Gerdon v. Wengler

Filing 40

MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY DISMISSAL - IT IS ORDERED:1. Respondents Motion for Summary Dismissal (Dkt. 23 ) is GRANTED. 2. Petitioners Objections to Respondents characterization of the record (Dkt. 30 ) are noted, but are n ot relevant to the basis for the dismissal of this action. 3. The Amended Petition for Writ of Habeas Corpus (Dkt. 16 ) is DISMISSED with prejudice. 4. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JAMES ALAN GERDON,
Petitioner,
vs.

Case No. 1:12-cv-00164-REB
MEMORANDUM DECISION AND
ORDER ON MOTION FOR
SUMMARY DISMISSAL

TIM WENGLER,
Respondent.

Pending before the Court is Respondent’s Motion for Summary Dismissal. (Dkt.
23.) Rather than file a response to the Motion within the extension period he sought,
Petitioner filed several motions, including a “Notice of Tainted Evidence,” alleging that
Respondent is relying on false evidence. The Court ordered Petitioner to identify each
document that he believed was tainted or falsified, and either provide the true and correct
document or state where it could be located. (Dkt. 37.) Petitioner has done so. (Dkt. 38.)
The Court also ordered Petitioner to file a response to the pending Motion for
Summary Dismissal simultaneously with his explanation regarding the tainted evidence.
The Court explained:
Should the Court find that the “tainted evidence” issue affects the Motion
for Summary Dismissal disposition and requires a hearing for resolution,
the Court will set a hearing and provide Petitioner with additional time to
respond to the motion after a hearing. Should the “tainted evidence” issue

MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY DISMISSAL - 1

be meritless or moot, then the Court will resolve the pending Motion for
Summary Dismissal on the parties’ briefing submitted at that time.
(Dkt. 37, Order Requiring Petitioner to Take Action, p. 2.) Petitioner was warned that
failure to file a response to the pending Motion for Summary Dismissal could result in
dismissal of the case with prejudice. (Id., p. 3.) Nevertheless, Petitioner has elected not to
file a response to the Motion. Therefore, the Court will consider the Motion on the
briefing now before the Court.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by the parties, and of the most recent state court
appellate decision in his case, Gerdon v. State, 2014 WL 464005 (Feb. 4, 2014)
(unpublished). See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th
Cir. 2006). All parties have consented to the jurisdiction of a United States Magistrate
Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt.
11.) Accordingly, the Court enters the following Order.
PETITIONER’S CLAIMS OF TAINTED OR FALSIFIED EVIDENCE
Petitioner challenges Respondent’s assertion that Petitioner’s “motion to overturn
the verdict” was filed in state court on August 29, 2011. (See State’s Lodging K-1, pp.
299-300.) Petitioner asserts that it was actually filed seven years earlier, on March 11,
2004. (State’s Lodging A-1, pp. 91-92.)
Both parties are correct. First, the pro se motion originally was filed with the state
district court on March 11, 2004, after the judgment of conviction was entered.
Petitioner’s counsel filed a notice of appeal on March 16, 2004. Petitioner followed up on

MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY DISMISSAL - 2

the status of his pro se motion with a letter to the court on March 20, 2004, but he never
properly noticed the motion for a hearing. The motion remained “pending” without a
ruling, until Petitioner “filed” the motion again, on August 29, 2011—this time as an
exhibit to a motion to vacate the conviction. (State’s Lodging K-1, p. 268.) The clerk of
court stamped the copy of the 2004 motion with a receipt date of August 29, 2011, as if it
had been submitted as a new motion, rather than an attachment. Regardless of the mixup, this Court and the state district court recognized that the motion was first filed in
2004 and not ruled upon until the 2011 action. (State’s Lodging K-1, pp. 304-08.)
Hence, Petitioner’s claim of tainted or falsified evidence is a non-issue, because
the Court is not relying on the date of the re-urging of the motion in 2011 as the filing
date, but is relying on the actual filing date in 2004. Therefore, Petitioner’s objection is
noted, as is his argument that his federal statute of limitations was statutorily tolled
during the entire time the motion was “pending.”
The statute of limitations defense has several interesting and difficult issues to be
resolved, including the issue raised above. The procedural default defense, however, is
much more straightforward; therefore, the Court will begin with a discussion of the
procedural default defense. As to that defense, a conclusion of either untimeliness or
procedural default will independently bar the Court from hearing the merits of
Petitioner’s claims. In addition, as the Court will explain, a number of Petitioner’s claims
are grounded upon state law and do not state federal habeas corpus claims upon which
relief can be granted.

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REVIEW OF MOTION FOR SUMMARY DISMISSAL
1. Standard Governing Summary Dismissal Motions
When a petitioner’s compliance with threshold procedural requirements is at issue,
a respondent may file a motion for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases
authorizes the Court to summarily dismiss a petition for writ of habeas corpus 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.”
2. Background
Petitioner, who was 34 at the time, had a “sleepover” with three boys, ages 10, 11,
and 12. They played video games and drank alcohol, and eventually the group engaged in
oral sex and “doggie-style sex,” under Petitioner’s threats to the children involving a
knife. (State’s Lodging B-2.) After a grand jury indictment on 17 criminal counts related
to the incidents, Petitioner entered into a plea agreement to plead guilty to 9 charges, with
all other charges to be dismissed by the State. (State’s Lodging A-1, pp. 42-56.) The state
district court imposed concurrent sentences that amounted to 15 years fixed, followed by
15 years indeterminate. (State’s Lodging A-1, pp. 82-84.)
On direct appeal, Petitioner’s appellate counsel argued that the sentences were
excessive. (State’s Lodging B-1.) The Idaho Court of Appeals affirmed the sentences.
Petitioner then filed a petition for review, which was denied by the Idaho Supreme Court
on July 5, 2005. (State’s Lodgings B-4 to B-7.)

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Petitioner filed a post-conviction petition while his direct appeal was pending.
(State’s Lodging C-1, entry dated 10/19/2004.) The state district court denied the postconviction petition on June 29, 2006. (See id., entry dated 6/29/2006.) The state court
also entered a supplemental memorandum opinion and order of dismissal on July 25,
2006. (State’s Lodging C-1, p. 2, entry dated 7/25/2006.) No appeal in the postconviction action was filed.
More than a year later, Petitioner sent a letter of inquiry to the clerk of court
stating that his lawyers had failed to file an appeal in the post-conviction matter, despite
his instruction to them to do so. (State’s Lodging E-1, pp. 41, 47.) Petitioner filed a notice
of appeal in his post-conviction case several months after his letter, on September 10,
2007, well beyond the 42-day time limit for filing an appeal. (See id., entry dated
9/10/2007.) Because the notice of appeal was untimely, the Idaho Supreme Court issued
an order and notice of intent to dismiss the appeal, giving Petitioner 21 days to respond.
(State’s Lodging D-1.) Petitioner, with the assistance of counsel, filed a response, asking
the court to retain the case. (State’s Lodging D-2, p.2.) The Idaho Supreme Court
dismissed the post-conviction appeal on November 16, 2007, and issued its Remittitur on
December 7, 2007. (State’s Lodgings D-3, D-4.) As a result, no claim presented in the
post-conviction matter was briefed or decided on appeal.
On April 21, 2008, Petitioner filed a successive post-conviction petition pro se.
(State’s Lodging E-1, pp.7-10.) Petitioner was later appointed an attorney in that action.
The state district court dismissed the petition on the grounds that Petitioner’s “allegations
[were] conclusory and unsubstantiated by any fact” and because a claim of ineffective
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assistance of post-conviction counsel during the first post-conviction case was “not a
cognizable ground for filing a subsequent post-conviction relief application.” (State’s
Lodging E-1, p.54.) Petitioner filed a timely notice of appeal, but later voluntarily
dismissed the appeal in a motion that was signed by Petitioner and his attorney. (State’s
Lodgings E-1, pp. 56-68 & F-1.) The Idaho Supreme Court granted the motion, dismissed
the appeal, and issued a remittitur on April 5, 2010. (State’s Lodging F-2.) As before,
none of the claims in the successive post-conviction petition were decided on appeal.
On June 21, 2010, Petitioner filed a second successive post-conviction petition.
(State’s Lodging I-1, pp. 7-10.) With the assistance of counsel, Petitioner filed an
amended petition on April 18, 2011. (State’s Lodging I-1, pp. 188-190.) The state district
court dismissed the second successive petition after an evidentiary hearing. (State’s
Lodgings I-1 & I-2.) Petitioner filed a notice of appeal, asserting that the state district
court erred by dismissing his petition “as untimely and as a successive petition, because
the doctrine of equitable tolling should have applied.” (State’s Lodging J-1, p.2.) The
Idaho Court of Appeals affirmed the dismissal of the second successive petition. (State’s
Lodging J-4.) The Idaho Supreme Court denied the petition for review and issued its
remittitur on May 6, 2013. (State’s Lodgings J-5, J-6, J-7, J-8.) No substantive claims
were presented or decided on appeal.
Petitioner filed a third successive petition, challenging the fact that the state
district court left the pro se motion to overturn the verdict pending for seven years. The
Idaho Court of Appeals rejected Petitioner’s argument that his third successive petition

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was timely because the motion had remained pending for seven years, among other
arguments. See Gerdon v. State, 2014 WL 464005 (Feb. 4, 2014) (unpublished).
During the pendency of his various post-conviction proceedings, Petitioner filed
several other pro se motions, including: (1) an I.C.R. 35 motion, filed April 28, 2010
(State’s Lodging K-1, pp. 216-218); (2) an “amended motion to vacate,” filed August 29,
2011 (id., pp. 268-269), accompanied by an exhibit, the 2004 “motion to overturn
verdict” (id., pp. 299-300); and (3) a motion to withdraw the guilty plea, filed November
14, 2011 (id., pp. 315-317). The trial court denied all these motions. (Id., pp. 262-266,
304-308, 367.)
Petitioner appealed from denial of the amended motion to vacate (with attached
motion to overturn the verdict) and the motion to withdraw the guilty plea. (State’s
Lodging L-1.) The issue Petitioner appealed was that the district court erred in denying
the motions for untimeliness reasons, but he acknowledged that the district court lacked
jurisdiction to grant the motions. (Id.) The Idaho Court of Appeals affirmed on grounds
of untimeliness and lack of jurisdiction, and the Idaho Supreme Court denied the petition
for review, issuing its remittitur on September 6, 2012. (State’s Lodgings L-4 to L-7.) No
substantive questions were presented or decided on appeal.
On October 9, 2012, Petitioner filed Rule 60(b) motions for relief in his initial and
first successive post-conviction actions. (State’s Lodgings M-1, pp. 5-6; M-2, pp. 29-30.)
The motions were denied. On appeal, Petitioner presented claims of whether the district
court erred when it denied the motions regarding his right to effective assistance of postconviction counsel. (State’s Lodging N-1.) The Idaho Court of Appeals affirmed. (State’s
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Lodging N-7.) The Idaho Supreme Court denied the petition for review and issued its
remittitur on June 20, 2014. (State’s Lodgings N-8, N-9, N-10, N-11.) No substantive
claims were presented or decided on appeal.
In this federal habeas corpus action, Petitioner originally filed his petition on April
2, 2012. (Dkt. 3.) This case was stayed while Petitioner pursued state court relief.
Petitioner filed his amended petition on May 27, 2014 (Dkt. 16), and the Court re-opened
this case on October 16, 2014. (Dkt. 17.) Thereafter, Respondent filed a Motion for
Summary Dismissal. As indicated above, Petitioner has had opportunity but has chosen
not to file a formal response.
REVIEW OF CLAIMS
1. Cognizability
A. Standard of Law
Habeas corpus relief cannot be granted on the grounds that a conviction or
sentence violates the state constitution or state law. Lewis v. Jeffers, 497 U.S. 764, 780
(1990) (“Federal habeas corpus relief does not lie for errors of state law.”); see also
Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994) (noting that generally federal
habeas corpus is unavailable for alleged errors in interpretation and application of state
law).
Neither is habeas corpus the proper avenue to address errors in a state’s postconviction review process. Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989), cert.
denied, 493 U.S. 1012 (1989). In Williams v. Missouri, 640 F.2d 140 (8th Cir. 1981), the
court explained:
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[I]nfirmities in the state’s post conviction remedy procedure cannot
serve as a basis for setting aside a valid original conviction [citation
omitted]. . . . There is no federal constitutional requirement that the state
provide a means of post-conviction review of state convictions. . . . Errors
or defects in the state post-conviction proceeding do not, ipso facto, render
a prisoner=s detention unlawful or raise constitutional questions cognizable
in habeas corpus proceedings. Habeas corpus in the federal courts does not
serve as an additional appeal from state court convictions. Even where there
may be some error in state post-conviction proceedings, this would not
entitle appellant to federal habeas corpus relief since [such a] claim . . .
represents an attack on a proceeding collateral to detention of appellant and
not on the detention itself.
Id. at 143-44.
B.

Discussion of Claim 1

Claim 1 is that the state courts erred by misplacing, mislabeling, and failing to rule
on several of his legal documents and by making the following mistakes related to his
filings: (a) failing to rule on the motion to overturn the verdict; (b) declaring a notice of
appeal untimely (this occurred in his original post-conviction matter); (c) admitting in
2011 that it had never ruled on the 2004 motion to overturn the verdict and it did not have
jurisdiction to correct the error (this occurred in the second successive post-conviction
matter); and (d) refusing to correct the foregoing court errors on post-conviction review.
(Petitioner also asserts that his request for a public defender was ignored by the state
court; however, because this is the subject of Claim 6, it is addressed below, rather than
here.)
These alleged state court errors do not amount to a challenge to Petitioner’s
criminal conviction, sentence, or direct appeal; instead, they are a challenge to state

MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY DISMISSAL - 9

procedural rules and state post-conviction procedures. Therefore, Claim 1 is not
cognizable as a federal habeas corpus claim.
C. Discussion of Subclaim 2(c)
Subclaim 2(c) is that Petitioner could not file a timely notice of appeal because the
state of Idaho intercepted, delayed, or destroyed Petitioner’s legal mail without notifying
him. After judgment was entered, Petitioner’s counsel did, in fact, file a notice of appeal
on direct appeal, which counsel pursued through its completion. When Petitioner asserts
that the thwarting of his mail caused him to be unable to file an appeal, he is referring to
the appeal of his original post-conviction action. As noted above, post-conviction errors
are not cognizable on federal habeas review. Therefore, this claim is subject to summary
dismissal.
D. Claim 3
Claim 3 is that the state court “created inaccurate and fraudulent documents that
were used against the petitioner.” (Dkt. 16, p. 9.) Petitioner alleges that he did not
authorize his counsel to file an appeal on March 16, 2009. He alleges that the state court
clerk wrongly notified the federal district and appellate courts that he had filed an appeal.
However, Petitioner’s direct appeal was filed in 2004 and concluded in 2005. Thus, any
appeal in 2009 necessarily related to a post-conviction action. Errors in post-conviction
review procedures are not cognizable on federal habeas corpus review.

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2. Post-Conviction Counsel’s Errors
A. Standard of Law
The law is clear that a petitioner does not have a federal constitutional right to
effective assistance of counsel during state post-conviction proceedings. Pennsylvania v.
Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993).
B. Claim 9
Claim 9 is based on ineffective assistance of post-conviction counsel. Because such a
claim is not a challenge to a conviction, sentence, or direct appeal, it is a noncognizable
claim.
3. Access to Counsel and the Courts
A. Standard of Law
Criminal defendants have a Sixth Amendment right to effective assistance of
counsel, as well as a Sixth Amendment right to waive counsel and represent themselves
when they voluntarily and intelligently decide to do so. Faretta v. California, 422 U.S.
806 (1975). The law is clear that an inmate is entitled to counsel or an adequate
alternative legal resource if pro se (not necessarily including the ability to perform
research), but not both. See United States v. Wilson, 690 F.2d 1267 (9th Cir. 1982); see
also Milton v. Morris, 767 F.2d 1443, 1447 (9th Cir. 1985); Waldrip v. Hall, 548 F.3d
729, 737 (9th Cir. 2008.)
B. Discussion of Claim 2(a)
Claim 2 is that Petitioner “could not get his [pro se] motions filed or ruled on.”

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Petitioner was represented by counsel Anthony Valdez at all times during his criminal
action. Therefore, he had no right to also act pro se in that matter. Because Petitioner had
counsel, he had no federal right to file any motions or conduct any research on his own.
The claim is subject to summary dismissal for failure to state a claim upon which relief
can be granted.
C.

Discussion of Claim 5

Claim 5 is that Petitioner was denied a law library “and accessories,” and that he
was denied mail service. He states that he was forced to use scratch paper and a pencil to
prepare his pleadings and papers, rather than legal forms. These deficiencies resulted in
“no rulings on issues or rulings against the petitioner.” (Dkt. 16, p. 13.) Because
Petitioner had counsel at all critical stages of his criminal proceedings, as discussed
above, this claim fails to state a claim upon which relief can be granted. To the extent that
Petitioner is referring to his post-conviction filings, his claim is noncognizable as a
federal habeas corpus claim.
4. Procedural Default
A.

Standard of Law

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). To do so, 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

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level of appellate review. Id. at 845. In Idaho, where there is the possibility of
discretionary Idaho Supreme Court review of the Idaho Court of Appeals’ opinions, the
petitioner must have presented all his federal claims in a petition seeking review before
the Idaho Supreme Court. Id. at 847. “Fair presentation” requires description of both the
operative facts and the legal theories upon which the federal claim is based. Gray v.
Netherland, 518 U.S. 152, 162-63 (1996).
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
under the state’s procedural rules, the claim is said to be procedurally defaulted. Gray,
518 U.S. at 161-62. Procedurally defaulted claims include: (1) when a petitioner has
completely failed to raise a 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;
or (3) when the Idaho courts have rejected a claim on an adequate and independent state
procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson,
501 U.S. 722, 750 (1991).
B.

Discussion

The state court record reflects that the only substantive claim presented to the
Idaho Supreme Court was that of an excessive sentence, which itself is not a federal
claim. While Petitioner presented some cognizable federal claims to the state trial court,
he did not present any of those claims to the Idaho Supreme Court. For the reasons set
forth in this decision, the Court concludes that all of Petitioner’s cognizable claims are
procedurally defaulted.
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5. Cause and Prejudice
A. Standard of Law
Petitioner cannot proceed on his defaulted claims without a showing of cause and
prejudice or a miscarriage of justice. A procedurally defaulted claim will not be heard in
federal court unless the petitioner shows either that there was legitimate cause for the
default and that prejudice resulted from the default, or, alternatively, that the petitioner is
actually innocent and a miscarriage of justice would occur if the federal claim is not
heard. Murray v. Carrier, 477 U.S. 478, 488 (1986)
Ordinarily, to show “cause” for a procedural default, petitioner must prove that
some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Id. at 488. To show “prejudice,” a
petitioner must show “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).
An attorney’s errors that rise to the level of a violation of the Sixth Amendment’s
right to effective assistance of counsel may, under certain circumstances, serve as cause
to excuse the procedural default of other claims. Murray, 477 U.S. 488. However, an
allegation of ineffective assistance of counsel will excuse the default of other claims only
if the ineffective assistance of counsel claim itself is not procedurally defaulted or, if
defaulted, Petitioner can show cause and prejudice for the default. Edwards v. Carpenter,
529 U.S. 446, 454 (2000). In other words, before a federal court can consider ineffective
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assistance of counsel as cause to excuse the default of underlying habeas claims, a
petitioner generally must have presented the ineffective assistance of counsel claim in a
procedurally proper manner to the state courts, such as in a post-conviction relief petition,
including through the level of the Idaho Supreme Court.
As to the related but different topic of alleged errors of counsel made on postconviction review that cause the default of claims, the general rule on procedural default
is that any errors of a defense attorney during a post-conviction action cannot serve as a
basis for cause to excuse a petitioner’s procedural default of his claims. See Coleman,
501 U.S. 752. This barrier stems from the rule that a petitioner does not have a federal
constitutional right to effective assistance of counsel during state post-conviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d
425, 430 (9th Cir. 1993).
There is, however, a limited exception to the Coleman rule, established in
Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the court held that inadequate
assistance 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.” Id. at 9.
The Martinez exception exists because “as an equitable matter... the initial-review
collateral proceeding, if undertaken without counsel or with ineffective counsel, may not
have been sufficient to ensure that proper consideration was given to a substantial claim.”
Id. at 14.
The Martinez exception permits the district court to hear procedurally defaulted
claims of ineffective assistance of trial counsel. Id. at 16. The exception, however, has
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not been extended to other types of claims. See Hunton v. Sinclair, 732 F.3d 1124 (9th
Cir. 2013) (Martinez not applicable to a defaulted Brady claim). In addition, Martinez
does not apply to post-conviction appeals, only original post-conviction actions.
In addition, Petitioner must show that the defaulted ineffective assistance of trial
counsel claims are “substantial,” meaning that the claims have “some merit.” Martinez,
132 S. Ct. at 14. To show that each claim is substantial, Petitioner must show that trial
counsel performed deficiently, resulting in prejudice, defined as a reasonable probability
of a different outcome at trial. Id.; see Strickland v. Washington, 466 U.S. 668, 695-96
(1984).
6. Discussion of Cause and Prejudice
A.

Subclaim 2(b)

Petitioner alleges that the legal mail issues caused him to be unable to present
evidence at his sentencing hearing, because he could not communicate with trial counsel.
This is a potentially viable constitutional claim that bears on his sentence; however,
Petitioner did not properly present this issue to the Idaho Supreme Court during the
course of his state appellate proceedings. Therefore, it is procedurally defaulted.
Petitioner has not brought forward any facts showing which additional evidence he
would have presented at sentencing, and how that evidence might have warranted a lesser
sentence. Petitioner’s multiple acts of sexual conduct with multiple children under threats
of harm warranted serious sentences. Petitioner has not shown a reasonable probability of

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a different sentence had he brought forward the unidentified evidence at sentencing, and
thus he has not shown that prejudice resulted from the default of the claim.
Neither has Petitioner shown excusable cause for the default. Throughout his case,
Petitioner has asserted that his counsel failed to appeal or failed to raise the claims he
desired on appeal. Petitioner alleges that some of his claims are defaulted because of
ineffective assistance of direct appeal counsel. However, the direct appeal counsel claim
itself is procedurally defaulted for failure to properly present it to the state courts. A
procedurally defaulted ineffective assistance claim may be used as “cause” to excuse the
procedural default of another defaulted claim only if Petitioner can first show cause and
prejudice for the default of the direct appeal counsel claim. Edwards v. Carpenter, 529
U.S. 446 (2000). This, Petitioner has not done.
Petitioner has not satisfied either of these standards—particularly, he has failed to
show that any prejudice accrued to his defense, and he has failed to show adequate cause
justifying his failure to properly exhaust in state court an ineffective assistance of direct
appeal counsel claim. Therefore, the procedural default of his claims remains unexcused.
B. Claim 4
Claim 4 is prosecutorial misconduct based on (1) a Brady violation regarding
evidence presented at the sentencing hearing, (2) double jeopardy grounds, and (3) a
breach of the plea agreement. These are federal claims, but they were never raised before
the Idaho Supreme Court; therefore, they are procedurally defaulted.
As cause, Petitioner faults his post-conviction counsel. However, because there is
no constitutional right to post-conviction counsel, Petitioner cannot rely on postMEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY DISMISSAL - 17

conviction counsel’s failures to excuse the default of his claims under the traditional
Coleman standard. In addition, the Martinez exception does not apply because these are
not ineffective assistance of trial counsel claims. Therefore, Petitioner has failed to show
cause for the default of these claims, and the Court cannot hear the merits of the claims.
C. Claims 6, 7, and 8
Claim 6 is a deprivation of the right to counsel at trial. Petitioner alleges that he
was not provided with an attorney free of charge, that he qualified for a public defender,
and that he was forced to act as his own attorney. As discussed above, Petitioner, in fact,
had private counsel during pretrial and trial proceedings.
If Petitioner is attempting to assert that a public defender may have done a better
job than a private attorney, he has provided no foundational facts to support such a claim.
In any event, this claim is procedurally defaulted for failure to raise it before the Idaho
Supreme Court, and because Petitioner has not shown how a public defender could have
done a better job on Petitioner’s defense, there is no prejudice to excuse the default.
Similarly, Claim 7 is that trial counsel performed ineffectively. Petitioner has no
incidents of ineffectiveness that are attributable to trial counsel; rather, he asserts the
same allegations as above: Because the State interfered with his mail and attorney visits,
Petitioner could not present evidence at hearings, could not file motions, could not file a
timely notice of appeal in his post-conviction matter, and could not get rulings on his
motions—because there is no causal link between his attorney’s performance and the
Court’s decisions regarding Petitioner’s pro se filings or the State’s deprivation of
Petitioner’s mail and attorney visits, Petitioner has not shown prejudice resulting from the
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default of this ineffective assistance of counsel claim.
An additional allegation that Petitioner has not presented to the state courts is that
he was questioned outside his attorney’s presence during the psychosexual evaluation. To
the extent that this states a federal claim, it is procedurally defaulted. Petitioner has not
shown prejudice resulting from this omission, because he has not shown a reasonable
probability that he would have received a different sentence had his attorney been present
at the psychosexual evaluation.
Petitioner also newly alleges in Claim 7 that the prosecutor was able to win several
motions by default because no one was representing Petitioner. There are no facts to
support this notion. Petitioner was at all times represented by counsel during trial and
direct appeal proceedings. To the extent that Petitioner is asserting that his counsel was
ineffective, Petitioner has stated no facts showing that he was prejudiced by any motions
the prosecutor purportedly “won by default.”
Claim 8 is ineffective assistance of counsel on direct appeal. To show prejudice
with respect to direct appeal counsel, 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. Miller v. Keeney, 882 F.2d 1428, 1434 n.9 (9th Cir. 1989).
Petitioner states that he did not authorize the appeal, and that appellate counsel
Justin Curtis would not withdraw the appeal or allow Petitioner to present other claims
that he wanted to present, telling Petitioner that the claims had to be raised on postconviction review, because they required factual development. Petitioner does not show
which claims Curtis should have brought that probably would have been successful on
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appeal. Petitioner cites to the late Judge Hohnhorst’s post-conviction opinion that,
because Curtis failed to raise certain claims on appeal, Petitioner was foreclosed from
doing so on post-conviction. (State’s Lodging I-A, pp. 18-25, Exhibit A.) While it is true
that Petitioner was foreclosed from raising certain claims on post-conviction that should
have been raised on direct appeal e.g., (double jeopardy, unlawful address, breach of the
plea agreement), nothing in Judge Hohnhorst’s opinion or in the record here suggests that
Petitioner had meritorious direct appeal claims that were not presented by Curtis.
Therefore, Petitioner has failed to show prejudice arising from his defaulted ineffective
assistance of direct counsel claims.
4. Miscarriage of Justice
A. Standard of Law
If a petitioner cannot show cause and prejudice for a procedurally defaulted claim,
he can still raise the claim if he demonstrates that the court’s failure to consider it will
result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494
(1991). A miscarriage of justice means that a constitutional violation has probably
resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477
U.S. at 496.
A compelling showing of actual innocence can satisfy the fundamental
miscarriage of justice exception to procedural default, allowing a court to review
Petitioner’s otherwise defaulted claims on their merits. See Schlup v. Delo, 513 U.S. 298,
315, 324 (1995). There remains the caveat, however, that “actual innocence means

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factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 64,
623 (1998).
Where the petitioner pled guilty and did not have the evidence in his case
evaluated by a jury, he must show that, based on all of the evidence, “it is more likely
than not that no reasonable juror would have found Petitioner guilty ....” Van Buskirk v.
Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001), citing Schlup v. Delo, 513 U.S. at 327;
Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003). The petitioner bears the burden of
demonstrating that “in light of all the evidence, including evidence not introduced at trial,
it is more likely than not that no reasonable juror would have found [him] guilty beyond a
reasonable doubt.” Id. at 327; see also House v. Bell, 547 U.S. 518, 539 (2006). The
standard is demanding and permits review only in the “extraordinary” case. Schlup, 513
U.S. at 327 (citation omitted).
Speaking specifically to cases in which petitioners challenge their guilty pleas, the
United States Supreme Court has held:
[T]he representations of the defendant, his lawyer, and the
prosecutor at [a plea] hearing, as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a strong
presumption of verity. The subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
B. Discussion
There is no evidence in the record suggesting that Petitioner is actually innocent of
the crimes to which he pleaded guilty. In his allocution, he seemed to admit to the acts,
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saying that he had an addiction problem, and, that “[e]verything I thought I was fighting
for and had control over, I found out I had no control.” (State’s Lodging A-3, p. 90.)
Therefore, Petitioner does not qualify for the miscarriage of justice exception.
7. Conclusion
Petitioner’s claims are noncognizable, fail to state a federal claim upon which
relief can be granted, or are procedurally defaulted, all as set forth above. Grounds to
excuse procedural default are not evident in the record. Accordingly, Petitioner has not
shown cause or prejudice or actual innocence to excuse the procedural default of his
claim the Court need not reach the statute of limitations argument. The Amended Petition
will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1. Respondent’s Motion for Summary Dismissal (Dkt. 23) is GRANTED.
2. Petitioner’s Objections to Respondent’s characterization of the record (Dkt. 30)
are noted, but are not relevant to the basis for the dismissal of this action.
3. The Amended Petition for Writ of Habeas Corpus (Dkt. 16) is DISMISSED with
prejudice.
4. The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a
timely notice of appeal, the Clerk of Court shall forward a copy of the notice of

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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: August 28, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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