Godfrey v. Blades

Filing 15

MEMORANDUM DECISION AND ORDER Petitioner's Application to Proceed in Forma Pauperis (Dkt. 1 ) is GRANTED. Respondent's Motion for Summary Dismissal (Dkt. 9 ) is GRANTED, and this entire action is DISMISSED with prejudice. Signed by Judge Edward J. Lodge. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN GODFREY,
Case No. 1:12-cv-00525-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY BLADES,
Respondent.

Pending before the Court is Petitioner John Godfrey’s Petition for Writ of Habeas
Corpus (Dkt. 3). Respondent filed a Motion for Summary Dismissal on May 9, 2013.
(Dkt. 9). Petitioner filed a response to the Motion on November 7, 2013 (Dkt. 12), which
the Court will deem timely pursuant to its November 12, 2013 Order granting Petitioner
more time to file a supplemental response brief. (See Dkt. 14). The Court takes judicial
notice of the records from Petitioner’s state court proceedings, lodged by Respondent on
May 9, 2013 (Dkt. 10). 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

MEMORANDUM DECISION AND ORDER 1

record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters
the following Order granting the Motion and dismissing this case.
BACKGROUND
Petitioner entered an Alford1 plea, in the Fifth Judicial District of the State of
Idaho, to lewd conduct with a minor in violation of Idaho Code § 18-1508. (State’s
Lodging A-1 at 69; A-2 at 4-11.) He was sentenced to a unified term of 15 years in prison
with 5 years fixed. (State’s Lodging A-1 at 69.) Petitioner appealed, arguing that his
sentence was excessive. (State’s Lodging B-1.) The Idaho Court of Appeals affirmed, and
the Idaho Supreme Court denied Petitioner’s petition for review (State’s Lodging B-3; B6.)
Petitioner then filed a state postconviction petition and, following the appointment
of counsel, an amended petition asserting claims of ineffective assistance of trial counsel
based on counsel’s failure to (1) investigate Petitioner’s mental competency, (2)
investigate Petitioner’s previous commitment to a mental health facility, (3) comply with
Petitioner’s request to view the presentence report, (4) ensure that Petitioner’s plea was
knowing and voluntary, rather than coercing Petitioner to enter the Alford plea, (5)
investigate a defense of mental incompetency and lack of specific intent, (6) fully advise
Petitioner of the consequences of an Alford plea, (7) visit Petitioner to prepare adequately

1

See North Carolina v. Alford, 400 U.S. 25, 35 (1970) (holding that a court may accept
and sentence a defendant 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 2

for court proceedings, (8) call witnesses that could have offered mitigating testimony at
sentencing, (9) file an Idaho Criminal Rule 35 motion for reduction of sentence, (10) file
a motion to suppress the incriminating statements Petitioner made in a psychosexual
evaluation, (11) allow Petitioner to fully read and correct errors in the presentence report,
(12) advise Petitioner of his right to have an attorney present during the psychosexual
evaluation, and (13) telling Petitioner that the state had agreed to Petitioner’s placement
in a rider program. (State’s Lodging C-1 at 40-44.) Petitioner also argued that the trial
judge should have recused himself due to a conflict of interest.
After holding an evidentiary hearing (State’s Lodging C-2), the state district court
granted Petitioner postconviction relief on his claims regarding trial counsel’s failure to
advise Petitioner of his rights, under Estrada v. State, 149 P.3d 833 (Idaho 2006),
regarding the court-ordered psychosexual evaluation. (State’s Lodging C-1 at 83-84.) The
court ordered a new presentence report and psychosexual evaluation, after which
Petitioner was resentenced (by a different judge) to a unified prison term of 17 years, with
5 years fixed. (Id.; State’s Lodging C-4 at 21.) The court denied postconviction relief on
all of Petitioner’s other claims. (State’s Lodging C-1 at 83-84.)
Petitioner appealed from the state district court’s partial dismissal of his
postconviction petition, and he also appealed his new sentence. (State’s Lodging D-1.)
The appeals were consolidated, and the Idaho Court of Appeals affirmed in all respects.
(State’s Lodging D-4.) Petitioner did not file a petition for review with the Idaho Supreme
Court.
MEMORANDUM DECISION AND ORDER 3

Petitioner next filed a successive state postconviction petition, in which he asserted
16 claims.2 (State’s Lodging E-1 at 2-3.) Appointed counsel withdrew from the case after
finding no viable claims. (Id. at 115-118.) Petitioner then filed a state petition for writ of
habeas corpus, within his successive postconviction case, and a motion to withdraw the
successive petition. (Id. at 125-26, 141-52.) He also sought new counsel. (Id. at 153-54.)
Under Idaho law, a state petition for writ of habeas corpus may “not be used as a
substitute for, or in addition to” a postconviction petition. Idaho Code § 19-4203(4). For
this reason, and because Petitioner was not incarcerated within the court’s jurisdiction, the
state district court denied the state habeas petition. (Id. at 159.) The court also denied
Petitioner’s request for counsel. Because it was unclear, given the denial of Petitioner’s
habeas petition, whether he still intended to withdraw his postconviction petition, the
court gave Petitioner 60 days to notify the court as to his wishes. (Id. at 160-61.)
Petitioner did not do so, and the court granted his motion to withdraw the postconviction
petition. (Id. at 176-78.) Petitioner did not appeal.

2

In his successive petition, Petitioner framed his claims as follows: (1) violation of the
Eighth Amendment’s prohibition of cruel and unusual punishment; (2) violation of the Universal
Declaration of Human Rights; (3) violation of the Fifth Amendment’s protection against
compelled self-incrimination; (4) violation of due process; (5) actual innocence; (6) insufficient
evidence; (7) violation of the Sixth Amendment’s guarantee of compulsory process; (8) violation
of the Eighth Amendment’s prohibition of excessive fines; (9) miscarriage of justice; (10)
selective prosecution; (11) vindictive prosecution; (12) retaliatory sentencing; (13) violation of
the Double Jeopardy Clause of the Fifth Amendment; (14) violation of the Privileges or
Immunities Clause of the Fourteenth Amendment; (15) violation of the Ninth Amendment; and
(16) violation of Article VI, clause 2 (the Supremacy Clause) of the United States Constitution.
(State’s Lodging E-1 at 2-3.)
MEMORANDUM DECISION AND ORDER 4

Petitioner’s federal Petition for Writ of Habeas Corpus asserts the following
claims: (1) his confession to the crime of conviction was involuntary; (2) trial counsel
was ineffective in failing to adequately investigate the case; (3) trial counsel did not
investigate potential witnesses identified by Petitioner; (4) the state did not prove each
element of the crime beyond a reasonable doubt; (5) Petitioner’s rights were violated
when he received a harsher sentence following the partial grant of his postconviction
petition; (6) the civil fine imposed was actually punitive; (7) Petitioner was not advised of
his right against self-incrimination with respect to the psychosexual evaluations; and (8)
his imprisonment is unconstitutional because there was “no competent evidence” to
support the charge against him. (Dkt. 3 at 6-13.)
Respondent now moves for summary dismissal, arguing that all of Petitioner’s
habeas claims are procedurally defaulted. Petitioner has since requested that the Court
dismiss Claims 4 and 7, and the Court will do so. Petitioner also asks that the Court
consolidate Claims 2 and 3 “as a unified claim of ineffective assistance of counsel.” (Dkt.
12 at 1-2.) The Court will now address the remaining claims in the Petition: Claim 1,
Claims 2 and 3, Claim 5, Claim 6, and Claim 8.
DISCUSSION
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
MEMORANDUM DECISION AND ORDER 5

is not entitled to relief in the district court.” In such case, the Court construes the facts in
the light most favorable to the petitioner.
2.

Petitioner’s Claims Are Procedurally Defaulted
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
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

MEMORANDUM DECISION AND ORDER 6

procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson,
501 U.S. 722, 750 (1991).
Petitioner concedes that he has never presented his federal habeas claims to the
Idaho Supreme Court. (Dkt. 3 at 6-13.) Thus, the claims are unexhausted. Further,
because Petitioner cannot go back to state court to raise them, see Idaho Code §§ 194902(a) & 19-4908, his claims are also procedurally defaulted. Accordingly, the Court
cannot hear the merits of Petitioner’s claims unless he meets one of two exceptions: a
showing of adequate legal cause for the default and prejudice arising from the default, see
Coleman v. Thompson, 501 U.S. 722, 731 (1991), or 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).
3.

Cause and Prejudice
A.

Standard of Law

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, 477 U.S. at 488. 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).
MEMORANDUM DECISION AND ORDER 7

As to the “cause” prong, an allegation of ineffective assistance of counsel will
serve as cause to excuse the default of other claims only if the ineffective assistance of
counsel claim is itself not procedurally defaulted, or if it is defaulted, if the petitioner can
show cause and prejudice for that default. Edwards v. Carpenter, 529 U.S. 446, 454
(2000). However, 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, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a
result, the general rule is that any errors of counsel during postconviction proceedings
cannot serve as a basis for cause to excuse a petitioner’s procedural default of other
claims. See Coleman, 501 U.S. at 752.
Martinez v. Ryan, 132 S. Ct. 1309 (2012), established a limited exception to this
general rule. That case held that inadequate assistance of postconviction review (PCR)
counsel or lack 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. In Nguyen v. Curry, ___ F.3d ___, 2013 WL 6246285, *6-8 (9th Cir. Dec. 4, 2013),
the Ninth Circuit extended Martinez, holding that it can also apply to underlying claims
of ineffective assistance of appellate counsel.

MEMORANDUM DECISION AND ORDER 8

The Martinez exception3 applies only to the ineffectiveness of PCR counsel in the
initial post-conviction review proceeding. 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.” Id. at 1320. Rather, the Court in Martinez was singularly
concerned that, if ineffective assistance of trial counsel claims were not brought in the
collateral proceeding which provided the first occasion to raise such claims, the effect
was that the claims could not be brought at all. Id. at 1316. Therefore, a petitioner may
not use as cause attorney error that occurred in “appeals from initial-review collateral
proceedings, second or successive collateral proceedings, and petitions for discretionary
review in a State’s appellate courts.” Id. at 1320.
In Trevino v. Thaler, 133 S. Ct. 1911 (2013), the Supreme Court described the
Martinez test as consisting of four requirements or prongs:

We consequently read Coleman as containing an
exception, allowing a federal habeas court to find “cause,”
thereby excusing a defendant’s procedural default, where (1)
the claim of “ineffective assistance of trial counsel” was a
“substantial” claim; (2) the “cause” consisted of there being
“no counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to
the “ineffective-assistance-of-trial-counsel claim”; and (4)
3

Martinez applies only if the ineffective assistance of counsel claim is exhausted (no further
avenue of state court relief is available) and procedurally defaulted (an adequate and independent state
procedural ground for the default exists). If the new claim is unexhausted and not procedurally defaulted,
then the petitioner may be able to return to state court to assert the claim under the stay-and-abey
procedure. See Rhines v. Weber, 544 U.S. 269 (2005).

MEMORANDUM DECISION AND ORDER 9

state law requires that an “ineffective assistance of trial
counsel [claim] . . . be raised in an initial-review collateral
proceeding.”
Id. at 1918 (citing Martinez, 132 S. Ct. at 1318-19, 1320-21) (alterations in original).
Thus, as a necessary first prong for the Martinez exception to apply, a petitioner
must bring forward some facts demonstrating that his underlying IAC claim is substantial.
The United States Supreme Court has defined “substantial” as a claim that “has some
merit.” Martinez, 132 S. Ct. at 1318 (comparing the standard for certificates of
appealability from Miller-El v. Cockrell, 537 U.S. 322 (2003)). Stated inversely, a claim
is “insubstantial” if “it does not have any merit or . . . is wholly without factual support.”
Id. at 1319.
Determining whether an IAC claim is substantial requires a federal district court to
examine the claim under 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
second-guess counsel’s assistance after conviction or adverse
MEMORANDUM DECISION AND ORDER 10

sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of which evidence to present or which
witnesses to call, “are virtually unchallengeable” if “made after thorough investigation of
law and facts relevant to plausible options.” Strickland, 466 U.S. at 690. Moreover, an
attorney who decides not to investigate a particular theory or issue in the case is not
ineffective so long as the decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91.
MEMORANDUM DECISION AND ORDER 11

If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Id. at 691. To 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
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96.
These standards from Strickland for determining deficient performance and
prejudice, are, of course, the standards for an eventual review of the merits of the IAC
claim. The first Martinez prong is not the same as a merits review; rather, it is more akin
to a preliminary review of a Strickland claim for purposes of determining whether a
certificate of appealability should issue. See Martinez, 132 S. Ct. at 1318-19. Therefore, a

MEMORANDUM DECISION AND ORDER 12

court may conclude that a claim is substantial when a petitioner has shown that resolution
of the merits of the Strickland claim would be “debatable amongst jurists of reason” or
that the issues presented are “adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (internal quotation marks omitted). Thus, the first prong of
Martinez requires the district court to review but not determine whether trial counsel’s
acts or omissions resulted in deficient performance and in a reasonable probability of
prejudice, and to determine only whether resolution of the merits of the claim would be
debatable among jurists of reason and whether the issues are deserving enough to
encourage further pursuit of them.
A second necessary prong of Martinez is a showing that the petitioner had no
counsel on initial postconviction review, or that PCR counsel was “ineffective under the
standards of Strickland.” 132 S. Ct. at 1318; see Trevino, 133 S. Ct. at 1918.
“Ineffectiveness” is a term defined by Strickland as deficient performance and a
reasonable probability of prejudice caused by the deficient performance. 466 U.S. at 694,
700.
As to deficient performance, not just any error or omission of PCR counsel will be
deemed “deficient performance” that will satisfy Martinez; if the PCR “attorney in the
initial-review collateral proceeding did not perform below constitutional standards,” the
PCR attorney’s performance does not constitute “cause.” 132 S. Ct. at 1319. The
Strickland standards for analyzing deficient performance set forth above apply with equal
force to PCR counsel in the context of a Martinez argument.
MEMORANDUM DECISION AND ORDER 13

As to prejudice, in Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729, *6 (9th Cir.
2013) (en banc) (plurality opinion), a plurality of judges concluded: “A prisoner need not
show actual prejudice resulting from his PCR counsel’s deficient performance, over and
above his required showing that the trial-counsel IAC claim be ‘substantial’ under the
first Martinez requirement.” Those judges reasoned:
If a prisoner who had PCR counsel were required to
show prejudice, in the ordinary Strickland sense, resulting
from his PCR counsel’s deficient performance in order to
satisfy the second Martinez requirement, the prisoner would
have to show, as a condition for excusing his procedural
default of a claim, that he would succeed on the merits of that
same claim. But if a prisoner were required to show that the
defaulted trial-counsel IAC claims fully satisfied Strickland in
order to satisfy the second Martinez requirement, this would
render superfluous the first Martinez requirement of showing
that the underlying Strickland claims were “substantial”—that
is, that they merely had “some merit.” See Martinez, 132 S.Ct.
at 1318-19.
Id.
B.

Application of the Cause and Prejudice Test to Petitioner’s Claims
i.

Traditional, or Coleman, Cause

Petitioner alleges that David W. Haley, his trial counsel, was ineffective and that
counsel’s ineffectiveness excuses the procedural default of Petitioner’s claims. (Dkt. 3 at
6-9, 13.) However, it appears that Petitioner is actually claiming that his current habeas
claims were omitted from his direct appeal, which would involve only Petitioner’s
appellate counsel. Thus, the Court will construe the Petition as alleging that appellate
counsel’s alleged ineffectiveness caused the procedural default.
MEMORANDUM DECISION AND ORDER 14

However, Petitioner has not established cause under Coleman because he has not
shown that he exhausted any claim of ineffective assistance of appellate counsel or that
cause exists to excuse non-exhaustion. See Edwards, 529 U.S. at 454; Nguyen, 2013 WL
6246285 at *6-8. Petitioner has raised no other Coleman cause arguments, and none are
apparent from the record, as to any of the defaulted claims.
ii.

Martinez Cause

Petitioner also alleges that his initial postconviction counsel, Clayne Zollinger, was
ineffective for omitting some of his habeas claims. (Dkt. 3 at 10-12.) Martinez applies
only to underlying claims of ineffective assistance of counsel. Thus, it cannot apply to
excuse the procedural default of Claim 1 (involuntary confession), Claim 5 (vindictive
sentence following the grant of postconviction relief), Claim 6 (penal nature of the civil
fine), or Claim 8 (no competent evidence to support the conviction).
With respect to Petitioner’s remaining IAC claims (Claims 2 and 3 of the Petition),
PCR counsel did raise these claims in Petitioner’s initial state postconviction petition, and
the Idaho Court of Appeals affirmed their dismissal. (State’s Lodging C-1 at 42; D-4 at 35.) To the extent Petitioner intended to reassert his IAC claims in his successive
postconviction petition, he voluntarily withdrew that petition and did not appeal.
Therefore, the procedural default of Petitioner’s IAC claims was not caused by any
failure of postconviction counsel to adequately raise them initially, but by (1) Petitioner’s
(or postconviction counsel’s) failure to petition the Idaho Supreme Court for review of
the Idaho Court of Appeals’ decision on the initial postconviction petition, and (2)
MEMORANDUM DECISION AND ORDER 15

Petitioner’s own failure to appeal the dismissal of his successive postconviction petition.
Because Martinez does not apply to claims of cause based on postconviction counsel’s
ineffectiveness during “appeals from initial-review collateral proceedings, second or
successive collateral proceedings, [or] petitions for discretionary review in a State’s
appellate courts,” Martinez, 132 S. Ct. at 1320, Petitioner cannot establish cause to excuse
his procedural default on those grounds.
Finally, the Court concludes that Petitioner’s current IAC claims are “wholly
without factual support.” Id. 1319. Petitioner has provided the Court with nothing more
than his own conclusory statements that counsel was ineffective—statements that are
insufficient to establish the existence of a substantial IAC claim under Martinez. See id. at
1318-19.
4.

Actual Innocence
If a petitioner cannot show cause and prejudice for his procedural default, he can

still bring the claim in a federal habeas petition if he demonstrates that failure to consider
the claim will result in a “fundamental miscarriage of justice,” which means that a
constitutional violation has probably resulted in the conviction of someone who is
actually innocent. Murray v. Carrier, 477 U.S. at 496. Actual innocence in this context
“means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998).
If a petitioner brings forward new evidence not presented at trial which tends to
show his innocence, the Court must then determine whether, “in light of the new
MEMORANDUM DECISION AND ORDER 16

evidence, no juror, acting reasonably, would have voted to find [the defendant] guilty
beyond a reasonable doubt.” Schlup, 513 U.S. at 329. Types of evidence “which may
establish factual innocence include credible declarations of guilt by another, see Sawyer v.
Whitley, 505 U.S. 333, 340 (1992), trustworthy eyewitness accounts, see Schlup, 513 U.S.
at 331, and exculpatory scientific evidence,” Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir.
1996).
Petitioner alleges that he is actually innocent (Dkt. 12 at 6, 11), but he has not
brought forth any evidence to support such a claim. Therefore, he has not established that
the Court should hear the merits of his procedurally defaulted habeas claims.
CONCLUSION
Petitioner did not present any of his current habeas claims to the Idaho Supreme
Court. Because he can no longer do so, his claims are procedurally defaulted. Further,
Petitioner has not established cause—under either Coleman or Martinez—to excuse the
procedural default, nor has he provided any evidence that he is actually innocent.
Therefore, the Petition will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

Petitioner’s Application to Proceed in Forma Pauperis (Dkt. 1) is
GRANTED.

2.

Respondent’s Motion for Summary Dismissal (Dkt. 9) is GRANTED, and
this entire action is DISMISSED with prejudice.

MEMORANDUM DECISION AND ORDER 17

3.

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.
DATED: December 31, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER 18