Lippert v. Reinke et al

Filing 26

MEMORANDUM DECISION AND ORDER granting 19 Petitioners MOTION for Enlargement of Time to respond; granting 21 Petitioners MOTION for Additional Enlargement of Time; granting 23 Respondent's MOTION for Extension of Time to File his sur-reply . The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED, and this 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 Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBERT SCOTT LIPPERT,
Case No. 1:13-cv-00228-CWD
Petitioner,

MEMORANDUM DECISION AND
ORDER

v.
BRENT REINKE, Director of the Idaho
Department of Corrections,
Respondent.

Pending before the Court is Petitioner Robert Scott Lippert’s Petition for Writ of
Habeas Corpus, challenging his Clearwater County conviction of sexual abuse of a minor
under the age of sixteen. (Dkt. 3.) The Petition is now fully briefed. 1 (Dkt. 13, 22.)
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. 10.) Having carefully reviewed the record in this
matter, including the state court record, the Court concludes that oral argument is
1

The Court will grant the parties’ respective requests for extensions of time to file their briefing,
and those briefs are deemed timely.

MEMORANDUM DECISION AND ORDER - 1

unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
Order denying habeas corpus relief.
BACKGROUND
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, lodged by Respondent Brent Reinke on December 14, 2013, and March 30,
2015. (Dkt. 14, 25.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551
(9th Cir. 2006).
In 2005, Petitioner’s daughter reported to police that, in March of 1998—when she
was fifteen years old—Petitioner had instructed her “to model recently-purchased
undergarments and swimsuits for him.” (State’s Lodging B-3 at 1.) Afterwards, Petitioner
and the victim’s mother “required that [the victim] allow [Petitioner] to give her a
massage because she had complained of having a headache.” (Id.) Petitioner “had [the
victim] kneel in front of him, and he placed her head, face-down, in his lap. [Petitioner]
then allegedly rubbed her scalp, shoulders, arms, and back for fifteen or twenty minutes,
and [the victim] could feel that his penis became erect while her face was in his lap.” (Id.
at 1-2.)
Based on these allegations, Petitioner was charged in the Second Judicial District
Court in Clearwater County, Idaho, of sexual abuse of a child under the age of sixteen.
Petitioner was appointed a public defender. Prior to trial, Petitioner asked the court to
appoint him a different attorney. (State’s Lodging A-3 at 18.) The request was denied.
On the morning set for trial, Petitioner initially refused to leave his jail cell.
(State’s Lodging A-4 at 166.) Once present, Petitioner told the trial judge that his attorney
MEMORANDUM DECISION AND ORDER - 2

had not been adequately representing him, that he had fired his attorney, and that he was
not prepared for trial. The trial court informed Petitioner that the trial would be taking
place as scheduled. Petitioner’s attorney continued to represent Petitioner through trial.
The jury found Petitioner guilty. The trial court imposed a unified sentence of 15
years in prison with 6 years fixed. 2 (Id. at 546.)
On appeal, Petitioner argued that the trial court did not conduct an adequate
inquiry into his request for substitute counsel on the first day of trial, improperly denied
Petitioner his right to represent himself, and improperly admitted evidence of prior bad
acts under Idaho Rule of Evidence 404(b). (State’s Lodging B-1.) The Idaho Court of
Appeals upheld the admission of the Rule 404(b) evidence and rejected Petitioner’s selfrepresentation claim, but held that the trial court had not conducted an adequate inquiry
into Petitioner’s request for substitute counsel. (State’s Lodging B-3 at 12-13.) Instead of
vacating the conviction, however, the court remanded Petitioner’s case and instructed the
trial court to “conduct a meaningful inquiry to determine whether [Petitioner] possessed
good cause for his request for substitute counsel on the morning of the first day of trial.”
(Id. at 14 (emphasis omitted).) Petitioner requested review in the Idaho Supreme Court,
arguing only that the court of appeals incorrectly determined that he had not clearly
expressed a desire to represent himself. (State’s Lodging B-5.) The Idaho Supreme Court
denied review. (State’s Lodging B-6.)

2

Petitioner represented himself at sentencing, with his trial attorney assisting as standby counsel.
Petitioner does not raise any sentencing-related claims in the instant Petition.

MEMORANDUM DECISION AND ORDER - 3

On remand, the trial court held a hearing on the issue of substitute counsel. Both
Petitioner and former trial counsel testified at the hearing. (State’s Lodging C-2.) The
court concluded that Petitioner had not shown good cause for his request for substitute
counsel. (State’s Lodging C-1 at 36-51.) On appeal, Petitioner argued that the trial court
should have appointed substitute counsel because the attorney-client relationship between
Petitioner and counsel had broken down. (State’s Lodging D-1.) The Idaho Court of
Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging D-3, D5.)
Petitioner then filed the instant Petition, in which he asserts the following claims:
(1) that Petitioner was deprived of his right to substitute counsel “due to various
dissatisfactions with court-appointed counsel, and complaints of failed communication”;
(2) that Petitioner was denied his right to represent himself; (3) that Petitioner was denied
conflict-free counsel (a) “due to a breakdown in communication between [Petitioner] and
counsel,” and (b) because his trial counsel previously represented a family member and a
business partner of Petitioner’s; and (4) that Petitioner was deprived of his right to a fair
trial when the trial court admitted, pursuant to Idaho Rule of Evidence 404(b), evidence
of Petitioner’s prior acts of sexual misconduct. (Dkt. 3-1.)
HABEAS CORPUS 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
MEMORANDUM DECISION AND ORDER - 4

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

(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). Section 2254(d) applies to claims adjudicated on the merits in state
court. Id. A federal court reviews the state court’s “last reasoned decision” in determining
whether a petitioner is entitled to habeas relief. Ylst v. Nunnemaker, 501 U.S. 797, 804
(1991).
When a party challenges 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,
MEMORANDUM DECISION AND ORDER - 5

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).
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). Harrington v. Richter, 562 U.S. 86, 102
(2011). 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
MEMORANDUM DECISION AND ORDER - 6

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
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
determinations, 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

MEMORANDUM DECISION AND ORDER - 7

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 habeas claims except in the
following narrow circumstances: (1) where the state appellate court did not 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. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In
those circumstances, the federal district court reviews the claim de novo. In doing so, a
district court may, as in the pre-AEDPA era, 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).
On 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 1168; see also Sharpe v. Bell, 593
F.3d 372, 377-78 (4th Cir. 2010) (holding that state court factual findings made outside
the context of adjudicating a claim on the merits are entitled to the same presumption of
correctness as factual findings made in the course of a merits adjudication). 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 at 1000.

MEMORANDUM DECISION AND ORDER - 8

ANALYSIS
1.

Discussion of Claims 1 and 3(a)
In Claim 1, Petitioner asserts that communication with his trial counsel, and

therefore the attorney-client relationship, had broken down to such an extent that he was
entitled to substitute counsel. (Dkt. 3-1 at 1.) In Claim 3, Petitioner asserts that he was
denied the right to conflict-free counsel based on two theories: (a) that the breakdown in
communication between Petitioner and his trial counsel created a conflict of interest; and
(b) that his trial attorney had previously represented a family member of Petitioner, as
well as Petitioner’s former business partner, thereby creating a conflict of interest. (Id. at
10.)
Claim 3(a)—asserting a breakdown in communication as the basis of the conflict
of interest—is essentially the same as Claim 1, which asserts that Petitioner should have
been granted substitute counsel because of a breakdown in communication. Therefore,
the Court will treat Claim 1 and Claim 3(a) as the same claim for purposes of considering
whether Petitioner is entitled to habeas relief. Claim 3(b) will be discussed separately in
Section 3(B), below.
A.

Specific Factual Basis of Claims 1 and 3(a)

At a pretrial hearing, Petitioner asked the state trial court to replace his appointed
attorney. According to Petitioner, his attorney was not adequately communicating with
him about the case or meeting with him enough. Petitioner’s counsel did not object to the
request, but stated that he did not believe that the attorney-client relationship had broken

MEMORANDUM DECISION AND ORDER - 9

down. (State’s Lodging A-3 at 18.) The trial court denied Petitioner’s request for
substitute counsel. (Id. at 20.)
On the morning of the first day of trial, Petitioner came to the courtroom, under
protest, after initially refusing to leave his cell or change out of his jail clothing. (State’s
Lodging A-4 at 166-78.) Petitioner attended court that day only because, in his words, he
“chose not to be carried.” (State’s Lodging A-4 at 178.) Petitioner protested the trial
taking place, claimed that he had only been informed of the trial date the night before,
and complained of his attorney’s representation. The trial judge gave Petitioner a choice:
be present for the trial as scheduled, or return to his jail cell while the trial was held in his
absence. Petitioner chose to participate in the trial and was allowed to change clothes so
he would not be wearing his jail attire in front of the jury. The trial court did not appoint
Petitioner substitute counsel and the trial proceeded as scheduled.
After the Idaho Court of Appeals remanded the case back to the trial court, the
court held an evidentiary hearing on Petitioner’s request for substitute counsel, which had
been made on the morning of trial. Petitioner testified that his trial attorney had
previously represented Petitioner’s aunt, Marciea Spencer. (State’s Lodging C-2 at 1011.) He testified that trial counsel had also previously represented Petitioner’s former
business partner, Richard Remin, in a property dispute with Petitioner that “did not go to
court.” (Id. at 11-13.)
Petitioner also testified as to his relationship with trial counsel. Petitioner stated
that counsel would not answer his letters or provide him with legal books that he
requested. (Id. at 13-14.) Petitioner also stated that counsel did not inform him of the
MEMORANDUM DECISION AND ORDER - 10

correct trial date until the night before trial and that Petitioner’s numerous efforts to
“address the facts of [his] case with [counsel] got nowhere.” (Id. at 15.) Petitioner also
complained that counsel made motions and arguments “without ever contacting
[Petitioner] or discussing prior to . . . hearings anything that [they] were arguing.” (Id. at
20.) According to Petitioner, counsel refused to contact a potential witness, Pamela Scott,
or to visit the jail to discuss Petitioner’s case. (Id. at 29-39.) Petitioner acknowledged that
trial counsel succeeded in excluding some of the Rule 404(b) evidence that the prosecutor
attempted to introduce into evidence, and that counsel discussed the case with Petitioner,
in the courthouse, after each of several hearings. (Id. at 22, 38-39.)
Petitioner’s trial counsel also testified at the hearing. With respect to the alleged
former representation of Ms. Spencer and Mr. Remin, counsel stated that he had not even
graduated from law school when he was supposedly representing Ms. Spencer and that,
although he had previously represented Mr. Remin with respect to a wage claim, he did
not recall dealing with any property issues for Mr. Remin, nor did he recall working with
Petitioner during counsel’s representation of Mr. Remin. (Id. at 51-53.) Counsel also
testified that, as evidenced by the jail logs kept during the time period in question, he
visited Petitioner in jail at least 13 times. Counsel stated that these meetings involved not
only the charges at issue in the instant Petition, but also several other cases filed against
Petitioner during the same time period. (Id. at 54-57.) Counsel stated that he located the
potential witness, Ms. Scott, but that Petitioner changed his mind and told counsel not to
contact her or use her as a witness. (Id. at 57-60.) Counsel also contacted another

MEMORANDUM DECISION AND ORDER - 11

potential witness and determined, after speaking with her, that she would not be a helpful
witness. (Id. at 60-61.)
Counsel testified that he discussed Petitioner’s case with him on multiple
occasions but that communicating with Petitioner—particularly after the hearing on the
Rule 404(b) evidence—was quite difficult because “all [Petitioner] could do was tell
[counsel] that [the witnesses] were lying.” (Id. at 62.) Counsel acknowledged that he did
not discuss much with Petitioner between the 404(b) hearing and the trial, although he
did visit him in jail prior to trial. (Id. at 62-63.)
Counsel testified that communication had totally deteriorated by the time the trial
began. (Id. at 75.) However, counsel recognized that Petitioner wrote notes to him
throughout the trial regarding the case, and that they discussed Petitioner’s notes, as well
as the trial testimony in general, during breaks in the trial. (Id. at 64-65, 75-76.)
B.

Clearly-Established Law 3

Although the Sixth Amendment guarantees a criminal defendant the right to
counsel, it does not guarantee an indigent defendant the right to counsel of his choice.
Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963); United States v. Rivera-Corona,
618 F.3d 976, 979 (9th Cir. 2010) (“Indigent defendants have a constitutional right to
effective counsel, but not to have a specific lawyer appointed by the court and paid for by
the public.”). Criminal defendants “who do not have the means to hire their own lawyers
3

With respect to the standard of law applicable to substitute counsel claims, Respondent does not
limit his discussion to United States Supreme Court precedent. (Dkt. 13.) Thus, although the Court
ultimately looks only to such precedent in reviewing the state appellate court’s decision under 28 U.S.C.
§ 2254(d), the Court provides here a more fully developed standard of law, taken from decisions of the
circuit courts of appeals, so that the context of Petitioner’s claim and of Respondent’s arguments can be
appropriately addressed.

MEMORANDUM DECISION AND ORDER - 12

have no cognizable complaint so long as they are adequately represented by attorneys
appointed by the courts.” Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617, 624
(1989).
“[T]here is no automatic right to a substitution of counsel simply because the
defendant informs the trial court that he is dissatisfied with appointed counsel’s
performance.” Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). Rather, good cause
must exist for the appointment of substitute counsel. Good cause for substitution includes
(1) a conflict of interest, (2) an irreconcilable conflict, or (3) “a complete breakdown in
communication between the attorney and the defendant” such that the appointed attorney
cannot provide an adequate defense. Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.
1991).
Although “a serious breakdown in communication [between the defendant and his
attorney] can result in an inadequate defense,” United States v. Musa, 220 F.3d 1096,
1102 (9th Cir. 2000), the Sixth Amendment does not guarantee “a ‘meaningful
relationship’ between an accused and his counsel,” Morris v. Slappy, 461 U.S. 1, 14
(1983). Therefore, problems in communication (or any other deterioration of the
relationship) between a defendant and his counsel require the appointment of substitute
counsel only if those problems are so profound that they affect the ability of counsel to
present—or the ability of the defendant to participate in presenting—an adequate defense.
See Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982) (identifying the “timeliness of
the motion, the adequacy of the court’s inquiry into the defendant’s complaint, and
whether the conflict between the defendant and his counsel was so great that it resulted in
MEMORANDUM DECISION AND ORDER - 13

a total lack of communication preventing an adequate defense” as factors that a court
should consider when faced with a request for substitute counsel based on a breakdown in
communication) (emphasis added).
C.

The Idaho Court of Appeals’ Rejection of Claims 1 and 3(a) Was
Reasonable

Claims 1 and 3(a) allege that a total breakdown in communications between
Petitioner and his trial counsel which required the appointment of substitute counsel.
After the evidentiary hearing on the motion for substitute counsel, the trial court found
that the communication issues between Petitioner and trial counsel did not preclude an
adequate defense, and that Petitioner himself contributed to the difficulties in
communication. (State’s Lodging C-1 at 46-48.) Therefore, the court held that good cause
did not exist for the appointment of substitute counsel:
This Court is unpersuaded that a complete, irrevocable
breakdown of communication occurred in the case at hand
. . . . The Court finds that while communication between
appointed counsel and [Petitioner] was difficult, it had not
irretrievably and completely broken down to the point that
[Petitioner] could not aid in his own defense. Further,
[Petitioner] substantially contributed to the difficulty of
communication through his own actions. Therefore,
[Petitioner] has not established good cause for the motion for
substitution of counsel on the morning of trial.
(Id. at 48 (emphasis added).)
On appeal following remand, the Idaho Court of Appeals agreed with the trial
court that Petitioner had not shown good cause for his request for substitute counsel
because, among other things, Petitioner’s trial counsel “presented [Petitioner] with
discovery, met with [Petitioner] to review the discovery, filed motions on behalf of
MEMORANDUM DECISION AND ORDER - 14

[Petitioner], discussed witnesses’ testimony, located and interviewed witnesses on behalf
of [Petitioner], . . . discussed whether [Petitioner] would testify on his own behalf, [and]
. . . communicated with each other throughout the trial.” (State’s Lodging D-3 at 5.) The
court also noted that Petitioner’s counsel “visited [Petitioner] in jail thirteen times,
discussed and agreed upon the disqualification of the initially-assigned trial judge, spoke
with [Petitioner] prior to and after the preliminary hearing, . . . met with [Petitioner] at the
jail shortly before [Petitioner’s] trial to discuss the trial and, during the trial itself,
communicated with [Petitioner] during breaks.” (Id.)
The Idaho Court of Appeals’ conclusion was not contrary to, or an unreasonable
application of, clearly-established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented in state court. The court
appropriately analyzed Petitioner’s claim regarding substitute counsel. Further, the state
courts found that, although there was some breakdown in communication between
Petitioner and his trial counsel, that breakdown was not so severe that it precluded as
adequate defense.
The Court has found no United States Supreme Court case declaring a
constitutional violation for failure to appoint substitute counsel where, as here, there is a
breakdown in communication between a defendant and counsel, but that breakdown does
not prevent the defendant and counsel from working together to adequately present a
defense.

MEMORANDUM DECISION AND ORDER - 15

2.

Discussion of Claim 2
In Claim 2, Petitioner claims that the trial court denied him his constitutional right

to represent himself.
A.

Specific Factual Basis of Claim 2

On the first day of trial, while Petitioner was protesting having to proceed with the
trial on that date, he told the judge, “I have no counsel. [He] is not my attorney. I’ve
made that clear.” (State’s Lodging A-4 at 174.) Petitioner also said that he was “not
prepared to be a part of this trial” and that he would like “some time to take a look at the
law and see what my—how to respond.” (Id. at 176, 178.) The trial court told Petitioner
that he could either go forward with the trial as scheduled, with trial counsel’s
representation, or he could return to his cell while the trial proceeded without him.
Petitioner chose to be present for the trial with the assistance of counsel.
B.

Clearly-Established Law

Just as a criminal defendant has a Sixth Amendment right to counsel, so too does
that defendant have the right to waive the assistance of counsel and to represent himself.
Faretta v. California, 422 U.S. 806, 819 (1975). Therefore, when a criminal defendant
“clearly and unequivocally declare[s]” that he wishes to proceed without counsel, the trial
court must make the defendant “aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that ‘he knows what he is doing and his
choice is made with eyes open.” Id. at 835 (internal quotation marks omitted). If the
defendant is competent to waive counsel, and his waiver of counsel knowing and
intelligent, the defendant must be permitted to represent himself. Id.
MEMORANDUM DECISION AND ORDER - 16

C.

The Idaho Court of Appeals’ Rejection of Claim 2 Was Reasonable

In rejecting Claim 2, the Idaho Court of Appeals correctly cited Faretta as the
governing law with respect to claims of the denial of the right to self-representation.
(State’s Lodging B-3 at 11.) The court of appeals went on to hold that the trial court was
not obligated to inquire as to Petitioner’s desire to represent himself, because Petitioner’s
expression of dissatisfaction with his trial attorney did not constitute a clear and
unequivocal demand to represent himself. (Id. at 15.) Petitioner stated to the trial court
that he would like additional time to “look at the law,” establishing that he was not
prepared to waive counsel and represent himself at trial. (Id.)
The decision of the Idaho Court of Appeals on Petitioner’s Faretta claim was not
contrary to, or an unreasonable application of, clearly-established Supreme Court
precedent, nor was it based on an unreasonable determination of the facts. Although
perhaps in the specific circumstances of this case, the better practice would have been for
the trial court—on the day of trial when Petitioner objected to the continued appointment
of his counsel—to inquire whether Petitioner wanted to represent himself, fair-minded
jurists could debate whether Petitioner clearly and unequivocally invoked his right to
self-representation, or whether he instead was expressing his dissatisfaction with his
appointed attorney in an effort to obtain substitute counsel. (State’s Lodging A-4 at 16678.) Though Petitioner did state—rather ambiguously—that he did not have an attorney
and that he would like more time, he did not plainly state that he intended to represent
himself. The record supports the reasonableness of the state court’s factual finding that

MEMORANDUM DECISION AND ORDER - 17

Petitioner did not unequivocally declare his intention to waive counsel. Therefore,
Petitioner is not entitled to relief on Claim 2.
3.

Discussion of Claims 3(b) and 4
Respondent also argues that Claim 3(b)—that trial counsel had a conflict of

interest based on his alleged prior representation of Petitioner’s business partner and a
member of Petitioner’s family—and Claim 4—that Petitioner’s due process rights were
violated by the trial court’s admission of evidence of prior sexual misconduct with other
minors—are procedurally defaulted and thus cannot be heard on the merits. Respondent
argues alternatively that these claims fail on the merits under de novo review. Petitioner
does not contest Respondent’s argument that Claims 3(b) and 4 are procedurally
defaulted, but instead he argues that the default of those claims is excused under the
cause and prejudice exception set forth in Coleman v. Thompson, 501 U.S. 722, 750
(1991), and expanded in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Nguyen v. Curry,
736 F.3d 1287, 1293 (9th Cir. 2013). Petitioner has not responded to Respondent’s merits
argument. (See Dkt. 22.)
The United States Supreme Court has held that federal courts are not required to
address a procedural default issue before deciding other potentially dispositive issues.
Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Rather, where the question of
procedural default presents a complicated question law and is unnecessary to the
disposition of the case, a court may proceed to the merits. Id.; Hudson v. Jones, 351 F.3d
212, 216 (6th Cir. 2003); Nobles v. Johnson, 127 F.3d 409, 423-24 (5th Cir. 1997).

MEMORANDUM DECISION AND ORDER - 18

This case presents complicated procedural default questions, including (1) whether
ineffective assistance of state postconviction counsel excuses the procedural default of
Claim 3(b) under Martinez v. Ryan, 132 S. Ct. 1309 (2012); (2) whether ineffective
assistance of postconviction counsel excuses the procedural default of a claim of
ineffective assistance of direct appeal counsel under Nguyen v. Curry, 736 F.3d 1287,
1293 (9th Cir. 2013), to the extent that Petitioner asserts a direct appeal ineffectiveness
claim; and (3) whether ineffective assistance of direct appeal counsel, in turn, can excuse
the procedural default of Claim 4 under Edwards v. Carpenter, 529 U.S. 446, 452 (2000).
This complicated three-tiered cause and prejudice analysis may be rendered
unnecessary if the Court first considers the merits of Claims 3(b) and 4. Therefore, rather
than address the complicated procedural default questions identified above, the Court will
consider Petitioner’s claims on the merits. See Samayoa v. Ayers, 649 F. Supp. 2d 1102,
1115-16 (S.D. Cal. 2009) (“[W]here, as here, deciding the merits of a claim proves to be
less complicated and less time-consuming than adjudicating the issue of procedural
default, a court may exercise discretion in its management of the case to reject the claims
on their merits and forgo an analysis of cause and prejudice.”), aff’d, 649 F.3d 919 (9th
Cir. 2011). The Court finds that this is the most efficient way to address Claims 3(b) and
4, given the fairly recent changes in, and complexity of, the doctrine of cause and
prejudice, which allows a federal court in certain circumstances to consider the merits of
claims even if those claims are procedurally defaulted. See Martinez, 132 S. Ct. 1309;
Nguyen, 736 F.3d 1287; Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014).

MEMORANDUM DECISION AND ORDER - 19

A.

Standard of Law for Claims Not Adjudicated on the Merits in State Court

As explained previously, when reviewing a claim that was not adjudicated on the
merits in state court, a federal district court is not limited by 28 U.S.C. § 2254(d). Rather,
the claim must be reviewed de novo. Pirtle, 313 F.3d at 1167. Although de novo review
may include the consideration of new evidence never presented to the state courts,
Murray v. Schriro, 745 F.3d at 1000, in this case Petitioner has not brought forth any new
evidence that was not before the trial court when it (1) held the evidentiary hearing on
remand from the Idaho Court of Appeals with respect to Claim 3(b), or (2) held the
hearing on the admissibility of the Rule 404(b) evidence with respect to Claim 4.
Therefore, although the Court is not required to review only the state court record under
§ 2254(d), see Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc), in this
case there happens to be no new evidence presented in federal court.
Because the facts underlying Claims 3(b) and 4 have been fully developed in state
court, this Court must apply § 2254(e)(1)’s presumption of correctness to any state court
factual findings. See Sharpe, 593 F.3d at 377-78; Taylor, 366 F.3d. at 1000-01 (setting
forth the types of factual findings that are unreasonable under § 2254(d)(2), including
where a state court makes a finding based on an inadequate evidentiary record); Pirtle,
313 F.3d at 1168 (stating that even on de novo review, “[n]onetheless, under AEDPA,
factual determinations by the state court are presumed correct”). Petitioner has the burden
of rebutting such factual findings by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).

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B.

Claim 3(b): Conflict of Interest Regarding Ms. Spencer and Mr. Remin

Claim 3(b) asserts that Petitioner was denied his right to conflict-free counsel
because his trial attorney previously represented (1) Petitioner’s aunt, and (2) Petitioner’s
former business partner.
i.

Specific Factual Basis of Claim 3(b)

The trial court held that there was no actual conflict of interest between Petitioner
and trial counsel based on counsel’s alleged former representation of Ms. Spencer or his
representation of Mr. Remin. (State’s Lodging C-1 at 39-40.) This holding was based on
counsel’s testimony, at the evidentiary hearing, that he had not represented Ms. Spencer
and, although he had previously represented Mr. Remin, he had not worked on any
property dispute between Mr. Remin and Petitioner. (Id.)
ii.

Conflict of Interest Standard of Law

The Sixth Amendment right to the effective assistance of counsel includes the
right of a criminal defendant to be represented by conflict-free counsel. Wood v. Georgia,
450 U.S. 261, 271 (1981). A potential conflict of interest, however, is not enough. Cuyler
v. Sullivan, 446 U.S. 335, 350 (1980) (stating that the mere “possibility of conflict is
insufficient to impugn a criminal conviction”). Instead, a petitioner asserting an attorney
conflict-of interest claim must “show that potential conflicts impermissibly imperil[ed]
his right to a fair trial.” Id. at 348 (internal citations omitted). A conflict of interest rises
to the level of a constitutional violation only if the defendant’s attorney has an actual
conflict of interest “that affected counsel’s performance—as opposed to a mere

MEMORANDUM DECISION AND ORDER - 21

theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 170 (2002). 4 When a
trial court is made aware of an attorney’s potential conflict of interest, that court must
either appoint new counsel or take adequate steps to determine whether the risk of an
actual conflict is too remote to warrant appointment of new counsel. Holloway, 435 U.S.
at 484.
iii.

Claim 3(b) Fails on De Novo Review

Because the trial court’s decision on Petitioner’s conflict of interest claim—that
there was no actual conflict of interest based on the relationships between counsel and
Ms. Spencer or Mr. Remin—rested on the testimony of Petitioner’s former counsel, the
trial court implicitly found (1) that counsel’s testimony was credible, and (2) that
Petitioner’s testimony to the contrary was not. Credibility findings are the quintessential
type of findings generally left to the finder of fact, who hears the witness’s testimony and
observes his or her demeanor:
All aspects of the witness’s demeanor including the
expression of his countenance, how he sits or stands, whether
he is inordinately nervous, his coloration during critical
examination, the modulation or pace of his speech and other
non-verbal communication may convince the observing trial
judge that the witness is testifying truthfully or falsely. These
same very important factors, however, are entirely
unavailable to a reader of the transcript . . . .
Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074, 1078-79 (9th Cir. 1977).
4

Prejudice arising from a conflict of interest is presumed “only if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that “an actual conflict of interest adversely
affected his lawyer’s performance.’” Burger v. Kemp, 483 U.S. 776, 783 (1987) (internal citations
omitted). See also Mickens v. Taylor, 535 U.S. 162, 172-73 (2002) (rejecting the proposed rule of
automatic reversal of a conviction where there existed a conflict that did not actually affect counsel’s
performance).

MEMORANDUM DECISION AND ORDER - 22

The trial court’s implicit findings that Petitioner’s counsel did not represent Ms.
Spencer, or represent Mr. Remin in a property dispute with Petitioner, are presumed
correct under 28 U.S.C. § 2254(e)(1). Petitioner has not rebutted those findings by clear
and convincing evidence; indeed, Petitioner has submitted no evidence at all to support
his claims. Therefore, because trial counsel did not have an actual conflict of interest that
affected counsel’s performance, Petitioner is not entitled to relief on Claim 3(b).
C.

Claim 4: Due Process Violation Based on Admission of Evidence of Prior
Sexual Misconduct under Idaho Rule of Evidence 404(b)

Claim 4 asserts that the trial court violated Petitioner’s right to due process under
the Fourteenth Amendment by improperly admitting evidence of prior sexual
misconduct.
i.

Specific Factual Basis of Claim 4

At trial, the court allowed the following evidence of Petitioner’s previous sexual
misconduct, all of which involved Petitioner’s other “pubescent daughters and
stepdaughters living in his home”:
•

Testimony that Petitioner previously forced two of the girls to model
underwear for him;

•

Testimony that Petitioner had masturbated underneath a robe, in the
bedroom of two of the girls, while the girls were in their beds;

•

Testimony that Petitioner had come into one of the girls’ rooms, pulled off
the sheets, and touched the girl’s breasts;

MEMORANDUM DECISION AND ORDER - 23

•

Testimony that Petitioner had been seen straddling one of the girls and
groping her breasts; and

•

Testimony that Petitioner had previously given one of the girls a massage
for a headache, which led to Petitioner straddling her and touching her
breasts—behavior strikingly similar to that with which Petitioner was
currently charged.

(State’s Lodging A-4 at 142-44; 247-52; 280-81; 285-86.)
The trial court allowed this evidence as probative of (1) Petitioner’s plan to
“exploit and sexually abuse an identifiable group of young female victims,” and (2) the
absence of mistake, in that the evidence tended to show that Petitioner’s “intent was
sexual in nature to gratify the sexual desires of [Petitioner] or the alleged victim.” (Id. at
142.)
ii.

Standard of Law for Due Process Evidentiary Claims

“Incorrect state court evidentiary rulings cannot serve as a basis for habeas relief
unless federal constitutional rights are affected.” Whelchel v. Washington, 232 F.3d 1197,
1211 (9th Cir. 2000) (quoting Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987)). “A
habeas petitioner bears a heavy burden in showing a due process violation based on an
evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005). “Only if
there are no permissible inferences the jury may draw from the evidence can its
admission violate due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.
1991). It is the province of the jury—not a federal court on habeas review—to sort out
the permissible inferences from the impermissible ones. Id.
MEMORANDUM DECISION AND ORDER - 24

iii.

Claim 4 Fails on De Novo Review

Having carefully reviewed the trial transcript, the Court concludes, on de novo
review, that Petitioner is not entitled to relief on Claim 4. The witnesses’ testimony
regarding Petitioner’s previous sexual misconduct with other girls living in his household
raised at least one permissible inference. That testimony supported the inference that
Petitioner intended to engage in conduct for the purposes of sexual gratification and that,
therefore, Petitioner’s actions in placing the victim’s face in his lap so that he could
ostensibly relieve her headache were not mere misunderstandings or mistakes. Because at
least one permissible inference can be drawn from the evidence admitted pursuant to
Idaho Rule of Evidence 404(b), Petitioner cannot establish that the introduction of that
evidence violated his due process rights.
For this reason, Petitioner is not entitled to relief on Claim 4.
CONCLUSION
The Court concludes that the Idaho Court of Appeals’ decisions rejecting Claims
1, 2, and 3(a), were not unreasonable applications of clearly established Supreme Court
precedent, nor were they based on an unreasonable determination of the facts presented in
state court. Additionally, the Court concludes, on de novo review, that Claims 3(b) and 4
fail on the merits. Therefore, the Petition will be denied.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Enlargement of Time to respond to Respondent’s
Answer (Dkt. 19) is GRANTED.

MEMORANDUM DECISION AND ORDER - 25

2.

Petitioner’s Motion for Additional Enlargement of Time (Dkt. 21) is
GRANTED.

3.

Respondent’s Motion for an Extension of Time to file his sur-reply (Dkt.
23) is GRANTED.

4.

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

5.

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); 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: August 21, 2015

Honorable Candy W. Dale
United States Magistrate Judge

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