Shackelford v. Blades

Filing 29

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Respondent's Motion for Partial Summary Dismissal 17 is GRANTED IN PART. Claims 2(a), 5, 6, 7, 8, and 10 are DISMISSED with prejudice. Respondent must file an answer to the remaining claims within 60 days of the date of this Order. Signed by Judge David C. Nye. (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
DALE CARTER SHACKELFORD,
Case No. 1:15-cv-00020-DCN
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
WARDEN RANDY BLADES,
Respondent.

Pending before the Court is an Amended Petition for Writ of Habeas Corpus filed
by Idaho state prisoner Dale Carter Shackelford (“Petitioner”), challenging Petitioner’s
Latah County convictions of first-degree murder, arson, conspiracy, and preparing false
evidence. Dkt. 9. Respondent has filed a Motion for Partial Summary Dismissal, arguing
that Claims 2(a) and 5 through 10 are procedurally defaulted and that Claim 10 is not
cognizable. Dkt. 17. The Motion is now ripe for adjudication.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. Dkt. 14. See Fed. R. Evid. 201(b);
Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
Having carefully reviewed the record, including the state court record, the Court
finds that the parties have adequately presented the facts and legal arguments in the briefs
and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting in part Respondent’s Motion

MEMORANDUM DECISION AND ORDER - 1

for Partial Summary Dismissal and dismissing Claims 2(a), 5, 6, 7, 8, and 10 with
prejudice.
BACKGROUND
In a jury trial in the Second Judicial District Court in Latah County, Idaho,
Petitioner was convicted of two counts of first-degree murder—for the murders of Donna
Fontaine and Fred Palahniuk—one count of conspiracy to commit murder, one count of
arson, one count of conspiracy to commit arson, and one count of preparing false
evidence. Dkt. 9 at 1-2. He was sentenced to death on the two murder counts, a fixed life
term for conspiracy to commit murder, fixed terms of 25 years for the arson and arson
conspiracy counts, and a fixed five-year term for preparing false evidence, all sentences
to be served concurrently. (State’s Lodging A-15 at 3120-27.)
Pursuant to Idaho’s unified procedures for capital cases, see Idaho Code § 192719, Petitioner filed a petition for state post-conviction relief, which was amended
multiple times, while his direct appeal was stayed. (State’s Lodging B-1 at 10-43, 194230; B-3 at 476-542; B-4 at 756-823; B-12 at 2534-2642; B-13 at 2980-90; B-14 at 31833228.) The state district court granted Petitioner sentencing relief based on Ring v.
Arizona, 536 U.S. 584 (2002),1 thus ordering resentencing on the murder counts; the
court denied Petitioner’s remaining claims. (State’s Lodging B-16 at 3569-3630.) The
State and Petitioner both appealed.

1

Ring held that, pursuant to the Sixth Amendment, a criminal defendant is entitled to have a
jury—rather than a judge—find the aggravating factors necessary to render him eligible for the
death penalty. 536 U.S. at 609.

MEMORANDUM DECISION AND ORDER - 2

The direct appeal and the appeals from the partial denial of Petitioner’s postconviction petition were consolidated. (State’s Lodging C-1.) The Idaho Supreme Court
issued an initial opinion; though the court later denied both parties’ petitions for
rehearing, the court did issue a substitute opinion that did not change the result. (See
State’s Lodging C-12; C-13; C-14; C-17; C-18; C-19.) The court affirmed Petitioner’s
convictions and non-capital sentences, affirmed the denial of Petitioner’s guilt-phase
post-conviction claims, and affirmed the grant of sentencing relief as to Petitioner’s death
sentences.2 State v. Shackelford, 247 P.3d 582, 590-615 (Idaho 2010) (also found at
State’s Lodging C-19). The case was remanded for resentencing on the murder counts.
Petitioner, acting pro se, filed a second petition for post-conviction relief, which
was stayed pending Petitioner’s resentencing. (State’s Lodging F-1 at 18-40, 100-06.)
The State decided not to seek the death penalty on resentencing. (State’s Lodging
D-1 at 14-20.) After a resentencing hearing, the trial court sentenced Petitioner to two
fixed life sentences on the first-degree murder counts, to run consecutively with each
other and with Petitioner’s sentences on the other counts. (State’s Lodging D-1 at 14448.) Petitioner appealed the resentencing, and his attorney argued that (1) the judge
should have recused himself from the resentencing, (2) Petitioner’s rights under the

2

Though the Idaho Supreme Court agreed with the initial post-conviction court that Ring
required resentencing on the murder counts, its analysis was different. The lower court held that
Petitioner’s death sentences were unconstitutional under Ring because the judge, rather than a
jury, weighed the aggravating and mitigating factors in determining whether to impose the death
penalty. (State’s Lodging B-16 at 3579-84.) The Idaho Supreme Court held that the sentences
were unconstitutional under Ring because the jury did not find the statutory aggravating factors
necessary to render Petitioner eligible for the death penalty. (State’s Lodging C-19 at 40-43.)
MEMORANDUM DECISION AND ORDER - 3

Confrontation Clause were violated during resentencing, and (3) the resentencing court
abused its discretion, under Idaho law, by considering certain victim impact evidence.
(State’s Lodging E-4.)
Petitioner then filed a pro se motion to augment his appellate brief in his
resentencing appeal, stating that his appellate attorney chose not to include a
supplemental claim that Petitioner was entitled to have a jury determine his sentence even
though the State had chosen not to pursue the death penalty on remand. (State’s Lodging
E-5.) In that motion, Petitioner argued that a fixed life sentence could not be imposed
unless a jury first found certain aggravating factors. (Id.)
The Idaho Supreme Court denied Petitioner’s pro se motion (State’s Lodging E-7)
and affirmed Petitioner’s consecutive fixed life sentences without addressing Petitioner’s
pro se supplemental claim. Petitioner’s petition for rehearing was denied, but the Court
again issued a substitute opinion that did not change the result. (State’s Lodging E-11; E12; E-13; E-14; E-15.)
In Petitioner’s second post-conviction case, he moved to amend his petition. He
also filed a third petition for post-conviction relief challenging his fixed life sentences on
the first-degree murder counts. (State’s Lodging F-2 at 182-223; G-1 at 6-9.) The state
district court held a consolidated hearing in the two cases and, because the hearing had
been based on the proposed amended petition in the second post-conviction case, granted
Petitioner’s motion to amend his second petition. (State’s Lodging F-2 at 236-37; G-1 at

MEMORANDUM DECISION AND ORDER - 4

21-22.) The Idaho district court dismissed both post-conviction petitions in separate
orders. (State’s Lodging F-2 at 238-47; G-1 at 23-27.)
Petitioner appealed both dismissals, and the appeals were consolidated. (State’s
Lodging H-5.) Petitioner’s counsel’s motion to withdraw was granted, and Petitioner
represented himself on appeal. (State’s Lodging H-1 through H-5.) The Idaho Supreme
Court affirmed the state district court and later denied a petition for rehearing. (State’s
Lodging H-10, H-13.)
In the instant federal habeas corpus petition, Petitioner asserts the following
claims:
1.

Denial of choice of counsel during his pre-trial, trial,
and initial sentencing proceedings;

2(a). Insufficient evidence to establish Count VI of the
Amended indictment [preparing false evidence];
2(b). A violation of due process because the jury
instructions failed to define “produced,” which is an
element of presenting false evidence in Count VI of
the Amended Indictment;
3.

A violation of the Ex Post Facto Clause by failing to
give a “Holder” instruction;[3]

4.

Denial of due process with regard to the conspiracy
counts (Counts IV and V) because there was no
instruction requiring the jury to unanimously agree on
which overt acts were committed and by which coconspirator (Counts IV and V);

3

A Holder instruction was an instruction that the Idaho Supreme Court used to require in
criminal cases where the evidence was circumstantial; that requirement has since been
eliminated. See State v. Humpherys, 8 P.3d 652 (Idaho 2000), overruling State v. Holder, 594
P.2d 639 (Idaho 1979), and State v. Randles, 787 P.2d 1152 (Idaho 1990).
MEMORANDUM DECISION AND ORDER - 5

5.

Insufficient evidence to warrant the giving of
Instruction 33, the aider and abettor instruction, which
impermissibly shifted the burden of proof to require
Shackelford prove an accomplice was not involved;

6.

The state’s withholding of exculpatory evidence in
violation of due process by failing to disclose a
Diagnostic Imaging Report and x-rays stemming from
the autopsy of Donna’s body;

7.

Ineffective assistance of trial counsel for failing to
investigate the bullet found in Donna’s body, its
“missing mass,” and the existence of the x-rays;

8.

Denial of due process based upon prosecutorial
misconduct during closing arguments when the
prosecutor allegedly “vouched” for various witnesses;

9.

A Sixth Amendment violation because a jury did not
find statutory aggravating factors that are allegedly
required for a fixed life sentence; [and]

10.

Ineffective assistance of post-conviction counsel.

(Dkt. 17-1 at 5-6 (quoting Am. Pet., Dkt. 9, at 12-85).)4
The Court previously reviewed the Amended Petition and allowed Petitioner to
proceed on his claims to the extent those claims “(1) are cognizable in a federal habeas
corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted
in state court or subject to a legal excuse for any failure to exhaust in a proper manner.”
Dkt. 10 at 3.
Respondent now argues that Claim 2(a) and Claims 5 through 10 must be
summarily dismissed.

4

The Court uses Respondent’s description of Petitioner’s claims, as Petitioner does not object to
that description.

MEMORANDUM DECISION AND ORDER - 6

DISCUSSION
1.

Standard of Law Governing Summary Dismissal
The Rules Governing § 2254 Cases (“Habeas Rules”) authorize 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,” as well as those records subject to judicial
notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. 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).
2.

Claim 10 Is Not Cognizable
In Claim 10, Petitioner asserts that he received ineffective assistance of counsel

during state post-conviction proceedings. Although, in limited circumstances, ineffective
assistance of initial post-conviction counsel can constitute cause for the procedural
default of a claim of ineffective assistance of trial counsel, Martinez v. Ryan, 566 U.S. 1,
9 (2012), there is no independent, federal constitutional right to the effective assistance of
counsel during state post-conviction proceedings, Pennsylvania v. Finley, 481 U.S. 551,
554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). Thus, Claim 10 must be
dismissed because it is not cognizable on federal habeas review.

MEMORANDUM DECISION AND ORDER - 7

3.

Claims 2(a), 5, 6, 7, and 8 Are Procedurally Defaulted, and Petitioner Has Not
Established Cause and Prejudice, or Actual Innocence, to Excuse that Default
A.

Procedural Default Standard of Law

A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
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 - 8

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).
B.

Claims 2(a), 5, 6, 7, and 8 Are Procedurally Defaulted
i.

Petitioner’s “General Responses” Regarding Procedural Default

Before the Court turns to the procedural default status of each of Petitioner’s
claims, it will address Petitioner’s “General Response,” offered in opposition to
Respondent’s Motion for Partial Summary Dismissal. Petitioner argues that Idaho’s
Uniform Post-Conviction Procedures Act (“UPCPA”), Idaho Code § 19-4901 et seq., is
not consistently applied, or is not applied at all, in capital criminal cases such as
Petitioner’s. (See Dkt. 21 at 1-2.) This appears to be a broad argument that none of the
procedural bars set forth in Idaho’s UPCPA are adequate and independent grounds upon
which to base a finding of procedural default.
It is true that a separate statutory section, found in Chapter 27 of Title 19 of the
Idaho Code, applies to capital criminal proceedings. Section 19-2719 establishes Idaho’s
MEMORANDUM DECISION AND ORDER - 9

unique and unified consolidated direct appeal/initial post-conviction appeal in capital
cases. However, Petitioner is incorrect that the UPCPA, found in Chapter 49 of Title 19,
has no application in the capital context.
In fact, the Idaho Supreme Court—the final authority on the interpretation of
Idaho statutes—has held that § 19-2719’s special procedures supersede the UPCPA in
capital cases “only to the extent that they conflict.” Dunlap v. State, 192 P.3d 1021, 1024
(Idaho 2008); see also Sivak v. State, 8 P.3d 636, 641 (Idaho 2000) (“Where I.C. § 192719 is silent, the [UPCPA] applies.”) (internal citation omitted). Therefore, Petitioner’s
first general argument—that because his case was initially a capital case, none of the
provisions of the UPCPA can constitute an adequate and independent state procedural
ground—is without merit.
Petitioner also asserts, as a “general response,” that the state court failed to timely
resolve his post-conviction case in violation of its own statutory requirements. Dkt. 21 at
2. However, the length of time the state court took to resolve the case has nothing to do
with whether Petitioner fairly presented his claims to that court.
Petitioner’s final general response—that the Idaho Supreme Court did not
adequately identify which claims were denied on procedural grounds and which were
denied on the merits (id. at 3)—is incorrect as a factual matter. The state supreme court
explained its rationale for its rejection of each of Petitioner’s claims during each of his
appeals. (See State’s Lodging C-19, E-14, H-10.)

MEMORANDUM DECISION AND ORDER - 10

The Court now turns to the procedural default status of Claims 2(a), 5, 6, 7, and 8
and to Petitioner’s specific arguments with respect to each of these claims. Respondent
argues that the claims are procedurally defaulted. Petitioner disagrees, arguing that the
claims are not procedurally defaulted either because (1) they were, in fact, fairly
presented to the highest state court, or (2) the state procedural rules relied on by that court
to reject the claims are not adequate and independent.
ii.

Claim 2(a)

In Claim 2(a), Petitioner alleges that there was insufficient evidence to support his
conviction for preparing false evidence because the state did not establish “evidence of
fraudulent or deceitful intent.” Dkt. 9 at 23 (emphasis omitted). Respondent argues that
this claim was never raised to the Idaho Supreme Court. Dkt. 17-1 at 10. The Court
agrees.
On direct appeal, Petitioner raised a claim with respect to the false evidence
charge, but it centered on Jury Instruction No. 30. Petitioner alleged that the instruction
lessened the prosecution’s burden of proof, and violated Petitioner’s right to a unanimous
jury verdict, because that instruction failed to define the word “produced.” (State’s
Lodging C-8 at 32, 41-43.) Petitioner’s only mention of “insufficient evidence” was in an
introductory paragraph to this section of the brief, which stated:
The State charged, and the jury convicted, [Petitioner] of
Preparing False Evidence. However, there was insufficient
evidence to support the element that the evidence was
produced in the State of Idaho or that [Petitioner] had any role
in making the evidence available for legal proceedings.
(Id. at 41.)
MEMORANDUM DECISION AND ORDER - 11

Petitioner’s single passing reference to “insufficient evidence” in this paragraph
relates only to the use of the word “produced.” Thus, with respect to the preparing false
evidence charge, the only sufficiency-of-the-evidence claim that was fairly presented to
the Idaho Supreme Court has to do with the meaning of “produced,” not whether
Petitioner had a fraudulent or deceitful intent in producing the false evidence. Because it
is now too late to raise Claim 2(a) in state court, that claim is procedurally defaulted.
Gray, 518 U.S. at 161-62.
iii.

Claims 5 through 8

Respondent argues that Claims 5, 6, 7, and 8 are procedurally defaulted because
the Idaho Supreme Court rejected each of them based on an adequate and independent
state procedural ground.
a)

Adequate and Independent

“To qualify as an adequate procedural ground, a state rule must be firmly
established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
quotation marks omitted). That is, the state 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 can be considered
adequate even if it is a discretionary rule, even though “the appropriate exercise of
discretion may permit consideration of a federal claim in some cases but not others.”
Beard v. Kindler, 558 U.S. 53, 61 (2009). A state rule’s “use of an imprecise standard ...

MEMORANDUM DECISION AND ORDER - 12

is no justification for depriving a rule’s language of any meaning.” Walker, 562 U.S. at
318 (internal quotation marks and alteration omitted).
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) (en banc). A rule will not be deemed independent of federal law “if the state has
made application of the procedural bar depend on an antecedent ruling on federal law
such as the determination of whether federal constitutional error has been committed.” Id.
(internal quotation marks and alteration omitted); see also Ake v. Oklahoma, 470 U.S. 68,
75 (1985) (stating that “when resolution of the state procedural law question depends on a
federal constitutional ruling, the state-law prong of the court’s holding is not independent
of federal law, and our jurisdiction is not precluded,” and holding that a state waiver rule
was not independent because, “[b]efore applying the waiver doctrine to a constitutional
question, the state court must rule, either explicitly or implicitly, on the merits of the
constitutional question”).
Once the respondent sufficiently pleads the existence of an adequate and
independent state procedural bar, the burden shifts to the petitioner to establish that the
rule is not adequate or is dependent on federal law. “The petitioner may satisfy this
burden by asserting specific factual allegations that demonstrate the inadequacy of the
state procedure, including citation to authority demonstrating inconsistent application of
the rule.” Bennett, 322 F.3d at 586. The ultimate burden to show that the procedural rule
is adequate and independent, however, remains with the state.

MEMORANDUM DECISION AND ORDER - 13

b)

The State Court’s Rejection of Claims 5, 6, 7, and 8 Was
Based on Adequate and Independent Procedural Grounds

The Idaho Supreme Court declined to address Claims 5 through 8 on various
procedural grounds, which—as the Court concludes below—are all adequate and
independent.
1)

Claim 5

Claim 5 asserts that there was insufficient evidence to support Instruction No. 33,
the aider and abettor instruction. Dkt. 9 at 46. Petitioner raised this claim in his
successive post-conviction proceedings.5 (State’s Lodging F-2 at 190-200.) The state
district court rejected this claim both on procedural grounds and on the merits.6 (State’s
Lodging F-2 at 241-43.) The procedural ruling relied on two prongs: (1) to the extent
Claim 5 was raised in prior proceedings, it was barred by res judicata; and (2) to the
extent Claim 5 could have been raised in the prior proceedings, but was not, it was barred

5

On direct appeal, Petitioner raised a different claim regarding Instruction No. 33—that the
instruction was ambiguous in the context of the indictment and the other jury instructions and
that Petitioner was not given adequate notice that he would be tried on an aiding-and-abetting
theory. (State’s Lodging C-8 at 38-41.) Because this is not the same claim that Petitioner asserts
in Claim 5, Petitioner’s arguments on direct appeal did not fairly present Claim 5 to the Idaho
Supreme Court. 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 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).
6

Petitioner claims that the “sole rationale” for the trial court’s dismissal of this claim was on
procedural grounds. Dkt. 21 at 5. Petitioner is incorrect. The opinion of the post-conviction court
clearly stated, “Even were this Court to proceed to the merits, [Petitioner’s] arguments are in
error” and went on to hold that there was, in fact, sufficient evidence to support the aider and
abettor instruction. (State’s Lodging F-2 at 242-43.) This is an alternative ruling, not merely a
“hypothetical” one. Dkt. 21 at 5.
MEMORANDUM DECISION AND ORDER - 14

by statutory provisions found in the UPCPA. (Id.) See Idaho Code § 19-4901(b) (barring,
as forfeited, post-conviction claims that could have been raised on direct appeal) and
§ 19-4908 (barring, as forfeited, successive post-conviction claims that could have been
raised in previous post-conviction proceedings).
Petitioner appealed, nominally challenging both the procedural and merits-based
rulings of the trial court. However, the state supreme court held this claim procedurally
barred because Petitioner “offered no argument or authority” supporting his challenge to
the trial court’s decision to dismiss based on procedural grounds. (State’s Lodging H-10
at 4-5.) A review of Petitioner’s appellate brief shows that state court was correct.
Although Petitioner stated he was challenging the res judicata ruling, he did not provide
any authority to support his challenge, and Petitioner did not challenge the application of
the UPCPA’s forfeiture provisions at all. (State’s Lodging H-7 at 5-10.)
The Idaho court rule requiring both argument and authority in appellate briefing,
see State v. Zichko, 923 P.2d 966, 970 (Idaho 1996), has already been held to be an
adequate and independent state procedural ground, Zichko v. Idaho, 247 F.3d 1015, 1021
(9th Cir. 2001). Petitioner has not explained any reason why the Zichko rule should no
longer be considered adequate and independent. Therefore, Claim 5 is procedurally
defaulted.
2)

Claim 6

Claim 6 alleges that the prosecution violated Brady v. Maryland, 373 U.S. 83
(1963), by failing to disclose a diagnostic imaging report and x-rays from the autopsy of
Donna’s body. Dkt. 9 at 58-65. Petitioner raised this claim in his successive postMEMORANDUM DECISION AND ORDER - 15

conviction proceedings.7 The trial court denied this claim on the merits and because the
claim could have been, but was not, raised in the previous consolidated appeal.8 (State’s
Lodging F-2 at 243-44.)
Petitioner raised this claim on appeal from the dismissal of Petitioner’s successive
petitions. (State’s Lodging H-7 at 11-16.) However, the Idaho Supreme Court held the
claim procedurally barred because Petitioner’s brief did not challenge both the procedural
and merits-based grounds for the dismissal. (State’s Lodging H-10 at 6.)
Where an Idaho trial court gives more than one independent basis for its decision,
“and the appellant challenges only one of those grounds on appeal,” the Idaho appellate
courts will not review the merits of the appellant’s claim. Brown v. Greenheart, 335 P.3d
1, 10 (Idaho 2014) (internal quotation marks omitted). This principle—which appears to
stem directly from the rule that an appellant must support his claims with argument and
authority—has been applied in state post-conviction appeals at least as far back as 1998,
long before Petitioner’s post-conviction appellate proceedings began in 2014. See
Henman v. State, 966 P.2d 49, 51 (Idaho Ct. App. 1998) (“Thus, regardless of Henman’s

7

Petitioner raised some Brady claims in his first appeal—specifically, that the prosecution failed
to disclose to the defense “peer review notes provided by Dr. John Howard concerning Dr.
Cihak’s ‘guesstimate’ of the time of the death based on stomach contents.” (State’s Lodging C-8
at 43-44.) This is different from the Brady claim asserted in the Amended Petition.
8

Petitioner’s contention that the trial court dismissed Claim 6 for the “sole reason” that it was
not previously raised is incorrect. (Dkt. 21 at 6.) The trial court clearly stated that Petitioner’s
new Brady arguments “suffer from the same failure” as his previous Brady claims in that
Petitioner “failed to show a reasonable probability of a different result.” (State’s Lodging F-2 at
243.) This is unquestionably a merits-based decision. That the court went on to hold that the
claim was also procedurally barred does not erase the merits decision on that claim.
MEMORANDUM DECISION AND ORDER - 16

double jeopardy challenge, Henman failed to raise an issue concerning the district court's
independent, alternative basis for dismissal under [State v. Armstrong, 904 P.2d 578
(Idaho Ct. App. 1995)]. Without argument or authority regarding this issue, we will not
presume error and must uphold the district court’s summary dismissal on this alternative
ground.”).
Petitioner has not come forward with any basis for the Court to conclude that this
state procedural rule is not consistently applied or is dependent on federal law. Thus,
Claim 6 is procedurally defaulted.
3)

Claim 7

In Claim 7, Petitioner asserts that his trial counsel rendered ineffective assistance
by in failing to investigate a bullet, including the bullet’s “missing mass,” and by failing
to investigate x-rays. Dkt. 9 at 66-67. Petitioner raised this claim in his second postconviction petition.9 (State’s Lodging F-2 at 209-211.) The state district court dismissed
the claim because Petitioner did not explain why it was not raised in the prior
consolidated appeal. Id. at 244.
Petitioner appealed the dismissal of this claim. (State’s Lodging H-7 at 16-18.)
However, his appellate brief’s only reference to the trial court’s ruling on Claim 7 was
the following: “[Petitioner] counters with the arguments set forth in Claim G of this

9

In Petitioner’s initial post-conviction appellate proceedings, he raised other ineffective
assistance claims—based on counsel’s alleged lack of qualifications, failure to adequately
impeach prosecution witnesses, and failure to adequately prepare defense witnesses—but he did
not raise Claim 7. (State’s Lodging C-8 at 46-51.)
MEMORANDUM DECISION AND ORDER - 17

appeal regarding ineffective assistance of [post-conviction] counsel in failing to raise this
issue, as well [as] fundamental error which [Petitioner] has complained are of such
magnitude and so fundamental to the right to due process ... that this court must
intervene.” (State’s Lodging H-7 at 16 (emphasis omitted).) Petitioner cited no authority
to support this contention, and the remainder of his opening appellate argument on Claim
7 focused on the merits.
The Idaho Supreme Court declined to address Claim 7 because Petitioner did not
challenge the trial court’s conclusion that the claim should have been raised in
Petitioner’s initial post-conviction appeal, pursuant to Idaho’s successive petitions bar:
[Petitioner] offers no explanation or excuse for not bringing
this claim in his original post-conviction petition for relief.
Nor does he challenge the legal basis of the district court’s
adjudication of this claim. His briefing merely reiterates the
perceived merits of the substantive claim. Because
[Petitioner] did not challenge the district court’s legal basis
for summary dismissal of this claim, we affirm its summary
dismissal.
(State’s Lodging H-10 at 7.)
In refusing to consider Claim 7, the Idaho Supreme Court reasonably concluded
that Petitioner’s short reference to the lower court’s procedural ruling, which purported to
incorporate other arguments, did not contain both argument and authority to constitute a
proper appellate challenge to that ruling.10 Although Petitioner contends that he did, in

10

Petitioner asserts that he included argument, with respect to the procedural ruling on Claim 7,
in his reply brief in the Idaho Supreme Court. (Dkt. 21 at 7.) However, that reply brief could not
serve to fairly present Claim 7 because Idaho appellate courts do not consider arguments raised
for the first time in a reply brief. See, e.g., Myers v. Workmen’s Auto Ins. Co., 95 P.3d 977, 990
(Idaho 2004) (“A reviewing court looks to the initial brief on appeal for the issues presented on

MEMORANDUM DECISION AND ORDER - 18

fact, raise Claim 7 in the trial court in his “second addendum to third amended petition
for post-conviction relief” in the initial collateral proceedings (Dkt. 21 at 7 (capitalization
omitted); see also State’s Lodging B-14 at 3216-19), Petitioner was still required—on
appeal—to provide both argument and authority when challenging the lower court’s
dismissal on procedural grounds. As the Court has already stated with respect to Claim 5,
this procedural rule is adequate and independent. See Zichko, 247 F.3d at 1021.
Therefore, Claim 7 is procedurally defaulted.
4)

Claim 8

Claim 8 asserts that the prosecutor committed misconduct by vouching for the
credibility of certain witnesses. Dkt. 9 at 67-75. Petitioner initially brought this claim in
his successive post-conviction proceedings. (State’s Lodging F-2 at 211-18.) The trial
court dismissed the claim both on the merits and because it should have been raised in
prior proceedings.11 (Id. at 244-45.)
Petitioner raised this claim to the Idaho Supreme Court when he appealed the
dismissal of his second and third post-conviction petitions. (State’s Lodging H-7 at 1823.) However, although Petitioner’s opening brief noted the lower court’s procedural

appeal. Consequently, this Court will not consider arguments raised for the first time in the
appellant’s reply brief.”) (internal quotation marks and citations omitted).
11

Petitioner contends that the trial court’s “sole rationale” for dismissing his vouching
claim was on the merits. (Dkt. 21 at 8.) This is incorrect; the trial court explicitly held (1) that the
alleged vouching consisted of reasonable inferences from the evidence, did not prejudice
Petitioner, and thus did not constitute a violation of Petitioner’s constitutional rights (a meritsbased holding) and (2) that Petitioner did not raise the vouching claim in his previous appeal (a
procedure-based holding). (State’s Lodging F-2 at 244-45.)

MEMORANDUM DECISION AND ORDER - 19

basis for dismissal, it did not actually challenge that ruling, stating, “Despite this
[procedural ruling], the district court did discuss matters related to the merits of the
claim”; the brief then went on to challenge that merits decision. (State’s Lodging H-7 at
18.) Once again, the Idaho Supreme Court declined to consider the vouching claim
because Petitioner did not address the trial court’s alternative holding that the claim
should have been raised in the previous appeal. (State’s Lodging H-10 at 7.) Therefore,
Claim 8 is procedurally defaulted for the same reason as Claim 6—because Petitioner
failed to challenge the alternative basis for the trial court’s decision. See Brown, 335 P.3d
at 10; Henman, 966 P.2d at 51.
C.

Petitioner Is Not Excused from the Default of Claims 2(a), 5, 6, 7, or 8

The Court’s conclusion that Claims 2(a), 5, 6, 7, and 8 are procedurally defaulted
does not end the inquiry. A federal district court can still hear the merits of a
procedurally-defaulted claim, but only if the petitioner meets one of two exceptions: (1) a
showing of adequate legal cause for the default and prejudice arising from the default, or
(2) a showing of actual innocence, which means that a miscarriage of justice will occur if
the constitutional claim is not heard in federal court. Murray v. Carrier, 477 U.S. 478,
488 (1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).
Neither an assertion of cause and prejudice nor an assertion of actual innocence is
an independent constitutional claim. Rather, these are federal procedural arguments that,
if sufficiently established by a petitioner, allow a federal court to consider the merits of
an otherwise procedurally-defaulted constitutional claim.

MEMORANDUM DECISION AND ORDER - 20

i.

Petitioner Has Not Established Cause and Prejudice

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 the default may exist as a result of ineffective assistance of counsel. For
example, the failure on appeal to raise a meritorious claim of trial error—or the failure at
trial to preserve a meritorious claim for appeal—may render that claim procedurally
defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452 (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 counsel
(“IAC”)—whether at trial or on direct appeal—to serve as cause to excuse a default, that
IAC claim must itself have been separately presented to the state appellate courts. Id. (“A
claim of ineffective assistance . . . generally must be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.”)
(internal quotation marks and alteration omitted). If the IAC 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. Id. at 453 (“[A]n ineffective-assistance-of-counsel claim asserted

MEMORANDUM DECISION AND ORDER - 21

as cause for the procedural default of another claim can itself be procedurally
defaulted.”).
A petitioner does not have a federal constitutional right to the effective assistance
of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S.
551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the
general rule is that any errors of counsel during a post-conviction action cannot serve as a
basis for cause to excuse a procedural default. Coleman, 501 U.S. at 752.
However, the Supreme Court established an exception to that general rule in
Martinez v. Ryan, 566 U.S. 1 (2012). Martinez held that, in limited circumstances,
“[i]nadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 9. Martinez does not apply to any claims other than claims of ineffective assistance of
trial counsel (“IATC”). See Davila v. Davis, 137 S. Ct. 2058, 2063 (2017) (holding that
Martinez does not apply to underlying claims of ineffective assistance of direct appeal
counsel); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (holding that
Martinez does not apply to underlying Brady claims).
The Supreme Court has described and clarified the Martinez cause and prejudice
test as consisting of four necessary prongs: (1) the underlying claim of ineffective
assistance of trial 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

MEMORANDUM DECISION AND ORDER - 22

was the “initial” collateral review proceeding where the IATC claim could have been
brought12; and (4) state law requires that an IATC 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. Trevino v. Thaler, 569 U.S. 416, 423, 429 (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.
In his response to Respondent’s Motion for Partial Summary Dismissal, Petitioner
argues that cause and prejudice excuse the default of Claims 7 and 8. He invokes the
Martinez exception with respect to in Claim 7, arguing that his initial post-conviction
counsel rendered ineffective assistance in failing to adequately pursue this IATC claim.
Dkt. 21 at 7. However, other than his bare invocation of Martinez, Petitioner offers no
argument—and certainly no evidence—that Claim 7 is substantial or that Petitioner’s
initial post-conviction counsel rendered ineffective assistance with respect to this claim.
(Id.) Thus, Petitioner has not satisfied either of the first two prongs of the Martinez test.
See Trevino, 569 U.S. at 429.
As for Claim 8—the vouching claim—Petitioner asserts that he raised this claim
not only in his successive petition, but also in his initial post-conviction proceedings,
“albeit in a later (amended) filing.” Dkt. 21 at 8. Petitioner does not provide a citation to

12

The Martinez exception applies only to claims that were defaulted in the initial-review
collateral proceeding. A petitioner may not use, as cause to excuse a default, any 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.”
Martinez, 566 U.S. at 16.

MEMORANDUM DECISION AND ORDER - 23

the record to support his assertion, and the Court has found no such document in its
review of the state court record. Because Claim 8 is not an IATC claim, any failure of
Petitioner’s initial post-conviction counsel to adequately present or preserve the claim
does not excuse Claim 8 from default. Martinez v. Ryan, 566 U.S. at 9; Davila, 137 S. Ct.
at 2063; Hunton, 732 F.3d at 1126-27.
Moreover, even assuming that Petitioner did raise Claim 8 in his initial postconviction petition, he did not raise it on appeal from the trial court’s dismissal of that
petition. And ineffective assistance of post-conviction appellate counsel cannot constitute
cause to excuse a procedural default, even of an IATC claim. Martinez v. Ryan, 566 U.S.
at 16 (holding that the Martinez exception does not apply to attorney error occurring in
“appeals from initial-review collateral proceedings”).
Petitioner’s final argument with respect to Claim 8—that the Idaho Supreme
Court’s decision was ambiguous as to the basis for rejecting the claim—is factually
inaccurate. The Court plainly held that Petitioner had failed to challenge both the
procedural and merits-based decisions of the trial court. (See State’s Lodging H-10 at 7
(“Again, [Petitioner] fails to offer explanation or excuse for not bringing this claim in his
original post-conviction action.... Because [Petitioner] did not challenge the district
court’s alternative basis for summary dismissal of this claim, we affirm its summary
dismissal.” (citing Brown, 335 P.3d at 10)).
For the foregoing reasons, Petitioner has not established cause and prejudice to
excuse the default of Claims 2(a), 5, 6, 7, or 8.

MEMORANDUM DECISION AND ORDER - 24

ii.

Petitioner Has Not Established That He Is Actually Innocent so as
To Satisfy the Miscarriage-of-Justice Exception

To establish entitlement to the actual innocence exception to procedural default, a
petitioner must show that he is factually innocent, not merely that the evidence was
legally insufficient to support a conviction. 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
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 analysis “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
MEMORANDUM DECISION AND ORDER - 25

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.
When a district court is considering an actual innocence gateway argument, it has
the discretion to assess the reliability and probative force of the petitioner’s proffer,
including making some credibility determinations, if necessary. Schlup, 513 U.S. at 331332. Although “habeas petitioners who assert convincing actual-innocence claims [need
not] prove diligence to cross a federal court’s threshold,” a court “‘may consider how the
timing of the submission and the likely credibility of a petitioner’s affiants bear on the
probable reliability of evidence of actual innocence.’” McQuiggin v. Perkins, 133 S. Ct.
1924, 1935 (quoting Schlup, 513 U.S. at 332) (alterations omitted).
Petitioner has not submitted any new, credible evidence that he is actually
innocent. Therefore, the procedural default of Claims 2(a), 5, 6, 7, and 8 is not excused.
4.

Claim 9 Is Not Procedurally Defaulted
In Claim 9, Petitioner contends that his fixed life sentences for murder violate the

Constitution because a jury was required to determine the facts that rendered Petitioner
eligible for fixed life imprisonment. Respondent argues that this claim is procedurally
defaulted. The Court disagrees.
Petitioner twice attempted to raise Claim 9 in state court. First, he raised it on
appeal from his resentencing hearing. Petitioner read his attorney’s appellate brief and
discovered that Claim 9 had been omitted. Therefore, he filed a motion to augment the
brief with Claim 9 and argued the merits of that claim. (State’s Lodging E-5.) The Idaho
MEMORANDUM DECISION AND ORDER - 26

Supreme Court denied the motion and did not address the claim. (State’s Lodging E-7, E11.) When Petitioner again tried to raise this claim in his successive post-conviction
appeal, the Idaho Supreme Court denied the claim both on the merits and because it was
not presented by Petitioner’s attorney in the resentencing appeal. (State’s Lodging H-7 at
8-9.)
In Clemmons v. Delo, the petitioner raised a Brady claim in his state postconviction petition, but his appellate post-conviction counsel did not raise that claim on
appeal. Counsel did not include the claim in the appellate briefing despite the fact that the
petitioner “specifically stated [to his attorney] that he wanted all of his issues preserved”
and that the petitioner—after the brief was filed without including all of Clemmons’s
issues—instructed counsel to file a supplemental brief. Id. 124 F.3d 944, 948 (8th Cir.
1997). The petitioner also specifically notified counsel that “issues not raised would later
be held not to have been properly presented.” Id. Counsel responded that the decision on
which claims to raise was correct, stating that he had “made every argument on [the
petitioner’s] behalf that [he] felt could be supported by law and evidence.” Id. Clemmons
then filed a motion with the Missouri Supreme Court, asking that he be allowed to file a
supplemental pro se brief, informing the court that counsel had not included all of the
claims the petitioner had requested. The court denied the motion.
In federal habeas proceedings, Clemmons asserted the Brady claim. He then faced
an argument that the Brady claim was procedurally defaulted because it had not been
fairly presented to the highest state court. The Eighth Circuit held that Clemmons had

MEMORANDUM DECISION AND ORDER - 27

fairly presented the issue, despite counsel’s failure to include it in counsel’s brief,
because Clemmons “did the only thing he could do: he tried to bring the issue to the
attention of the Missouri Supreme Court himself.” Id. Because there was nothing more he
could have done “as a practical matter,” to present that claim, the claim was not
procedurally defaulted. Id. at 948-49; see also Veenstra v. Smith, No. 1:11-CV-00632BLW, 2014 WL 1270626, at *16 (D. Idaho Mar. 26, 2014) (“[T]o fairly present claims in
a circumstance where the petitioner disagrees with counsel’s narrowing of claims, a
petitioner must take steps on his own, such as seeking leave of court to introduce a
supplemental pro se filing containing the additional claims counsel refused to present.”).
The Ninth Circuit considered and then distinguished Clemmons in Custer v. Hill,
378 F.3d 968 (9th Cir. 2004). In that case, Custer’s attorney did not raise an ineffective
assistance claim in the petition for review in the Oregon Supreme Court, which was
required for proper exhaustion. Id. at 974. In federal habeas proceedings, Custer relied on
Clemmons in arguing that he fairly presented his ineffectiveness claim to the state’s
highest court by “request[ing] and receiv[ing] permission from the Oregon Court of
Appeals [the intermediate court of appeals] to file a pro se brief” asserting that claim. Id.
at 974-75.
The court rejected Custer’s argument that his action during post-conviction
appellate proceedings fairly presented the claim to the Oregon Supreme Court. Although
Custer “did take personal action to bring the ineffective assistance of counsel claim to the
attention of the Oregon Court of Appeals by requesting to file a pro se brief ... he did not

MEMORANDUM DECISION AND ORDER - 28

take similar action with regard to the Oregon Supreme Court, the court in which the issue
must be raised to be preserved.” Id. at 975 (emphasis added). Because Custer did not
attempt to present the issue to the highest state court, that claim was not properly
exhausted and was procedurally defaulted.
With respect to the Idaho Supreme Court’s denial of Petitioner’s pro se motion, in
which he presented Claim 9, Petitioner’s case is much more like Clemmons than Custer.
On the direct appeal from Petitioner’s resentencing, where he received two fixed life
sentences for murder, his attorney did not raise Claim 9—that the jury was required to
find aggravating factors necessary to render Petitioner eligible for a fixed life sentence.
(State’s Lodging E-5.) Petitioner then filed his pro se motion arguing Claim 9, but the
Idaho Supreme Court denied the motion.13 (State’s Lodging E-7.) Therefore, following
counsel’s failure to include the issue in the appellate briefing, Petitioner “did the only
thing he could do: he tried to bring the issue to the attention of the [Idaho] Supreme Court

13

Strangely, although Respondent acknowledges that Petitioner filed his pro se motion arguing
Claim 9 on appeal from resentencing, in the very next paragraph Respondent directly contradicts
himself, contending that Petitioner “failed to raise ... the ... issue[]” ... directly with the Idaho
Supreme Court, even in a pro se pleading.” Dkt. 17-1 at 21. Clearly, Petitioner did raise the issue
directly with the Idaho Supreme Court. The Court assumes that Respondent’s mistaken statement
stemmed from an error in failing to proofread the brief, perhaps after language had been copiedand-pasted from another source. The Court also assumes that Respondent’s counsel will be more
careful in future briefing.
Moreover, the Court declines to consider Respondent’s assertion that Petitioner did not raise, and
thus defaulted, Claim 9 in the trial court during resentencing proceedings (id.), because the Idaho
Supreme Court presumably denied Petitioner’s pro se motion regarding Claim 9 on the basis
argued by Respondent at that time—that Petitioner was not entitled to hybrid representation
(State’s Lodging E-6)—not because Claim 9 was forfeited in the trial court. See Gray, 518 U.S.
at 165-66 (“[T]he Commonwealth [was] obligated to raise procedural default as a defense, or
lose the right to assert the defense thereafter.”).

MEMORANDUM DECISION AND ORDER - 29

himself.” Clemmons, 124 F.3d at 948. Therefore, Claim 9 is not procedurally defaulted,
and the Court will deny Respondent’s Motion for Partial Summary Dismissal with
respect to that claim.14
That the Idaho Supreme Court refused to consider Claim 9 on appeal from
resentencing, however, does not negate the fact that it later rejected that claim on the
merits, after Petitioner raised it on appeal from the dismissal of his second and third postconviction petitions. In accordance with Clemmons, the Court will disregard the state
court’s procedural ruling that Petitioner did not raise the claim on appeal from
resentencing. However, because that same court later issued a merits decision on Claim 9,
the claim remains subject to AEDPA’s deferential standard of review under 28 U.S.C.
§ 2254(d). See Apelt v. Ryan, 878 F.3d 800, 825 (9th Cir. 2017) (“[W]hen a state court
‘double-barrels’ its decision—holding that a claim was procedurally barred and denying
the claim on its merits—both its procedural default ruling and its merits ruling are
entitled to deferential review by federal courts, as intended by AEDPA.”).
CONCLUSION
For the reasons set forth above, Claim 10 is not cognizable, Claims 2(a), 5, 6, 7,
and 8 are procedurally defaulted without an adequate excuse for the default, and Claim 9

14

The Court expresses no opinion on Petitioner’s attorney’s decision to omit Claim 9 from the
appellate briefing. An attorney’s failure to raise an issue on appeal rarely constitutes deficient
performance; indeed, “[e]xperienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). The
Court merely concludes that Petitioner’s pro se motion arguing Claim 9, filed after his appellate
attorney did not include the claim, fairly presented the claim to the Idaho Supreme Court.
MEMORANDUM DECISION AND ORDER - 30

is not procedurally defaulted. Therefore, Respondent’s Motion for Partial Summary
Dismissal will be granted in part.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 17) is
GRANTED IN PART. Claims 2(a), 5, 6, 7, 8, and 10 are DISMISSED with
prejudice.

2.

Respondent must file an answer to the remaining claims within 60 days of
the date of this Order. Petitioner may file a reply (formerly called a
traverse), containing a brief rebutting Respondent’s answer and brief,
which must be filed and served within 30 days after service of the answer
and brief. Respondent has the option of filing a sur-reply within 14 days
after service of the reply. At that point, the case will be deemed ready for a
final decision.

DATED: March 29, 2018
_________________________
David C. Nye
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 31