Brummett v. Blades

Filing 41

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: 1. Respondent's Motion for Extension of Time to File Exhibits (Dkt. 39 ) is GRANTED. 2. The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DISMISSED IN PART AND DENIED IN PART as set forth above, and this entire action is DISMISSED with prejudice. 3. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. If Petitioner wishes to appeal, he must file a timely n otice 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. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID W. BRUMMETT,
Case No. 1:15-cv-00051-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
KEVIN KEMPF,1
Respondent.

Pending before the Court is Petitioner David W. Brummett’s Petition for Writ of
Habeas Corpus, challenging his Ada County convictions for burglary and petit theft.
(Dkt. 3.) Since the filing of the Petition, Petitioner has been released on parole. The
Petition is now fully briefed and ripe for adjudication. (Dkt. 14, 18.)
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). Accordingly, the Court enters the following Order dismissing Claims 15, 17(b),
and 18 for lack of jurisdiction, dismissing Claims 1, 2, 9(b), 10, 12(b), and 13 as
procedurally defaulted, and denying Petitioner’s remaining claims on the merits.

1

Respondent Kempf, the Director of the Idaho Department of Correction, is substituted for Brian
Finn, the warden of the prison facility in which Petitioner was formerly incarcerated. See Fed. R. Civ. P.
25(d).

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 13.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner was charged in the Fourth Judicial District Court in Ada County, Idaho,
with burglary, petit theft, and a persistent violator sentencing enhancement. The charges
were based on the following facts as determined by the Idaho Court of Appeals:
In 2007, loss prevention officers at various Shopko
retail stores in the Treasure Valley became aware of an
individual who had stolen electronic merchandise by using a
knife to cut the products from their packaging. The
individual, later identified as [Petitioner], would then wander
to other parts of the store to dispose of the packaging while
hiding the merchandise in his clothing. The stores first
became aware of [Petitioner] after empty packaging was
discovered at two Shopko stores in Boise and Meridian. After
reviewing surveillance tapes from the two stores on March
11, loss prevention officers observed that the thefts were both
perpetrated by [Petitioner]. Warning was given to all the local
Shopko stores along with [Petitioner’s] description. Despite
the warning, additional electronics were stolen from a Shopko
located in Nampa. After reviewing the surveillance tapes
from June 5, loss prevention officers observed that this theft
was also perpetrated by [Petitioner] while wearing the same
clothing as during the previous thefts.
On June 17, employees at the Shopko store in Nampa
observed [Petitioner] wandering in the electronics
department. Store employees remained close to him until he
left without further incident. However, store management
called the Meridian Shopko to alert them that [Petitioner]
might attempt another theft. Soon thereafter, loss prevention
officers from the Meridian Shopko observed [Petitioner] enter
the store and wander in the electronics section looking around
nervously as he had done on previous occasions. [Petitioner]
cut the packaging on some electronic products and then
MEMORANDUM DECISION AND ORDER - 2

wandered through the electronics section. He soon returned to
the cut packaging and removed the products and hid them on
his person along with items taken from the electronics
clearance section. [Petitioner] then left the store after walking
through another section of the store. Police officers arrested
[Petitioner] as he left the store. After searching [Petitioner],
officers discovered the stolen merchandise as well as a small
pocketknife. [Petitioner] admitted that the items belonged to
Shopko and had not been purchased.
. . . . Prior to trial, the state filed a notice of intent to
use I.R.E. 404(b) evidence of [Petitioner’s] prior thefts at
other Shopko stores. [Petitioner] filed a motion in limine to
exclude any mention of his prior uncharged misconduct. The
district court held, among other things, that the evidence was
relevant and admissible to show [Petitioner’s] intent to
commit the theft upon entering the store on the day in
question. At trial, evidence was presented from several loss
prevention officers from the Shopko stores who testified to
the past thefts committed by [Petitioner] as well as the most
recent theft which led to his current charges. [Petitioner]
testified that he went to the store to look for a fuse and did not
intend to steal anything until he was already inside. He
claimed that he had a credit card as well as eight dollars in
cash1 and that he first went to the Nampa Shopko, but they
did not have the product he was looking for. [Petitioner]
admitted that he had previously shoplifted at the Meridian
Shopko, but denied shoplifting at the Nampa location.
(State’s Lodging B-4 at 1-2.)
The jury found Petitioner guilty of burglary and petit theft, and the trial court
found that Petitioner was a persistent violator. (Id.) The trial court sentenced Petitioner to
a unified term of fifteen years in prison with five years fixed for the enhanced burglary
conviction, as well as a concurrent term of 365 days for the petit theft conviction.
On direct appeal, Petitioner argued that the trial court abused its discretion, under
the Idaho Rules of Evidence, by (1) admitting evidence of Petitioner’s prior bad acts and

MEMORANDUM DECISION AND ORDER - 3

(2) allowing the prosecutor to exceed the scope of direct examination when crossexamining Petitioner. Petitioner also argued that the cumulative effect of these two errors
required a new trial. (State’s Lodging B-1, B-3.) The Idaho Court of Appeals affirmed.
(State’s Lodging B-4.) The Idaho Supreme Court denied review.
Petitioner then filed a state petition for post-conviction relief, asserting ineffective
assistance of counsel on numerous grounds, as well as violations of the right to a speedy
trial, the right to be free from double jeopardy, and the right to due process. (State’s
Lodging C-2 at 4-29.) Petitioner was later appointed counsel. The state district court
summarily dismissed the petition. On appeal from the denial of his post-conviction
petition, Petitioner identified 29 issues in his opening brief, including that his trial and
direct appeal counsel rendered ineffective assistance in various ways. (State’s Lodging D7, D-8, D-9.)
The Idaho Court of Appeals expressly discussed only four issues raised by
Petitioner: ineffective assistance of trial counsel based on counsel’s (1) failure to make
various objections at trial, (2) failure to pursue a motion to dismiss and a motion for a
mistrial, (3) failure to argue entrapment, and (4) advising Petitioner against attempting to
disqualify counsel. (State’s Lodging D-11 at 5-7.) The court stated that Petitioner’s other
claims “will not be addressed because they are not properly before the Court.” (Id. at 7.)
Despite this statement that the court would not consider the other claims, the court of
appeals then appeared to deny at least some of those issues on the merits:
Each claim fails because the issue was either raised on direct
appeal and cannot be considered in a post-conviction
proceeding, should have been raised on direct appeal, was not
MEMORANDUM DECISION AND ORDER - 4

raised to the district court below and will not be considered
for the first time on appeal, or is otherwise without merit.
(Id.) The Idaho Supreme Court denied review.
Petitioner later returned to the state trial court and filed a successive petition for
post-conviction relief, which the trial court denied because Petitioner had not shown a
sufficient reason, under Idaho Code § 19-4908, why the claims in the successive petition
could not have been raised, or were raised inadequately, in the initial post-conviction
petition. (State’s Lodging E-9, E-12.) Petitioner appealed, but the Idaho Supreme Court
dismissed the appeal pursuant to Idaho Appellate Rule 11.2. (State’s Lodging F-3, F-4.)
That rule provides for the imposition of sanctions if a document signed by a lawyer or a
pro se litigant is not, “to the best of the signer’s knowledge, information, and belief after
reasonable inquiry . . . well-grounded in fact [or] warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing law,” or if the
document is “interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.” Idaho App. R.
11.2.
In his federal Petition, Petitioner asserts the following claims:
Claim 1:

Due process violation based on the admission of
evidence of prior bad acts.

Claim 2:

Due process violation based on the prosecutor’s crossexamination of Petitioner, which allegedly exceeded
the scope of direct examination.

Claim 3:

Ineffective assistance of counsel (“IAC”) based on (a)
trial counsel’s failure to pursue a motion to exclude
evidence of prior bad acts, and (b) direct appeal

MEMORANDUM DECISION AND ORDER - 5

counsel’s failure to challenge the admissibility of the
prior acts evidence on appeal.
Claim 4:

IAC based on trial counsel’s failure to object to the
late disclosure of evidence—specifically, a video of a
person, identified by loss prevention officers as
Petitioner, shoplifting on a previous occasion.

Claim 5:

IAC based on trial counsel’s failure to continue to
object to the “in-court identification” of Petitioner by
loss prevention officers, who recognized Petitioner
from the surveillance video referred to in Claim 4.

Claim 6:

IAC based on trial counsel’s failure to investigate and
obtain the booking sheet from Petitioner’s arrest to
impeach a police officer’s statement as to the amount
of money Petitioner was carrying when arrested.2

Claim 7:

IAC based on trial counsel’s failure to object to the
prosecutor’s statements during closing argument
regarding the amount of money Petitioner was carrying
when arrested.

Claim 8:

IAC based on trial counsel’s withdrawal of a motion
for acquittal on the burglary charge.

Claim 9:

IAC based on trial counsel’s (a) failure to object to the
persistent violator enhancement as a double jeopardy
violation, and (b) counsel’s waiver of a jury trial on
that enhancement.

Claim 10:

IAC based on trial counsel’s failure to challenge
Petitioner’s prosecution as an equal protection
violation.

Claim 11:

IAC based on trial counsel’s failure to withdraw as
Petitioner’s attorney.

Claim 12:

IAC based on (a) trial counsel’s failure to object, on
Fifth Amendment grounds, to the prosecutor’s cross-

Petitioner also cites counsel’s failure to object to the prosecutor’s statements regarding the
money. However, because this allegation is also asserted in Claim 7, the Court will construe Claim 6 as
challenging only trial counsel’s alleged failure to properly investigate and obtain the booking sheet.
2

MEMORANDUM DECISION AND ORDER - 6

examination of Petitioner, and (b) direct appeal
counsel’s failure to raise this issue on appeal.
Claim 13:

IAC based on trial counsel’s failure to object to the
prosecutor’s allegedly misleading and prejudicial
statement that mispresented the reasonable doubt
standard of proof.3

Claim 14:

IAC based on trial counsel’s failure to impeach Officer
Sunada with inconsistent statements as to the amount
of money Petitioner was carrying when arrested.

Claim 15:

IAC based on counsel’s consulting with Petitioner
regarding a second preliminary hearing on the
misdemeanor theft charge.4

Claim 16:

IAC based on trial counsel’s failure to move to exclude
Officer Sunada’s testimony at trial on the grounds that
the testimony was not admitted at Petitioner’s second
preliminary hearing.

Claim 17:

IAC based on trial counsel’s failure to move to
dismiss, at Petitioner’s second preliminary hearing, on
the grounds that (a) there was no probable cause with
respect to the burglary charge, and (b) there was
insufficient evidence to support the misdemeanor petit
theft charge.

Claim 18:

IAC based on trial counsel’s failure to object to a 12person jury on the misdemeanor theft charge.

Claim 19:

IAC based on trial counsel’s failure to file a timely
motion to dismiss on speedy trial grounds.

(Dkt. 3, 6, 18.)

Petitioner initially states that Claim 13 challenges “jury instructions,” but he goes on to clarify
that the claim actually challenges counsel’s failure to object to a statement in the prosecutor’s closing
argument. (Dkt. 3 at 18.)
3

4

The parties stipulated to a second preliminary hearing because the equipment used to record the
first preliminary hearing had malfunctioned. (State’s Lodging A-2 at 16-18, 38-39, 42.)

MEMORANDUM DECISION AND ORDER - 7

In his Answer and Brief in Support of Dismissal, Respondent argues that (1)
Claims 15, 17, and 18 are subject to dismissal for lack of jurisdiction, (2) Claims 1, 2, 9,
10, 12, 13, 16, and 18 are procedurally defaulted, and (3) all of Petitioner’s claims fail on
the merits. (See Dkt. 14.)
DISCUSSION
1.

Claims 15, 17(b), and 18 Are Subject to Dismissal for Lack of Jurisdiction
Respondent asserts that the Court lacks jurisdiction over Claims 15, 17, and 18,

contending that these claims all relate to Petitioner’s misdemeanor conviction and that
Petitioner had fully served his sentence for that conviction prior to filing his Petition.
Habeas relief is not available if the petitioner is not “in custody pursuant to the
judgment of a State court” at the time of the filing of the petition. 28 U.S.C. § 2254(a).
This language requires “that the habeas petitioner be ‘in custody’ under the conviction or
sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488,
490-91 (1989); see also Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 401
(2001) (“[The petitioner] is no longer serving the sentences imposed pursuant to his 1986
convictions, and therefore cannot bring a federal habeas petition directed solely at those
convictions.”).
Here, Claims 15, 17(b), and 18 all challenge Petitioner’s conviction for petit theft.5
However, because Petitioner had fully served his 365-day sentence for misdemeanor theft

5

Claim 15 asserts that trial counsel should have moved to dismiss the misdemeanor petit theft
charge instead of stipulating to a remand for a second preliminary hearing. (Dkt. 3 at 20.) Claim 17(b)
asserts that trial counsel should have moved to dismiss the misdemeanor charge after the preliminary
hearing. (Id. at 22.) And Claim 18 asserts that trial counsel should have objected to the use of a 12-person,
rather than a 6-person, jury with respect to the misdemeanor charge. (Id. at 23.)

MEMORANDUM DECISION AND ORDER - 8

before he filed the instant Petition, the Court lacks subject matter jurisdiction over those
claims. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990) (“A petitioner
who files a habeas petition after he has fully served his sentence and who is not subject to
court supervision is not ‘in custody’ for the purposes of this court’s subject matter
jurisdiction.”). Therefore, the Court will dismiss Claims 15, 17(b), and 18.
Claim 17(a), however, challenges Petitioner’s burglary conviction, for which he is
still serving his sentence. (Dkt. 3 at 22.) The Court will discuss the merits of Claim 17(a)
below.
2.

Procedural Default
Respondent argues that Claims 1, 2, 9, 10, 12, 13, and 16 are procedurally

defaulted and therefore subject to dismissal.6
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 his federal claims at least in a petition seeking review before that court. Id.

6

Respondent argues that Claim 18 is procedurally defaulted as well. However, the Court does not
address this argument because, as explained above, it lacks jurisdiction over Claim 18.

MEMORANDUM DECISION AND ORDER - 9

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).
Ordinarily, “a state prisoner does not ‘fairly present’ a claim to a state court if that
court must read beyond a petition or a brief (or a similar document) that does not alert it
to the presence of a federal claim in order to find material, such as a lower court opinion
in the case, that does so.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). In Peterson v.
Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003), the Ninth Circuit held that citing to either
a federal or a state case analyzing a federal constitutional issue is considered proper
presentation of a federal claim. However, in Casey v. Moore, 386 F.3d 896, 912 n.13 (9th
Cir. 2004), the Ninth Circuit clarified that where “the citation to the state case has no
signal in the text of the brief that the petitioner raises federal claims or relies on state law
cases that resolve federal issues, the federal claim is not fairly presented.” (emphasis
added). In Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005), the court further
clarified that, “[t]o exhaust his claim, [a petitioner] must have presented his federal,
constitutional issue before the [state appellate courts] within the four corners of his
appellate briefing.”
MEMORANDUM DECISION AND ORDER - 10

When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and 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, 541 U.S. at 32;
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
To be an “adequate” state ground, a procedural bar must be one that is “‘clear,
consistently applied, and well-established at the time of the petitioner’s purported
default.” Martinez v. Klauser, 266 F.3d 1091, 1093 (9th Cir. 2001) (quoting Wells v.
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is “independent” of
federal law if it does not rest on, and if it is not interwoven with, federal grounds. Bennett
v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
B.

Petitioner’s Initial Post-Conviction Appeal Is the Only Proceeding in
which Petitioner Properly Exhausted any of the Claims in the Petition

Because proper exhaustion requires a complete round of the state’s appellate
review process, the Court must look to Petitioner’s state court appellate proceedings to
determine which claims were raised and addressed on the merits in those proceedings.
Petitioner raised no federal claims on direct appeal. (See State’s Lodging B-1, B3.) Thus, he did not exhaust any of his current claims during those proceedings.

MEMORANDUM DECISION AND ORDER - 11

Petitioner did raise federal claims on appeal from the dismissal of his successive
post-conviction petition. However, none of those claims were addressed on the merits by
the state appellate court.
In summarily dismissing Petitioner’s successive post-conviction appeal as
frivolous, the Idaho Supreme Court relied on Idaho Appellate Rule 11.2, which allows for
sanctions, such as dismissal, if a party signs a court document that is frivolous. It did not
issue a reasoned decision. Therefore, this Court looks through the Idaho Supreme Court’s
decision—to the decision of the state district court—to determine the basis for the
appellate court’s conclusion that the appeal was frivolous. See Ylst v. Nunnemaker, 501
U. S. 797, 803-04 (1991).
The state district court dismissed all of the claims in Petitioner’s successive
petition pursuant to Idaho’s successive petitions bar—Petitioner’s claims either were
raised, or should have been raised, in Petitioner’s initial post-conviction petition. (State’s
Lodging E-9, E-12.) See Idaho Uniform Post-Conviction Procedures Act, Idaho Code §
19-4908 (“All grounds for relief available to an applicant under this act must be raised in
his original, supplemental or amended application. Any ground finally adjudicated or not
so raised . . . may not be the basis for a subsequent application, unless the court finds a
ground for relief asserted which for sufficient reason was not asserted or was
inadequately raised in the original, supplemental, or amended application.”).
Because the state district court relied on a procedural bar in dismissing the
successive petition, the Court presumes that the Idaho Supreme Court’s “later decision
rejecting [Petitioner’s] claim[s] did not silently disregard that bar and consider the
MEMORANDUM DECISION AND ORDER - 12

merits.” Ylst, 501 U. S. at 803. This presumption has not been rebutted; thus, this Court
concludes that the Idaho Supreme Court, like the state district court, relied on Idaho Code
§ 19-4908 in finding Petitioner’s successive post-conviction appeal frivolous.
This Court has already held that section 19-4908 is an adequate and independent
basis for an Idaho court’s refusal to address claims. See, e.g., Gallegos v. Yordy, No.
1:15-CV-00316-REB, 2016 WL 4186915, at *5 (D. Idaho Aug. 8, 2016); McCormack v.
Baldridge, No. 1:10-cv-00289-EJL, 2012 WL 4138479, at *5-6 (D. Idaho Sept. 19,
2012). Therefore, because all of the claims in Petitioner’s successive state postconviction petition were barred by an adequate and independent state procedural ground,
none of Petitioner’s current claims could have been properly exhausted in his successive
post-conviction proceedings.
Given that none of the Petitioner’s claims were properly exhausted during his
direct appeal or his appeal from the denial of his successive post-conviction petition, that
leaves the Idaho Court of Appeals’ decision upholding the dismissal of Petitioner’s initial
post-conviction petition as the only state court proceeding in which Petitioner could have
properly exhausted any of his present habeas claims. This decision is found in the record
at State’s Lodging D-11. As explained more fully below in the Court’s discussion of
Petitioner’s individual claims, the Idaho Court of Appeals addressed some of the claims
on the merits, either explicitly or implicitly, but declined to address others for a variety of
procedural reasons. The Court will now consider whether each of the claims that
Respondent asserts are procedurally defaulted were raised and addressed on the merits by
the Idaho Court of Appeals.
MEMORANDUM DECISION AND ORDER - 13

C.

Claims 1, 2, 9(b), 10, 12(b), and 13 Are Procedurally Defaulted, but
Claims 9(a), 12(a), and 16 Are Not
i.

Claims 1 and 2: due process violations based on the admission of
evidence of prior bad acts and the prosecutor’s cross-examination of
Petitioner, which allegedly exceeded the scope of direct examination

On direct appeal, Petitioner claimed that (1) the admission of the prior bad acts
evidence violated Idaho Rule of Evidence 404(b), and (2) the prosecutor’s crossexamination of Petitioner exceeded the scope of direct examination, thereby violating
Idaho Rule of Evidence 611(b). (State’s Lodging B-1, B-3.) He did not, however, fairly
present a due process argument—or any other federal constitutional argument—as to
either claim.
Petitioner points to the second to the last page of his opening brief on direct
appeal, where he asserted that the cumulative error of the admission of the prior bad acts
evidence and the prosecutor’s cross-examination “deprived [Petitioner] of due process.”
(State’s Lodging B-1 at 29; Dkt. 18 at 10.) However, this passing reference to due
process was made only in the context of Petitioner’s cumulative error argument—the
argument had “no signal in the text of the brief” that Petitioner was asserting due process
claims based specifically on the admission of evidence or Petitioner’s cross-examination.
Casey, 386 F.3d at 912 n.13. Further, this general “due process” statement did not fairly
present Claims 1 and 2. See Hiivala, 195 F.3d at 1106.
Therefore, Claims 1 and 2 were not properly exhausted because Petitioner did not
raise them as federal claims to the state appellate court. Because Petitioner can no longer
do so, Claims 1 and 2 are procedurally defaulted. See Gray, 518 U.S. at 161-62.

MEMORANDUM DECISION AND ORDER - 14

ii.

Claim 9: IAC based on trial counsel’s (a) failure to object to the
persistent violator enhancement as a double jeopardy violation, and
(b) counsel’s waiver of a jury trial on that enhancement

In Claim 9, Petitioner challenges two aspects of his trial counsel’s representation
as to his conviction on the persistent violator sentencing enhancement: (a) that counsel
should have raised a double jeopardy claim, and (b) that counsel should not have waived
a jury trial on the enhancement charge.
Petitioner included Claim 9(a) in the “Issues” section of his opening brief in his
initial post-conviction appeal. (State’s Lodging D-7 at 6, Issue 21.) However, Respondent
argues that Petitioner did not support this claim with argument and that, as a result, the
Idaho Court of Appeals declined to consider it. (Dkt. 14 at 12-13.)
It is true that the Idaho Court of Appeals did not explicitly discuss Claim 9(a).
Further, in the section of the court’s decision entitled, “Other Claims for Relief,” the
court of appeals stated that any claims that had not been discussed by the court would
“not be addressed because they [were] not property before th[e] Court.” (State’s Lodging
D-11 at 7.) However, the court of appeals also held that “[e]ach claim” raised by
Petitioner failed for one of four reasons: (1) the claim was raised on direct appeal and
thus could not be considered during post-conviction proceedings; (2) the claim should
have been, but was not, raised on direct appeal and thus was deemed forfeited; (3) the
claim was not raised to the state district court and thus could not be considered for the
first time on appeal; or (4) the claim was “otherwise without merit.” (Id.) (emphasis
added). The first three reasons are procedural bars; the fourth is merits-based. Because

MEMORANDUM DECISION AND ORDER - 15

the court of appeals did, in fact, address at least some of Petitioner’s “other claims for
relief” on the merits, the Court must now determine whether Claim 9(a) was one of them.
Claim 9(a)—which asserts ineffective assistance of trial counsel for failure to
object to the sentencing enhancement charge on double jeopardy grounds—was not, and
could not have been, raised on direct appeal. See Matthews v. State, 839 P.2d 1215, 1220
(Idaho 1992) (recognizing that in Idaho the post-conviction setting is the “preferred
forum for bringing claims of ineffective assistance of counsel,” though in limited
instances such claims may be brought on direct appeal “on purported errors that arose
during the trial, as shown on the record”). In addition, Claim 9(a) was raised in the state
district court. (See State’s Lodging C-2 at 24-26). Therefore, the first three reasons given
by the Idaho Court of Appeals do not apply to that court’s denial of Claim 9(a). By
process of elimination, therefore, the Court concludes that the Idaho Court of Appeals
denied Claim 9(a) for its fourth stated reason—the claim failed on the merits. See
Harrington v. Richter, 562 U.S. 86, 99 (2011) (holding that “[w]hen a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary,” even if the state court decision is silent as
to the reason for the denial). Claim 9(a) is not procedurally defaulted and will be
discussed on the merits below.
However, Claim 9(b)—which alleges IAC based on counsel’s waiver of a jury
trial on the sentencing enhancement charge—was not raised before the Idaho Court of

MEMORANDUM DECISION AND ORDER - 16

Appeals. (State’s Lodging D-7 at 4-6.) Because it is now too late to bring that claim in
state court, Claim 9(b) is procedurally defaulted. See Gray, 518 U.S. at 161-62.
iii.

Claim 10: IAC based on trial counsel’s failure to challenge
Petitioner’s prosecution as an equal protection violation

In Claim 10, Petitioner contends that his trial counsel was ineffective for failing to
challenge his prosecution as a violation of the Equal Protection Clause. Petitioner raised
Claim 10 in the Issues section of his post-conviction appellate brief. (State’s Lodging D-7
at 6.) And, like Claim 9(a), Claim 10 was not, and could not have been, raised on direct
appeal. However, Petitioner did not raise this claim to the state district court in his initial
post-conviction petition.7 (State’s Lodging C-2 at 4-29.) The Court thus concludes that
the Idaho Court of Appeals declined to consider Claim 10 based on the state procedural
rule that issues not raised in the district court will not be considered on appeal. (State’s
Lodging D-11 at 7 (declining to address claims that were “not raised to the district court
below”).)
Petitioner has not brought forth any evidence suggesting that this procedural rule
is dependent on federal law or that it was not “clear, consistently applied, and wellestablished” at the time of Petitioner’s post-conviction appeal. Martinez v. Klauser, 266
F.3d at 1093 (internal quotation marks omitted). In fact, this Court has found dozens of
cases from the Idaho appellate courts that rely on this rule. See, e.g., KEB Enterprises,
L.P. v. Smedley, 101 P.3d 690, 698 (Idaho 2004); McKinney v. State, 992 P.2d 144, 157
The only reference to the Equal Protection Clause in Petitioner’s initial post-conviction petition
was as follows: “The equal protection clause of the state and federal constitutions embrace the principle
that all person [sic] in like circumstance should receive the same benefits of the law.” (State’s Lodging C2 at 11 (internal quotation marks and alteration omitted).) This statement is far too general to constitute
fair presentment.
7

MEMORANDUM DECISION AND ORDER - 17

(Idaho 1999); Whitehawk v. State, 804 P.2d 341, 343 (Idaho Ct. App. 1991) (“It is a wellsettled rule that constitutional issues are waived, if raised for the first time on appeal.”).
Because the Idaho Court of Appeals declined to consider Claim 10 on an adequate
and independent state procedural ground, that claim is procedurally defaulted.
iv.

Claim 12: IAC based on (a) trial counsel’s failure to object, on Fifth
Amendment grounds, to the prosecutor’s cross-examination of
Petitioner, and (b) direct appeal counsel’s failure to raise this issue
on appeal

Claim 12 asserts ineffective assistance of trial counsel (Claim 12(a)) and direct
appeal counsel (Claim 12(b)), based on both attorneys’ alleged failure to argue that some
of the prosecutor’s questioning during Petitioner’s cross-examination violated
Petitioner’s Fifth Amendment right to be free from compelled self-incrimination. (Dkt. 3
at 17.)
Petitioner raised, and the Idaho Court of Appeals addressed, Claim 12(a). (State’s
Lodging D-11 at 4-5 (discussing Petitioner’s IAC claim regarding “‘questions of
incrimination’ asked of [Petitioner] by the state”).) Thus, Claim 12(a) is not procedurally
defaulted and will be considered on its merits.
However, because Petitioner did not raise Claim 12(b) to the state appellate court,
that sub-claim is procedurally defaulted. (See State’s Lodging D-7.)
v.

Claim 13: IAC based on trial counsel’s failure to object to the
prosecutor’s allegedly misleading and prejudicial statements that
mispresented the reasonable doubt standard of proof

In Claim 13, Petitioner states that certain statements, made by the prosecutor
during closing argument, had the effect of misrepresenting the reasonable doubt standard

MEMORANDUM DECISION AND ORDER - 18

to the jury and that Petitioner’s trial counsel should have objected. (Dkt. 3 at 18.)
Petitioner did not raise this claim on appeal from the dismissal of his initial postconviction petition. (State’s Lodging D-7.) Thus, Claim 13 is procedurally defaulted.
vi.

Claim 16: IAC based on trial counsel’s failure to move to exclude
Officer Sunada’s testimony at trial on the grounds that the testimony
was not admitted at Petitioner’s second preliminary hearing

Claim 16 asserts that trial counsel rendered ineffective assistance by failing to
move to exclude an officer’s testimony, when that testimony had previously been
excluded by a magistrate judge for purposes of a probable cause determination. (Dkt. 3 at
21.)
Petitioner raised this claim to the Idaho Court of Appeals as Issue 13 in his postconviction appellate brief. (State’s Lodging D-7 at 5.) Because this claim was also raised
properly in the state district court (Dkt. D-7 at 11), and because it could not have been
raised on direct appeal, this Court presumes that the Idaho Court of Appeals adjudicated
the claim on the merits. See Richter, 562 U.S. at 99. Respondent has not rebutted this
presumption. Thus, Claim 16 is not procedurally defaulted, and the Court will address the
merits of this claim below.
D.

Petitioner Has Not Established a Legal Excuse to the Procedural Default
of Claims 1, 2, 9(b), 10, 12(b), or 13

If a petitioner’s claim is procedurally defaulted, a federal district court cannot hear
the merits of the claim unless 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

MEMORANDUM DECISION AND ORDER - 19

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 under Schlup is an independent
constitutional claim. Rather, these are federal procedural arguments that, if sufficiently
established by the petitioner, allow a federal court to consider the merits of an otherwise
procedurally-defaulted constitutional claim.
i.

Cause and Prejudice

Petitioner appears to assert that cause and prejudice exist to excuse the procedural
default of Claims 1, 12(b), and 13. (Petitioner’s Reply at 10-11, 29-31 (Dkt. 18 at 10-11;
Dkt. 18-1 at 7-9).) According to Petitioner, the cause of the default of these claims was
ineffective assistance of trial, direct appeal, or PCR counsel.
However, Petitioner offers nothing more than bare, conclusory statements that his
attorneys were ineffective. There is no evidence whatsoever that Petitioner’s trial or
direct appeal attorneys performed deficiently or that such performance resulted in
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (setting forth the
standard for Sixth Amendment claims of ineffective assistance of counsel). Further,
Petitioner has not shown that Claims 12(b) or 13 are substantial or that his postconviction counsel rendered ineffective assistance in failing to raise those claims in the
initial post-conviction proceedings. See Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012)
(“Inadequate 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.”); Ha

MEMORANDUM DECISION AND ORDER - 20

Van Nguyen v. Curry, 736 F.3d 1287, 1293-94 (9th Cir. 2013) (extending Martinez to
underlying claims of ineffective assistance of direct appeal counsel).
Therefore, Petitioner has not established cause and prejudice to excuse his
procedural default.
ii.

Actual Innocence

Petitioner contends that the evidence was insufficient to convict him of burglary.
Thus, it appears Petitioner is asserting that the Court should apply the miscarriage of
justice, or actual innocence, exception to excuse the procedural default of Claims 1, 2,
9(b), 10, 12(b), and 13.
A petitioner asserting actual innocence 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, 513 U.S. at 324. 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 [the 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
MEMORANDUM DECISION AND ORDER - 21

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, 547 U.S. at 539-40 (quoting 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 whether to grant an evidentiary hearing on an
actual innocence claim, it has the discretion to assess the reliability and probative force of
the petitioner’s proffer, including making some credibility determinations, if necessary.
Id. at 331-332. 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 (2013) (quoting Schlup, 513 U.S. at 332) (alterations
omitted).
Petitioner has not met his extremely high burden of establishing actual innocence.
Petitioner claims that he did not form the intent to steal until he had already entered the
store and that, therefore, he could not have committed a burglary. However, the evidence
establishes that Petitioner entered into Shopko with a pocketknife—but without enough
money to purchase the stolen merchandise—and then used that pocketknife to cut
merchandise out of its packaging; Petitioner took the merchandise and left. This
constitutes evidence from which a reasonable juror could conclude that Petitioner had the
MEMORANDUM DECISION AND ORDER - 22

intent to steal before he entered the store. Therefore, the actual innocence exception to
procedural default does not apply.
Because Petitioner has not shown an adequate legal excuse for the procedural
default of Claims 1, 2, 9(b), 10, 12(b), or 13, those claims will be dismissed.
3.

Analysis of the Merits of Petitioner’s Remaining Claims
Because Claims 1, 2, 9(b), 10, 12(b), 13, 15, 17(b), and 18 are subject to summary

dismissal, either for lack of jurisdiction or as procedurally defaulted, the following claims
remain for adjudication on the merits: Claims 3, 4, 5, 6, 7, 8, 9(a), 11, 12(a), 14, 16,
17(a), and 19.
A.

Standard of Law for Review on the Merits

Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment when the 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). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances
where the state court’s adjudication of the petitioner’s claim:
(1)

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

(2)

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

MEMORANDUM DECISION AND ORDER - 23

28 U.S.C. § 2254(d). Although a federal habeas court reviews the state court’s “last
reasoned decision” in determining whether a petitioner is entitled to relief. Ylst, 501 U.S.
at 804, a state court need not “give reasons before its decision can be deemed to have
been ‘adjudicated on the merits’” under § 2254(d). Richter, 562 at 100.
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). Stated more simply, “Section 2254(d) applies regardless of the procedures
employed or the decision reached by the state court, as long as a substantive decision was
reached.” Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007).
Under the second test, to satisfy the “unreasonable application” clause of
§ 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).
MEMORANDUM DECISION AND ORDER - 24

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
fair-minded jurists could disagree on the correctness of the state court’s decision, then
relief is not warranted under § 2254(d)(1). Richter, 562 U.S. 102. The Supreme Court has
emphasized that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted).
AEDPA deference is required even where the state court denied the petitioner’s
claim without expressly addressing it. In such a case, the federal court must “conduct an
independent review of the record to “determine what arguments or theories could have
supported the state court’s decision”; the court must then determine “whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a decision of the Supreme Court.” Bemore v. Chappell,
788 F.3d 1151, 1161 (9th Cir. 2015) (quoting Richter, 562 U.S. at 102) (alterations and
internal quotation marks omitted).
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 Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000).
Circuit law may not be used “to refine or sharpen a general principle of Supreme Court

MEMORANDUM DECISION AND ORDER - 25

jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013).
As to the facts, the United States Supreme Court has clarified that “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Pinholster, 563 U.S. at 180. This means that evidence not presented
to the state court may not be introduced on federal habeas review if a claim was
adjudicated on the merits in state court and if the underlying factual determination of the
state court was not unreasonable. See Murray v. Schriro, 745 F.3d 984, 999 (9th Cir.
2014).
When a petitioner contests the reasonableness of the state court’s factual
determinations, 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.” 28 U.S.C. § 2254(d)(2). 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, 130 S. Ct. 841, 849 (2010). If
the factual findings of the state court are not unreasonable, 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 v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
The United States Court of Appeals for the Ninth Circuit has identified five types
of unreasonable factual determinations that result from procedural flaws that occurred in
state court proceedings: (1) when state courts fail to make a finding of fact; (2) when
courts mistakenly make factual findings under the wrong legal standard; (3) when “the
MEMORANDUM DECISION AND ORDER - 26

fact-finding process itself is defective,” such as when a state court “makes evidentiary
findings without holding a hearing”; (4) when courts “plainly misapprehend or misstate
the record in making their findings, and the misapprehension goes to a material factual
issue that is central to petitioner’s claim”; or (5) when “the state court has before it, yet
apparently ignores, evidence that supports petitioner’s claim.” Taylor v. Maddox, 366
F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
This strict deferential standard of § 2254(d) applies to habeas claims except in the
following narrow circumstances: (1) where the state appellate court did not decide a
properly-asserted federal claim; (2) where the state court’s factual findings are
unreasonable under § 2254(d)(2); or (3) where an adequate excuse for the procedural
default of a claim exists. Pirtle, 313 F.3d at 1167. In those circumstances, the federal
district court reviews the claim de novo. In such a case, as in the pre-AEDPA era, a
district court can 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).
Under de novo review, if the factual findings of the state court are not
unreasonable, 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. Contrarily, if a
state court factual determination is unreasonable, or if there are no state court factual
findings, the federal court is not limited by § 2254(e)(1). Rather, the federal district court
MEMORANDUM DECISION AND ORDER - 27

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.
Even if a petitioner succeeds in demonstrating a constitutional error in his
conviction or sentence, he is entitled to federal habeas relief only if the petitioner “can
establish 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). A “reasonable possibility” of prejudice is insufficient. Brecht, 507 U.S. at 637.
B.

Claims 3, 4, 5, 6, 7, 8, 9(a), 11, 12(a), 14, 16, 17(a), and 19 Must Be
Denied on the Merits

Petitioner’s remaining claims are all IAC claims. The Idaho Court of Appeals
appropriately cited Strickland v. Washington as the governing federal law applicable to
Petitioner’s IAC claims. (State’s Lodging D-11 at 4.) Therefore, the first clause of
§ 2254(d)(1)—the “contrary to” clause—is not applicable in this case. The remaining
question is whether the state court’s decision rejecting Petitioner’s IAC claims was an
unreasonable application of Supreme Court precedent or was based on an unreasonable
factual finding. See 28 U.S.C. § 2254(d). For the reasons that follow, the Court concludes
it was not.

MEMORANDUM DECISION AND ORDER - 28

i.

Claim 3: Ineffective assistance of counsel (“IAC”) based on (a) trial
counsel’s failure to pursue a motion to exclude evidence of prior bad
acts, and (b) direct appeal counsel’s failure to challenge the
admissibility of the prior acts evidence on appeal

Petitioner asserts in Claim 3 that (a) his trial counsel was ineffective in failing to
move to exclude evidence of prior bad acts under Idaho Rule of Evidence 404(b), and (b)
his direct appeal counsel was ineffective in failing to challenge the admissibility of that
evidence on appeal.
Claim 3(a) fails because the record clearly shows that Petitioner’s trial attorney did
file a motion in limine to exclude the prior bad acts evidence and continued to object to
the admissibility of that evidence. (State’s Lodging A-2 at 66-67.) The state filed a
pretrial notice of intent to use Rule 404(b) evidence, and the trial court held hearings on
this issue at which defense counsel argued against admission of the evidence. (Id. at 7071; State’s Lodging A-9 at 8-22, 40-57; State’s Lodging A-12 at 152-92.) The trial court
allowed the evidence for the limited purpose of showing Petitioner’s plan or preparation
with respect to the crimes charged. (State’s Lodging A-12 at 192.) Petitioner’s counsel
attempted to get the evidence excluded and, therefore, did not render ineffective
assistance.
Like Claim 3(a), Claim 3(b) also fails because Petitioner’s assertions are belied by
the record. Direct appeal counsel did argue that the Rule 404(b) evidence was improperly
admitted. (State’s Lodging B-1, B-3.)
Therefore, Petitioner is not entitled to relief on Claim 3(a) or 3(b).

MEMORANDUM DECISION AND ORDER - 29

ii.

Claim 4: IAC based on trial counsel’s failure to object to the late
disclosure of evidence—specifically, a video of a person, identified
by loss prevention officers as Petitioner, shoplifting on a previous
occasion

In Claim 4, Petitioner asserts that his trial counsel should have objected to the late
disclosure of a March 2007 surveillance video showing a person, later identified as
Petitioner, shoplifting several months before the events giving rise to the burglary and
petit theft charges against Petitioner. Before trial, the prosecutor made an offer of proof
that two Shopko loss prevention officers had viewed that video and could identify
Petitioner as the thief. (State’s Lodging A-12 at 155-87.) During the course of the offer of
proof, one of the witnesses testified that he had just found the actual video upon which
the testimony of the two witnesses was based, and the court and counsel viewed the video
outside the presence of the jury. (Id. at 178-79, 206-08.) Though the two store employees
testified at trial (id. at 226-37, 274-76), the March 2007 surveillance video was not itself
admitted into evidence.
Petitioner claims that trial counsel “failed to follow through with this objection to
have the video excluded as being highly prejudicial.” (Dkt. 3 at 9.) However, the video
was not admitted into evidence. Therefore, there was no reason for defense counsel to
object, and Petitioner suffered no prejudice from any failure to move to exclude the
video. For these reasons, the state court’s rejection of Claim 4 was reasonable.

MEMORANDUM DECISION AND ORDER - 30

iii.

Claim 5: IAC based on trial counsel’s failure to object to the “incourt identification” of Petitioner by loss prevention officers who
recognized Petitioner from the surveillance video referred to in
Claim 4

In Claim 5, Petitioner asserts that his attorney should have continued to pursue an
objection to the testimony of the two witnesses who viewed the surveillance video and
identified Petitioner as having shoplifted on a previous occasion.
Petitioner’s attorney objected to the witnesses’ testimony. (State’s Lodging A-12
at 200-06.) The objection was overruled. It was not deficient performance for trial
counsel to decide not to renew an objection that had already been overruled; further,
because the trial court had already overruled the objection, Petitioner suffered no
prejudice from counsel’s actions.
iv.

Claim 6: IAC based on trial counsel’s failure to investigate and
obtain the booking sheet from Petitioner’s arrest to impeach a police
officer’s statement as to the amount of money Petitioner was
carrying when arrested

Officer Sunada testified at trial that, when Petitioner was arrested, he had
approximately $2.00 on him. The prosecutor invited the jury to infer from this testimony
that Petitioner had the intent to steal when he entered the store, because he could not have
purchased anything with this small amount of money. However, the booking sheet from
Petitioner’s arrest states that Petitioner had $8.50, not $2.00, when he was arrested.
Petitioner alleges that he could have purchased something with this amount of money and
that trial counsel should have obtained that evidence before trial, used it to impeach
Sunada’s testimony, and argued that it negated the element of intent.

MEMORANDUM DECISION AND ORDER - 31

The state court of appeals did not expressly address Claim 6. Because the state
adopted the district court’s analysis in its brief on appeal from the denial of Petitioner’s
post-conviction petition, it is likely that the Idaho Court of Appeals agreed with that
analysis as well. (See State’s Lodging D-10, Appx. A.) The state district court rejected
Claim 6 because “[t]he six dollar and fifty-cent difference between the two amounts
[was] de minimis,” and even $8.50 was insufficient “to have purchased the items stolen
by Petitioner.” (State’s Lodging C-2 at 110-11.) The factual finding that Petitioner did
not have the amount necessary to have purchased the stolen items is supported by the
record, and the jury could have inferred Petitioner’s intent to steal from that fact. Thus,
Petitioner could not have suffered any prejudice from counsel’s failure to obtain the
booking sheet. Therefore, the state court’s disposition of Claim 6 was not objectively
unreasonable under AEDPA.
v.

Claim 7: IAC based on trial counsel’s failure to object to the
prosecutor’s statements during closing argument regarding the
amount of money Petitioner was carrying when arrested

The Idaho Court of Appeals did not independently explain its reasoning regarding
Claim 7, but the state district court rejected it for the same reason as Claim 6—Petitioner
could not show prejudice because, even accepting that Petitioner was carrying $8.50, that
was still not enough money to purchase the stolen items. (State’s Lodging C-2 at 110-11.)
Further, there was evidence in the record that Petitioner only had $2.00 when he was
arrested, and the prosecutor’s comment during closing argument was based on that
evidence. Petitioner has shown neither deficient performance nor prejudice from

MEMORANDUM DECISION AND ORDER - 32

counsel’s failure to object to the prosecutor’s statements during closing argument, and the
state court’s decision was reasonable.
vi.

Claim 8: IAC based on trial counsel’s withdrawal of a motion for
acquittal on the burglary charge

Claim 8 asserts that trial counsel should not have withdrawn Petitioner’s motion
for acquittal under Idaho Criminal Rule 29. The court of appeals denied this claim
because “it is clear that the motion to dismiss was not going to be granted and, therefore,
counsel was not ineffective for failing to pursue the motion.” (State’s Lodging D-11 at 6.)
Trial counsel did not withdraw the motion until the trial court had already begun
explaining “why it was denying the motion.” Id. Realizing that the trial court was going
to deny the motion, counsel withdrew it:
THE COURT:

Inherently, in this kind of case, an intent
to—to steal or commit some other—
some felony has to be inferred from the
circumstances. There are a fair number
of circumstances, in this case, from
which the jury may, if they choose to
believe the evidence, infer that the
defendant had an intent to steal when he
entered the Shopko. . . .

[THE DEFENSE]: Your Honor, I’ll withdraw the motion.
Thank you.
THE COURT:

All right. Well, I was prepared to deny it,
but if you‘re going to withdraw it, I’ll—
I’ll let you do that. Motion’s been
withdrawn.

(State’s Lodging A-12 at 327 (capitalization in original).)

MEMORANDUM DECISION AND ORDER - 33

It is not ineffective assistance for an attorney to withdraw a motion when the judge
has already made clear it would be denied. Petitioner cannot show deficient performance
or prejudice, and the state court’s rejection of Claim 8 was reasonable.
vii.

Claim 9(a): IAC based on trial counsel’s failure to object to the
persistent violator enhancement as a double jeopardy violation

The state court of appeals did not explain the reasoning behind its rejection of
Claim 9(a), which asserts that Petitioner’s persistent violator enhancement violates the
Double Jeopardy Clause of the Fifth Amendment. The mostly likely theory supporting
the court’s decision is the ground upon which the state district court denied the claim—
the Double Jeopardy Clause does not bar sentencing enhancements for repeat offenders.
Gryger v. Burke, 334 U.S. 728, 732 (1948) (“The sentence as a . . . habitual criminal is
not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is
a stiffened penalty for the latest crime, which is considered to be an aggravated offense
because a repetitive one.”). (See State’s Lodging C-2 at 113 (state district court’s holding
that Idaho’s persistent violator statute “does not create a new or separate offense, rather it
makes possible an enhancement of punishment for a particular crime when one has
previously been convicted of two felonies”) (quoting State v. Salazar, 516 P.2d 707, 7108
(Idaho 1973)).)
Because Claim 9(a) plainly had no merit, it was not unreasonable for the Idaho
Court of Appeals to deny Petitioner relief on that claim.

MEMORANDUM DECISION AND ORDER - 34

viii.

Claim 11: IAC based on trial counsel’s failure to withdraw as
Petitioner’s attorney

In Claim 11, Petitioner alleges that his trial attorney was ineffective in advising
Petitioner to withdraw Petitioner’s request for new counsel; that is, that his trial counsel
“‘talk[ed] him into withdrawing’ his motion to disqualify” counsel. (State’s Lodging D11 at 7.) The Idaho Court of Appeals determined that counsel did not perform deficiently
in advising Petitioner to withdraw the motion. (Id.) The court also found that, “after
listening to his counsel, and after considering the advice given by his counsel, [Petitioner]
voluntarily chose to withdraw the motion”—a factual finding that is supported by the
record. (Id.) Finally, Petitioner failed to establish Strickland prejudice from withdrawing
the motion because he had not shown a reasonable probability that the motion would
have been granted if it had not been withdrawn.
The decision of the court of appeals on Claim 11 was not contrary to, or an
unreasonable application of, Strickland, nor was it based on an unreasonable factual
determination. 28 U.S.C. § 2254(d). Therefore, Petitioner is not entitled to habeas relief
on Claim 11.
ix.

Claim 12(a): IAC based on trial counsel’s failure to object, on Fifth
Amendment grounds, to some of the prosecutor’s questions during
cross-examination of Petitioner

The Idaho Court of Appeals correctly applied Strickland when it rejected
Petitioner’s claim regarding trial counsel’s failure to more frequently object to parts of
Petitioner’s cross-examination by the state. The court held Petitioner had not established
that his trial counsel’s decision was based on unsound strategy or that the failure to more

MEMORANDUM DECISION AND ORDER - 35

frequently object undermined confidence in the convictions. (State’s Lodging D-11 at 5.)
Counsel could have reasonably decided to refrain from constantly objecting as part of “a
conscious trial strategy to avoid frequent overrulings and annoyance of the jury,” and the
testimony was “arguably admissible.” Id. This is particularly true with respect to a Fifth
Amendment objection during Petitioner’s cross-examination, because “[a] defendant who
testifies at trial waives his Fifth Amendment privilege and may be cross-examined on
matters made relevant by his direct testimony.” United States v. Black, 767 F.2d 1334,
1341 (9th Cir. 1985).
These conclusions—that trial counsel made a reasonable strategic choice not to
object more frequently and that Petitioner suffered no prejudice from that choice—were
reasonable.8 Therefore, Petitioner is not entitled to relief on Claim 12(a).
x.

Claim 14: IAC based on trial counsel’s failure to impeach Officer
Sunada with inconsistent statements as to the amount of money
Petitioner was carrying when arrested

Claim 14 again complains of trial counsel’s actions regarding Officer Sunada’s
testimony as to the amount of money Petitioner had when he was arrested. This claim
fails for the same reasons as Claims 6 and 7. (See Section 3.B.iv & v, supra; State’s
Lodging C-2 at 110-11.)

The Court notes that Petitioner’s attorney repeatedly objected that the prosecutor’s questions
exceeded the scope of direct examination—which is also the scope of Petitioner’s waiver of his right to
remain silent. (State’s Lodging A-12 at 348-63.) Indeed, the trial court stated that it would consider
counsel to be making a continuing objection on that basis. (Id. at 357.)
8

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xi.

Claim 16: IAC based on trial counsel’s failure to move to exclude
Officer Sunada’s testimony at trial because the testimony was not
admitted at Petitioner’s second preliminary hearing

In Claim 16, Petitioner asserts that, because a magistrate judge had earlier
excluded Officer Sunada’s testimony from the preliminary hearing for purposes of a
probable cause determination, trial counsel was ineffective in failing to move to exclude
that testimony at trial. Trial counsel argued at the preliminary hearing that Petitioner’s
inculpatory statements to Officer Sunada should not be admitted because Sunada’s asked
Petitioner misleading questions during Plaintiff’s interrogation. The magistrate judge
determined, without considering Sunada’s testimony, that probable cause existed to
proceed to trial:
Okay. Additional testimony that has been presented
here today—and I’ll exclude any testimony of Officer
Sunada. That way you won’t have a problem with it at the
District Court level.
It’s the State’s burden to prove that the defendant
entered Shopko with the intent to commit the crime of theft.
Using the testimony of [a store employee] alone would
indicate that she observed the defendant in the store. She
didn’t testify about any observations of the defendant
undergoing or participating in any traditional shopping
conduct.
He’s what would appear to be my classic nontraditional shopper, i.e., thief. And he had a pocketknife with
which he opened four packages, took the contents referred to
throughout this preliminary hearing as items, put two in the
back pocket, one in the waistband, and one in his front
pocket; and then without any observation of any other
shopping activity, left—in words of law enforcement, exited
the commercial establishment.

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That . . . record in and of itself would be sufficient
enough to . . . send the case to the jury . . . .
(State’s Lodging A-6 at 15-16.)
The fact that the magistrate judge did not consider Officer Sunada’s testimony at
the preliminary hearing did not render that testimony inadmissible at trial. The magistrate
determined that, even without Sunada’s testimony, the state had met its burden of
showing probable cause. The Court has discovered no rule of law—let alone any
Supreme Court precedent—that would have required Sunada’s testimony to be excluded
from trial simply because of the magistrate judge’s previous decision not to consider that
testimony for purposes of a probable cause determination. Therefore, Petitioner’s counsel
did not perform deficiently in failing to make such an argument, and Petitioner suffered
no prejudice. See Strickland, 466 U.S. 668, 687.
xii.

Claim 17(a): IAC based on trial counsel’s failure to move to dismiss,
at Petitioner’s second preliminary hearing, because there was no
probable cause with respect to the burglary charge

The magistrate judge determined, after Petitioner’s second preliminary hearing,
that probable cause existed to support the burglary and petit theft charges as to some
property stolen from the store. However, the judge noted that the state had not entered
any specific property into evidence and, thus, would be required to amend the criminal
complaint to eliminate the reference to specific pieces of property and, instead, to allege
generally that Petitioner stole “commercial items” from the store. (State’s Lodging A-6 at
16.)

MEMORANDUM DECISION AND ORDER - 38

Petitioner relies on this statement from the magistrate judge to support his
argument that there was no probable cause for the burglary charge. But that is not what
the magistrate judge decided. The magistrate judge did find probable cause that Petitioner
committed burglary and stole some things from Shopko—just not that he stole the
specific items referenced in the initial charging document. The state appropriately filed
an information removing the reference to the specific items and instead alleging that
Petitioner “did wrongfully take items of merchandise from the owner.” (State’s Lodging
A-2 at 50-51.) There was no basis upon which trial counsel could have argued that the
state had not established probable cause to proceed to trial on the charges in the new
information. Further, the burglary charge did not even require the state to show that
Petitioner actually stole anything; Petitioner’s entrance into the store with the intent to
commit theft or any felony sufficed. See Idaho Code § 18-1401. Therefore, Petitioner’s
counsel did not render ineffective assistance, and Claim 18 will be denied.
xiii.

Claim 19: IAC based on trial counsel’s failure to file a timely motion
to dismiss on speedy trial grounds

Petitioner’s trial attorney moved to dismiss the charges based on a violation of the
right to a speedy trial, but the trial court denied the motion, in part because the motion
was untimely. (State’s Lodging A-2 at 88-91.) Petitioner argues in Claim 14 that his
attorney should have filed the motion earlier.
Four factors inform the analysis of whether there has been a speedy trial violation:
(1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant
asserted his speedy trial right; and (4) prejudice to the defendants. Barker v. Wingo, 407

MEMORANDUM DECISION AND ORDER - 39

U.S. 514, 530 (1972). The trial court cited Barker and relied on these four factors in its
analysis of Petitioner’s motion. (State’s Lodging A-2 at 89-90.) The trial court did not
deny the speedy trial motion solely because it was untimely, but also because the Barker
factors weighed against finding a speedy trial violation.
There is no reason to believe that the Idaho Court of Appeals rejected Claim 19 for
any reason other than the same four Barker factors. Further, even if the speedy trial
motion had been denied purely on timeliness grounds, applying the Barker factors led the
state district court to conclude that there was no speedy trial violation. Therefore,
Petitioner cannot show prejudice from his counsel’s untimely filing because even a
timely motion would not have been granted. The state court’s decision was not contrary
to, or an unreasonable application of, the Supreme Court’s decision in Barker, nor was
the state court’s decision based on an unreasonable finding of fact. Therefore, Petitioner
is not entitled to relief on Claim 19.
CONCLUSION
For the reasons set forth above, Claims 1, 2, 9(b), 10, 12(b), 13, 15, 16, 17(b), and
18 are subject to dismissal—either for lack of jurisdiction or as procedurally defaulted—
and Petitioner’s remaining claims fail on the merits. Therefore, the Court will dismiss this
case with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Extension of Time to File Exhibits (Dkt. 39) is
GRANTED.

MEMORANDUM DECISION AND ORDER - 40

2.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DISMISSED IN PART
and DENIED IN PART as set forth above, and this entire action is
DISMISSED with prejudice.

3.

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 28, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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