Ciccone v. Ellis et al

Filing 24

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Respondents Motion for Extension of Time (Dkt. 12 ) is GRANTED. 2. Petitioners Motion for Extension of Time (Dkt. 18 ) is GRANTED. 3. The Amended Petition for Writ of Habeas Corpus (Dkt. 9 ) is DEN IED, and this entire action is DISMISSED with Prejudice. 4. 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

ALBERT A. CICCONE,
Case No. 1:13-cv-00465-CWD
Petitioner,
MEMORANDUM DECISION
AND ORDER

vs.
RANDY BLADES, et al.,
Respondents.

Pending before the Court is an Amended Petition for Writ of Habeas Corpus filed
by Petitioner Albert A. Ciccone (“Petitioner” or “Ciccone”). (Dkt. 9.) The Amended
Petition is now fully briefed and ripe for adjudication. (Dkts. 14, 20, 21.) The Court takes
judicial notice of the record from Petitioner’s state court proceedings that has been
lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551
(9th Cir. 2006).
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. 23.) Having carefully reviewed the record in this
matter, including the state court record, the Court concludes that oral argument is
unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
Order denying habeas corpus relief.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
1.

State Court Proceedings
“On October 16, 2003, Petitioner struck his pregnant wife with his car, killing her

and the unborn fetus.” (State’s Lodging C-9 at 1.) In a criminal action in Elmore County,
Idaho, Petitioner, a member of the United States Air Force, “was charged with two counts
of first-degree murder—one count for his wife and one count for the unborn fetus.” (Id.)
Following a continuance of approximately five and one half months from the
original trial date, Petitioner’s trial began on January 4, 2005. The jury found Petitioner
guilty of the first-degree murder of his wife, and second-degree murder of her unborn
fetus. The court imposed a fixed life sentence for the first-degree murder, and a fifteenyear fixed sentence for the second-degree murder. (Id.)
Petitioner’s counsel filed a notice of appeal too late, and the direct appeal was
dismissed. Petitioner’s direct appeal rights were reinstated on initial post-conviction
review. (State’s Lodgings C-1 at 16-19; D-1 at 18-19.) Petitioner then pursued a direct
appeal, raising three claims: (1) prosecutorial misconduct in closing argument; (2) a
statutory and constitutional speedy trial violation; and (3) an excessive sentence under
Idaho law. (State’s Lodging C-2.) The Idaho Court of Appeals affirmed, and the Idaho
Supreme Court denied review. (State’s Lodgings C-9, C-12.)
Petitioner then filed a successive post-conviction action, asserting numerous
claims of ineffective assistance of trial and direct appeal counsel. (State’s Lodging D-1 at

MEMORANDUM DECISION AND ORDER - 2

17-29.) The successive post-conviction action was dismissed after an evidentiary hearing.
(State’s Lodging D-1 at 160-79.)
Petitioner raised one issue on appeal of the dismissal of the post-conviction
action—that his trial counsel was ineffective in failing to present a psychological
evaluation at sentencing. (State’s Lodging E-1 at 2.) The Idaho Court of Appeals
affirmed the conviction, and the Idaho Supreme Court denied review. (State’s Lodgings
E-4, E-7.)
2.

The Instant Federal Petition
Petitioner filed his initial federal petition in this case in October of 2013, and the

case was stayed pending completion of Petitioner’s successive post-conviction
proceedings. (Dkt. 6.) Once those proceedings concluded, Petitioner filed his Amended
Petition, and this case was reopened. (Dkt. 9, 10.)
Petitioner asserts the following claims in the Amended Petition. Claim A asserts
that Petitioner’s rights to a speedy trial—under (i) Idaho state law and (ii) the federal
Constitution—were violated by the trial court’s decision to continue the trial until
January 2005. (Am. Pet., Dkt. 9, at 6-7.) Claim B assets that the prosecutor committed
misconduct during closing argument by commenting on Petitioner’s silence and by
“asking the jury to convict . . . based on sympathy for the victim.” (Id. at 7.) In Claim C,
Petitioner contends that the trial court abused its discretion by imposing an excessive
sentence. (Id. at 9-10.) Claim D alleges that the Idaho Supreme Court violated
Petitioner’s right to due process by requiring him to file his appellate brief before he

MEMORANDUM DECISION AND ORDER - 3

received all of the trial transcripts. (Id. at 10-11.) And in Claim E, Petitioner asserts that
trial counsel was ineffective by failing to submit a psychological evaluation at
sentencing. (Id. at 11-13.)
STANDARD OF LAW
Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment when the federal court determines that the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances
where the state court’s adjudication of the 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). In determining whether a petitioner is entitled to habeas relief, a
federal court reviews the state court’s “last reasoned decision.” 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.

MEMORANDUM DECISION AND ORDER - 4

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
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) (emphasis omitted).
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. To be entitled to
habeas relief under § 2254(d)(1), “a state prisoner must show that the state court’s ruling

MEMORANDUM DECISION AND ORDER - 5

on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
AEDPA deference is required even where the state court denied a petitioner’s
claim without expressly addressing it. In such a case, the federal court must “conduct an
independent review of the record to determine what arguments or theories could have
supported the state court’s decision”; the court must then determine “whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a decision of the Supreme Court.” Bemore v. Chappell,
788 F.3d 1151, 1161 (9th Cir. 2015) (internal quotation marks and alterations 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. 2000).
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, 563 U.S. 170, 181 (2011). This means that
evidence not presented to the state court may not be introduced on federal habeas review

MEMORANDUM DECISION AND ORDER - 6

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, 999-1000 (9th Cir. 2014).
Two separate statutory subsections govern a federal court’s review of state court
factual findings. When a petitioner contests the reasonableness of the state court’s factual
determinations based entirely on the state court record, a federal court must undertake a
§ 2254(d)(2) analysis. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). There are
two general ways to challenge factual findings as unreasonable under § 2254(d)(2).
“First, a petitioner may challenge the substance of the state court’s findings and attempt
to show that those findings were not supported by substantial evidence in the state court
record. Second, a petitioner may challenge the fact-finding process itself on the ground
that it was deficient in some material way.” Hibbler v. Benedetti, 693 F.3d 1140, 1146
(9th Cir. 2012) (internal citations omitted).
To be eligible for relief under § 2254(d)(2), 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.” 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, 558 U.S. 290, 301
(2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was

MEMORANDUM DECISION AND ORDER - 7

incorrect but whether that determination was unreasonable—a substantially higher
threshold.”).
Under the second subsection dealing with state court factual findings, 28 U.S.C.
§ 2254(e)(1), such findings are presumed to be correct, and the petitioner has the burden
of rebutting this presumption by clear and convincing evidence. In Taylor v. Maddox, the
Ninth Circuit held that “the presumption of correctness and the clear-and-convincing
standard of proof [as set forth in § (e)(1)] only come into play once the state court’s factfindings survive any intrinsic challenge [under § (d)(2)]; they do not apply to a challenge
that is governed by the deference implicit in the ‘unreasonable determination’ standard of
section 2254(d)(2).” 366 F.3d at 1000.
However, in Cullen v. Pinholster, the United States Supreme Court held that new
evidence introduced in federal court “has no bearing” on a merits review of a state court’s
legal conclusions; therefore, a petitioner cannot receive a federal evidentiary hearing on
the merits of any claims that the state court has addressed unless the factual findings of
the state court are unreasonable. 563 U.S. at 185. As the Ninth Circuit explained in
Murray v. Schriro, the Court in Pinholster “eliminated the relevance of ‘extrinsic’
challenges when … reviewing state-court decisions under AEDPA.” 745 F.3d at 999.
Therefore, the relationship between § 2254(d)(2) and § 2254(e)(1) is not entirely clear.
However, any differences between the two subsections are rarely, if ever, determinative.
See Wood, 558 U.S. at 304-05 (“Because the resolution of this case does not turn on
them, we leave for another day the questions of how and when § 2254(e)(1) applies in

MEMORANDUM DECISION AND ORDER - 8

challenges to a state court’s factual determinations under § 2254(d)(2).”); Murray v.
Schriro, 745 F.3d at 1001 (“[W]e do not believe the difference between our two lines of
cases is determinative in this case, and thus we need not resolve the apparent conflict to
decide this case.”).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to, or an unreasonable application of Supreme
Court precedent or by establishing that the state court’s factual findings were
unreasonable—then the federal habeas court must review the petitioner’s claim de novo.1
Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014).
When considering a habeas claim de novo, a district court may, as in the preAEDPA era, draw from both United States Supreme Court as well as circuit precedent,
limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even
under de novo review, however, if the factual findings of the state court are not
unreasonable under § 2254(d)(2), 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
1167-68. Contrarily, if a state court factual determination is unreasonable, the federal
court is not limited by § 2254(e)(1) and 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.

1

De novo review is also required where the state appellate court did not decide a properly-asserted
claim or where an adequate excuse for the procedural default of a claim exists. Pirtle v. Morgan, 313 F.3d
1160, 1167 (9th Cir. 2002); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc).

MEMORANDUM DECISION AND ORDER - 9

Even if a petitioner succeeds in demonstrating a constitutional error in his
conviction, he is entitled to federal habeas relief only if the petitioner “can establish that
[the error] resulted in ‘actual prejudice.’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). Under the Brecht standard, an error is not harmless, and habeas relief must be
granted, only if the federal court has “grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury’s verdict.”
O’Neal v. McAninch, 513 U. S. 432, 436 (1995) (internal quotation marks omitted).
DISCUSSION
1.

Petitioner Is Not Entitled to Relief on Claim A
Claim A asserts speedy trial violations under both state and federal law.
A.

Claim A(i): State Law Speedy Trial Right

Claim A(i)—which relies on Idaho state law—is not cognizable in this federal
habeas action. As explained in its previous Order reopening this case (Dkt. 10 at 3),
violations of state law are not cognizable on federal habeas review. Lewis v. Jeffers, 497
U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state
law.”). Thus, Petitioner is not entitled to relief on this claim.
B.

Claim A(ii): Sixth Amendment Speedy Trial Right

Claim A(ii) asserts a violation of Petitioner’s right to a speedy trial under the
United States Constitution.
i.

Clearly-Established Law

The Sixth Amendment guarantees every defendant the right to a speedy trial. The

MEMORANDUM DECISION AND ORDER - 10

Supreme Court has described the right as “generically different from any of the other
rights enshrined in the Constitution for the protection of the accused.” Barker v. Wingo,
407 U.S. 514, 519 (1972). The speedy trial right exists to safeguard the rights of the
defendant, but there is also “a societal interest in providing a speedy trial which exists
separate from, and at times in opposition to, the interests of the accused.” Id. The right is
“necessarily relative, . . . consistent with delays[,] and depends upon circumstances.” Id.
at 522 (internal quotation marks omitted).
The “amorphous” right to a speedy trial is not subject to rigid analysis, but, rather,
must be considered by applying a balancing test. Id. at 522, 530. A court must consider
four factors in considering whether a habeas petitioner has established a speedy trial
violation: (1) the length of the delay; (2) the reason for the delay; (3) whether the
defendant asserted his right to a speedy trial; and (4) prejudice to the defendant. Id. at
530-32. These factors are related “and must be considered together with such other
circumstances as may be relevant.” Id. at 533.
The fourth factor, prejudice to the defendant, “must be considered in the light of
the interests the speedy trial right was designed to protect: ‘(i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.’” United States v. MacDonald, 435
U.S. 850, 858 (1978) (quoting Barker, 407 U.S. at 532). The limitation on the
defendant’s ability to mount a defense is the “most serious,” because it “‘skews the
fairness of the entire system.’” Id. at 858 (quoting Barker, 407 U.S. at 532).

MEMORANDUM DECISION AND ORDER - 11

ii.

The Decision of the Idaho Court of Appeals

The charges against Petitioner were filed on January 27, 2004. (State’s Lodging A1 at 60-61.) On July 16, 2004, four days before trial was initially set to begin, the
prosecution moved for a continuance, “assert[ing] that several witnesses were military
personnel assigned to temporary duty (TDY) outside the state and were unavailable for
trial.” (Id. at 63, 66; State’s Lodging C-9 at 2.) Petitioner objected. After a hearing, and
after considering the Barker factors set forth above, the trial court granted the motion to
continue and reset the trial for January 4, 2005. (State’s Lodging A-7 at 1-32.)
The Idaho Court of Appeals affirmed, concluding that the Barker factors weighed
against finding a speedy trial violation. As to the first factor, the court found that the
length of delay was not unreasonable:
As Ciccone points out, when his trial began on January
4, 2005, it was nearly twelve months from when the
information was filed. This delay is not as significant, given
that the nature of the charges Ciccone was facing—two
counts of first degree murder—can be fairly characterized as
complex. Compare [State v.] Davis, [141 Idaho 828, 837, 118
P.3d 160, 169 (Ct. App. 2005)] (concluding that a DUI charge
arising out of a traffic stop could not be characterized as
complex), and State v. Moore, 148 Idaho 887, 902, 231 P.3d
532, 547 (Ct. App. 2010) (same), with [State v.] Lopez, [144
Idaho 349, 353, 160 P.3d 1284, 1288 (Ct. App. 2007)]
(concluding a seventeen-month delay was unreasonable
because “the record on appeal shows no difficulty with
complexity of investigation, lost witnesses, trouble
marshalling evidence, or any other mitigating circumstance
justifying the delay”). Here, the severe nature of the alleged
offenses required more time than that of a non-complex case.
In addition, witnesses were unavailable, the defense did not
provide an expert’s curriculum vitae until after the State
requested a continuance, and the Air Force procedures and
MEMORANDUM DECISION AND ORDER - 12

protocol provided complications that all added to the length
of the delay.
(State’s Lodging C-9 at 9.)
As for the second Barker factor, the reason for the delay, the court of appeals held
that the unavailability of witnesses, as well as the fact that a branch of the military was
also investigating the case, weighed against a finding of a speedy trial violation:
Ciccone argues that the State has not demonstrated that
the witnesses were truly unavailable. A witness being
unavailable for trial due to active military service is a good
reason for delay. See, e.g., Bell v. State, 287 Ga. App. 300,
651 S.E.2d 218, 219–20 (2007) (reason for the delay was
sufficient when witness was unavailable because she was on
active duty as a member of the armed forces and was serving
in Iraq); People v. Chardon, 83 A.D. 3d 954, 922 N.Y.S. 2d
127, 128–29 (2011) (holding that a “subsequent period
between June 8, 2005, and July 7, 2005, were attributable to
exceptional circumstances and, therefore, excludable [ ], since
the complainant was deployed for military service in Korea”);
Commonwealth v. Hyland, 875 A.2d 1175, 1190–92 (Pa.
Super. Ct.2005) (“The Commonwealth cannot be held to be
acting without due diligence when a witness becomes
unavailable due to circumstances beyond its control.
Certainly, [a witness’s] deployment to the Middle East was a
matter over which the Commonwealth had no control.”);
Kelley v. Commonwealth, 17 Va. App. 540, 439 S.E.2d 616,
619 (1994) (“the Commonwealth was justified in requesting a
continuance for the period in which [ ], their primary witness,
was called to military duty in the Persian Gulf”).
Ciccone also argues that the State negligently waited
for the Air Force to conclude its investigation, which caused
the subpoenas to be sent in June. The Air Force investigation
contained a witness list that the State used to prepare for trial.
All of the witnesses in the report were Air Force members.
Although waiting for the conclusion of the investigation
pushed the State to the discovery deadline, the list was given
to defense counsel before the deadline date. The State waiting
MEMORANDUM DECISION AND ORDER - 13

for the conclusion of the Air Force investigation was
reasonable, given the unique circumstances of the military
community and military procedures.
(Id. at 8 (alterations in original).)
The court found that the third factor weighed in favor of finding a speedy trial
violation because Petitioner asserted his speedy trial right in response to the prosecution’s
motion to continue. (Id. at 9.)
With respect to the prejudice factor, the Idaho Court of Appeals considered the
three interests protected by the Speedy Trial Clause—oppressive pretrial incarceration,
reduction of anxiety and concern, and the potential to impair presentation of a defense,
see Barker, 407 U.S. at 532—and determined that the prejudice suffered by Petitioner did
not justify finding a violation of that Clause. “As for the first two interests,” the court
found that Petitioner “endured anxiety while he was facing charges from the State and
remained incarcerated for the entirety of the time between his arrest and trial.” (State’s
Lodging C-9 at 10.)
With respect to the impairment-of-the-defense factor, Petitioner relied that the
potential of witness memory loss hampered his ability to defend himself:
Ciccone specifically argues that one witness, Ms. Shaw,
testified at trial that when Ciccone got out of his car and
started talking on his cell phone, he said “I got the job done.”
When confronted with the fact that she had never revealed
this information before, Shaw said that no one had ever asked
her what Ciccone had said into his cell phone. However,
Shaw had been asked that question before at Ciccone’s
preliminary hearing and had testified then to not being able to
hear what Ciccone had said into his cell phone. Ciccone
attributes that misstatement to the extended delay in bringing
MEMORANDUM DECISION AND ORDER - 14

him to trial. Ciccone contends that one witness’s memory
“could have deteriorated so significantly by the time of Mr.
Ciccone’s trial, one must wonder how reliable any of the
witness’ (sic) trial testimony was so long after the fact.”
(Id. (alteration in original).) The court of appeals concluded, however, that Petitioner’s
assertion of prejudice was speculative and unavailing:
First, the witness that misstated her previous testimony was
cross-examined and impeached by Ciccone’s attorney.
Furthermore, Ciccone’s attorney made specific reference to
the inconsistent statements during closing argument. The
impeachment removed any prejudice Ciccone could have
faced by the witness’s inconsistent testimony. Second,
Ciccone’s argument is based solely on speculation and does
not demonstrate prejudice. See [United States v. Loud Hawk],
474 U.S. [302,] 315 [(1986)] (alleging only a “possibility of
prejudice is not sufficient to support” a claim of a speedy trial
violation).
(Id. at 10-11.) Therefore, the court held, Petitioner “failed to demonstrate that the delay
prejudiced his defense to the charges in any degree.” (Id. at 11.) Considering the four
Barker factors together, the court of appeals concluded that the delay in bringing
Petitioner to trial did not violate the Speedy Trial Clause.
iii.

The State Court’s Decision on Claim A(ii) Was Not Unreasonable

In considering Petitioner’s speedy trial claim, the Idaho Court of Appeals
appropriately identified and applied Barker as setting forth the controlling analysis. (Id. at
3, 5, 7, 8-11.) That court’s conclusion that the length of the delay was not unreasonable
given the charges against Petitioner is supported by Barker’s statement that “the delay
that can be tolerated for an ordinary street crime is considerably less than for a serious,
complex, conspiracy charge.” Barker, 407 U.S. at 531. No clearly-established Supreme
MEMORANDUM DECISION AND ORDER - 15

Court precedent suggests that a year-long delay in a case where the defendant is accused
of murdering his wife and unborn child is unreasonably long.
Further, that the military witnesses were unavailable at the time initially set for
trial was a justifiable reason for the delay. See id. at 534 (stating that the illness of a
witness was “a strong excuse” for seven months of delay in that case). Petitioner argues
that most of these witnesses did not end up testifying and that, therefore, the prosecution
must have requested the continuance simply “to benefit from further pre-trial publicity.”
(Dkt. 20 at 10.) This contention is irrelevant and unsupported. That the prosecutor
eventually determined, presumably as a matter of trial strategy, not to use all of State’s
potential witnesses does not suggest a nefarious motive. And because counsel crossexamined Darlene Shaw on her inconsistent statements (State’s Lodging A-8 at 520-44),
there is no evidence that the delay hampered Petitioner’s ability to present his defense.
For these reasons, despite Petitioner’s assertion of his constitutional speedy trial
right, the Idaho Court of Appeals’ decision that the other three Barker factors justified the
delay was not contrary to or an unreasonable application of Supreme Court law, nor was
it based on an unreasonable factual determination. See 28 U.S.C. § 2254(d). Therefore,
Petitioner is not entitled to relief on Claim A(ii).
2.

Petitioner Is Not Entitled to Relief on Claim B
In Claim B, Petitioner alleges that the prosecutor engaged in misconduct by twice

commenting on Petitioner’s failure to testify, in violation of the Fifth Amendment, and by

MEMORANDUM DECISION AND ORDER - 16

asking the jury to convict Petitioner based on sympathy for the victim, in violation of the
Due Process Clause.
A.

Clearly-Established Law

A prosecutor has a “duty to refrain from improper methods calculated to produce a
wrongful conviction,” Berger v. United States, 295 U.S. 78, 88 (1935), although such
methods will warrant habeas relief only if they “‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process,’” Darden v. Wainwright, 477 U.S.
168, 180 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A court must
consider the record as a whole when making such a determination, because even a
prosecutor’s inappropriate or erroneous comments or conduct might not be sufficient to
undermine the fairness of the proceedings when viewed in context. See United States v.
Young, 470 U.S. 1, 16-17 (1985); Darden, 477 U.S. at 182 (applying Young); see also
DeChristoforo, 416 F.3d at 647-48 (distinguishing between “ordinary trial error of a
prosecutor” and the type of “egregious misconduct . . . [that] amount[s] to the denial of
constitutional due process”).
A prosecutor “should not use arguments calculated to inflame the passions or
prejudices of the jury.” Darden, 477 U.S. at 192 (internal quotation marks omitted).
However, a prosecutor’s closing argument, “billed in advance to the jury as a matter of
opinion not of evidence,” is “seldom carefully constructed” and may contain “[i]solated
passages” that are “less than crystal clear.” DeChristoforo, 416 U.S. at 646-47. Therefore,
a court must not “lightly infer that a prosecutor intends an ambiguous remark to have its

MEMORANDUM DECISION AND ORDER - 17

most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.” Id. at 647.
When reviewing prosecutorial misconduct claims under the unreasonable
application prong of § 2254(d)(1), a court must keep in mind that this standard is a “very
general one” that affords courts “leeway in reaching outcomes in case-by-case
determinations.” Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam) (internal
quotation marks and alterations omitted).
The Fifth Amendment to the United States Constitution provides, in relevant part,
that “[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” Every criminal defendant has a right not to testify, and the Fifth Amendment
“forbids either comment by the prosecution on the accused’s silence or instructions by
the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 616
(1965).
Not every comment relating to the right not to testify violates the Fifth
Amendment, however. The Fifth Amendment is “concerned only with adverse comment,
whether by the prosecutor or the trial judge”; neutral comments, such as an instruction by
the court that the jury may not infer guilt from a defendant’s silence, do not offend the
Constitution. Lakeside v. Oregon, 435 U.S. 333, 338 (1978). Moreover, a prosecutor’s
comments on a defendant’s silence will not violate the Fifth Amendment if those
comments constitute fair argument offered in response to a defense claim that the

MEMORANDUM DECISION AND ORDER - 18

defendant did not have a chance to tell his side of the story. United States v. Robinson,
485 U.S. 25, 31-32 (1988).
For example, in Robinson, the defendant did not testify at trial. During closing
argument, defense counsel argued that the government had breached its “duty to be fair”
and had not allowed the defendant to explain himself. Id. at 27 n.2. The prosecutor then
told the jury, “[Defense counsel] has made comments to the extent the Government has
not allowed the defendant[] an opportunity to explain. It is totally unacceptable. . . . He
could have taken the stand and explained it to you, anything he wanted to. The United
States of America has given him, throughout, the opportunity to explain.” Id. at 28. The
Supreme Court held that the prosecutor’s statements, taken in the context in which they
were made, did not violate the defendant’s Fifth Amendment right to be free from
compelled self-incrimination. Id. at 31. The Court determined that the Fifth Amendment
does not “prohibit [a] prosecutor from fairly responding to an argument of the defendant
by adverting to [the accused’s] silence.” Id. at 34; see also Darden, 477 U.S. at 179
(stating that, when a prosecutor’s allegedly improper comments occur in a rebuttal
closing, those comments “must be evaluated in light of the defense argument that
preceded [them].”).
B.

The Decision of the Idaho Court of Appeals

Petitioner’s defense at trial was that he accidentally hit his wife with his car.
Though Petitioner did not testify at trial, he did make some statements to police when he
was interviewed.

MEMORANDUM DECISION AND ORDER - 19

During closing argument, the prosecutor asserted that Petitioner and his wife had a
serious argument in the car before her death, that she had gotten out of the car, that
Petitioner had become very angry, that the victim had walked away, and that Petitioner
later purposely ran her down. The prosecutor relied in part on various items in the road
where the victim got out of the car:
For whatever reason, along that dusty dirt road, something
happened. An argument broke out. Something happened on
K&R Ranch Road where food was thrown, medication was
thrown, a purse was laid down, dropped, thrown, a bag of
food was thrown. A sweater was laying in the middle of the
road, one that [Petitioner] says [the victim] usually ties
around her waist.
And for some reason, [the victim] . . . decided to go
back down Ditto Creek Road. She walked, and he had
watched her. He said he watched her walking. She left in a
huff. . . . [She] is now walking down a dirt road; left side,
right side, middle, nobody knows.
What we do know is that it takes time to walk there.
What we do know is where she was right, right before
Darlene Shaw’s driveway. What we do know is that Albert
Ciccone drove his Dodge neon SRT4, special edition turbocharged car down that road.
....
He hit her with enough force to throw that body 75 feet
in the air, across the driveway . . . , flying across the air, like
she was going on a water slide.
(State’s Lodging A-8 at 1771-72.) Later, the prosecutor returned to the argument on K&R
Ranch Road:
There is twenty minutes out there that something happens.
There is twenty minutes of an argument. Well, let’s not say it
MEMORANDUM DECISION AND ORDER - 20

is an argument. Let’s not say it’s a tiff. Let’s not say she was
pissy. Let’s call a spade a spade. When you are throwing
food, you’re throwing bottles, clothes are getting taken off,
purses are being left behind—if you’re mad enough to be
throwing food, that’s not a tiff; that’s a full-blown fight.
(Id. at 1780-81.)
During the defense’s closing argument, Petitioner’s counsel intimated that
Petitioner did not seriously argue with his wife prior to her death, relying in part on
Petitioner’s statements to police. Counsel questioned the relevance of the purse, food, and
other items on K&R Ranch Road, implying that Petitioner had not thrown the items;
according to Petitioner, they had been in his wife’s possession when she got out of the
car:
Now, we have seen from the evidence on the K&R
Ranch Road that we have French fries, we had cigarettes, we
had Icee, we had a sweater, we had a purse, we had track
marks all on the K&R Ranch Road.
[Petitioner] stated in the interview [that the victim] had
the food on her side. The purse was found in the middle of the
road. But think about it. A woman’s purse. That’s a sacred
thing. The State seems to imply that [Petitioner] was throwing
the purse. [Petitioner] was throwing the medicine. [Petitioner]
was throwing the food. That’s totally inconsistent with our
day-to-day norm. It is totally inconsistent with the evidence.
They don’t dispute the fact that the bag, the Burger
King, and the Icee was in [the victim’s] possession. How
many women do we know that will reach in a car that she is a
passenger [in and put the purse somewhere where [Petitioner]
could][2] throw it at her? That simply does not make sense.

2

This bracketed phrase is barely legible in the copy of the transcript lodged by Respondents.
However, what the Court can discern of this phrase is consistent with Respondents’ quotation of it, and
Petitioner has not objected to that quotation. (See Dkt. 14 at 19.)

MEMORANDUM DECISION AND ORDER - 21

So you have got a purse. You have got food. You have
got a tiff, you’ve got a huff, however you want to classify it.
The accident scene.
(Id. at 1833-84.) This argument appears to have been based primarily on Petitioner’s
statement to Detective Catherine Wolfe that Petitioner’s wife—not Petitioner—had
thrown her purse, the food, and the other items on the road. (See State’s Lodging A-8 at
1564.) In this manner, counsel attempted to downplay the seriousness of the
disagreement, or to downplay Petitioner’s participation in it, and to reinforce the accident
theory.
In rebuttal closing, the prosecutor responded to defense counsel’s remarks, arguing
that there was no way to know exactly what happened on K&R Ranch Road that night,
including how the purse and other items ended up in the road, and that Petitioner’s
statements to police did not, in fact, support his claim that he accidentally killed his wife
and child:
Let’s talk about [Petitioner’s counsel] talking about the
scene on K & R Ranch Road. How this precious purse a
woman would have carried, the bag of food she obviously had
in her possession because that’s what [Petitioner] said.
So I guess she has got the purse in the car, the bag of
food in the car, the medicine, the sweater tied around her and
everything. And she decided to get out with all of that stuff on
K & R Ranch Road . . . and decided to walk however many
feet . . . walk up there with all the purse, sweatshirt tied
around her waist, bottle of pills, and all the food bag, and had
enough wherewithal to throw it all at him right- or lefthanded. Maybe she put the purse down to get the McDonalds
bag or Burger King to throw at him. Maybe she just left it
there. I don’t know. There’s only two people that know, and
[the victim] isn’t here to tell us.
MEMORANDUM DECISION AND ORDER - 22

Did the defendant try and hide this evidence, as the
defense has talked to [Detective] Cathy Wolfe about? He
knew she was going to find it. Well, he sure as heck didn’t
walk back towards the driveway after he had run down his
wife. As a matter of fact, they found him about as far away as
you could get in that time frame from the driveway.
Did he ever tell Cathy Wolfe, “I didn’t turn around
here [where Detective Wolfe had falsely told Petitioner he
made a J-turn, see State’s Lodging A-8 at 1545]. You’re
wrong. I turned around at K & R Ranch Road. That’s where
we got to. That’s where we stopped. That’s where we had a
fight. That’s where I turned around”?
He never once said, at least in my memory, that that’s
where he turned around. He bought on [to the detective’s
false statement and said], “Oh, this is where I turned around.
Why would I turn around here? It doesn’t make sense. We
just had a little tiff. We were just joking. She wanted to go see
her friends. That was it.”
He didn’t say, “Detective Wolfe, it has come back to
me now. I turned around up here.”
As a matter of fact, he didn’t even mention throwing
the food or anything else until Cathy Wolfe said, “Look, we
found all the food.” Oh, well, excuse me. I had a bad day.
Pardon me for my omission.
This wasn’t a guy cooperating. Remember what Cathy
Wolf said. When you cooperate with somebody, it is not just
answering questions; it is answering questions truthfully. If
you are making stuff up, you are not cooperating.
(State’s Lodging A-8 at 1853-55 (emphasis added).)
Petitioner claims that the prosecutor’s statement, “There’s only two people that
know [what happened], and [the victim] isn’t here to tell us,” was an improper comment
on Petitioner’s right not to testify. As the state appellate court explained, “[a]ccording to
MEMORANDUM DECISION AND ORDER - 23

[Petitioner], the prosecutor’s statement implied that Petitioner was invoking his right to
silence because only he could have told the jury about his argument with the victim.”
(State’s Lodging C-9 at 12.)
The Idaho Court of Appeals rejected this claim, holding that the prosecutor’s
comment “did not infringe on [Petitioner’s] right to silence” but, instead, “was made in
response to defense counsel’s reference to [Petitioner’s] interview with the police”:
At that interview, Ciccone discussed the purported evidence
and claimed that he accidently hit his wife with the car.
Rather than making the improper implication as Ciccone
alleges, the prosecutor merely explained Ciccone’s prior
statement to the police. This result is further evidenced by the
prosecutor’s remarks “that’s what [Petitioner] said” and
“[d]id he ever tell Cathy Wolfe.” Considering the entirety of
the argument, the prosecutor’s statement was not improper
and, therefore, did not rise to the level of fundamental error.
(Id. at 13-14.)3 The court held that the comment was not aimed at Petitioner’s choice not
to testify, but rather was merely “a reference to a custodial interview.” (Id. at 14.)
Also in rebuttal closing, the prosecutor stated, “How do you miss a person walking
down that road? There is nothing in any of these photographs to suggest that he missed
her, unless you want to hit her.” (State’s Lodging A-8 at 1855-56.) The prosecutor
continued:
There is no testimony that [Petitioner] was looking
down at is [sic] watch, that the cigarette smoke had blown in
The court of appeals used the “fundamental error” standard because Petitioner did not object to
the prosecutor’s comment at trial. This doctrine of Idaho law requires reversal, even without a
contemporaneous objection, if the alleged trial error “(1) violates one or more of the defendant’s
unwaived constitutional rights; (2) plainly exists (without the need for any additional information not
contained in the appellate record, including information as to whether the failure to object was a tactical
decision); and (3) was not harmless.” State v. Perry, 245 P.3d 961, 980 (Idaho 2010).
3

MEMORANDUM DECISION AND ORDER - 24

his face, that he was changing the radio station, that a cassette
dropped, a cigarette dropped in his pants, he had to try and
put it out real quick. No testimony as to that. Absolutely
none. He doesn’t say anything about any—
(Id. at 1856.) At this point, defense counsel objected, and the trial court sustained the
objection after a sidebar. (Id.)
After the prosecutor finished the rebuttal closing—about four pages of the
transcript later—the trial court gave a curative instruction to the jury:
Ladies and gentlemen of the jury, the jury will
disregard any argument based upon what the defendant did
not say. As stated earlier in instruction 55, a defendant in a
criminal trial has a constitutional right not to be compelled to
testify.
The decision of whether to testify is left to the
defendant acting with the advice and assistance of the
defendant’s lawyer. You must not draw any inference of guilt
from the fact the defendant did not testify, nor should this fact
be discussed by you or enter into your deliberations in any
way.
(Id. at 1860-61.)
The Idaho Court of Appeals first recognized Petitioner’s appellate counsel’s
concession that the claim as to this second statement was not “an individual claim of
error because a defense objection was sustained and trial counsel failed to move for a
mistrial.” (State’s Lodging C-9 at 14.) The court then addressed Petitioner’s argument
that the second statement nonetheless “contributed to the ‘general tone’ that [Petitioner]
failed to testify.” (Id.) The state court rejected that argument because (1) the second
statement “was objected to and the objection was sustained, stopping any further

MEMORANDUM DECISION AND ORDER - 25

improper comments,” and (2) “a curative instruction was given to the jury to ensure that
no weight was given to [Petitioner] invoking his right to silence.” (Id.)
The third challenged statement made by the prosecutor during rebuttal closing was
the following, which Petitioner argues was improperly intended to obtain a conviction
based on sympathy for the victim:
When you kill somebody, you take away everything they have
and everything they ever will have. [The victim] was twentytwo years old. Her death is a tragedy. Give her life meaning
and give her death the sense of justice that it requires. Hold
the defendant accountable for the purposeful, willful,
deliberate, premeditated actions that he took that night.
(State’s Lodging A-8 at 1860 (emphasis added).)
Reviewing for fundamental error because of the lack of a contemporaneous
objection, the court of appeals rejected Petitioner’s challenge to this comment:
Even if we assume that the prosecutor’s statement strayed
into the realm of emotional appeal, it did not approach the
level of egregiousness necessary to constitute fundamental
error. Prior to making the statement cited above, the
prosecutor said, “[t]his case is about [the victim’s] death, not
the mother’s pains, not about . . . Ciccone’s being in the
hands of [defense counsel]. It is about how and why she
died.” (Emphasis added.) Moreover, after the statement
Ciccone alleges is improper, the prosecutor clearly ask[ed]
the jury to “[h]old the defendant accountable for the
purposeful, willful, deliberate, premeditated actions that he
took that night.” The prosecutor stated twice that Ciccone
should be found guilty based on his criminal actions. We
conclude this statement does not rise to the level of
prosecutorial misconduct and thus Ciccone has failed to
demonstrate fundamental error.
(State’s Lodging C-9 at 15 (first and third alterations in original).)

MEMORANDUM DECISION AND ORDER - 26

C.

The State Court’s Decision on Claim B Was Not Unreasonable

It was reasonable for the Idaho Court of Appeals to determine that the first
comment at issue—that only two people knew what happened and the victim could not
tell the jury about it—was not an impermissible adverse reference to Petitioner’s decision
not to testify. In closing argument, defense counsel had relied on Petitioner’s statements
to police to suggest that the scene on K&R Ranch Road meant something other than what
the prosecutor asserted. The prosecutor was allowed to fairly respond to the defense
argument by referring back to what Petitioner told the police and by discussing the purse
and other items in the road. See Darden, 477 U.S. at 179 (stating that a prosecutor’s
comments “must be evaluated in light of the defense argument that preceded [them].”).
The state court’s decision as to this first comment is not unreasonable under 28 U.S.C. §
2254(d).
As for the second challenged comment—noting the lack of testimony as to certain
propositions—the objection to that comment was sustained, and the trial judge gave a
curative instruction. Therefore, Petitioner cannot establish that he was prejudiced by the
prosecutor’s comment on the lack of testimony to support Petitioner’s accident theory.
See Brecht, 507 U.S. at 637.
Finally, it was not unreasonable for the court of appeals to determine that the
prosecutor’s third comment—asking the jury to give meaning to the victim’s life and
justice for her tragic death—was not so egregious as to constitute prosecutorial
misconduct that deprived Petitioner of due process. See DeChristoforo, 416 U.S. at 646-

MEMORANDUM DECISION AND ORDER - 27

47. Thus, Claim B fails under 28 U.S.C. § 2254(d). As noted by the state court, the
prosecutor emphasized that the evidence established Petitioner’s guilt, and there is no
reason for this Court to infer either that the prosecutor intended the comment “to have its
most damaging meaning” or that the jury actually took that meaning “from the plethora
of less damaging interpretations.” DeChristoforo, 416 U.S. at 647.
Therefore, Claim B fails on the merits under § 2254(d).
3.

Petitioner Is Not Entitled to Relief on Claim C
Claim C alleges that the trial court abused its discretion in imposing a fixed life

sentence. Like Claim A(i), Claim C asserts a violation of state law. Because this state-law
claim is not cognizable in this federal habeas action, Claim C must be dismissed. See
Lewis, 497 U.S. at 780.
Further, to the extent Claim C can be construed as asserting that Petitioner’s fixed
life sentence violates the Cruel and Unusual Punishments Clause of the Eighth
Amendment, the claim fails on the merits. The Eighth Amendment “forbids only extreme
sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501
U.S. 957, 1001 (1991). In applying this principle, the United States Supreme Court has
reviewed several unquestionably harsh sentences and has not deemed any similar
punishment cruel and unusual.
In Harmelin, the Supreme Court upheld a judgment sentencing the defendant to a
statutory mandatory life sentence without the possibility of parole for possessing more
than 650 grams of cocaine. Id. at 1002-04. In Rummel v. Estelle, it did not disturb a

MEMORANDUM DECISION AND ORDER - 28

sentence of life with the possibility of parole for a recidivist offender for the crimes of
fraudulent use of a credit card to obtain $80 in goods and services, passing a forged check
for $28.36, and obtaining $120.75 by false pretenses. 445 U.S. 263, 286 (1980). In
upholding the sentence, the Court cited, as an example of a disproportionate sentence, “if
a legislature made overtime parking a felony punishable by life imprisonment.” Id. at 274
n.11.
In Lockyer v. Andrade, the Supreme Court held that two consecutive sentences of
25 years to life in prison for a “third strike” provision of state law for stealing $150 worth
of videotapes did not violate the gross disproportionality principle and did not warrant
habeas corpus relief. 538 U.S. 63, 66, 76 (2003). And in Ewing v. California, the Court
affirmed a life sentence where the defendant was convicted of felony grand theft for
stealing three golf clubs worth $399 each. 538 U.S. 11, 18, 20 (2003).
As can be seen from these cases, “[s]evere[] . . . penalties may be cruel, but they
are not unusual in the constitutional sense.” Harmelin, 501 U.S. at 957 (1991). The Court
concludes that Petitioner’s fixed life sentence for the first-degree murder of his wife does
not violate the Eighth Amendment. Thus, even if Claim C is construed as a federal claim,
Petitioner is not entitled to habeas relief on that claim.
4.

Petitioner Is Not Entitled to Relief on Claim D
In Claim D, Petitioner claims that, by requiring him to file his appellate brief

before his appellate counsel had received all of the transcripts in the case, the Idaho

MEMORANDUM DECISION AND ORDER - 29

Supreme Court violated his right to due process. The Court noted in its previous Order
that this claim was subject to summary dismissal:
Petitioner’s claim that the Idaho Supreme Court violated his
federal due process rights by requiring him to file his direct
appeal brief before Petitioner received the transcript of the
last day of trial fails to state a claim upon which relief can be
granted: Petitioner has asserted no harm or prejudice that
resulted from the Idaho Supreme Court’s imposition of the
early deadline. Petitioner does not assert that he later
discovered a meritorious claim in the transcript, [or] that he
attempted to amend or supplement his appellate brief, but was
denied the opportunity to do so.
(Dkt. 10 at 3.) Though the Court informed Petitioner that he could file a second amended
petition to reassert Claim D, with additional factual support, he did not do so. (Id.)
Therefore, for the reasons stated in the Order Re-Opening Case (Dkt. 10), Claim D
fails on the merits under de novo review.
5.

Petitioner Is Not Entitled to Relief on Claim E
Claim E alleges that Petitioner’s trial counsel rendered ineffective assistance at

sentencing by failing to present mitigating evidence in the form of a psychological
evaluation performed by Dr. Craig Beaver—an evaluation that led Dr. Beaver to
conclude that Petitioner had serious mental health issues. Petitioner contends that his
attorney acted on the basis of mistakes of fact and law, and, therefore, the decision not to
present this evidence was not a reasonable tactical decision. Petitioner also alleges that he
has shown prejudice because there is a reasonable possibility that the trial court would
not have sentenced him to a fixed life term if the court had notice of Petitioner’s mental
illness.
MEMORANDUM DECISION AND ORDER - 30

A.

Clearly-Established Law

The Sixth Amendment to the United States Constitution provides that a criminal
defendant has a right to the effective assistance of counsel in his defense. The standard
for ineffective assistance claims was identified in Strickland v. Washington, 466 U.S. 668
(1984). A petitioner asserting ineffective assistance of counsel must show that (1)
“counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and (2) those errors “deprive[d] the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A petitioner must
establish both deficient performance and prejudice to prove an ineffective assistance of
counsel case. Id. at 697. On habeas review, a federal court may consider either prong of
the Strickland test first, or it may address both prongs, even if one is deficient and will
compel denial. Id.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
MEMORANDUM DECISION AND ORDER - 31

indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense or which witnesses or other
evidence to present, “are virtually unchallengeable” if “made after thorough investigation
of law and facts relevant to plausible options.” Strickland, 466 U.S. at 690. Moreover, an
attorney who decides not to investigate a potential defense theory is not ineffective so
long as the decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91. Further, counsel is not deficient in an area where an investigation would
not have been fruitful for the defense.
The Ninth Circuit has provided some insight into the Strickland standard when
evaluating an attorney’s “strategy calls.” These cases are instructive in the Court’s
assessment of whether the state court reasonably applied Strickland. See Duhaime, 200

MEMORANDUM DECISION AND ORDER - 32

F.3d at 600. First, tactical decisions do not constitute ineffective assistance simply
because, in retrospect, better tactics are known to have been available. Bashor v. Risley,
730 F.2d 1228, 1241 (9th Cir. 1984). Second, a mere difference of opinion as to tactics
does not render counsel’s assistance ineffective. United States v. Mayo, 646 F.2d 369,
375 (9th Cir. 1981). Third, “counsel’s investigation must determine trial strategy, not the
other way around.” Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017); see also id.
(“Weeden’s counsel could not have reasonably concluded that obtaining a psychological
examination would conflict with his trial strategy without first knowing what such an
examination would reveal.”).
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. As the
Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
MEMORANDUM DECISION AND ORDER - 33

by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112.
The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101.
That is, when evaluating a claim of ineffective assistance of counsel in a federal
habeas proceeding under § 2254(d), the Court’s review of that claim must be “doubly
deferential.” Pinholster, 563 U.S. at 190 (internal quotation marks omitted).

MEMORANDUM DECISION AND ORDER - 34

B.

Decision of the Idaho Court of Appeals

Dr. Craig Beaver conducted a neuropsychological evaluation of Petitioner in
preparation for sentencing, as stipulated between the parties. (State’s Lodging E-4 at 1-2.)
Dr. Beaver provided Petitioner’s trial counsel with a verbal evaluation but, at counsel’s
direction, Dr. Beaver did not prepare a written report. (State’s Lodging D-2 at 57-59.)
At the evidentiary hearing during Petitioner’s successive post-conviction
proceedings, trial counsel testified that he had spoken with Dr. Beaver after the
evaluation, took notes regarding that conversation, and did additional research on what he
learned from Dr. Beaver. (Id. at 57-58.) According to trial counsel’s notes from the phone
call, Dr. Beaver determined that Petitioner suffered from major depression and borderline
personality disorder. (Id. at 63.) Dr. Beaver compared Petitioner to counsel’s first wife—
with whom Dr. Beaver was familiar—saying, “[Petitioner’s] just like your first wife,
remember?” Hearing this, defense counsel wrote down the phrase, “controlling and
abusive,” in his notes; counsel testified that his wife was a borderline personality as well
and that this diagnosis by Dr. Beaver “hit home.” (Id.) Dr. Beaver also told trial counsel
that Petitioner “was in deep denial of his culpability.” (Id.)
It was counsel’s practice to get this type of verbal report first, and then to
determine whether to direct the expert to prepare a written report. Counsel’s reasoning
was that, if the information was detrimental to the client, he would not want to have
anything in writing to that effect. (Id. at 77-78.) Therefore, counsel considered whether to
request that Dr. Beaver write a report for presentation at sentencing, but ultimately

MEMORANDUM DECISION AND ORDER - 35

concluded that “it was not in the client’s best interest.” (State’s Lodging D-2 at 59.)
Petitioner’s attorney was afraid that, if he had Dr. Beaver prepare a written report for
purposes of sentencing, then the prosecution could have had Petitioner evaluated by its
own expert—a doctor whom counsel called “Dr. Death,” because “nothing he said as a
psychologist or mental doctor” tended to assist criminal defendants “in any way.” (Id. at
65.)
Prior to sentencing, the trial court questioned Petitioner’s attorney as to why there
was no psychological report in the sentencing materials. Counsel responded, “Judge, an
evaluation was conducted. But after due consideration and conference with the evaluator
and my client, it was elected not to have the report prepared for sentencing.” (State’s
Lodging A-8 at 1881.)
Dr. Beaver prepared an affidavit in support of Petitioner’s successive postconviction petition. The affidavit stated that, if Dr. Beaver had prepared a written report,
the report would have stated that Petitioner (1) suffered from a “markedly elevated
profile indicating significant emotional and/or psychiatric issues”; (2) had “significant
mood instability”; (3) had a significant family history of bipolar disorders; and (4) had a
“significant mental-health component related to” the death of his wife and unborn child.
(State’s Lodging E-4 at 3-4.) Dr. Beaver opined that such a report “may very well have
led the Court to a sentence other than fixed life.” (Id. at 4.)
On appeal from the dismissal of Petitioner’s successive post-conviction petition,
Petitioner argued that trial counsel’s decision not to introduce evidence of Dr. Beaver’s

MEMORANDUM DECISION AND ORDER - 36

evaluation was based on a mistake of fact—“that a diagnosis of borderline personality
disorder meant [Petitioner] is controlling and abusive.” (State’s Lodging E-2 at 4.) The
Idaho Court of Appeals rejected this argument, relying on the fact that, “although trial
counsel noted the traits ‘controlling and abusive’ as related to his wife with a similar
borderline personality diagnosis, counsel also conducted his own independent research of
the diagnosis.” (Id. at 4-5.) The appellate court found also that “counsel was also
persuaded [not to submit the psychological evidence at sentencing] by the psychologist’s
opinion that [Petitioner] was in deep denial of his culpability.” (Id. at 5.) Therefore, the
court held, trial counsel made an objectively reasonable strategic decision that “a written
psychological evaluation would negatively impact [Petitioner’s] sentencing.” (Id.)
Petitioner also asserted that trial counsel’s decision about the psychological
evidence constituted deficient performance because Dr. Beaver would not have
necessarily had to include a diagnosis of borderline personality in any written report, so
counsel’s fear that the diagnosis could hurt Petitioner’s chances at sentencing was
unfounded. The state court of appeals disagreed, finding that trial counsel was “not
deficient on this issue” because—even if “trial counsel could have ethically requested the
psychologist to omit the specific diagnosis”—there was no evidence that Dr. Beaver
would have done so upon counsel’s request. (Id.)
Petitioner also contended that counsel was mistaken in believing that submitting a
written psychological report would allow the prosecution to conduct its own evaluation
using its own expert. The court of appeals rejected this claim as well, concluding that

MEMORANDUM DECISION AND ORDER - 37

using a psychological report in sentencing would have placed Petitioner’s mental
condition at issue, thereby “allowing the State’s expert to have access not only to the
report compiled by [Petitioner’s] expert, but also to [Petitioner] himself in order to rebut
[Petitioner’s] attestations regarding his mental condition.” (Id. at 7.) The court relied on
the Supreme Court’s decision in Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987),
which held that, if a defendant places his mental condition at issue, the prosecution is
entitled to rebut that evidence, at the very least, by referring to the defense expert’s
report. (See id. at 6-7.) Thus, the court concluded that Petitioner’s trial counsel did not
perform deficiently in choosing not to submit a written psychological report at sentencing
for purposes of mitigation.
Finally, the state court of appeals determined that, even if counsel had performed
deficiently, Petitioner could not show prejudice because the sentencing court was already
aware of Petitioner’s mental health issues:
The sentencing judge acknowledged Ciccone’s mental health
issues after reviewing the presentence investigation report
(PSI), which included evidence of Ciccone’s mental health
history, current mental status and family history of severe
mental illness. Notably, the PSI included Ciccone’s medical
records from the hospital where he had been institutionalized
for a failed suicide attempt just prior to the homicide.
Additionally, the judge reviewed numerous victim impact
letters that attested to Ciccone’s family history of mental
illness. Thus, it is unreasonable to assume that a
psychological report providing similar information that was
already available to the sentencing court would have changed
the court's sentencing determination.
(State’s Lodging E-4 at 8 (internal citation omitted).)

MEMORANDUM DECISION AND ORDER - 38

C.

The State Court’s Decision on Claim E Was Not Unreasonable

The Idaho Court of Appeals’ determination on Claim E—that trial counsel made a
reasonable strategic decision not to submit a written psychological report—was
reasonable under 28 U.S.C. § 2254(d). As for counsel’s purported belief that being a
borderline personality disorder also meant (based on counsel’s personal experience)
being controlling and abusive, the state court reasonably found that Petitioner’s counsel
did not simply stop investigating at Dr. Beaver’s comparison of Petitioner to counsel’s
ex-wife, but also conducted his own research into the disorder. This supports the state
court’s conclusion that counsel did not perform deficiently, because counsel’s reasonable
investigation appropriately governed the development of his sentencing strategy. See
Weeden, 854 F.3d at 1070.
The court of appeals also reasonably concluded that counsel’s performance was
adequate with respect to his belief that a borderline personality diagnosis in a written
report would create the potential for the State’s expert to examine Petitioner. Because
placing a defendant’s mental health at issue opens the door to rebuttal evidence by the
prosecution, it was objectively reasonable for counsel to choose to avoid that potential
pitfall. See Buchanan, 483 U.S. at 422-23; Kansas v. Cheever, 134 S. Ct. 596, 601 (2013)
(“[W]here a defense expert who has examined the defendant testifies that the defendant
lacked the requisite mental state to commit an offense, the prosecution may present
psychiatric evidence in rebuttal.”).

MEMORANDUM DECISION AND ORDER - 39

The double deference that applies when reviewing ineffective assistance claims in
habeas proceedings leaves no room for this Court to second-guess the tactical decision of
Petitioner’s counsel with the benefit of hindsight. Pinholster, 131 S. Ct. at 1403;
Strickland, 466 U.S. at 689. Thus, Petitioner has not shown that the Idaho Court of
Appeals unreasonably concluded that Petitioner’s trial counsel performed adequately.
The state appellate court also reasonably concluded that Petitioner was not
prejudiced by counsel’s decision not to submit a psychological report at sentencing. As
noted by the Idaho district court, counsel’s decision as to the psychological evidence “did
not change the outcome of the sentence, and in fact, presented a more favorable defense
for the [Petitioner] without the risk of a countervailing report by a psychologist for the
State.” (State’s Lodging E-4 at 8.)
Therefore, Petitioner is not entitled to relief on Claim E.
CONCLUSION
For the reasons set forth above, the Court will deny Petitioner’s Amended Petition
for Writ of Habeas Corpus.
ORDER
IT IS ORDERED:
1.

Respondents’ Motion for Extension of Time (Dkt. 12) is GRANTED.

2.

Petitioner’s Motion for Extension of Time (Dkt. 18) is GRANTED.

3.

The Amended Petition for Writ of Habeas Corpus (Dkt. 9) is DENIED, and
this entire action is DISMISSED with prejudice.

MEMORANDUM DECISION AND ORDER - 40

4.

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 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 29, 2017

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 41