Cook v. Smith

Filing 41

MEMORANDUM DECISION AND ORDER Petitioner's Motion to Withdraw Motion Requesting Leave to Amend (Dkt. 32 ) is GRANTED; Petitioner's Motion to Amend Petition (Dkt. 10 ) is DEEMED WITHDRAWN, and the Second Amended Petition (Dkt. 11 ) is STR ICKEN. Respondent's Motion to Dismiss (Dkt. 18 ) is GRANTED. The Amended Petition for Writ of Habeas Corpus (Dkt. 8 ) and this entire action are DISMISSED with prejudice. Respondent's Motion for Leave to File Excess Pages (Dkt. 19 ) is GRANTED. Petitioner's Motion for Extension of Time to File Response (Dkt. 23 ) is GRANTED. The Response filed at Docket No. 27 is considered timely. Petitioner's Motion to File Oversized Statement of Disputed Facts (Dkt. 28 )is GRANTED . Petitioner's Motion Withdrawing Motion for Leave to File SummaryJudgment Motion (Dkt. 31 ) is GRANTED; Petitioner's Motion for Leave toFile a Summary Judgment Motion (Dkt. 16 ) is DEEMED WITHDRAWN. The Motions Requesting Leave for Intervention Filed by Ray Nelson (Dkt. 22 ) and Peggy Cook (Dkt. 35 ) are MOOT.. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEVEN JAMES COOK,
Case No. 1:12-cv-00281-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

JOHANNA SMITH,
Respondent.

Pending before the Court are various motions filed by the parties and by proposed
intervenors that are now ripe for adjudication, including Respondent’s Motion to Dismiss
based on procedural default. Having reviewed the record in this matter, the Court has
determined that oral argument is unnecessary. Accordingly, the Court enters the
following Order.
RESPONDENT’S MOTION TO DISMISS
Respondent asserts that all of Petitioner’s claims are procedurally defaulted, and
that the Petition for Writ of Habeas Corpus is subject to dismissal with prejudice. (Dkt.
18.) Petitioner makes several arguments in response to show that his claims are not

MEMORANDUM DECISION AND ORDER - 1

procedurally defaulted, or, if they are, why the merits of the claims should be heard under
one of the exceptions to the procedural default rule. (Dkt. 27.)
1.

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

dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the
district court.” In considering dismissal, the Court construes the facts in a light most
favorable to the petitioner. It is appropriate for the Court to take judicial notice of court
dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d
550, 551 (9th Cir. 2006).
Habeas corpus law requires that a petitioner “exhaust” his state court remedies
before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a
claim, a habeas petitioner must fairly present it to the highest state court for review in the
manner prescribed by state law. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If
a petitioner has not exhausted his state court remedies for a particular claim, a federal
district court may deny the claim on its merits, but it cannot otherwise grant relief on an
unexhausted claim. 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion
requirement by showing that (1) he has “fairly presented” his federal claim to the highest
state court with jurisdiction to consider it, or (2) that he did not present the claim to the
highest state court, but no state court remedy is available when he arrives in federal court

MEMORANDUM DECISION AND ORDER - 2

(improper exhaustion). Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations
omitted).
To exhaust a habeas claim properly, a habeas petitioner must “invok[e] one
complete round of the State’s established appellate review process,” O’Sullivan v.
Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the
alleged constitutional error at each level of appellate review. See Baldwin v. Reese, 541
U.S. 27, 29 (2004). Improperly exhausted claims are deemed “procedurally defaulted.”
Procedurally defaulted claims include those within the following circumstances: (1) when
a petitioner has completely failed to raise a particular claim before the Idaho courts; (2)
when a petitioner has raised a claim, but has failed to fully and fairly present it as a
federal claim to the Idaho courts; or (3) when the Idaho courts have rejected a claim on an
independent and adequate state procedural ground. See Martinez v. Klauser, 266 F.3d
1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.
1994)). Under these circumstances, the claim is considered to be “procedurally defaulted”
for purposes of federal habeas corpus proceedings. Coleman v. Thompson, 501 U.S. 722,
731 (1991).
2.

Background
In October 2000, Petitioner was indicted for crimes relating to a scheme to defraud

investors in Utah, Idaho, and Wyoming, in a federal criminal case in the United States

MEMORANDUM DECISION AND ORDER - 3

District Court for the District of Wyoming. See Case No. 00-cr-00144-01J, United States
of America v. Steven James Cook.
In addition, in July 2001, Petitioner was charged with nine counts of grand theft by
deception, one count of selling securities without a license, and a persistent violator
enhancement, in an Information filed in the Bear Lake County District Court in Paris,
Idaho. (State's Lodging A-1, pp. 60-64.) Petitioner, aided by appointed counsel Todd
Garbett, pleaded guilty to the nine counts of grand theft in exchange for dismissal of the
other two charges. Petitioner was sentenced to a unified term of fourteen years, with five
years fixed for Count I (to run concurrent with his sentence in a related federal case),
followed by eight consecutive unified terms of eight years with three years fixed for the
remaining counts. His total aggregate sentence was 78 years, consisting of 29 years fixed,
with 49 years indeterminate. In addition, he was ordered to pay $1,467,577 in restitution.
(State’s Lodging A-1, p. 84.)
No direct appeal was filed, but Petitioner filed a Rule 35 motion for reduction of
sentence. (State’s Lodging A-1, p. 94.) The state district court denied the motion, and
Petitioner did not file an appeal. (Id., p. 102.)
From this point, the procedural history of Petitioner’s postconviction matters has
been described as “complex and protracted.” (State’s Lodging E-12.) The Court will
briefly highlight those portions of the postconviction history relevant to the procedural
default issues in this case.
MEMORANDUM DECISION AND ORDER - 4

November 2004

Counsel David Parmenter filed a first application for postconviction
relief for Petitioner, asserting, among other claims: (1) trial counsel
Garbett was ineffective for failing to call witnesses and present
evidence regarding a restitution plan at Petitioner’s sentencing that
sought to have Petitioner released on probation to pursue
employment so that he could repay investors; and (2) Garbett was
ineffective for failing to file a notice of appeal from the judgment of
conviction and from the denial of the Rule 35 motion for reduction
of sentence. (State’s Lodging B-1.)

September 2006

The state district court denied relief on Claim (1), but granted relief
on Claim (2), re-entering judgment (twice) to permit Petitioner to
appeal. (State’s Lodging A-1, pp. 143, 156-57.)

March 2008

The Idaho Court of Appeals affirmed the state court decision that
counsel was not ineffective, but determined that the cumulative
consecutive sentences were unreasonably harsh and reduced them
from a unified term of 78 years with 29 years fixed to a unified term
of 46 years with 17 years fixed. (State’s Lodging C-6.) Petitioner did
not file a petition for review to challenge the portion of the decision
affirming the ruling that Petitioner had failed to show ineffective
assistance of counsel.

September 2009

Counsel John Souza filed a Rule 60(b) motion that was treated as a
successive postconviction action. (State’s Lodging D-1, pp. 28-130.)
The state district court determined that Petitioner’s prior counsel
were ineffective for failing to present new information at the original
rule 35 hearing or the original postconviction action. The court
granted relief, entering an amended judgment of conviction,
suspending the balance of his sentence, and placing him on
supervised probation for 37 years. (State’s Lodging D-1, pp. 185206.) The State appealed, and Counsel Dennis Benjamin represented
Petitioner in the appeal.

August 2010

The Idaho Court of Appeals reversed the district court’s order
amending the judgment, concluding that Petitioner did not present
newly discovered evidence or meet the “any other reason justifying
relief” standard of Rule 60(b). The Idaho Court of Appeals

MEMORANDUM DECISION AND ORDER - 5

concluded that counsel had not been ineffective, and postconviction
relief was not warranted. (State’s Lodging E-12.)
September 2010

3.

Petitioner filed a petition for review before the Idaho Supreme Court,
but then voluntarily withdrew it. The petition was not considered,
and the remittitur was issued from the Idaho Court of Appeals.
(State’s Lodgings E-13 to E-16.)

Discussion of Procedural Default
Respondent argues, very simply, that Petitioner’s claims are procedurally defaulted

because he did not bring any of his claims before the Idaho Supreme Court in a petition
for review. This argument is supported by the state court record. Petitioner concedes that
he did not file a petition for review after the March 18, 2008 ruling of the Idaho Court of
Appeals. (Dkt. 27, p. 6.) Petitioner argues that, instead of filing a petition for review, he
filed a second and third postconviction application to correct the errors in the first
application. (Dkt. 27, p.7.) However, at the end of the day, Petitioner withdrew his
petition for review in his final postconviction matter, preventing the Idaho Supreme Court
from reviewing his claims. Because Petitioner failed to raise his claims before the Idaho
Supreme Court in any of his actions, the Court concludes that the claims are procedurally
defaulted.

MEMORANDUM DECISION AND ORDER - 6

4.

Standard of Law Governing Cause and Prejudice
A federal district court cannot hear the merits of a procedurally defaulted claim

unless a petitioner meets one of two exceptions: (1) a showing of adequate legal cause for
the default and prejudice arising from the default; or (2) a showing of actual innocence,
which means that a miscarriage of justice will occur if the claim is not heard in federal
court. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Schlup v. Delo, 513 U.S. 298,
329 (1995).
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
A petitioner does not have a federal constitutional right to effective assistance of
counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule
is that any errors of his counsel during the postconviction action cannot serve as a basis
for cause to excuse Petitioner’s procedural default of his claims. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991).
MEMORANDUM DECISION AND ORDER - 7

The holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), established a “limited
qualification” to the Coleman rule. Id. at 1319. 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 1315.
“To overcome the default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Id. at 1318.
The Martinez Court explained that the limited exception was created “as an
equitable matter, that 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 1318.
In Idaho, the postconviction setting is the “preferred forum for bringing claims of
ineffective assistance of counsel,” although in limited instances such claims may be
brought on direct appeal “on purported errors that arose during the trial, as shown on the
record”( as opposed to matters arising outside the record). Matthews v. State, 839 P.2d
1215, 1220 (Idaho 1992). Thus, in Idaho, Martinez can be applied to ineffective
assistance of trial counsel claims arising from Idaho state court convictions and sentences,
where the postconviction setting was the first forum in which the ineffective assistance of
trial counsel claim based on matters arising outside the record could have been brought
and developed in an evidentiary hearing. See Matthews, 839 P.2d at 1120.
MEMORANDUM DECISION AND ORDER - 8

The Martinez Court explained that its holding was based on “equitable” rather than
“constitutional” grounds, and emphasized that it was not to be applied generally to
procedural default circumstances:
The rule of Coleman governs in all but the limited circumstances
recognized here. The holding in this case does not concern attorney errors
in other kinds of proceedings, including appeals from initial-review
collateral proceedings, second or successive collateral proceedings, and
petitions for discretionary review in a State's appellate courts.... It does not
extend to attorney errors in any proceeding beyond the first occasion the
State allows a prisoner to raise a claim of ineffective assistance at trial, even
though that initial-review collateral proceeding may be deficient for other
reasons.
Id. at 1320 (citations omitted).1
The Ninth Circuit has summarized the Martinez test as follows: “a reviewing court
must determine whether the petitioner's attorney in the first collateral proceeding was
ineffective under Strickland,2 whether the petitioner's claim of ineffective assistance of
trial counsel is substantial, and whether there is prejudice.” Sexton v. Cozner, 679 F.3d
1150, 1159 (9th Cir. 2012) (footnote added). Under Strickland, a petitioner must show
that his counsel's performance was both unreasonably deficient and that the defense was
actually prejudiced as a result of counsel's errors. Strickland, 466 U.S. at 684. In Sexton,
1

The Martinez Court also reiterated that (1) § 2254(i) specifically provides that “incompetence of
counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in
proceedings arising under section 2254,” id. at 1320, and (2) its holding did not resolve the question of
whether a prisoner has a right to effective counsel in collateral proceedings that provide the first occasion
to raise a claim of ineffective assistance of trial counsel. Id. at 1315.
2

Strickland v. Washington, 466 U.S. 668 (1984).

MEMORANDUM DECISION AND ORDER - 9

the court reiterated that counsel is not ineffective for failing to raise a claim that is
meritless. 679 F.3d at 1157 (citing Knowles v. Mirzayance, 556 U.S. 111, 127 (2009)).
Under Strickland, there is a strong presumption that an attorney performed within
the wide range of professional competence; the attorney’s performance will be deemed
deficient only if it fell below an objective standard of reasonableness measured under
prevailing professional norms. Strickland, 466 U.S. at 689, 694.
To show prejudice under Strickland, the petitioner must demonstrate that there is a
reasonable probability that, but for counsel's unreasonable errors, the result of the
proceeding would have been different. Id. at 694. “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. As a result, “[t]he question is
whether an attorney’s representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best practices or most common custom.”
Harrington v. Richter, 131 S.Ct. 770, 778 (2011) (internal quotations and citation
omitted).
The application of the Strickland test in the context of Martinez means that
Petitioner is required to show that counsel’s representation during the post-conviction
proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable
probability that Petitioner would have received relief on a claim of ineffective assistance
of trial counsel in the state postconviction matter.
MEMORANDUM DECISION AND ORDER - 10

This standard is a high one. Stated another way, to overcome procedural default
under Martinez, the petitioner must show that “[postconviction relief] counsel’s failure to
raise the claim that trial counsel was ineffective was an error “so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and
caused [the petitioner] prejudice.” Sexton, 679 F.3d at 1157 (citing Strickland, 466 U.S. at
687).
5.

Discussion of Cause and Prejudice
Petitioner argues that Martinez v. Ryan applies to excuse the default of his

ineffective assistance of trial counsel claims. However, Petitioner’s claims were defaulted
as a result of Petitioner’s failure to file a petition for review with the Idaho Supreme
Court, not as a result of ineffective assistance of postconviction counsel during initial
postconviction proceedings.
Petitioner argues that it would have been futile to file a petition for review,
because the Idaho Supreme Court could not have found in his favor for the reason that the
record before it did not contain the additional financial records, victim statements, and
other evidence that postconviction counsel failed to bring in the district court. Even if a
futility theory were applicable, this argument does not address why Petitioner withdrew
his petition for review after the final postconviction matter, when new counsel had
brought forward additional financial records, victim statements, and other evidence.

MEMORANDUM DECISION AND ORDER - 11

The Martinez exception is narrowly centered on what, exactly, caused Petitioner to
fail to present his claims to the highest state court. In this case, Petitioner himself decided
that filing a petition would not produce a successful outcome, and so he chose to forgo
filing a petition. While Mr. Parmenter’s decisions and actions influenced Petitioner’s
decision, they did not cause the nonfiling of the petition for review. Rather, the cause of
the default of Petitioner’s claims is Petitioner’s decision to forgo filing a petition for
discretionary review based on his own assessment that the claim would be futile. The
narrow exception established in Martinez expressly “does not concern attorney errors in
other kinds of proceedings, including appeals from the initial-review collateral
proceedings, second or successive collateral proceedings, and petitions for discretionary
review in a State’s appellate court.” 132 S.Ct. at 1320.
In addition to Martinez, Petitioner argues that the general rule requiring
exhaustion, 28 U.S.C. § 2254(b)(1)(A), may be excused if one of two conditions is met:
“(i) there is an absence of available State corrective process; or (ii) circumstances exist
that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. §
2254(b)(1)(B).
Futility, however, does not exempt one from the exhaustion requirement. In Engle
v. Isaac, the United States Supreme Court rejected the concept that challenging a longstanding legal rule in state court presents a circumstance of futility that excuses a
petitioner from raising the claim in state court:
MEMORANDUM DECISION AND ORDER - 12

If a defendant perceives a constitutional claim and believes it may find
favor in the federal courts, he may not bypass the state courts simply
because he thinks they will be unsympathetic to the claim. Even a state
court that has previously rejected a constitutional argument may decide,
upon reflection, that the contention is valid. Allowing criminal defendants
to deprive the state courts of the this opportunity would contradict the
principles supporting Sykes.3
456 U.S. at 130 (pre-AEDPA case decided in the context of a procedurally-defaulted
claim where petitioner raised no objection at trial because of the alleged futility of the
objection).
Here, Petitioner has not shown that he was without an available state remedy; in
fact, he did not follow through in presenting his claims to the Idaho Supreme Court
through the state remedy that was available to him.

3

In Engle v. Isaac, the Court noted that Wainwright v. Sykes, 433 U.S. 72 (1977), stands for the
principle that the state appellate courts should be given a “chance to mend their own fences and avoid
federal intrusion.” 456 U.S. at 112.
MEMORANDUM DECISION AND ORDER - 13

6.

Conclusion and Motions to Intervene
Petitioner has made no meritorious argument to show cause for the default of his

claims. He does not argue (nor does the record show) that he is actually innocent, another
exception to the procedural default rule. Accordingly, this entire action is subject to
dismissal with prejudice.
In addition, the Motions to Intervene filed by two victims of Petitioner’s crimes are
moot, because this action cannot proceed. (Dkt 22, 35.)
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion to Withdraw Motion Requesting Leave to Amend (Dkt.
32) is GRANTED; Petitioner’s Motion to Amend Petition (Dkt. 10) is
DEEMED WITHDRAWN, and the Second Amended Petition (Dkt. 11) is
STRICKEN.

2.

Respondent’s Motion to Dismiss (Dkt. 18) is GRANTED.

3.

The Amended Petition for Writ of Habeas Corpus (Dkt. 8) and this entire
action are DISMISSED with prejudice.

4.

Respondent’s Motion for Leave to File Excess Pages (Dkt. 19) is
GRANTED.

5.

Petitioner’s Motion for Extension of Time to File Response (Dkt. 23) is
GRANTED. The Response filed at Docket No. 27 is considered timely.

MEMORANDUM DECISION AND ORDER - 14

6.

Petitioner’s Motion to File Oversized Statement of Disputed Facts (Dkt. 28)
is GRANTED.

7.

Petitioner’s Motion Withdrawing Motion for Leave to File Summary
Judgment Motion (Dkt. 31) is GRANTED; Petitioner’s Motion for Leave to
File a Summary Judgment Motion (Dkt. 16) is DEEMED WITHDRAWN.

8.

The Motions Requesting Leave for Intervention Filed by Ray Nelson (Dkt.
22) and Peggy Cook (Dkt. 35) are MOOT.

9.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealabilty 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.

DATED: June 6, 2013

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

MEMORANDUM DECISION AND ORDER - 15