Skinner v. Yordy

Filing 31

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: The Court's confirms its conditional grant of Respondent's motion to dismiss 19 . The Motion for Summary Dismissal 9 is GRANTED. Petitioner's request to strike Respondent's suppl emental brief (contained in Dkt. 30) is DENIED. Petitioner's Motion for Permission to Amend 15 is DENIED, and this entire action is DISMISSED with prejudice. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ELLIS RUSSELL SKINNER ,
Case No. 1:14-cv-00269-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
KEITH YORDY,
Respondent.

Petitioner Ellis Russell Skinner is an Idaho state prisoner proceeding pro se in this
habeas corpus action. Petitioner challenges his Bingham County convictions for
aggravated assault, aggravated battery, and two sentencing enhancements: (1) being a
persistent violator, and (2) using a deadly weapon during the commission of the assault
and battery.
On September 28, 2015, the Court conditionally granted Respondent’s Motion for
Summary Dismissal because all of the claims in the initial Petition were procedurally
defaulted. (Dkt. 19.) However, the Court did not have sufficient information at that time
to determine whether Petitioner should be allowed to amend his Petition to assert a single
claim—a due process claim based on the prosecution’s alleged failure to disclose
exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). (See
MEMORANDUM DECISION AND ORDER - 1

Petitioner’s Motion for Permission to Amend, Dkt. 15, and Petitioner’s proposed
amended petition, Dkt. 16.) The Court noted that Petitioner’s Brady claim might be
procedurally defaulted or untimely and ordered supplemental briefing. (Dkt. 19.)
Having carefully reviewed the entire record, including the state court record and
the parties’ supplemental briefing (see Dkt. 28 & 29), the Court concludes that oral
argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters
the following Order confirming its grant of Respondent’s Motion for Summary
Dismissal, denying Petitioner’s Motion for Permission to Amend, and dismissing this
case with prejudice.
PETITIONER’S MOTION FOR PERMISSION TO AMEND
1.

Standard of Law Governing Amendment of Petition
The Federal Rules of Civil Procedure apply to habeas corpus proceedings to the

extent that they are not inconsistent with established habeas practice and procedure. See
Rule 12 of the Rules Governing Section 2254 Cases. Further, by statute, an application
for habeas relief may be amended “as provided in the rules of procedure applicable to
civil actions.” 28 U.S.C. § 2242. Pursuant to Federal Rule of Civil Procedure 15(a)(1), a
party may amend a pleading after briefing on dispositive motions only with written
consent of the opposing party or leave of court. “The Court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2).
Although public policy favors amendment, courts retain the discretion to deny
leave to amend after considering factors such as bad faith, undue delay, prejudice to the
opposing party, futility of the amendment, and whether the party has previously amended
MEMORANDUM DECISION AND ORDER - 2

his pleadings. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). These factors need
not be given equal weight, and futility of amendment alone can justify the denial of the
request to amend. Id.
2.

Amendment of the Petition Is Futile
For the reasons that follow, Petitioner’s Motion for Permission to Amend will be

denied because amendment is futile.
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.
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 - 3

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 v. Netherland, 518 U.S. 152, 161-62 (1996). 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).
B.

Petitioner’s Brady Claim Is Procedurally Defaulted

Petitioner raised his Brady claim in his successive state petition for postconviction
relief, filed in July 2012. (State’s Lodging C-1 at 18-19.) However, the state court
dismissed this claim, as well as the rest of the successive petition, on the grounds that
Petitioner had not shown a “sufficient reason,” under Idaho Code § 19-4908, why the
claim had not been included in Petitioner’s initial state postconviction petition. (Id. at
MEMORANDUM DECISION AND ORDER - 4

256-59.) Petitioner appealed the dismissal, but the Idaho Supreme Court dismissed the
appeal after Petitioner failed to file an opening brief. (State’s Lodging D-2 & D-3.)
Petitioner’s Brady claim is procedurally defaulted for two reasons: (1) the state
district court dismissed the claim based on an adequate and independent state procedural
rule: that all collateral challenges to a conviction or sentence must be raised in an initial
postconviction proceeding absent a sufficient reason; and (2) regardless of the reason
why the state district court dismissed the Brady claim, Petitioner did not fairly present
that claim in the Idaho Supreme Court. Indeed, by failing to file an opening brief,
Petitioner neglected to raise any claim at all to the state’s highest court during his
successive postconviction proceedings.
C.

Petitioner Has Not Shown Cause and Prejudice or Actual Innocence to
Excuse the Procedural Default of His Brady Claim

That Petitioner’s Brady claim is procedurally defaulted does not end the inquiry as
to whether amendment would be futile. The Court must next determine whether an
adequate excuse for the default exists.
i.

Exceptions to the Procedural Default Bar

If a petitioner’s claim is procedurally defaulted, a federal district court can hear the
merits of the claim only if the petitioner meets one of two exceptions.
First, a petitioner may make a showing of adequate legal cause for the default and
prejudice arising from the default. Murray v. Carrier, 477 U.S. 478, 488 (1986). 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

MEMORANDUM DECISION AND ORDER - 5

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).
The second exception to procedural default applies where a petitioner
demonstrates that a miscarriage of justice will occur if the habeas claim is not heard in
federal court, which means that a constitutional violation has probably resulted in the
conviction of someone who is actually innocent. 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).
MEMORANDUM DECISION AND ORDER - 6

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.
ii.

No Exception to the Procedural Default Bar Applies to Petitioner’s
Brady Claim

Petitioner does not assert that cause and prejudice exist to excuse the default of his
Brady claim, although he does contend, briefly, that he is actually innocent. (Dkt. 28 at
14.) Petitioner claims that the transcripts of the proceedings and the original police
reports (which were prepared “before there was time to rethink and rework a story”)
establish that, although there was a scuffle involving knives between Petitioner and the
victim, “no-one actually saw [Petitioner] stab” the victim. (Id.) These self-serving
contentions are a far cry from the “exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence” required to establish actual innocence.
See Schlup, 513 U.S. at 324. Thus, Petitioner may not use the miscarriage of justice
exception to excuse the procedural default of his Brady claim.
CONCLUSION
The only claim Petitioner asserts in his proposed amended petition is a Brady
claim that the prosecution failed to disclose the location of a witness. This claim is
procedurally defaulted, and Petitioner has not established an adequate excuse for the
default. Therefore, amendment would be futile.

MEMORANDUM DECISION AND ORDER - 7

ORDER
IT IS ORDERED:
1.

The Court’s confirms its conditional grant of Respondent’s motion to
dismiss. (See Dkt. 19.) The Motion for Summary Dismissal (Dkt. 9) is
GRANTED.

2.

Petitioner’s request to strike Respondent’s supplemental brief (contained in
Dkt. 30) is DENIED.

3.

Petitioner’s Motion for Permission to Amend (Dkt. 15) is DENIED, and
this entire action is DISMISSED with prejudice.

4.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. 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: February 29, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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