Turney v. Wengler et al

Filing 22

MEMORANDUM DECISION AND ORDER Respondent's Motion for Partial Summary Dismissal (Dkt. 9 ) is GRANTED IN PART and DENIED IN PART. Claims 2(b), 2(c), 3, 4, 5(a)- (e), and 6 are DISMISSED with prejudice. Respondent shall file an Answer to the remaining claims Claim 1 (double jeopardy) and Claim 2(a) (ineffective assistance of trial counsel based on the failure to interview or subpoena Travis Anderson)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 that point, the case shall be deemed ready for a final decision. Signed by Judge B. Lynn Winmill. ((jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PHILIP A. TURNEY,
Case No. 1:12-cv-00611-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIMOTHY WENGLER, BRENT
REINKE, and LAWRENCE WASDEN,
Respondents.

Pending before the Court is Petitioner Philip A. Turney’s Petition for Writ of
Habeas Corpus (Dkt. 1). Respondents have filed a Motion for Partial Summary Dismissal.
(Dkt. 9). Petitioner has filed a response to the Motion (Dkt. 17). Respondents have filed a
Reply (Dkt. 18), and Petitioner has filed a sur-reply (Dkt. 21). The Court takes judicial
notice of the records from Petitioner’s state court proceedings, lodged by Respondents on
August 1, 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. See D. Idaho Loc. Civ. R. 7.1(d). Accordingly, the Court enters the following

MEMORANDUM DECISION AND ORDER 1

Order granting Respondent’s Motion in part and dismissing Claims 2(b), 2(c), 4, and 5(a)(e) as procedurally defaulted, and dismissing Claims 3 and 6 as noncognizable. Therefore,
the only claims remaining in this action are Claims 1 and 2(a), and Respondents shall file
an answer to these claims within 90 days after entry of this Order.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Turney, 214 P.3d 1169 (Idaho Ct. App. 2009), which is also contained in the
record at State’s Lodging B-4. Petitioner was convicted of two counts of aggravated
driving under the influence (DUI) for causing serious injury to two police officers; he was
also convicted of being a persistent violator. Id. at 1170. He was sentenced to concurrent
unified terms of life imprisonment, with fifteen years fixed. Id.
On direct appeal, Petitioner argued that he had been subjected to double jeopardy
in violation of the Fifth Amendment because there was only a single act of driving under
the influence and, therefore, he could not be charged with two separate counts. Id. at
1170-71. The Idaho Court of Appeals determined that “driving is not the actus reus of the
offense” of aggravated DUI; rather, the statute penalizes any person “causing great bodily
harm . . . to any person other than himself in committing” a DUI offense. Id. at 1171
(quoting Idaho Code § 18-8006(1)). Therefore, because Petitioner injured two people, he
was appropriately charged with two counts of aggravated DUI. The court of appeals also
rejected Petitioner’s claim that his sentence was excessive. The Idaho Supreme Court

MEMORANDUM DECISION AND ORDER 2

denied Petitioner’s petition for review. (State’s Lodging B-7.)
Petitioner then filed a petition for postconviction relief in state court, asserting the
following claims:
(1)

Denial of a fair trial because the state (a) presented perjured testimony of
one witness; (b) presented “unreliable” testimony of another witness; (c)
improperly commented on matters not in evidence; and (d) failed to
preserve exculpatory evidence.

(2)

Ineffective assistance of trial counsel based on counsel’s failure to (a)
present a qualified expert on the air bag deployment system; (b) move for
acquittal based on insufficiency of the evidence; and (c) investigate or
subpoena a material witness to testify at trial.

(3)

Ineffective assistance of direct appeal counsel based on counsel’s failure to
(a) adequately review the trial record or present on appeal a claim involving
a missing jury instruction; and (b) raise and brief the issue of the
prosecutor’s allegedly improper commentary on the evidence.

(State’s Lodging C-1 at 4-10, 43.) The state district court concluded that Petitioner’s
claims were frivolous and therefore denied his motion for appointment of counsel.
(State’s Lodging D-4 at 1-2.) The court later entered an order conditionally dismissing the
postconviction petition, to which Petitioner responded. Ultimately, the court summarily
dismissed the petition. (Id. at 2.)
Petitioner appealed the dismissal of his postconviction petition. In the issues
statement and in the headings in his appellate briefing, Petitioner stated broadly that he
was challenging the district court’s denial of postconviction counsel and its summary
dismissal of the petition. (State’s Lodging D-1 at 6-7, 12.) However, in the substantive
argument portion of his brief, he argued only two claims: (1) that the prosecution violated
MEMORANDUM DECISION AND ORDER 3

his right to a fair trial by presenting a witness that committed perjury; and (2) that the
state district court should have appointed postconviction counsel because Petitioner
raised the possibility of a valid claim of ineffective assistance of trial counsel based on
counsel’s failure to interview Travis Anderson, an eyewitness to the accident. (Id. at 1012, 15-18.) The Idaho Court of Appeals affirmed the dismissal of the petition. Petitioner
filed a petition for rehearing and a petition for review, raising only the ineffectiveness
issue. He did not argue that the Idaho Court of Appeals erred in upholding the dismissal
of his claim regarding the perjured testimony. (State’s Lodging D-7, D-9.) The court of
appeals denied the petition for rehearing, and the Idaho Supreme Court denied the petition
for review. (State’s Lodging D-8, D-10.)
Petitioner filed the instant federal Petition in December 2012, asserting six
categories of claims. Petitioner labels his claims as Claims A, B, C, and D. However,
because there are six broad categories of claims rather than four, and because some of the
claims contain sub-claims, the Court will adopt Respondents’ numbering of the claims in
the Petition for clarity. (See Dkt. 9-1 at 5.)
Respondent now moves for summary dismissal of Claims 2 through 6. Claim 2
(labeled in the Petition as Claim B) alleges ineffective assistance of trial counsel based on
counsel’s failure to (a) interview and subpoena Travis Anderson; (b) present a qualified
expert to testify regarding the air bag deployment system; and (c) move for an acquittal on
insufficiency of evidence grounds. (Pet., Dkt. 1, ¶¶ 55-58.) Petitioner argues that he was

MEMORANDUM DECISION AND ORDER 4

prejudiced by the cumulative effect of these alleged errors. (Id. ¶ 58.)
Claim 3 (found at ¶ 59 of the Petition within Petitioner’s general discussion of his
ineffective assistance of counsel claims) asserts that Petitioner the state courts wrongfully
denied his request for the appointment of counsel during postconviction proceedings
because postconviction review “was the first place to raise his claim of ineffective
assistance at trial.”
Claim 4 (found at ¶ 60 of the Petition) alleges that direct appeal counsel was
ineffective for allegedly failing “to adequately review [the] trial record and/or present on
a appeal a claim involving a missing jury instruction.”
Claim 5 (labeled in the Petition as Claim C) alleges that Petitioner was denied due
process when the prosecutor allegedly (a) presented perjured testimony; (b) knowingly
presented unreliable testimony; (c) commented on matters not in evidence; (d) failed to
preserve exculpatory evidence; and (e) “depart[ed] from standard chain of evidence
guidelines.” (Id. ¶¶ 62-66.)
Claim 6 (labeled in the Petition as Claim D and included in part at ¶ 61 of the
Petition within the general discussion of Petitioner’s ineffective assistance of counsel
claims) alleges that Petitioner was denied due process during postconviction proceedings
when the state district court summarily dismissed his postconviction claims (a) without
giving sufficient notice; (b) without holding an evidentiary hearing; and (c) without
allowing discovery. (Id. ¶¶ 67-70; ¶ 61.)

MEMORANDUM DECISION AND ORDER 5

Respondents contend that Claims 2 through 6 must be dismissed either because
they are noncognizable in this federal habeas corpus action or because they are
procedurally defaulted. Petitioner argues that his claims are not procedurally defaulted
and alternatively argues that cause and prejudice exist to excuse the default under
Martinez v. Ryan, 132 S. Ct. 1309 (2012).
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 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.

Claims That Are Not Cognizable on Federal Habeas Review: Claims 3 and 6
There is no constitutional right to counsel during state postconviction proceedings.

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 42930 (9th Cir. 1993). Although the lack of postconviction counsel or ineffective
postconviction counsel can constitute cause to excuse the procedural default of claims, it
is not an independent constitutional claim. See Martinez v. Ryan, 132 S. Ct. 1309, 1320
(2012), and § 5, infra. Therefore, Claim 3—that Petitioner should have been appointed
counsel during postconviction proceedings—is not cognizable in this federal habeas

MEMORANDUM DECISION AND ORDER 6

action.
Claim 6—asserting errors in the state court’s treatment of Petitioner’s
postconviction claims—is similarly subject to summary dismissal because federal habeas
corpus is not the proper avenue to address errors in a state’s postconviction review
process. Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); Williams v.
Missouri, 640 F.2d 140, 143 (8th Cir. 1981) (“[I]nfirmities in the state’s post-conviction
remedy procedure cannot serve as a basis for setting aside a valid original conviction.”).
A federal court has no authority to grant habeas relief for violations of state law. Lewis v.
Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors
of state law.”)
For these reasons, Claims 3 and 6 will be dismissed with prejudice. The Court now
turns to Respondents’ argument that Claims 2, 4, and 5 must be dismissed as procedurally
defaulted.
3.

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

MEMORANDUM DECISION AND ORDER 7

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.
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995). General references in state court to broad constitutional principles, such as
due process, equal protection, or the right to a fair trial, are likewise insufficient. See
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear that, for proper
exhaustion, a petitioner must bring his federal claim before the state court by “explicitly”
citing the federal legal basis for his claim, “regardless of whether the petitioner [is]
proceeding pro se.” Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended,
247 F.3d 904 (9th Cir. 2001) (emphasis omitted).
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; and (3)
when the Idaho courts have rejected a claim on an adequate and independent state

MEMORANDUM DECISION AND ORDER 8

procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson,
501 U.S. 722, 750 (1991).
To be an “adequate” state ground, a state court’s procedural bar must be one that is
“‘clear, consistently applied, and well-established’ at the time of the petitioner’s
purported default.” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting
Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is
“independent” of federal law if it does not rest on federal grounds and is not intertwined
with federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
For the following reasons, the Court concludes that Petitioner properly exhausted
Claim 2(a). However, he did not properly exhaust Claims 2(b), 2(c), 4, or any of the subclaims in Claim 5. Because it is now too late to do so, see Idaho Code §§ 19-4902 & 194908, these claims are procedurally defaulted.
4.

Claims 2(b), 2(c), 4, and 5(a)-(e) Are Procedurally Defaulted
A.

Claim 2, Including Sub-claims: Ineffective Assistance of Trial Counsel

Petitioner included sub-claims 2(a), 2(b) and 2(c) in his petition for state
postconviction relief. (State’s Lodging C-1 at 6-7, 42-44.) However, he did not raise subclaims 2(b) or 2(c) on appeal from the state district court’s dismissal of the postconviction
petition. (State’s Lodging D-1 at 10-18.) Petitioner’s general statements in his appellate
briefs that the district court erred in dismissing the postconviction petition are insufficient
to satisfy the requirement of fair presentation. See O’Sullivan, 526 U.S. at 842; Hiivala,

MEMORANDUM DECISION AND ORDER 9

195 F.3d at 1106. Similarly, the issues that Petitioner included only in his Notice of
Appeal (State's Lodging C-1 at 411) are also insufficient to constitute fair presentation
because these issues were not included in Petitioner’s appellate briefing. See Castillo v.
McFadden, 399 F.3d 993, 1000 (9th Cir. 2005) (“To exhaust his claim, [a petitioner] must
have presented his federal, constitutional issue before the [state appellate courts] within
the four corners of his appellate briefing.”). Therefore, sub-claims 2(b) and 2(c) are
procedurally defaulted.
However, in the postconviction appeal Petitioner did raise sub-claim 2(a)—that
trial counsel was ineffective for failing to interview and subpoena eyewitness Travis
Anderson. (State’s Lodging D-1 at 15-18.) Respondents assert that Petitioner’s argument
in the Idaho Court of Appeals was limited to a claim that the district court should have
appointed counsel so he could pursue this ineffective assistance claim. (Dkt. 9-1 at 8-9.)
However, Petitioner discussed the standards both for appointment of counsel under
Idaho’s postconviction statutes and for his substantive Sixth Amendment claim that trial
counsel was ineffective regarding the lack of investigation of Travis Anderson. Petitioner
thoroughly discussed the Strickland standards for ineffective assistance, and it was clear
that he was asserting a substantive ineffective assistance claim.
Further, the Idaho Court of Appeals did not limit its discussion of Petitioner’s
ineffective assistance claim as merely supporting his request for postconviction counsel;
it also denied the claim on the merits. In determining that Petitioner was not entitled to

MEMORANDUM DECISION AND ORDER 10

postconviction counsel, the court expressly concluded that Petitioner’s Sixth Amendment
right to effective assistance of counsel had not been violated, stating that “the record
disproves [Petitioner’s] claim of ineffective assistance.” (State’s Lodging D-4 at 5.)
Petitioner also included Claim 2(a) in his petition for review before the Idaho Supreme
Court. (State’s Lodging D-9.)
Therefore, the Court concludes that Claim 2(a) was properly exhausted in the
Idaho state courts and decided on the merits, and this portion of Respondents’ Motion for
Partial Summary Dismissal will be denied.
B.

Claim 4: Ineffective Assistance of Appellate Counsel

In his state postconviction petition, Petitioner raised claims of ineffective
assistance of direct appeal counsel. (State’s Lodging C-1 at 10-13.) However, he did not
include those claims in his appeal from the district court’s dismissal of the postconviction
petition. Therefore, Claim 4 was not properly exhausted. Because it is now too late to do
so, the claim is procedurally defaulted. Again, Petitioner’s broad statements in his
appellate briefs that the district court erred in denying postconviction relief, and issues
raised only in his Notice of Appeal, do not constitute fair presentation. See O’Sullivan,
526 U.S. at 842; Castillo, 399 F.3d at 1000.
C.

Claim 5, Including Sub-Claims: Violations of Due Process

On direct appeal from his conviction and sentence, Petitioner did not raise any of
his Claim 5 sub-claims, which allege due process violations stemming from prosecutorial

MEMORANDUM DECISION AND ORDER 11

misconduct and from a witness’s perjured testimony. Petitioner did raise sub-claims 5(a)
through 5(d) in his postconviction petition; he did not raise Claim 5(e), however. (State’s
Lodging C-1 at 6-8.)
On appeal from the denial of postconviction relief, Petitioner raised only one of his
Claim 5 sub-claims: Claim 5(a), that his due process rights were violated when a witness
committed perjury. (State’s Lodging D-1 at 10-12.) Further, after the Idaho Court of
Appeals affirmed the dismissal of his postconviction petition, Petitioner did not include
Claim 5(a) in his petition for review before the Idaho Supreme Court. Rather, he argued
only that trial counsel was ineffective for failing to interview Travis Anderson and that
the district court should have appointed postconviction counsel. (State’s Lodging D-9 at
6-11.) Therefore, Petitioner failed to properly exhaust Claim 5(a) because a habeas
petitioner must present his claims to the highest state court. O’Sullivan, 526 U.S. at 847.
None of Petitioner’s Claim 5 sub-claims were properly exhausted. Claim 5(a) was
not presented to the Idaho Supreme Court, Claims 5(b) through 5(d) were not presented to
the Idaho Court of Appeals, and Claim 5(e) was not presented to any state court. Because
Petitioner can no longer return to state court to present these claims, they are procedurally
defaulted.
D.

Conclusion Regarding Defaulted Claims

For the reasons set forth above, Claims 2(b), 2(c), 4, and 5(a) through (e) are
procedurally defaulted. However, that conclusion does not end the inquiry. If a claim is

MEMORANDUM DECISION AND ORDER 12

procedurally defaulted, a federal court can still hear the merits of the claim if the
petitioner meets one of two exceptions: (1) a showing of adequate legal cause for the
default and prejudice arising from the default (more simply referred as “cause and
prejudice”), see Coleman v. Thompson, 501 U.S. 722, 731 (1991), or (2) a showing of
actual innocence, which means that a miscarriage of justice will occur if the claim is not
heard in federal court, see Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier,
477 U.S. 478, 488 (1986).
5.

Petitioner Has Not Established Cause and Prejudice to Excuse the Procedural
Default of Claims 2(b), 2(c), 4, or 5(a)-(e)
A.

General Standard of Law for Cause and Prejudice under Coleman v.
Thompson

A procedurally defaulted claim may be heard on the merits if a petitioner
establishes cause and prejudice to excuse the default. Coleman v. Thompson, 501 U.S.
722, 750 (1991). 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 13

B.

Standard of Law for Cause and Prejudice under Martinez v. Ryan

A petitioner does not have a federal constitutional right to effective assistance of
counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule
is that any errors of counsel during the postconviction action cannot serve as a basis for
cause to excuse a procedural default. Coleman, 501 U.S. at 752.
Martinez v. Ryan, 132 S. Ct. 1309 (2012), established a limited exception to the
Coleman rule. Martinez 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, 736 F.3d 1287, 1293 (9th Cir. 2013), the Ninth Circuit
extended Martinez, holding that it can also apply to underlying claims of ineffective
assistance of appellate counsel.
In Trevino v. Thaler, the Supreme Court described the Martinez analysis as
consisting of four 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)
state law requires that an “ineffective assistance of trial
MEMORANDUM DECISION AND ORDER 14

counsel [claim] . . . be raised in an initial-review collateral
proceeding.”
133 S. Ct. 1911, 1918 (2013) (citing Martinez, 132 S. Ct. at 1318-19, 1320-21)
(alterations in original).
The third and fourth prongs of the analysis are rarely in dispute. With respect to
the third prong, the Martinez exception applies only to the lack of counsel or
ineffectiveness of counsel in the initial postconviction 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.” Martinez, 132 S. Ct. 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 assert as cause attorney error that occurred in
“appeals from initial-review collateral proceedings, second or successive collateral
proceedings, [or] petitions for discretionary review in a State’s appellate courts.” Id. at
1320.
With respect to the fourth prong—that state law must require ineffective assistance
of counsel (“IAC”) claims to be brought in an initial-review collateral proceeding—the
Supreme Court in Trevino extended Martinez to apply not only where a State requires
IAC claims to be raised in postconviction proceedings, but also where a State’s
“procedural framework, by reason of its design and operation, makes it highly unlikely in
MEMORANDUM DECISION AND ORDER 15

a typical case that a defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal.” Trevino, 133 S. Ct. at 1921.
Therefore, Martinez applies in Idaho where the post-conviction setting was the first forum
in which the ineffective assistance of trial counsel claim based on matters arising outside
the record could have been brought and developed in an evidentiary hearing. See
Matthews v. State, 839 P.2d 1215, 1220 (Idaho 1992) (recognizing that in Idaho the postconviction setting is the “preferred forum for bringing claims of ineffective assistance of
counsel,” though in limited instances such claims may be brought on direct appeal “on
purported errors that arose during the trial, as shown on the record”).
The two strongly disputed issues in a Martinez inquiry are generally the first
prong, whether an underlying IAC claim is substantial, and the second prong, whether
PCR counsel rendered ineffective assistance by failing to adequately raise that IAC claim
in state postconviction proceedings.
i.

Prong One: Substantiality of Underlying IAC Claims

For the Martinez exception to apply, a petitioner must bring forward 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.

MEMORANDUM DECISION AND ORDER 16

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) counsel’s 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
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).
MEMORANDUM DECISION AND ORDER 17

Strategic decisions, such as the choice of a defense or what evidence to present,
“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.
If a petitioner shows that counsel’s performance was deficient, the next step in the
Strickland inquiry 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
MEMORANDUM DECISION AND ORDER 18

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
underlying IAC claim. The question whether an IAC claim is substantial under Martinez
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 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, to determine whether a claim is substantial,
Martinez requires the district court to review but not determine whether trial or appellate
counsel’s acts or omissions resulted in deficient performance and in a reasonable

MEMORANDUM DECISION AND ORDER 19

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.
ii.

Prong Two: Lack of PCR Counsel or Ineffective Assistance of PCR
Counsel

In addition to showing that the underlying IAC claim is substantial, a petitioner
seeking to invoke Martinez must also show either that he had no counsel on initial
postconviction review, or that his 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 (1) deficient performance and (2) a reasonable probability
of prejudice caused by the deficient performance. 466 U.S. at 694, 700.
As to PCR counsel’s 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. Importantly, PCR counsel
“is not necessarily ineffective for failing to raise even a nonfrivolous claim.” Sexton v.
Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).
If PCR counsel’s performance is deficient, then the court must consider whether
that performance was prejudicial under Strickland. See Clabourne v. Ryan, No. 09-99022,
MEMORANDUM DECISION AND ORDER 20

___ F.3d ___, 2014 WL 866382, *11 (9th Cir. March 5, 2014). Therefore, even if a
petitioner shows that his IAC claims are substantial under the first Martinez prong, he
must still show that postconviction counsel rendered deficient performance and that, “but
for post-conviction counsel’s failure to raise [the substantial IAC] claims, there is a
reasonable probability that the result of the post-conviction proceeding would have been
different” under the second prong. Id. at *12. These two inquiries will, at times, collapse
into one. Id. at *16 (“Under the circumstances of this case, if [the petitioner] succeeds in
demonstrating that he was prejudiced by the failure of his post-conviction counsel, he will
necessarily have established that there is at least ‘some merit’ to his claim that he suffered
ineffective assistance of trial counsel at resentencing.”).
The Court may address either inquiry first, and the resolution of one prong may
obviate the need to address the other. See Martinez, 132 S. Ct. at 1319 (“When faced with
the question whether there is cause for an apparent default, a State may answer that the
ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any
merit or that it is wholly without factual support, or that the attorney in the initial-review
collateral proceeding did not perform below constitutional standards.”).
C.

Analysis of Cause and Prejudice as Applied to Petitioner’s Claims
i.

Traditional, or Coleman, Cause and Prejudice

Petitioner does not assert that traditional, or Coleman, cause exists to excuse the
procedural default of his claims. Because Petitioner’s Martinez argument applies only to

MEMORANDUM DECISION AND ORDER 21

those defaulted claims that allege ineffective assistance of counsel, Petitioner has not
contended that cause exists with respect to Claim 5, which alleges due process violations.
See Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013), cert. filed, Feb. 18, 2014
(declining to extend Martinez to Brady claims).
The Court now turns to Petitioner’s argument that cause exists under Martinez to
excuse the procedural default of the IAC claims subject to the instant Motion.
ii.

Martinez Cause and Prejudice

Because the Martinez exception applies only to IAC claims, the only defaulted
claims to which it might apply are Claims 2(b) and 2(c), which allege ineffective
assistance of trial counsel, and Claim 4, which alleges ineffective assistance of direct
appeal counsel. After a thorough review of the record, the Court concludes that Petitioner
is unable to show either that his PCR counsel performed deficiently under Strickland or
that these procedurally defaulted IAC claims are substantial.
As an initial matter, Martinez does not apply to Claims 2(b) or 2(c). As explained
above, Petitioner raised these claims in his initial postconviction petition, but did not raise
them on appeal from the state district court’s dismissal of that petition. Because the
narrow exception created in Martinez does not apply to alleged ineffectiveness of PCR
counsel in “appeals from initial-review collateral proceedings,” it cannot be used to
excuse the default of Claims 2(b) and 2(c).1 Martinez, 132 S. Ct. at 1320. Thus, the only
1

To the extent that the Ninth Circuit in Clabourne appeared to rely on postconviction
counsel’s deficient performance on appeal from the dismissal of a postconviction petition, see
MEMORANDUM DECISION AND ORDER 22

claim potentially subject to a Martinez argument is Claim 4.
Claim 4 alleges that appellate counsel was ineffective for “failing to adequately
review [the] trial record and/or present an appeal involving a missing jury instruction.”2
(Pet. ¶ 60.) The instruction at issue was based on model Idaho Jury Instruction 318, which
relates to prior inconsistent statements of witnesses.
Petitioner’s defense at trial was that he was not the driver of the car that hit the
police officers. According to Petitioner, Tom Sage, a friend with whom Petitioner had
been drinking, was driving the car. Sage denied driving the vehicle and testified that he
had not been in the car with Petitioner at the time of the accident. (State’s Lodging A-5 at
448-51.) To rebut Sage’s testimony, the defense called Juanita Cunningham as a witness.
Ms. Cunningham testified that after the accident she was watching a news report about
the crash when Tom Sage, who was living with her at the time, came into the residence
with what looked like flour or powder on his clothing, presumably from an air bag
Clabourne, 2014 WL 866382 at *9, such an approach is contrary to Martinez, which clearly does
not apply to errors by PCR counsel in appeals from denials of postconviction petitions, 132 S. Ct.
at 1320. The failures of Clabourne’s postconviction counsel during the initial review collateral
proceeding are what was relevant in that case: PCR counsel did not comply with the rules for
postconviction petitions even after being admonished to do so by the state court. Clabourne,
2014 WL 866382 at *9. Further, the state in Clabourne did not dispute that PCR counsel
rendered deficient performance, so the court’s discussion of PCR counsel’s performance in the
postconviction appeal was dicta. Id. at *12.
2

In his sur-reply, Petitioner also argues that appellate counsel should have raised a claim
that a photograph of Petitioner introduced into evidence was improperly labeled as describing air
bag burns on Petitioner. (Dkt. 21 at 13.) However, he did not bring this claim in his Petition, and
the Court will therefore not address it. Further, Petitioner’s general statement in Claim 4 that his
appellate counsel “failed to adequately review [the] trial record” is simply too vague to support a
claim for relief. (Pet. ¶ 60.)
MEMORANDUM DECISION AND ORDER 23

deployment. (State’s Lodging A-5 at 906.) Ms. Cunningham also testified that two days
later, she asked Sage “who had hit the cops.” Sage told her that he had done it, not
Petitioner. (Id. at 913.)
At the time of Ms. Cunningham’s testimony, the trial court instructed the jury as
follows:
[Y]ou have heard the testimony of Tom Sage concerning the
statements made by him before this trial. The believability of
witnesses may be challenged by evidence that on some former
occasion the witness made a statement that was not consistent
with a witness’s testimony in this case. Evidence of this kind
may be considered by you only for the purpose of deciding
whether you believe Mr. Sage’s testimony. This evidence of
an earlier statement has been admitted to help you decide if
you believe Mr. Sage’s testimony and you cannot use these
earlier—these earlier statements as evidence in this case.
(Id. at 912.) Petitioner concedes that the instruction was read to the jurors, but asserts that
it was not included in the packet of written instructions sent to the jury room. (Pet. ¶ 60
n.2.)
During deliberations, the jury asked the trial court for an “explanation of Juanita’s
testimony in terms of consideration.” (Sur-reply, Dkt. 21 at 11; State’s Lodging A-5 at
989.) Petitioner was not present when the court and counsel addressed this question. The
trial court did not instruct the jury further. (Sur-reply at 12.) Petitioner claims that
appellate counsel should have challenged the omission of the instruction from the written
packet because “the missing jury instruction was a significantly stronger appellate
argument than an excessive sentence claim which appellate counsel elected to present
MEMORANDUM DECISION AND ORDER 24

instead.” (Id.)
However, Petitioner has not shown that appellate counsel’s failure to raise the
issue was an error “so serious that [appellate] counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. First, an appellate attorney is not ineffective for failing to raise every conceivable
issue on appeal, or even every nonfrivolous issue. Knowles v. Mirzayance, 556 U.S. 111,
127 (2009). Indeed, “[e]xperienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal and focusing
on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S.
745, 751-52 (1983).
The Court disagrees with Petitioner’s belief that the jury instruction claim was
particularly strong. It was actually a fairly weak argument, because not only would
appellate counsel have had to show that it was unconstitutional for the trial court to have
omitted the instruction from the written packet, but the state would likely have been able
to prove that the error was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 23-24 (1967); State v. Stoddard, 667 P.2d 272, 274 (Idaho Ct.
App. 1983). Given that the jury was, in fact, properly instructed that it could consider Ms.
Cunningham’s testimony as impeachment evidence against Sage, it would have been a
steep uphill battle to argue that the mere omission of the instruction from the written
packet resulted in prejudice. Strickland, 466 U.S. at 694. Therefore, appellate counsel did

MEMORANDUM DECISION AND ORDER 25

not perform deficiently in choosing not to raise this issue. Thus, Petitioner has not shown
that his IAC claim regarding the jury instruction is substantial, and PCR counsel was not
ineffective for deciding not to raise it during postconviction proceedings. Martinez does
not apply to excuse the procedural default of Claim 4.
6.

Miscarriage of Justice
Although Petitioner’s procedural default arguments are focused on the cause and

prejudice analysis, the Court will also consider the second exception to the procedural
default doctrine. A procedural default is excused if a petitioner shows that he is actually
innocent and, therefore, a miscarriage of justice will result if his claims are not heard on
the merits. See Schlup, 513 U.S. at 329 (1995); Murray, 477 U.S. at 488.
Actual innocence in this context “means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Types of evidence
that can establish factual innocence include credible declarations of guilt by another
person, Sawyer v. Whitley, 505 U.S. 333, 340 (1992), reliable eyewitness accounts,
Schlup, 513 U.S. at 331, and exculpatory scientific evidence, Pitts v. Norris, 85 F.3d 348,
350-51 (8th Cir. 1996). A procedurally defaulted claim may be heard under the
miscarriage of justice exception only if “in light of all of the evidence, ‘it is more likely
than not that no reasonable juror would have found [Petitioner] guilty beyond a
reasonable doubt.’” United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)). Stated another way, it must be more likely

MEMORANDUM DECISION AND ORDER 26

than not that every reasonable juror would vote to acquit.
Petitioner has not met the heavy burden of showing that a miscarriage of justice
will occur if his procedurally defaulted claims are not heard on the merits. His own
statements that Tom Sage was driving the car at the time of the crash are insufficient.
Petitioner has simply not established that every reasonable juror would vote to acquit.
CONCLUSION
Claims 2(b), 2(c), 4, and 5(a)-(e) were not properly exhausted in the state courts
and are procedurally defaulted. Petitioner has not shown cause and prejudice or a
miscarriage of justice that would excuse the default. Further, Claims 3 and 6 are not
cognizable in this federal habeas proceeding.
Therefore, Respondent’s Motion for Partial Summary Dismissal will be granted in
part. The Motion will be denied with respect to Claim 2(a), which the Court concludes
was properly exhausted in the Idaho state courts.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 9) is
GRANTED IN PART and DENIED IN PART. Claims 2(b), 2(c), 3, 4, 5(a)(e), and 6 are DISMISSED with prejudice.

2.

Respondent shall file an Answer to the remaining claims—Claim 1 (double
jeopardy) and Claim 2(a) (ineffective assistance of trial counsel based on

MEMORANDUM DECISION AND ORDER 27

the failure to interview or subpoena Travis Anderson)—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
that point, the case shall be deemed ready for a final decision.

DATED: March 27, 2014

B. LYNN WINMILL
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER 28