Williams v. Ellis et al

Filing 31

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. All but one of Petitioners claims are subject to dismissal, and the remaining claimthe portion of Claim B asserting ineffective assistance of counsel related to the self-defense theoryfails on the mer its pursuant to 28 U.S.C. § 2254(d). Therefore, the Amended Petition for Writ of Habeas Corpus (Dkt. 15 ) is DISMISSED IN PART and DENIED IN PART, and this entire action is 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. Signed by Judge B. Lynn Winmill. (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

MICHAEL C. WILLIAMS,
Case No. 1:14-cv-00018-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY E. BLADES, LAWRENCE G.
WASDEN, and HENRY ATENCIO,
Respondents.

Pending before the Court is a First Amended Petition for Writ of Habeas Corpus
filed by Idaho state prisoner Michael C. Williams (“Petitioner” or “Williams”),
challenging Petitioner’s state court conviction. (Dkt. 15.) The Petition is now fully
briefed and ripe for adjudication. The Court takes judicial notice of the records from
Petitioner’s state court proceedings, which have been lodged by Respondent. (Dkt. 20.)
See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
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 (1) dismissing all but one of
Petitioner’s claims as noncognizable or procedurally defaulted and (2) denying the
remaining claim on the merits.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The following facts are taken from the decision of the Idaho Court of Appeals on
appeal from the dismissal of Petitioner’s state post-conviction petition:
Williams and his brother, Doug, exited a bar to return home.
Upon exiting, Doug entered into a dispute with some other
men, while Williams opened his pickup door and sat down
inside. After learning of the dispute, one of the men, Chris
Adams, broke a beer bottle on the ground and began to walk
towards Williams. A verbal altercation ensued, and Williams
produced a gun and shot Adams three times in the chest,
killing him.
(State’s Lodging D-6 at 1.) A jury found Petitioner guilty of voluntary manslaughter,
along with a deadly weapon sentencing enhancement, but acquitted him of first- and
second-degree murder. (State’s Lodging A-1 at 137-38.) Petitioner received a unified
sentence of 30 years in prison with 25 years fixed. (State’s Lodging D-6 at 1-2.)
Petitioner appealed, arguing that the trial court abused its discretion in sentencing
Petitioner and in denying Petitioner’s motion for reduction of sentence under Idaho
Criminal Rule 35. (State’s Lodging B-1, B-3.) The Idaho Court of Appeals affirmed, and
the Idaho Supreme Court denied review. (State’s Lodging B-4, B-7.)
Before the conclusion of his direct appeal, Petitioner filed a petition for state postconviction relief. (State’s Lodging C-1 at 8-41.) The state district court summarily
dismissed all but one of Petitioner’s claims. (State’s Lodging C-2 at 348-75.) Following
an evidentiary hearing, the court dismissed Petitioner’s remaining claim—that trial
counsel rendered ineffective assistance by failing to file a motion to suppress statements
made by Petitioner. (Id. at 420-26.)

MEMORANDUM DECISION AND ORDER - 2

Petitioner appealed the dismissal of his post-conviction petition, arguing only that
trial counsel rendered ineffective assistance by abandoning a self-defense theory,1 that
counsel’s abandonment of the self-defense theory also denied Petitioner his right to a jury
and right to a fair trial, and that the lower court did not address all of the claims in the
post-conviction petition, including a claim that the prosecution withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). (State’s Lodging D-1,
D-3.) The Idaho Court of Appeals affirmed. (State’s Lodging D-6.) Petitioner sought
review in the Idaho Supreme Court, raising only the claim that counsel was ineffective in
abandoning a self-defense theory. (State’s Lodging D-8.) The Idaho Supreme Court
denied the petition for review. (State’s Lodging D-9.)
Petitioner then filed a second Rule 35 motion in the state district court, asserting
that his consecutive sentence for the firearm enhancement was illegal. (State’s Lodging
E-2 at 8-10.) That motion was denied. (Id. at 37-43.) Petitioner appealed, contending (a)
that, under State v. Caramillo, 116 Idaho 413, 775 P.2d 1255, (Idaho Ct. App. 1989), the
sentencing judge improperly described the firearm enhancement as a consecutive
sentence, (b) that the fixed portion of his sentence exceeded the statutory maximum under
Idaho law, (c) that his due process and equal protection rights were violated, and (d) that

1

Petitioner asserted this ineffective assistance claim under both Strickland v. Washington, 466 U.S.
668 (1984), and United States v. Cronic, 466 U.S. 648 (1984). Strickland requires that the petitioner
establish both deficient performance of counsel and prejudice from that deficient performance. 466 U.S.
at 691. Under Cronic, prejudice from counsel’s performance is presumed where “counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing.” 466 U.S. at 659. The Idaho Court of
Appeals declined to address Petitioner’s Cronic argument because it had not been raised to the state
district court. (State’s Lodging D-6 at 5 n.2.)

MEMORANDUM DECISION AND ORDER - 3

he was entitled to counsel and a telephonic hearing prior to denial of the Rule 35 motion.
(State’s Lodging F-1.) The Idaho Court of Appeals affirmed, and the Idaho Supreme
Court denied review. (State’s Lodging F-4, F-7.)
In his instant federal petition, Petitioner raises numerous claims.2 Claim A asserts
that the prosecution violated Brady v. Maryland by failing to disclose a ballistics report
and “exculpatory witness statements.” (Dkt. 15 at 4.) Claim B asserts numerous subclaims. First, Claim B asserts ineffective assistance of trial counsel—under both
Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Cronic, 466 U.S.
648 (1984)—based on counsel’s alleged abandonment of a self-defense theory, including
counsel’s failure to present evidence that the victim and his companions were intoxicated.
(Id. at 6-7.) Claim B also asserts that Petitioner’s sentence is illegal—presumably as a
violation of due process—because the firearm enhancement purportedly extended the
fixed portion of Petitioner’s sentence beyond the statutory maximum penalty; Petitioner
also asserts that the enhancement penalty was improperly characterized by the sentencing
judge as a consecutive sentence.3 (Id. at 7.) Finally, Claim B appears to contend that
trial/sentencing and direct appeal counsel may have rendered ineffective assistance in
failing to raise the due process argument regarding Petitioner’s sentence. (Id. at 5-8.)

2

Although the First Amended Petition identifies only two claims—Claim A and Claim B—
multiple sub-claims are contained in Claim B, including claims of ineffective assistance of counsel and
claims challenging Petitioner’s sentence.
3

Because these sentencing portions of Claim B were inserted in the body of the petition amongst
allegations of ineffective assistance of counsel, the Court in its Initial Review Order mistakenly
overlooked them when describing Petitioner’s claims. (Dkt. 16 at 2.)

MEMORANDUM DECISION AND ORDER - 4

DISCUSSION
1.

Petitioner’s Claim that the Firearm Sentencing Enhancement Was
Mischaracterized Is Noncognizable
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). “[F]ederal habeas corpus relief does not lie for errors of state law,” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990).
Petitioner’s assertion, in Claim B, that the trial court “erred when characterizing
the sentence for the deadly weapon enhancement as ‘consecutive’ to the voluntary
manslaughter sentence” (Dkt. 15 at 7), appears to be based—as it was in state court (see
State’s Lodging D-1, D-6 at 2)—on a claim that Idaho law treats such enhancements as
part of one continuous sentence, rather than as a separate consecutive sentence. This
claim relies on a state law principle set forth in State v. Caramillo, which held that “[i]t is
well established in [Idaho] case law that, regardless of the terminology employed, a
firearm enhancement is part of a single sentence.” 775 P.2d at 1256. The state court of
appeals rejected this state-law claim, noting that Caramillo did not afford Petitioner relief
because his sentence was substantively legal, despite the sentencing court’s use of
inaccurate terminology. (State’s Lodging D-6 at 2-3.)
Because Petitioner’s claim that the firearm enhancement was mischaracterized as a
consecutive sentence relies only on state law, that claim is subject to dismissal as
noncognizable.

MEMORANDUM DECISION AND ORDER - 5

2.

All of Petitioner’s Other Claims, with the Exception of His Self-Defense
Ineffectiveness Claim under Strickland v. Washington, Are Subject to
Dismissal as Procedurally Defaulted
A.

Procedural Default Standards of Law

A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, for proper exhaustion, a petitioner must bring his federal claim before the state court
by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).
MEMORANDUM DECISION AND ORDER - 6

When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
“To qualify as an adequate procedural ground, a state rule must be firmly
established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
quotation marks omitted). That is, the state procedural bar must be one that is “‘clear,
consistently applied, and well-established at the time of the petitioner’s purported
default.” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v.
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar can be considered
adequate even if it is a discretionary rule, even though “the appropriate exercise of
discretion may permit consideration of a federal claim in some cases but not others.”
Beard v. Kindler, 558 U.S. 53, 61 (2009). A state rule’s “use of an imprecise standard . . .
is no justification for depriving a rule’s language of any meaning.” Walker, 562 U.S. at
318 (internal quotation marks and alteration omitted).

MEMORANDUM DECISION AND ORDER - 7

A state procedural bar is “independent” of federal law if it does not rest on, and if
it is not interwoven with, federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.
2003). A rule will not be deemed independent of federal law “if the state has made
application of the procedural bar depend on an antecedent ruling on federal law such as
the determination of whether federal constitutional error has been committed.” Id.
(internal quotation marks and alteration omitted); see also Ake v. Oklahoma, 470 U.S. 68,
75 (1985) (stating that “when resolution of the state procedural law question depends on a
federal constitutional ruling, the state-law prong of the court’s holding is not independent
of federal law, and our jurisdiction is not precluded,” and holding that a state waiver rule
was not independent because, “[b]efore applying the waiver doctrine to a constitutional
question, the state court must rule, either explicitly or implicitly, on the merits of the
constitutional question”).
B.

Analysis of Procedural Default

The most straightforward manner in which to resolve the exhaustion and
procedural default status of Petitioner’s federal claims is to review which claims were
raised and addressed on the merits in the state court appellate proceedings. On direct
appeal, Petitioner argued only that the trial court abused its discretion, under state law, in
sentencing Petitioner and in denying Petitioner’s first Rule 35 motion. (State’s Lodging
B-1, B-3.) Neither is a federal claim cognizable in this Court. See 28 U.S.C. § 2254(a);
Lewis, 497 U.S. at 780. Thus, Petitioner did not properly exhaust any federal claim on
direct appeal.

MEMORANDUM DECISION AND ORDER - 8

Petitioner initially raised several arguments on appeal from the dismissal of his
state post-conviction petition. However, in the petition for review to the Idaho Supreme
Court, Petitioner raised only the claim that his trial counsel was ineffective for
abandoning a self-defense theory. (State’s Lodging D-1, D-3, D-8.) Thus, he did not
fairly present his other claims. See O’Sullivan v. Boerckel, 526 U.S. at 847 (holding that,
to fairly present a claim, petitioners must include that claim in a “petition[] for
discretionary review when that review is part of the ordinary appellate review procedure
in the State”).
Moreover, with respect to the self-defense ineffectiveness claim, the Idaho Court
of Appeals held that Petitioner was barred from asserting that he was entitled to a
presumption of prejudice under Cronic because he had not raised this argument in the
lower court. (State’s Lodging D-6 at 5 n.2.) Petitioner has not established that this state
appellate rule—barring claims raised for the first time on appeal—is inadequate or is
dependent on federal law. See Martinez v. Klauser, 266 F.3d at 1093-94; Bennett, 322
F.3d at 581; see also State v. Fodge, 824 P.2d 123, 126 (Idaho 1992) (“The longstanding
rule of this Court is that we will not consider issues that are presented for the first time on
appeal.”) (quoting Sanchez v. Arave, 815 P.2d 1061, 1062 (Idaho 1991)). Therefore,
during state post-conviction proceedings, Petitioner fairly presented only his self-defense
ineffectiveness claim under Strickland.
Finally, Petitioner raised the following sentencing claims on appeal from the
denial of his second Rule 35 motion: (1) the sentencing court mischaracterized the
firearm enhancement; (2) Petitioner’s sentence exceeded the statutory maximum penalty;
MEMORANDUM DECISION AND ORDER - 9

(3) the sentence violated Petitioner’s right to due process and equal protection right; and
(4) that Petitioner was entitled to the appointment of counsel and a telephonic hearing
prior to denial of the motion. (State’s Lodging F-1, F-3.) However, the Idaho Court of
Appeals declined to address the claims—other than the mischaracterization claim, which,
as discussed above, is noncognizable—because Petitioner did not raise them in the state
district court. (State’s Lodging F-4 at 2 n.1 and 3 n.2.) As noted above, this rule is an
adequate and independent state procedural ground, and the claims that the state court
declined to address on appeal from denial of Petitioner’s second Rule 35 motion are,
therefore, procedurally defaulted.
The only federal claim that was fairly presented to the highest state court and
decided on the merits is Petitioner’s claim, under Strickland, that his trial counsel
rendered ineffective assistance by abandoning a self-defense theory and by failing to
present evidence that the victim was intoxicated. This claim will be addressed on the
merits in Section 3, below.
C.

Petitioner Has Not Established a Legal Excuse for the Default

The conclusion that most of Petitioner’s claims are procedurally defaulted does
not end the inquiry. If a claim is procedurally defaulted, a federal court can still hear the
merits of the claim if the petitioner meets one of two exceptions: (1) a showing of
adequate legal cause for the default and prejudice arising from the default, see Coleman
v. Thompson, 501 U.S. 722, 731 (1991), or (2) a showing of actual innocence, which
means that a miscarriage of justice will occur if the claim is not heard in federal court, see

MEMORANDUM DECISION AND ORDER - 10

Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986).4
Although Petitioner does not argue that cause and prejudice exist to excuse the default of
his claims, he does assert that he acted in self-defense when he killed the victim. (See
generally Dkt. 29.) Therefore, it appears that Petitioner may be attempting to assert an
actual innocence gateway argument.
Actual innocence, in context of the miscarriage of justice exception to procedural
default, “means factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998). In asserting actual innocence, a petitioner must
“support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A
procedurally defaulted claim may be heard under the miscarriage of justice exception
only if “in light of all of the evidence, ‘it is more likely than not that no reasonable juror
would have found [Petitioner] guilty beyond a reasonable doubt.’” United States v. Avery,
719 F.3d 1080, 1083 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 327). Stated another
way, it must be more likely than not that every reasonable juror would vote to acquit.
This is an extremely demanding standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old

4

Neither an assertion of cause and prejudice nor an assertion of actual innocence under Schlup is
an independent constitutional claim. Rather, these are federal procedural arguments that, if sufficiently
established by the petitioner, allow a federal court to consider the merits of an otherwise procedurallydefaulted constitutional claim.

MEMORANDUM DECISION AND ORDER - 11

and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence analysis “does not turn on discrete findings regarding disputed points of fact,
and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must “make a
probabilistic determination about what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329.
Petitioner has submitted no new, credible evidence to support his claim of actual
innocence. Therefore, he has not satisfied the strict standard for application of the
miscarriage of justice exception, and he is not excused from procedural default.
The Court will now address the merits of the remaining claim—that Petitioner’s
trial counsel was ineffective, under Strickland, based on counsel’s alleged abandonment
of a self-defense theory, including counsel’s failure to present evidence of the victim’s
intoxication.
3.

Petitioner Is Not Entitled to Habeas Relief on His Claim that Trial Counsel
Rendered Ineffective Assistance by Abandoning a Self-Defense Theory
A.

Standard of Law for Review on the Merits

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

MEMORANDUM DECISION AND ORDER - 12

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”—here, the decision of the
Idaho Court of Appeals on appeal from the dismissal of Petitioner’s state post-conviction
petition. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state

MEMORANDUM DECISION AND ORDER - 13

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
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).

MEMORANDUM DECISION AND ORDER - 14

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
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).
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

MEMORANDUM DECISION AND ORDER - 15

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
incorrect but whether that determination was unreasonable—a substantially higher
threshold.”).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of a claim was contrary to, or an unreasonable application of Supreme Court
law 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.5 Hurles v. Ryan, 752
F.3d 768, 778 (9th Cir. 2014). When considering a petitioner’s habeas claim de novo, a
district court may, as in the pre-AEDPA era, draw from both United States Supreme
Court and well as circuit precedent, limited only by the non-retroactivity rule of Teague
v. Lane, 489 U.S. 288 (1989). Even under de novo review, however, if the factual

5

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 - 16

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 v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002). 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, 745 F.3d at 1000.
B.

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 of counsel 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 claim. Id. at 697. On habeas review, the 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:

MEMORANDUM DECISION AND ORDER - 17

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
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, “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.
MEMORANDUM DECISION AND ORDER - 18

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. Duhaime, 200 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:
MEMORANDUM DECISION AND ORDER - 19

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
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.
MEMORANDUM DECISION AND ORDER - 20

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
is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (internal quotation
marks omitted).
C.

The Decision of the Idaho Court of Appeals Was Not Contrary to, or an
Unreasonable Application of, Clearly-Established Federal Law, Nor Was
It Based on an Unreasonable Determination of the Facts

Petitioner claims that his trial counsel abandoned the self-defense theory and
presented only a defense that Petitioner committed manslaughter rather than murder.
Petitioner also specifically claims that counsel should have “present[ed] a readily
available toxicology report,” establishing that the victim’s blood alcohol content was 249
mg/dL (nearly 0.25%), as well as other evidence that the victim’s companions were also
intoxicated. (Dkt. 15 at 7.)
The state district court determined during post-conviction proceedings that counsel
abandoned a self-defense theory to focus on “defeat[ing] the charges of first and second
degree murder, which she did successively.” (State’s Lodging C-1 at 367.) The lower
post-conviction court determined that this decision was reasonable, based on Petitioner’s
statement to police that he was not afraid of the victim. (Id.)
However, on appeal, the Idaho Court of Appeals determined, as a mixed question
of law and fact, that Petitioner’s trial counsel did not abandon the self-defense theory.
(State’s Lodging D-6 at 6-8.) The court relied on the following from the trial record:
During opening statements, defense counsel discussed certain
facts that could potentially establish the elements of selfMEMORANDUM DECISION AND ORDER - 21

defense. These facts included: the victim made threatening
statements; the victim was within wingspan of Williams’
vehicle; and the victim grabbed and scratched Williams’
neck. During cross-examination, defense counsel elicited
testimony related to self-defense, including that the victim
and his friends followed the Williams brothers “with the
intent of kicking their asses”; that the victim was so close to
the vehicle that Williams could not shut the door; that
Williams might have told the victim, “[y]ou got the wrong
guy”; and that Williams told one of the officers that he felt
threatened when he heard someone shout, “get your gun.” On
direct examination, defense counsel elicited testimony from
Williams that the victim threatened to kill him; that he was in
fear of death and great bodily harm; that he told the victim
“you’ve got the wrong guy, please stop”; that the victim said
“I’ve got something for you,” and lunged towards him; and
that even after he was shot, the victim grabbed Williams by
the collar.
The district court gave a self-defense instruction.
During closing statements, the prosecutor went through the
self-defense instruction and told the jury that Williams did not
act in self-defense. Defense counsel did not reread the selfdefense instruction during her closing statement, but did
discuss with the jury that certain of the elements of selfdefense were satisfied, but it was for the jury to determine
whether Williams’ actions were reasonable under the
circumstances. Williams specifically argues on appeal that
counsel’s failure to tell the jury why Williams’ actions were
reasonable was deficient performance. However, defense
counsel argued several times during her closing statement that
Williams defended himself: “[u]nfortunately, [victim] did get
someone who could defend themselves”; “[y]ou’ve got an
individual that’s approaching another individual threatening
to kill him, and another man taking out a weapon to protect
himself”; “[d]o I run the risk of receiving serious bodily
injury or maybe even death for myself, or do I defend myself
like is [sic] my right under the law”; “[b]ut you put yourself
in Mr. Williams’ situation, and can you say beyond a
reasonable doubt that what Mr. Williams did that day in
defending himself was wrong? I don’t think you can do that.”
These arguments have no direct bearing on voluntary
manslaughter, which Williams asserts counsel was admitting.
MEMORANDUM DECISION AND ORDER - 22

. . . . During her opening statement, defense counsel
argued that “the State has not met its burden with regard to
first-degree murder.” Contrary to Williams’ claim, this
statement is not a concession of guilt. Opening statements
serve to inform the jury of the issues of the case and briefly
outline the evidence each litigant intends to introduce to
support his or her allegations or defenses, as the case may be.
Defense counsel’s statement was not a concession of
Williams’ guilt to voluntary manslaughter or an abandonment
of self-defense, but was simply a statement to inform the jury
that the State would be unable to prove that which it sought to
prove. During her closing statement, defense counsel argued
that Williams’ actions were in the “heat of passion and a
sudden quarrel,” which do relate to manslaughter.
Nevertheless, she also argued self-defense as noted above. As
defense counsel’s statements do not expressly concede guilt
to voluntary manslaughter, and as the record demonstrates
that self-defense was in play throughout the trial, Williams’
assertion that self-defense was not presented is incorrect.
(Id. at 6-7 (alterations in original) (internal citations omitted).)
In addition to the abandonment determination, the court of appeals also addressed
Petitioner’s argument that trial counsel should have presented evidence of the victim’s
intoxication. The court rejected this assertion, stating that Petitioner had provided “no
evidence, in the form of expert opinion or otherwise, to support his claim” that the
victim’s alleged “aggression and dangerous behaviors could have been magnified by his
intoxication level” or that the victim “continued to walk towards [Petitioner] after being
shot the first and second time.” (Id. at 8 (emphasis omitted).) This appears to be a
determination that Petitioner had not shown prejudice from his counsel’s failure to
present the intoxication evidence.
The Idaho Court of Appeals’ conclusion that trial counsel did not abandon the
self-defense theory is supported by the record and is objectively reasonable. Trial counsel
MEMORANDUM DECISION AND ORDER - 23

emphasized the victim’s actions in provoking Petitioner’s response and explicitly referred
to Petitioner’s right to defend himself. Counsel presented evidence that (1) Petitioner
reasonably acted in self-defense, and (2) even if he did not reasonably act in self-defense,
he did not commit murder. These are objectively reasonable alternative arguments for an
attorney to make. The Idaho Court of Appeals’ determination that the self-defense theory
was “in play” throughout the trial was not unreasonable under either § 2254(d)(1) or
(d)(2).
Additionally, the state court’s legal conclusion that Petitioner had not established
prejudice from counsel’s failure to present evidence of the victim’s intoxication is not
contrary to, or an unreasonable application of, clearly-established Supreme Court
precedent under 28 U.S.C. § 2254(d)(1). The question regarding self-defense was
whether Petitioner’s actions in defending himself were reasonable. That the victim might
have been highly intoxicated does not strongly bolster Petitioner’s self-defense claim. It
is not necessarily the case that an intoxicated victim would transform an otherwise
unreasonable action into a reasonable one, and Petitioner has not established a reasonable
probability that, had counsel presented evidence of intoxication, Petitioner would have
been acquitted of manslaughter. Therefore, the Idaho Court of Appeals determination was
objectively reasonable, and Petitioner is not entitled to habeas relief.
CONCLUSION
Petitioner’s claim regarding the mischaracterization of the firearm enhancement is
based on state law and, therefore, is not cognizable. Petitioner’s claim that trial counsel

MEMORANDUM DECISION AND ORDER - 24

rendered ineffective assistance in abandoning a self-defense theory fails on the merits,
and Petitioner’s remaining claims are procedurally defaulted.
ORDER
IT IS ORDERED:
1.

All but one of Petitioner’s claims are subject to dismissal, and the
remaining claim—the portion of Claim B asserting ineffective assistance of
counsel related to the self-defense theory—fails on the merits pursuant to
28 U.S.C. § 2254(d). Therefore, the Amended Petition for Writ of Habeas
Corpus (Dkt. 15) is DISMISSED IN PART and DENIED IN PART, and
this entire action is 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 wishes to appeal, he must file a timely notice of appeal with the
Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.

DATED: August 28, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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