Glass v. Wengler
Filing
17
MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Claim Three of the Petition for Writ of Habeas Corpus (Dkt. 1), the only claim remaining in this action, is DENIED. This entire action is DISMISSED with prejudice. The Court does not find its resolutio n of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JIMMY THOMAS GLASS,
Case No. 1:12-cv-00380-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
WARDEN TIM WENGLER,
Respondent.
Pending before the Court is Petitioner Jimmy Thomas Glass’s Petition for Writ of
Habeas Corpus (Dkt. 1). The Court previously dismissed Claims One, Two, and Four of
the Petition as procedurally defaulted. (Dkt. 12.) Therefore, the only claim remaining in
this action is Claim Three.
Respondent has filed an Answer and Brief in Support of Dismissal with respect to
Claim Three. (Dkt. 13). Petitioner has filed a reply (entitled “Objection To Dismissal of
Petition for Writ of Habeas Corpus”), and Respondent has filed a Sur-reply. (Dkt. 15, 16).
The Court takes judicial notice of the records from Petitioner’s state court proceedings,
lodged by Respondent on March 14, 2013, and April 2, 2014. (See Dkt. 7, 14.)
Having carefully reviewed the record, including the state court record, the Court
finds that the parties have adequately presented the facts and legal arguments in the briefs
and record and that the decisional process would not be significantly aided by oral
MEMORANDUM DECISION AND ORDER - 1
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 Claim Three and dismissing this case with prejudice.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Glass, 190 P.3d 896 (Idaho Ct. App. 2008), which is contained in the record at
State’s Lodging B-4:
During the week of July 15, 2004, detectives from the Ada County
Sheriff’s Office conducted an Internet sting operation to locate individuals
enticing children into sexual activity over the Internet. Two officers posing
as children under the age of sixteen were online at the same time for
approximately eight hours a day. One day, Detective Kenneth Smith logged
into a Yahoo . . . chat room labeled “romance” and posed as a fifteen-yearold girl with the screen name “lisa200215ncal.” The user profile for that
screen name identified “Lisa” as a high school sophomore from California
who was currently in Boise visiting her father.
After Detective Smith logged into the chat room, other individuals
already signed into the same chat room were able to see Detective Smith’s
screen name and profile and were able to send private “instant messages”
directly to him. Subsequently, he was privately contacted by a person using
the screen name “letsgetkinky831.” During an ensuing conversation,
“lisa200215ncal” indicated that she was a fifteen-year-old female to which
“letsgetkinky831” replied, “That’s cool.” He then asked her to look at the
picture on his profile, that of a man from the waist down, naked and
masturbating, and to tell him if it was “ok.” The following conversation
then took place:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
yea looks ok
:D [laughter]
maybe you’d let me undress in front of
you?
maybe
well what do you have in mind then?
MEMORANDUM DECISION AND ORDER - 2
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
Letsgetkinky831:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
I don’t know didn’t really have a plan
well then let me start by coming over and
taking my clothes off
play with it in front of you, get it hard
see what comes up?
yea might be able to do that
cool
when?
Lisa?
what’s wrong now?
think
ok
so ur serious
i’m dead serious
i’ll undress, if you don’t like, I’ll leave, k
well how far do u want to go
only as far as you want to go
so if I said no sex u would be good with
that
yes
cool then?
....
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
i need to go to work today
when
at 2
so I’d have to do this soon
oh so will that be enough time
sure will if ya let me come over now
:D
what part of town do you live in
north side U?
well im not really sure do u know where
Fairview is
i do
ok
what’s the address then?
[address given]
ok
so it’s cool then?
MEMORANDUM DECISION AND ORDER - 3
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
Lisa200215ncal:
Letsgetkinky831:
what is ur first name
Tom
I will look for u what does ur car look
like
blk car
small or big (the car)
lol small 2 dorr
door
ok well see u in a bit do you have a
condom
I don’t but thought you didn’t want sex
well bring one just in case u never no
k
Twenty-three minutes after the conversation ended, another detective
in the apartment observed a black two-door car pulling into the apartment
parking lot. The detectives then lost sight of the car, but shortly thereafter,
Glass knocked on the apartment door where the sting was taking place. He
was placed under arrest.
(State’s Lodging B-4 at 1-3 (alterations in original).
Police officers later seized a Micron laptop computer from Petitioner’s workplace.
At Petitioner’s preliminary hearing, a computer forensics investigator testified that he had
begun a preliminary examination of the laptop and that he had found some evidence of
the username “letsgetkinky831” on the computer. (State’s Lodging C-1 at 47-48.) At trial,
however, the prosecution did not call this investigator. In fact, the prosecution did not
introduce any evidence from any computer. (See State’s Lodging E-1 at 252.) Rather, the
state’s case rested on circumstantial evidence that Petitioner was “letsgetkinky831”: (1)
there could only be one person using the name “letsgetkinky831” the day of the chat
because screen names on Yahoo! chat rooms are unique; (2) “letsgetkinky831” told
“lisa200215ncal” that he was leaving to go to her apartment “now” and that he would
MEMORANDUM DECISION AND ORDER - 4
arrive in a small, 2-door black car; (3) 23 minutes later, a small, 2-door black car turned
into the parking lot of the vacant apartment being used in the sting operation; and (4)
shortly thereafter, Petitioner knocked on the door to the apartment. (See State’s Lodging
A-2 at 14-20; A-4 at 20-25, 42-43.)
The jury found Petitioner guilty, and he was sentenced to 15 years in prison with 3
years fixed. On Petitioner’s motion for reduction of sentence under Idaho Rule of
Criminal Procedure 35, the court reduced the fixed term of the sentence to 2 years.
(State’s Lodging A-1 at 88, D-3 at 2; Dkt. 1 at 1.) Petitioner’s conviction was upheld on
appeal. (State’s Lodging B-4.)
Following a grant of state postconviction relief as to sentencing, Petitioner was resentenced to a 15-year prison term with 3 years fixed. (State’s Lodging E-1 at 4.) The
state district court denied all other postconviction relief. Petitioner appealed the dismissal
of the claim he now asserts as Claim Three in his federal Petition. The Idaho Court of
Appeals affirmed the state district court, and the Idaho Supreme Court denied review.
(State’s Lodging D-3 and D-6.)
DISCUSSION
In Claim Three, Petitioner alleges that the prosecution violated Brady v. Maryland,
373 U.S. 83 (1963), by failing to disclose the seizure of the Micron laptop or to “carry
over this key preliminary hearing evidence over to trial.” (Pet., Att. A, Dkt. 1-1 at 4)
(capitalization omitted). Petitioner argues that because the state offered forensic
testimony regarding initial computer testing at the preliminary hearing, but not at trial, the
MEMORANDUM DECISION AND ORDER - 5
final results of that testing must have been exculpatory. The Idaho Court of Appeals
determined that the state did not fail to disclose the laptop and that Petitioner had not met
his burden of showing that the results of the forensic examination of the computer were
material. (State’ Lodging D-3 at 4-5.)
For the reasons that follow, the Court concludes that Petitioner is not entitled to
relief on Claim Three.
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 of 1996 (“AEDPA”), federal habeas relief is further 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). A state court need not “give reasons before its decision can be
deemed to have been ‘adjudicated on the merits.’” Harrington v. Richter, 562 U.S. 86,
131 S. Ct. 770, 785 (2011).
MEMORANDUM DECISION AND ORDER - 6
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, 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 (Terry) 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.”
Richter, 131 S. Ct. at 786.
MEMORANDUM DECISION AND ORDER - 7
In Richter, the United States Supreme Court strongly reiterated that a federal court
may not simply decide anew a claim on its merits after the highest state court has done so,
just because the federal court would have made a different decision. Rather, the review is
necessarily deferential. Id. at 785-86. The 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
[that] 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 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).
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 th[e] Court has not announced.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013). 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).
MEMORANDUM DECISION AND ORDER - 8
As to the facts, the United States Supreme Court has 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 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 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
MEMORANDUM DECISION AND ORDER - 9
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).
2.
The Decision of the Idaho Court of Appeals Was Not Contrary To, or an
Unreasonable Application, Clearly-Established Supreme Court Precedent,
Nor Was It Based on an Unreasonable Determination of the Facts. Therefore,
Petitioner Is Not Entitled to Habeas Relief on Claim Three.
Claim Three asserts that the prosecution failed to disclose the laptop or the final
results of the forensic examination of the laptop. Petitioner claims that those results must
have been material and exculpatory and that the prosecution’s failure to disclose those
results prejudiced the defense.
It is well established that the prosecution has a duty under the Due Process Clause
of the Fourteenth Amendment to disclose exculpatory evidence to the defense when that
evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963). A
meritorious Brady claim contains three essential components: (1) the evidence must be
MEMORANDUM DECISION AND ORDER - 10
favorable to the accused, either because it is exculpatory or because it is impeaching; (2)
the prosecution must have withheld the evidence, either intentionally or inadvertently;
and (3) the evidence must be material to guilt or punishment. Strickler v. Greene, 527
U.S. 263, 281-82 (1999).
Suppressed evidence is material under Brady, and its non-disclosure prejudicial,
when there is a reasonable probability that, had the evidence been disclosed, the result of
the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
In determining “materiality,” the court must assess the weight and force of the withheld
evidence collectively, rather than item by item. Id.
In rejecting Petitioner’s Brady claim regarding the laptop, the Idaho Court of
Appeals correctly identified the Supreme Court’s decisions in Brady and Strickler as
controlling precedent. (State’s Lodging D-3.) The court applied these standards and
rejected Petitioner’s claim that the state violated Brady by failing to disclose the seizure
of the laptop computer, concluding that the fact of the seizure had not been withheld by
the prosecution:
The computer had been seized by police pursuant to a
search warrant. In its order summarily dismissing
[Petitioner’s] claim of a Brady violation, the district court
held that the evidence was not material. A threshold question
before undertaking a Brady analysis, however, is whether the
evidence was disclosed. In this case, the seizure of
[Petitioner’s] work computer was the subject of extensive
testimony offered at [Petitioner’s] preliminary hearing which
was subject to cross-examination by [Petitioner’s] counsel.
The transcript of that hearing was attached to [Petitioner’s]
application for post-conviction relief. [Petitioner’s] own
MEMORANDUM DECISION AND ORDER - 11
filings belie his claim that the computer itself was not
disclosed by the state. If [Petitioner] wished to engage his
own forensic examiner to review the computer’s contents, he
could have obtained access to the computer through an
appropriate discovery request. Therefore, [Petitioner] has
failed to establish a genuine issue that the state failed to
disclose material evidence.
(State’s Lodging D-3 at 4-5.)
This determination was not an unreasonable application of Brady and Strickler, nor
was it based on an unreasonable determination of the facts. Petitioner obviously knew that
the prosecution had the laptop and that the police had commenced forensic testing on the
laptop. Petitioner’s counsel could have examined the laptop and had it tested
independently, but chose not to do so. The Court has found no Supreme Court precedent
suggesting that the prosecution is required to use at trial any evidence introduced at the
preliminary hearing. Therefore, the state court reasonably determined that the prosecution
did not withhold the laptop computer.
The Idaho Court of Appeals also rejected Petitioner’s claim that the state violated
Brady by failing to disclose the end results of the forensic tests performed on the laptop.
The court held that Petitioner had not established that the evidence was material:
At the preliminary hearing, the state’s forensic
examiner testified that a superficial examination of the hard
drive revealed the existence of the precise phrase
“letsgetkinky831.” However, he testified that testing had not
yet been completed. The state did not use the test results
during [Petitioner’s] trial and never disclosed whether the
testing had been completed or the results of the completed
evaluation to the defense. [Petitioner’s] application infers that,
because the state did not introduce the test results at trial, they
MEMORANDUM DECISION AND ORDER - 12
must have been exculpatory. However, [a petitioner’s]
conclusory allegations, unsupported by admissible evidence,
are not sufficient to create a genuine issue of material fact. In
this case, [Petitioner’s] application provided even less than
conclusory allegations. It provided only implicit inferences
and speculation that the results of forensic testing done on his
work computer must have been exculpatory because the state
did not present them at trial. Therefore, [Petitioner] has failed
to establish a genuine issue that the state failed to disclose
material, exculpatory evidence.
(State’s Lodging D-3 at 5) (internal citation omitted).
Like its decision on Petitioner’s claim regarding the existence and seizure of the
laptop, the Idaho Court of Appeals’ decision that the results of the forensic testing were
not material is not objectively unreasonable. Petitioner relies only on suppositions and
unsupported inferences that the forensic testing results must have been exculpatory and
material. But as this Court previously explained when it concluded that cause and
prejudice did not exist for the procedural default of Petitioner’s ineffective assistance of
counsel claim,
It is mere speculation that the laptop contained no
incriminating evidence. Petitioner claims that, because an
investigator testified at the preliminary hearing that
Petitioner’s Micron laptop contained evidence of use of the
“letsgetkinky831” screen name, the only reason the
prosecution would decline to introduce the laptop at trial was
if the investigator had lied and there was actually no evidence
of the screen name on the computer. (Pet. at 4-7.) . . . But
there could be any number of reasons why the prosecution
would choose to present certain evidence or to present its
evidence in a certain way. For example, the prosecutor may
have believed the computer evidence to be unnecessary
because of the overwhelming nature of the rest of the
evidence, as well as potentially confusing to the jury.
MEMORANDUM DECISION AND ORDER - 13
(Dkt. 12 at 30.) There is no evidence in this record that forensic testing was ever
completed at all, much less that the results of such testing were favorable to Petitioner.
See Strickler, 527 U.S. at 281.
Moreover, the Idaho Court of Appeals’ conclusion that any testing results were not
material is supported by the fact that the prosecution never argued that the Micron
laptop—or any particular computer, for that matter—was used to chat with
“lisa200215ncal.” The prosecution relied on the extremely strong circumstantial evidence
of Petitioner’s involvement—that someone referring to himself as “letsgetkinky831”
chatted with “lisa200215ncal” and told her he would arrive at her apartment in a small, 2door black car,1 that 23 minutes later such a car did indeed turn into the parking lot of the
vacant apartment the police were using in the sting operation, and that shortly thereafter
Petitioner knocked on the door of the apartment.
Even if the Court assumes that the laptop did not contain any evidence of the chat,
it cannot say the Idaho Court of Appeals’ decision was objectively unreasonable. Had the
prosecution introduced the laptop at trial and argued that it was the computer used by
Petitioner in the crime, then the absence of any evidence of the chat on the laptop might
1
Petitioner’s claim that the chat log itself should have been excluded on the ground that
Detective Smith was not qualified to testify regarding that log is unpersuasive. Detective Smith,
as a party to the conversation memorialized by the chat log, was a witness with knowledge that
the chat log was an accurate reproduction of the conversation between “letsgetkinky831” and
“lisa200215ncal.” See Idaho R. Evid. 901(a) (“The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.”); I.R.E. 901(b)
(stating that the “testimony of the witness with knowledge” is sufficient authentication).
MEMORANDUM DECISION AND ORDER - 14
have been material. But that is not this case. The jury convicted Petitioner
notwithstanding the absence of evidence regarding the particular computer Petitioner used
to commit the crime, and any evidence that this particular computer was not used thus
could not have affected the verdict. At the very least, fairminded jurists could disagree
whether the results of any computer testing—even assuming the test showed no evidence
of the chat—were material. See Richter, 131 S. Ct. at 786.
CONCLUSION
For the foregoing reasons, the Court concludes that Petitioner is not entitled to
habeas relief under 28 U.S.C. § 2254(d).
ORDER
IT IS ORDERED:
1.
Claim Three of the Petition for Writ of Habeas Corpus (Dkt. 1), the only
claim remaining in this action, is DENIED. This entire action is
DISMISSED with prejudice.
2.
The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner
files a timely notice of appeal, the Clerk of Court shall forward a copy of
the notice of appeal, together with this Order, to the United States Court of
Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
MEMORANDUM DECISION AND ORDER - 15
So Ordered.
DATED: October 7, 2014
Honorable Edward J. Lodge
U. S. District Judge
MEMORANDUM DECISION AND ORDER - 16
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