Cadue v. Ellis

Filing 35

MEMORANDUM DECISION AND ORDER Petitioner's request for appointment of counsel (Dkt. 31-2) is DENIED. Respondent's Motion for Extension of Time (Dkt. 32 ) is GRANTED. Respondents Reply in Support of the Motion for Summary Dismissal (Dkt. 34 ) is deemed timely. Respondent's Motion for Summary Dismissal (Dkt. 25 ) is GRANTED, and the Petition is DISMISSED with prejudice. Signed by Judge Candy W. Dale. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PERRY W. CADUE,
Case No. 1:14-cv-00177-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
JASON ELLIS, Warden,
Respondent.

Pending before the Court is Petitioner Perry W. Cadue’s Petition for Writ of
Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal,
contending that Petitioner’s claims are procedurally defaulted, and the motion is now ripe
for adjudication. (Dkt. 25, 31, 34.) Additionally, Petitioner has asked the Court to
reconsider its previous denial of his request for appointment of counsel.
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. 17.)
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 not necessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order denying Petitioner’s Motion to

MEMORANDUM DECISION AND ORDER - 1

Reconsider the denial of his request for appointment of counsel, granting Respondent’s
Motion for Summary Dismissal, and dismissing this case with prejudice.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
Cadue v. State, Case No. 40286, Op. 352 (Idaho Ct. App. Feb. 6, 2014) (unpublished),
which is contained in the record at State’s Lodging D-7. The facts will not be repeated
here except as necessary to explain the Court’s decision.
Petitioner was convicted by a jury in the Fifth Judicial District in Twin Falls
County, Idaho, of aggravated battery stemming from a fight in which the victim was
“severely and permanently injured.” (State’s Lodging A-1 at 181; A-2 at 255-59, 413-17;
D-7 at 1.) He was sentenced to fifteen years in prison with ten years fixed. (Id. at 415.)
Petitioner’s motion for reduction of sentence, filed pursuant to Idaho Criminal Rule 35,
was denied. (State’s Lodging A-2 at 270-72, 419-26.) Petitioner filed a direct appeal,
arguing that his sentence was excessive under Idaho law. (State’s Lodging B-1.) The
Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s
Lodging B-4; B-6.)
Petitioner then filed a state postconviction petition, alleging multiple claims of
ineffective assistance of counsel. (State’s Lodging C-1 at 4-23.) Petitioner was appointed
counsel, and, after a hearing on the state’s motion to dismiss, the trial court dismissed the
postconviction petition. (State’s Lodging C-1 at 99-100, 267-73.) Petitioner appealed the
dismissal, raising three issues: (1) “Whether the district court [erred] in granting motion
for summary disposition [and] improperly decided disputed factual issues”; (2) “whether
MEMORANDUM DECISION AND ORDER - 2

[Petitioner’s] factual allegations of ineffective assistance of trial counsel, due process,
raised a material issue under the Sixth and Fourteenth Amendment”; and (3) “whether
conflict counsel that was appointed to represent [Petitioner’s] postconviction petition was
ineffective to proceed with only (30) days to vigorous [sic] advocate, defend, [and]
litigate by establishing the facts and events of his individual claim(s).” (State’s Lodging
D-3 at 3.)
Within the context of these three general issues, Petitioner’s appellate briefing
specifically argued that trial counsel did not allow Petitioner to testify on his own behalf.
Petitioner stated he would have testified that the victim threw the first punches and that
the victim had a knife, thus causing Petitioner to fear for his life. (Id. at 8.) Petitioner also
argued that trial counsel should have filed a motion to compel the production of the
victim’s knife and that counsel failed to obtain a police report—which the state has
consistently maintained never existed—purportedly prepared by one of the police officers
who responded to the incident. (Id. at 8-11.) Finally, Petitioner asserted that his
postconviction counsel was not adequately prepared. (Id. at 12-15.)
The Idaho Court of Appeals upheld the trial court’s dismissal of the postconviction
petition, holding that trial counsel’s “clear advice” to Petitioner that he ought not to
testify was a reasonable strategic decision. (State’s Lodging D-7 at 5.) The court did not
accept Petitioner’s claim that counsel actually prevented him from testifying; rather, the
court of appeals found that defense counsel’s advice to Petitioner not to take the stand
was based on the fact that, had Petitioner testified, the state could potentially have cross-

MEMORANDUM DECISION AND ORDER - 3

examined him “regarding a prior fight [Petitioner] was involved in that resulted in the
death of the victim.” (Id. at 5 n.1.) Petitioner simply took counsel’s good advice.
The Idaho Court of Appeals also held that trial counsel’s failure to move to
compel the production of the victim’s knife did not constitute ineffective assistance of
counsel, because “[e]vidence of the knife’s existence was presented at trial”—through the
victim himself as well as other witnesses. (Id. at 6-7.) The jury knew that the victim had a
knife, and therefore Petitioner failed to demonstrate any prejudice from trial counsel’s
failure to file a motion to compel because any such motion would have been denied.
Further, Petitioner had not established that the state had possession of the knife.
With respect to the supposed police report, the court of appeals held that trial
counsel was not ineffective for failing to obtain it because there was insufficient evidence
that such a report even existed. (Id. at 5-6.) Finally, the Idaho Court of Appeals did not
address Petitioner’s argument that his postconviction counsel was ineffective, presumably
because that claim was not—and indeed, could not have been—presented in the
postconviction petition. (See D-5 at 10-11; D-7.)
Petitioner filed a petition for review with the Idaho Supreme Court. (State’s
Lodging D-8.) However, Petitioner argued only that his postconviction attorneys
rendered ineffective assistance, that the judge’s ruling on the postconviction petition was
biased, and that Petitioner should have received an evidentiary hearing on the petition.
(State’s Lodging D-9 at 2-5.) Although Petitioner discussed his trial counsel’s alleged
refusal to let Petitioner testify at trial, Petitioner set forth this discussion as support for his
independent claim that his postconviction attorneys were ineffective. (Id. at 3-6.) The
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Idaho Supreme Court denied the petition for review without substantive comment.
(State’s Lodging D-10.)
While Petitioner’s initial state postconviction petition was still pending, he filed a
successive petition for state postconviction relief. (State’s Lodging E-1 at 10-17.) The
petition once again raised numerous ineffective assistance of counsel claims, as well as a
claim that the prosecutor withheld favorable evidence from the defense. (Id.) The state
district court denied Petitioner’s motion for appointment of counsel. (Id. at 396-99.) The
court also notified Petitioner that it intended to dismiss the successive petition as
untimely or improperly filed without “sufficient reason” under Idaho Code §§ 19-4902
and 19-4908. (Id. at 399-401.) After Petitioner filed a response to the notice of intent to
dismiss, the trial court dismissed the successive petition.
Petitioner appealed the dismissal of his successive postconviction petition, arguing
that his motion for appointment of counsel should have been granted and that, based on
the allegedly inadequate representation by his initial postconviction review attorneys, he
had sufficient reason to file a successive petition. (State’s Lodging F-3.) The Idaho Court
of Appeals affirmed. The court held that the successive postconviction petition was
improper because Petitioner had not shown a “sufficient reason,” under Idaho Code § 194908 why the claims in the successive petition could not have been brought in the initial
postconviction petition. (State’s Lodging F-6 at 3.) The court of appeals also affirmed the
district court’s denial of appointment of counsel. (Id. at 3-4.) The Idaho Supreme Court
denied review. (State’s Lodging F-9.)

MEMORANDUM DECISION AND ORDER - 5

Because Petitioner filed the instant federal habeas petition before the completion
of his successive state postconviction proceedings, the Court stayed the case pending the
Idaho courts’ disposition of those proceedings. This case has since been reopened.
The Court previously construed the instant federal habeas corpus petition as
asserting the following claims, and Petitioner has not objected to that construction:
Claim 1.1:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to conduct discovery.

Claim 1.2:

Failure of the prosecution to produce exculpatory
evidence.

Claim 1.3:

Failure of the prosecution to correct false or
misleading testimony.

Claim 1.4:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to object to the prosecution’s
introduction of hearsay statements of non-testifying
witnesses.

Claim 1.5:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to object to inadmissible
evidence.

Claim 1.6:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to raise the issue of selfdefense or to produce evidence in support of a selfdefense theory.

Claim 1.7:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to acquire evidence or locate
witnesses regarding the chain of custody of certain
evidence.

Claim 1.8:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to prepare for trial.

Claim 2.1:

Failure of the prosecution to disclose exculpatory
material, a restatement of Claim 1.2.

MEMORANDUM DECISION AND ORDER - 6

Claim 2.2:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to file pretrial motions.

Claim 2.3:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to consult with Petitioner.

Claim 2.4:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to prepare for trial, a
restatement of Claim 1.8.

Claim 2.5:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to conduct discovery, a
restatement of Claim 1.1.

Claim 2.6:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to meet with Petitioner to
discuss a self-defense theory or any other defense
strategy, a restatement or clarification of Claim 1.6.

Claim 2.7:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to call witnesses to testify in
favor of Petitioner or to question witnesses who did
testify.

Claim 2.8:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to discuss with Petitioner the
evidence offered by the prosecution.

Claim 2.9:

Ineffective assistance of trial counsel based on
counsel’s alleged decision to aid the prosecution in
preparing jury instructions.

Claim 2.10:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to “offer a self-defense alibi”
or to allow Petitioner to testify.

Claim 2.11:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to move for a mistrial.

Claim 2.12:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to develop evidence relevant
to Petitioner’s state of mind at the time of the offense.

MEMORANDUM DECISION AND ORDER - 7

Claim 2.13:

Conflict of interest involving Petitioner’s counsel.

Claim 2.14:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to correct or object to
information in the pre-sentence investigation report.

Claim 2.15:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to review 15 pages of
documents prepared by Petitioner.

Claim 2.16:

Ineffective assistance of trial counsel based on
counsel’s alleged failure to review 31 pages of
documents prepared by Petitioner with respect to
Petitioner’s motion for a new trial.

Claim 2.17:

Ineffective assistance of direct appeal counsel based on
counsel’s alleged failure to raise issues identified by
Petitioner.

Claim 2.18:

Ineffective assistance of court-appointed
postconviction counsel.

(Pet., Dkt. 3; see also Initial Review Order, Dkt. 14.) Thus, Petitioner asserts five broad
categories of claims: (1) a claim under Brady v. Maryland, 373 U.S. 83 (1963), that the
prosecutor withheld evidence and that the prosecutor failed to correct false testimony; (2)
claims of ineffective assistance of trial counsel; (3) a claim of ineffective assistance of
direct appeal counsel; (4) a claim of ineffective assistance of postconviction counsel; and
(5) a claim of attorney conflict of interest.
PETITIONER’S MOTION TO RECONSIDER
DENIAL OF REQUEST FOR APPOINTMENT OF COUNSEL
The Court previously denied Petitioner’s second request for counsel, noting that
“[p]resently, neither discovery nor an evidentiary hearing is required, and Petitioner has
been able to protect his interests to date with his pro se filings.” (Dkt. 30 at 2.) See Rules
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6(a) & 8(c) of the Rules Governing Section 2254 Cases; Weygandt v. Look, 718 F.2d 952,
954 (9th Cir. 1983).
The Court does not find any reason to reconsider that decision. At this point in the
litigation, the Court must address a narrow procedural issue—whether Petitioner properly
presented his federal claims to the Idaho Supreme Court and whether, if he did not, cause
and prejudice (or actual innocence) exists to excuse that failure—for which appointment
of counsel is not required. Further, it appears from Petitioner’s filings that he has been
able to adequately bring his claims and protect his interests to date. The Court
understands that Petitioner does not have legal training or legal resources. Therefore, the
Court independently reviews the case citations and references provided by the state for
accuracy and applicability. The Court also does its own research to determine whether
other cases not cited by the State apply. Finally, the appellate review process before the
United States Court of Appeals for the Ninth Circuit is available to ensure that the case
has been adjudicated according to the proper legal standards. For these reasons, the Court
will deny Petitioner’s request for counsel.
RESPONDENT’S MOTION FOR SUMMARY DISMISSAL
1.

Standards of Law
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

MEMORANDUM DECISION AND ORDER - 9

determining whether to dismiss a petition.1 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).
Respondent argues that Petitioner’s claims are procedurally defaulted. 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

The Court takes judicial notice of the records from Petitioner’s state court proceedings, lodged by
Respondent on April 21, 2015. (Dkt. 24.)
1

MEMORANDUM DECISION AND ORDER - 10

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, 1093-94 (9th Cir. 2001) (quoting Wells v.
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). 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).

MEMORANDUM DECISION AND ORDER - 11

2.

All of Petitioner’s 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, Petitioner argued only that his sentence was excessive under
Idaho state law. He does not bring that claim in his Petition. Moreover, any such claim
would not be a basis for habeas relief, which lies only for errors of federal law. Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989)
(per curiam).
On appeal from the denial of his initial postconviction petition, Petitioner argued
only (1) that his trial counsel was ineffective for failing to allow Petitioner to testify or to
file motions to compel production of the victim’s knife and a police report that Petitioner
believed existed, and (2) his initial postconviction counsel rendered ineffective assistance
in the state district court. (State’s Lodging D-3.) However, when Petitioner filed his
petition for review with the Idaho Supreme Court, he included only the final claim—that
postconviction counsel was ineffective. (State’s Lodging D-9.) Petitioner’s reference in
his petition for review to trial counsel’s alleged refusal to allow Petitioner to testify is
insufficient to properly exhaust that claim, as it was discussed only as support for his
claim that postconviction counsel was ineffective. (Id. at 3-5.) See Rose v. Palmateer, 395
F.3d 1108, 1112 (9th Cir. 2005) (“Here, although [the petitioner’s] Fifth Amendment
claim is related to his claim of ineffective assistance, he did not fairly present the Fifth
Amendment claim to the state courts when he merely discussed it as one of several issues
MEMORANDUM DECISION AND ORDER - 12

which were handled ineffectively by his trial and appellate counsel. While admittedly
related, they are distinct claims with separate elements of proof, and each claim should
have been separately and specifically presented to the state courts.” (emphasis added)).
As noted, in his petition for review to the state supreme court, Petitioner did argue
that his postconviction counsel was ineffective. That claim is currently set forth in Claim
2.18 of the Petition. However, even though Petitioner raised that claim, it was not
properly raised, nor was it addressed on the merits by either the court of appeals or the
state supreme court. Although neither court discussed its reasoning for failing to rule on
that claim, it is overwhelmingly likely the courts refused to reach the claim on the merits
because of an independent and adequate state law ground—Idaho appellate courts
generally will not consider arguments made for the first time on appeal from the
dismissal of a postconviction petition. See, e.g., LaBelle v. State, 937 P.2d 427, 433 n.1
(Ct. App. 1997). Petitioner has not shown that this procedural rule was unclear,
inconsistently applied, or not well-established at the time of the default. See Klauser, 266
F.3d at 1093-94. In addition, even if this claim had been properly raised and addressed on
the merits by the Idaho Supreme Court, it is not cognizable in federal habeas corpus.2 See
Lewis, 497 U.S. at 780; Franzen, 877 F.2d at 26. Thus, even if Claim 2.18 was not
procedurally defaulted, it would afford Petitioner no basis for relief.

2

Though there is no constitutional right to state postconviction counsel, the lack of counsel or
ineffective counsel during initial-review collateral proceedings can, under certain circumstances, be
asserted as cause to excuse the procedural default of a federal constitutional claim. This is explained more
fully in Section 3.A., below.

MEMORANDUM DECISION AND ORDER - 13

On appeal from the dismissal of Petitioner’s successive postconviction conviction,
he similarly limited his argument to errors in the initial and successive state
postconviction proceedings—for which a federal court cannot grant habeas relief.
Petitioner did not exhaust any of his claims of ineffective assistance of trial counsel, his
conflict of interest claim, or his claims that the prosecution withheld favorable evidence
and failed to correct false testimony. Further, the claims of error in postconviction
proceedings were also procedurally defaulted because the state courts dismissed them on
an adequate and independent state procedural ground: Petitioner had not met the
requirements for a successive postconviction petition under Idaho Code § 19-4908.
(State’s Lodging F-6.) Like the procedural rule requiring all arguments on appeal to have
been raised first in the lower court, Petitioner has not established that § 19-4908’s
procedural requirements were unclear or inconsistently applied at the time of Petitioner’s
default.
Because none of Petitioner’s current habeas claims was fairly presented to the
Idaho Supreme Court, all those claims are procedurally defaulted.
3.

Petitioner Has Not Shown Cause and Prejudice, or Actual Innocence, to
Excuse the Procedural Default of his Claims
The Court’s conclusion that Petitioner’s claims are procedurally defaulted does not

end the inquiry. Even 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

MEMORANDUM DECISION AND ORDER - 14

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).
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 procedurally-defaulted constitutional claim.
A.

Cause and Prejudice

Petitioner argues that cause and prejudice exist to excuse the procedural default of
his claim of ineffective assistance of trial and direct appeal counsel claims, as well as his
conflict of interest claim, because his initial postconviction counsel was ineffective. (Dkt.
31-1 at 5.)
i.

Standards 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).
Cause for a default may exist as a result of ineffective assistance of counsel
(“IAC”). For example, the failure on appeal to raise a meritorious claim of trial error may
render that claim procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452
MEMORANDUM DECISION AND ORDER - 15

(2000) (“[I]n certain circumstances counsel’s ineffectiveness in failing properly to
preserve the claim for review in state court will suffice.”). However, for ineffective
assistance of direct appeal counsel (“IADAC”) to serve as cause to excuse a default, that
IADAC claim must itself have been separately presented to the state appellate courts. Id.
at 451 (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural
default of another claim can itself be procedurally defaulted.”) If the ineffective
assistance asserted as cause was not fairly presented to the state courts, a petitioner must
show that an excuse for that separate default exists, as well.3
Because a petitioner does not have a federal constitutional right to the effective
assistance of counsel during state postconviction proceedings, the general rule is that any
errors of counsel during a postconviction action (as opposed to a direct appeal) cannot
serve as a basis for cause to excuse a procedural default. Pennsylvania v. Finley, 481 U.S.
551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993); Coleman, 501
U.S. at 752. However, in 2012 the Supreme Court worked a “remarkable” equitable
change in the law governing procedurally defaulted IAC. See Lopez v Ryan, 678 F.3d
1131, 1136 (9th Cir. 2012).
In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court altered the longstanding prohibition that postconviction counsel’s ineffectiveness could not be used to
excuse the procedural default of a claim. In effect, Martinez created the potential for an

3

To the extent Petitioner argues that the procedural default of his Brady claim, or his claim that the
prosecution failed to correct false testimony, was caused by ineffective assistance of direct appeal
counsel, his argument fails because no such ineffectiveness claim was fairly presented to the Idaho
Supreme Court. See Edwards, 529 U.S. at 451.

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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 applies not only to
underlying claims of ineffective assistance of trial counsel (“IATC”), but also to claims
of ineffective assistance of direct appeal counsel (“IADAC”), Ha Van Nguyen v. Curry,
736 F.3d 1287, 1293-94 (9th Cir. 2013), and claims that counsel was laboring under a
conflict of interest, Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015). 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
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
MEMORANDUM DECISION AND ORDER - 17

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 a claim. See Martinez, 132 S. Ct. at 1319.
a)

First Prong of Martinez: Substantiality of Underlying IAC
Claim

To be entitled to application of the Martinez exception, a petitioner must 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 - 18

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 - 19

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 - 20

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.
b)

Second Prong of Martinez: Ineffective Assistance of PCR
Counsel

In addition to showing that the underlying IAC claim is substantial, a petitioner
seeking to invoke the Martinez exception must also show either that he had no counsel on
initial postconviction review, or that his PCR counsel was “ineffective under the
standards of Strickland.” 132 S. Ct. at 1318. Again, “ineffectiveness” is a term defined by
Strickland as (1) deficient performance and (2) a reasonable probability of prejudice
caused by the deficient performance. 466 U.S. at 694, 700.
Not just any error or omission of PCR counsel will be deemed “deficient
performance” that will satisfy Martinez. If the PCR “attorney in the initial-review
collateral proceeding did not perform below constitutional standards,” the PCR attorney’s
performance does not constitute “cause.” Martinez, 132 S. Ct. at 1319. The Strickland
standards for analyzing deficient performance set forth above apply with equal force to
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PCR counsel in the context of a Martinez argument. Importantly, PCR counsel “is not
necessarily ineffective for failing to raise even a nonfrivolous claim.” Sexton v. Cozner,
679 F.3d 1150, 1157 (9th Cir. 2012). If PCR counsel’s performance is deficient, then the
court must consider whether that performance was prejudicial under Strickland.
Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014).
As to the prejudice aspect of the second Martinez prong, the petitioner must show
a reasonable probability that, if PCR counsel had not performed deficiently, the result of
the postconviction proceedings would have been different. Id. (cumulating all opinions
from Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013)). That determination “is necessarily
connected to the strength of the argument that trial counsel’s assistance was ineffective.”
Id. at 377-78.4
c)

Third Prong of Martinez: Initial State Collateral Review
Proceeding

The third prong of the Martinez test is that the state collateral review proceeding in
which the underlying IAC claim was defaulted must have been the “initial” postconviction review proceeding where the IAC claim could have been raised. Trevino, 133
S. Ct. at 1918. The Martinez exception “does not extend to attorney errors in any

4

The inquiries involved in the first and second Martinez prongs will, at times, collapse into one.
Clabourne, 745 F.3d at 382 (“Under the circumstances of this case, if [the petitioner] succeeds in
demonstrating that he was prejudiced by the failure of his post-conviction counsel, he will necessarily
have established that there is at least ‘some merit’ to his claim that he suffered ineffective assistance of
trial counsel at resentencing.”). The Court may address either inquiry first, and the resolution of one
prong may obviate the need to address the other. See Martinez, 132 S. Ct. at 1319 (“When faced with the
question whether there is cause for an apparent default, a State may answer that the ineffective-assistanceof-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual
support, or that the attorney in the initial-review collateral proceeding did not perform below
constitutional standards.”).

MEMORANDUM DECISION AND ORDER - 22

proceeding beyond the first occasion the State allows a prisoner to raise a claim of
ineffective assistance.” Martinez, 132 S. Ct. at 1320. In other words, the post-conviction
proceeding must have been “the equivalent of a prisoner’s direct appeal” for the IAC
claim. Martinez, 132 S. Ct. at 1317. A petitioner may not use as cause attorney error that
occurred in “appeals from initial-review collateral proceedings, second or successive
collateral proceedings, and petitions for discretionary review in a State’s appellate
courts.” 132 S. Ct. at 1320.
d)

Fourth Prong of Martinez: State Law Treatment of IAC
Claims

The fourth prong of the Martinez analysis is that state law must require (by law or
by reason of design and operation) that an ineffective assistance of trial counsel or
appellate counsel claim be raised in an initial-review collateral proceeding. Trevino, 133
S. Ct. at 1918, 1921. Therefore, Martinez applies in Idaho where the post-conviction
setting was the first forum in which the ineffective assistance of trial counsel claim based
on matters arising outside the record could have been brought and developed in an
evidentiary hearing. See Matthews v. State, 839 P.2d 1215, 1220 (Idaho 1992)
(recognizing that in Idaho the post-conviction setting is the “preferred forum for bringing
claims of ineffective assistance of counsel,” though in limited instances such claims may
be brought on direct appeal “on purported errors that arose during the trial, as shown on
the record”).

MEMORANDUM DECISION AND ORDER - 23

ii.

Petitioner Has Not Established That his Initial Postconviction
Counsel Was Ineffective

The Court need not consider whether Petitioner’s underlying IAC claims are
substantial, because Petitioner’s Martinez argument fails at step two: Petitioner has not
shown that his initial PCR counsel rendered ineffective assistance.
According to Petitioner, postconviction counsel was ordered by the state district
court to amend the initial postconviction petition but failed to do so. (Dkt. 31-1 at 8.)
However, the record reveals that the court actually instructed counsel to file an amended
postconviction petition “if necessary to comply with the statute and rules.” (State’s
Lodging C-1 at 102) (emphasis in original).) Petitioner has not shown that his initial pro
se petition violated the Idaho Uniform Postconviction Procedures Act or the rules of the
court. Thus, counsel was not required to amend it. Moreover, postconviction counsel
clearly took steps consistent with adequate representation; counsel filed briefing with the
court that supported Petitioner’s postconviction claims with argument and authority.
(State’s Lodging C-1 at 258-64.) That counsel was unsuccessful does not equate to
ineffective assistance.
Aside from the bare—and incorrect—allegation that PCR counsel was required to
amend the initial postconviction petition, Petitioner has offered nothing to support a
reasonable inference that had PCR counsel acted differently, the result of the initial
postconviction proceedings would have been different. Therefore, cause and prejudice do
not exist to excuse the default of Petitioner’s claims.

MEMORANDUM DECISION AND ORDER - 24

B.

Actual Innocence

As explained above, if a petitioner cannot show cause and prejudice for a
procedural default, he can still bring the claim in a federal habeas petition if he
demonstrates that failure to consider the claim will result in a “fundamental miscarriage
of justice,” which means that a constitutional violation has probably resulted in the
conviction of someone who is actually innocent.5 Murray v. Carrier, 477 U.S. at 496.
Actual innocence in this context “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
5

Petitioner does not explicitly assert actual innocence as an excuse for the procedural default of his
claims, but because Petitioner claims he acted in self-defense when he injured the victim, the Court has
considered the issue nonetheless.

MEMORANDUM DECISION AND ORDER - 25

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 “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.
After careful review of the entire record, the Court concludes that Petitioner has
not brought forth sufficient credible evidence to meet the extraordinarily stringent burden
of showing actual innocence. Thus, the miscarriage of justice exception to procedural
default is not available to Petitioner.
CONCLUSION
Petitioner’s claims are all procedurally defaulted, and Petitioner has not
established an excuse for that default. Therefore, the Petition must be dismissed with
prejudice.
ORDER
IT IS ORDERED:
1.

Petitioner’s request for appointment of counsel (Dkt. 31-2) is DENIED.

2.

Respondent’s Motion for Extension of Time (Dkt. 32) is GRANTED.
Respondent’s Reply in Support of the Motion for Summary Dismissal (Dkt.
34) is deemed timely.

MEMORANDUM DECISION AND ORDER - 26

3.

Respondent’s Motion for Summary Dismissal (Dkt. 25) is GRANTED, and
the Petition 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. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: December 22, 2015

Honorable Candy W. Dale
United States Magistrate Judge

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