Olsen v. Yordy

Filing 10

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. The Petition for Writ of Habeas Corpus is DENIED. This entire case is DISMISSED with prejudice.2. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMES D. OLSEN,
Petitioner,
vs.

Case No. 1:14-cv-00462-REB
MEMORANDUM DECISION AND
ORDER

KEITH YORDY,
Respondent.

Petitioner James D. Olsen filed a Petition for Writ of Habeas Corpus challenging
his state court conviction. (Dkt. 1.) Petitioner, the only party appearing in this case, has
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).1 (Dkt. 4.) Upon initial
review of this matter, the Court determined that the Petition for Writ of Habeas Corpus
was subject to denial, but the Court provided Petitioner with an opportunity to respond.
Petitioner filed a Response, which the Court has reviewed. (Dkt. 7.) The Response
contains nothing that causes the Court to reconsider its initial decision that denial of the

1

See United States v. Real Property, 135 F.3d 1312, 1316 (9th Cir. 1998) (holding that in an in rem civil
forfeiture action wherein the plaintiff consented, the magistrate judge had jurisdiction to enter a final judgment over
a defaulted person who was technically not a "party" to the litigation); Neals v. Norwood, 59 F.3d 530, 532 (5th Cir.
1995) (reasoning that unserved defendants are not parties).

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Petition is appropriate. Accordingly, for the following reasons, the Court will deny the
Petition and dismiss this action with prejudice.
REVIEW OF PETITION
1. Standard of Law on Initial Review
Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who
show that they are held in custody under a state court judgment and that such custody
violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
The Court is required to review a habeas corpus petition upon receipt to determine
whether it is subject to summary dismissal. See Rule 4 of the Rules Governing Section
2254 Cases. Summary dismissal is appropriate where “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.” Id.
2. Background
At issue is Petitioner’s 2012 conviction for felony driving under the influence
(DUI). Because Petitioner had been convicted of felony DUI charges in 2002 and 2007,
Petitioner’s 2012 charge was raised from a misdemeanor to a felony under the “charging
enhancement” of the DUI statute, I.C. §18-8005(6) (if a person has had two or more prior

MEMORANDUM DECISION AND ORDER - 2

DUI convictions within 10 years, subsequent DUI incidents within that time frame are
charged as felonies).2
Because all three DUIs were felonies, the State also charged Petitioner with being
a persistent violator under the “sentencing enhancement” statute, I.C. §19-2514, which
provides that, “[a]ny person convicted for the third time of the commission of a felony …
shall be considered a persistent violator of law, and on such third conviction shall be
sentenced to a term in the custody of the state board of correction which term shall be for
not less than five (5) years and said term may extend to life.”
Petitioner pleaded guilty to both charges. On July 13, 2012, he was sentenced to a
prison term of five years fixed, with ten years indeterminate.
On post-conviction review, Petitioner asserted that his conviction and sentence
violate the Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution, because two enhancements were applied to the same wrongful act.
The Idaho Court of Appeals rejected Petitioner’s claim, determining that his
conviction and sentence did not violate the Double Jeopardy Clause. (Dkt. 1-1.) The

2

The Petition expressly challenges the charging enhancement under Idaho Code § 18-8005(6); likewise, the
Idaho Court of Appeals’ opinion addresses that same section of the Idaho Code. In his Response to the Initial
Review Order, however, Petitioner asserts that “the [Idaho] Court [of Appeals] examined I.C. § 18-8005(6) rather
than I.C. § 18-8005(9), the actual enhancement statute.” (Dkt. 7.) Subsection (6) of the statute provides that a current
charge is a felony if the defendant had two prior DUI convictions (misdemeanor or felony) within 10 years, while
subsection (9) provides that a current charge is a felony if the defendant had one prior DUI felony conviction within
15 years. In any event, the reasoning behind subsections (6) and (9) is the same—those with prior DUI convictions
that fit within either subsection are charged with felony DUI. A maximum penalty of 10 years applies to either
subsection.

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Idaho Supreme Court denied Petitioner’s petition for review without a written decision.
Hence, Petitioner’s claim is properly exhausted. Petitioner has attached the Court of
Appeals’ opinion to his Petition for the Court’s review. (Dkt. 1-1.)
3. Discussion of Claim
A.

Standard of Law for Habeas Corpus Relief

Where the petitioner files a federal habeas corpus action to challenge a state court
judgment, Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), applies. Title 28 U.S.C.§ 2254(d) limits relief to
instances where the state court’s adjudication of the petitioner’s claim:
1.

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

2.

resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).
The source of clearly established federal law that warrants relief must come from
only the holdings of the United States Supreme Court. Duhaime v. Ducharme, 200 F.3d
597, 600-01 (9th Cir. 1999). Circuit precedent may be used as persuasive authority for
determining whether a state court decision is an unreasonable application of Supreme
Court precedent. Id. However, circuit law may not be used “to refine or sharpen a general

MEMORANDUM DECISION AND ORDER - 4

principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme]
Court has not announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).
The Double Jeopardy Clause of the Fifth Amendment includes three basic
protections: it protects a defendant from (1) “a second prosecution for the same offense
after acquittal,” (2) “a second prosecution for the same offense after conviction,” and (3)
“multiple punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984).
This case involves the third protection—Plaintiff claims that only one punishment
enhancement should have been applied.
The protection against cumulative punishments “is designed to ensure that the
sentencing discretion of courts is confined to the limits established by the legislature.”
Johnson, 467 U.S. at 499. Thus, “the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment than the legislature intended.”
Missouri v. Hunter, 459 U.S. 359, 366 (1983). The Double Jeopardy Clause is not
implicated if the legislature intended to impose multiple or cumulative punishments. Id.
at 367-68.
To assess whether habeas corpus review is warranted, the federal district court
reviews “the last state-court adjudication on the merits.” Greene v. Fisher, 132 S.Ct. 38,
45 (2011). The deferential standard of section 2254(d) applies regardless of whether the
state court decision “is unaccompanied by an opinion explaining the reasons relief has

MEMORANDUM DECISION AND ORDER - 5

been denied.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Id. at 99. When the last adjudication on
the merits provides a reasoned opinion, federal courts evaluate the opinion as the grounds
for denial. 28 U.S.C. 2254(d).
However, where the state’s highest court did not issue a reasoned decision, courts
within the Ninth Circuit review the decision of the Idaho Court of Appeals, using the
“look through” principle of Ylst v. Nunnemaker, 501 U.S. 797 (1991), and “presume the
higher court agreed with and adopted the reasons given by the lower court.” Curiel v.
Miller, 830 F.3d 864 (9th Cir. 2016).3

B. Idaho Court of Appeals’ Decision
Here, the Court reviews the Idaho Court of Appeals’ written decision to determine
whether the Idaho Supreme Court’s decision to deny Petitioner relief on his claims was
reasonable. The Court also takes into consideration Petitioner’s arguments in its
determination of whether the Idaho appellate courts unreasonably denied relief on the

3

The United States Supreme Court recently clarified: “In Ylst, we said that where “the last reasoned opinion
on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not
silently disregard that bar and consider the merits. 501 U.S., at 803, 111 S.Ct. 2590,” but that the presumption can be
refuted by “strong evidence.” Kernan v. Hinojosa, 136 S. Ct. 1603, 1605–06 (2016).

MEMORANDUM DECISION AND ORDER - 6

federal claims. A petitioner’s burden under section 2254(d) is to show “there was no
reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98 (emphasis
added).
The Idaho Court of Appeals determined that, of the two enhancements applied to
Petitioner’s conviction and sentences, only one was a true sentencing enhancement. The
other was a charging enhancement. The Idaho Court of Appeals turned to Idaho
precedent interpreting the Idaho statutes to begin its analysis:
This Court has previously described section 18-8005(6) as a “charging
enhancement.” E.g., State v. Moore, 148 Idaho 887, 890 n.2, 231 P.3d 532,
535 n.2 (Ct. App. 2010). This is because the statute defines “an element
that elevates a charge from a misdemeanor offense to a felony offense.” Id.
A sentencing enhancement, on the other hand, “authorizes or requires
increased penalties for a misdemeanor or a felony in certain circumstances
but does not, in the case of a misdemeanor, elevate the crime to a felony.”
Id. The persistent violator enhancement in section 19-2514 does not create
a new crime, but the section permits the court to impose a greater sentence
for the conviction at issue (but not the prior convictions) and is thus a
sentencing enhancement. Lopez v. State, 108 Idaho 394, 395, 700 P.2d 16,
17 (1985). Sentencing enhancements thus provide for a single, more severe
penalty, rather than multiple penalties. State v. Galaviz, 104 Idaho 328,
330, 658 P.2d 999, 1001 (Ct. App. 1983).
(Dkt. 1-1, p. 5.)
The Idaho Court of Appeals also explained that the legislature had two different
purposes for the enhancements: Section 18-8005(6) removes repeat DUI offenders from
the roadways and deters other potential multiple DUI offenders, while section 19-2514

MEMORANDUM DECISION AND ORDER - 7

deters “felony recidivism by assigning a more severe punishment than a first-time felony
offender would be subject to.” (Dkt. 1-1, p. 5.) In addition, the Court noted that “neither
section contains language that would limit the application of both the charging
enhancement and the sentencing enhancement.” (Id.)

C. Analysis
To support his Double Jeopardy Clause claim, Petitioner argues: “The
presumption is that legislatures do not intend to authorize cumulative punishment for the
same conduct.” He cites Ball v. United States, 470 U.S. 856 (1995), which sets forth this
basic presumption and explains how to determine legislative intent. Ball relies on
Blockburger v. United States, 284 U.S. 299, 304 (1932), which instructs that the
appropriate inquiry to determine whether Congress intended the same conduct to be
punishable under two criminal provisions is to ask “whether each provision requires
proof of a fact which the other does not.” Ball, 470 U.S. at 861. For example, in Ball, the
two convictions—possessing and receiving a firearm—violated Blockburger because
“proof of illegal receipt of a firearm necessarily includes proof of illegal possession of
that weapon.” 470 U.S. at 862 (emphasis in Ball).
Here, legislative intent can be gleaned from the fact that the charging enhancement
requires proof of commission of two prior DUI convictions, while the sentencing
enhancement requires proof of commission of two prior felonies. True to the different
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statutory purposes, only the DUI charging enhancement would have been applicable had
Petitioner accrued two misdemeanor DUIs and one felony, while the sentencing
enhancement could be applied only to three felonies (of any type). While it can be argued
that one enhancement does not necessarily include the same “elements” (convictions v.
felonies) as the other, under the Blockburger and Ball analyses, it is more fitting to
distinguish the two statutes by viewing one as a substantive crime and the other as a
penalty enhancement.
In a similar case, the Idaho Court of Appeals explained:
Idaho Code Section 19–2514 is a sentencing enhancement because it does
not alter the elements of the offense but increases the permissible
punishment by requiring a minimum term of confinement of five years,
which term may extend to life, for any person convicted for the third time
of the commission of a felony. The state need only prove that the defendant
has two or more prior felony convictions.
Idaho Code Section 18–8005(7), which elevates what would otherwise be a
misdemeanor to a felony, is not a sentencing enhancement like I.C. § 19–
2514. [The petitioner’s] argument is analogous to saying that aggravated
battery (a felony) is an “enhancement” of misdemeanor battery. However,
like aggravated battery and misdemeanor battery, the crimes of felony DUI
and misdemeanor DUI are separate substantive crimes that have some
elements in common.
State v. Smith, Op. No. 38232, 2011 WL 11048161, at *2 (Idaho Ct. App. Oct. 21, 2011)
(unpublished).

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Petitioner’s argument that the Idaho courts sometimes confuse the alleged
“charging” enhancement with being a “sentencing” enhancement does not bear on the
analysis required by Ball or Blockburger—those cases are concerned with effect more
than classification nomenclature to show legislative intent. Similarly confusing is the fact
that, even though the Idaho courts have characterized the DUI enhancement as a
“charging” enhancement, that portion of the statutory scheme is titled “Penalties.” Again,
this issue is resolved the same way under Blockburger—the important question is
whether the legislature intended to impose both enhancements or “penalties.”
In short, if a legislature’s intent is to punish twice, then the Blockburger rule does
not prevent that outcome. Id. at 691-94. In Whalen v. United States, 445 U.S. 684 (1980),
the Court emphasized that the legislature is “clearly free to fashion exceptions to the
[Blockburger] rule,” but a “court, just as clearly, is not.” Id. at 695. Idaho is free to
punish repeat DUI offenders to deter drinking and driving, and to punish repeated felony
convictions to deter all types of serious crimes.
Petitioner’s other cited authorities do not stand for the propositions he espouses.
Both Whalen v. United States and Rutledge v. United States, 517 U.S. 292 (1996), hold
that a person cannot be convicted and punished for two different offenses when “one is a
lesser included offense of the other.” See Rutledge, 517 U.S. at 297. That fact pattern
simply does not exist in Petitioner’s case.

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Petitioner’s reliance on Begay v. United States, 553 U.S.137 (2008), which was
not a double jeopardy case, is also unhelpful. Even though the United States Supreme
Court discussed the convergence of a sentencing enhancement with a DUI conviction in
Begay, that decision was based on an entirely different law, the federal Armed Career
Criminal Act of 1984 (ACCA). See Fultz v. Holland, No. 0:11-CV-26-HRW, 2011 WL
3101094, at *3 (E.D. Ky. July 25, 2011) (Begay applies only to sentence enhancements
under either the ACCA or 18 U.S.C. § 3559(c).) In addition, the type of statutory
analysis4 done in that case was overruled by Johnson v. United States, 135 S.Ct. 2551
(2015), which held that the ACCA’s residual clause was void for vagueness.
Neither Begay nor Johnson have anything to do with the facts of, or law related to,
Petitioner’s state-law sentences—and reliance upon loose analogy is fatal to a federal
habeas corpus claim. As the Supreme Court admonished in Marshall v. Rodgers, if a
petitioner is attempting to extend, refine, or sharpen “a general principle of Supreme
Court jurisprudence into a specific legal rule that th[e] Court has not announced,” that
goal is beyond the scope of federal habeas corpus relief under §2254(d). 133 S. Ct. at
1450. Because Begay did not address a particular circumstance like Petitioner’s, habeas
corpus relief is unwarranted on that basis.

The Court rejected Begay’s “categorical approach,” where “a court assesses whether a crime
qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular occasion.’” Johnson, 135 S.Ct. at 2557.

4

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Petitioner next argues that Idaho Code § 19-2520E, titled “Multiple enhanced
penalties prohibited,” demonstrates that the Idaho legislature intends to prohibit all
multiple enhanced penalties. The body of the statute states otherwise: “Notwithstanding
the enhanced penalty provisions in sections 19-2520, 19-2520A, 19-2520B and 192520C, Idaho Code, any person convicted of two (2) or more substantive crimes provided
for in the above code sections, which crimes arose out of the same indivisible course of
conduct, may only be subject to one (1) enhanced penalty” (emphasis added).
Contrary to Petitioner’s argument, this statute specifically shows that the
legislature chose which enhancements could not be “stacked.” Petitioner was not
convicted of two or more substantive crimes in 2012 for which he was punished, and,
therefore, the Court need not reach his argument about whether his enhancements stem
from an “indivisible course of conduct.” The anti-stacking statute addresses only
substantive crimes, and the three strikes sentencing enhancement is not a substantive
crime. See, e.g., Apprendi v. New Jersey 530 U.S. 466, 496 (2000) (“recidivism does not
relate to the commission of the offense”); see also Almendarez-Torres v. United States,
523 U.S. 224, 230, 239-47 (1998) (concluding that a penalty provision that authorizes a
court to increase the sentence for a recidivist does not define a separate crime).
Petitioner also suggests there are several possibilities for interpreting the two
enhancement statutes, based on different rationales. “There is nothing to suggest they

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clearly authorized, or even anticipated, that repeat felony DUI offenders would also be in
jeopardy of another increase under career criminal laws,” he surmises. (Dkt. 7, p. 13.)
While searching for alternative reasonable bases for a court’s conclusion is appropriate
under Richter, the somewhat surprising result under that case is that showing different
outcomes are reasonable does not warrant habeas corpus relief.
A federal habeas court cannot grant relief simply because it concludes in its
independent judgment that the state court’s decision is incorrect or wrong; rather, the
state court’s application of federal law must be objectively unreasonable to warrant relief.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Under Richter, if fairminded jurists could
disagree on the correctness of the state court’s decision, then relief is not warranted under
§ 2254(d)(1), because it is not objectively unreasonable. See 562 U.S. at 101. The
Supreme Court emphasized that “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. (internal citation omitted).
Here, the Idaho Court of Appeals reached an objectively reasonable conclusion on the
double jeopardy question; this Court agrees that the Idaho Court of Appeals’ decision is
in harmony with federal double jeopardy precedent. Petitioner’s alternative outcomes are
less in harmony with federal precedent, and he has not convinced the Court that all
fairminded jurists would conclude that the state appellate courts were incorrect in
denying Petitioner relief on federal double jeopardy grounds. “The ultimate question on

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habeas ... is not how well reasoned the state court decision is, but whether the outcome is
reasonable.” Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001).
4. Conclusion
After a second thorough review of the Petition, the Idaho Court of Appeals’ opinion
attached to the Petition, numerous cases interpreting the Double Jeopardy Clause, and
Petitioner’s Response to the Initial Review Order, the Court again concludes that
Petitioner is not entitled to relief. Petitioner’s arguments and legal citations contained in
his Response to the Initial Review Order provide no further facts or legal argument that
cause the Court to reconsider its decision. The Court has addressed Petitioner’s major
arguments. All other arguments are rejected as not warranting additional discussion.
ORDER
IT IS ORDERED:
1. The Petition for Writ of Habeas Corpus is DENIED. This entire case is
DISMISSED with prejudice.
2. The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a
timely notice of appeal, the Clerk of Court shall forward a copy of the notice of
appeal, together with this Order, to the United States Court of Appeals for the

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Ninth Circuit. Petitioner may seek a certificate of appealability from the Ninth
Circuit by filing a request in that court.
DATED: January 31, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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