Rainey v. Wengler

Filing 28

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Claims 2, 3(a), 3(b), 3(d), and 4 of the Petition 3 are DENIED on the merits. Because all of Petitioner's other claims have already been dismissed, this entire action is DISMISSED with prejudice. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN THOMAS RAINEY,
Case No. 1:12-cv-00418-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIM WENGLER,
Respondent.

Pending before the Court is Petitioner John Thomas Rainey’s Petition for Writ of
Habeas Corpus, challenging his Ada County conviction of sexual battery of a minor child
16 or 17 years of age. (Dkt. 3.) On October 17, 2014, the Court granted in part
Respondent’s motion for partial summary dismissal and dismissed Claim 1 and Claim
3(c) of the Petition as non-cognizable. The Court denied, without prejudice, Respondent’s
request to dismiss Claims 3(a), 3(b), 3(d), and 4 as procedural defaulted, because the
Idaho Court of Appeals—in addition to finding the claims procedurally barred—also
considered and denied the claims on the merits. The merits of these claims, as well as the
merits of Claim 2, are now fully briefed. (Dkt. 23, 24.)
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) and Federal
MEMORANDUM DECISION AND ORDER - 1

Rule of Civil Procedure 73. (Dkt. 16.) Having carefully reviewed the record in this
matter, including the state court record, the Court concludes that oral argument is
unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
Order denying habeas corpus relief on Petitioner’s remaining claims.
BACKGROUND
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, lodged by Respondent on October 22, 2013. (Dkt. 17.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner was initially charged in the Fourth Judicial District in Ada County,
Idaho, with forcible rape in violation of Idaho Code § 18-6101. (State’s Lodging A-1 at
10; B-4 at 2.) The Idaho Court of Appeals described the crime as follows:
On June 22, 2007, while staying at her mother’s home,
sixteen-year-old J.G. awoke to find a man in her bed. The
man told her to lie down and be quiet. He then proceeded to
forcibly engage in various sexual acts with her. J.G. believed
that her mother’s boyfriend, [Petitioner], was her attacker.
After the attack, J.G. heard [Petitioner] leave the bathroom
and go to the couch. J.G. ran to her mother’s bedroom and
reported that [Petitioner] had intercourse with her. Her mother
. . . did not believe J.G.’s account. When confronted by [the
victim’s mother], [Petitioner] denied the allegations. Gloria
then called the police, but allowed [Petitioner] to flee the
home and instructed J.G. on what to tell the police. Upon
arrival, the police investigator was told that [Petitioner] had
not been in the home at the time of the attack.
Throughout the investigation, [Petitioner] and [J.G.’s
mother] told the police that [Petitioner] had been at his
mother’s home on the night J.G. was raped. They provided
the police with a number of names of potential suspects for
the attack. Following up on these false leads, the police
interviewed and obtained DNA samples from multiple
MEMORANDUM DECISION AND ORDER - 2

suspects. However, months later the police learned that the
DNA taken from J.G. matched the sample provided by
[Petitioner]. When confronted, [Petitioner] denied raping J.G.
and claimed that his semen was found in J.G. as a result of his
sleepwalking. J.G. was re-interviewed and admitted that she
had withheld information from the police. She explained her
mother instructed her on what to say, even though J.G. always
suspected that [Petitioner] was her attacker. J.G. told the
police that she did what she was told so that she would not get
in trouble.
(State’s Lodging B-4 at 1-2.)
Pursuant to a plea agreement in which the prosecution agreed to an amended
charge—the lesser offense of sexual battery of a minor child who is 16 or 17 years of age,
see Idaho Code § 18-1508A(1)(a)—Petitioner entered an Alford plea.1 (Id.) Petitioner
claimed that he could not remember the incident in which he raped his girlfriend’s
daughter because he was sleepwalking while he committed the crime. (State’s Lodging
B-4 at 2.) Petitioner’s explanation for lying to the police as to his whereabouts on the
night of the incident was that he was trying to evade an outstanding warrant for another
crime, not that he was evading arrest for rape. (State’s Lodging A-3 at 36.)
At the sentencing hearing, the trial court spoke at length as to the reasons why
Petitioner’s claim of sleepwalking was not credible:
I want to make a couple of comments about the events of that
night and this claim of sleepwalking. And I say it is a claim of
sleepwalking and it’s fairly convenient for you to make, but
there are several anomalies that really, I think, point out that

1

See also North Carolina v. Alford, 400 U.S. 25, 35 (1970) (holding that it is constitutionally
permissible for a court to accept and sentence an individual upon “a plea by which a defendant does not
expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes
of the case to treat him as if he were guilty.”).

MEMORANDUM DECISION AND ORDER - 3

you were very aware of the events that night and it was not as
you now claim a sleepwalking event.
For instance, why in the world would you make up a
lie about where you were if all you were trying to do is evade
a warrant because all you’d have to do is leave. . . .
You make up a lie about where you were not because
you were evading a warrant, is what you say in all of your
statements. But think about it, if all you were trying to do is
not get in too deep and just evade a warrant, all you have to
do is leave. The lie was to create an alibi to avoid
responsibility. Now, if you truly were sleepwalking, you
wouldn’t need to have to make up a lie. You could have
explained that to the police, that you don’t remember doing
anything. But you didn’t do that. You left. How did the alibi
help you with the warrant? It doesn’t. The whole story makes
no sense.
Furthermore, . . . it is very clear from the victim’s—
what she says happened that you were coherent, there was no
indication other than this self report of sleepwalking that you
were sleepwalking. This wasn’t just a random conversation
that may happen during sleepwalking. It was a very
appropriate for what was happening conversation. If you are
just simply sleepwalking, why in the world do you tell her
over and over again be quiet, everything’s going to be okay.
And then to demonstrate how purposeful your acts
were, what the victim observed to me were very significant.
You stopped the sexual assault, which had gone on for some
time, where you anally penetrated her, you vaginally
penetrated her against her will in a very violent and brutal
manner. You stopped, according to her, when you noticed she
was crying. Now, if you are sleepwalking you don’t have any
idea of any other thing going on around you. You don’t act
appropriately. That is the bottom line.
There’s no evidence here to suggest that this brutal
rape—and even though it’s been pled down to sexual abuse,
make no bones about it, this was a rape. You vaginally
penetrated her with your penis against her will. There was no
consent. This isn’t a stat rape. This is a rape.
MEMORANDUM DECISION AND ORDER - 4

There is no evidence here other than your own excuse
that you were sleepwalking. We have nothing from any
doctors. We have nothing to suggest that you were unaware
of what it was that you were doing.
And what did you do when you finished, when you
stopped because she was crying, you go back out into the
living room. It is interesting to me that you don’t go into the
master bedroom with your girlfriend. You go out to the living
room and lie down. You don’t immediately say to your
girlfriend, I didn’t do it. We need to call the police. Oh, no.
You leave. You create an alibi. So to me there’s no evidence
for this business.
....
Now, what’s also interesting to me when the police
confronted you, when the detective there confronted you with
DNA evidence, you immediately went into, it must be on the
sheets, because you were unaware that they had found it
inside her. You were not aware of that. So you again made an
excuse. That suggests to me again culpability, that you do
know what you did.
Now, maybe it makes you feel better and maybe it
helps you with your family for you to say I didn’t know. But I
don’t believe that. I believe you know exactly what you did.
You ran because you knew you had committed a crime and
that’s why.
(Id. at 35-39.)
Another factor in the court’s sentencing decision was that Petitioner actively
attempted to “mislead the police and [was] pointing fingers at a whole lot of other people
for this crime[, and] all the while you knew you were there that night. You knew beyond
a doubt.” (Id. at 41.) The court also considered other factors, such as Petitioner’s
childhood sexual abuse and a psychological report setting forth several provisional
MEMORANDUM DECISION AND ORDER - 5

diagnoses of personality disorders. (Id. at 41-45.) In the end, the court imposed a unified
sentence of life imprisonment with twenty-five years fixed. (Id. at 48.)
Petitioner appealed his sentence. The Idaho Court of Appeals affirmed, and the
Idaho Supreme Court denied review. (State’s Lodging B-4; B-6.)
The trial court denied Petitioner’s initial state postconviction petition. Petitioner
appealed, but later requested to dismiss or withdraw his appeal voluntarily. The Idaho
Supreme Court granted Petitioner’s motion to dismiss. (State’s Lodging D-1; D-2.)
Petitioner then filed a successive petition for state postconviction relief, which the
state district court denied. Following the petition’s somewhat complex procedural
journey (see Dkt. 22 at 4), the Idaho Court of Appeals affirmed the denial of the petition.2
Petitioner filed the instant federal Petition in September 2012. Because the Court
previously dismissed Claims 1 and 3(c) of the Petition as noncognizable, only the
following claims remain for adjudication on the merits:
Claim 2:

Petitioner received an excessive sentence in violation
of the Eighth Amendment.

Claim 3(a):

Petitioner was denied due process when the trial court
and jail would not allow him a “separate prognosis”
regarding Petitioner’s alleged somnambulism.

Claim 3(b):

Petitioner was denied due process when the trial court
exhibited racial bias in sentencing Petitioner, allegedly
departing from the presentence investigation report.

As this Court has previously determined, the Idaho Court of Appeals “affirmed the state district
court’s dismissal of the petition on the merits as not setting forth any grounds for substantive relief and,
alternatively, as procedurally barred under § 19-4908 because Petitioner had not shown sufficient reason
why the claims were not adequately presented in his initial postconviction petition.” (Dkt. 22 at 5.)
2

MEMORANDUM DECISION AND ORDER - 6

Claim 3(d):

Petitioner’s guilty plea was coerced, in violation of due
process, because Petitioner believed that pleading
guilty would allow him to avoid a harsh sentence, and
yet he was sentenced to 25 years to life. This claim
implicates the Due Process Clause and, because
Petitioner alleges that his trial counsel promised that
he would be placed on a retained jurisdiction program,
the Sixth Amendment.

Claim 4:

Petitioner was denied his Fifth Amendment right to be
free from compelled self-incrimination when his trial
attorney did not advise him that he had a right to
remain silent during a psychological evaluation used
for sentencing purposes. Although Petitioner appears
to assert this as a Fifth Amendment claim, his
reference to his trial attorney invokes the Sixth
Amendment as well.

(See Dkt. 3.) All of these claims were raised to, and rejected by, the Idaho state courts.
(See State’s Lodging E-1 at 1-12; G-1; G-4 at 4.)
HABEAS CORPUS 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

MEMORANDUM DECISION AND ORDER - 7

of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). 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). However, a state court need not “give reasons before its decision
can be deemed to have been ‘adjudicated on the merits’” under § 2254(d). Harrington v.
Richter, 562 U.S. 86, 100 (2011).
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). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014).
MEMORANDUM DECISION AND ORDER - 8

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. If there is any possibility that
fair-minded jurists could disagree on the correctness of the state court’s decision, then
relief is not warranted under § 2254(d)(1). Richter, 562 U.S. at 102. The Supreme Court
has emphasized 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. 2000). 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).
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).
MEMORANDUM DECISION AND ORDER - 9

When a petitioner contests the reasonableness of the state court’s factual
determinations, the petitioner must show that the state court decision was based upon
factual determinations that were “unreasonable . . . in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2). 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 resulting from procedural flaws that occurred in
state court proceedings: (1) when state courts fail to make a finding of fact; (2) when
courts mistakenly make factual findings under the wrong legal standard; (3) when “the
fact-finding process itself is defective,” such as when a state court “makes evidentiary
findings without holding a hearing”; (4) when courts “plainly misapprehend or misstate
the record in making their findings, and the misapprehension goes to a material factual
issue that is central to petitioner’s claim”; or (5) when “the state court has before it, yet
apparently ignores, evidence that supports petitioner’s claim.” Taylor v. Maddox, 366
F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
This strict deferential standard of § 2254(d) applies to habeas claims except in the
following narrow circumstances: (1) where the state appellate court did not decide a
properly-asserted federal claim; (2) where the state court’s factual findings are
unreasonable under § 2254(d)(2); or (3) where an adequate excuse for the procedural
MEMORANDUM DECISION AND ORDER - 10

default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In those
circumstances, the federal district court reviews the claim de novo. In such a case, as in
the pre-AEDPA era, a district court can draw from both United States Supreme Court and
well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane,
489 U.S. 288 (1989). Because the Idaho Supreme Court made a merits decision with
respect to Claims 2, 3(a), 3(b), 3(d), and 4, this Court applies the standard set forth in
§ 2254(d).
DISCUSSION
1.

Claim 2: Eighth Amendment Claim that Petitioner Was Given an Excessive
Sentence
In Claim 2, Petitioner argues that his sentence of twenty-five years to life, for

sexual battery of a minor, violates the Eighth Amendment. He advances two theories to
support this claim. First, Petitioner argues that his sentence constitutes cruel and unusual
punishment because the offense of conviction “carries a maximum of 15 years.” (Dkt. 3
at 7.) Second, Petitioner also appears to argue that his sentence is disproportionate to the
severity of his crime.
A.

Clearly-Established Law

The Eighth Amendment, which protects against cruel and unusual punishment,
prohibits a court from sentencing a defendant to a term of imprisonment greater than the
statutory maximum. See United States v. McDougherty, 920 F.2d 569, 576 (9th Cir.
1990). (“Generally, so long as the sentence imposed does not exceed the statutory
maximum, it will not be overturned on eighth amendment grounds.”). Further, the Eighth

MEMORANDUM DECISION AND ORDER - 11

Amendment includes the principle that a sentence must not be disproportionate to the
offense committed. Graham v. Florida, 560 U.S. 48, 59 (2010); Harmelin v. Michigan,
501 U.S. 957, 997-98 (Kennedy, J., concurring in part and concurring in the judgment).
The proportionality principle is very narrow and “forbids only extreme sentences that are
‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at 1001. An analysis of the
gross proportionality standard must include consideration of “all of the circumstances of
the case.” Graham, 560 U.S. at 59.
Applying the gross proportionality principle, the United States Supreme Court has
upheld fixed life sentences for possession of a large quantity of cocaine and for obtaining
money by false pretenses, as well as a sentence of twenty-five years to life for “the theft
of a few golf clubs.” Id. at 60. Further, the Court has determined that a habeas petitioner
was not entitled to relief under the Eighth Amendment even though he was sentenced,
under a recidivist sentencing scheme, to two consecutive terms of twenty-five years to
life for stealing approximately $150 in videotapes. Lockyer v. Andrade, 538 U.S. 63, 7677 (2003).
B.

The Idaho Court of Appeals’ Rejection of Claim 2 Was Not Unreasonable

Petitioner’s first argument, that he was sentenced to a term of imprisonment
greater than the statutory maximum punishment, is simply wrong. The crime of sexual
battery of a minor 16 or 17 years old is governed by Idaho Code § 18-1508A(1)(a). That
statute clearly provides that the statutory maximum punishment is life imprisonment.
Idaho Code § 18-1508A(4) (“Any person guilty of a violation of the provisions of

MEMORANDUM DECISION AND ORDER - 12

subsection (1)(a) of this section shall be imprisoned in the state prison for a period not to
exceed life.”). The state court reasonably rejected Petitioner’s claim in this regard.
With respect to the assertion that Petitioner’s sentence is grossly disproportionate
to the crime of conviction, the Idaho Court of Appeals’ decision affirming the sentence
was eminently reasonable. The prosecution recited the following factual basis for
Petitioner’s guilty plea:
[J.G.] reported that in the early morning hours of June
22nd, 2007, while [J.G.] was at home asleep in her bed at her
mother’s house in Ada County that a person had come into
her bedroom and had manual to genital, manual to anal, and
genital to genital contact with her. . . .
Upon further investigation of this case a vaginal sexual
assault kit was obtained immediately from her and eventually
the defendant’s DNA was obtained by consent . . . .
...
Once law enforcement could identify who this was,
they went back to [J.G.] to discuss the situation with her. At
that point she made further disclosures and stated she
recognized that it was the defendant who had come into her
bedroom that night that had had this sexual battery with her.
(State’s Lodging A-2 at 20-21.) Petitioner agreed that, if he were to go to trial, the
prosecution would have presented this evidence.
Petitioner forcibly raped his girlfriend’s teenage daughter, lied about it, and
actively misled police by identifying several innocent people as potential culprits. As the
trial court recognized, the fact that Petitioner pleaded guilty to a lesser offense pursuant
to a plea agreement in no way diminishes the violent and heinous nature of his actions. If
the Constitution is not offended by a sentence of twenty-five years to life for stealing golf
MEMORANDUM DECISION AND ORDER - 13

clubs or videotapes, see Graham, 560 U.S. at 60; Lockyer, 538 U.S. at 76-77, it is most
certainly not offended by the same sentence for the horrors that Petitioner inflicted on his
young and vulnerable victim. Simply put, the Idaho Court of Appeals was correct in
concluding that Petitioner has no legitimate claim that his sentence violates the Eighth
Amendment.
2.

Claim 3(a): Due Process Claim that Petitioner Was Not Provided an Expert
on Somnambulism
In Claim 3(a), Petitioner asserts that he should have been granted access to an

expert on somnambulism and that the trial court’s failure to grant such access before
Petitioner pleaded guilty violated the Due Process Clause.
A.

Clearly-Established Law

The Supreme Court has held that, if a defendant “demonstrates to the trial judge
that his sanity at the time of the offense is to be a significant factor at trial, the State must,
at a minimum, assure the defendant access to a competent psychiatrist who will conduct
an appropriate examination and assist in evaluation, preparation, and presentation of the
defense. Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (emphasis added). However, there is
no clearly-established law that a defendant who claims he was sleepwalking during the
crime must be given access to an expert on somnambulism.
Some lower courts have applied Ake to certain experts other than psychiatrists. See
Babick v. Berghuis, 620 F.3d 571, 579 (6th Cir. 2010) (“The circuit courts have not
reached consensus on the question.”). But the Supreme Court has not extended Ake to
claims of somnambulism—or, for that matter, any other non-psychiatric expert. In fact, in

MEMORANDUM DECISION AND ORDER - 14

Caldwell v. Mississippi, the Supreme Court expressly declined to consider whether “there
was constitutional infirmity in the trial court’s refusal to appoint various experts and
investigators to assist” the defendant. 472 U.S. 320, 323 n.1 (1985). See also Johnson v.
Oklahoma, 484 U.S. 878, 880 (1987) (Marshall, J., concurring) (noting that Caldwell
“reserved the equally important questions whether and when an indigent defendant is
entitled to nonpsychiatric expert assistance”).
B.

The Idaho Court of Appeals’ Rejection of Claim 3(a) Was Not
Unreasonable

Given that there is no clearly-established Supreme Court case law standing for the
proposition that a defendant who claims he was sleepwalking during the crime has a due
process right to be examined by an expert in somnambulism, the Idaho Court of Appeals’
decision was reasonable, see 28 U.S.C. § 2254(d), and Petitioner is not entitled to habeas
relief on Claim 3(a).
3.

Claim 3(b): Due Process Claim that the Trial Court Exhibited Racial Bias in
Sentencing Petitioner
Claim 3(b) alleges that in sentencing Petitioner to twenty-five years to life, the

sentencing judge exhibited racial bias.
A.

Clearly-Established Law

The Due Process Clause entitles a criminal defendant to “a fair trial in a fair
tribunal, before a judge with no actual bias against the defendant or interest in the
outcome of [the] particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997)
(internal quotation marks and citation omitted). The probability of a judge’s actual bias is
“too high to be constitutional tolerable” only in narrow circumstances—such as where the
MEMORANDUM DECISION AND ORDER - 15

judge “has a pecuniary interest in the outcome” of the case or where the judge “has been
the target of personal abuse or criticism” from the defendant. Withrow v. Larkin, 421 U.S.
35, 47 (1975). This Court must presume that the trial judge acted with honesty and
integrity, and it is Petitioner’s burden to convince the Court otherwise. See id.
B.

The Idaho Court of Appeals’ Rejection of Claim 3(b) Was Not
Unreasonable

Petitioner has not come forward with any evidence supporting his conclusory
allegation that the sentencing judge was biased against him on account of Petitioner’s
race or otherwise. Whether the sentencing judge departed from the recommendations in
the presentence investigation report is irrelevant. The question is whether the Idaho Court
of Appeals unreasonably denied Petitioner’s claim that the trial judge exhibited racial
bias in sentencing Petitioner. The answer is clearly no—Petitioner has not met his burden
of showing actual bias. See Withrow, 421 U.S. at 47. Therefore, Petitioner is not entitled
to relief on Claim 3(b).
4.

Claim 3(d): Due Process Claim that Petitioner’s Guilty Plea Was Involuntary
and Sixth Amendment Claim that Trial Counsel Coerced the Guilty Plea
Claim 3(d) claims that Petitioner’s guilty plea was not knowing, intelligent, and

voluntary because, in entering his plea, Petitioner relied on his attorney’s alleged
“promise” that Petitioner would avoid a harsh prison sentence and would, instead, be
placed on a retained jurisdiction program or probation. (Dkt. 3 at 8.)
A.

Clearly-Established Law

The Due Process Clause of the Fourteenth Amendment requires that a guilty plea
be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242 (1969). Where a
MEMORANDUM DECISION AND ORDER - 16

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.” McMann
v. Richardson, 397 U.S. 759, 771 (1970). A defendant who pleads guilty on the advice of
counsel “may only attack the voluntary and intelligent character of the guilty plea by
showing that the advice he received from counsel was not within the standards set forth
in McMann.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).
The Sixth Amendment to the United States Constitution provides that a criminal
defendant has a right to the effective assistance of counsel in his defense. The standard
for ineffective assistance of counsel claims was identified in Strickland v. Washington,
466 U.S. 668 (1984). 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.” Id. at 687.
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 secondguess 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
MEMORANDUM DECISION AND ORDER - 17

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).
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.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. As the
Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
MEMORANDUM DECISION AND ORDER - 18

met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 131 S. Ct.
770, 792 (2011).
To show prejudice based on deficient performance of counsel in a case where, as
here, the petitioner pleaded guilty, the petitioner “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 v. Lockhart, 474 U.S. 52, 59 (1985).
When evaluating a claim of ineffective assistance of counsel in a federal habeas
proceeding under § 2254(d)(1), the Court’s review of that claim is “doubly deferential.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).
B.

The Idaho Court of Appeals’ Rejection of Claim 3(d) Was Not
Unreasonable

A review of the record establishes that the Idaho Court of Appeals’ rejection of
Petitioner’s claim of an invalid guilty plea based on counsel’s alleged “promise” was not
contrary to, or an unreasonable application of, the clearly-established law set forth in
Boykin, Tollett, and Hill. In the Guilty Plea Advisory Form, which Petitioner executed in
conjunction with his plea agreement, Petitioner stated that he understood the maximum
possible penalty for his conviction was a term of life imprisonment. (State’s Lodging A-1
at 62.) When asked whether anyone had promised that Petitioner would receive “any
special sentence, reward, favorable treatment, or leniency,” Petitioner circled “No.” (Id.
at 68.) Petitioner also answered affirmatively when asked if he understood “that the only
MEMORANDUM DECISION AND ORDER - 19

person who can promise what sentence [he would] actually receive is the Judge.” (Id. at
69.)
During the change-of-plea hearing, Petitioner again acknowledged that he could
receive a sentence of life imprisonment and recognized that the judge was free to depart
from any sentencing recommendation:
[The court]:

I just want to make sure that all of us understand the
agreement. What that means, Mr. Rainey, is the State is free
to come in and ask for a life without possibility of parole. Do
you understand that?

[Petitioner]:

Yes.

[The court]:

And they’re not required to stand silent. They can make any
argument that they wish. Do you understand that?

[Petitioner]:

Yes.

[The court]:

There’s no promises to you as to what would happen in the
event—when the Court sentences you. Do you understand
that?

[Petitioner]:

Yes.

....
[The court]:

Now, what do you understand is the maximum prison
sentence that you can receive for this crime?

[Petitioner]:

Up to life in prison.

[The court]:

And do you understand that I can impose that without the
possibility of parole? Do you understand that?

[Petitioner]:

Yes.

[The court]:

Have any promises or suggestions been made to you as to
what I might do?

MEMORANDUM DECISION AND ORDER - 20

[Petitioner]:

No.

[The court]:

Do you understand that I’m not bound by any
recommendation made by either counsel? Do you understand
that?

[Petitioner]:

Yes.

[The court]:

It is fully my decision within my discretion to decide what
your sentence is. Do you understand that?

[Petitioner]:

Yes.

(State’s Lodging A-2 at 15-16.)
It is clear from this extensive colloquy that Petitioner was fully aware that he
could receive the maximum sentence of life in prison. He explicitly denied that anyone
had promised him any particular sentence or otherwise coerced him into entering the
Alford plea. Therefore, the court of appeals’ decision was reasonable, and Petitioner is
not entitled to relief on Claim 3(d). See 28 U.S.C. §2254(d).
5.

Claim 4: Fifth Amendment Claim that Petitioner Was Deprived of His Right
to Be Free from Compelled Self-Incrimination, and Sixth Amendment Claim
that Counsel Failed to Advise Petitioner of that Right
In Claim 4, Petitioner asserts that he was denied his right, under the Fifth

Amendment, to remain silent when he participated in a psychological examination to be
used at sentence. Petitioner also argues that he received ineffective assistance of counsel,
under the Sixth Amendment, when trial counsel failed to advise Petitioner of his Fifth
Amendment right.

MEMORANDUM DECISION AND ORDER - 21

A.

Clearly-Established Law

The Fifth Amendment to the United States Constitution provides, in relevant part,
that “[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” Every criminal defendant has a right not to testify at trial. The general rule is
that the Fifth Amendment privilege is not self-executing, but must be asserted by a
person who faces self-incrimination. Minnesota v. Murphy, 465 U.S. 420, 429-30, 434
(1984).
There are two exceptions to the general rule. One is where a person is in custody;
in that case, the state must warn the prisoner of his right against self-incrimination, as
explained in Miranda v. Arizona, 384 U.S. 436 (1966). The second exception is where
there is a penalty attached to remaining silent. Murphy, 545 U.S. at 434. “In each of the
so-called ‘penalty’ cases, the state not only compelled an individual to appear and testify,
but also sought to induce him to forgo the Fifth Amendment privilege by threatening to
impose economic or other sanctions ‘capable of forcing the self-incrimination which the
Amendment forbids.’” Id. (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)).
Although the Idaho Supreme Court has held that a defendant has a Fifth
Amendment right to refuse to participate in a psychological or psychosexual evaluation
for purposes of sentencing, see Estrada v. Idaho, 149 P.3d 833, 838-39 (Idaho 2006), the
United States Supreme Court has not.
The Strickland standards set forth above apply with equal force to Petitioner’s
claim that his attorney was ineffective in failing to advise him of his right to remain silent
during the psychological evaluation.
MEMORANDUM DECISION AND ORDER - 22

B.

The Idaho Court of Appeals’ Rejection of Claim 4 Was Not Unreasonable

Petitioner’s claims that he was denied his Fifth Amendment right against
compelled self-incrimination with respect to the psychological evaluation, and that his
trial attorney rendered ineffective assistance in failing to advise him that Petitioner could
refuse to participate in the psychological evaluation. However, Petitioner’s assertions are
belied by the record.
In his Guilty Plea Advisory Form, Petitioner answered “yes” to the following
questions regarding the psychological evaluation: (1) “As a result of your plea in this
case, is there a mandatory domestic violence, substance abuse, or psychosexual
evaluation?”; (2) “Have you discussed with your attorney the fact the Court will order a
pre-sentence investigation, psychosexual evaluation, anger evaluation and/or domestic
violence evaluation and that anything you say during any of those examinations may be
used against you in sentencing?”; and (3) “Has your attorney explained the fact that you
have a constitutional right to remain silent during any of those examinations but that you
may give up that right and voluntary participate in those examinations?” (emphasis
added). Petitioner’s own statements establish that counsel did advise Petitioner of his
rights with respect to the psychological evaluation.
Further, even if counsel had failed to advise Petitioner of his right to refuse to
participate in the psychological evaluation, Petitioner cannot show prejudice. At the
change-of-plea hearing, the trial judge asked Petitioner directly whether Petitioner
understood that he had a right to remain silent during the psychological evaluation, but
that he could give up that right and participate in the evaluation:
MEMORANDUM DECISION AND ORDER - 23

[The court]:

Now, you understand that I’m going to be ordering both a
presentence report and a psychological evaluation and that
anything you say during either of those can be used against
you at sentencing?

[Petitioner]:

Yes, I understand.

[The court]:

Do you understand you have a constitutional right to remain
silent during both examinations, but you can give up that right
and participate voluntary [sic]?

[Petitioner]:

I do.

(State’s Lodging A-2 at 15.)
Petitioner was fully aware of his right to remain silent during the psychological
evaluation. The Idaho Court of Appeals’ decision was reasonable, and Petitioner is not
entitled to relief on Claim 4.
CONCLUSION
The Idaho Court of Appeals’ decisions rejecting Claims 2, 3(a), 3(b), 3(d), and 4
were not contrary to, or an unreasonable application of, clearly-established federal law as
determined by the United States Supreme Court. See 28 U.S.C. §2254(d). Therefore,
Petitioner’s habeas Petition will be denied.
ORDER
IT IS ORDERED:
1.

Claims 2, 3(a), 3(b), 3(d), and 4 of the Petition (Dkt. 3) are DENIED on the
merits. Because all of Petitioner’s other claims have already been
dismissed, this entire action is DISMISSED with prejudice.

MEMORANDUM DECISION AND ORDER - 24

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); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: January 19, 2016

Honorable Ronald E. Bush
United States Magistrate Judge

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