Steele v. State of Idaho et al

Filing 16

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Motion for Enlargement of Time To Submit a Traverse 13 is GRANTED. Petitioner's Traverse 15 is deemed timely. The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED, and t his entire action is DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EARL WAYNE STEELE,
Case No. 1:13-cv-00079-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
JASON ELLIS, Warden,
Respondent.

Pending before the Court is Petitioner Earl Wayne Steele’s Petition for Writ of
Habeas Corpus (Dkt. 1). Respondent has filed an Answer and Brief in Support of
Dismissal (Dkt. 12), and Petitioner has filed a Traverse, or reply (Dkt. 15). The Court
takes judicial notice of the records from Petitioner’s state court proceedings, lodged by
Respondent on September 16, 2013. (See Dkt. 11.)
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). (Dkt. 9.)
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. D. Idaho L. Civ. R. 7.1(d). Accordingly, the
Court enters the following Order denying the Petition and dismissing this case with
prejudice.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
Steele v. Idaho, 291 P.3d 466, 468 (Idaho Ct. App. 2012), which is contained in the
record at State’s Lodging D-4. The facts will not be repeated here except as necessary to
explain the Court’s decision.
Petitioner was charged with three counts of lewd conduct with a minor under 16
years of age against his daughter, as well as one count of sexual abuse of a minor under
16 years of age against his daughter’s friend, in the Fourth Judicial District in Ada
County, Idaho. The time period of these charges spanned from 2004 to 2007. (State’s
Lodging A-1 at 17-18.) Pursuant to a plea agreement, the prosecution downgraded the
lewd conduct charge with respect to Petitioner’s daughter to a charge of sexual abuse of a
minor under 16.1 The prosecution also agreed to drop all remaining charges and to refrain
from filing additional charges involving other alleged child victims (Petitioner’s two
minor sons).
Petitioner entered an Alford plea2 to one count of sexual abuse of a minor against

1

Lewd conduct is a more serious charge than sexual abuse. The maximum penalty for a
lewd conduct involving a minor conviction is life imprisonment. Idaho Code § 18-1508. The
maximum penalty for sexual abuse of a minor is currently 25 years in prison. Idaho Code § 181506.
2

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 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
MEMORANDUM DECISION AND ORDER - 2

his daughter, limited to the 2004 to 2005 time frame—the amended indictment deleted
any reference to conduct committed in 2007. The timing of the charged conduct was
critical because the sexual abuse statute, Idaho Code § 18-1506, was amended in 2006 to
increase the maximum penalty from 15 to 25 years in prison. (State’s Lodging B-4 at 2.)
Thus, Petitioner’s plea to conduct committed during 2004 or 2005 eliminated the
possibility of his serving more than 15 years in prison. As part of the plea agreement,
Petitioner agreed to participate in a psychosexual evaluation for sentencing purposes.
During the change of plea hearing, the prosecutor made the following proffer as a
factual basis for Petitioner’s plea:
Judge, had we gone to trial the state would have
presented the following evidence to prove sexual abuse of a
minor [under] the age of 16 beyond a reasonable doubt.
We would have first presented the testimony of
[Petitioner’s daughter], who would have identified the
defendant as being her dad, bio dad. And she would have
testified that on or about September 2007, she ran away from
home and was gone approximately four days. Once police
found her and talked with her, she disclosed ongoing sexual
abuse and lewd and lascivious conduct acts that had been
going on for the past three years.
That time line of when those acts, which she would
have described at the trial, was concurrent with when her
mother stopped being able to be sexually intimate with Dad
due to a car accident, so mom got in a car accident and [was]
severely disabled about the time defendant started having
sexual contact in 2004/2005, and mom was in a wheelchair.

were guilty.”).
MEMORANDUM DECISION AND ORDER - 3

Mom would have testified at the trial that she was in
this car accident, unable to perform sexually, and she does
remember a time when she rolled into the bedroom and
caught the defendant, who had been drinking heavily, naked
in bed with their daughter and that he jumped up.
She would have also testified that she’s pled guilty for
failure to report that to authorities. She’s already been
processed on that charge[] and sentenced.
In addition, [Petitioner’s daughter] would have
testified that the touching that occurred for those three and a
half years was progressing in severity from touching, having
the defendant have her touch him when he had been drinking
on his penis, until he “spermed.” That was her words [sic].
That he would put his hands down her pants. There was a
curtain over the bathroom door because Mom’s wheelchair
needed to go in and out, and that a lot of times she would be
bathing or grooming and she would catch him looking at her.
In addition, you’ll note that one of the charges I’m
dismissing is Count 4, and that is [the daughter’s] little friend,
[M.] who the defendant actually solicited while [M.] was
over.
[M.] would have testified at trial, as she did in the
grand jury, and I think that this would have been coming in
404(b) towards [the daughter’s] case that when she spent the
night over there, the defendant had [his daughter] contact [M.]
and say “Do you want to do these things with me,” and
solicited her, touched her as well, just on the thigh, but
offered to give them driving lessons and alcohol if they would
go ahead and do this.
[Petitioner’s daughter] would have testified that in
addition, she ran away from home because when Mom and
brothers were inside Wal-Mart shopping, she was in the car
with her dad, and her dad solicited her and said, “I want to go
all the way,” and that’s basically what prompted her to take
off and run away from home. . . .
MEMORANDUM DECISION AND ORDER - 4

[Petitioner’s two sons] were seen at CARES, as well,
and described a lot of physical abuse when the defendant was
under the influence of alcohol, much of what he does not
remember, according to his attorney, and that’s why we are
offering this Alford [plea] to the court.
Lastly, we would have proven flight evidence that once
this came to the attention of law-enforcement, the defendant
took off. And so from my perspective, we would have had no
problem proving this sexual-abuse count alleged in Count 1,
and I believe there is a factual basis.
(State’s Lodging A-2 at 12-15.) Petitioner agreed that the judge should “accept the state’s
recitation of the facts as they would have been presented at trial.” (Id. at 15.)
After entry of the Alford plea, Petitioner participated in a psychosexual evaluation
as required by the plea agreement. During that evaluation, Petitioner evidently maintained
that he did not remember having committed the crime, blaming his behavior on alcoholic
blackouts; Petitioner might even have affirmatively asserted his innocence.3 Based at least
in part on Petitioner’s failure to accept responsibility for the harm he caused his daughter,
the evaluator determined that Petitioner was at a high risk to re-offend and was not a good
candidate for treatment. (State’s Lodging A-3 at 28-33.)
At sentencing, Petitioner appeared to accept some responsibility: “I know I need
sex offender treatment to help me answer my own questions.” (Id. at 28.) However,
Petitioner also stated he was not “100 percent sure” that he committed the crime and
implied that he may have staggered into his daughter’s bed by mistake when he was

3

The psychosexual evaluation is not in the record lodged by Respondent.

MEMORANDUM DECISION AND ORDER - 5

drunk. (Id. at 28-29.) Petitioner also minimized his conduct by stating, “If I had touched
[my daughter] inappropriately, I didn’t mean to or realize that I had.” (Id. at 28 (emphasis
added).)
The sentencing judge disbelieved Petitioner’s assertion that he did not remember
committing the crime, noting that the sexual molestation occurred “off and on for a period
of two years.” (Id. at 30.) The judge cited the results of the psychosexual evaluation and
stated she was quite concerned that Petitioner continued to blame his actions on alcoholic
blackouts and failed to accept responsibility for the harm he had caused:
The most problematic of all of this is the fact that you
simply are not accepting responsibility for your conduct. And
in the SANE evaluation you didn’t see how it harmed your
daughter and the other victim in this case.
And your failure to accept responsibility and just to
come in and say, yeah, I know what I did, it was wrong
continues and in my opinion continues to victimize your
daughter by that kind of attitude as well as the other victim in
this case.
....
I think this is all—your conduct is very serious and
you’re at a high risk to reoffend. I think that you will continue
to commit sexual acts if the opportunity presents itself against
minor children.
(Id. at 31-32.)
The sentencing judge, apparently under the mistaken belief that the amended
sexual abuse statute applied to Petitioner’s case, sentenced Petitioner to 25 years in prison

MEMORANDUM DECISION AND ORDER - 6

with 7 years fixed.4 (Id. at 32.) The Idaho Court of Appeals affirmed the sentence, and the
Idaho Supreme Court denied review. (State’s Lodging B-4, B-7.) However, because
Petitioner was convicted under the previous version of Idaho Code § 18-1506, the trial
court later reduced Petitioner’s sentence to 15 years—the appropriate statutory
maximum—with 7 years fixed. (State’s Lodging D-4 at 2.)
In Petitioner’s state postconviction petition, he argued that his Alford plea was not
voluntary and intelligent and that he was denied effective assistance of counsel with
respect to counsel’s alleged failure to advise him of the consequences of his plea.
Petitioner stated that he believed an Alford plea allowed him to maintain his innocence
throughout the criminal process—including throughout the psychosexual
evaluation—without it negatively affecting him in any way. (State’s Lodging C-1 at 1-7.)
Because the judge sentenced Petitioner to the statutory maximum in part because of
Petitioner’s failure to accept responsibility for his crime, Petitioner claimed that his
counsel should have informed him of the potential consequences of denying guilt during a
psychosexual evaluation.
The state district court held an evidentiary hearing, at which both Petitioner and
Petitioner’s trial counsel testified. (State’s Lodging C-3 at 41-162.) Petitioner testified
that the only reason he entered the Alford plea was because he did not want to admit guilt
4

The Court notes that not only did the sentencing judge misapprehend the statutory
maximum applicable to Plaintiff’s conviction, but the prosecutor affirmatively argued for the 25year maximum and Petitioner did not object. Likely this was simply an oversight on behalf of all
parties.
MEMORANDUM DECISION AND ORDER - 7

and because counsel assured Petitioner he would receive a rider (retained jurisdiction) and
probation rather than a prison sentence. (Id. at 50-51.) Trial counsel testified that he never
promised Petitioner anything of the sort, but told Petitioner that he would argue for a rider
and probation at sentencing—which he did. (Id. at 141-42.)
Counsel testified that, in general, Idaho courts do not look favorably on Alford
pleas, but that in cases such as Petitioner’s, where the defendant claims no recollection of
the crime, such pleas can be accepted. (Id. at 128-29.) Counsel believed that an Alford
plea was appropriate because claiming a lack of memory of the crime is not a defense and
that Petitioner would be unable to testify at trial that he did not commit the crime. (Id. at
129-30.) Petitioner’s counsel also stated that he told Petitioner he believed the state’s
offer was “as good as the Alford was likely to get.” (Id. at 142.)
The state district court held that Petitioner’s plea was voluntary and intelligent and
that trial counsel was not ineffective. (Id. at 177-80.) The Idaho Court of Appeals
affirmed. The court cited Idaho case law holding that to enter a valid guilty plea, a
defendant “must only be informed of the direct consequences of a plea as opposed to the
collateral or indirect consequences,” and that “the Sixth Amendment does not contain an
implied duty for an attorney to inform his client of the collateral consequences of a guilty
plea.” (State’s Lodging D-4 at 4.) The Court went on to conclude that the negative
psychosexual evaluation, the imposition of the maximum sentence, and any parole
consequences were collateral, rather than direct, consequences of Petitioner’s Alford plea.

MEMORANDUM DECISION AND ORDER - 8

(Id. at 6-10.)
The state court of appeals acknowledged Padilla v. Kentucky, 559 U.S. 356
(2010), in which the United States Supreme Court held that a criminal defense attorney
renders deficient performance under the Sixth Amendment if he or she fails to advise a
client of the potential immigration consequences of a guilty plea. In Padilla, the Court
stated that it had “never applied a distinction between direct and collateral consequences
to define the scope of constitutionally ‘reasonable professional assistance’ required under
Strickland [v. Washington, 466 U.S. 668, 689 (1984)].” Padilla, 559 U.S. at 365.
However, because Padilla expressly reserved the question of whether such a distinction
exists, the Idaho Court of Appeals concluded in Petitioner’s case that “the holding of
numerous [Idaho] cases that an attorney is not required to inform a client of collateral
consequences of a plea was not abrogated by Padilla except in the deportation context.”
(States’ Lodging D-4 at 5.)
The Idaho Court of Appeals did recognize the potential tension between an Alford
plea—which allows a defendant to plead guilty without expressly admitting guilt—and
the fact that individuals who do not accept responsibility for their crimes (particularly sex
crimes) may be found to be unamenable to treatment or to exhibit a lack of remorse. (Id.
at 11 n.9.) Though the court stated that “the best practice may be to avoid the entry of
Alford pleas in sex offense cases,” the court was satisfied that Petitioner’s constitutional
rights were not violated. Id. The Idaho Supreme Court denied Petitioner’s petition for

MEMORANDUM DECISION AND ORDER - 9

review. (State’s Lodging D-7.)
Petitioner filed the instant federal Petition in February 2013. He asserts that he is
entitled to habeas corpus relief because his guilty plea was not voluntary and intelligent as
a result of ineffective assistance of counsel. Petitioner claims that he believed, based on
trial counsel’s advice, that if he entered an Alford plea, he could continue to maintain his
innocence and not have that position harm him at sentencing or at later parole hearings.
Petitioner alleges that had he known that his failure to acknowledge guilt could result in a
negative psychosexual evaluation and the sentencing judge’s imposition of a 7 to 15 year
sentence, he would not have entered the plea and would have insisted on going to trial.
DISCUSSION
1.

Standard of Law
Federal habeas corpus relief may be granted on claims adjudicated on the merits in

a state court judgment when the federal court determines that the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances
where the state court’s adjudication of the merits of the petitioner’s claim
Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), federal habeas relief is further limited to instances where the state
court’s adjudication of the petitioner’s claim

MEMORANDUM DECISION AND ORDER - 10

(1)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991).
Petitioner does not challenge any specific factual findings of the state courts.
Instead, he contests the state court’s legal conclusions, including application of the law to
the facts. In that setting, § 2254(d)(1) governs, and it provides two tests to be considered
in the alternative: the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the alternative “unreasonable application” test, the petitioner must show that
the state court, even after identifying “the correct governing legal rule” from Supreme
Court precedent, nonetheless “unreasonably applie[d] it to the facts of the particular state

MEMORANDUM DECISION AND ORDER - 11

prisoner’s case.” Williams (Terry) v. Taylor, 529 U.S. 362, 407 (2000). “Section
2254(d)(1) provides a remedy for instances in which a state court unreasonably applies
[Supreme Court] precedent; it does not require state courts to extend that precedent or
license federal courts to treat the failure to do so as error.” White v. Woodall, 134 S. Ct.
1697, 1706 (2014).
Importantly, a federal court cannot grant habeas relief simply because it would
have reached a different conclusion, had it considered the matter independently. Rather,
to warrant relief, the state court’s application of federal law must be objectively
unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. This
test of § 2254(d) is an onerous standard, satisfied only if “there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with [Supreme
Court] precedents.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
In Richter, the United States Supreme Court explained that, under § 2254(d), a
habeas court (1) “must determine what arguments or theories supported or . . . could have
supported, the state court’s decision;” and (2) “then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of this Court.” Id. at 786. If fairminded jurists could
disagree on the correctness of the state court’s decision, then a federal court cannot grant
relief under § 2254(d)(1). Id. The Supreme Court emphasized that “even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (internal

MEMORANDUM DECISION AND ORDER - 12

citation omitted).
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent may be persuasive
authority for an assessment of whether a state court decision is an unreasonable
application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01
(9th Cir. 1999). However, circuit law may not be used “to refine or sharpen a general
principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme]
Court has not announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).
If the state appellate court did not decide a properly-asserted claim on the
merits—or if the state court’s factual findings are unreasonable under § 2254(d)(2)—then
§ 2254(d)(1) does not apply, and the federal district court reviews the claim de novo.
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such a case, as in the
pre-AEDPA era, a district court can draw from both United States Supreme Court and
well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489
U.S. 288 (1989). Cf. 28 U.S.C. § 2254(d)(1) (limiting review to “clearly established
Federal law, as determined by the Supreme Court”). Still, however, even under de novo
review where the factual findings of the state court are not unreasonable, the Court must
apply the presumption of correctness found in § 2254(e)(1). Pirtle, 313 F.3d at 1167.
Plaintiff asserts that his guilty plea was not voluntary and intelligent because it was
based on inadequate advice from his attorney. This claim implicates both the Fourteenth

MEMORANDUM DECISION AND ORDER - 13

Amendment’s Due Process Clause and the Sixth Amendment right to effective assistance
of counsel. To comply with due process, a guilty plea must be voluntary and intelligent.
Boykin v. Alabama, 395 U.S. 238, 242 (1969). Where a defendant is represented by
counsel during the plea process and enters his plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice “was within the range of
competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S.
759, 771 (1970). A defendant who pleads guilty upon the advice of counsel “may only
attack the voluntary and intelligent character of the guilty plea by showing that the advice
he received from counsel was not within the standards set forth in McMann.” Tollett v.
Henderson, 411 U.S. 258, 267 (1973).
In addition, the habeas petitioner challenging the guilty plea entered on the advice
of counsel must show a reasonable probability that had the petitioner received adequate
advice from his attorney, he would not have pleaded guilty but rather would have insisted
on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Strickland v.
Washington, 466 U.S. 668, 694 (1984) (holding that, to satisfy the prejudice standard for
a Sixth Amendment ineffective assistance of counsel claim, 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”).
Petitioner also appears to claim that he would not have pleaded guilty if he had
known his continued assertion of his privilege against self-incrimination would be used

MEMORANDUM DECISION AND ORDER - 14

against him. (Dkt. 1 at 4.) Therefore, his assertions may also implicate the Fifth
Amendment. Although it is clear under the Fifth Amendment that no adverse inferences
may be taken from a defendant’s silence during the guilt phase of a trial, Carter v.
Kentucky, 450 U.S. 288, 302-03 (1981), the Supreme Court has left open the possibility
that some such inferences might be permissible at sentencing (for example, as indicating a
defendant’s lack of remorse) so long as the adverse inference does not relate to the facts
and circumstances of the crime. Mitchell v. United States, 526 U.S. 314, 330 (1999);
White, 134 S. Ct. at 1704-05 (explaining that Mitchell expressly reserved the question of
whether assertion of the privilege against self-incrimination at sentencing may be the
basis for a finding of lack of remorse).
2.

The Decision of the Idaho Court of Appeals—that Petitioner’s Attorney Did
Not Render Ineffective Assistance and that Petitioner’s Plea Was Voluntary
and Intelligent—Was Not Contrary to, nor Based on an Unreasonable
Application of, Clearly-Established Supreme Court Precedent.
A review of the relevant case law reveals that the Idaho Court of Appeals’

rejection of Petitioner’s claim of ineffective assistance of counsel leading to his Alford
plea was neither contrary to, nor an unreasonable application of, the clearly-established
holdings of the United States Supreme Court.
This Court has found no Supreme Court case law—and Petitioner has cited
none—holding that an Alford plea is invalid if the defendant is not advised that continued
assertion of innocence might have a negative effect on a psychosexual evaluation, might
lead a judge to impose a harsher sentence based on a failure to accept responsibility for
MEMORANDUM DECISION AND ORDER - 15

the crime, or might cause a parole board to deny parole in the future. Thus, it is not
clearly-established that the Idaho Court of Appeals erred when it determined that
Petitioner’s plea was voluntary and intelligent notwithstanding his alleged ignorance that
denial of wrongdoing could affect his evaluation, the sentence imposed, or the sentence
he would ultimately serve.
Additionally, the state court of appeals addressed Petitioner’s claim under the
direct-versus-indirect consequences analysis generally employed by Idaho courts. (State’s
Lodging D-4.) As Padilla noted, the Supreme Court has never ruled upon the issue of
whether such a direct-versus-indirect consequences analysis is permitted or prohibited
under the Sixth Amendment. 559 U.S. at 365. Indeed, the Court in Padilla expressly
declined to decide that question. Id. Thus, there is also no precedent from the nation’s
highest court holding that a potential increase in sentence based on a psychosexual
evaluator’s finding of a lack of acceptance of responsibility is a direct consequence of
which a defense attorney must advise his client, as opposed to a collateral consequence.
Therefore, the Idaho Court of Appeals’ decision is not objectively unreasonable under 28
U.S.C. § 2254(d)(1).
Finally, as described in White v. Woodall, there is no clearly-established Supreme
Court precedent prohibiting a sentencing court from drawing an inference of a lack of
remorse or a failure to accept responsibility based on a defendant’s silence or refusal to
incriminate himself. 134 S. Ct. at 1704-05 (“We need not decide here, and express no

MEMORANDUM DECISION AND ORDER - 16

view on, whether the conclusion that a no-adverse-inference instruction was required [at
sentencing] would be correct in a case not reviewed through the lens of § 2254(d)(1). For
we are satisfied that the issue was, at a minimum, not ‘beyond any possibility for
fairminded disagreement.’” (quoting Richter, 131 S. Ct. at 787)). Because such an
inference has nothing to do with the “factual determinations respecting the circumstances
and details of the crime,” Mitchell, 526 U.S. at 330, it was reasonable for the state court
of appeals to conclude that Petitioner’s rights were not violated when he entered an
Alford plea of guilty without knowing that continued allegations of memory loss
regarding his conduct or assertions of innocence might influence the judge to impose a
harsher sentence or lead a parole board to deny parole. Id. (“The Government retains the
burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the
defendant in this process at the expense of the self-incrimination privilege. Whether
silence bears upon the determination of a lack of remorse . . . is a separate question. It is
not before us, and we express no view on it.”).
For the foregoing reasons, Petitioner is not entitled to habeas relief under 28
U.S.C. § 2254(d)(1).
3.

Alternatively, on De Novo Review, Petitioner Has Not Shown Prejudice From
His Allegation that his Counsel Did Not Inform Him of the Potential
Consequences of Failing to Accept Responsibility During the Psychosexual
Evaluation, at Sentencing, or at Future Parole Hearings.
The Idaho Court of Appeals held that Petitioner’s counsel was not required to

inform him that an Alford plea could result in a negative psychosexual evaluation, a
MEMORANDUM DECISION AND ORDER - 17

higher sentence based on that negative evaluation and Petitioner’s failure to accept
responsibility, or a negative parole recommendation. Having made that holding, that
court did not reach the question whether counsel’s failure to advise him of these
possibilities prejudiced Petitioner. The Court has reviewed that issue de novo as an
alternative to the § 2254(d)(1) analysis set forth above. See Pirtle, 313 F.3d at 1167.
For purposes of de novo review, the Court will assume (1) that Petitioner’s Alford
plea directly resulted in his failure to acknowledge responsibility during the psychosexual
evaluation, (2) that this failure to acknowledge responsibility directly resulted in the
evaluator’s opinion that Petitioner was at a high risk to re-offend and was not amenable to
treatment, and (3) that the evaluator’s opinion directly resulted in the sentencing judge’s
imposition of the maximum sentence. However, the Court concludes that, even if there
exists a causal relationship directly linking Petitioner’s Alford plea, his denials of guilt
during the evaluation, and his ultimate sentence, Petitioner still fails to show a reasonable
probability that had he known his sentence could have been affected by his failure to
admit guilt, he would not have pled guilty but instead would have insisted on going to
trial. See Hill, 474 U.S. 59.
Of particular significance to such a conclusion is the exceptionally favorable plea
agreement that Petitioner and his counsel had made with the State. Petitioner was initially
charged with three counts of lewd conduct with a minor under 16 years of age (alleged to
have been committed against his daughter), as well as one count of sexual abuse of a

MEMORANDUM DECISION AND ORDER - 18

minor under 16 years of age (alleged to have been committed against his daughter’s
friend). (State’s Lodging A-1 at 17-18.) Just as to the lewd conduct charges alleged to
have been committed against his daughter, Petitioner was facing three separate counts
that each carried a maximum sentence of life imprisonment. Idaho Code § 18-1508. The
sexual abuse against a second minor victim (committed in 2007 according to the original
indictment) carried a 25 year maximum sentence under the 2006 amendment to Idaho
Code § 18-1506. (See State’s Lodging A-1 at 18.) Thus, by pleading guilty to sexual
abuse of a minor involving stipulated facts that triggered the pre-2006 version of the
statute, rather than the harsher penalties imposed by the 2006 amendment, Petitioner
avoided being exposed to an additional 10 years in prison. Further, the state was
considering whether to file other charges against Petitioner related to the alleged physical
abuse of his minor sons. By entering the Alford plea, Petitioner avoided these charges
entirely.
In contrast to the favorable plea deal, Petitioner would have found himself in an
extremely unfavorable position had he gone to trial. As Petitioner’s trial attorney testified
during state postconviction proceedings, Petitioner had no defense to the lewd conduct or
sexual abuse charges; because of his alleged lack of memory, he could not even deny the
allegations. Further, at the change of plea hearing, Petitioner agreed his daughter would
have testified that Petitioner committed ongoing sexual abuse over at least two years, that
she ran away from home because Petitioner asked her to “go all the way,” and that the

MEMORANDUM DECISION AND ORDER - 19

abuse started when her mother became unable to engage in sexual behavior. Petitioner
agreed that his daughter’s friend would have testified that Petitioner propositioned her
through his daughter, touched her inappropriately on the thigh, and offered her driving
lessons and alcohol in return for sexual contact. Petitioner also agreed that his wife would
have testified that she caught him naked in bed with his daughter and that he jumped up
when she saw them.
These conceded acknowledgments of particularly damning testimony is not
consistent with that of a man so drunk he could not remember whether he engaged in
sexually predatory behavior over a period of some years with his daughter, and engaging
in attempts at similar behavior with his daughter’s friend. Petitioner offers no legitimate
reason why any juror would have disbelieved all three witnesses based only on
Petitioner’s dubious assertion that he mistakenly wandered into the wrong bedroom in his
drunken state, that he had no recollection of any of the numerous times he molested his
daughter or sought to do the same to her friend, or that he reacted in the manner of
someone who had been found in a place he should not have been when discovered by his
wife in bed with his daughter. Petitioner’s complicated behavior in enlisting his daughter
to approach her friend and ask if she would agree to have sexual contact with Petitioner,
as well as his obviously calculated attempt to bribe the girl with driving lessons and
alcohol, would have struck a reasonable juror—as it does this Court—as inconsistent with
an innocent mistake in remembering the location of his bedroom.

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The Court concludes that no reasonable person—genuinely unsure of whether he
actually committed these terrible crimes—would have risked going to trial. Rather than
multiple counts against multiple victims and three potential life sentences, along with the
possibility of additional charges of physical abuse against other victims, Petitioner was
allowed to plead to one count of a lesser sexual abuse charge against a single victim and
faced a maximum sentence of only 15 years in prison.
This case involves extremely detrimental facts and an extremely beneficial plea
agreement for Petitioner. Notwithstanding Petitioner’s self-serving assertions that he
would not have entered an Alford plea if he knew that his failure to admit guilt at the
psychosexual evaluation could be interpreted as a failure to accept responsibility and as a
lack of remorse (which could in turn result in a harsher sentence or a denial of parole),
Petitioner has simply not established a reasonable probability that he would have gone to
trial if he had known of these potential consequences. See Hill, 474 U.S. at 59.
CONCLUSION
The Idaho Court of Appeals reasonably applied clearly-established Supreme Court
precedent in rejecting Petitioner’s claim that his Alford plea was invalid based on
ineffective assistance of counsel. See 28 U.S.C. § 2254(d)(1). Alternatively, it is clear on
de novo review that, even if Petitioner’s counsel should have warned him that a failure to
accept responsibility during a psychosexual evaluation could have resulted in a finding of
a high risk to re-offend and ultimately a harsher sentence, there is no reasonable

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probability that Petitioner would have taken his chances at trial, given his lack of any
defense to the charges and the extremely favorable plea agreement his counsel was able to
negotiate. For these reasons, Petitioner is not entitled to habeas corpus relief.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Enlargement of Time To Submit a Traverse (Dkt.
13) is GRANTED. Petitioner’s Traverse (Dkt. 15) is deemed timely

2.

The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED, and this entire
action is DISMISSED with prejudice.

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: September 22, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

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