Dixon v. Yordy

Filing 25

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Motion 18 is granted in part and denied in part. Respondent's Motions for Extension of Time 19 , 21 , and 22 are GRANTED. The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED and DISMISSED with prejudice. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DANIEL LEE DIXON,
Case No. 1:14-cv-00551-REB

Petitioner,

MEMORANDUM DECISION
AND ORDER

vs.
KEITH YORDY,
Respondent.

Pending before the Court is Petitioner Daniel Lee Dixon’s federal Petition for Writ
of Habeas Corpus. The merits of Claims 1(L) and 1(M) are now ripe for adjudication, as
are Petitioner’s Motion for Application for Martinez v. Ryan (Dkt. 18), and Respondent’s
three Motions for Extension of Time. (Dkts. 19, 21, 22.)
All named parties have consented to the jurisdiction of a United States Magistrate
Judge to enter final orders in this case. (Dkt. 8.) See 28 U.S.C. § 636(c) and Fed. R. Civ.
P. 73. Having completed a careful review of the record, and having considered the
arguments of the parties, the Court enters the following Order.
BACKGROUND
In 2006, Dixon was convicted of lewd conduct with a minor under sixteen, first
degree kidnapping, misdemeanor possession of drug paraphernalia, and misdemeanor
malicious injury to property, after a jury trial in the First Judicial District Court in
MEMORANDUM DECISION AND ORDER - 1

Kootenai County, Idaho. The incident occurred at a Coeur d'Alene beach park. Petitioner
was accused of grabbing and restraining a twelve-year-old girl, placing her on his lap,
and touching her vagina. Petitioner has always contended that he is actually innocent.
Petitioner’s judgment of conviction was entered on July 19, 2006. After his
conviction, Petitioner filed a direct appeal and three state post-conviction actions, none of
which provided relief on his convictions or sentences.
Petitioner brings the following claims in his federal Petition for Writ of Habeas
Corpus:
Claim 1 is a Sixth Amendment ineffective assistance of trial counsel claim,
consisting of the following subparts:
A. failure to file a notice of appeal, despite Petitioner’s specific request;
B. failure to call witnesses including: (1) Megan Griffitts, (2) the owner of
Funtastic Foods, (3), Reuben Rodriguez, (4) Russell Giles, and (5) six
employees of Diamond Parking and the City Park (Brian, Curtis, Jake,
Heather, Tag, and Marie);
C. (i) failure to request a second evidentiary hearing after the first one was
cancelled in February 2006, and (ii) failure to have Petitioner’s clothing and
telephone records admitted as evidence at trial;
D. failure to use a recorded interview to impeach witness Karisma Cronkite;
E. failure to poll the jury after the guilty verdict;
F. failure to inform Petitioner of his right to file an appeal;
G. wrongly informing Petitioner that he had no Fifth Amendment right to refuse
to take a psychosexual evaluation;
H. failure to file a motion for change of venue;
I. failure to object to the prosecutor vouching for the credibility of two witnesses
during closing argument;
J. failure to file a post-conviction appeal (post-conviction counsel);

MEMORANDUM DECISION AND ORDER - 2

K. (i) failure to have Petitioner’s clothing examined for DNA evidence; (ii) failure
to have his clothing submitted to the jury, so they could see the clothing did not
fit the description of the witnesses (duplicative of (C)(ii) above);
L. failure to request a change of location from the jail building to a regular court
room;
M. failure to have his medical records and arm examined by an expert to show that
he had an injury so severe that it was a factual impossibility for him to have
committed the crime; and
N. failure to spend adequate time to effectively represent Petitioner, including
failure to prepare for trial, and failure to prepare Petitioner for his testimony at
trial.
Claim 2 is that Petitioner was denied the right to a fair trial when the trial court
refused to allow Petitioner to call witnesses during trial. Claim 3 is that he was denied the
right to a fair trial when the prosecutor refused to give Petitioner exculpatory evidence.
Claim 4 is denial of the right to a fair trial under a cumulative error theory.
Earlier in this matter, the Court denied Claims 1(A), 1(F), and 1(J) on the merits. 1
(Dkt. 17.) The Court also granted Respondent’s Motion for Summary Dismissal on
procedural default grounds on Claims 1(B), 1(C), 1(D), 1(E), 1(G), 1(H), 1(I), 1(K), 1(N),
2, 3, and 4. Petitioner was permitted to make a Martinez v. Ryan cause and prejudice
argument to excuse the procedural default of the ineffective assistance of trial counsel
claims only, which are Claims 1(B), 1(C), 1(D), 1(E), 1(G), 1(H), 1(I), 1(K), and 1(N).
Petitioner has filed his briefing (Dkt. 18), which the Court addresses below.

Claim 1(A), (F), and (J) were summarily denied as having no factual and/or legal basis: Petitioner
did file a timely notice of appeal in the direct appeal action, which was pursued to completion. Where
Petitioner is referring to his post-conviction counsel’s failure to file a notice of appeal in the postconviction action, the claim has no legal basis: errors in post-conviction review are not cognizable federal
habeas corpus claims. In any event, Petitioner’s post-conviction appeal rights were restored, and he
completed an appeal.
1

MEMORANDUM DECISION AND ORDER - 3

The Court permitted Petitioner to proceed to the merits of Claims 1(L) and 1(M).
(Dkt. 17.) Respondent has filed an Answer and Brief in Support of Dismissal of the
Petition (Dkt. 24), and Petitioner has elected not to file a Reply.
CONSIDERATION OF MERITS OF CLAIMS 1(L) and 1(M)
1. Standard of Law
Federal habeas corpus petitions that challenge a state court judgment are governed
by the strict requirements of Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). 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 must come only from the holdings of
the United States Supreme Court. However, circuit court precedent may be persuasive
authority for determining whether a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime, 200 F.3d at 600-01.
Strickland v. Washington, 466 U.S. 668, 689 (1984), is clearly-established law
governing ineffective assistance of counsel claims, and the Supreme Court in Strickland
made clear that judicial scrutiny of defense counsel’s performance must be highly
deferential. Strickland v. Washington, 466 U.S. 668, 689 (1984). There is a strong

MEMORANDUM DECISION AND ORDER - 4

presumption that counsel rendered adequate assistance and exercised reasonable
professional judgment. Id. To prevail on a claim for ineffective assistance of counsel, the
petitioner must show that (1) the attorney’s performance was unreasonable under
prevailing professional standards, and (2) a reasonable probability that but for counsel’s
poor performance, the results would have been different. Id. at 687–94. Strickland defines
reasonable probability as “a probability sufficient to undermine confidence in the
outcome.” Id.
Additionally, the Supreme Court has cautioned 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.”
Id. at 689.
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” 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. To constitute Strickland prejudice,
“[t]he likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 104 (2011) (Richter).
A petitioner must establish both deficient performance and prejudice to prove an
ineffective assistance of counsel case. Strickland, 466 U.S. at 697. On habeas review, the

MEMORANDUM DECISION AND ORDER - 5

court may consider either prong of the Strickland test first, or it may address both prongs,
even if one is deficient and will compel denial. Id.
The foregoing standard, giving deference to counsel’s decision-making, is the “de
novo” standard of review that a state court applies. Another layer of deference—to the
state court decision—is afforded under AEDPA. In giving guidance to federal district
courts reviewing Strickland claims in habeas corpus actions, the United States Supreme
Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101.
That is, when evaluating a claim of ineffective assistance of counsel in a federal
habeas proceeding under § 2254(d), the Court’s review of that claim is “doubly
deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

MEMORANDUM DECISION AND ORDER - 6

2. Discussion of Claim 1(L)
Claim 1(L) is that trial counsel was ineffective under the Sixth Amendment for
failing to assert that holding the trial in the jail courtroom violated Petitioner’s Sixth and
Fourteenth Amendment rights to a fair trial. The trial location was described as follows:
Dixon’s trial was held in a courtroom in the Kootenai County
Public Safety Building (safety building), the building that also
houses the county jail. The safety building is a concrete
building surrounded by tall fences and razor wire. Jurors enter
the building through heavily-tinted doors and enter the
courtroom by passing through a security booth protected by
thick bulletproof glass. To get through security, the jurors
must speak to jail staff through an intercom. Inside the
courtroom, the jury box is shielded on the left by thick glass,
which is presumably to protect the jury from inmates entering
the courtroom from the side entrance. The safety building is
located roughly three miles away from the majority of the
other courtrooms utilized by the county.
(State’s Lodging G-15, p. 1.)
In rejecting this claim in Petitioner’s state post-conviction proceedings, the state
district court noted that it was aware of no other defense attorneys who had objected to
holding criminal trials in the safety building. In addition, Petitioner’s counsel had never
objected to holding a criminal trial there. The state district court concluded that the
failure to object to the trial location was not objectively unreasonable, because in 2006
the law was not sufficiently clear to have put trial counsel on notice that an objection
should have been made.
In the state courts, Petitioner brought forward four prior cases from different state
courts holding that defendants’ rights to an impartial trial were violated when their trials
were held in prison. The Idaho Court of Appeals distinguished these cases by stating that
MEMORANDUM DECISION AND ORDER - 7

Petitioner’s case was held in a jail, not a prison. In addition, the Idaho Court of Appeals
noted that the main case Petitioner cited that disallowed a criminal trial in a jail was
published four years after Petitioner’s 2006 trial—State of Washington v. Jaime, 233 P.3d
554 (Wash. 2010).
The Idaho Court of Appeals concluded:
Given the state of the law at the time of Dixon’s conviction,
with no Idaho precedent or other case law dealing with
holding a trial within a jail, we cannot say it is objectively
unreasonable for an attorney to have failed to object….
Because we hold that Dixon failed to show that his trial
counsel provided deficient representation, we need not
address whether Dixon suffered prejudice.
(State’s Lodging G-15, p. 3.)2
The Idaho Court of Appeals recognized and applied Strickland v. Washington.
This Court must analyze whether—under the doubly-deferential habeas corpus standard
defined by Harrington v. Richter—the Idaho Court of Appeals’ decision was an
unreasonable determination of the ineffective assistance claim on the facts of Petitioner’s
case. See Williams, 529 U.S. at 407. “Section 2254(d)(1) provides a remedy for instances
in which a state court unreasonably applies [Supreme Court] precedent; it does not

2

The Idaho Court of Appeals acknowledged:
Dixon correctly points out that a common practice of unconstitutional behavior
does not make that practice objectively reasonable. However, the significance of
no other attorneys objecting supports that at the time of Dixon’s trial, the law
was not sufficient established to demonstrate that an attorney was deficient for
failing to object to holding the trial in the safety building.

(State’s Lodging G-15, p. 3, n.3.)

MEMORANDUM DECISION AND ORDER - 8

require state courts to extend that precedent or license federal courts to treat the failure to
do so as error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014).
There is no United States Supreme Court precedent expressly holding that a
defense lawyer was ineffective for failing to object to a trial setting in a jail courtroom.
Nevertheless, because ineffective assistance involves a case-specific analysis, if
Petitioner shows that the two prongs of Strickland are clearly met under the guidance
provided in that case, habeas corpus relief is available to him. See Wiggins v. Smith, 539
U.S. 510, 522 (2003) (discussing that no new ineffective assistance law was made in
Williams v. Taylor, 529 U.S. 362 (2000), because it was squarely governed by the
holding in Strickland). However, the first part of the Court’s analysis is not to examine
Strickland, but to review the substantive law available to trial counsel in 2006 that would
have informed the reasonableness of her decision about Sixth and Fourteenth
Amendment fair trial practices. The United States Supreme Court has not addressed
whether holding a criminal trial in a jail violates a defendant’s right to a fair trial.
In Estelle v. Williams, 425 U.S. 501 (1976) (Williams), the Supreme Court
addressed the issue of defendants who are compelled to wear prison attire to stand trial on
criminal charges. The Court observed:
“The principle that there is a presumption of innocence in
favor of the accused is the undoubted law, axiomatic and
elementary, and its enforcement lies at the foundation of the
administration of our criminal law.” Coffin v. United States,
156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481, 491
(1895).
To implement the presumption, courts must be alert to factors
that may undermine the fairness of the fact-finding process.
MEMORANDUM DECISION AND ORDER - 9

In the administration of criminal justice, courts must carefully
guard against dilution of the principle that guilt is to be
established by probative evidence and beyond a reasonable
doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072,
25 L.Ed.2d 368, 375 (1970).
425 U.S. at 503.
The Williams Court held that “the State cannot, consistently with the Fourteenth
Amendment, compel an accused to stand trial before a jury while dressed in identifiable
prison clothes.” Id., at 512. However, the Court also clarified that “the failure to make an
objection to the court as to being tried in such clothes, for whatever reason, is sufficient
to negate the presence of compulsion necessary to establish a constitutional violation.”
425 U.S. at 512-13.
Ten years later, in Holbrook v. Flynn, 475 U.S. 560 (1986) (Flynn), the Supreme
Court rejected a claim that four troopers sitting quietly during trial in the front row of the
courtroom to guard five defendants who had been denied bail was so inherently
prejudicial that it denied Defendant Holbrook his constitutional right to a fair trial. Id. at
572. In its analysis, the Court identified shackling and prison clothes as “unmistakable
indications of the need to separate a defendant from the community at large,” but
observed that “the presence of guards at a defendant’s trial need not be interpreted as a
sign that he is particularly dangerous or culpable.” Id. at 569.
Petitioner argues that trial counsel should have been on notice from the Supreme
Court’s decision in Flynn that holding a criminal trial in jail violates Petitioner’s right to
a fair trial. Respondent disagrees, arguing that Flynn considered only whether the
presence of multiple officers in an ordinary courtroom deprived the defendant of his
MEMORANDUM DECISION AND ORDER - 10

constitutional right to a fair trial—it had nothing to do with a jailhouse courtroom. Of
course, disagreements over whether extensions of the law were clear or murky in 2006 is
exactly the issue at hand.
In the 2010 Washington Supreme Court case that Petitioner relied on in his state
post-conviction case, State v. Jaime, the justices likewise had competing opinions. A
majority of the Washington Supreme Court decided:
[U]nder the analysis of [Flynn], holding a trial in a jail
courtroom is inherently prejudicial for two reasons. First, the
setting is not in a courthouse, a public building whose
purpose is to provide a neutral place to conduct the business
of the law. Second, the setting that replaces the courthouse
has a purpose and function that is decidedly not neutral,
routine, or commonplace. Holding a criminal trial in a
jailhouse building involves such a probability of prejudice
that we must conclude it is “‘inherently lacking in due
process.’” [Flynn], 475 U.S. at 570, 106 S.Ct. 1340 (quoting
Estes [v. Texas), 381 U.S. [532], 542–43, 85 S.Ct. 1628
[1965]).
233 P.3d at 557.
On the other hand, the dissenting opinion in Jaime reasoned:
To reach today’s holding, the majority first relies on cases
involving shackles and prison garb. While there is no doubt
that it is inherently prejudicial to shackle a defendant during
trial, State v. Finch, 137 Wash.2d 792, 844, 846, 975 P.2d
967 (1999), or force a defendant to wear prison garb during
trial, Estelle v. Williams, 425 U.S. 501, 502, 96 S.Ct. 1691, 48
L.Ed.2d 126 (1976), conducting a trial in a permanent
courtroom in the jail building does not raise the same
constitutional concerns. Shackling can be of such a physical
restraint as to deprive a defendant of the right to appear and
defend himself or herself. State v. Williams, 18 Wash. 47, 51,
50 P. 580 (1897); 562 Wash. Const. art. I, § 22. *873
Shackling is also a very visible restraint that indicates to the
jury the defendant is so dangerous as to not be trusted even by
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the judge. Finch, 137 Wash.2d at 845, 975 P.2d 967.
Similarly, a defendant who is forced to wear prison garb is
distinctly marked as a dangerous or guilty person. See Estelle,
425 U.S. at 504–05, 96 S.Ct. 1691.
But Jaime's entitlement “to the physical indicia of innocence”
is limited; it confers the “right of the defendant to be brought
before the court with the appearance, dignity, and self-respect
of a free and innocent man,” not to choose a particular
courtroom. Finch, 137 Wash.2d at 844, 975 P.2d 967. A
courtroom is a location, not an accoutrement. Because a
courtroom does not serve as an identifier, it does not possess
the inherently prejudicial power of a shackle or a prison
uniform. While some aspects of a court setting may cause
prejudice in certain cases, there simply is no basis to conclude
that the practice of conducting trials in a jail building
courtroom is always and inherently prejudicial.
233 P.3d at 561–62 (Fairhurst, J. (dissenting)).
This illustration of differing opinions on the issue at hand leads into the Court’s
next point of analysis, which is whether, under the Strickland standard, trial counsel acted
unreasonably in failing to identify the jail location issue. Because this issue has not been
squarely addressed by the United States Supreme Court, this Court first reviews cases in
another similar area—the “cause and prejudice” analysis in habeas corpus procedural
default.
The United States Supreme Court addressed the issue of “novelty” of a
constitutional claim in Engle v. Isaac, 456 U.S. 107 (1982),3 when it considered whether
the novelty of an issue functioned as an excuse or “cause” in a “cause and prejudice”
procedural default analysis. The Supreme Court reasoned that a claim cannot be

3

Engle was overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995) (addressing
Ohio's contemporaneous objection rule).

MEMORANDUM DECISION AND ORDER - 12

considered novel where it was “perceived and litigated” by other defense counsel at the
time. Id. at 132–33 and n.41. Revisiting the issue in 1984 in Reed v. Ross, the Supreme
Court held that a petitioner established “cause” for a procedurally-defaulted claim where
the constitutional claim is so novel that its legal basis is” not reasonably available to
counsel.” 468 U.S. 1, 16 (1984).
The Court next surveys circuit precedent for cases involving ineffective assistance
of counsel claims focused on novel legal issues. See Duhaime, 200 F.3d at 00-01. The
Eighth Circuit has reasoned that, when an issue was “overlooked by several extremely
competent folks, starting with the probation officer …. and ending with the district
court,” the oversight “bolsters the conclusion that there was no actionable Sixth
Amendment violation.” Pierce v. United States, 686 F.3d 529, 534 (8th Cir. 2012). In
Pierce, no ineffectiveness was found where there was a “paucity of case law describing
th[e] precise situation,” and “a myriad of others [had] missed the same point.” Id. The
Seventh Circuit has held that a defense lawyer is “not ineffective for failing to anticipate
a novel argument, even if a more clever lawyer might have spotted it on the horizon.”
United States v. Rezin, 322 F.3d 443, 446–47 (7th Cir. 2003), overruled on other grounds
by Lockhart v. United States, 136 S.Ct. 958 (2016).
The Eleventh Circuit has determined that, although “[i]gnorance of well-defined
legal principles is nearly inexcusable,” “the rule that an attorney is not liable for an error
of judgment on an unsettled proposition of law is universally recognized.” Smith v.
Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999) (internal quotations omitted). Cf. United
States v. Jones, 918 F.2d 9, 11 (2d Cir. 1990) (holding that an ineffective assistance of
MEMORANDUM DECISION AND ORDER - 13

counsel claim has no merit when, at the time of trial, the question of whether conspiracy
could serve as a predicate act was an unsettled question of law); Nelson v. Estelle, 642
F.2d 903, 908 (5th Cir. 1981) (concluding that “counsel is normally not expected to
foresee future new developments in the law”).
In Anderson v. United States, 393 F.3d 749 (8th Cir. 2005), the Court explained
why an attorney who failed to catch the wave ahead of a new development in the law was
not ineffective:
Under the facts alleged by Anderson, we cannot conclude that
his counsel’s performance on direct appeal was
constitutionally deficient. Specifically, we cannot say that
counsel’s failure to assert the argument that Apprendi
invalidated Anderson's previous guilty plea was so egregious
as to have deprived Anderson of his Sixth Amendment right
to counsel. While the argument, in hindsight, may have had
merit, it was a wholly novel claim at the time. Apprendi had
not been decided when Anderson’s opening appellate brief
was filed and, although Apprendi was issued shortly before
Anderson’s reply brief was due, no published opinion in our
Circuit (nor any other circuit) addressed Apprendi’s effect on
previously entered guilty pleas. Counsel’s failure to raise this
novel argument does not render his performance
constitutionally ineffective. While the Constitution guarantees
criminal defendants a competent attorney, it “does not insure
that defense counsel will recognize and raise every
conceivable constitutional claim.” Engle v. Isaac, 456 U.S.
107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
Id. at 754.
Surveying the Idaho legal landscape in 2006, this Court finds nothing contrary to
the Idaho courts’ conclusions that Idaho attorneys were not objecting to holding criminal
trials at the jail. Nothing in the record suggests that Idaho attorneys recognized the issue
and regularly objected in 2006. Rather, the record shows the opposite: no one had
MEMORANDUM DECISION AND ORDER - 14

objected and Petitioner’s lawyer had never thought to object on grounds that holding a
criminal trial at the jail was so inherently prejudicial that it deprived her clients of a fair
trial.
In today’s world, this Courts finds the general practice of holding a criminal trial
in a heavily-secured jail courtroom troubling in theory, but each decision about whether a
court practice is “inherently prejudicial” must be viewed under the particular facts of a
case. Pertinent here is the fact that nothing in the record shows whether, twelve years ago
when criminal trials were regularly held in the Kootenai County Jail courtroom, there was
an essential state or county policy or issue necessitating its use.
The dearth of case law on this particular topic at the time of Petitioner’s trial leads
this Court to conclude that Petitioner’s trial counsel did not act unreasonably or
deficiently in failing to object to the jail location on fairness grounds. The Sixth
Amendment guarantees the right to adequate counsel, not the best counsel.
Even if this Court were to conclude in its independent judgment that the state
court’s decision on the performance prong of Strickland is incorrect or wrong, habeas
corpus relief is not warranted unless (1) the state court’s application of Strickland was not
merely erroneous but also objectively unreasonable, Lockyer v. Andrade, 538 U.S. 63, 75
(2003), and (2) the prejudice prong of Strickland is met. If fairminded jurists could
disagree on the correctness of the state court’s decision, relief is not warranted under
§ 2254(d)(1). Richter, 562 U.S. at 101. The bar is a high one, as “even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable.” Id. (internal
citation omitted).
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Here, because no one in Idaho had objected to the jail courtroom location at the
time of Petitioner’s trial and no Idaho appellate court or United States Supreme Court
precedent existed to require an objection, fairminded jurists could disagree about whether
Petitioner’s counsel should have argued that existing case law should have been extended
to cover Petitioner’s jailhouse court proceeding.
Fairminded jurists could also disagree about whether prejudice resulted from the
omission. Reviewing the prejudice prong, the Court agrees with the state district court
that there was neither deficient performance nor prejudice to Petitioner’s defense from
the failure to object because Petitioner “voluntarily, and against his counsel’s advice,
informed the jury that he was incarcerated.” (State’s Lodging C-1, p. 90.) Petitioner’s
counsel testified at the post-conviction hearing: “Mr. Dixon was very specific that he
wanted the jury to know the conditions under which he was being held, how long he was
incarcerated, and how he was being treated.” (Id.) Therefore, Petitioner himself injected
the element of incarceration into jurors’ minds by his own choice; a denied objection to
hold the trial elsewhere would not have provided the jurors with new information that
Petitioner was incarcerated as a pretrial detainee.
For all of the foregoing reasons, the Court concludes that habeas corpus relief on
Claim 1(L) is not warranted for the failure to show either deficient performance or
prejudice under the doubly-deferential federal habeas corpus standard.

MEMORANDUM DECISION AND ORDER - 16

3. Discussion of Claim 1(M)
Claim 1(M) is that trial counsel was ineffective for failing to have his medical
records and his arm examined by an expert to show that he had an injury so severe that it
was a factual impossibility for him to have committed the crime as alleged. Petitioner is
referring to the victim’s testimony that Petitioner picked her up and that she weighed
between 80 to 90 pounds (State’s Lodging A-7, pp. 66-67); he asserts he was physically
unable to do so. Petitioner asserts that, had a medical expert been called on his behalf,
such testimony would have proven that Petitioner could not have committed the crime.
The Idaho Court of Appeals affirmed the state district court’s dismissal of this
claim, determining that Petitioner did not meet either prong of Strickland. (State’s
Lodging G-15, p. 4.) First, the Court of Appeals pointed to the fact that Petitioner had
never brought forward admissible expert testimony to establish exactly what a medical
expert would have testified to at Petitioner’s trial. In addition, the post-conviction
evidentiary hearing established that it was Petitioner’s choice not to delay the trial to
allow his counsel to procure a medical expert because Petitioner wanted to be released
from jail as soon as possible. (State’s Lodging E-2, pp. 101-105, 124-128.)
To attempt to cure the lack of expert testimony ten months after the postconviction order of dismissal, Petitioner filed a Rule 60(b)(6) motion to modify the postconviction judgment , to which was attached an affidavit containing the opinion of Allan
Goodall, a physical therapist. The Idaho Court of Appeals refused to consider the
affidavit because Petitioner did not show unique and compelling circumstances that

MEMORANDUM DECISION AND ORDER - 17

would permit him to use a Rule 60(b) motion to supplement the evidence his counsel
presented at the post-conviction evidentiary hearing.
Even considering the affidavit, the Court still comes to the same conclusion as
when it considered it for Petitioner’s claim that he is actually innocent of the crime
because he was physically unable to commit the crime as a result of his injury. (Dkt. 17.)
The affidavit highlights the variability of human healing—which does not support
Petitioner’s claim. Mr. Goodall opined: “These type of injuries usually will take 60 to 90
days and up to a full year to sufficiently heal before being close to being 100%.” (Dkt. 13, p. 2.)
Petitioner had emergency surgery for an injury that occurred on April 19, 2005,
when a piece of sheet metal fell on his arm and sliced several of his tendons and an
artery. Petitioner was arrested on June 20, 2005, which was 63 days after his surgery.
(State’s Lodging E-2, p. 16.) According to Mr. Goodall’s opinion, Petitioner was three
days into the low end of the time period Mr. Goodall considered “healed,” and thus it was
possible that Petitioner could have committed the crime in the manner described by the
witnesses. Regardless, a physical therapist who was not at the scene would have no actual
knowledge of whether Petitioner actually grabbed or picked up the girl, but could offer
only general, speculative testimony not narrowed to the particular date and incident.
Petitioner has not explained how his counsel was ineffective for complying with
his desires to go to trial quickly, before counsel could retain an expert witness. The only
expert witness testimony that Petitioner offers is equivocal, at best, in aiding his case.
Further, there was ample eyewitness testimony to discredit any speculative expert witness
MEMORANDUM DECISION AND ORDER - 18

testimony on whether or not Petitioner could have picked the girl up at that point in time.
The fact that the expert witness was not a treating physician and had not examined
Petitioner during the course of his injury and healing likely would have led the jury to
conclude that the testimony was speculative.
This Court concludes that Petitioner has not shown that his trial counsel was
ineffective for failing to bring forward expert testimony in the face of Petitioner’s desires
to go to trial so quickly that there was insufficient time to hire an expert. In addition, the
Court concludes that the affidavit of the physical therapist that Petitioner submitted with
his Rule 60(b) motion does not establish prejudice because it is speculative and actually
suggests that Petitioner could have been healed enough to lift the girl. Furthermore,
eyewitness testimony would have corroborated the possibility that Petitioner could have
picked up the girl at the 63-day mark in his healing process.
Because this is federal habeas review, an additional layer of deference must be
accorded to the Idaho Court of Appeals’ decision. Because reasonable jurists could
disagree with the conclusion of the Idaho Court of Appeals that Petitioner failed to meet
the Strickland standard, Claim 1(M) is subject to denial on the merits.
DISCUSSION OF PETITIONER’S MARTINEZ V. RYAN MOTION
1. Standard of Law
A habeas petitioner must exhaust his 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). A procedurally defaulted claim will not be heard in federal court unless the

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petitioner shows that there was legitimate cause for the default and that prejudice resulted
from the default. Murray v. Carrier, 477 U.S. 478, 488 (1986).
In Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court held that
inadequate assistance of post-conviction review (PCR) counsel or lack of counsel “at
initial-review collateral review proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Id. at 9. To show
ineffective assistance of PCR counsel, Petitioner must show that the defaulted ineffective
assistance of trial counsel claims are “substantial,” meaning that the claims have “some
merit.” Id. at 14. To show that each claim is substantial, Petitioner must show that trial
counsel performed deficiently, resulting in prejudice, defined as a reasonable probability
of a different outcome at trial. Id.; see Strickland, 466 U.S. at 695-96.
The Martinez v. Ryan exception applies only to defaulted claims of ineffective
assistance of trial counsel; it has not been extended to other types of claims. See Davila v.
Davis, 137 S. Ct. 2058 (2017) (holding that Martinez is not applicable to claims of
ineffective assistance of direct appeal counsel); Hunton v. Sinclair, 732 F.3d 1124 (9th
Cir. 2013) (holding that Martinez is not applicable to a defaulted Brady claim).
In addition, Martinez does not apply to post-conviction appeals, only initial postconviction proceedings. Therefore, any claims that were included in the original petition
but were not included in the post-conviction appeal are defaulted because of appellate
counsel’s decision to not include them in the appeal, rather than any fault of the attorney
who handled the initial post-conviction matter in the state district court.

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As to any ineffective assistance claims that were not brought in the original postconviction action, Petitioner must show that lack of an attorney or the ineffectiveness of
his attorney on post-conviction review caused the default of the claims. Ineffectiveness
mean that post-conviction counsel performed deficiently, and the omissions were not
simply the result of the strategic selection of issues for post-conviction review.
In addition, Petitioner must show that the defaulted ineffective assistance of trial
counsel claims are “substantial,” meaning that the claims have “some merit.” Martinez,
566 U.S. at 14. To show that each claim is substantial, Petitioner must show that trial
counsel performed deficiently, resulting in prejudice, defined as a reasonable probability
of a different outcome at trial. Id.; see Strickland, 466 U.S. at 695-96.
2. Discussion
Petitioner has requested an evidentiary hearing on the Martinez issue, but, for the
reasons that follow, the request will be denied. Petitioner does not address the reason for
the default of each claim, but persists in arguing that the claims are not defaulted. Neither
does Petitioner address the substantiality of each or any claim, but vaguely asserts: “The
claims are clear and are found to be substantial.” (Dkt., p. 6.) He points the Court back to
his memorandum of law in support of his habeas petition and his motion to re-open the
case, where he asserts he “has thoroughly explained his claims of ineffective assistance of
counsel.” (Id.) Therefore, the Court has reviewed the documents to which Petitioner has
referred, and the Court has reviewed the entire record, as well.

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Respondent argues that Martinez does not apply to Petitioner’s case, because he
has failed to show that the ineffectiveness of his post-conviction counsel caused the
default of any of his claims of trial counsel ineffectiveness. (Dkt. 23, pp. 2-3.)
Petitioner presented his claims to the state district court in the post-conviction petition;
however, the claims were not presented on appeal of denial of the post-conviction
petition. The Court agrees that it was post-conviction appellate counsel’s decision, not
counsel in the initial post-conviction action, that led to default of the claims. Postconviction appellate counsel’s decisionmaking is beyond the scope of Martinez.
Accordingly, Petitioner cannot rely on that exception to excuse the default of his
claims, and no other adequate excuse for their default is apparent from the Court’s review
of the record. Because the fact of lack of causation is clear from the record, no
evidentiary hearing is required. Therefore, these claims will be dismissed with prejudice
on the record currently before the Court.
CONCLUSION
The Court concludes that Petitioner has not met the standard for habeas corpus
relief for Claims 1(L) and 1(M). These claims are subject to denial and dismissal with
prejudice. The Court cannot hear the procedurally defaulted claims for Petitioner’s failure
to show cause in the cause and prejudice exception analysis. Accordingly, this entire
action will be dismissed with prejudice.

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ORDER
IT IS ORDERED:
1. Petitioner’s Motion for Application of Martinez v. Ryan (Dkt. 18) is GRANTED
to the extent that the Court has considered Petitioner’s arguments; it is DENIED to
the extent that the Court concludes that the Martinez v. Ryan exception does not
apply and that no evidentiary hearing is required.
2. Respondent’s Motions for Extension of Time (Dkts. 19, 21, 22) are GRANTED.
3. The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED and DISMISSED
with prejudice.
4. The Court finds that the decisions resolving Petitioner’s claims are not reasonably
debatable, and, therefore the Court declines to grant a certificate of appealability
over either the procedural or substantive rulings in this case. See 28 U.S.C. §
2253(c); Rule 11 of the Rules Governing Section 2254 Cases.
5. 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 Ninth Circuit. Petitioner may seek a certificate of appealability
from the Ninth Circuit by filing a request in that court.
DATED: March 28, 2018

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