Shackelford v. Blades

Filing 46

MEMORANDUM DECISION AND ORDER - Claims 1, 2(b), 3, 4, and 9 of the Amended Petition for Writ of Habeas Corpus (Dkt. 9 ) are DENIED. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

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 prisoner Dale Carter Shackelford (“Petitioner” or “Shackelford”), challenging
Petitioner’s Latah County convictions and fixed life sentences. Dkt. 9. The Court
previously dismissed Claims 2(a), 5, 6, 7, 8, and 10 of the Amended Petition. See Dkt. 29.
The remaining claims in the Amended Petition—Claims 1, 2(b), 3, 4, and 9—are now fully
briefed and ripe for adjudication. Dkt. 37, 39, 44.
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 in this matter, including the state court record,
the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).

MEMORANDUM DECISION AND ORDER - 1

Accordingly, the Court enters the following Order denying habeas corpus relief.
BACKGROUND
Absent clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1),
the following facts of Petitioner’s case, as described by the Idaho Supreme Court, are
presumed correct1:
Dale Shackelford was convicted of the murders of his ex-wife,
Donna Fontaine, and her boyfriend, Fred Palahniuk, which
occurred near the Latah County town of Kendrick, Idaho, in
May 1999. The State alleged that Shackelford conspired with
Martha Millar, Bernadette Lasater, Mary Abitz, Sonja Abitz,
and, John Abitz. Millar and Lasater worked for Shackelford's
trucking business, Shackelford Enterprises, in Missouri. The
Abitz family lived near the residence where the bodies of
Donna and Fred were found. Sonja Abitz was Shackelford’s
fiancée at the time of the murders, and John and Mary Abitz
are Sonja's parents. The alleged conspirators eventually pled
guilty to charges related to the murders.
Shackelford and Donna married in Missouri in December 1995
and the relationship ended in the summer of 1997, with the
couple divorcing in November of that year. Donna accused
Shackelford of raping her in July 1997, and charges were filed
in 1998. In the spring of 1999, Donna developed a relationship
with Fred and, on May 28, 1999, the two visited Donna's
brother, Gary Fontaine, at the home Gary and Donna's daughter
owned together outside of Kendrick. The morning of May 29,
Donna, Fred, and Gary went to the Locust Blossom Festival in
Kendrick, where they met John, Mary, and Sonja Abitz.
After leaving the festival, Gary went to the Abitz's house, but
he left around dark, returned home, noticed Donna's pickup in
the driveway, and smelled smoke. Gary called the Abitz's
house and reported that his two-story garage was on fire. Mary,
Sonja, Ted Meske (Mary's brother), and Shackelford arrived at

1

The Court previously described the procedural history of Petitioner’s case, and it will not do so again
here except as necessary to explain the Court’s decision. See Dkt. 29.

MEMORANDUM DECISION AND ORDER - 2

the fire and various individuals tried to extinguish it, but were
unsuccessful.
At 7:40 p.m., Latah County Sheriff Patrol Deputy Richard
Skiles was called to investigate the fire at 2168 Three Bear
Road. When Skiles arrived at the scene, nearly an hour later,
he observed several persons—including Gary Fontaine, Mary
Abitz, Sonja Abitz, Brian Abitz (Sonja's brother), Ted Meske,
and Shackelford—standing near the garage that was
completely engulfed in flames. Based upon information
obtained from Ted and Shackelford, Deputy Skiles contacted
dispatch to have an on-call detective sent “because there was a
possibility there could be a suicide victim in the fire.” By the
time the fire department arrived, the garage had been utterly
destroyed. Several hours later, after the fire had been
extinguished, two bodies were found in the rubble. The bodies
were subsequently identified as the remains of Donna and
Fred. At trial, a state fire investigator testified as to his opinion
that the fire was arson.
Doctor Robert Cihak conducted autopsies of the remains,
which were severely burned. Shotgun pellets were found in
Donna's right chest region and a bullet was found in the back
of her neck. Dr. Cihak opined that the bullet wound was fatal
and was inflicted when Donna was still alive. A bullet was also
found in Fred's body behind the upper breastbone, which Dr.
Cihak concluded was the cause of death. Dr. Cihak offered his
opinion that Donna and Fred were dead at the time of the fire.
State v. Shackelford, 247 P.3d 582, 588–89 (Idaho 2010) (Shackelford I) (also found at
State’s Lodging C-19 at 2-3) (footnote omitted).
The jury found Petitioner guilty of two counts of first-degree murder, as well as
conspiracy to commit murder, arson, conspiracy to commit arson, and preparing false
evidence. Petitioner received fixed life sentences for each murder conviction and the
murder-conspiracy conviction,2 and he received shorter fixed terms of imprisonment on
2

Petitioner initially was sentenced to death on the two murder counts. Those sentences were later
invalidated pursuant to Ring v. Arizona, 536 U.S. 584 (2002), which holds that a jury—rather than a judge—

MEMORANDUM DECISION AND ORDER - 3

the remaining convictions.
CLAIMS PRESENTLY AT ISSUE
Petitioner’s federal habeas corpus petition asserts numerous claims, five of which
remain for adjudication on the merits.3 Claim 1 asserts that Petitioner was denied his
counsel of choice in violation of the Sixth Amendment. Claim 2(b) asserts a due process
violation based on the jury instruction on the false-evidence charge, which did not define
the word “produced.” In Claim 3, Petitioner asserts a violation of the Ex Post Facto Clause
based on the trial court’s refusal to give an instruction regarding circumstantial evidence.
Claim 4 alleges that the trial court improperly failed to give an instruction requiring
unanimity with respect to the overt acts committed, and which co-conspirator committed
those acts, in furtherance of the conspiracy to commit arson and murder. And in Claim 9,
Petitioner alleges that, under the Sixth Amendment, the jury was required to find
aggravating factors that would render Petitioner eligible for a fixed life sentence. See Dkt.
9 at 12-85.
HABEAS CORPUS STANDARD OF LAW
Federal habeas corpus relief may be granted when a federal court determines that
the petitioner “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). If the state court has adjudicated a claim on the merits, habeas

must find statutory aggravators that render a defendant eligible for the death penalty. See Shackelford I, 247
P.3d at 615. The state elected not to seek the death penalty on resentencing. See Dkt. 29 at 2-3.
3
In his reply in support of his Petition, Petitioner attempts to recharacterize some of his claims. See Dkt.
39 (filed Aug. 22, 2018). However, Petitioner knew no later than March 29, 2018, how the Court had
construed his claims. See Dkt. 29 at 5-6. Therefore, the Court analyzes the claims as it (and Respondent)
previously construed them.

MEMORANDUM DECISION AND ORDER - 4

relief is further limited by § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal habeas relief may be granted
only 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). “Deciding whether a state court’s decision involved an unreasonable
application of federal law or was based on an unreasonable determination of fact requires
the federal habeas court to train its attention on the particular reasons—both legal and
factual—why state courts rejected a state prisoner’s federal claims and to give appropriate
deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191-92 (2018) (internal
quotation marks and citations omitted).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the
“contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Under the second test, to satisfy the “unreasonable application” clause of
MEMORANDUM DECISION AND ORDER - 5

§ 2254(d)(1), the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which a
state court unreasonably applies [Supreme Court] precedent; it does not 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) (emphasis omitted).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that fairminded jurists could disagree on the correctness of the state court’s decision, then relief is
not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized that “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. To be entitled to habeas relief under §
2254(d)(1), “a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103.
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent may be persuasive authority
for determining whether a state court decision is an unreasonable application of Supreme
MEMORANDUM DECISION AND ORDER - 6

Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). However,
circuit law may not be used “to refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v.
Rodgers, 569 U.S. 58, 64 (2013).
“[R]eview under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
Therefore, evidence that was not presented to the state court cannot be introduced on
federal habeas review if a claim was adjudicated on the merits in state court and if the
underlying factual determinations of the state court were reasonable. See Murray v.
Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014); (“After Pinholster, a federal habeas court
may consider new evidence only on de novo review, subject to the limitations of §
2254(e)(2).”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine,
considering only the evidence before the state court, that the adjudication of a claim on the
merits ... was based on an unreasonable determination of the facts, we evaluate the claim
de novo, and we may consider evidence properly presented for the first time in federal
court.”).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the state
court decision was based upon factual determinations that were “unreasonable ... in light
of the evidence presented in the State court proceeding.” A “state-court factual
determination is not unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
MEMORANDUM DECISION AND ORDER - 7

AEDPA is not whether a federal court believes the state court’s determination was incorrect
but whether that determination was unreasonable—a substantially higher threshold.”).
State court factual findings are presumed to be correct and are binding on the federal court
unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to, or an unreasonable application of Supreme Court
precedent or by establishing that the state court’s factual findings were unreasonable—then
the federal habeas court must review the petitioner’s claim de novo, meaning without
deference to the state court’s decision. Hurles, 752 F.3d at 778.
When considering a habeas claim de novo, a district court may, as in the preAEDPA era, draw from both United States Supreme Court and well as circuit precedent,
limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even
under de novo review, however, if the factual findings of the state court are not
unreasonable under § 2254(d)(2), the Court must apply the presumption of correctness
found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at
1167-68. Conversely, if a state court factual determination is unreasonable, the federal
court is not limited by § 2254(e)(1) and may consider evidence outside the state court
record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d at
1000.
Generally, even if a petitioner succeeds in demonstrating a constitutional error in
his conviction, he is entitled to federal habeas relief only if the petitioner “can establish
MEMORANDUM DECISION AND ORDER - 8

that [the error] resulted in ‘actual prejudice.’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). Under the Brecht standard, an error is not harmless, and habeas relief must be
granted, only if the federal court has “grave doubt about whether a trial error of federal law
had substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal
v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).
DISCUSSION
1.

Claim 1: Denial of Counsel of Choice
When Petitioner was arrested on February 12, 2000, the police seized approximately

$5,000 from him. Petitioner claims he had intended to use this money to hire private
counsel “for his initial appearance and arraignment in the event of his impending arrest.”
(Dkt. 9 at 12.) Claim 1 asserts that, as a result of the seizure of these funds, Petitioner was
denied his right to hire private counsel of his choice.
At Petitioner’s initial arraignment, he did not assert his right to hire private counsel.
Instead, he requested the appointment of counsel. (State’s Lodging A-16 at 16.) The trial
court instructed Petitioner to fill out the required financial form, but Petitioner claimed he
did not have enough information to do so:
THE DEFENDANT: …I have no information. I didn’t even
have shoes or glasses until the minute I walked in this door. I
don’t have any of my information. I have nothing whatsoever.
THE COURT: What information do you need?
THE DEFENDANT: I don’t even know where I am right now.
I mean, as far as Latah County, I do know that. My current
address, anything about employers, things of that nature. My
secretaries have been arrested, my friends have been arrested.

MEMORANDUM DECISION AND ORDER - 9

I don’t even know if I have a house left. I don’t even know if
my dogs are starving to death.
… [A]s far as my monthly earnings prior to arrest, I
don’t know of anything. I do know that I had enough money in
my pocket when I was thrown to the floor in the sheriff’s office
to actually hire an attorney to appear with me at this
proceeding. But that money has been—according to the
deputy—the corporal who was at the jail that evening—was
turned over as evidence to a detective over $4,000.
THE COURT: So you believe you have the wherewithal to
retain counsel?
THE DEFENDANT: I may well have, but at this point I don’t
know what I have left ….
…
THE COURT: Let’s deal with your request to have counsel
appointed for you. Do you have other assets that would be
available to you to retain counsel?
THE DEFENDANT: It’s a possibility, Your Honor. I do not
know at this point. I have vehicles which I could sell, but I
don’t know where the vehicles are right now. I had money in
my pocket, but Detective Hall took it as evidence and now I’m
being told that I have no money ….
…
THE COURT: Well, Mr. Shackelford, do you wish to be
considered for the appointment of counsel or do you want to
have counsel retained by you?
THE DEFENDANT: I do not know if I can afford counsel,
Your Honor. I’ve not been able to … find out if I can retain
counsel…. I cannot tell you a lot of the answers that are
required on here. In all honesty I cannot.
THE COURT: Well, what information do you need in order to
make an informed decision on that?

MEMORANDUM DECISION AND ORDER - 10

THE DEFENDANT: Whether I have any income from any
source right now would be one of the very first things.
(Id. at 17-20 (emphasis added).) The judge gave Petitioner the opportunity to fill out the
form and continued the hearing until the next day. (Id. at 20-21.)
The court again asked Petitioner if he had filled out the form, and Petitioner again
stated that he could not do so:
Again, Your Honor, I have the same problem, actually it’s been
multiplied….
…So again, I have talked with counsel … [who] have described
to me that a case of this magnitude is going to take at least
$100,000. I can just about guarantee I don’t have that much in
my canteen account, Your Honor….
…
I can fill it out the best I can, Your Honor, but I can almost
guarantee it won’t be an accurate representation ….
(Id. at 31-32 (emphasis added).) The court instructed Petitioner to fill out the form as best
he could.
After reviewing that form, the trial court could not determine whether Petitioner
qualified for the appointment of counsel or not. Therefore, the court “tentatively” appointed
counsel and stated, “[T]o the extent that you have resources to pay them that are discovered
at some point in the future, I will use them to compensate the attorneys that I appoint for
you.” (Id. at 33.)
The next day, the prosecutor offered to release the $5,000 seized when Petitioner
was arrested, but Petitioner’s appointed counsel wanted to “prepare a response on the
financial matters dealing with all of that, rather than just the cash that was in his pocket.”

MEMORANDUM DECISION AND ORDER - 11

(Id. at 55-56.) The trial court expressed it would be necessary to have “more complete
information … identifying what resources [Petitioner] has.” (Id. at 57.) The court reiterated
its tentative ruling from the day before:
THE COURT: [T]o the extent that you are able to pay for
counsel, I expect you to pay for counsel. To the extent that you
are unable to pay for counsel, I expect [your appointed
attorneys] to represent you at county expense. But if you have
resources that are available, I would expect those resources to
be used to reimburse the county for their expenses in retaining
[appointed counsel] in representing you.
Now, if you want different counsel, that’s your
prerogative, but you’re going to have to hire different
counsel…. Do you understand that?
THE DEFENDANT: Yes, Your Honor, I do.
(Id. at 57-58 (emphasis added).)
Petitioner’s counsel followed up with a motion to release the $5,000. (State’s
Lodging A-1 at 125-26.) At the motion hearing, the trial court expressed frustration with
the continued lack of information about Petitioner’s finances:
I don’t remember making a determination that Mr. Shackelford
is indigent. I remember getting statements from him that made
it very difficult for me to make that determination and in an
abundance of caution I appointed counsel at county expense. I
don’t think I made a determination that he’s indigent. I
specifically do not recall making that determination.
…
… I made several attempts to elicit information from Mr.
Shackelford to determine his ability to retain counsel. I don’t
think he was trying to be helpful, I don’t think he was trying to
be candid.

MEMORANDUM DECISION AND ORDER - 12

(State’s Lodging A-16 at 99-107 (emphasis added).) The court denied the motion for
release of property but ordered that money be placed in an interest-bearing account. (Id. at
109.) It does not appear that the issue of appointed-versus-retained counsel was addressed
again, and Petitioner proceeded to trial with his appointed counsel.
A.

Clearly-Established Law

The Sixth Amendment guarantees criminal defendants the right to the assistance of
counsel, including the “right of a defendant who does not require appointed counsel to
choose who will represent him.” Wheat v. United States, 486 U.S. 153, 159 (1988).
However, because “the essential aim of the [Sixth] Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure that a defendant will inexorably
be represented by the lawyer whom he prefers,” the right to counsel of one’s choice “is
circumscribed in several important respects.” Id.
Importantly, “the right to counsel of choice does not extend to defendants who
require counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140,
151 (2006). A defendant “may not insist on representation by an attorney he cannot afford.”
Wheat, 486 U.S. at 159.
Another limitation on the right to counsel of one’s choice relates to court scheduling
and docket management. Trial courts have “broad discretion ... on matters of
continuances,” even when the reason for the requested continuance is to retain counsel of
one’s choice. Morris v. Slappy, 461 U.S. 1, 11 (1983); see also Gonzalez-Lopez, 548 U.S.
at 152 (“We have recognized a trial court’s wide latitude in balancing the right to counsel
of choice against the needs of fairness and against the demands of its calendar.”) (internal
MEMORANDUM DECISION AND ORDER - 13

citation omitted). Where a defendant’s request for a continuance to retain counsel of his
choice is made for purposes of delay, a judge may deny the continuance and require the
accused to proceed as represented by his current counsel. See, e.g., United States v. Vallery,
108 F.3d 155, 157 (8th Cir. 1997) (“The right to choice of counsel must not obstruct orderly
judicial procedure or deprive courts of their inherent power to control the administration
of justice. If a defendant’s attempted exercise of his choice is dilatory, the trial court can
require him to proceed with designated counsel.”) (internal quotation marks and citation
omitted).
Improper denial of a defendant’s right to counsel of choice is structural error. That
is, if a court determines that the right to counsel of one’s choice was violated, the court
need not “conduct an ineffectiveness or prejudice inquiry.” Id. at 148, 149–50 (2006).
B.

The State Court’s Rejection of Claim 1 Was Not Unreasonable under
AEDPA

The Idaho Supreme Court made factual findings that Petitioner did not specifically
request counsel of choice and that he did not have sufficient funds to retain private counsel.
Shackelford I, 247 P.3d at 609. It also adopted the trial court’s findings that
The Petitioner was given several opportunities during the early
stages of his case to show he had the wherewithal to hire an
attorney during his criminal proceedings. He was unable to do
so. He also engaged in evasiveness to a degree never before or
since witnessed by this Court. The Petitioner has not, and
cannot, allege that the $5,000 seized would have been
sufficient to finance his defense to capital murder. Such a claim
is absurd. The Petitioner’s trial counsel, ... were jointly paid
over $500,000 to represent the Petitioner through his
sentencing. Arguing that $5,000, one-hundredth of the amount
spent, would have been sufficient to secure representation on a
case of this magnitude is ludicrous.
MEMORANDUM DECISION AND ORDER - 14

Id. (quoting State’s Lodging B-16 at 3598) (emphasis added) (omission in original).
Relying on those findings, the appellate court held that Petitioner was not deprived of his
right to counsel-of-choice.
Petitioner has not established that the factual findings of the state courts—that he
did not specifically request counsel of choice, that he could not afford to hire private
counsel, and that he engaged in egregiously evasive tactics to avoid establishing his ability
to hire private counsel—were unreasonable. Petitioner himself requested appointed
counsel at his first appearance and never clearly invoked his right to retain counsel.
Based on those factual findings, the state court reasonably concluded that Petitioner
was not denied his right to counsel of choice. See 28 U.S.C. § 2254(d). Given that Petitioner
did not request private counsel, evaded the trial court’s reasonable requests for information,
and did not establish that he could afford to hire private counsel, Petitioner is not entitled
to habeas relief on Claim 1.
2.

Claim 2(b), False Evidence Charge: Jury Instruction No. 30
The Idaho statute criminalizing the preparation of false evidence provides as

follows:
Every person guilty of preparing any false or antedated book,
paper, record, instrument in writing, or other matter or thing,
with intent to produce it, or allow it to be produced, for any
fraudulent or deceitful purpose, as genuine or true, upon any
trial, proceeding or inquiry whatever, authorized by law, is
guilty of felony.
Idaho Code § 18-2602 (emphasis added).4

4

The current version of the statute is the same as the version in effect at the time of Petitioner’s crime.

MEMORANDUM DECISION AND ORDER - 15

Jury Instruction No. 30 used this statutory language. It required to jury to find,
beyond a reasonable doubt, that Petitioner willfully prepared false evidence “with the intent
to produce it, or allow it to be produced, for any fraudulent or deceitful purpose, as genuine
or true, … at a grand jury proceeding in Latah County.” State’s Lodging A-11 at 2209.
Claim 2(b) asserts that the instruction’s failure to define “produced” violated Petitioner’s
right to due process.5
A.

Clearly-Established Law

Because Petitioner challenges a jury instruction that quotes a state statute, his burden
to show constitutional error is “especially heavy.” Waddington v. Sarausad, 555 U.S. 179,
190 (2009). “Even if there is some ‘ambiguity, inconsistency, or deficiency’ in the
instruction, such an error does not necessarily constitute a due process violation. Id.
(quoting Middleton v. McNeil, 541 U.S. 433, 437 (2004)). To succeed on a due process
claim that an instruction was unconstitutional, a habeas petitioner “must show both that the
instruction was ambiguous and that there was a reasonable likelihood that the jury applied
the instruction in a way that relieved the State of its burden of proving every element of
the crime beyond a reasonable doubt.” Id.
In determining whether a jury instruction violated due process, a federal habeas
court may not judge the jury instruction “in artificial isolation,” but rather must consider

5

To the extent Petitioner asserts actual innocence in Claim 2(b), see Dkt. 39 at 6, such a claim is not
cognizable on federal habeas review. See Herrera v. Collins, 506 U.S. 390, 404-05 (1993) (“[O]ur habeas
jurisprudence makes clear that a claim of ‘actual innocence’ is not itself a constitutional claim, but instead
a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim
considered on the merits.”); Stephenson v. Blades, No. 1:13-CV-00285-BLW, 2014 WL 3509448, at *7 (D.
Idaho July 14, 2014) (unpublished) (“[A] freestanding claim of actual innocence is not cognizable on
collateral review in a non-capital federal habeas corpus action.”).

MEMORANDUM DECISION AND ORDER - 16

the instruction “in the context of the instructions as a whole and the trial record.” Id. at 191
(internal quotation marks omitted). Therefore, the Court cannot grant habeas relief on
Petitioner’s jury instruction claim unless every fairminded jurist would necessarily
conclude that “the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal
quotation marks omitted); see Richter, 562 U.S. at 101 (“A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.”) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
B.

The State Court’s Rejection of Claim 2(b) Was Not Unreasonable under
AEDPA

The Idaho Supreme Court rejected Claim 2(b), finding that the term “produced” was
not ambiguous:
The jury instruction itself answers the question of what the
term “produced” meant because it provides that the evidence
was produced “at a grand jury proceeding.” Thus,
Shackelford’s argument that “produced” may have meant
actually making the tape or giving the tape to someone or
bringing it to someone’s attention is invalid because the
evidence had to be produced as genuine or true at the actual
grand jury proceeding. There is nothing ambiguous about the
jury instruction when read in its entirety.
Shackelford I, 247 P.3d at 606. Based on its conclusion that the word “produced” was
unambiguous, the court held that “the jury was properly and adequately instructed.” Id.
The state court reasonably found that Jury Instruction No. 30 was not ambiguous.
And this Court has found no United States Supreme Court precedent clearly establishing

MEMORANDUM DECISION AND ORDER - 17

that the instruction was required to define the term “produced.” Thus, Petitioner has not
met his “especially heavy” burden of showing not only that the instruction was ambiguous,
but also that the prosecution was effectively relieved of its burden of proof, Sarausad, 555
U.S. at 190, and he is not entitled to relief on Claim 2(b) under § 2254(d).
3.

Claim 3: Ex Post Facto Clause and the Failure to Give a Holder Instruction
At the time of Petitioner’s crimes, Idaho courts required that, where the

prosecution’s case was based entirely on circumstantial evidence, the trial court had to
instruct the jury as follows:
You are not permitted to find the defendant guilty of the crime
charged against him based on circumstantial evidence unless
the proved circumstances are not only consistent with the
theory that the defendant is guilty of the crime, but cannot be
reconciled with any other rational conclusion and each fact
which is essential to complete a set of circumstances necessary
to establish the defendant's guilt has been proved beyond a
reasonable doubt.
Also, if the evidence is susceptible of two reasonable
interpretations, one of which points to the defendant's guilt and
the other to his innocence, it is your duty to adopt that
interpretation which points to the defendant’s innocence, and
reject the other which points to his guilt.
State v. Holder, 594 P.2d 639, 642 (Idaho 1979), overruled by State v. Humpherys, 8 P.3d
652 (Idaho 2000).
The requirement of this “Holder instruction” was eliminated in Humpherys, which
was issued after Petitioner committed his crimes. In that case, the Idaho Supreme Court
held that, “once the jury has been properly instructed on the reasonable doubt standard of

MEMORANDUM DECISION AND ORDER - 18

proof, the defendant is not entitled to an additional instruction on circumstantial evidence
even when all the evidence is circumstantial.” Humpherys, 8 P.3d at 657.
Relying on Humpherys, the trial court denied Petitioner’s request for a Holder
instruction. Claim 3 asserts that, in doing so, the court committed an ex post facto violation.
A.

Clearly-Established Law

The Ex Post Facto Clause of the Constitution prohibits States from enacting “any
law which imposes a punishment for an act which was not punishable at the time it was
committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham,
450 U.S. 24, 28 (1981) (internal citation and punctuation omitted); U.S. Const., Art. I, §
10, cl. 1. To constitute an ex post facto violation, the law or action “must be retrospective,
and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29.
The constitutional prohibition on ex post facto laws was “intended to secure
substantial personal rights against arbitrary and oppressive legislation, and not to limit the
legislative control of remedies and modes of procedure which do not affect matters of
substance.” Beazell v. Ohio, 269 U.S. 167, 171 (1925). Therefore, if a state affects a legal
change that is “merely procedural, and [that] does not increase the punishment nor change
the ingredients of the offense or the ultimate facts necessary to establish guilt,” the change
is not ex post facto. Weaver, 450 U.S. at 31 n.12 (internal quotation marks omitted).
There are four types of ex post facto laws: (1) laws that make “an action done before
the passing of the law, and which was innocent when done, criminal”; (2) laws that
“aggravate[] a crime, or make[] it greater than it was, when committed”; (3) laws that inflict
a greater punishment than the law allowed when the crime was committed; and (4) laws
MEMORANDUM DECISION AND ORDER - 19

that “alter[] the legal rules of evidence, and receive[] less, or different, testimony, than the
law required at the time of the commission of the offense, in order to convict the offender.”
Carmell v. Texas, 529 U.S. 513, 522 (2000) (quoting Calder v. Bull, 3 Dall. 386, 390
(1798)) (emphasis omitted).
In Carmell, the United States Supreme Court considered the fourth type of law in
the context of a state law that eliminated one of two required types of evidence to sustain
a conviction. Id. at 516. A Texas law had previously required that, to convict a defendant
of certain sex offenses, the prosecution had to produce “both the victim’s testimony and
corroborative evidence.” Id. at 530. The law was later amended so that a defendant could
be “convicted on the victim’s testimony alone, without any corroborating evidence.” Id.
The Supreme Court held that the amendment—which “alter[ed] the legal rules of evidence”
so that less or different evidence was deemed sufficient, thereby lessening “the quantum of
evidence necessary to sustain a conviction”—was unconstitutional under the Ex Post Facto
Clause as applied to crimes committed before the amendment’s enactment. Id. (internal
quotation marks omitted).
In Claim 3, Petitioner also asserts the fourth type of alleged ex post facto violation—
that is, Petitioner claims that the trial court’s refusal to give a Holder instruction “reduc[ed]
the quantum of evidence required to convict.” Id. at 532.
B.

The State Court’s Rejection of Claim 3 Was Not Unreasonable under
AEDPA

The Idaho Supreme Court concluded that its elimination of the Holder instruction
in Humpherys “did not change the ‘substantive law of crimes’ but instead recognized that

MEMORANDUM DECISION AND ORDER - 20

direct and circumstantial evidence possess the same probative value and thus the
reasonable doubt standard is applicable to both. It simply clarified that one standard of
proof applies to all types of evidence.” Shackelford I, 247 P.3d at 602. Because the change
was only “procedural,” the state court reasoned, it did not violate the Ex Post Facto Clause.
The state court’s rejection of Claim 3 was a reasonable application of Weaver and
its progeny. The United States Supreme Court has not clearly established that a state’s
elimination of a circumstantial-evidence-specific instruction violates the Ex Post Facto
Clause. See 28 U.S.C. § 2254(d)(1). Therefore, Petitioner is not entitled habeas relief on
Claim 3.
4.

Claim 4: Alleged Failure to Give Unanimity Instruction Regarding Conspiracy
Charges
The murder-conspiracy instruction provided in relevant part that, in order to convict

Petitioner of conspiracy to commit first-degree murder, the state had to prove that
Petitioner agreed with his co-conspirators to commit first-degree murder and that “one of
the parties to the agreement performed at least one of the following acts” for the purposes
of carrying out that agreement:
A.
Dale Carter Shackelford threatened to kill Donna
Fontaine.
B.
Dale Carter Shackelford hid his presence from Donna
Fontaine, Gary Fontaine, and Ted Meske.
C.
Dale Carter Shackelford went to Donna Fontaine’s
residence ….
D.
Dale Carter Shackelford shot Donna Fontaine with a
shotgun and pistol, killing her.

MEMORANDUM DECISION AND ORDER - 21

State’s Lodging A-11 at 2200. The instruction concluded by stating,
If any of the above has not been proven beyond a reasonable
doubt, then you must find the defendant not guilty. If each of
the above has been proven beyond a reasonable doubt, you
must find the defendant guilty.
Id.
Similarly, the arson conspiracy instruction required the jury to find that “one of the
parties to the agreement” to commit arson “performed at least one of the following acts”:
A.
Dale Carter Shackelford hid his presence from Donna
Fontaine, Gary Fontaine, and Ted Meske;
B.
Dale Carter Shackelford went to Donna Fontaine’s
residence ….
C.
Dale Carter Shackelford poured flammable liquid in the
garage at that location;
D.
Dale Carter Shackelford lit fires in both stories of the
garage[.]
Id. at 2203. The instruction again concluded by stating,
If any of the above has not been proven beyond a reasonable
doubt, then you must find the defendant not guilty of
Conspiracy to Commit Arson in the First Degree. If each of the
above has been proven beyond a reasonable doubt, you must
find the defendant guilty of Conspiracy to Commit Arson in
the First Degree.
Id. at 2203-04.
In Claim 4, Petitioner asserts that the jury instructions on the conspiracy charges
violated his right to due process because the instructions did not require that the jury
unanimously agree as to which overt acts were committed in furtherance of the conspiracy.

MEMORANDUM DECISION AND ORDER - 22

A.

Clearly-Established Law

The Constitution does not require, in all cases, that a jury be unanimous in order to
convict a criminal defendant. Johnson v. Louisiana, 406 U.S. 356, 359 (1972) (“[T]his
Court has never held jury unanimity to be a requisite of due process of law. Indeed, the
Court has more than once expressly said that in criminal cases due process of law is not
denied by a state law which dispenses with the necessity of a jury of twelve, or unanimity
in the verdict.”) (internal quotation marks and alterations omitted).
The United States Supreme Court has held, in the context of a first-degree murder
alleged to have been committed either (1) during the course of a felony, or (2) with
premeditation, that the Due Process Clause does not require juror unanimity as to which
alternative the prosecution was able to prove beyond a reasonable doubt. Schad v. Arizona,
501 U.S. 624, 631 (1991) (plurality) (“We have never suggested that in returning general
verdicts in such cases the jurors should be required to agree upon a single means of
commission, any more than the indictments were required to specify one alone.”).
“[D]ifferent jurors may be persuaded by different pieces of evidence, even when they agree
upon the bottom line.” Id. at 631–32. Therefore, “when a single crime can be committed in
various ways, jurors need not agree upon the mode of commission.” Id. at 649 (Scalia, J.,
concurring in part and concurring in the judgment); see also Marks v. United States, 430
U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments on the
narrowest

grounds.”)

(internal

MEMORANDUM DECISION AND ORDER - 23

quotation

marks

omitted).

The Court has not found any Supreme Court precedent discussing juror unanimity
in the specific context applicable here—whether, in order to convict a defendant of
conspiracy, all jurors must agree as to which overt acts the defendant committed. But the
Ninth Circuit, relying on Schad, has noted that there likely is no such constitutional
requirement:
It is not clear that a district court must instruct a jury that it
must make a unanimous finding of which overt act was
committed in furtherance of the conspiracy. The comments to
Ninth Circuit Model Jury Instruction 8.20 state that the
instruction should include language requiring unanimity as to
the overt act when the applicable statute requires proof of an
overt act. The Supreme Court, however, has suggested that a
jury need not specifically agree on which overt act was
committed.
United States v. Chen Chiang Liu, 631 F.3d 993, 1001 n.7 (9th Cir. 2011) (emphasis added)
(citing Schad v. Arizona, 501 U.S. at 631, and United States v. Griggs, 569 F.3d 341, 343–
44 (7th Cir. 2009)).
B.

The State Court’s Rejection of Claim 4 Was Not Unreasonable under
AEDPA

The Idaho Supreme Court relied on Schad in rejecting Claim 4. The court
determined that the jury instructions on conspiracy “were proper because unanimity as to
each of the preliminary factual issues was not necessary.” Shackelford I, 247 P.3d at 603.
Given that there is no Supreme Court case clearly establishing that jury unanimity
is required with respect to the overt acts committed in furtherance of a conspiracy,

MEMORANDUM DECISION AND ORDER - 24

Petitioner’s claim fails under § 2254(d)(1).6 And even assuming Schad extends to the
conspiracy context, Petitioner is still not entitled to relief on Claim 4 because the Idaho
Supreme Court’s application of Schad was not unreasonable under AEDPA. Just as a jury
need not be unanimous as to whether a defendant killed the victim with premeditation or
in the course of a felony, it also need not be unanimous as to the overt acts committed in
furtherance of a conspiracy.
5.

Claim 9: Sixth Amendment Jury Trial Claim Regarding Petitioner’s Fixed Life
Sentence
The jury convicted Petitioner of two counts of first-degree murder, and the judge

initially sentenced Petitioner to death. After those death sentences were invalidated, the
state declined to seek the death penalty on resentencing. The judge sentenced Petitioner to
two fixed life terms of imprisonment.
Claim 9 asserts that the imposition of the fixed life sentences by the judge—rather
than the jury—violated Petitioner’s Sixth Amendment right to a jury trial. Petitioner
appears to contend that his fixed life sentences required a finding of unspecified
“aggravators” and that the jury needed to make the required finding.
A.

Clearly-Established Law

The Sixth Amendment “indisputably entitle[s] a criminal defendant to a jury
determination that he is guilty of every element of the crime with which he is charged,
beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (internal

6

The Court need not determine whether the jury instructions on the conspiracy charges actually permitted
a less-than-unanimous verdict as to which overt acts were committed in furtherance of the conspiracy.

MEMORANDUM DECISION AND ORDER - 25

quotation marks and alteration omitted). In Apprendi, the United States Supreme Court
held that there is no distinction between “an ‘element’ of a felony offense and a ‘sentencing
factor’” for purposes of the jury trial guarantee. Id. at 478. Therefore, “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Id. at 490. Under Apprendi, then, a judge may not increase a statutory maximum sentence
based on facts not found by the jury beyond a reasonable doubt (unless the fact that
increases the maximum sentence is the existence of a prior conviction).
In Ring v. Arizona, the United States Supreme Court extended Apprendi to the
capital sentencing context, holding that “[c]apital defendants, no less than noncapital
defendants … are entitled to a jury determination of any fact on which the legislature
conditions an increase in their maximum punishment.” 536 U.S. at 589. In doing so, the
Court overruled prior precedent that allowed a judge, rather than a jury, to impose a death
sentence based on “sentencing considerations” that the jury did not find beyond a
reasonable doubt. Id. at 588-89.
B.

The State Court’s Rejection of Claim 9 Was Not Unreasonable under
AEDPA

Idaho’s first-degree murder statute permits a sentence of “death or [of]
imprisonment for life,” with a minimum fixed term of ten years’ imprisonment. Idaho Code
§ 18-4004. A person guilty of conspiracy to murder is subject to punishment “in the same
manner and to the same extent” as one guilty of murder. Idaho Code § 18-1701. The Idaho
Supreme Court, on appeal from the dismissal of Petitioner’s post-conviction petition,

MEMORANDUM DECISION AND ORDER - 26

rejected Claim 9 because Petitioner’s fixed life sentences for first-degree murder and for
conspiracy to commit murder did not “exceed [those] statutory sentencing limits.”
Shackelford v. State, 372 P.3d 372, 379 (2016).
There is no clearly-established Supreme Court precedent holding that a statute
permitting a fixed life sentence is unconstitutional if it allows a judge, rather than a jury,
to determine that sentence. Under Idaho law, a finding of a statutory aggravator is required
only to impose a death sentence—not a sentence of life without parole. See Idaho Code
§ 19-2515 (post-Ring capital sentencing procedures). The prosecution did not seek the
death penalty against Petitioner on resentencing. Therefore, there were no statutory
aggravators that the state had to prove, and Apprendi has no application here.
The Idaho Supreme Court’s decision on Claim 9 was not unreasonable under
§ 2254(d). Petitioner’s attempt to incorporate Ring v. Arizona into the noncapital
sentencing context has no merit, and Petitioner is not entitled to relief on Claim 9.
CONCLUSION
For the foregoing reasons, Petitioner is not entitled to habeas relief on Claims 1,
2(b), 3, 4, or 9. Because all Petitioner’s other claims have already been dismissed, the Court
will enter judgment in favor of Respondent.
ORDER
IT IS ORDERED:
1.

Claims 1, 2(b), 3, 4, and 9 of the Amended Petition for Writ of Habeas
Corpus (Dkt. 9) are DENIED.

MEMORANDUM DECISION AND ORDER - 27

2.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner
wishes to appeal, he must file a timely notice of appeal with the Clerk of
Court. Petitioner may seek a certificate of appealability from the Ninth
Circuit by filing a request in that court.

DATED: November 1, 2019
_________________________
David C. Nye
Chief U.S. District Court Judge

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