Hereda-Juarez v. Wengler

Filing 12

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Respondent's Motion for Partial Summary Dismissal 8 is GRANTED. Claims 2 and 3 of the Petition are DISMISSED with prejudice. Respondent shall file an Answer to the remaining claim within 90 days after entry of this Order. 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

FREDY HEREDA-JUAREZ,
Case No. 1:12-cv-00499-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIMOTHY WENGLER,
Respondent.

Pending before the Court is Petitioner Fredy Hereda-Juarez’s Petition for Writ of
Habeas Corpus (Dkt. 3). Respondent has filed a Motion for Partial Summary Dismissal
(Dkt. 8). Petitioner has not responded to the Motion. The Court takes judicial notice of the
records from Petitioner’s state court proceedings, lodged by Respondent on July 1, 2013
(Dkt. 9). See Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir.
2006).
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
argument. Therefore, the Court shall 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

MEMORANDUM DECISION AND ORDER 1

the following Order granting the Motion and dismissing Claims 2 and 3 of the Petition
with prejudice.
BACKGROUND
Petitioner pleaded guilty in state court to first degree murder and robbery. He later
filed a motion to withdraw his guilty pleas, which the court denied after a hearing.
(State’s Lodging A-1 at 159-60; A-2 at 175.) Petitioner was sentenced to a unified term of
life imprisonment with 35 years fixed on the murder count, and to a unified term of 15
years imprisonment with 5 years fixed on the robbery count. (State’s Lodging A-2 at 29596.) Petitioner appealed, arguing that his sentences were excessive. (State’s Lodging B1.) The state moved to dismiss based on the plea agreement’s appeal waiver; the Idaho
Supreme Court granted the motion and dismissed the appeal. (State’s Lodging B-2, B-3.)
Petitioner next filed a state petition for postconviction relief and was appointed
counsel. (State’s Lodging C-1 at 5, 30.) Counsel filed an amended petition, arguing that
Petitioner’s trial counsel was ineffective for allegedly (a) failing to provide adequate
translation services to facilitate communication with him regarding the plea agreement,
(b) failing to provide Petition with photocopies of discovery materials, (c) coercing
Petitioner into pleading guilty, (d) failing to properly advise Petitioner regarding the
decision to be subjected to a polygraph examination, (e) failing to properly advise
Petitioner of his right to remain silent during an interview with a pre-sentence investigator
and an examination by a psychiatrist, and (f) failing to argue the correct standard of proof
during the hearing on Petitioner’s motion to withdraw his guilty plea. (Id. at 122-25.)
MEMORANDUM DECISION AND ORDER 2

Petitioner also argued that his appellate counsel was ineffective for failing to challenge
the admission at sentencing of the results of the polygraph examination and for failing to
communicate at all with Petitioner about the appeal. (Id. at 125.) After a hearing, the state
district court dismissed Petitioner’s amended postconviction petition. (State’s Lodging C1 at 361; C-2.)
Petitioner appealed, arguing that his trial counsel was ineffective for “convincing
[him] to accept the plea agreement without ensuring that he fully understood the terms of
the plea bargain,” for coercing Petitioner’s guilty plea, and for failing to advise Petitioner
that the polygraph examination could be used against him at sentencing. (State’s Lodging
D-1 at 6-8.) Petitioner also argued that his appellate counsel was ineffective for failing to
appeal the denial of the motion to withdraw his plea. (Id. at 11-15.) The Idaho Court of
Appeals affirmed the dismissal of Petitioner’s postconviction petition, and the Idaho
Supreme Court denied review. (State’s Lodging D-4; D-7.)
Petitioner then filed the instant Petition for Writ of Habeas Corpus (Dkt. 3). Claim
1 alleges that trial counsel (a) coerced Petitioner into pleading guilty, and (b) provided
ineffective assistance by failing to advise Petitioner that if he took a polygraph
examination, the results could later be used against him at sentencing. (Pet. at 2.) Claim 2
asserts that appellate counsel was ineffective for “failing to confer with petitioner about
the right to appeal regardless of any waiver of appellate rights.” (Id.) Claim 3 asserts that
Petitioner was denied due process by the state court’s “arbitrary denial” of the motion to
withdraw his guilty plea. (Id. at 3.)
MEMORANDUM DECISION AND ORDER 3

DISCUSSION
Respondent argues that Claims 2 and 3 are procedurally defaulted and must be
dismissed.
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 or claims contained in the petition when “it
plainly appears from the face of the petition and any attached exhibits that the petitioner
is not entitled to relief in the district court.” In such case, the Court construes the facts in a
light most favorable to the petitioner.
2.

Standard of Law Governing Procedural Default
A habeas petitioner must exhaust his remedies in the state courts before a federal

court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). This means that the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847.
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
MEMORANDUM DECISION AND ORDER 4

because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray v. Netherland, 518 U.S. 152, 161-62 (1996). 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. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson,
501 U.S. 722, 750 (1991).
If a petitioner’s claim is procedurally defaulted, a federal district court cannot hear
the merits of the claim unless the petitioner meets one of two exceptions: a showing of
adequate legal cause for the default and prejudice arising from the default, Coleman, 501
U.S. at 731, or a showing of actual innocence, which means that a miscarriage of justice
will occur if the claim is not heard in federal court, Murray v. Carrier, 477 U.S. 478, 488
(1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).
3.

Claims 2 and 3 Are Procedurally Defaulted
Contrary to Respondent’s contention (Memo. in Support, Dkt. 8-1, at 9), Claim

2—that appellate counsel was ineffective for failing to confer with Petitioner regarding
the appeal—was raised in Petitioner’s state postconviction petition. (State’s Lodging C-1
at 125.) However, Petitioner did not appeal the dismissal of that claim. (State’s Lodging
D-1.) Rather, with respect to ineffective assistance of appellate counsel, Petitioner argued
only that counsel failed to appeal the denial of the motion to withdraw his plea. (Id. at 11MEMORANDUM DECISION AND ORDER 5

15.) Therefore, Claim 2 has not been properly exhausted. See O’Sullivan, 526 U.S. at 847.
Further, because Petitioner cannot go back to state court to exhaust this claim, it is also
procedurally defaulted. See Idaho Code §§ 19-4902 & 19-4908; Gray, 518 U.S. at 16162.
Petitioner has never presented Claim 3 to any Idaho court, and it is now too late to
do so. See Idaho Code §§ 19-4902 & 19-4908. Therefore, Claim 3 is procedurally
defaulted as well. See Gray, 518 U.S. at 161-62.
Petitioner has not attempted to show that he is excused from the procedural default
of Claims 2 and 3 on the basis of cause and prejudice or actual innocence. Thus, those
two claims will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 8) is
GRANTED. Claims 2 and 3 of the Petition are DISMISSED with prejudice.

2.

Respondent shall file an Answer to the remaining claim within 90 days
after entry of this Order. The answer should also contain a brief setting forth
the factual and legal basis of grounds for dismissal and/or denial of the
remaining claim. Petitioner shall file a reply (formerly called a traverse),
containing a brief rebutting Respondent’s answer and brief, which shall be
filed and served within 30 days after service of the answer. Respondent has
the option of filing a sur-reply within 14 days after service of the reply. At

MEMORANDUM DECISION AND ORDER 6

that point, the case shall be deemed ready for a final decision.
3.

No party shall file supplemental responses, replies, affidavits or other
documents not expressly authorized by the Local Rules without first
obtaining leave of Court.

4.

No discovery shall be undertaken in this matter unless a party obtains prior
leave of Court, pursuant to Rule 6 of the Rules Governing Section 2254
Cases.

DATED: December 17, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER 7