Moore v. Little

Filing 46

MEMORANDUM DECISION AND ORDER Petitioner's Motion to Proceed Also Amend (Dkt. 37 ) is MOOT IN PART and DENIED IN PART. Petitioner's Motion to Rule in Accordance with the United States Constitution (Dkt. 43 ), construed as part of Petition er's response to Respondent's Motion for Partial Summary Dismissal, is NOTED. Respondent's Motion for Partial Summary Dismissal (Dkt. 40 ) is GRANTED. All of Petitioner's claimswith the exception of Claim 2(e)are DISMISSED with p rejudice. Respondent shall file an answer and brief with respect to Claim 2(e) within 90 days of the date of this Order. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ALBERT MOORE,

Case No. 1:13-cv-00007-REB
Petitioner,

MEMORANDUM DECISION AND
ORDER

v.
STEVE LITTLE,
Respondent.

Pending before the Court is Petitioner Albert Moore’s Petition for Writ of Habeas
Corpus. (Dkt. 3.) This case was previously stayed to allow Petitioner to exhaust his claims
in state court and has since been reopened. Petitioner has filed a Motion to Proceed and
Amend. (Dkt. 37.) In addition, Respondent has filed a Motion for Partial Summary
Dismissal. (Dkt. 40.) Petitioner has filed a response to Respondent’s Motion, along with a
document entitled “Motion to Rule in Accordance with the United States Constitution.”
(Dkt. 43.) These motions are now ripe for adjudication.
The 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
Rule of Civil Procedure 73. (Dkt. 11.) 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 oral argument is unnecessary. See D.

MEMORANDUM DECISION AND ORDER - 1

Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting the
Motion and dismissing with prejudice all of Petitioner’s claims other than Claim 2(e).
BACKGROUND
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, lodged by Respondent on August 30, 2013, and April 15, 2014. (Dkt. 15, 18,
31.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
In September 2006, Petitioner was charged in Ada County with misdemeanor
driving under the influence (DUI). The charge was later amended to a felony based on
Petitioner’s two previous DUI convictions: one from Idaho and one from North Dakota.
State v. Moore, 231 P.3d 532, 535 (Idaho Ct. App. 2010) (“Moore I”). This felony charge is
the subject of the instant habeas petition. The case was delayed for various reasons.
While this first DUI case was pending, Petitioner was charged with a second felony
DUI. Petitioner went to trial on this second DUI and argued that the North Dakota
conviction could not be used to enhance the second DUI charge to a felony because the
statute upon which that conviction was based did not substantially conform to Idaho’s DUI
statute. The trial court disagreed, and the jury convicted Petitioner of the second DUI,
enhanced to a felony based in part on the North Dakota conviction.
After Petitioner’s conviction in the second DUI case, he entered a conditional
Alford plea 1 in the first DUI case, reserving the right to appeal the issues of (1) whether the

1
An Alford plea is the equivalent of a guilty plea, the only difference being that the defendant is not
required to expressly admit guilt. See 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

MEMORANDUM DECISION AND ORDER - 2

North Dakota conviction could be used to enhance the DUI charge to a felony, and (2)
whether his speedy trial rights were violated. (State’s Lodging C-2 at 77-78.) Petitioner
was sentenced on each conviction to concurrent unified terms of six years imprisonment,
with one year fixed. Moore I, 231 P.3d at 536. Petitioner appealed both judgments, and
although the cases were briefed separately, they were consolidated for purposes of
argument and decision.
In the second DUI case, Petitioner argued that (1) the North Dakota statute under
which Petitioner was convicted was not substantially conforming to Idaho’s DUI statute
and, therefore, the North Dakota conviction could not be used to enhance the DUI to a
felony; (2) the North Dakota conviction was unconstitutional; (3) the judgment of
conviction regarding the North Dakota DUI was not properly certified or authenticated;
and (4) a North Dakota bench warrant should have been excluded as irrelevant and unduly
prejudicial. (State’s Lodging B-1.) In the first DUI case, Petitioner argued that (1) his
federal and state constitutional rights to a speedy trial, as well as his statutory rights to a
speedy trial, were violated; and (2) the first DUI case should be remanded in the event
Petitioner prevailed in the second DUI case. Petitioner also reasserted his arguments
regarding the North Dakota conviction. (State’s Lodging D-1.)
With respect to the second DUI case, the Idaho Court of Appeals ruled that the
North Dakota DUI statute did substantially conform to Idaho’s DUI statute and that it thus
could be used to enhance the second DUI charge; the court also rejected Petitioner’s
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

argument that the North Dakota conviction was unconstitutional. Id. at 543-44. However,
the court also ruled that the evidence of the North Dakota conviction admitted at trial had
not been properly authenticated pursuant to the Idaho Rules of Evidence and, therefore,
was inadmissible. Hence, the judgment in the second DUI case was vacated. 2 (Id. at
536-38.)
With respect to the first DUI case, the Idaho Court of Appeals rejected Petitioner’s
speedy trial arguments. However, the Idaho Court of Appeals remanded the case “for
determination as to whether [Petitioner] was entitled to withdraw his conditional guilty
plea [in the first case] because of the vacation of the judgment of conviction in the second
case.” (State’s Lodging H-11 at 2.) This decision was issued on April 12, 2010. Neither
Petitioner nor the state petitioned the Idaho Supreme Court for review. (State’s Lodging
B-8.)
On remand, the state trial court concluded that the reservation of rights in the first
DUI case—in which he pleaded guilty—did not encompass the evidentiary error identified
by the court of appeals in the second DUI case. State v. Moore, 268 P.3d 471, 472 (Idaho
Ct. App. 2011) (“Moore II”). The court ruled, therefore, that Petitioner would not be
permitted to withdraw his plea. Id.
Intending to provide a written document from which Petitioner could appeal, the
trial court stated that it would “impose the sentence [in the first DUI case] as earlier set out

2
On remand of the second DUI case, the trial court entered a judgment of conviction for
misdemeanor DUI, sentenced Petitioner to 365 days in jail, and gave Petitioner 365 days credit for time
served. See Moore v. Kirkham, Case No. 1:12-cv-00547-CWD, Dkt. 38 at 4.

MEMORANDUM DECISION AND ORDER - 4

in the Court’s judgment” and issued an amended judgment. Id. However, the amended
judgment mistakenly included a sentence of five years with one year fixed, instead of the
original sentence of six years with one year fixed. Id. Neither Petitioner nor the state
appealed the amended judgment. Id.
The state did, however, file a motion “to correct [the] apparent clerical mistake” in
the amended judgment. (State’s Lodging E-1 at 34.) The trial court then entered a second
amended judgment, imposing the original sentence of six years with one year fixed. (Id. at
44-46.) Petitioner filed a motion for reduction of sentence under Idaho Criminal Rule 35,
which the court denied. (State’s Lodging E-1 at 63-65.)
On appeal from the second amended judgment, Petitioner argued only that the trial
court lacked jurisdiction to enter that judgment. (State’s Lodging F-1.) The Idaho Court of
Appeals affirmed the second amended judgment on December 21, 2011, concluding that
Idaho Criminal Rule 36 authorized the trial court to correct the sentence. Moore II, 268
P.3d at 474. The Idaho Supreme Court denied review. (State’s Lodging F-6.)
Petitioner filed a state postconviction petition in the first DUI case, raising a number
of claims. (State’s Lodging 67-72.) However, when appealing the state district court’s
denial of the postconviction petition, Petitioner specifically argued only that his defense
counsel was ineffective for failing to obtain transcripts involving the North Dakota
conviction; Petitioner claimed that if counsel had done so, the conviction would not have
been found to be substantially conforming, and Petitioner would have prevailed on that
ground in his first appeal. (State’s Lodging J-4.) The Idaho Court of Appeals noted that
MEMORANDUM DECISION AND ORDER - 5

although Petitioner nominally appealed the dismissal of five of his postconviction relief
claims, he did not provide argument regarding any claim other than the transcript-related
ineffective assistance claim. (State’s Lodging J-7 (“Moore IV”) at 5 n.1.) The court
therefore affirmed the dismissal of those other claims. The court of appeals also affirmed,
on the merits, the dismissal of Petitioner’s transcript-related ineffectiveness claim. (Id. at
5-6.) The court of appeals’ decision was issued on April 15, 2013, and the Idaho Supreme
Court denied review. (State’s Lodging J-10.)
While his postconviction appeal was still pending, Petitioner filed a pro se motion
for correction of an illegal sentence under Idaho Criminal Rule 35, but he also requested
that his conviction be vacated. (State’s Lodging K-1 at 10-18.) Although it is difficult to
discern precisely what Petitioner was arguing in the Rule 35 motion, the Idaho Court of
Appeals later construed the motion as asserting the following claims:
(1) the district court’s second amended judgment and its
correction of his prior erroneous oral pronouncement
constituted a violation of the Ex Post Facto Clause and was
precluded by the doctrine of collateral estoppel; (2) his
conviction was the result of vindictive prosecution and a
biased trial judge; and (3) that his speedy trial rights were
violated.
(State’s Lodging L-8 at 3.)
The trial court denied the motion, and Petitioner appealed. He attempted to raise the
following issues: (1) “illegal sentence”; (2) “preclusion”; (3) “ex post facto”; and (4) “use
of improperly authenticated judgment by appellate court ruling used by district court.”
(State’s Lodging L-1 at 5.) He also argued that he was subjected to a vindictive prosecution
MEMORANDUM DECISION AND ORDER - 6

and that the trial judge was biased. Although Petitioner transcribed some of his previous
proceedings and offered many citations and statements of law, he included very little
substantive argument in his appellate briefing. (See State’s Lodging L-1 & L-2.)
Nevertheless, the Idaho Court of Appeals considered all of Petitioner’s briefs and
arguments, 3 concluding that all of his claims of error were “barred by the doctrine of ‘law
of the case’ or the doctrine of ‘res judicata.’” (State’s Lodging L-8 (“Moore III”) at 3.) The
court applied Idaho law and determined that Petitioner either did raise, or could have
raised, all of these issues in his previous appeals:
In [Petitioner’s] first appeal, this Court specifically addressed
the propriety of use of a North Dakota DUI conviction to
enhance his current offense to a felony. If [Petitioner] had
possessed a claim of violation of the Ex Post Facto Clause, it
could have been raised in that appeal but was not. In
[Petitioner’s] second appeal, we addressed his argument,
which he pursues again at length in this appeal, that the
corrected sentence specified in the second amended judgment
of conviction was illegal. Any claims that [Petitioner] was the
subject of a vindictive prosecution or that the district judge
should have recused himself for bias could have been raised in
either of the prior two appeals. Thus, all of the challenges to
his sentence or conviction that [Petitioner] presented to the
district court through his motion for correction of an illegal
sentence, and additional issues that he attempts to raise on this
appeal, are barred . . . .
(Id. at 4 (emphasis added).) This decision was issued on December 19, 2012. The Idaho
Supreme Court denied review. (State’s Lodging L-11.)
Petitioner then filed, in the state district court, a motion for credit for time served

3

The state’s motion to strike Petitioner’s supplemental appellate brief was denied. (State’s Lodging

L-7.)

MEMORANDUM DECISION AND ORDER - 7

pursuant to Idaho Criminal Rule 35(c). In reviewing the motion, the trial court determined
that Petitioner might actually have been awarded too much credit for time served. (State’s
Lodging O-1 at 31.) After a hearing, the court entered a third amended judgment, which
reduced Petitioner’s credit for time served by 70 days. (Id. at 125-28; State’s Lodging P-1
at 8; State’s Lodging P-5 at 3.)
Petitioner appealed the third amended judgment, arguing only that the reduction of
credit for time served violated his right to due process under the federal and state
constitutions. (State’s Lodging P-1.) The Idaho Court of Appeals noted that the question
whether a trial court “may sua sponte raise the issue that a defendant may have been given
too much credit for time served ha[d] not [previously] been directly addressed by Idaho
courts.” State v. Moore, 319 P.3d 501, 504 (Idaho Ct. App. 2014) (“Moore V”).
The state court affirmed the reduction of credit, concluding that the statute
governing an award for credit for time served “is mandatory and requires that, in
sentencing a criminal defendant or (as in this case) when hearing an [Idaho Criminal Rule]
35(c) motion for credit for time served, the court give the appropriate credit for
prejudgment incarceration.” Id. at 504-05. Just as a defendant “is entitled to credit for all
time spent incarcerated before judgment,” the “converse is also true—the defendant is not
entitled to credit . . . for any time not actually spent incarcerated before judgment.” Id.
Finally, the appellate court held that the trial court had jurisdiction to make its own
determination as to credit for time served. The Idaho Court of Appeals issued this decision
on February 5, 2014, and the Idaho Supreme Court denied review. (State’s Lodging P-8.)
MEMORANDUM DECISION AND ORDER - 8

In the instant habeas petition, Petitioner raises the following claims: (1) violation of
the Double Jeopardy Clause; (2) ineffective assistance of counsel for allegedly (a) failing
to require the prosecution to “bring the entire record”; (b) failing to “bring rationale of
preclusion”; (c) allowing the prosecution to use false evidence; (d) allowing the
prosecution to “remove records from the case”; (e) failing to obtain transcripts relating to
the North Dakota conviction; (f) failing to ensure that Petitioner’s Fourth Amendment
rights were not violated; (g) failing to protect Petitioner’s Fifth Amendment rights; (h)
failing “to provide assistance of and noticeable criteria”; (i) failing to ensure a jury trial
after a breach of Petitioner’s plea agreement; and (j) failing to “provide or even argue
[Petitioner’s] right to due process”; 4 (3) violation of the Speedy Trial Clause; (4)
violations relating to the “failure to follow rational of preclusion” and Idaho Criminal
Rules 34, 35, and 36; (5) violation of the Ex Post Facto Clause; (6) violations of Brady v.
Maryland, 373 U.S. 83 (1963), as well as the Jencks Act; and (7) judicial abuse based on
the trial judge’s failure to recuse himself. (Dkt. 3.)
PETITIONER’S “MOTION TO PROCEED ALSO AMEND”
Petitioner “Motion to Proceed Also Amend” is replete with legal citations, various
exhibits, and a brief argument that the state court “had no material jurisdiction” to use
Petitioner’s North Dakota conviction to enhance Petitioner’s DUI charge to a felony. (Dkt.
37 at 3.) To the extent that Petitioner seeks to continue with this habeas action now that his
state court proceedings are completed, the Motion is moot because the Court has already
4
For ease of reference, the Court will use alphanumeric identifiers with respect to the Claim 2
sub-claims, rather than using two sets of numerals as Petitioner does.

MEMORANDUM DECISION AND ORDER - 9

lifted the stay and reopened this case. (Dkt. 35.) To the extent Petitioner seeks to amend his
Petition, the Motion will be denied because Petitioner did not include a proposed amended
petition or otherwise comply with the Rules Governing Section 2254 Cases (“Habeas
Rules”) in submitting his request to amend. See Habeas Rule 2(c) (“The petition must: (1)
specify all the grounds for relief available to the petitioner; (2) state the facts supporting
each ground; (3) state the relief requested; (4) be printed, typewritten, or legibly
handwritten; and (5) be signed under penalty of perjury . . . .”); Habeas Rule 2(d) (“The
petition must substantially follow either the form appended to these rules or a form
prescribed by a local district-court rule.”).
PETITIONER’S MOTION TO RULE IN ACCORDANCE
WITH THE UNITED STATES CONSTITUTION
It appears that Petitioner’s Motion to Rule in Accordance with the United States
Constitution was intended as part of his response to Respondent’s Motion for Partial
Summary Dismissal, and the Court will construe the Motion as such.
RESPONDENT’S MOTION FOR PARTIAL SUMMARY DISMISSAL
Respondent moves for summary dismissal of all of Petitioner’s claims other than
Claim 2(e), on the grounds that those claims are procedurally defaulted.
1.

Standards of Law
Rule 4 of the Habeas Rules requires that the Court 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

MEMORANDUM DECISION AND ORDER - 10

district court.” The Court may also deny a habeas petition on the merits even if it is
otherwise procedurally barred. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”)
A habeas petitioner must exhaust his or her 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). To do so, 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 fairly presented
all of his federal claims at least in a petition seeking review before that court. Id. at 847.
“Fair presentation” requires a petitioner to describe both the operative facts and the legal
theories upon which the federal claim is based. Gray v. Netherland, 518 U.S. 152, 162-63
(1996).
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) (per curiam). 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). Proper exhaustion
requires that a petitioner present his federal claim before the state court by “explicitly”
MEMORANDUM DECISION AND ORDER - 11

citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.
2000), as amended, 247 F.3d 904 (9th Cir. 2001).
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
claim before the Idaho courts; (2) when a petitioner has raised a similar 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 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 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, and if it is not interwoven with, federal grounds. Bennett v. Mueller, 322
F.3d 573, 581 (9th Cir. 2003).
If a habeas claim is procedurally defaulted, a federal district court cannot hear the
merits of that claim unless the petitioner meets one of two exceptions: (1) a showing of
adequate legal cause for the default and prejudice arising from the default, Murray v.
MEMORANDUM DECISION AND ORDER - 12

Carrier, 477 U.S. 478, 488 (1986); or (2) a showing of actual innocence, which means that
a miscarriage of justice will occur if the constitutional claim is not heard in federal court,
Schlup v. Delo, 513 U.S. 298, 329 (1995).
2.

All of Petitioner’s Claims, with the Exception of Claim 2(e), Are Procedurally
Defaulted
The simplest manner in which to resolve the exhaustion and procedural default

status of Petitioner’s federal claims is to review which claims were raised and addressed on
the merits in the state court appellate proceedings. Having done so, the Court concludes
that the only claim raised by Petitioner in the instant habeas action that was also fairly
presented to the Idaho Supreme Court and decided on the merits is Claim 2(e)—the claim
of ineffective assistance of counsel based on counsel’s failure to obtain transcripts relating
to Petitioner’s North Dakota conviction.
None of the claims that Petitioner litigated in his first appeal was fairly presented to
the Idaho Supreme Court. In April 2010, in Moore I, the Idaho Court of Appeals rejected
all of Petitioner’s claims other than his claim regarding the erroneous admission of the
unauthenticated documents evidencing the North Dakota conviction. Because Petitioner
did not seek review of that decision in the state supreme court, he did not fairly present to
that court any of his claims in that first appeal.
In December 2011, the Idaho Court of Appeals issued Moore II, in which Petitioner
challenged only the jurisdiction of the trial court to enter the second amended judgment
resentencing Petitioner to his original six-year term of imprisonment. This claim was

MEMORANDUM DECISION AND ORDER - 13

properly exhausted when, after affirmance by the Idaho Court of Appeals, Petitioner
sought review from the Idaho Supreme Court. However, Petitioner does not assert this
claim in his federal habeas petition.
In Moore III, all of the claims raised by Petitioner in his motion for correction of
illegal sentence were ruled by the Idaho Court of Appeals to be barred by the doctrine of
the law of the case or by the doctrine of res judicata. Petitioner has not shown that these
state-law doctrines were not clear, were inconsistently applied by the Idaho courts, or were
not well-established at the time of the procedural default, nor has he shown that either
doctrine is interwoven with federal law. Martinez v. Klauser, 266 F.3d at 1093-94. Thus,
the court of appeals relied on an adequate and independent state law ground in rejecting
Petitioner’s claims, and all of the claims that Petitioner raised on appeal of his pro se Rule
35 proceeding are procedurally defaulted.
As to his appeal from the denial of his state postconviction petition, Petitioner only
nominally challenged the dismissal of five claims. As the Idaho Court of Appeals noted in
Moore IV, Petitioner included argument to support only one – that of ineffective assistance
of counsel based on counsel’s failure to obtain the North Dakota transcripts. (State’s
Lodging J-4; J-7.) This claim—which is reproduced in the Petition as Claim 2(e)—was
fairly presented to the state’s highest court when Petitioner filed a petition for review of the
decision of the Idaho Court of Appeals. However, the remaining claims in Petitioner’s
postconviction petition were not fairly presented. The court of appeals affirmed the
dismissal of these other claims based on Petitioner’s decision to support only one claim
MEMORANDUM DECISION AND ORDER - 14

with argument and authority:
In his appellant’s brief, Moore does not individually
argue the five claims that were summarily dismissed. Instead,
Moore only addresses his trial counsel’s performance in regard
to obtaining and presenting the North Dakota transcript.
Therefore, summary dismissal of Moore’s claims is affirmed
insofar as the claims do not pertain to the assertion that his
counsel was ineffective for failing to obtain and present the
North Dakota transcript.
(State’s Lodging J-7 at 5 n.1 (emphasis added).) The state procedural rule requiring that
appellate claims be specifically supported with argument and authority, as explained in
Zichko v. Idaho, constitutes an adequate and independent state procedural ground for
purposes of federal habeas review. 247 F.3d 1015, 1021 (9th Cir. 2001). Thus, although
Petitioner’s transcript-related claim of ineffective assistance of counsel was properly
presented to the Idaho Supreme Court, all of the other claims raised in his state
postconviction petition are procedurally defaulted.
Finally, the only claim that Petitioner argued on appeal in Moore V was that his due
process rights were violated when the trial court entered a third amended judgment which
reduced Petitioner’s credit for time served by 70 days. This claim was fairly presented to
the Idaho Supreme Court, which denied review of the court of appeals’ decision rejecting
Petitioner’s due process claim. However, the Petition does not assert a due process claim
based on the reduction in credit for time served.
This review of Petitioner’s state court proceedings shows that the only claim
asserted by Petitioner in the instant habeas petition that was also fairly presented to the

MEMORANDUM DECISION AND ORDER - 15

Idaho state courts and decided on the merits is Claim 2(e). Therefore, all of Petitioner’s
remaining claims are procedurally defaulted.
3.

Petitioner Has Not Established Cause and Prejudice, or Actual Innocence, to
Excuse the Procedural Default of His Claims
As explained above, a procedurally defaulted claim may still be heard on the merits

in federal habeas if the petitioner shows cause and prejudice, or actual innocence, to excuse
the default. Murray, 477 U.S. at 488; Schlup, 513 U.S. at 329. However, Petitioner does not
contend that either of these doctrines applies to excuse the procedural default of his claims.
CONCLUSION
The only claim Petitioner asserts in his federal habeas petition that was also fairly
presented to—and decided on the merits by—the Idaho state courts is Claim 2(e):
ineffective assistance of counsel based on counsel’s failure to obtain transcripts related to
Petitioner’s North Dakota conviction. Because Petitioner has not attempted to show cause
and prejudice, or actual innocence, to excuse the default of his remaining claims, those
other claims will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion to Proceed Also Amend (Dkt. 37) is MOOT IN PART
and DENIED IN PART.

MEMORANDUM DECISION AND ORDER - 16

2.

Petitioner’s Motion to Rule in Accordance with the United States
Constitution (Dkt. 43), construed as part of Petitioner’s response to
Respondent’s Motion for Partial Summary Dismissal, is NOTED.

3.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 40) is
GRANTED. All of Petitioner’s claims—with the exception of Claim
2(e)—are DISMISSED with prejudice.

4.

Respondent shall file an answer and brief with respect to Claim 2(e) within
90 days of the date of this Order. 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
and brief. 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: July 17, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

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