Razon v. Cluney

Filing 16

MEMORANDUM DECISION AND ORDER The Petition for Writ of Habeas Corpus (Dkt. 1 ) is DENIED and DISMISSED with prejudice. Signed by Judge Edward J. Lodge. (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

TIFFANY DEE RAZON,
Petitioner,

Case No. 1:13-cv-00371-EJL

vs.

MEMORANDUM DECISION
AND ORDER

SHANNON CLUNEY,
Respondent.

The Petition for Writ of Habeas Corpus filed by Tiffany Dee Razon is now fully
briefed. (Dkt. 1, 11, 14.) The Court has reviewed the record in this matter, including the
state court record, and the arguments of the parties. The Court finds that oral argument is
unnecessary. Accordingly, the Court enters the following Order.
BACKGROUND
Petitioner was charged with, and pleaded guilty to, possession of a controlled
substance, methamphetamine, in 2006, 2009, and 2011, in three different criminal cases
in the Fifth Judicial District Court in Twin Falls County, Idaho.
In the 2006 case, Petitioner and the State entered into a plea agreement, in which
there were no promises or recommendations from the parties regarding punishment.
MEMORANDUM DECISION AND ORDER - 1

(State’s Lodging A-1, p. 149.) Petitioner was sentenced to a prison term of six years, with
the first two years fixed. The state district court retained jurisdiction, granting Petitioner
probation.
In 2009, Petitioner was charged with eight counts of violating her probation in the
2006 case. (State’s Lodging A-1, pp. 189-92.) She was also charged with a second
criminal charge of possession of a controlled substance (State’s Lodging A-2, pp. 39395), which led to a second probation violation charge in her 2006 case. (State’s Lodging
A-1., pp. 26-17.) The first and second criminal/probation revocation actions for the 2006
case were consolidated. (State’s Lodging A-2, p. 411.)
Petitioner pleaded guilty to the 2009 possession charge, she admitted the eight
violations in the first 2006 probation violation action, and the second 2006 probation
violation action was dismissed. Under the plea agreement, the State agreed to recommend
a six-year sentence, with the first three years fixed. Petitioner received a sentence
consistent with the plea agreement. (State’s Lodging A-2, pp. 402-410.) She again was
placed on probation. (Id., pp. 414-27.)
In 2011, Petitioner was charged with possession of an illegal substance for the
third time, and, as a result, the State filed a motion to revoke probation in the 2006 and
2009 cases. (State’s Lodgings A-1, pp. 244-46; A-2, pp. 452-54.) Petitioner admitted
violating probation in both cases. (State’s Lodgings A-1, pp. 319; A-2, pp. 524.) On
December 19, 2011, Petitioner’s probation was revoked in both cases, and she was

MEMORANDUM DECISION AND ORDER - 2

ordered to serve her original concurrent sentences of six years, with two and three years
fixed, respectively. (State’s Lodgings A-1, pp. 329-33; A-2, pp. 535-39.)
In the same sentencing hearing, the court pronounced a sentence for the 2011
crime. (State’s Lodging A-4, p. 23.) The State recommended a sentence of seven years,
with three years fixed, pursuant to the plea agreement; Petitioner’s counsel recommended
that the “court vary from the plea agreement slightly” and give Petitioner a two-year
fixed term if the court rejected her request for another retained jurisdiction period. (Id.,
pp.10, 15.)
The Court opted for the State’s recommendation and sentenced Petitioner to seven
years with three years fixed, to run concurrently with the 2006 and 2009 sentences.
(State’s Lodging A-4, p. 23).The Court relied on the same reasoning for all of the
sentences: (1) Petitioner had been given five years of opportunity to complete community
rehabilitation, and had tried many different programs, but nothing had worked; (2) in
mitigation, Petitioner had suffered some difficulties in the past; (3) the most recent
mental health evaluation focused on a diagnosis of methamphetamine dependence and
substance-induced mood disorders, rather than anxiety, and recommended treatment in a
“controlled environment”; (4) she needed an extended stay in prison to help heal her
“methamphetamine brain”; and (5) after “this much time and this many tries,” she had to
pay for her wrongdoing over the past five years, including the “societal cost” for being
involved in illicit drug use. (Id., pp. 19-24.) The Court concluded: “So, with all of that, I

MEMORANDUM DECISION AND ORDER - 3

have considered reducing the time in the older cases under Rule 35. I decline to do that in
my discretion.” (Id., pp. 22-23.)
At issue in this habeas corpus matter are the revocations of probation and
imposition of the six-year sentences in the 2006 and 2009 matters, and, particularly, the
appeal proceedings. The 2011 conviction and sentence are not at issue in this case.
After imposition of the original sentences in the 2006 and 2009 cases and
pronouncement of the sentence in the 2011case, the cases were consolidated on appeal.
(State’s Lodging B-1.) Petitioner was appointed counsel from the state appellate public
defender’s office. (State’s Lodging A-2, pp. 547-48.)
After the record had been lodged with the appellate court, Petitioner’s counsel
filed a motion to augment the record, requesting that the Idaho Supreme Court require
that transcripts from seven hearings be added to the record. (State’s Lodging B-2.) The
request seemed to be a standard form request used by the state appellate public defender’s
office, as the male pronouns in the form were not changed to reflect that Petitioner was a
female:
The appellant requests that the record be augmented to include the
above named items because they are necessary to address issues to be
raised on appeal. Ms. Razon intends to raise as an issue on appeal the
question of whether the district court erred in revoking his [sic] probation.
As such, the requested transcripts are relevant and are necessary to
determine, for instance, whether Ms. Razon either agreed to additional
conditions of probation, thus mooting a claim that his [sic] probation was
revoked on conditions that were not conditions of probation, or whether the
court references any of its prior hearings in ultimately revoking probation
and therefore, are relevant not only to the potential merits of the issues but
also to create a complete record on appeal.
MEMORANDUM DECISION AND ORDER - 4

(State’s Lodging B-2, pp 2-3.)
Petitioner requested transcripts from the following hearings: (1) the 2006 entry of
plea hearing; (2) the 2006 sentencing hearing; (3) the 2007 rider review hearing; (4) the
2009 evidentiary hearing; (5) the 2009 rider review hearing; (6) the 2009 plea entry
hearing; and (7) the 2011 admit/deny probation violation hearing. (State’s Lodging B-4.)
The state did not object to augmenting the record with the transcript from the 2011
hearing but objected to the remaining six requests on grounds of irrelevance, arguing that
the hearings all occurred before the last probation violation was filed on July 17, 2011.
(State’s Lodging B-3.) The Idaho Supreme Court allowed Petitioner to augment the
record with only the 2011 admit/deny hearing transcript, which contained Petitioner’s
admissions to the 2006 and 2009 probation violations. (State’s Lodging A-3.)
After the Idaho Supreme Court ruled on the transcript request, Petitioner’s appeal
was assigned to the Idaho Court of Appeals. Petitioner argued to the Idaho Court of
Appeals that the Idaho Supreme Court’s decision to deny her the other transcripts
violated her rights of due process, equal protection, and effective assistance of counsel
(State’s Lodging B-5, pp. 4-17.) The Idaho Court of Appeals rejected Petitioner’s claim
on procedural grounds, reasoning that, for the intermediate appellate court to consider a
decision of the higher appellate court, Petitioner should have reasserted her motion to
augment with the Idaho Court of Appeals based on a significant new ground not
presented to the Idaho Supreme Court. (State’s Lodging B-8, p. 3.) Accordingly, the
MEMORANDUM DECISION AND ORDER - 5

Court of Appeals concluded that Petitioner was seeking a determination by the Idaho
Court of Appeals that the Idaho Supreme Court violated constitutional law by denying
the motion to augment—something that was beyond the scope of the authority of the
intermediate appellate court to address.
Petitioner next filed a petition for review before the Idaho Supreme Court, raising
the claim that the Idaho Supreme Court violated her rights to due process, equal
protection, and effective assistance of counsel under federal and state constitutions. The
Idaho Supreme Court denied Petitioner’s petition for review.
In this federal habeas corpus action, Petitioner brings one claim with two subparts:
(1) that the Idaho Supreme Court violated her due process rights when it prevented her
from filing an effective direct appeal, and (2) that the court denied her the right to
effective assistance of counsel on appeal, by denying her in forma pauperis motion to
augment the appellate record with necessary transcripts for direct appeal. (Dkt. 1, p. 6.)
Petitioner’s claims have been exhausted in the state court system, as the Idaho Supreme
Court has had opportunity to review each of Petitioner’s claims.

MEMORANDUM DECISION AND ORDER - 6

HABEAS CORPUS STANDARD OF LAW
Federal habeas corpus relief may be granted on claims that were 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 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.1

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).
Where a petitioner 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
1

A state court need not “give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’”
Harrington v. Richter, 131 S.Ct. 770, 785 (2011).

MEMORANDUM DECISION AND ORDER - 7

[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 even though the state court identified “the
correct governing legal rule” from Supreme Court precedent, the state court 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). A federal court cannot grant habeas relief
simply because it concludes in its independent judgment that the state court’s 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 fairminded jurists could disagree on the correctness of the state court’s
decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 131 S.
Ct. 770, 786 (2011). The Supreme Court emphasized that “even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id. (internal
citation omitted).
In addition, “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). “This is not to say that § 2254(d)(1) requires
an identical factual pattern before a legal rule must be applied,” but “if a habeas court
MEMORANDUM DECISION AND ORDER - 8

must extend a rationale before it can apply to the facts at hand, then by definition the
rationale was not clearly established at the time of the state-court decision.” Id. (citations
and internal punctuation 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 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] [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).
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 § 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 the state court made no factual findings, the
MEMORANDUM DECISION AND ORDER - 9

federal court is not limited by § 2254(e)(1), but proceeds to a de novo review of the
claims, which may include consideration of evidence outside the state court record,
subject to the limitations of § 2254(e)(2). Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir.
2014).

DISCUSSION OF PETITIONER’S STATE LAW CLAIMS
Petitioner brings a claim that the Idaho Supreme Court’s actions violated her due
process rights under Article I, section 13, of the Idaho Constitution. (Dkt. 1, p. 6.) She
also argues that the Idaho Supreme Court violated her due process rights when it assigned
the case to an inferior tribunal that could not review the Idaho Supreme Court’s decision
to deny Petitioner’s motion for provision of indigent transcripts.
Habeas corpus relief can be granted only upon a showing that the state court
decision violated federal law, as reflected in the Constitution, laws, or treaties of the
United States. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“Federal habeas corpus relief
does not lie for errors of state law.”). These particular claims and issues are matters of
state law, over which this Court has no jurisdiction. Accordingly, these claims are subject
to dismissal for failure to state a federal claim upon which relief can be granted.
DISCUSSION OF FEDERAL DUE PROCESS CLAIM
1.

AEDPA Review
Because the Idaho Supreme Court had opportunity to rule on each of Petitioner’s

claims, and that Court denied her motion for transcripts in part and then denied her
MEMORANDUM DECISION AND ORDER - 10

petition for review that offered that Court opportunity to review both the specific denial
of the transcripts and her allegations that the denial violated her constitutional rights
(State’s Lodgings B-4 and B-11), this Court concludes that Petitioner’s claims have been
properly exhausted. Therefore, AEDPA standards of law apply.
A. Clearly-Established Law Exists to Govern Petitioner’s Claim
To be successful in a habeas corpus action, a petitioner must identify clearly
established federal law, as determined by the Supreme Court of the United States,
applicable to the issue at hand. 28 U.S.C. § 2254(d)(1). Respondent argues that Petitioner
cannot point to a United States Supreme Court case that requires the State to provide
indigent defendants with copies of transcripts for appellate purposes when the underlying
claims on appeal are only probation revocation claims, rather than claims challenging a
criminal conviction or sentence. Respondent identifies several United States Supreme
Court cases generally governing provision of transcripts and other tools of litigation to
indigent litigants: Britt v. North Carolina, 404 U.S. 226, 227 (1971); Mayer v. Chicago,
404 U.S. 189, 193 (1971); and Griffin v. Illinois, 351 U.S. 12 (1956) (plurality opinion).
(Dkt. 11, p. 10.)
Respondent is correct that there is no case addressing indigent transcript rights in a
probation revocation case. Therefore, Petitioner must show that she is not seeking a
general extension of current case law governing indigent requests for transcripts on
appeal (which is outside habeas corpus bounds), but only an application of existing

MEMORANDUM DECISION AND ORDER - 11

precedent to support her claim. The Court thus surveys the holdings of existing United
States Supreme Court cases that raise issues similar to Petitioner’s claim.
In Griffin, the Supreme Court rejected as unconstitutional the state’s practice of
providing transcripts only to indigents under a death sentence, but not to indigents with
other sentences. In that case, the Court determined that, if a state decides to provide
appellate review to convicted criminals, then “the Due Process and Equal Protection
Clauses protect [indigent] persons . . . from invidious discriminations,” particularly, the
inability to obtain a transcript for appeal because of poverty. 351 U.S. at 18. The Court
reasoned that “to deny adequate review to the poor means that many of them may lose
their life, liberty or property because of unjust convictions which appellate courts would
set aside.” Id.
In Mayer, where the penalty at issue was only a fine resulting from a petty offense,
the Court nevertheless observed that Griffin’s “principle is a flat prohibition against
pricing indigent defendants out of as effective an appeal as would be available to others
able to pay their own way.” 404 U.S. at 196-96. In response to the State’s attempt to
distinguish Mr. Mayer’s facts by arguing that all of the indigent transcript cases
previously decided by the Supreme Court involved sentences of imprisonment,” the
Court reasoned: “The invidiousness of the discrimination that exists when criminal
procedures are made available only to those who can pay is not erased by any differences
in the sentences that may be imposed.” Id. at 197.

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The Supreme Court has required the provision of transcripts to indigents in all
types of cases relating to criminal sanctions: a sentence of death (Griffin); a non-death
felony sentence (Griffin); a non-felony conviction with only a fine (Mayer); in state postconviction appellate proceedings (Long v. District Court of Iowa, 385 U.S. 192 (1966));
in state habeas evidentiary hearings (Gardner v. California, 393 U.S. 367 (1969)); and in
petty offense trials, Williams v. Oklahoma City, 395 U.S. 458 (1969).
Most recently, the Supreme Court extended the free transcript rule to indigents in a
civil proceeding for termination of parental rights, on equal protection and due process
grounds, “recognizing that parental termination decrees are among the most severe forms
of state action” M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996). In M.L.B., the United States
Supreme Court repeatedly discussed the universality of the principles announced in
Griffin (a criminal case) to appeals in civil cases involving “severe forms of state action”:
(1) “Concerning access to appeal in general, and transcripts needed to pursue appeals in
particular, Griffin is the foundation case,” 519 U.S. at 110; (2) “Although the Federal
Constitution guarantees no right to appellate review, once a State affords that right,
Griffin held, the State may not ‘bolt the door to equal justice,’” id.; (3) “Griffin and
succeeding decisions ‘stand for the proposition that a State cannot arbitrarily cut off
appeal rights for indigents while leaving open avenues of appeal for more affluent
persons,’” id. at 111; (4) “This Court has never held that the States are required to
establish avenues of appellate review, but it is now fundamental that, once established,
these avenues must be kept free of unreasoned distinctions that can only impede open and
MEMORANDUM DECISION AND ORDER - 13

equal access to the courts,” id.; and (5) “Of prime relevance to the question presented by
M. L. B.’s petition, Griffin’s principle has not been confined to cases in which
imprisonment is at stake,” id. (citing Mayer). In extending the free transcript rule from
the criminal to the civil context, the Court in M.L.B. rested its holding on both due
process and equal protection grounds. Id. at 120.
The question before this Court is whether the rule established in the line of cases
from Griffin to M.L.B. is broad enough to encompass Petitioner’s claim. Habeas corpus
relief is not for instances in which a state court has to extend existing precedent. White,
134 S.Ct. at 1706.
In this case, Petitioner was facing not only revocation of probation, but imposition
of any sentence up to the original sentence imposed. See State v. Pedraza, 614 P.2d 980
(Idaho 1980). Idaho Appellate Rule 11(c)(9) provides that “[a]ny order made after
judgment affecting the substantial rights of the defendant or the state” is an “appeal as a
matter of right.” In State v. Dryden, 673 P.2d 809, 813 (Idaho Ct. App. 1983), the Idaho
Court of Appeals held that an order revoking probation is an appeal of right that falls
within Idaho Appellate Rule 11(c)(9). Because the State has chosen to provide the right
of appeal and because the length of a criminal sentence is involved, this Court concludes
that the Griffin rule applies to ensure that indigent appellants have equal access to
transcripts regarding probation revocations where the defendant can be sentenced to any
length of incarceration up to the original sentence. No extension of the law is required,

MEMORANDUM DECISION AND ORDER - 14

because Griffin already had been extended beyond criminal law to a serious civil
question. Petitioner’s case falls within that continuum.2
B. The Idaho Supreme Court’s Decision was not Contrary to United States
Supreme Court Precedent
Using the clearly-established law set forth above, the Court turns to the next issue,
which is whether the Idaho Supreme Court’s decision to deny the constitutional claims
was contrary to United States Supreme Court precedent based on the facts presented. If
fairminded jurists could disagree on the correctness of the Idaho Supreme Court’s
decision to deny Petitioner six of the seven free transcripts she sought, relief is not
warranted. See Richter, 131 S. Ct. at 786.
The United States Supreme Court has made it clear that the right to free transcripts
is not an unlimited right. In Draper v. Washington, 372 U.S. 487 (1963), the Supreme
Court explained:
In considering whether petitioners here received an adequate appellate
review, we reaffirm the principle, declared by the Court in Griffin, that a
State need not purchase a stenographer’s transcript in every case where a
defendant cannot buy it. 351 U.S., at 20, 76 S.Ct., at 591. . . . Moreover,
part or all of the stenographic transcript in certain cases will not be germane
to consideration of the appeal, and a State will not be required to expend its
funds unnecessarily in such circumstances. . . . If the assignments of error
go only to rulings on evidence or to its sufficiency, the transcript provided
might well be limited to the portions relevant to such issues. . . . In all cases
the duty of the State is to provide the indigent as adequate and effective an
appellate review as that given appellants with funds—the State must
The Court rejects Respondent’s argument that Cox v. McEwen, 2011 WL 6107874 (C.D. Cal. 2011), supports the
position that an extension of the law is required in Petitioner’s case, because the Cox opinion specifically points out
that Griffin governs requests for free transcripts on appeal, and Cox’s request was not for the purposes of appeal, but
to prepare a motion for new trial before the state trial court. Id. at *19.
2

MEMORANDUM DECISION AND ORDER - 15

provide the indigent defendant with means of presenting his contention to
the appellate court which are as good as those available to a nonindigent
defendant with similar contentions.
Id. at 499. Hence, an indigent litigant is entitled to “a record of sufficient completeness to
permit proper consideration of their claims.” Id.
For Petitioner’s probation revocation appeal, she was provided with (1) the
transcript of the actual probation revocation hearing of December 19, 2011, in which the
state trial court considered the 2006 and 2009 probation violations and the 2011 sentence,
and pronounced a sentence in all three cases (State’s Lodging A-4); and (2) the transcript
of the July 26, 2011, hearing where Petitioner admitted the 2006 and 2009 probation
violations. (State’s Lodging A-3.) Petitioner also had access to the written probation
violation charging documents, the recommendations for probation revocation or retained
jurisdiction, the plea agreements, and the prior judgments, all of which contained
substantial factual information about her convictions and sentences. (State’s Lodgings A1 and A-2.)
Petitioner’s task in this matter is to show that she did not possess a record of
sufficient completeness to permit proper consideration of her claims. Petitioner intended
to, and did, bring a claim that the state trial court abused its discretion when it chose not
to permit her a third chance at a rider and probation but sentenced her to the original
sentences in the 2006 case (six years with two years fixed) and 2009 case (six years with
three years fixed).

MEMORANDUM DECISION AND ORDER - 16

Petitioner brought no other substantive claim on appeal. Would this have been
different had Petitioner been afforded the additional transcripts? In other words, did she
bring no other claim because her counsel did not have opportunity to comb through the
additional transcripts Petitioner sought, or were the facts such that they supported no
other arguable claim? A review of the record shows that the latter is true. The written
state court records and transcripts that were provided to Petitioner contained the facts
germane to sentencing—facts that were known to Petitioner personally because they
arose from her own admissions, agreements, recommendations, and actions.
C. There Were No Contested Probation Violation Issues
Petitioner’s motion to augment the record expressed a desire to search for
evidence related to the question of whether the district court erred in revoking probation,
and, in particular, whether the court relied on conditions that Petitioner had not agreed to
as a basis for the probation revocation. However, the record reflects that this was a nonissue, because the written state court record contained the probation conditions and
Petitioner admitted to the probation violations. Therefore, the additional transcripts were
not needed for the purpose stated.
Petitioner has not provided any insight into how the old transcripts would have
helped her contest any claim or issue, in light of all of the admissions in the record. In
particular, she pleaded guilty to the 2006 criminal conviction for possession of a
controlled substance. In 2009, Petitioner was charged with eight counts of violating her
probation in the 2006 case, plus a second criminal charge of possession of a controlled
MEMORANDUM DECISION AND ORDER - 17

substance. To her credit, she admitted to the violations, including use of
methamphetamine, which was the basis for the 2009 crime. In 2011, she was charged
with violating probation in the 2006 and 2009 cases, and she again chose the path of
honesty with the tribunal, admitting that she violated probation in both cases and used
methamphetamine again. She also pleaded guilty to the third possession charge. This left
only the sentences at issue.
D. The Law Permitted the Sentencing Court to Look Back at All Evidence,
including that Used to Determine the Original Sentences, But Petitioner Had
Little to Contest Because of her Agreements and Recommendation for
Sentencing
At the comprehensive sentencing hearing in 2011, Petitioner had the opportunity
to contest whether the original sentences imposed in the 2006 and 2009 cases should be
put into effect, and to present argument and evidence to support Petitioner’s
recommendation for the 2011 sentence. In Petitioner’s 2006 and 2009 probation violation
cases, the state district court was free to impose any sentence up to the original sentence
imposed, but it could not impose a greater sentence. See State v. Pedraza, 614 P.2d 980
(Idaho 1980).
Under Idaho law, the time period for appealing the length of the original sentence
for Petitioner would have already expired, because any sentence challenge had to be filed
within 42 days after the date the state district court lost jurisdiction at the end of the
retained jurisdiction period. However, the Idaho Court of Appeals has recognized that a
convicted felon whose sentence is suspended in favor of placement on probation has little
MEMORANDUM DECISION AND ORDER - 18

reason to appeal the sentence, because the original sentence becomes genuinely
meaningful only if probation is later revoked. State v. Hanington, 218 P.3d 5, 7 (Idaho
Ct. App. 2009).
When probation is revoked, even though a convicted felon cannot technically
directly appeal the original sentence, the Idaho Court of Appeals has indicated that the
appellate courts will nevertheless review the entire record to see if the sentence imposed
after probation revocation is an abuse of the court’s discretion. For the appellate court to
do that, the particular scope of review on appeal of a probation revocation, as set forth in
Hanington, has been articulated as follows: “When we review a sentence that is ordered
into execution following a period of probation, we will examine the entire record
encompassing events before and after the original judgment.” 218 P.3d at 8. In other
words, as the appellate court recognized in Petitioner’s case, review is “based upon the
facts existing when the sentence was imposed as well as events occurring between the
original sentence and the revocation of the probation.” (State’s Lodging B-8, p. 4, relying
on Hanington.)3 Denial of the transcripts must be viewed in light of the particular facts of
the case.
The plea agreement in the 2006 case contained no promises or recommendations
from the parties regarding punishment, and Petitioner received a sentence of six years,

3

After the Idaho Supreme Court denied in part the motion for augmentation of the state court record , but before it
denied the petition for review, the Idaho Court of Appeals issued a decision in State v. Morgan, 288 P.3d 835 (Idaho
Ct. App. 2012), which explained that Hanington’s definition of relevancy should not be read too broadly: [T]hat
does not mean that all proceedings in the trial court up to and including sentencing are germane. The focus of the
inquiry is the conduct underlying the trial court’s decision to revoke probation.” 288 P.3d at 838.

MEMORANDUM DECISION AND ORDER - 19

with the first two years fixed. In the 2009 case, Petitioner and the State entered into a
binding plea agreement in which the State would recommend a rider with probation and
an underlying six-year sentence, with the first three years fixed. That is the sentence
Petitioner received.
At the 2011 comprehensive hearing, Petitioner asked the Court to reinstate a
retained-jurisdiction rider with a one-year rehabilitative imprisonment term. However,
Petitioner’s counsel admitted, “given [Petitioner’s] criminal record, I do not believe it
would be appropriate for me as her counsel to ask for probation, and “she has a
substantial addiction.” (State’s Lodging A-4, p. 13.) In the alternative, Petitioner’s
counsel asked the court to “vary from the plea agreement slightly,” and sentence
Petitioner to a two-year fixed term, rather than a three-year fixed term (presumably for
the 2011 crime). (State’s Lodging A-4, p. 15.)
However, on appeal, Petitioner argued that even the two-year fixed term for the
2006 conviction was “excessively harsh” and an abuse of discretion. (State’s Lodging B10, pp. 34-35.) Another anomaly was that Petitioner argued on appeal that the three-year
fixed term for the 2009 sentence was “excessively harsh,” while in the concurrent 2011
case, Petitioner waived her right to appeal that sentence because “the court followed the
state’s recommendation identically” by sentencing her to a three-year fixed term. (State’s
Lodging A-4, p. 23.)
It is difficult to understand Petitioner’s justification for the expenditure of public
funds for preparation and provision of old transcripts to support arguments in which
MEMORANDUM DECISION AND ORDER - 20

Petitioner seemed to be repudiating her previous recommendations and agreements.
Petitioner has pointed to no set of facts that might be found in the missing transcripts to
help her make any better sentencing argument.4 The records Petitioner received show that
she was simply boxed in by her previous sentencing agreements, recommendations, and
the concurrent nature of her sentences.
E. Petitioner’s Facts Are Not Similar to the Facts in Cases of Precedent Where
Transcripts Were Deemed Necessary
Though Petitioner relies heavily on Draper to argue that the lack of the additional
transcripts “rendered her appeal meaningless” (Dkt. 14, p. 3), the uncontested facts of
Petitioner’s case are far different from Draper’s contested facts:
[In Draper,] Petitioners’ contentions in the present case were such
that they could not be adequately considered by the State Supreme Court on
the limited record before it. [Petitioner’s] arguments [were] about improper
foundation for introduction of the gun and coat, . . . the asserted failure of
proof with respect to identification of the defendants[,] . . . allegations of
perjury and inconsistent testimony, . . . [and] the alleged failure of the
evidence to sustain the conviction.
The materials before the State Supreme Court in [the Draper] case
did not constitute a ‘record of sufficient completeness,’ for adequate
consideration of the errors assigned. No relevant portions of the
stenographic transcript were before it. The only available description of
what occurred at the trial was the summary findings of the trial court and
the counter-affidavit filed by the prosecutor. The former was not in any
sense like a full narrative statement based upon the detailed minutes of a
4

Griffin granted the right to indigent transcripts, but warned against unwarranted fishing expeditions that are free to
the indigent but not free to society: “When a State not only gives leave for appellate correction of trial errors but
must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized
and public moneys not needlessly spent.” Griffin, 351 U.S. at 24.

MEMORANDUM DECISION AND ORDER - 21

judge kept during trial. It was, so far as we know, premised upon
recollections as of a time nearly three months after trial and, far from being
a narrative or summary of the actual testimony at the trial, was merely a set
of conclusions. The prosecutor’s affidavit can by no stretch of the
imagination be analogized to a bystander’s bill of exceptions. The fact
recitals in it were in most summary form, were prepared by an advocate
seeking denial of a motion for free transcript, and were contested by
petitioners and their counsel at the hearing on that motion.
372 U.S. at 497.
Here, in contrast, Petitioner had stipulated or admitted to nearly every pertinent
underlying issue, and she was provided with the two transcripts directly related to her
hearing. Even though she personally attended each of the other hearings, she offered the
Idaho Supreme Court not an inkling of what the transcripts contained that would have
made the difference between, in her words, a “meaningless” and a “meaningful” appeal.
F. Conclusion
A review of the entire record demonstrates that the Idaho Supreme Court’s
decision to provide Petitioner with some but not all of the requested transcripts is not
contrary to Griffin and Draper based on this particular record. The Court concludes that
the decision is subject to disagreement among fairminded jurists. Therefore, relief under
§ 2254 is not warranted.
2.

De Novo Review
In the alternative, even under de novo review, the Court concludes that, based on

the record, the Idaho Supreme Court made the correct decision in lessening the burden of
MEMORANDUM DECISION AND ORDER - 22

preparation of transcripts on the taxpayers, where little was contestable, and, hence, little
was to be gained. It is obvious from the facts in the record that Petitioner was a drug
addict who could not stay away from drugs while on probation. The trial court relied on
the same common-sense reasoning for all three of the sentences: (1) Petitioner had been
given five years of opportunity to complete community rehabilitation, and had tried many
different programs, but nothing had worked; (2) in mitigation, Petitioner had suffered
some difficulties in the past; (3) the most recent mental health evaluation focused on a
diagnosis of methamphetamine dependence and substance-induced mood disorders,
rather than anxiety, and recommended treatment in a “controlled environment”; (4) she
needed an extended stay in prison to help heal her “methamphetamine brain”; and (5)
after “this much time and this many tries,” she had to pay for her wrongdoing over the
past five years, including the “societal cost” for being involved in illicit drug use. (Id., pp.
19-24.)
It is difficult to understand why, in light of Petitioner’s “three-peat” history of
methamphetamine convictions, she nevertheless argued on appeal that she needed the
older hearing transcripts because “[w]hat was argued before the district court in prior
probation proceedings and at sentencing is necessary and relevant to determine what has
changed so drastically that a person who was deemed safe to be placed into society and
given a chance at a rider must now be incarcerated.” (State’s Lodging B-10, p. 26
(emphasis added).) It is abundantly clear from the record that at issue was not “what had
changed so drastically,” but Petitioner’s refusal to drastically change her drug-dependent
MEMORANDUM DECISION AND ORDER - 23

lifestyle that brought about the imposition of her original sentences, as well as a new
sentence. Even though Petitioner herself was in attendance at each hearing for which she
wanted a transcript, she can point to nothing the transcripts possibly contained to aid her
in showing that the sentences handed down were excessively harsh.
3.

Harmless Error
If constitutional error occurred, habeas relief may not be granted unless the

petitioner shows that “the error had substantial and injurious effect or influence” in the
outcome of the matter. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks omitted); Inthavong v. LaMarque, 420 F.3d 1055 (9th Cir. 2005); see
Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (Brecht is the proper harmless error standard
to apply in § 2254 proceedings). The harmless error standard requires that a defendant
establish actual prejudice.
On this set of facts, Petitioner has failed to show, in any of her arguments, that any
of the transcripts would have made any difference in the sentencing. These transcripts
were not necessary to Petitioner’s arguments, nor does the record reflect that other
meritorious arguments could have been based on the additional transcripts. There was no
viable issue that parole was revoked on a condition to which Petitioner did not agree,
because Petitioner admitted to all of the violations. Petitioner was provided with a record
of sufficient completeness to permit proper consideration of her sentencing claims.
Petitioner, who was well-aware of her own history, has not shown that anything in the
older transcripts during the time period between her first possession conviction and her
MEMORANDUM DECISION AND ORDER - 24

third conviction would have overshadowed the fact that she had failed on probation twice
for the same reason. The record is sufficient to show that Petitioner was a repeat drug
user who needed a fairly lengthy prison sentence to work a positive change in, and
potentially save, her life.
On appeal, Petitioner’s counsel painted Petitioner in the best light possible by
highlighting her accomplishments throughout her three failed attempts at probation and
by pointing to relevant mitigating factors: (1) Petitioner’s progress toward a GED; (2) her
family and community support; (3) her difficult childhood; (4) her depression and
anxiety; (5) her substance addiction; and (6) the “positive” parts of her rider performance,
such as the classes completed and volunteer hours amassed. Petitioner has not
enlightened the reviewing courts regarding what more was discussed at the other hearings
that would have made any difference to Petitioner’s defense.
The Court concludes that any possible error in failing to provide the transcripts to
Petitioner was harmless because Petitioner has failed to establish any prejudice arising
from the failure.
DISCUSSION OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
The Court now turns to Petitioner’s derivative argument that the Idaho Supreme
Court’s decision to deny the transcripts caused Petitioner’s counsel to perform
ineffectively, because counsel could not properly support Petitioner’s claims on appeal or
review the record to discover other meritorious claims.

MEMORANDUM DECISION AND ORDER - 25

1.

Standard of Law
The clearly-established law governing a claim of ineffective assistance of counsel

is found in Strickland v. Washington, 466 U.S. 668 (1984). There, the United States
Supreme Court determined that, to succeed on an ineffective assistance claim, a petitioner
must show that (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness, and that (2) the petitioner was prejudiced by the deficient
performance. Id. at 684.
In assessing whether trial counsel’s representation fell below an objective standard
of competence under Strickland’s first prong, a reviewing court must view counsel’s
conduct at the time that the challenged act or omission occurred, making an effort to
eliminate the distorting lens of hindsight. Id. at 689. The court must indulge in the strong
presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance. Id.
The Strickland principles also apply to determining ineffective assistance of
appellate counsel claims. Smith v. Murray, 477 U.S. 527, 535-36 (1986). A petitioner
must show that his counsel was objectively unreasonable “in failing to find arguable
issues to appeal—that is, that counsel unreasonably failed to discover [and raise]
nonfrivolous issues.” Smith v. Robbins, 528 U.S. 259, 285 (2000). A petitioner also “has
the burden of demonstrating prejudice,” which is defined as “a reasonable probability
that, but for his counsel's unreasonable failure . . . , he would have prevailed on his
appeal. Id. at 285.
MEMORANDUM DECISION AND ORDER - 26

The foregoing is the de novo standard of review. When evaluating a claim of
ineffective assistance of counsel in a federal habeas proceeding under § 2254(d)(1), the
Court’s review of that claim is “doubly deferential.” Cullen v. Pinholster, 131 S. Ct.
1388, 1403 (2011).

2.

Discussion
Petitioner argues that appellate counsel must make a conscientious examination of

the case and file a brief in support of the best arguments to be made, if any can be made.
Anders. v. California, 386 U.S. 738, 744 (1967). Without the transcripts, Petitioner
argues, her appellate counsel was unable to examine the entire case, as the state standard
of law for probation revocation hearings required.
As shown above, this is an empty argument. Petitioner had admitted the crimes
and admitted the violations. Petitioner had agreed that the State could recommend the
sentences that it did in the 2009 and 2011 plea agreements, Petitioner herself had
recommended two years fixed on the concurrent 2011 sentence, and Petitioner had agreed
to waive her appeal in the 2011 case if the court sentenced her to three years fixed. On
appeal, she argues that all of these terms were “excessively harsh.” To the contrary, the
existing record shows that the sentences were just and appropriate. Based on the facts in
the record, the Court concludes under a de novo standard of review that Petitioner has not
shown deficient performance or prejudice from any failure of counsel to review the old
transcripts in search of additional facts or claims.
MEMORANDUM DECISION AND ORDER - 27

CONCLUSION
Petitioner is not entitled to relief under any standard on either of her claims.
Hence, the Petition will be denied and dismissed, and a certificate of appealability will
not issue.
ORDER
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED and DISMISSED
with prejudice.
2. 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: January 28, 2015

_________________________
Edward J. Lodge
United States District Judge

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