Watts v. Wengler

Filing 19

MEMORANDUM DECISION AND ORDER The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED, and this entire action is DISMISSED with prejudice. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CAMERON D. WATTS,
Case No. 1:12-cv-00215-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIM WENGLER,
Respondent.

Pending before the Court is Petitioner Cameron D. Watts’s Petition for Writ of
Habeas Corpus (Dkt. 3). Respondent has filed an Answer and Brief in Support of
Dismissal (Dkt. 14). Petitioner has filed a reply (Dkt. 16), and Respondent has filed a surreply (Dkt. 17). The Court takes judicial notice of the records from Petitioner’s state court
proceedings, lodged by Respondent on November 30, 2012.1 See Fed. R. Evid. 201(b);
Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
The 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). Having
carefully reviewed the record, including the state court record, the Court finds that the

1

Petitioner asserts that Respondent’s lodging of his state court records did not include the April
29, 2010 judgment of the state trial court dismissing his petition for postconviction relief. (Dkt. 16 at 1.)
Petitioner is mistaken; the written opinion of the state court can be found in State’s Lodging C-1 at pages
155-176, and the judgment can be found at page 177.

MEMORANDUM DECISION AND ORDER - 1

parties have adequately presented the facts and legal arguments in the briefs and record
and that the decisional process would not be significantly aided by oral argument.
Therefore, the Court will 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
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
Watts v. State, Docket No. 37748, 723 (Idaho Ct. App. Nov. 22, 2011) (unpublished),
which is contained in the record at State’s Lodging D-4. The facts will not be repeated
here except as necessary to explain the Court’s decision.
1.

Petitioner’s Guilty Plea
Pursuant to a plea agreement, Petitioner pleaded guilty in the Fifth Judicial District

in Twin Falls County, Idaho, to first degree felony murder. The victim died during the
course of a kidnaping in which Petitioner admittedly participated. (State’s Lodging D-4 at
1.)
In exchange for Petitioner’s guilty plea, the state agreed to stipulate that the fixed
portion of the sentence would be 20 years imprisonment; the state also agreed not to
pursue various lewd and lascivious conduct charges against Petitioner. (State’s Lodging
C-7, C-8.) Petitioner filled out a guilty plea advisory form stating that he had sufficient
time to discuss the plea with his attorney, that he had reviewed the discovery in the case,

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and that he understood “no one, including [his] attorney, [could] force [him] to plead
guilty.” (State’s Lodging C-6 at 6.) At the change of plea hearing, Petitioner and the trial
judge engaged in a thorough plea colloquy, in which Petitioner stated that he fully
understood all of the questions in the guilty plea advisory form, that his counsel had
answered all of his questions, that no one had pressured him into pleading guilty, and that
he enough time to consider the plea with his counsel and with friends and family. (State’s
Lodging C-1 at 7-15.)
Petitioner was sentenced to a unified term of life imprisonment with the first 20
years fixed. (State’s Lodging D-4 at 2.) He appealed, but the Idaho Supreme Court
dismissed the appeal based on the appeal waiver in Petitioner’s plea agreement. (State’s
Lodging B-2.)
2.

Postconviction Proceedings
Petitioner next filed a postconviction petition in the state trial court. He was

appointed counsel (State’s Lodging C-1 at 39), who voluntarily dismissed all of the
claims in the petition except Petitioner’s claims that (1) counsel coerced him into pleading
guilty and (2) counsel rendered ineffective assistance by failing to file a motion to
withdraw Petitioner’s guilty plea prior to sentencing. (State’s Lodging D-4 at 2.) The trial
court dismissed these two remaining claims after holding an evidentiary hearing. (State’s
Lodging C-1 at 155-76.) The Idaho Court of Appeals affirmed, and the Idaho Supreme
Court declined review. (State’s Lodging D-4, D-7.)

MEMORANDUM DECISION AND ORDER - 3

DISCUSSION
Petitioner asserts three claims in his federal habeas petition: (1) that his trial
counsel coerced him into pleading guilty; (2) that his trial counsel rendered ineffective
assistance by failing to move to withdraw Petitioner’s guilty plea; and (3) that he is
actually innocent. (Pet., Dkt. 3, at 4-6.)
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).

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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

MEMORANDUM DECISION AND ORDER - 6

findings, and the misapprehension goes to a material factual issue that is central to
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.

Analysis of Claim 1: Coercion of Guilty Plea
A guilty plea is constitutionally valid only if it is voluntary and intelligent. Brady

v. United States, 397 U.S. 742, 48 (1970). A plea is “intelligent” if a defendant has real
notice of the charges against him and understands the federal constitutional rights he is
waiving by pleading guilty, and it is “voluntary” if the defendant “possesses an
understanding of the law in relation to the facts.” Boykin v. Alabama, 395 U.S. 238, 243
& n.5 (1969) (internal quotation marks omitted). Another definition of a “voluntary and
intelligent” plea is one that “represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S.
25, 31 (1970).
“Where, as here, a defendant is represented by counsel during the plea process and
enters his plea upon the advice of counsel, the voluntariness of the plea depends on
whether counsel’s advice ‘was within the range of competence demanded of attorneys in
criminal cases.’” Hill v. Lockhart, 474 U.S. 52, 56-57 (quoting McMann v. Richardson,

MEMORANDUM DECISION AND ORDER - 7

397 U.S. 759, 771 (1970)). The Idaho Court of Appeals appropriately cited Hill v.
Lockhart and rejected Petitioner’s claim that his plea was not voluntary:
Watts testified that he was pressured into pleading guilty by the
actions of his attorney and staff. The district court found Watts’ assertions
were in direct conflict with the record. In the guilty plea advisory form,
Watts indicated “yes” when asked “Have you had sufficient time to discuss
your case with your attorney?” and indicated “no” when asked “Do you
need any additional time before you enter your guilty plea(s)?” During the
change of plea hearing, the district court asked Watts, “Have you had
enough time to discuss this matter with your lawyers?” and once again
Watts replied “yes.” During the change of plea hearing, the following
exchange took place between the court and Watts:
THE COURT: Is there any other source, whether from
attorney’s pressure, family pressure or otherwise, that you
feel is making this a coercive event today?
THE DEFENDANT: No
THE COURT: This is entirely a voluntary choice by you, Mr.
Watts?
THE DEFENDANT: Yes.
THE COURT: And you feel that you’ve had enough time, as
you’ve told me, to talk to your lawyers about this decision; is
that right?
THE DEFENDANT: Yes.
THE COURT: Have you also had time to talk to family or
friends that you know and trust in making this kind of choice?
THE DEFENDANT: Yes.
THE COURT: And is there anyone in that vein that you’d like
to talk to further before proceeding on with this decision
today?
MEMORANDUM DECISION AND ORDER - 8

THE DEFENDANT: No.
Watts testified that he did not remember filling out the guilty plea
advisory form. The district court found this testimony to not be credible
because he also admitted on cross-examination that he filled out the form in
his own handwriting. Watts also argues that he only had a few hours to
decide whether to accept the plea offer. The court also found that the
discussions between Watts and his counsel were not as limited as he
testified. The court pointed to meetings—between Watts and his
counsel—on October 4 and 6 to discuss the lewd and lascivious conduct
allegations and the meetings over several months prior to the execution of
the plea agreement to demonstrate that Watts had sufficient time to consider
his options. The district court found Watts’ testimony to not be credible.
Watts further testified at the evidentiary hearing that he lied to the
court [during the plea colloquy] because counsel said that if Watts “told the
truth on questions like that, that it would blow up in [his] face.” Once again,
the district court did not find Watts to be credible. Watts’ testimony implied
that counsel deliberately instructed Watts to lie to the court. Counsel
adamantly denied making that statement or instructing Watts to do anything
other than to tell the truth. The district court found counsel’s testimony to
be more credible than Watts’ testimony and, therefore, found Watts’
assertion that he lied to the court not credible.
Credibility is a matter left to the district court. Larkin [v. State], 115
Idaho [72,] 73, 764 P.2d [439,] 440 [Idaho Ct. App. 1988]. Watts The
district court determined that Watts’ testimony regarding his coercion claim
was not credible. On the other hand, Watts’ trial counsel’s testimony was
deemed credible. Allegations for post-conviction relief are insufficient for
the granting of relief when they are clearly disproved by the record of the
original proceedings. Workman v. State, 144 Idaho 518, 523, 164 P.3d 798,
803 (2007). Watts’ claim of coercion is directly contradicted by the record,
namely the guilty plea advisory form and the plea colloquy. Watts’ attempts
to explain away his prior statement were found to be not credible. Watts has
failed to demonstrate that any factual findings of the district court are
clearly erroneous. The district court did not err in denying Watts’ claim that
he was coerced into pleading guilty.
(State’s Lodging D-4 at 4-5) (emphasis added) (alteration in original).

MEMORANDUM DECISION AND ORDER - 9

Given Petitioner’s own statements in the guilty plea advisory form and during the
plea colloquy in open court, the court of appeals’ decision was consistent with a
reasonable application of Hill. Petitioner argues that those statements should not be
considered because the statements themselves were made under coercion and that he
simply said what counsel told him to say. (Dkt. 16 at 5-8.) However, the state district
court determined after an evidentiary hearing that Petitioner’s counsel, who testified
extensively as to circumstances surrounding the guilty plea, was more credible than
Petitioner. Counsel testified he told Petitioner that he needed to tell the truth during the
plea colloquy:
[These] choices are the defendants [sic]. We are, in many ways,
messengers. We tell them what the law is. We tell them what our opinion is,
but they have to make the decisions. And certainly answering those
questions to the judge, that’s his responsibility. Nobody tells him to
exaggerate or to change it or bend it, just answer the questions.
(State’s Lodging C-2 at 122-23.)
The district court believed counsel’s testimony that Petitioner “wanted to go to
trial until the sex offense allegations surfaced, and after that wanted to plead in order to
get the benefit of the non-prosecution agreement which included ‘sealing’ the
agreement.” (State’s Lodging C-1 at 166.) There is nothing unreasonable about the
court’s factual findings that Petitioner was not lying during his plea colloquy or that the
plea was based on Petitioner’s desire to avoid prosecution for multiple sex offenses. Thus,
based on the colloquy, the guilty plea advisory form, and trial counsel’s testimony at the

MEMORANDUM DECISION AND ORDER - 10

evidentiary hearing, the Court concludes that the Idaho Court of Appeals’ decision
rejecting Petitioner’s coercion claim was reasonable.
3.

Analysis of Claim 2: Ineffective Assistance for Failing to Move to Withdraw
Petitioner’s Guilty Plea
A petitioner asserting ineffective assistance of counsel must show that (1) “counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment,” and (2) those errors “deprive[d] the defendant of a
fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687
(1984). Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was unreasonable. A
fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
strategy. There are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not defend a
particular client in the same way.
Id. at 689 (internal citations and quotation marks omitted).

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If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Id. at 691. To show prejudice based on deficient performance of counsel
in a case where the defendant pleaded guilty, “the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59. To show prejudice based on
counsel’s failure to move to withdraw a guilty plea, Petitioner must show that such a
motion would have been granted by the trial court.
The Idaho Court of Appeals noted that Petitioner’s claim encompassed two distinct
arguments: “(1) [Petitioner] specifically directed his attorneys to file a motion to
withdraw his plea and, in the alternative; (2) counsel should have concluded from
[Petitioner’s] statements to him that [Petitioner] wanted to withdraw his plea and counsel
should have acted on this suggestion.” (State’s Lodging D-4 at 5.) With respect to the first
theory, the court relied on the state district court’s credibility findings in concluding that
Petitioner did not ask counsel to move to withdraw the plea:
Watts claims that he specifically instructed his counsel to file a
motion to withdraw his guilty plea. In support of this contention, Watts
offered the testimony of his girlfriend. She testified that they talked
numerous times between the entry of the plea and sentencing and that Watts
communicated his desire to her to withdraw his plea. However, the district
court found that there was no credible evidence in the record that Watts’
girlfriend ever communicated this desire to Watts’ counsel or their staff.
Watts also testified that he “wanted” to withdraw his guilty plea. On the
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other hand, one of his attorneys testified that he met with Watts many times
between the plea and sentencing and not once did Watts voice a desire to
change his plea. Numerous recorded conversations between Watts and his
counsel were admitted into evidence and the district court found that in
none of them did he specifically ask to have his plea withdrawn. The district
court also took note of a letter Watts wrote to the prosecutor and a recorded
conversation between Watts and his aunt, neither of which mentioned a
desire to withdraw his plea. Finally, another of Watts’ attorneys testified
that Watts never directed him to file a motion to withdraw his guilty plea
and that he would not have disregarded such a request. Watts testified that
he told this attorney that he “wanted” to withdraw his plea, to which the
attorney responded that there was “no way you could do it.” The district
court found that the attorney’s statement was an expression of opinion that
the motion would be unsuccessful and that Watts would lose the benefit of
the plea bargain. The district court concluded that Watts did not instruct
counsel to file a motion to withdraw his plea and any interpretation of
Watts’ testimony to the contrary was not credible.
Again, this Court defers to the district court’s credibility
determinations. In addition, the reasonable inferences from and the weight
to be given to the evidence is the sole province of the trial court. Larkin,
115 Idaho at 73, 764 P.2d at 440. Watts has failed to demonstrate that the
district court’s factual findings are clearly erroneous. Watts did have
discussions with his counsel about withdrawing his plea, but nowhere does
the record reflect that Watts actually told his counsel to file such a motion.
Watts challenges only the district court’s factual determination and not the
application of the law based thereon. Consequently, the district court did
not err in denying Watts’ claim that counsel provided ineffective assistance
in failing to file a motion to withdraw guilty plea after being requested to do
so.
(State’s Lodging D-4 at 6-7) (emphasis added).
The court of appeals then went on to discuss Petitioner’s alternative claim that “his
conversations with his attorneys and their staff placed them on notice of his desire to
withdraw his plea and, therefore, they should have known to file a motion prior to
sentencing.” (Id. at 7.) Analyzing the claim under a failure-to-advise theory, the court of
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appeals again relied on the district court’s finding that trial counsel’s testimony was
credible, while Petitioner’s was not:
The record is undisputed that counsel consulted with Watts about
withdrawing his plea. Counsel discussed the plea in the weeks prior to
sentencing as evidenced by the recorded jail conversation. Even Watts
acknowledges that he was consulted on this subject prior to his sentencing.
The district court found that counsel consulted with Watts concerning the
advantages and disadvantages of filing a motion to withdraw his plea and
that Watts did not instruct counsel to withdraw his plea because he himself
concluded that it was not in his best interest to do so. The district court's
findings of fact are supported by the record and are not clearly erroneous.
An attorney cannot sua sponte determine to file a motion to withdraw
a client’s guilty plea. That decision must be made by the client. An
attorney’s obligation in this regard is limited to consulting with the client
and giving him or her proper advice regarding the process. Watts was
advised that if he was successful in withdrawing his plea, the State would
not be bound to its sentencing recommendation or its commitment not to file
the lewd conduct charges. The district court noted from the evidence that
Watts had a great fear of going to the penitentiary labeled as a sex
offender, which is why that portion of the plea agreement was sealed. Watts
was consulted about withdrawing his guilty plea and has not asserted that
such advice was improper. The district court held that counsel’s
performance regarding this matter did not fall below an objective standard
of reasonableness[,] and we agree.
(Id. at 8) (emphasis added).
The Idaho Court of Appeals’ disposition of Petitioner’s claim that counsel should
have filed a motion to withdraw the plea was a reasonable application of Strickland. The
state district court found credible an attorney’s testimony that Petitioner never directed
him to file such a motion. The court reasoned that counsel “would have no reason to
disregard [a] request to withdraw the plea, let alone a reason to deny that [Petitioner]

MEMORANDUM DECISION AND ORDER - 14

asked him [to] withdraw the plea.” (State’s Lodging C-1 at 170.) The court found that
Petitioner did not ask his counsel to withdraw the plea, but that he merely expressed a
desire to do so, the result of which was that Petitioner himself decided not to pursue the
motion. (Id. at 168.) All of these factual findings were reasonable in the light of the
evidence before the state court.
With respect to Petitioner’s claim that his counsel should have filed a motion to
withdraw the plea even though Petitioner had not asked him to do so, the court of appeals
reasonably held that given Petitioner’s desire to avoid prosecution on the lewd conduct
charges, counsel did not perform deficiently by filing a motion that would open Petitioner
up to all of those charges that the State had earlier agreed not to pursue. (State’s Lodging
D-4 at 8.) Petitioner has not shown that his counsel’s actions in not moving to withdraw
Petitioner’s guilty plea fell below an objective standard of reasonableness. See Strickland,
466 U.S. at 689.
4.

Analysis of Claim 3: Actual Innocence
Petitioner asserts that he is actually innocent. A freestanding claim of actual

innocence is not cognizable on collateral review in a federal habeas corpus action;
however, a habeas petitioner may avoid a procedural bar, such as the statute of
limitations, by making a credible showing of actual innocence. See Herrera v. Collins,
506 U.S. 390, 404-05 (1993) (“[O]ur habeas jurisprudence makes clear that a claim of
‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which

MEMORANDUM DECISION AND ORDER - 15

a habeas petitioner must pass to have his otherwise barred constitutional claim considered
on the merits.”).
Here, Petitioner raises actual innocence primarily “to show he suffered prejudice
from the other two constitutional violations asserted” in the Petition. (Dkt. 16 at 4.)
However, because the Court has concluded that there was no constitutional error in
Petitioner’s state court proceedings, there is no need to address whether Petitioner
suffered prejudice as a result of any such error.2
CONCLUSION
The Idaho Court of Appeals’ decision rejecting Petitioner’s habeas claims was
neither contrary to, nor an unreasonable application of, clearly established Supreme Court
precedent. Moreover, the state courts’ findings of fact were supported by the record and
are not unreasonable. Therefore, the Petition will be denied.
ORDER
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED, and this entire
action is DISMISSED with prejudice.

2.

The Court does not find its resolution of this habeas matter to be reasonably

2

Additionally, the Court notes that Petitioner’s assertion of innocence appears to be based on his
statement that he left the scene before the victim died and had no part in the actual killing. But as
Petitioner was informed by trial counsel years ago, a conviction for first degree felony murder does not
require that Petitioner be “the person that actually killed the . . . victim” (State’s Lodging C-2 at 102);
Idaho’s felony murder rule allows for a conviction so long as the defendant “had the specific intent to
commit the predicate felony.” State v. Dunlap, 313 P.3d 1, 20 (Idaho 2013).

MEMORANDUM DECISION AND ORDER - 16

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

DATED: January 10, 2014

Honorable Candy W. Dale
United States Magistrate Judge

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