Breinholt v. State of Idaho et al

Filing 42

MEMORANDUM DECISION & ORDER Petitioner's Motion to Reconsider (Dkt. 30 ) is DENIED. Petitioner's Motion to Strike (Dkt. 35 ) is DENIED. Petitionerls Motion for Extension of Time (Dkt. 31) is GRANTED. Respondent's Motion for Extens ion of Time (Dkt. 36 ) is GRANTED. The Amended Petition for Writ of Habeas Corpus (Dkt. 3 ) is DISMISSED IN PART and DENIED IN PART, and this entire action is DISMISSED with prejudice. Signed by Judge Candy W. Dale. (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

MICHAEL BREINHOLT,
Petitioner,
v.

Case No. 1:13-cv-00147-CWD
MEMORANDUM DECISION AND
ORDER

LAWRENCE WASDEN, Idaho
Attorney General,
Respondent.

Currently pending before the Court is Petitioner Michael Breinholt’s Amended
Petition for Writ of Habeas Corpus. (Dkt. 3.) The Amended Petition is now fully briefed.
(Dkt. 10, 34, 37.) 1
Also pending are various motions for extensions of time, as well as Petitioner’s
Motion for Reconsideration of the Court’s denial of his motion for leave to file a second
amended petition (Dkt. 30), and Petitioner’s Motion to Strike Respondent’s Produced
Documents (Dkt. 35).
1

Petitioner’s objection (Dkt. 40) that Respondent’s Sur-reply (Dkt. 37) was unauthorized is
groundless. The Court expressly granted Respondent the opportunity to file a sur-reply. (Dkt 29 at 4).
Although Petitioner’s objection—which contains arguments in response to Respondent’s Sur-reply—is
itself unauthorized, (see Dkt. 2 at 7), the Court has reviewed and considered the objection in ruling on the
Amended Petition.

MEMORANDUM DECISION AND ORDER - 1

All 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. 7.) 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.
Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order dismissing the
Amended Petition in part, denying the Amended Petition in part, and dismissing this
entire action with prejudice.
PETITIONER’S MOTION TO RECONSIDER
1.

Background
On November 5, 2014, the Court denied Petitioner’s motion for leave to file a

second amended petition. (Dkt. 29.) The basis of Petitioner’s motion to amend was the
dismissal of charges against Rick Koerber, Petitioner’s “mentor,” in a separate criminal
case in the United States District Court for the District of Utah. Petitioner asks that the
Court reconsider its denial of his motion to amend. (Id.)
2.

Standard of Law and Discussion
A federal district court has the “inherent procedural power to reconsider, rescind,

or modify an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles
v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (internal quotation marks
and emphasis omitted); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other decision . . .
that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties . . . may be revised at any time before the entry of a judgment adjudicating all the
MEMORANDUM DECISION AND ORDER - 2

claims and all the parties’ rights and liabilities.”). Although courts have authority to
reconsider prior orders, they “should be loath to do so in the absence of extraordinary
circumstances such as where the initial decision was ‘clearly erroneous and would work a
manifest injustice.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988) (quoting Arizona v. California, 460 U.S. 605, 618 n. 8 (1983)).
Petitioner has not pointed to any extraordinary circumstances that would warrant
reconsideration of the Court’s previous order denying Petitioner’s motion to file a second
amended petition, and the Court has not found sufficient cause for reconsideration.
Therefore, Petitioner’s Motion to Reconsider will be denied.
PETITIONER’S MOTION TO STRIKE
Petitioner has also filed a Motion to Strike some of the documents purportedly
lodged with the Court by Respondent. Petitioner vaguely states that Respondent “placed
into the record depositions, news articles, witnesses, and testimony that has new law and
they are no longer pertinent to the case.” (Dkt. 35 at 1.) Petitioner asks the Court to strike
the following documents:
• A news article regarding Petitioner’s mentor, Rick Koerber, whose federal
charges in Utah have been dismissed;
• An institute manual for Franklin Squires that includes Benjamin Gee
Hadfield’s handwriting;
• An “action against Rick Koerber from Cheyenne, Wyoming”;
• Any documents containing allegations against Rick Koerber or Gabriel
Joseph, two individuals with whom Petitioner had business dealings;
MEMORANDUM DECISION AND ORDER - 3

• The deposition and testimony of Benjamin Hadfield; and
• The deposition of Blake Hansen.
(Dkt. 35.)
The Court was unable to locate all of these documents in Respondent’s lodging.
Even assuming, however, that these documents were, in fact, lodged by Respondent, the
Motion to Strike must be denied. Petitioner does not contend that any of these documents
are not part of the state court record, which the Court is required to review in this habeas
corpus proceeding.
CONSIDERATION OF THE AMENDED PETITION
1.

Background
The Court takes judicial notice of the records from Petitioner’s state court

proceedings, lodged by Respondent on May 16, 2014. (Dkt. 11.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner and his father invested money with Rick Koerber and Gabriel Joseph in
an investment scheme that offered investors promissory notes promising a high rate of
return. (State’s Lodging A-2 at 66-67.) The investors usually purchased the promissory
notes by taking out home equity loans. (Id.) Later, Petitioner began his own similar
investment scheme and eventually “became the active solicitor in these investment
relationships,” taking money from others in return for promissory notes. (Id. at 68.)
The scheme eventually fell apart. After the Idaho Department of Finance sued
Petitioner in a civil case, Petitioner admitted to committing fraud under the Idaho
Uniform Securities Act, Idaho Code § 30-14-501, and stipulated to a judgment against
MEMORANDUM DECISION AND ORDER - 4

him for $5 million. (State’s Lodging B-15 at 1.) Judge Patrick H. Owen presided over the
civil case.
An Idaho grand jury later indicted Petitioner, in Ada County, on “eight counts of
securities fraud, seven counts of selling unregistered securities, two counts of grand theft,
and six sentencing enhancements for knowingly accepting money representing equity in a
person’s home in connection with committing securities fraud.” (Id.) Like the civil case,
Petitioner’s criminal case was assigned to Judge Owen.
Petitioner fired his private counsel, who then moved to withdraw. (State’s Lodging
A-1 at 154-63.) The trial court granted the motion to withdraw and initially denied
Petitioner’s request to represent himself. 2 (Id. at 179-86.) Later, Petitioner was allowed to
represent himself with the assistance of a public defender as stand-by counsel. (Id.;
State’s Lodging A-2 at 2-3.)
Petitioner submitted several pro se filings to the state district court, including a
“Motion in Limine to Dismiss Criminal Complaint,” in which Petitioner argued (among
other things) that Judge Owen should recuse himself because he had presided over the
civil case against Petitioner filed by the Idaho Department of Finance. (State’s Lodging
A-1 at 261-64.) Due to a scheduling conflict, a substitute judge presided over a hearing
that was set initially for the parties’ pretrial motions, including the motion to dismiss, and
for trial. (State’s Lodging A-2 at 1-2.) However, at the beginning of that hearing, the
2

Petitioner does not contend in his Amended Petition that he was denied his constitutional right to
counsel under Gideon v. Wainwright, 372 U.S. 335 (1963), that he was denied the effective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984), or that he was improperly denied the right
to represent himself under Faretta v. California, 422 U.S. 806 (1975).

MEMORANDUM DECISION AND ORDER - 5

court was informed that the prosecutor and Petitioner had reached a plea agreement. (Id.
at 2-4.)
After an extensive plea colloquy, Petitioner entered an Alford 3 plea to four counts
of selling unregistered securities, under Idaho Code §§ 30-14-301 and 30-14-508. The
remaining charges were dismissed. (State’s Lodging B-15 at 2.) At the end of the plea
hearing, the substitute judge noted Petitioner’s request to disqualify Judge Owen and
informed Petitioner, “So if you want him to get off the case now, you need to bring it to
his attention, state your basis and let him make a ruling.” (State’s Lodging A-2 at 34.)
Petitioner responded, “Okay.” (Id.) It does not appear that Petitioner filed a motion to
disqualify Judge Owen after the plea hearing.
Petitioner retained new counsel to represent him at sentencing. Judge Owen
recognized that Petitioner was, in a sense, as much a victim as he had victimized others.
(Id. at 66.) Petitioner had been told, by his associates Rick Koerber and Gabriel Joseph,
that the investment scheme consisted of legitimate business transactions; therefore, Judge
Owen noted that Petitioner’s case was “unusual . . . for sentencing.” (Id.) Nonetheless,
the court stated that Petitioner’s being a victim “only takes you so far down this road,”
and that Petitioner should have known that he was dealing in unregistered securities. (Id.
at 68-70.) Also factoring into the court’s sentencing decision was Petitioner’s

3

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 were guilty.”).

MEMORANDUM DECISION AND ORDER - 6

“extravagant lifestyle,” which he supported by actively using other people’s money
obtained in the scheme of selling unregistered securities. (Id. at 73.)
After considering all of these factors, the court withheld judgment and placed
Petitioner on probation for 20 years, with the condition that Petitioner serve 180 days in
jail. (Id. at 74-75.) Petitioner appealed pro se.
Petitioner submitted numerous filings in the Idaho Supreme Court in an effort to
obtain transcripts from the hearings in his case. These filings did not comply with the
procedural rules of the court. Therefore, the Idaho Supreme Court allowed Petitioner to
file a motion to augment the record on appeal, requiring Petitioner to “identify each and
every transcript that [Petitioner] seeks, showing the relevance of each transcript to the
issues on appeal.” (State’s Lodging B-8.)
In response, Petitioner moved to augment the record, seeking transcripts of twelve
different hearings: (1) an August 7, 2009 hearing in which Judge Owen allegedly
“coerced and threatened” Petitioner, violated his Fifth Amendment right to be free from
self-incrimination, and “read aloud the indictment . . . and added the threat that
[Petitioner] was facing 185 years in prison; (2) a September 25, 2009 hearing when Judge
Owen purportedly stated that Petitioner was a “nutcase” and held Petitioner in contempt
of court; (3) a November 4, 2009 hearing when Judge Owen initially denied Petitioner’s
request to represent himself; (4) a November 18, 2009 hearing when Judge Owen
allegedly stated “Lies, Lies, Lies,” following a statement from Petitioner’s new counsel;
(5) a December 10, 2009 hearing when Petitioner’s counsel waived Petitioner’s speedy
trial rights; (6) a January 7, 2010 hearing when Petitioner’s counsel made a statement
MEMORANDUM DECISION AND ORDER - 7

contrary to Petitioner’s instructions and discussed “his payment of fees which is a
confidential issue and should not have been raised or disclosed”; (7) a February 5, 2010
hearing, in which Petitioner’s counsel waived Petitioner’s right to challenge a mental
evaluation and his right to a speedy trial; (8) a June 25, 2010 hearing when Petitioner
informed the trial court that he had fired his attorney; (9) a June 25, 2010 hearing, in
which Judge Owen denied Petitioner’s request to have his father—who was not licensed
to practice law in Idaho—represent him, but allowed Petitioner to represent himself and
ordered standby counsel; (10) a July 2, 2010 hearing when Petitioner was allegedly
“deprived of the representation by Standby Counsel,” and made statements regarding his
indigence; (11) the November 17, 2010 change-of-plea hearing; and (12) the February 2,
2011 sentencing hearing. (State’s Lodging B-9.)
The Idaho Supreme Court granted Petitioner’s request for the preparation and
production of two transcripts: (1) the change-of-plea hearing held on November 17, 2010;
and (2) the sentencing hearing held on February 2, 2011. The court denied Petitioner’s
request for the remaining transcripts without substantive comment. (State’s Lodging B10.)
Petitioner next filed a state habeas petition with the Idaho Supreme Court, again
stating that he needed all of the transcripts he previously identified, noting that “[o]ne of
the most vital transcripts is from the hearing wherein Judge Own [sic] brought into the
Courtroom during the criminal the Civil Case [sic] filed by the Idaho Department of
Finance, which Judge Own [sic] also presided over, and at the beginning of the hearing
used specific documents from that case in the criminal case.” (State’s Lodging B-11 at 2.)
MEMORANDUM DECISION AND ORDER - 8

Petitioner alleged that denial of the ten transcripts violated his rights under the Fifth,
Sixth, and Fourteenth Amendments. Petitioner also claimed that he should not have been
required to identify, and show the relevance of, each transcript he requested, and that the
Idaho Supreme Court or the court clerk “may be attempting to hide and/or protect Judge
Own [sic] from being reviewed for abuse of discretion.” (Id. at 1-3.) The Idaho Supreme
Court construed the habeas petition as a motion for reconsideration of its partial denial of
Petitioner’s request for transcripts and denied the motion. (State’s Lodging B-12.)
In his brief on direct appeal, Petitioner argued only that Judge Owen was biased
because he had presided over Petitioner’s civil case, and that Judge Owen “should not
have brought any of the documents from the Civil action into the Court.” (Id. at 7.) The
Idaho Supreme Court assigned the case to the Idaho Court of Appeals.
The court of appeals construed Petitioner’s argument that Judge Owen should
have been disqualified as based on two potential theories: (1) that the substitute judge
should have construed Petitioner’s motion to dismiss as a motion to disqualify Judge
Owen and should have granted the motion; and (2) that Judge Owen should have recused
himself sua sponte—or on the court’s own motion. (State’s Lodging B-15 at 2.)
With respect to the argument that the substitute judge should have granted
Petitioner’s request for disqualification of Judge Owen as set forth in his motion to
dismiss, the Idaho Court of Appeals held that the motion did not satisfy the requirements
for a motion to disqualify a judge for cause. (Id.) Alternatively, the court held that
Petitioner was barred, based on the doctrine of invited error, from challenging any failure
to grant the request to disqualify: Petitioner did not file a motion to disqualify Judge
MEMORANDUM DECISION AND ORDER - 9

Owen after the substitute judge informed Petitioner he could do so, and, therefore, he
invited any error. (Id. at 3.)
As to the argument that Judge Owen should have disqualified himself for cause
sua sponte, the Idaho Court of Appeals determined that Judge Owen had no “personal
knowledge of disputed evidentiary facts” and that Judge Owen’s impartiality could not
reasonably be questioned. (Id. at 3-5.) Petitioner sought review in the Idaho Supreme
Court, which denied his petition for review. (State’s Lodging B-16 & B-18.)
Petitioner now seeks federal habeas relief. In his Amended Petition for Writ of
Habeas Corpus, 4 Petitioner asserts the following claims:
Claim 1:

That Petitioner was deprived of his due process rights 5 when
the Idaho Supreme Court partially denied his request for
transcripts on appeal;

Claim 2:

That the “Idaho Supreme Court and/or the Clerk of the Idaho
Supreme Court . . . intentionally hid[] and/or willfully
changed the recorded transcript to protect Judge Owen from
being reviewed for abuse of discretion”;

Claim 3:

That, because Judge Owen had previously presided over the
civil case against Petitioner brought by the Idaho Department
of Finance, Petitioner’s due process rights were violated
either by (a) the substitute judge’s failure to construe
Petitioner’s “Motion in Limine to Dismiss Criminal
Complaint” as a motion to disqualify Judge Owen, and the

4

The initial Petition and Amended Petition are virtually identical, save for the identification of the
appropriate Respondent. (Compare Dkt. 1 with Dkt. 3.)

5

Petitioner cites the Fifth, Sixth, and Fourteenth Amendments as the bases for relief with respect to
Claim 1. However, the Fifth Amendment’s Due Process Clause applies only to the federal government,
not to the states, and the Sixth Amendment does not contain a due process clause. Therefore, the Court
will construe Claim 1 as asserting only a violation of the Fourteenth Amendment’s Due Process Clause.

MEMORANDUM DECISION AND ORDER - 10

substitute judge’s failure to grant that motion, or (b) Judge
Owen’s failure to recuse himself sua sponte 6; and
Claim 4:

That Judge Owen coerced Petitioner into pleading guilty, by
bringing “the unauthorized documents from the Civil case
into the criminal record as evidence that Petitioner was
informed would be used in the Jury Trial,” and thereby
rendering Petitioner’s guilty plea involuntary and in violation
of due process.

(Am. Pet., Dkt. 3, at 3-5.) 7
2.

Claims 3(a) and 4 Are Procedurally Defaulted and Must Be Dismissed
Respondent argues that Claim 1, 2, 3(a), and 4 are procedurally defaulted. For the

reasons that follow, the Court concludes that Claims 3(a) and 4 are procedurally defaulted
and must be dismissed, but that Claims 1 and 2 were adjudicated on the merits by the
Idaho Supreme Court and, therefore, are not procedurally defaulted.
A.

Standard of Law Governing Procedural Default

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
6

It is unclear whether Petitioner asserts one or both of these claims in the Amended Petition.
Therefore, like the Idaho Supreme Court on direct appeal, this Court will address both (a) the substitute
judge’s actions in not granting Petitioner’s Motion in Limine to Dismiss Criminal Complaint, which
included allegations that Judge Owen was biased, and (2) Judge Owen’s failure to recuse himself sua
sponte. (See State’s Lodging B-2.)

7

Because Petitioner did not clearly separate and label his claims in the Amended Petition, the
Court has used Respondent’s alphanumeric identification system for convenience.

MEMORANDUM DECISION AND ORDER - 11

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. “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). 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. 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, 518 U.S. at 161-62. 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 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.;

MEMORANDUM DECISION AND ORDER - 12

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 at 1093-94 (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 the state sufficiently pleads the existence of an adequate
and independent state procedural bar, the burden of production shifts to the petitioner,
who “may satisfy this burden by asserting specific factual allegations that demonstrate
the inadequacy of the state procedure, including citation to authority demonstrating
inconsistent application of the rule.” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.
2003). However, the ultimate burden to show adequacy and independence remains with
the state. Id.
If a petitioner’s claim is procedurally defaulted, a federal district court cannot hear
the merits of the claim unless the petitioner meets one of two exceptions: (1) 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); or (2) a showing of adequate legal cause for the default and prejudice arising
from the default, Murray v. Carrier, 477 U.S. 478, 488 (1986). Neither an assertion of
cause and prejudice nor an assertion of actual innocence under Schlup is an independent
constitutional claim. Rather, these are federal procedural arguments that, if sufficiently
MEMORANDUM DECISION AND ORDER - 13

established by the petitioner, allow a federal court to consider the merits of an otherwise
procedurally-defaulted constitutional claim.
B.

Claims 1 and 2 Are Not Procedurally Defaulted and Will Be Decided on
the Merits

Respondent alleges that Claims 1 and 2 are procedurally defaulted. The Court
disagrees.
According to Respondent, Petitioner did not raise Claim 1—that he was entitled to
all of transcripts he requested—to the Idaho Supreme Court in a procedurally proper
manner. However, the Idaho Supreme Court granted his request for two transcripts, and
denied the request for the other ten, without citing any procedural bar. The Court assumes
that the Idaho Supreme Court adjudicated Petitioner’s request for transcripts on the
merits, rather than basing its decision on some state procedural bar. See Richter, 562 U.S.
at 784-85 (2011) (“When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.” (emphasis added)).
As to Claim 2—that Petitioner’s request for the ten transcripts was denied because
those transcripts were intentionally altered or hidden to avoid reviewing Judge Owen’s
conduct—Respondent argues that this claim was not raised at all. However, in
Petitioner’s state habeas petition, he expressly argued that “the Idaho Supreme Court
and/or the Clerk of the Idaho Supreme Court may be attempting to hide and/or protect
Judge Own [sic] from being reviewed for abuse of discretion.” (State’s Lodging B-11 at
MEMORANDUM DECISION AND ORDER - 14

1-3.) These arguments are sufficiently similar to be considered the same claim. Once
again, the Idaho Supreme Court denied this claim, after construing the habeas petition as
a motion for reconsideration of its partial denial of Petitioner’s request for transcripts,
without citing any state procedural bar. (State’s Lodging at B-12.) Therefore, in
accordance with United States Supreme Court precedent, it is presumed that the Idaho
Supreme Court adjudicated Claim 2 on the merits. See Richter, 562 U.S. at 784-85
(2011). Claim 2 is not procedurally defaulted.
C.

Claims 3(a) and 4 Are Procedurally Defaulted and Must Be Dismissed
i.

Claim 3(a) Is Procedurally Defaulted

Claim 3(a) alleges that the substitute judge, who presided over Petitioner’s
change-of-plea hearing, should have construed his Motion in Limine to Dismiss Criminal
Complaint as a motion to disqualify Judge Owen for cause, and that the substitute judge
should have granted the motion. Although the Idaho Court of Appeals considered this
claim, the court rejected it on the grounds that the motion failed to comply with
applicable state procedural rules and that Petitioner invited any error by failing to move
to disqualify Judge Owen after being informed of his opportunity to do so by the
substitute judge.
Respondent has sufficiently pleaded that the doctrine of invited error is an
adequate and independent state procedural bar (Dkt. 10 at 14-15), and Petitioner has not
shown otherwise. Idaho state courts “have long held that ‘one may not successfully
complain of errors one has consented to or acquiesced in. In other words, invited errors
are not reversible.’” State v. Atkinson, 864 P.2d 654, 657 (Idaho Ct. App. 1993) (quoting
MEMORANDUM DECISION AND ORDER - 15

State v. Caudill, 706 P.2d 456, 460 (Idaho 1985). Idaho’s invited error doctrine is
adequate to support the procedural bar and independent of federal law. 8 Therefore, Claim
3(a) is procedurally defaulted.
ii.

Claim 4 Is Procedurally Defaulted

Claim 4 alleges that Petitioner’s guilty plea was involuntary, based on Judge
Owen’s alleged conduct in “br[inging] the unauthorized documents from the Civil case
into the criminal record.” (Am. Pet. at 5.) However, this claim was not included in
Petitioner’s appellate briefing in the state courts. (See State’s Lodging B-13.) Although
Petitioner alleged that Judge Owen should have been disqualified and that he should not
have used any of the civil case evidence in the criminal case, Petitioner did not contend
that Judge Owen’s actions rendered his Alford plea involuntary in violation of due
process. Because Petitioner did not assert Claim 4 to the Idaho Supreme Court, and
because there is no longer any avenue to do so, Claim 4 is procedurally defaulted. See
Gray, 518 U.S. at 161-62.
iii.

Petitioner Has Not Established That He Is Excused from the
Procedural Default of Claims 3(a) and 4

As noted above, procedurally defaulted claims may be heard on the merits in a
federal habeas corpus proceeding if a petitioner establishes cause and prejudice, or actual
innocence, to excuse the default. Schlup, 513 U.S. at 329; Murray v. Carrier, 477 U.S. at
488. Petitioner does not contend that cause and prejudice exist to excuse the default.

8

For this reason, the Court need not address the Idaho Court of Appeals’ other reason for rejecting
Claim 3(a)—that Petitioner’s motion to dismiss did not comply with state procedural rules governing
motions to disqualify for cause.

MEMORANDUM DECISION AND ORDER - 16

Because Petitioner, in his reply brief, disputes many of Respondent’s factual
statements, it appears Petitioner is invoking the actual innocence exception as a basis for
excusing the default of Claims 3(a) and 4. (See Dkt. 34.) To succeed on a Schlup actual
innocence assertion such that the default of constitutional claims may be excused, a
petitioner must show that he is factually innocent, not merely that the evidence against
him was legally insufficient to convict. Bousley v. United States, 523 U.S. 614, 624
(1998).
In asserting actual innocence, a petitioner must “support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324. A procedurally defaulted claim may be heard
under the actual innocence 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, 513 U.S. at 327). Stated another way, it must be more likely than not that every
reasonable juror would vote to acquit.
This is an extremely demanding standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old
and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence inquiry “does not turn on discrete findings regarding disputed points of fact,
MEMORANDUM DECISION AND ORDER - 17

and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must “make a
probabilistic determination about what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329.
Petitioner’s conclusory and self-serving assertions are insufficient to meet this
heavy burden. He has offered no new evidence tending to support his assertion that he is
factually innocent. Therefore, the Court may not reach the merits of Claims 3(a) or 4.
3.

Merits Analysis of Claims 1, 2, and 3(b)
The Court now turns to the merits of Claim 1 and Claim 2—which the Court has

concluded are not procedurally defaulted—as well as Claim 3(b)—which Respondent
acknowledges was adjudicated on the merits by the Idaho Court of Appeals.
A.

Standard of Law for Review of Claims Adjudicated on the Merits in State
Court

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 petitioner’s claim
(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

MEMORANDUM DECISION AND ORDER - 18

(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 state court need not “give reasons before its decision can be
deemed to have been ‘adjudicated on the merits’” under § 2254(d). Harrington v. Richter,
562 U.S. 86, 100 (2011). 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).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
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 second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state 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

MEMORANDUM DECISION AND ORDER - 19

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).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that
fair-minded jurists could disagree on the correctness of the state court’s decision, then
relief is not warranted under § 2254(d)(1). Richter, 562 U.S. at 102. The Supreme Court
has emphasized that “even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (internal citation omitted).
Though the source of clearly-established federal law must come from the holdings
of the United States Supreme Court, circuit precedent may be persuasive authority for
determining 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] Court has not announced.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013).
As to the facts, the United States Supreme Court has clarified “that review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). This means that
evidence not presented to the state court may not be introduced on federal habeas review
if a claim was adjudicated on the merits in state court, and if the underlying factual
MEMORANDUM DECISION AND ORDER - 20

determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d
984, 999 (9th Cir. 2014).
When a petitioner contests the reasonableness of the state court’s factual findings,
the petitioner must show that the state court decision was based upon factual
determinations that were “unreasonable . . . in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2). A “state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).
The United States Court of Appeals for the Ninth Circuit has identified five types
of unreasonable factual determinations that result from procedural flaws that occurred in
state court proceedings: (1) when state courts fail to make a finding of fact; (2) when
courts mistakenly make factual findings under the wrong legal standard; (3) when “the
fact-finding process itself is defective,” such as when a state court “makes evidentiary
findings without holding a hearing”; (4) when courts “plainly misapprehend or misstate
the record in making their findings, and the misapprehension goes to a material factual
issue that is central to petitioner’s claim”; or (5) when “the state court has before it, yet
apparently ignores, evidence that supports petitioner’s claim.” Taylor v. Maddox, 366
F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
This strict deferential standard of § 2254(d) applies to federal habeas claims
except in the following narrow circumstances: (1) where the state appellate court did not
MEMORANDUM DECISION AND ORDER - 21

decide a properly-asserted federal claim; (2) where the state court’s factual findings are
unreasonable under § 2254(d)(2); or (3) where an adequate excuse for the procedural
default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In those
circumstances, the federal district court reviews the claim de novo. 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).
Under de novo review, if the factual findings of the state court are not
unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. §
2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a
state court factual determination is unreasonable, or if there are no state court factual
findings, the federal court is not limited by § 2254(e)(1). Rather, the federal district court
may consider evidence outside the state court record, except to the extent that §
2254(e)(2) might apply. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
B.

Petitioner Is Not Entitled to Relief on Claim 1

In Claim 1, Petitioner asserts that he was constitutionally entitled to the ten
transcripts that the Idaho Supreme Court determined would not be prepared and produced
on direct appeal.
i.

Clearly-Established Law

On direct appeal, indigent criminal defendants have a constitutional right to the
preparation and production, at state expense, of records of the proceedings that are
adequate to ensure meaningful appellate review. Griffin v. Illinois, 351 U.S. 12, 19
MEMORANDUM DECISION AND ORDER - 22

(1956) (“Destitute defendants must be afforded as adequate appellate review as
defendants who have money enough to buy transcripts.”). However, a state is not
required to provide a transcript of every hearing. Rather, the defendant is entitled to a
“record of sufficient completeness,” which “does not translate automatically into a
complete verbatim transcript” of every hearing. Mayer v. City of Chicago, 404 U.S. 189,
194 (1971). A “full verbatim record” on direct appeal is required only if such a record “is
necessary to assure the indigent as effective an appeal as would be available to the
defendant with resources to pay his own way.” Id. at 195. The United States Supreme
Court has held that the denial of a request for transcripts on appeal violates the
Constitution only if the defendant demonstrates a “colorable need” for the transcripts at
issue. Id.
ii.

The Idaho Supreme Court’s Rejection of Claim 1 Was Reasonable

In Petitioner’s motion to augment the record, Petitioner identified the transcripts
requested and briefly explained what occurred during each hearing. However, there is
very little in the motion that suggests a “colorable need” for the transcripts. See Mayer,
404 U.S. at 195. Petitioner made conclusory statements that Judge Owen presided over
Petitioner’s civil case and called Petitioner a “nutcase” and a liar, but Petitioner’s motion
did not demonstrate that those ten specific transcripts were required to ensure meaningful
appellate review of his conviction or sentence. (State’s Lodging B-9.) Indeed, because
Petitioner pleaded guilty instead of going to trial, the only transcripts clearly necessary
for appellate review of Petitioner’s judicial bias claim were the change-of-plea hearing
and the sentencing hearing, which the Idaho Supreme Court ordered produced. At the
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very least, reasonable jurists could debate whether the motion to augment the record
sufficiently established a colorable need for each of the ten transcripts. Therefore,
Petitioner is not entitled to habeas relief on Claim 1. See 28 U.S.C. § 2254(d).
C.

Petitioner Is Not Entitled to Relief on Claim 2

Claim 2 asserts that transcripts of the ten hearings that were not produced were
intentionally hidden or altered by the Idaho Supreme Court or the clerk of that court.
According to Petitioner, the motive for this conduct was to insulate Judge Owen’s
decisions from appellate review.
Although states are not constitutionally required to provide for direct appeal of
criminal convictions, if they choose to do so—which every state has done—they must
ensure a system that comports with due process and equal protection. Griffin, 351 U.S. at
18-19. An appeal in which the appellate court, or the clerk of that court, intentionally
falsifies or hides records would obviously violate the Constitution.
However, Petitioner offers nothing more than his bare allegation that the
transcripts were hidden or altered. There is not even a scintilla of evidence to support
such an accusation. Therefore, the Idaho Supreme Court reasonably rejected Claim 2. See
28 U.S.C. § 2254(d).
D.

Petitioner Is Not Entitled to Relief on Claim 3(b)

Claim 3(b) alleges that Judge Owen should have disqualified himself based on his
having presided over Petitioner’s civil case.

MEMORANDUM DECISION AND ORDER - 24

i.

Clearly-Established Law

Due process entitles a criminal defendant to “a fair trial in a fair tribunal, before a
judge with no actual bias against the defendant or interest in the outcome of [the]
particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (internal quotation
marks and citation omitted). The probability of a judge’s actual bias is “too high to be
constitutional tolerable” only in narrow circumstances—such as where the judge “has a
pecuniary interest in the outcome” of the case or where the judge “has been the target of
personal abuse or criticism” from the defendant. Withrow v. Larkin, 421 U.S. 35, 47
(1975). This Court must presume that Judge Owen acted with honesty and integrity, and
it is Petitioner’s burden to convince the Court otherwise. See id.
ii.

The Idaho Court of Appeals’ Rejection of Claim 3(b) Was
Reasonable

In considering Petitioner’s claim that Judge Owen was biased against him, the
Idaho Court of Appeals held that Petitioner “failed to present facts that a reasonable
observer could consider in determining that affirmative recusal by the trial judge in this
case was appropriate.” (State’s Lodging B-15 at 5.) The court noted that Petitioner
“merely speculate[d]” that Judge Owen was biased because he had previously presided
over Petitioner’s civil case, and held that “[p]articipation in prior related proceedings
alone is not a reasonable basis for questioning a judge’s impartiality.” (Id.) This holding
is consistent with federal constitutional principles. See Liteky v. United States, 510 U.S.
540, 555 (1994) (“[O]pinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior proceedings, do not
MEMORANDUM DECISION AND ORDER - 25

constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible. Thus, judicial
remarks during the course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge.”). Judge Owen was not required to recuse himself sua sponte, and the Idaho
Court of Appeals’ rejection of Claim 2 was not objectively unreasonable under 28 U.S.C.
§ 2254(d)(1). Thus, Petitioner is thus not entitled to habeas relief on that claim.
CONCLUSION
Claims 3(a) and 4 are procedurally defaulted, and Petitioner has not established an
adequate excuse for the default. All of Petitioner’s remaining claims—Claims 1, 2, and
3(a)—fail on the merits. Therefore, Petitioner’s habeas corpus case will be dismissed.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion to Reconsider (Dkt. 30) is DENIED.

2.

Petitioner’s Motion to Strike (Dkt. 35) is DENIED.

3.

Petitioner’s Motion for Extension of Time (Dkt. 31) is GRANTED.

4.

Respondent’s Motion for Extension of Time (Dkt. 36) is GRANTED.

5.

The Amended Petition for Writ of Habeas Corpus (Dkt. 3) is DISMISSED
IN PART and DENIED IN PART, and this entire action is DISMISSED
with prejudice.

6.

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.

MEMORANDUM DECISION AND ORDER - 26

§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: September 9, 2015

Honorable Candy W. Dale
United States Magistrate Judge

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