitioner’s
claim; or (5) when “the state court has before it, yet apparently ignores, evidence
that supports petitioner’s claim.” Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th
Cir. 2004). State court findings of fact are presumed to be correct, and the
petitioner has the burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
If the state court factual determination was unreasonable, then the federal
court is not limited by § 2254(d)(1), but proceeds to a de novo review of the
claims, which may include consideration of evidence outside the state court record,
subject to the limitations of § 2254(e)(2). Murray v. Schriro, 745 F.3d 984, 1000
(9th Cir. 2014).

The Court will first address several misconceptions upon which Petitioner

MEMORANDUM DECISION AND ORDER - 12

relies for his arguments. First, Petitioner’s references to standards governing
motions to dismiss and motions for summary judgement are inapplicable, as this
case is proceeding to judgment based on the petition, answer, traverse, and surreply. See Rule 4, Rules Governing § 2254 Cases.
Second, because Petitioner’s claim is not procedurally defaulted, but was
heard on the merits in a comprehensive and substantial manner with adequate
evidentiary development in state court, his argument that he should be afforded an
evidentiary in federal court pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012),
is based on a mistaken interpretation of the narrow applicability of that case.
Martinez is concerned only with ineffective assistance of counsel claims that were
never presented to any court. Id. at 1316 (“When an attorney errs in initial-review
collateral proceedings, it is likely that no state court at any level will hear the
prisoner’s claim.”) Here, Petitioner has had an opportunity to present his claim to

three separate courts before presenting it in federal court: the state district court,
the Idaho Court of Appeals, and the Idaho Supreme Court. In addition, Petitioner
had an aggressive attorney on post-conviction review and was afforded an
evidentiary hearing. Therefore, Petitioner has no argument that the merits of his
claims were not adequately presented and addressed in state court. Martinez does
not apply.

MEMORANDUM DECISION AND ORDER - 13

2.

Discussion of Whether Factual Finding was Unreasonable
Petitioner argues that the Idaho Court of Appeals’s findings of fact were

unreasonable. (Traverse Reply, p. 4.) Petitioner asserts that he should have been
permitted to present additional evidence at the end of the hearing, and that the
evidence that was presented did not support the state courts’ determinations of
credibility.
Petitioner argues that the state district court abridged his right to due
process by not allowing him to present evidence to meet his burden of proof when
it refused to re-open evidence. (Id., p. 5.) This argument is based on the state
court’s conclusion that Petitioner would not be permitted to bring forward
evidence of facts that would contradict his own testimony that the plea offer was
never communicated to Petitioner by Mr. Toothman,
Petitioner argues that, pursuant to People v. Ginther, 212 N.W. 2d 922
(Mich. 1973), Petitioner’s counsel should not have been prevented from
presenting additional facts or testimony in support of Petitioner’s alternative claim
at the evidentiary hearing. Petitioner provides no case law from any jurisdiction
showing that the state district court committed a procedural error or even abused
its discretion when it did not permit Petitioner to present self-contradictory
evidence. In particular, Ginther—which held that an indigent defendant who did
not have a lawyer to help him move to withdraw his guilty plea on ineffective

MEMORANDUM DECISION AND ORDER - 14

assistance of counsel grounds was entitled to have his case remanded for
appointment of counsel and an evidentiary hearing—reveals no similar error in
Petitioner’s proceedings. In state court, Petitioner had the benefit of counsel, was
permitted to bring forward witnesses, cross-examined witnesses, testified on his
own behalf, was asked additional questions to clarify his testimony, was permitted
to bring forward documentary evidence, and otherwise was afforded a full and fair
hearing.
At Petitioner’s hearing, the court was the factfinder, and it was within the
province of the court’s authority to make a finding of fact that it was Petitioner’s
testimony that the plea offer was never communicated to him until he met with Mr.
Rolfsen. The court had before it the post-conviction petition, which contained a
self-contradictory statement. The court elicited additional testimony from
Petitioner so that he could explain the discrepancy. Petitioner did not explain the
discrepancy to the court’s satisfaction. Additional evidence to show that the offer
was communicated was irrelevant, because Petitioner had expressly testified that
the offer was not communicated. The Court finds no case law in its research to
support Petitioner’s position that he should have been permitted to re-open the case
at the end of the hearing to rely upon a new theory that would require the

MEMORANDUM DECISION AND ORDER - 15

factfinder to disregard Petitioner’s own testimony.2

This Court concludes that the Idaho Court of Appeals did not make an
unreasonable finding of fact or render the factfinding process defective by
disallowing contradictory evidence at the close of the hearing, because the record
supports an inference that Petitioner’s contradictions were due to untruthfulness
rather than mistake, and the state district court not only observed Petitioner’s
demeanor but asked its own questions to gain clarification to ensure that the court
understood Petitioner’s factual position.
Petitioner next argues that the state district court “persistently interrupted
Mr. Reed’s testimony at the evidentiary hearing, over defense counsel’s objection”
and that “the questioning distorted the fact finding process and amounted to a
“cross examination of [his] client.” (Dkt. 18, p. 9.) Because the state court was the
factfinder in the evidentiary hearing, when contradictions arose, the court asked
Petitioner a series of questions to clarify Petitioner’s version of the facts.
Petitioner has pointed to no law to support his position that the state court acted
2

While post-conviction review is a collateral proceeding with fewer protections than a
criminal proceeding, the Court notes that, even in criminal proceedings, the right to present any
type of evidence is not absolute. The Sixth and Fourteenth Amendments guarantee criminal
defendants a meaningful opportunity to present evidence in support of a complete defense.
Crane v. Kentucky, 476 U.S. 683, 689-690 (1986) (quoting California v. Trombetta, 467 U.S.
479, 485 (1984). The right is subject to reasonable restrictions based upon other legitimate
interests in the criminal trial process. United States v. Scheffer, 523 U.S. 303, 308 (1998)
(citations omitted). A defendant does not have the right to present evidence that is “incompetent,
privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484
U.S. 400, 424 (1988).

MEMORANDUM DECISION AND ORDER - 16

unreasonably or was in error for attempting to obtain clarification of the facts by
asking questions of the petitioner, with his counsel present, during a bench
hearing. In addition, Petitioner points to no particular “distortion” that occurred as
a result of the questions. Rather, the questions were aimed at, and were successful
in, obtaining clarification of Petitioner’s factual position.
Petitioner also argues that the court was unreasonably “hard” on Petitioner
by asking him questions, but “easy” on Mr. Toothman during the hearing, which
was unfair, because Mr. Toothman had no recollection of the representation, but
relied solely on a few words written in his case file notes. While that is one
inference that may be gleaned from the record, another reasonable inference is that
Petitioner came into court with a very specific set of facts in his verified postconviction petition, and then told a story in court that contradicted the petition, and
the court simply wanted to give Petitioner every opportunity to explain the
contradiction by asking him a series of questions that may have felt like a “crossexamination.”
On the other hand, Mr. Toothman had been practicing criminal law for over
30 years, and was very forthright about the fact that he had no recollection of the
case, but he also had a detailed explanation for his sparse notes that showed he had
a regular habit of meeting with incarcerated clients. That habit was to show them
the discovery from the prosecutor, meet with the prosecutor to determine whether

MEMORANDUM DECISION AND ORDER - 17

there was a plea offer, convey the offer to the client, and then attend the
preliminary hearing if the plea offer was declined. There was little need for the
court to ask further questions of Mr. Toothman, because his testimony was simple
and forthright, without internal contradiction. The record reflects that the court’s
different treatment of each witness was guided by the content of each witness’s
testimony. No unreasonable fact finding is evident from the record.
Petitioner also argues that Mr. Toothman’s credibility was called into
question because, when the Ada County Public Defender’s Office provided
Petitioner with their case file in the Fall of 2009, Mr. Toothman’s “case notes” and
the preliminary settlement offer sheet were not included in the file. Although the
case notes were not provided until a later date, it is clear that Petitioner’s third
attorney, Mr. Martens, had the written offer during the course of Petitioner’s
defense, well before the post-conviction action began. Because Petitioner offered
no evidence at the post-conviction evidentiary hearing to show what role Mr.
Toothman played, if any, in the failure to include the notes and the offer sheet in
the Ada County Public Defender’s office files, this anomaly by itself did not show
that Mr. Toothman lacked credibility.
In any event, the state district court had all of the evidence before it,
including the timing of the disclosure, when it determined that the attorneys, rather
than Petitioner, were credible. Because Petitioner’s evidence was self-

MEMORANDUM DECISION AND ORDER - 18

contradictory, and the public defenders’ testimony was harmonious, the late
disclosure (without more) does not show that the state courts’ factfinding was
unreasonable.
Somewhat contrarily and without any clear purpose, Petitioner next argues
that admission of the offer sheet was an error of state evidentiary law, because it
was inadmissible hearsay and not the best evidence. However, Petitioner makes no
argument tying together the allegedly wrongful admission of the offer sheet and
any finding of fact. The content of the offer sheet was not contested; rather, the
only facts at issue were whether and when the offer had been conveyed to
Petitioner. The fact that the offer sheet was admitted made no difference to the
outcome of the post-conviction action; if anything, it aided Petitioner’s case,
because it proved that the State had made an offer prior to the preliminary hearing,
and it aided Petitioner in attempting to explain the discrepancy between his
testimony (Mr. Rolfsen merely explained the offer but did not show it) and his
petition (Mr. Martens showed him the offer for the first time), although his attempt
was unsuccessful.
Petitioner next argues that the state district court overlooked the fact that
Petitioner promptly dismissed his public defenders (Mr. Toothman and Mr.
Rolfsen) when he learned from Mr. Rolfsen that the state’s plea offer had been
withdrawn. However, Petitioner produced no evidence at the hearing that

MEMORANDUM DECISION AND ORDER - 19

Petitioner “promptly dismissed” his public defenders for that reason, even though
both Petitioner and Mr. Martens, the third attorney, could have testified to that
point. (See State’s Exhibit B-2, pp. 75-77.) As the state district court found, the
petition for post-conviction relief does not support the argument that Petitioner
promptly dismissed his public defenders for the reason that he learned from Mr.
Rolfsen that a plea had been offered to Mr. Toothman but not conveyed to
Petitioner; rather, the petition very clearly implies that there was some other
reason for hiring the third attorney, such as the filing of the persistent violator
charge—“Unaware of the aforementioned plea offer, the Petitioner hired Jared B.
Martens, a private attorney[,] to represent him.” (State’s Lodging B-1, p. 3
(emphasis added).) No unreasonable factfinding is evident from the record on this
point; rather, the state district court’s observation that Petitioner’s testimony
“made no sense” seems well-taken.
In summary, the Court concludes that Petitioner has not pointed to any of
the Taylor v. Maddox types of unreasonable factfinding in the record of his case:
(1) the state court did make findings of fact (Petitioner simply disagrees with
them); (2) the state court did not mistakenly make factual findings under the wrong
legal standard; (3) the fact-finding process itself was not defective, because the
court held an evidentiary hearing where Petitioner had counsel, and there is no law
prohibiting the court from asking the petitioner questions about the facts during a

MEMORANDUM DECISION AND ORDER - 20

bench hearing; (4) the state court did not plainly misapprehend or misstate the
record in making its findings (the record sometimes supports two inferences, but
the state district court had the opportunity to observe the demeanor of the
witnesses to decide which inference to adopt); and (5) the state court did not ignore
evidence it had before it that supported petitioner’s claim (rather, Petitioner simply
lost the credibility battle). See Taylor v. Maddox, 366 F.3d. at 1000-01.

The record supports a finding that, not only were the first attorney’s
testimony and the second attorney’s testimony noncontradictory (both internally
and with each other), Petitioner’s testimony and his petition were internally
contradictory. Further tipping the scale in favor of the attorneys’ credibility was
the fact that Petitioner admitted on the stand that he had written his third attorney a
letter thanking him for the work he did and “apologizing for the minimization that
[he] was speaking about when [he] was interviewed by the presentence
investigator.” (State’s Lodging B-2, p. 46.) That statement served as an admission
that Petitioner had not been forthright when he was interviewed by the presentence
investigator, something which negatively impacted Petitioner’s overall credibility
at the post-conviction hearing.
Based on the entire record, the Court concludes that Petitioner has not
borne the burden of showing that the state court findings of fact—either the trial
court level or the appellate level—were unreasonable in light of the record before

MEMORANDUM DECISION AND ORDER - 21

it.
3.

Discussion of Whether the Legal Determination was Unreasonable
Petitioner also argues that the state court decision was an unreasonable

application of the law. The Idaho Court of Appeals correctly identified Strickland
v. Washington, 466 U.S. 668 (1984), as governing case law from the United States
Supreme Court.3 A defendant challenging his counsel’s performance as ineffective
must meet a two-prong test. See id. First, the defendant must show that counsel’s
performance was so deficient that he failed to function as the “counsel” guaranteed
by the Sixth Amendment. Id. at 691-92. The second prong requires that the
defendant show that the deficient performance prejudiced the defense. Id. Unless
both showings are made, a defendant is not entitled to relief. Id.

When undertaking a analysis of counsel’s performance using the “doublydeferential judicial review that applies to a Strickland claim under the
§ 2254(d)(1) standard,” Knowles v. Mirzayance, 536 U.S. 111, 123 (2009), the
3

While there was no new case law from the United States Supreme Court at the time the
Idaho Supreme Court denied the petition for review in January 2012, the United States Supreme
Court did publish several new cases about plea offers in March 2012. They are not applicable to
Petitioner’s habeas corpus case, but, even if they could be applied, they do not show that
Petitioner’s facts warrant relief, because the state courts found that Petitioner did not meet his
burden of proof to show that the plea offer was not, in fact, communicated to Petitioner. Hence,
the new case law does not affect the Court’s analysis here. See Missouri v. Frye, 132 S.Ct. 1399
(2012) (defense counsel has the duty to communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable to the accused, and counsel was
deficient in failing to communicate to defendant the prosecutor’s written plea offer before it
expired); Lafler v. Cooper, 132 S.Ct. 1376 (2012) (the petitioner was prejudiced by counsel’s
deficient performance in advising petitioner to reject the plea offer and go to trial).

MEMORANDUM DECISION AND ORDER - 22

federal habeas court must determine which arguments could have supported the
state courts’ decisions. Richter, 131 S.Ct. at 786. Here, based on the findings of
fact of the state courts, the record supports a finding that Petitioner’s first counsel,
Mr. Toothman, a very experienced trial attorney, had a custom and habit of how
he handled his criminal cases. As Mr. Toothman’s notes reflect, he received an
offer for Petitioner from the prosecutor—an offer that contained prison time. The
record supports the finding that Mr. Toothman communicated the offer to
Petitioner, along with information that “a lot of times the State will request
probation” or sometimes the court will “actually dismiss the charge.” (State’s
Lodging B-2, p. 20.) Petitioner rejected the offer because it contained prison time,
and he told Mr. Toothman that he wanted to try for either probation or dismissal of
the charge. (Id., p. 21.) Petitioner then went to the preliminary hearing, and the
offer was withdrawn. At that time, Petitioner did not know that a persistent
violator charge would be filed against him. (Id., p. 42.)
When a second very experienced public defender, Mr. Rolfsen, took over
the case, Petitioner again said that he was interested only in probation or dismissal.
The record supports the finding that Petitioner was willing to go to trial rather than
agree to prison time. Later, when Petitioner began to reconsider his options, he
asked his second counsel to approach the prosecutor with a proposal for a plea
offer for a recommendation of prison time, with an opportunity to argue that no

MEMORANDUM DECISION AND ORDER - 23

prison time should be included in the sentence.
When the prosecutor declined to make any offer and Petitioner learned that
a persistent violator charge was going to be added to the Information, Petitioner
then hired his third counsel. Petitioner’s third counsel asked Petitioner why he had
rejected the original plea offer. The record supports a finding that Petitioner had
rejected the original offer because it contained prison time.
In the post-conviction review hearing and in his federal Habeas Corpus
Petition, Petitioner alleged as true that his first counsel never conveyed an offer to
him, and that his second counsel verbally informed him of the then-expired offer.
In the petition for post-conviction relief, Petitioner had alleged as true that neither
his first nor his second counsel ever conveyed an offer to him. Noting this
discrepancy, among others, the state district court held Petitioner to the facts he
alleged as true in his post-conviction petition, and did not permit him to later
assert that his own facts were untrue. Few reasonable jurists would do otherwise.
The state court record supports the district court’s conclusion that Petitioner did
not show that his counsel had performed deficiently or that Petitioner suffered
prejudice under the Strickland standard, and the record supports the Idaho Court
of Appeals’s decision to affirm.

MEMORANDUM DECISION AND ORDER - 24

4.

Conclusion
Even though some of the evidence in the paper record of this case can be

construed to support Petitioner’s testimonial version of events, neither the Idaho
Court of Appeals nor this Court had the opportunity to observe the demeanor of
Petitioner or his three counsel as they testified at the hearing. Because the
American system of justice is based upon the truthfulness of witnesses and the
ability of the factfinder to discern the truth from among competing versions, both
post-conviction appellate review and federal habeas corpus review have a built-in
principle of deference to the factfinder who both saw and heard the witnesses.
This Court cannot re-determine the facts, and, on this record, will not do so. The
Court concludes that the state court record supports the version of the facts found
by the state district court and relied upon by the Idaho Court of Appeals, and the
record supports the application of the law to the facts and the conclusion that
Strickland was not violated. Therefore, the Idaho Court of Appeals’s decision is
not an unreasonable application of Strickland under the doubly-deferential
standard explained in Richter and Mirzayance. Because fairminded jurists could
disagree on the correctness of the Idaho Court of Appeals’s decision, or, stated
another way, because not every fairminded jurist would agree with Petitioner that
Strickland was violated under the facts contained in this record, the Court cannot
grant relief under § 2254(d)(1).

MEMORANDUM DECISION AND ORDER - 25

CERTIFICATE OF APPEALABILITY
In the event Petitioner files a notice of appeal from the Order and Judgment
in this case, the Court now evaluates the claims within the Petition for suitability
for issuance of a certificate of appealability (COA), which is required before a
habeas corpus appeal can proceed. 28 U.S.C. § 2253(c)(1)(A); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Rule 11(a), Rules Governing Section 2254
Cases.
A COA will issue only when a petitioner has made “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court
has explained that, under this standard, a petitioner must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal citation and punctuation omitted).
When a court has dismissed the petition or claim on the merits, the
petitioner must show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. at 484. The COA
standard “requires an overview of the claims in the habeas petition and a general
assessment of their merits,” but a court need not determine that the petitioner
would prevail on appeal. Miller-El, 537 U.S. at 336.

MEMORANDUM DECISION AND ORDER - 26

Here, the Court has denied Petitioner’s claim on the merits. The Court finds
that additional briefing on the COA is not necessary. Having reviewed the record
again, the Court concludes that reasonable jurists would not find debatable the
Court’s decision on the merits of the claims raised in the Petition and that the
issues presented are not adequate to deserve encouragement to proceed further. As
a result, the Court declines to grant a COA on any issue or claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth
Circuit, Petitioner must file a notice of appeal in this Court, and also file a motion
for COA in the Ninth Circuit Court of Appeals, pursuant to Federal Rule of
Appellate Procedure 22(b), within thirty (30) days after entry of this Order.
ORDER
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus is DENIED, and this entire
action is DISMISSED with prejudice.

2.

The Court will not grant a Certificate of Appealability in this case. If
Petitioner chooses to file a notice of appeal, the Clerk of Court is
ordered to forward a copy of this Order, the record in this case, and
Petitioner’s notice of appeal, to the United States Court of Appeals
for the Ninth Circuit.

MEMORANDUM DECISION AND ORDER - 27

DATED: July 15, 2014

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

MEMORANDUM DECISION AND ORDER - 28