Ramirez v. Ramirez
Filing
39
MEMORANDUM DECISION & ORDER Respondent's Motion for Summary Dismissal (Dkt. 34 ) is GRANTED, and the Amended Petition is DISMISSED with prejudice. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RAMIRO RAMIREZ,
Case No. 1:14-cv-00157-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
A. RAMIREZ,
Respondent.
Pending before the Court is Petitioner Ramiro Ramirez’s Amended Petition for
Writ of Habeas Corpus. (Dkt. 29.) Respondent has filed a second Motion for Summary
Dismissal,1 arguing that all of Petitioner’s claims are noncognizable or procedurally
1
Respondent previously filed a motion for summary dismissal, but later moved to stay the
proceedings while Petitioner exhausted claims in state court. The Court stayed the case, mooted
Respondent’s initial motion for summary dismissal, and lifted the stay once Petitioner’s state court
proceedings were concluded. (Dkt. 19, 20, 25.)
MEMORANDUM DECISION AND ORDER - 1
defaulted. (Dkt. 34.) Petitioner has filed a response to the Motion, and Respondent has
filed a reply. (Dkt. 36, 37.)
The 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). (Dkt. 14.)
Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting Respondent’s Motion and
dismissing this case with prejudice.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
Ramirez v. State, Case No. 41341, Op. 401 (Idaho Ct. App. March 3, 2014)
(unpublished), which is contained in the record at State’s Lodging D-4. The facts will not
be repeated here except as necessary to explain the Court’s decision.
Petitioner (along with a co-defendant) was convicted by a jury in the Fifth Judicial
District in Jerome County, Idaho, of burglary. (State’s Lodging B-4 at 1.) The trial court
sentenced Petitioner to ten years in prison with five years fixed, but retained jurisdiction.
(Id.)
After the period of retained jurisdiction, the trial court suspended Petitioner’s
sentence and placed him on probation. Petitioner’s probation later was revoked and the
court ordered the execution of Petitioner’s underlying sentence. (Id. at 2.) Petitioner
appealed, arguing that (1) the trial court erred in denying Petitioner’s motion for a
MEMORANDUM DECISION AND ORDER - 2
mistrial after a police officer testified as to prior bad acts of Petitioner that had been
excluded under Idaho Rule of Evidence 404(b), (2) Petitioner’s sentence was excessive,
and (3) the trial court abused its discretion in revoking probation. (State’s Lodging B-1.)
The Idaho Court of Appeals affirmed Petitioner’s conviction and sentence, and the Idaho
Supreme Court denied review.2 (State’s Lodging B-4; B-6.)
Petitioner then filed a petition for state postconviction relief, raising two claims.
First, Petitioner argued that the evidence was insufficient to convict him. Second,
Petitioner claimed that his direct appeal counsel rendered ineffective assistance by failing
to challenge the following issues on appeal: (1) sufficiency of the evidence; (2) denial of
Petitioner’s motion for an acquittal; (3) denial of Petitioner’s motion to suppress witness
identifications3 based on suggestive police procedures; and (4) denial of Petitioner’s
motion to sever his trial from that of Petitioner’s co-defendant. (State’s Lodging C-1 at 35, 101-15.) The state district court denied Petitioner’s request for counsel and summarily
dismissed the petition. (Id. at 117-28.)
On appeal from the dismissal of his postconviction petition, Petitioner argued (1)
that the trial court erred by failing to appoint counsel during the postconviction
proceedings, and (2) that the trial court erred by summarily dismissing the petition.
The conviction of Petitioner’s co-defendant was vacated on direct appeal because, while
testifying, a police officer improperly commented on the co-defendant’s pre-Miranda silence, see
Miranda v. Arizona, 384 U.S. 4365 (1966). (State’s Lodging G-1.)
2
The witnesses did not actually “identify” Petitioner. Rather, they stated that Petitioner and his codefendant were “similar in height and build to the men” who committed the burglary and that a sweatshirt
found in the vehicle occupied by Petitioner and his co-defendant was “the same as that worn by one of the
perpetrators.” (State’s Lodging G-1 at 2.) However, for the sake of continuity, the Court uses Petitioner’s
term, “identification,” to refer to the witnesses’ statements.
3
MEMORANDUM DECISION AND ORDER - 3
(State’s Lodging D-1.) In his second argument, though Petitioner generally “assert[ed]
that the court should not have dismissed any claim without first appointing counsel, he
directly challenge[d] only the dismissal of the claim regarding [appellate counsel’s failure
to appeal the denial of] the motion to suppress.” (Id. at 9.)
The Idaho Court of Appeals affirmed the district court’s dismissal of the
postconviction petition, concluding that Petitioner had not shown the possibility of a
valid ineffectiveness claim based on the denial of Petitioner’s motion to suppress the outof-court identifications. (State’s Lodging D-4 at 5.) Petitioner had not included in the
record any of the documents in the criminal case that would allow the appellate court to
review the district court’s denial of the motion to suppress. Specifically, Petitioner had
not presented the court of appeals with the “transcripts of the suppression hearing[,] other
evidence presented on the suppression motion[,] [or] the criminal court’s memorandum
decision explaining its reasons for denying the suppression motion.” (Id. at 6.) Therefore,
the Idaho Court of Appeals could not “review the post-conviction court’s decision in the
absence of the evidence on which the post-conviction court based its ruling.” (Id.) The
court declined to consider Petitioner’s argument that the circumstances surrounding the
witnesses’ out-of-court identifications were unduly suggestive, because Petitioner cited
“absolutely no authority to support this proposition.” (Id.) The Idaho Supreme Court
denied review. (State’s Lodging D-7.)
Petitioner later filed a successive petition for postconviction relief in state court,
alleging that his initial postconviction appellate counsel rendered ineffective assistance in
failing to argue that the trial court erred in allowing testimony regarding Petitioner’s coMEMORANDUM DECISION AND ORDER - 4
defendant’s pre-Miranda refusal to speak with police. (State’s Lodging E-1 at 3-6.) After
the state district court issued a notice of intent to dismiss (id. at 21-28), Petitioner
responded that instead of asserting ineffective assistance of postconviction appellate
counsel, he intended to “correct” his successive petition to assert ineffective assistance of
direct appeal counsel. (Id. at 30-32.)
The court construed Petitioner’s response to the notice of intent to dismiss as a
request to amend the petition to assert ineffective assistance of direct appeal counsel. The
court denied the request and then dismissed the petition because Petitioner had not shown
a “sufficient reason” why the claim was not asserted in the initial postconviction
petition.4 (Id. at 37-39.)
On appeal from the denial of Petitioner’s successive postconviction petition,
Petitioner argued that (1) he should have been appointed counsel during the successive
postconviction proceedings, (2) the district court improperly dismissed the petition
without a responsive pleading or motion by the state, and (3) Petitioner did not have a
meaningful opportunity to present his postconviction claims because he was not
appointed counsel in his initial or successive postconviction proceedings. (State’s
4
Although the state district court initially discussed the standards for equitable tolling—thereby
appearing to consider whether the successive petition was untimely—it later clearly held that the
dismissal was based on Petitioner’s failure to articulate a sufficient reason why the claims were not
included in the initial petition. Compare Idaho Code § 19-4902(a) (“An application may be filed at any
time within one (1) year from the expiration of the time for appeal or from the determination of an appeal
. . . .”) with Idaho Code § 19-4908 (“All grounds for relief available to an applicant under this act must be
raised in his original . . . application. Any ground finally adjudicated or not so raised . . . may not be the
basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient
reason was not asserted or was inadequately raised in the original, supplemental, or amended
application.” (emphasis added)).
MEMORANDUM DECISION AND ORDER - 5
Lodging F-1.) The Idaho Court of Appeals affirmed the dismissal of the successive
petition, and the Idaho Supreme Court denied review. (State’s Lodging F-4 & F-7.)
In the instant amended federal habeas corpus petition, Petitioner asserts the
following claims:
Claim 1:
Ineffective assistance of direct appeal counsel, in
violation of the Sixth Amendment, based on counsel’s
alleged failure to present on appeal the following
issues: (a) insufficiency of the evidence; (b) the denial
of Petitioner’s motion for acquittal; (c) denial of
Petitioner’s motion to sever the trials of Petitioner and
his co-defendant; and (d) denial of Petitioner’s motion
to suppress witness identifications.
Claim 2:
Fourth and Fourteenth Amendment violations based on
the trial court’s denial of Petitioner’s motion to
suppress witness identifications that were made under
allegedly suggestive circumstances. Specifically,
Petitioner states that when the witness viewed
Petitioner at a “show up,” he was in handcuffs and in a
spotlight.
Claim 3:
Insufficiency of the evidence, in violation of the Due
Process Clause of the Fourteenth Amendment.
Claim 4:
Ineffective assistance of trial and direct appeal counsel
based on counsel’s alleged failure to (a) raise a
Confrontation Clause and hearsay objection to an
officer’s testimony of a co-defendant’s statements that
incriminated Petitioner, or (b) challenge the admission
of testimony that Petitioner’s co-defendant refused to
speak with police.
(Am. Pet., Dkt. 29, at 6-11.)
MEMORANDUM DECISION AND ORDER - 6
DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily
dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” The Court may also take judicial notice of relevant state court records in
determining whether to dismiss a petition.5 Fed. R. Evid. 201(b); Dawson v Mahoney,
451 F.3d 550, 551 (9th Cir. 2006). Where appropriate, a respondent may file a motion for
summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir.
1989).
1.
Fourth Amendment Claim and Stone v. Powell
In Claim 2 of the Amended Petition, Petitioner asserts that the trial court erred in
denying his motion to suppress witness identifications, made under allegedly suggestive
circumstances, in violation of the Fourth Amendment, which is applicable to the states
through the Fourteenth Amendment. However, Fourth Amendment claims generally are
not cognizable in federal habeas corpus proceedings. Stone v. Powell, 428 U.S. 465
(1976).
In Stone, the United States Supreme Court held that, so long as the state provided
the petitioner an opportunity for full and fair litigation of his Fourth Amendment claim in
state court, a federal court may not grant habeas corpus relief on the ground that evidence
was obtained in violation of the Fourth Amendment. Id. at 494. The Stone rule is based
The Court takes judicial notice of the records from Petitioner’s state court proceedings, which
have been lodged by Respondent. (Dkt. 15, 33, 38.)
5
MEMORANDUM DECISION AND ORDER - 7
on the principle that the exclusionary rule is “not a personal constitutional right” but is
instead a practical way to deter police conduct that violates the Fourth Amendment. Id. at
486. The social costs of the exclusionary rule are heavy: the rule “deflects the
truthfinding process and often frees the guilty.” Id. at 490. On collateral review of a
criminal conviction, “the contribution of the exclusionary rule, if any, to the effectuation
of the Fourth Amendment is minimal, and the substantial societal costs of application of
the rule persist with special force.” Id. at 494-95.
To determine whether a petitioner had a full and fair opportunity to challenge his
Fourth Amendment claim in state court, a federal district court “inquire[s] into the
adequacy and fairness of available state court procedures for the adjudication of Fourth
Amendment claims.” Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001). If the Court
determines that the state court procedures are adequate, the inquiry ends there. Id. at 8-9.
That is, “[s]o long as a state prisoner has had an opportunity to litigate his Fourth
Amendment claims by means of such a set of procedures, a federal habeas court lacks the
authority, under Stone, to second-guess the accuracy of the state court’s resolution of
those claims.” Id. at 9. Stated another way, “[t]he relevant inquiry is whether petitioner
had the opportunity to litigate his claim, not whether he did in fact do so or even whether
the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.
1996). Petitioner bears the burden of establishing that the state courts did not consider his
Fourth Amendment claim fully and fairly. Mack v. Cupp, 564 F.2d 898, 901 (9th Cir.
1977).
MEMORANDUM DECISION AND ORDER - 8
Here, Petitioner’s trial counsel asserted a Fourth Amendment violation and moved
to suppress the identifications, and Petitioner could have raised the denial of that motion
on appeal. Therefore, Petitioner had a full and fair opportunity to litigate his Fourth
Amendment claim in state court, and Stone v. Powell bars this Court’s consideration of
that claim.
2.
Procedural Default
Respondent also argues that all of Petitioner’s claims are procedurally defaulted.
For the reasons that follow, the Court agrees.
A.
Procedural Default Standard 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,
MEMORANDUM DECISION AND ORDER - 9
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, for proper exhaustion, a petitioner must bring his federal claim before the state court
by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
To be an “adequate” state ground, a procedural bar must be one that is “‘clear,
consistently applied, and well-established at the time of the petitioner’s purported
default.” Martinez v. Klauser, 266 F.3d 1091, 1093 (9th Cir. 2001) (quoting Wells v.
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is “independent” of
MEMORANDUM DECISION AND ORDER - 10
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).
B.
Petitioners’ Claims Are Procedurally Defaulted
The simplest 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, the Idaho Court of Appeals denied, on the merits, all of
Petitioner’s claims—(1) that the trial court should have granted Petitioner’s motion for a
mistrial based on an officer’s testimony regarding excluded evidence of prior bad acts,
(2) that Petitioner received an excessive sentence, and (3) that the trial court should not
have revoked Petitioner’s probation. (State’s Lodging B-1.) However, Petitioner asserts
none of these claims in the Amended Petition.6
On appeal from the denial of Petitioner’s initial postconviction petition, the court
of appeals addressed only one claim on the merits: that Petitioner should have been
granted postconviction counsel. This claim is neither asserted in the Amended Petition
nor cognizable in federal court. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989)
(per curiam) (holding that claims of error during state postconviction proceedings are not
cognizable on federal habeas review).
Petitioner also argued during his initial postconviction appeal that direct appeal
counsel was ineffective for failing to challenge the trial court’s denial of the motion to
6
The Court notes that Petitioner could not prevail on any of these claims in any event, as they were
presented as state law claims, which are not cognizable on federal habeas review. See Lewis v. Jeffers,
497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”).
MEMORANDUM DECISION AND ORDER - 11
suppress; this argument corresponds to Claim 1(d) of the Amended Petition. However,
the Idaho Court of Appeals declined to address the claim on the merits, concluding that
Petitioner had failed to present “transcripts of the suppression hearing [or] other evidence
presented on the suppression motion”; therefore, Petitioner had not provided “a sufficient
record to substantiate his . . . claims of error on appeal.” (State’s Lodging D-4 at 5-6.)
In holding that Claim 1(d) was procedurally barred because of Petitioner’s failure
to provide an adequate record on appeal, the court of appeals relied on two Idaho state
cases: State v. Murinko, 702 P.2d 910, 911 (Idaho Ct. App. 1985); and State v. Beason,
803 P.2d 1009, 1011 (Idaho Ct. App. 1991), both of which held that the appellant “bears
the burden of establishing a record, and presenting it on appeal, to substantiate his claims
or contentions before the appellate court.” These cases had been decided long before
Petitioner took his appeal from the denial of his initial postconviction petition, and
Petitioner has not submitted any evidence to suggest that this procedural rule was not
“clear, consistently applied, and well-established” at the time of Petitioner’s procedural
default. See Martinez v. Klauser, 266 F.3d at 1093 (internal quotation marks omitted).
Nor has Petitioner established that the rule requiring an appellant to present a sufficient
record on appeal is dependent on federal law. See Bennett, 322 F.3d at 581. Therefore,
Claim 1(d) is procedurally defaulted because the Idaho Court of Appeals declined to
address it based on an adequate and independent state procedural ground.
Moreover, Petitioner did not fairly present his claim that the circumstances
surrounding the witnesses’ out-of-court identifications were unduly suggestive, because
he did not support that claim with argument or authority. In declining to address the
MEMORANDUM DECISION AND ORDER - 12
claim, the Idaho Court of Appeals cited State v. Zichko, 923 P.2d 966, 970 (Idaho 1996).
The Ninth Circuit has previously held that Zichko established an adequate and
independent state procedural rule. Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001).
Therefore, Petitioner’s claims that were raised during his initial postconviction appeal are
procedurally defaulted.
Finally, all of the claims raised by Petitioner on appeal from the dismissal of his
successive postconviction petition are procedurally defaulted because Petitioner had not
established a “sufficient reason,” under Idaho Code § 19-4908, why the claims were not
included in the initial state postconviction petition. Petitioner has not established that §
19-4908 is inadequate or dependent upon federal law. Therefore, Petitioner did not fairly
present any claims raised during his successive postconviction proceedings.
For the reasons set forth above, all of Petitioner’s claims are procedurally
defaulted.
C.
Petitioner Has Not Established an Excuse for His Default
The Court’s conclusion that 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
Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986).
Neither an assertion of cause and prejudice nor an assertion of actual innocence under
MEMORANDUM DECISION AND ORDER - 13
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 procedurally-defaulted constitutional claim.
Although Petitioner does not assert that he is actually innocent, he does appear to
argue that Claim 4(b)—ineffective assistance of counsel based on testimony that his codefendant refused to speak with police—is excused from procedural default because the
state court’s failure to appoint him counsel during his postconviction proceedings
constitutes cause and prejudice. (Dkt. 36.) This is an argument based on Martinez v.
Ryan, 132 S. Ct. 1309 (2012), in which the Supreme Court held that ineffective assistance
of postconviction review counsel, or lack of initial postconviction counsel, can excuse the
procedural default of an underlying claim of ineffective assistance of counsel (“IAC”).
Petitioner does not argue that the default of any other claim is excused.
i.
Cause and Prejudice Standard of Law
To show “cause” for a procedural default, a petitioner must ordinarily
demonstrate that some objective factor external to the defense impeded his or his
counsel’s efforts to comply with the state procedural rule at issue. Murray, 477 U.S. at
488. To show “prejudice,” a petitioner generally bears “the burden of showing not merely
that the errors [in his proceeding] constituted a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire [proceeding] with
errors of constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
However, Martinez v. Ryan, 132 S. Ct. 1309 (2012), worked a “remarkable”
equitable change in the law governing procedurally defaulted ineffective assistance of
MEMORANDUM DECISION AND ORDER - 14
counsel claims, Lopez v Ryan, 678 F.3d 1131, 1136 (9th Cir. 2012). Martinez altered the
long-standing prohibition of Coleman v. Thompson, 501 U.S. 722 (1991), that ineffective
assistance of postconviction review counsel (or lack of counsel during postconviction
proceedings) could not be used to excuse the procedural default of a constitutional claim.
In effect, Martinez created the potential for an exception to the overall ban on new
evidence in § 2254 actions that was pronounced in Cullen v. Pinholster, 131 S. Ct. 1388
(2011) (interpreting the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)). Martinez makes it possible for procedurally defaulted ineffective assistance
of trial counsel claims to be heard de novo, with new supporting evidence, on federal
habeas corpus review. See Dickens v. Ryan, 740 F.3d at 1320 (“We reject any argument
that Pinholster bars the federal district court’s ability to consider Dickens’s ‘new’ IAC
claim. . . . Pinholster says nothing about whether a court may consider a ‘new’ claim,
based on ‘new’ evidence not previously presented to the state courts.”). The Ninth Circuit
has concluded that the Martinez exception—which addressed underlying claims of
ineffective assistance of trial counsel can also apply to claims of ineffective assistance of
direct appeal counsel. Ha Van Nguyen v. Curry, 736 F.3d 1287, 1293-94 (9th Cir. 2013).
The Martinez exception applies only to claims that are exhausted and procedurally
defaulted.
In Trevino v. Thaler, the Supreme Court described and clarified the Martinez
cause and prejudice test as consisting of four necessary prongs: (1) the underlying claim
of ineffective assistance of counsel must be a “substantial” claim; (2) the “cause” for the
procedural default consists of there being “no counsel” or only “ineffective” counsel
MEMORANDUM DECISION AND ORDER - 15
during the state collateral review proceeding; (3) the state collateral review proceeding
was the “initial” collateral review proceeding where the ineffective assistance of trial
counsel claim could have been brought; and (4) state law requires that an ineffective
assistance of counsel claim be raised in an initial-review collateral proceeding, or by
“design and operation” such claims must be raised that way, rather than on direct appeal.
133 S. Ct. 1911, 1918, 1921 (2013). The failure to meet any of these four prongs means
that the Martinez exception is unavailable to excuse the procedural default of an
underlying IAC claim. See Martinez, 132 S. Ct. at 1319.
To be entitled to application of the Martinez exception, a petitioner must first
bring forward facts demonstrating that his ineffective assistance of counsel claim is
substantial. The United States Supreme Court has defined “substantial” as a claim that
“has some merit.” Martinez, 132 S. Ct. at 1318 (comparing the standard for certificates of
appealability from Miller-El v. Cockrell, 537 U.S. 322 (2003)). Stated inversely, a claim
is “insubstantial” if “it does not have any merit or . . . is wholly without factual support.”
Id. at 1319.
Determining whether an IAC claim is substantial requires a federal court to
examine the claim under Strickland v. Washington, 466 U.S. 668 (1984). A petitioner
asserting ineffective assistance of counsel under Strickland 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) counsel’s errors “deprive[d] the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687.
MEMORANDUM DECISION AND ORDER - 16
Under the first Strickland prong, 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
second-guess 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 or which witnesses or other
evidence to present, “are virtually unchallengeable” if “made after thorough investigation
of law and facts relevant to plausible options.” Id. at 690. Moreover, an attorney who
decides not to investigate a particular theory or issue in the case is not ineffective so long
as the decision to forego investigation is itself objectively reasonable. Id. at 690-91.
If a petitioner shows that counsel’s performance was deficient, the next step in the
Strickland inquiry is the prejudice analysis. “An error by counsel, even if professionally
MEMORANDUM DECISION AND ORDER - 17
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Id. 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.
A “reasonable probability” is defined as a “probability sufficient to undermine
confidence in the outcome.” Id. As the Strickland Court instructed:
In making [the prejudice] 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.
These standards from Strickland for determining deficient performance and
prejudice are, of course, the standards for an eventual review of the merits of the
underlying IAC claim. The question whether an IAC claim is substantial under Martinez
is not the same as a merits review; rather, it is more akin to a preliminary review of a
Strickland claim for purposes of determining whether a certificate of appealability should
issue. See Martinez, 132 S. Ct. at 1318-19. Therefore, a court may conclude that a claim
MEMORANDUM DECISION AND ORDER - 18
is substantial when a petitioner has shown that resolution of the merits of the Strickland
claim would be “debatable amongst jurists of reason” or that the issues presented are
“adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336
(internal quotation marks omitted). Thus, to determine whether a claim is substantial,
Martinez requires the district court to review but not determine whether trial or appellate
counsel’s acts or omissions resulted in deficient performance and in a reasonable
probability of prejudice, and to determine only whether resolution of the merits of the
IAC claim would be debatable among jurists of reason and whether the issues are
deserving enough to encourage further pursuit of them.
ii.
Petitioner Has Not Shown Cause and Prejudice to Excuse the
Procedural Default of Claim 4(b), because that Claim is Not
Substantial under Martinez
In Claim 4(b), Petitioner alleges that his trial counsel rendered ineffective
assistance in failing to object to a police officer’s testimony that Petitioner’s co-defendant
invoked his right to remain silent and refused to speak to the police, and that Petitioner’s
direct appeal counsel rendered ineffective assistance in failing to raise this issue on
appeal.
Petitioner’s co-defendant, Garrett A. Digiallonardo, challenged on appeal the
police officer’s testimony that Digiallonardo refused to speak with police. The Idaho
Court of Appeals reversed Digiallonardo’s conviction, concluding that the officer’s
comment was inadmissible because it violated Digiallonardo’s Fifth Amendment right to
be free from self-incrimination and that the error was not harmless. (State’s Lodging G-
MEMORANDUM DECISION AND ORDER - 19
1.) Petitioner relies on the fact that Digiallonardo obtained relief on his Fifth Amendment
claim to argue that Petitioner also should obtain relief.
The Fifth Amendment right against self-incrimination prohibits the admission, in
the government’s case-in-chief, of evidence of a criminal defendant’s post-arrest, preMiranda silence. United States v. Velarde-Gomez, 269 F.3d 1023, 1029-30 (9th Cir.
2001). Petitioner’s claim is insubstantial because the officer commented only on
Digiallonardo’s silence; the testimony clearly had nothing to do with Petitioner himself.
Therefore, trial counsel did not perform deficiently in failing to object to the officer’s
testimony on Fifth Amendment grounds, and direct appeal counsel did not perform
deficiently in failing to raise the issue on appeal. Claim 4(b) “does not have any merit.”
Martinez v. Ryan, 132 S. Ct. at 1319.
CONCLUSION
Claim 2 is noncognizable, and all of Petitioner’s claims are procedurally defaulted.
Because Petitioner has not established cause and prejudice to excuse the procedural
default of his habeas claims, the Court will dismiss this case with prejudice.
ORDER
IT IS ORDERED:
1.
Respondent’s Motion for Summary Dismissal (Dkt. 34) is GRANTED, and
the Amended Petition 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
MEMORANDUM DECISION AND ORDER - 20
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: April 22, 2016
Honorable Candy W. Dale
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 21
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