Garcia v. Blades

Filing 21

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Petitioners Request for More Time to File a Response to the Respondents Answer and Brief in Support of Dismissal of Petitioners Petition for Writ of Habeas Corpus (Dkt. 17 ) is GRANTED. Petitioners reply (Dkt. 19 ) is deemed timely. 2. The Petition for Writ of Habeas Corpus, including Petitioners supplement to that Petition (Dkt. 3 & 12 ), is DENIED. This entire action is DISMISSED with prejudice. 3. The Court finds that its resolution of t his habeas matter is not reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ARMANDO GARCIA,
Case No. 1:15-cv-00122-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY BLADES,
Respondent.

Pending before the Court is Petitioner Armando Garcia’s Petition for Writ of
Habeas Corpus, which challenges Petitioner’s Ada County convictions, in two separate
cases, of two counts of trafficking in heroin. (Dkt. 3.) Petitioner has also filed a document
entitled “Amended Petition” (Dkt. 12), but this document does not appear to assert
separate constitutional claims. Rather, it contains arguments in support of the four claims
included in Petitioner’s initial Petition.1 Respondent has construed the “Amended

Indeed, the three “claims” listed in the “amended petition” attack the state courts’ adjudication of
Petitioner’s state postconviction petition. (See Dkt. 12.) However, claims of error during state
postconviction proceedings are not cognizable on federal habeas review, which allows for habeas relief
only for violations of the federal constitution, a federal statute, or a federal treaty. Franzen v. Brinkman,
877 F.2d 26, 26 (9th Cir. 1989) (per curiam). Thus, the three “claims” described in Docket No. 12—if
asserted as independent constitutional claims—would not be cognizable in this habeas action.
1

MEMORANDUM DECISION AND ORDER - 1

Petition” in such a manner, and Petitioner has not objected to that construction. (See Dkt.
16, 19.) Because the “Amended Petition” is better characterized as a supplement to the
initial Petition, the Court will consider it as such and will treat both the initial petition
(Dkt. 3) and the supplement (Dkt. 12) as the operative Petition in this case, considering
all of the arguments in both documents offered in support of the claims listed in the
Petition.
Petitioner’s claims are now fully briefed.2 The Court takes judicial notice of the
records from Petitioner’s state court proceedings, which have been lodged by
Respondent. (Dkt. 11, 15.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550,
551 (9th Cir. 2006).
All parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. (Dkt. 14.) 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 denying habeas corpus relief.
BACKGROUND
In Ada County Case No. CR-FE-2008-00062 (“the first case”), Petitioner was
charged, by indictment, with conspiracy to traffic in heroin, in violation of Idaho Code
§ 37-2732B(a)(6)(C). (State’s Lodging A-5 at 206; C-3 at 4-5.) That charge carries a

The Court will grant Petitioner’s request for an extension of time to file his reply in support of his
Petition. (Dkt. 17.)
2

MEMORANDUM DECISION AND ORDER - 2

mandatory minimum sentence of 15 years in prison and requires that the defendant have
trafficked in at least 28 grams of heroin. Idaho Code § 37-2732B(a)(6)(D). (See also
State’s Lodging A-3 at 17-18; A-5 at 206, 219-20.)
Petitioner was later charged, by indictment, in Ada County Case No. CR-FE-200817452 (“the second case”), with trafficking in at least two grams, but less than seven
grams, of heroin. (State’s Lodging A-1 at 8-9.) Under Idaho Code § 37-2732B(a)(6)(A),
the mandatory minimum sentence for a conviction on the charge in this second case was
three years in prison. (See also State’s Lodging A-5 at 219-20.)
The two cases against Petitioner were consolidated. (Id. at 22.) Pursuant to a plea
agreement, Petitioner agreed to plead guilty—in the first case—to an amended
information charging him with trafficking in a quantity of heroin (at least 7 grams, but
less than 28 grams) that subjected him to a mandatory minimum of 10 years in prison,
pursuant to Idaho Code § 37-2732B(a)(6)(B), rather than the 15-year minimum sentence
Petitioner would receive if he were convicted of the charge in the original indictment.
(State’s Lodging A-5 at 206, 211-12, 219; C-3 at 4-5.) Petitioner also agreed to plead
guilty—in the second case—to the trafficking charge that, pursuant to Idaho Code
§ 37-2732B(a)(6)(A), carried a mandatory minimum sentence of three years in prison.
(Id. at 6-7; State’s Lodging A-1 at 148-49.)
Petitioner’s guilty pleas were entered following a plea colloquy during which
Petitioner testified he understood that the court was not bound by any sentencing
agreement and that the court could impose “any sentence up to the maximum”—which

MEMORANDUM DECISION AND ORDER - 3

was life imprisonment. (State’s Lodging A-5 at 220.) Petitioner received a unified
sentence of 30 years in prison with 15 years fixed in the first case, and a concurrent
unified sentence of 30 years in prison with 3 years fixed in the second case. (State’s
Lodging A-7 at 2, A-1 at 157.) Petitioner later filed a motion to withdraw his guilty plea,
which the judge denied after an evidentiary hearing. (State’s Lodging A-6.)
Petitioner appealed in the second case, but not the first.3 He argued that his
sentence was an abuse of discretion and that the trial court should have granted his
motion to dismiss for vindictive prosecution. (State’s Lodging at B-1, B-3.) The Idaho
Court of Appeals affirmed, and the Idaho Supreme Court denied further review. (State’s
Lodging B-4, B-6.)
Petitioner then filed a petition for postconviction relief in state court, asserting (1)
breach of the plea agreement, and (2) ineffective assistance of trial counsel based on (a)
counsel’s alleged lies, which “got [Petitioner] to plead under false pretenses and
manipulation” (thereby rendering his plea involuntary), (b) counsel’s failure to file a
notice of appeal in the first case, and (c) counsel’s failure to argue “5th Amend. violation,
coercion to make statement, No notification of [Miranda], and waiver.” (State’s Lodging
C-1 at 7-8.)

Petitioner’s plea agreement in the second case reserved his right to appeal the trial court’s denial
of his motion to dismiss based on vindictive prosecution. (State’s Lodging C-3 at 3-4.) However, the plea
agreement in the first case waived all of Petitioner’s appellate rights, including the right to appeal the trial
court’s denial of Petitioner’s motion to suppress evidence based on alleged violations of the Fourth
Amendment and on alleged violation of Petitioner’s Fifth Amendment rights. (Id. at 5-6; State’s Lodging
D-4 at 6.)
3

MEMORANDUM DECISION AND ORDER - 4

After counsel was appointed to represent Petitioner, Petitioner filed an affidavit—
entitled “2nd Affidavit of Facts in Support of Post-Conviction Petition” (“Second
Affidavit”)—asserting numerous additional claims of ineffective assistance of trial
counsel, including that counsel failed (1) “to adequately investigate possible suppression
issues on the warrantless search & seizure,” (2) to investigate “the fact that the
confidential informant may have tampered with the evidence & the chain of custody may
have been affected,” (3) to investigate “whether there was adequate probable cause for
the traffic stop,” and (4) to investigate “whether or not surveillance footage of the parking
lot where the stop occurred may have revealed suppression issues.” (Id. at 61-62.) The
state district court dismissed all of these claims on the merits. (Id. at 149-58.)
Petitioner appealed, including in his opening brief only his claim that his counsel
was ineffective with respect to the plea agreement. (State’s Lodging D-1.) However, in
his reply brief on appeal from the dismissal of the postconviction petition, Petitioner
referred to his Second Affidavit—which included the four additional claims just
described—and attached both that affidavit and his original postconviction petition to the
reply brief. (State’s Lodging D-3.) The Idaho Court of Appeals denied, on the merits, the
claims included in the initial petition—breach of the plea agreement and ineffective
assistance based on counsel’s (a) alleged lies, “false pretenses and manipulation” that
supposedly led Petitioner to plead guilty, (b) failure to file a notice of appeal in the first
case, and (c) failure “to argue 5th Amend. violation, coercion to make statement, No
notification of [Miranda], and waiver.” (State’s Lodging D-4 at 3-6 (footnote omitted).)

MEMORANDUM DECISION AND ORDER - 5

The court of appeals also denied, on the merits, all of the ineffective assistance of
counsel (“IAC”) claims included in the Second Affidavit, stating that Petitioner had not
submitted “admissible evidence supporting (or explaining) his claims, which are merely
conclusory allegations.”4 (Id. at 6.) The Idaho Supreme Court denied review. (State’s
Lodging D-7.)
In his federal Petition for Writ of Habeas Corpus, Petitioner brings the following
claims:
Claim 1:

Petitioner’s guilty plea was involuntary, because
allegedly “tricked” Petitioner into signing the plea
agreement “via coersion [sic], out and out lies, and
manipulation.” This claim includes an assertion that
his trial counsel was ineffective in his representation of
Petitioner.

Claim 2:

Petitioner received ineffective assistance of counsel in
violation of Sixth Amendment, based on counsel’s
failure to investigate alleged Fifth Amendment
violations, with respect to “potentially coerced
statements made by petitioner,” including “Miranda,
coercion, and waiver.”

Claim 3:

Petitioner received ineffective assistance of counsel in
violation of the Sixth Amendment, based on counsel’s
failure (i) to “thoroughly and adequately investigate
proper suppression issues associated with a warrantless
search,” (ii) to investigate “chain of custody issues,” or
(iii) to investigate whether “there was adequate
probable cause” to stop Petitioner’s vehicle.5

The court noted that Petitioner’s Second Affidavit was inadmissible because it was not “properly
sworn before a notary public,” which is required by Idaho Code § 51-109(2). (State’s Lodging D-4 at 4
n.4.) Nonetheless, the court did address the claims raised in that affidavit.
4

5

Although Claim 3 nominally cites not only the Sixth Amendment, but also the Fifth Amendment
and “the right to remain silent,” the body of Claim 3 makes clear that Petitioner is asserting ineffective
assistance of trial counsel—under the Sixth Amendment—based on counsel’s failure to properly

MEMORANDUM DECISION AND ORDER - 6

Claim 4:

Petitioner received ineffective assistance of counsel in
violation of the Sixth Amendment, based on counsel’s
failure to investigate surveillance footage.

(Dkt. 3 at 6-9; Dkt. 19 at 5.)
DISCUSSION
The Idaho Court of Appeals denied all of Petitioner’s claims on the merits. (State’s
Lodging D-1, D-3, D-4.) Thus, the Court will review the merits of these claims under 28
U.S.C. § 2254(d).
1.

Standard of Law for Merits Review
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.

investigate and pursue certain Fourth Amendment issues. Respondent has noted this fact and construed
Claim 3 as a Sixth Amendment claim, and Petitioner has not objected to that construction. Therefore, the
Court similarly construes Claim 3 as an ineffective assistance claim, rather than a Fifth Amendment
claim.
Further, even if a portion of Claim 3 were characterized as a Fifth Amendment claim, any such
claim would be procedurally defaulted and subject to dismissal. See Coleman v. Thompson, 501 U.S. 722,
750 (1991) (“In all cases in which a state prisoner has defaulted his federal claims in state court . . . ,
federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.”); Gray v. Netherland, 518 U.S. 152, 16162 (1996) (“Because [the exhaustion] requirement refers only to remedies still available at the time of the
federal petition, it is satisfied if it is clear that the habeas petitioner’s claims are now procedurally barred
under state law. However, the procedural bar that gives rise to exhaustion provides an independent and
adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus
review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.”)
(internal quotation marks and citations omitted) (alteration added, remaining alterations omitted).
Petitioner raised a Fifth Amendment claim to the trial court in his motion to suppress, which was
denied. (State’s Lodging A-1 at 137-44.) However, Petitioner did not appeal the denial of the motion
because—as part of his plea agreement—he waived his right to appeal. (State’s Lodging C-3 at 5-6.) And,
as explained in Section 3, below, Petitioner’s plea, including the appellate waiver, was knowing and
voluntary, and therefore invulnerable to collateral attack in this case.

MEMORANDUM DECISION AND ORDER - 7

§ 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.

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 v.
Nunnemaker, 501 U.S. 797, 804 (1991), a state court need not “give reasons before its
decision can be deemed to have been ‘adjudicated on the merits’” under § 2254(d).
Harrington v. Richter, 562 U.S. 86, 100 (2011).
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

MEMORANDUM DECISION AND ORDER - 8

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).
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). 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. (internal citation
omitted). 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

MEMORANDUM DECISION AND ORDER - 9

beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S. Ct. 1697,
1702 (2014) (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).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not
announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).
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.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). 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

MEMORANDUM DECISION AND ORDER - 10

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, those findings must be
presumed correct pursuant to 28 U.S.C. § 2254(e)(1). 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
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). As stated above, reasonable 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 narrow circumstances, the

MEMORANDUM DECISION AND ORDER - 11

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 still 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, the federal court is not
limited by § 2254(d)(2) or (e)(1). Rather, the federal district court may consider evidence
outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray
v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
Then, even if a petitioner succeeds in demonstrating a constitutional error in his
conviction, he is entitled to federal habeas relief only if he “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.
2.

Clearly-Established Law Regarding Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution provides that a criminal

defendant has a right to the effective assistance of counsel in his defense. The standard
MEMORANDUM DECISION AND ORDER - 12

for ineffective assistance of counsel claims was identified in Strickland v. Washington,
466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel must show
that (1) “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and (2) those errors “deprive[d] the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense, “are virtually
unchallengeable” if “made after thorough investigation of law and facts relevant to
MEMORANDUM DECISION AND ORDER - 13

plausible options.” Strickland, 466 U.S. at 690. Moreover, it is not ineffective assistance
of counsel when an attorney decides not to investigate a potential defense theory if the
decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91.
The Ninth Circuit has given definition to the Strickland standard when evaluating
such “strategy calls” and those decisions instruct this Court’s assessment of whether the
state court reasonably applied Strickland. Duhaime, 200 F.3d at 600. First, tactical
decisions do not constitute ineffective assistance simply because, in retrospect, better
tactics are known to have been available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.
1984). Second, a mere difference of opinion as to tactics does not render counsel’s
assistance ineffective. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981).
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
MEMORANDUM DECISION AND ORDER - 14

errors, the result of the proceeding would have been different.” Id. at 694. As the
Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112.
To show prejudice based on deficient performance of counsel in a case where a
guilty plea was entered, as petitioner did here, the petitioner must show “a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Finally, when evaluating a claim of ineffective assistance of counsel in a federal
habeas proceeding under § 2254(d), the Court’s review of that claim is “doubly
deferential.” Pinholster, 563 U.S. at 190.

MEMORANDUM DECISION AND ORDER - 15

3.

Merits Analysis of Claim 1: Involuntary Guilty Plea and Ineffective
Assistance of Counsel, Based on Counsel’s Conduct Surrounding the Plea
Agreement and Guilty Pleas
Claim 1 asserts that Petitioner’s guilty plea was invalid because Petitioner’s

counsel allegedly “tricked” him into signing the plea agreement “via coersion [sic], out
and out lies, and manipulation.” (Dkt. 3 at 6.) This claim includes an allegation that
Petitioner’s attorney rendered ineffective assistance by engaging in such conduct.
To satisfy the Constitution, a guilty plea must be knowing, intelligent, and
voluntary. A plea can be unknowing or involuntary “either because the accused does not
understand the nature of the constitutional protections that he is waiving, or because he
has such an incomplete understanding of the charge that his plea cannot stand as an
intelligent admission of guilt.” Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976)
(internal quotation omitted). A habeas petitioner may attack the knowing and voluntary
nature of a guilty plea rendered upon the advice of counsel only if the petitioner shows
“that the advice he received from counsel” was not “within the range of competence
demanded of attorneys in criminal cases.” Tollett v. Henderson, 411 U.S. 258, 266-67
(1973) (internal quotation marks omitted). That is, the petitioner’s attorney must have
rendered ineffective assistance, which—to a reasonably probable degree—must have
caused the Petitioner to enter the guilty plea. See Hill, 474 U.S. at 59.
A.

State Court Decision

Petitioner argued in state court that he believed his plea agreement required the
trial judge to impose a fixed sentence of 10 years. The Idaho Court of Appeals denied
Claim 1 because (1) Petitioner’s “plea agreement was made knowingly, voluntarily, and
MEMORANDUM DECISION AND ORDER - 16

intelligently,”6 and (2) in support of his claim, Petitioner offered mere conclusory
allegations that were unsupported by admissible evidence. (State’s Lodging D-4 at 4.)
B.

Petitioner Is Not Entitled to Relief on Claim 1

The court of appeals reasonably rejected Petitioner’s claim that his attorney lied to
him and coerced or manipulated him into pleading guilty by promising that Petitioner
would receive a minimum fixed sentence of 10 years.
After holding an evidentiary hearing at which both Petitioner and his trial attorney
testified, the state district court found that Petitioner’s attorney had fully explained the
plea agreements and potential sentences to Petitioner. The court found counsel “was very
careful to explain to [Petitioner] that, in fact, [10 years] was not a sentence that was a
maximum that he would receive on the fixed portion, and was very careful to explain to
him that the State was free to argue anything that it wished to up to the maximum, and
the Court was free to impose any sentence that it wished up to the maximum.” (State’s
Lodging A-6 at 63.)
This factual finding is supported by trial counsel’s testimony that he had explained
to Petitioner—frequently, “unequivocally,” and “in great detail”—that the plea agreement
did not guarantee a fixed sentence of only 10 years, that the prosecution and the defense
were free to recommend any particular sentence within the statutory guidelines, and that
the sentencing judge was not bound to impose any specific sentence other than the

The state court of appeals cited the knowing and voluntary nature of Petitioner’s plea in support
of its decision that counsel was not ineffective for failing to file a notice of appeal in the first case. The
conclusion regarding the knowing and voluntary nature of the plea applies equally to Claim 1—that
Petitioner’s guilty plea was invalid because of his attorney’s conduct.
6

MEMORANDUM DECISION AND ORDER - 17

statutory minimum. (Id. at 41-42, 56.) Thus, Petitioner cannot show that counsel’s
performance fell below an objective standard of reasonableness.
Relying on the testimony of his trial counsel at the evidentiary hearing, Petitioner
asserts that his attorney “baited” him into pleading guilty. The specific language cited by
Petitioner is the following statement made by his trial attorney: “I don’t want to use—
bait; that, you know, let’s get you into an agreement.” (Dkt. 19 at 6.) However, in
context, it is clear that counsel’s testimony was about his belief as to what the prosecutor
would recommend at sentencing even if it they negotiated a plea agreement:
It literally felt like I was in a marketplace with [the
prosecutor], having to entertain [plea] offers, and I was really
doing my level best to get [away from 15 years as the
minimum sentence]. And I will say that [the prosecutor] was
very much insistent that that wouldn’t happen. [The plea
agreement that Petitioner accepted] really was at the eleventh
hour.
And there was, like I said, I believe some other issues that
may have related to her being willing to consider that
amendment [to the information to allege a violation of the
statute providing for a minimum sentence of 10 years]. But
that—we struck that offer. And I went in and I did my level
best to explain it to [Petitioner].
And I am remembering how important it was to make it
known to [Petitioner] that, listen, just because the parties
agree that there’s going to be an amendment to a lesser
offense, that that’s not a lock that you’re going to get 10
years. That was so important, because that was—it was an
opportunity to make that sentence a reality that, to me, had
real value. And when I got that offer from [the prosecutor],
frankly, I was very excited.
But I’m an experienced attorney and I know that that’s not a
guarantee. That’s only a couple steps in the right direction.

MEMORANDUM DECISION AND ORDER - 18

And I do remember making that—as best as I was able to—
understandable for [Petitioner].
...
. . . And I remember, like, he thanked [the prosecutor] at
different times throughout this process. and, subjectively, it’s
possible that he thought that it was a 10-year fixed sentence.
But I know that I made a mental note of his subjective belief
and tried to bring him back to a position of objectivity in
terms of explaining to him that this isn’t—this is, by no
means, a guarantee. And I did that for two reasons.
Number one, I know my opponent, [the prosecutor]. [She] is a
skilled prosecuting attorney. And I knew that [the prosecutor]
was not going to come in and ask for 10 years. I knew that.
And I made that clear to [Petitioner] that, just because she’s
willing to amend the charge—in a way, it’s almost as if it
were—I don’t want to use—bait; that, you know, let’s get you
into an agreement.
But I knew that [the prosecutor] was not going to ask for the
10-year sentence, because she hadn’t in the body of the case
previously.
(State’s Lodging A-6 at 46-48 (emphasis added).)
Taken in context of counsel’s entire testimony, it is clear that counsel was not
testifying that counsel himself baited Petitioner into accepting the plea agreement—
rather, counsel was stating his professional belief that the prosecutor may have “baited”
Petitioner—that is, offered the amendment to a lesser charge to influence Petitioner to
accept the plea agreement, never actually intending to argue that Petitioner should be
sentenced only to the mandatory minimum sentence. And that was a perfectly legitimate
decision made by the prosecutor. The plea agreement unambiguously preserved the

MEMORANDUM DECISION AND ORDER - 19

prosecution’s right to argue for any sentence—not just the mandatory minimum of 10
years. (State’s Lodging C-3 at 3-6.)
In addition, because Petitioner argues that his guilty plea was involuntary based on
his attorney’s conduct and advice, he cannot show prejudice unless he establishes that,
“but for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill, 474 U.S. at 59. But, as the transcript of the change-of-plea hearing
reveals, Petitioner was under no illusion that his plea agreement provided for a specific
fixed sentence of 10 years:
THE COURT:

In [the first case], there has been an amended
information that has been filed in that case that amends
the charge to a violation of Idaho Code 372732(b)(a)(6)(b). It is a charge of trafficking in heroin.
However, the potential penalty is that case is less than
the penalty for the earlier indictment, which charged
[Petitioner] with a violation of 37-2732(b)(a)(6)(c). So
in this situation, that is the change that has been made
there. . . .
In this case, my understanding then is that [Petitioner]
would plead guilty to that amended information and
would also plead guilty to the indictment in [the
second case].
In exchange for those guilty pleas in those two cases,
the State is free to argue any sentence up to the
maximum which, again, is up to life in prison for either
charge.
The defense is free to argue that the Court simply
impose the mandatory minimum in each case, which in
the [first] case is 10 years in the State penitentiary and
in the [second] case, it is three years in the State
penitentiary. . . .

MEMORANDUM DECISION AND ORDER - 20

And in this case, Mr. Garcia, was that your
understanding of the agreement?
[Petitioner]:

It is, Your Honor.

...
[THE COURT]:

Sir, turning first to the [first] case, the trafficking there
that has now been charged under 37-3732(b)(a)(6)(b)
for knowingly possessing and/or bringing into the state
seven grams or more of heroin. What did you
understand, again, the maximum possible penalty for
that to be?

[Petitioner]:

The maximum?

[THE COURT]:

Yes, sir.

[Petitioner]:

Life.

[THE COURT]:

Up to life and up to a $100,000 find. Do you
understand that, sir?

[Petitioner]:

Yes, sir, I do now.

[THE COURT]:

You also understand that the minimum for that is ten
years in the State penitentiary and . . . a $15,000 fine.
Do you understand that, as well, sir?

[Petitioner]:

I understand.

[THE COURT]:

Okay. Now, sir, in the [second] case for the trafficking
charge there as contained in the indictment pursuant to
Idaho Code 37-2732(b)(a)(6)(a), what did you
understand the maximum possible penalty for that
offence to be?

[Petitioner]:

Life.

[THE COURT]:

Again, sir, that is correct, up to life in prison and up to
a $100,000 fine or both. And there is a mandatory

MEMORANDUM DECISION AND ORDER - 21

minimum period of incarceration of three years and a
$10,000 fine. Do you understand that, as well?
[Petitioner]:

Yes, sir, I do.

[THE COURT]:

Okay. Now, sir, in this case you understand that I am
not bound by the agreement in terms of sentencing. In
other words, there has been no sentencing agreement
in this case and, therefore, I could impose any
sentence up to the maximum. Do you understand that,
sir?

[Petitioner]:

Yes, sir, I do.

...
[THE COURT]:

You also understand, sir, in this case you have given
up your right to appeal any decision I have made in
this case other than the denial of your motion to
dismiss for vindictive prosecution. Do you understand
that?

[Petitioner]:

I do understand, Your Honor.

...
[THE COURT]:

In this case, if I do run these sentences concurrently
but if I impose a sentence up to and including life, in
this case, you would not be able to appeal that
decision . . . . Do you understand that, as well?

[Petitioner]:

I do.

(State’s Lodging A-5 at 206-08, 219-22 (emphasis added).)
Petitioner cannot show that he would not have pleaded guilty if counsel had
advised him any differently than he did, because Petitioner went into the sentencing
proceedings with his eyes wide open. Petitioner gained an advantage by the amended
information, which permitted—but did not require—the court to impose a sentence of 10
MEMORANDUM DECISION AND ORDER - 22

years in prison instead of the 15 years that would have been required under the original
indictment in the first case. But, as is clear from everything in the record, he was not
guaranteed such a result.
It is easy to look back, in hindsight, and conclude that Petitioner might not have
pleaded guilty if he had known for certain that he would receive a fixed sentence of 15
years in prison, rather than the 10-year fixed sentence that the amended information
permitted and for which Petitioner was hoping. But what matters is that Petitioner did
know, because of his attorney’s advice and the judge’s statements to him, that Petitioner
could receive such a sentence, and he chose to plead guilty anyway in the reasonable
hope that the judge would choose a lesser sentence. This was a rational decision, and
Petitioner made it knowing all the relevant information. That Petitioner ultimately
received a sentence with which he is dissatisfied does not render his plea unknowing or
involuntary.
For the foregoing reasons, the Idaho Court of Appeals rejection of Claim 1 was
reasonable.
4.

Merits Analysis of Claim 2: IAC Based on Counsel’s Alleged Failure to Raise
a Fifth Amendment Argument
In Claim 2, Petitioner claims that his attorney was ineffective, in violation of the

Sixth Amendment, for failing to assert a violation of Petitioner’s Fifth Amendment right
to be free from self-incrimination. (Dkt. 3 at 7.) As stated by the Idaho Court of Appeals,
Claim 2, “in effect, argues that counsel failed to file a motion to suppress statements that
were made involuntarily or in violation of Miranda.” (State’s Lodging D-4 at 4 n.3.) See

MEMORANDUM DECISION AND ORDER - 23

Miranda v. Arizona, 384 U.S. 436, 445 (1966) (holding that suspects in custody must be
informed, prior to interrogation, that they have a Fifth Amendment right to remain silent
and to have an attorney present during police questioning”).
A.

State Court Decision

The Idaho Court of Appeals rejected Claim 2 because “defense counsel did file a
motion to suppress” based on a purported Miranda violation and alleged coercion, and
the trial court held a hearing on the motion. (State’s Lodging D-4 at 6.) In reviewing the
trial court record, the court of appeals noted that Petitioner had testified he was
“threatened by a detective in a police interview,” that the detective had testified he had
informed Petitioner of his Miranda rights and had not threatened Petitioner, and that “a
signed Miranda waiver was introduced” at the hearing. (Id.) The court dismissed
Petitioner’s conclusory references to “waiver” and to defense counsel’s alleged
cooperation and participation in the supposed Miranda violation because those assertions
were not supported by admissible evidence. (Id.)
B.

Petitioner Is Not Entitled to Relief on Claim 2

The Idaho Court of Appeals reasonably rejected Claim 2—that trial counsel was
ineffective for failing to assert a Fifth Amendment violation—because Petitioner’s
counsel did, in fact, raise a Fifth Amendment argument in Petitioner’s motion to
suppress. (State’s Lodging A-1 at 62-69.) Counsel put Petitioner on the stand and also
cross-examined the detective at the hearing on the motion to suppress. (State’s Lodging
A-4.) Counsel argued that Petitioner had not knowingly waived his Miranda rights
because he was under the influence at the time and that Petitioner’s statements were
MEMORANDUM DECISION AND ORDER - 24

coerced by the detective. (State’s Lodging A-1 at 139.) The trial court reasonably
resolved the conflicting testimony of Petitioner and the detective, finding the detective to
be more credible. (Id. at 140-41.)
Credibility findings are the quintessential type of finding generally left to the trier
of fact, who hears the witness’s testimony and observes his or her demeanor:
All aspects of the witness’s demeanor including the
expression of his countenance, how he sits or stands, whether
he is inordinately nervous, his coloration during critical
examination, the modulation or pace of his speech and other
non-verbal communication may convince the observing trial
judge that the witness is testifying truthfully or falsely. These
same very important factors, however, are entirely
unavailable to a reader of the transcript . . . .
Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074, 1078-79 (9th Cir. 1977). Therefore,
the Idaho Court of Appeals reasonably relied upon the trial court’s factual finding that
trial counsel’s testimony was true.
Petitioner’s claim that his trial counsel did not adequately raise a Fifth
Amendment argument is belied by the record. The state court decisions were based on
reasonable findings of fact, and the Idaho Court of Appeals’ rejection of Claim 2 was not
contrary to, or an unreasonable application of, clearly-established Supreme Court
precedent. See 28 U.S.C. § 2254(d).
5.

Merits Analysis of Claim 3: IAC Based on Counsel’s Failure to Investigate
and Assert Fourth Amendment Arguments
In Claim 3, Petitioner claims that counsel failed (a) to “thoroughly and adequately

investigate proper suppression issues associated with a warrantless search,” (b) to
investigate “chain of custody issues,” and (c) to investigate whether “there was adequate
MEMORANDUM DECISION AND ORDER - 25

probable cause” to stop or to arrest Petitioner. (Dkt. 3 at 8.) These are all assertions that
trial counsel should have raised various Fourth Amendment issues.
A.

State Court Decision

Petitioner raised this claim in his Second Affidavit in his state postconviction
proceedings, and attached that affidavit to his reply brief on appeal from the trial court’s
dismissal of his postconviction petition. (State’s Lodging C-1 at 61-62; D-3.) Despite the
Idaho Court of Appeals’ statement that it would not consider arguments raised for the
first time in a reply brief, that court did, in fact, consider the claims raised in the Second
Affidavit—including each sub-claim in Claim 3. (State’s Lodging D-4 at 5 n.5, 6.) The
court held that Petitioner “did not submit admissible evidence supporting (or explaining)
his claims” that trial counsel rendered ineffective assistance by failing to pursue certain
suppression, chain of custody, or probable cause issues. (Id. at 6.) For purposes of habeas
review under § 2254(d), a state court’s decision that a petitioner did not meet his burden
of establishing a constitutional violation equates to a merits decision that no such
violation occurred.
B.

Petitioner Is Not Entitled to Relief on Claim 3

Petitioner has not established that the Idaho Court of Appeals’ rejection of Claim 3
was contrary to, or an unreasonable application of, Supreme Court law, nor has he shown
that the decision was based on an unreasonable factual finding. See 28 U.S.C. § 2254(d).
Trial counsel did, in fact, raise Fourth Amendment arguments when he filed a motion to
suppress evidence, arguing that evidence seized from a vehicle in which Petitioner was a
passenger, as well as evidence found in Petitioner’s home, was obtained in violation of
MEMORANDUM DECISION AND ORDER - 26

the Fourth Amendment. (State’s Lodging A-1 at 62-69). The trial court denied the
motion. Petitioner does not identify the other suppression, chain of custody, or probable
cause issues that he alleges should have been asserted. He has also not shown a
reasonable probability that any other Fourth Amendment arguments would have been
accepted by the trial court, thereby causing Petitioner to insist on going to trial instead of
pleading guilty. See Hill, 474 U.S. at 59. Therefore, Petitioner is not entitled to relief on
Claim 3.
6.

Merits Analysis of Claim 4: IAC Based on Counsel’s Failure to Investigate
Surveillance Videos
Claim 4 asserts that Petitioner received ineffective assistance of counsel because

his attorney failed to investigate surveillance videos. (Dkt. 3 at 9.)
A.

State Court Decision

The state court of appeals rejected Claim 4 for the same reason as Claim 3—
Petitioner did not submit any admissible evidence supporting his claim, which was
nothing more than a conclusory allegation. (State’s Lodging D-4 at 6.)
B.

Petitioner Is Not Entitled to Relief on Claim 4

Petitioner is not entitled to a grant of habeas relief on Claim 4 for the same reason
as Claim 3. Petitioner has not established that the Idaho Court of Appeals’ rejection of
Claim 4 was contrary to, or an unreasonable application of, Supreme Court law, nor has
he shown that the decision was based on an unreasonable factual finding. See 28 U.S.C. §
2254(d). Petitioner has not provided evidence supporting a conclusion that (1) counsel
performed deficiently, or (2) it is reasonably probable that—had counsel investigated

MEMORANDUM DECISION AND ORDER - 27

surveillance videos—Petitioner would have not have pleaded guilty and would have
insisted on going to trial. See Hill, 474 U.S. at 59; Strickland, 466 U.S. at 687-89.
CONCLUSION
None of Petitioner’s arguments as to the merits of the Petition’s ineffective
assistance counsel claims is persuasive. For the reasons set forth above, the Court
concludes that the Idaho Court of Appeals reasonably rejected the claims in the Petition.
See 28 U.S.C. § 2254(d).
ORDER
IT IS ORDERED:
1.

Petitioner’s Request for More Time to File a Response to the Respondent’s
Answer and Brief in Support of Dismissal of Petitioner’s Petition for Writ
of Habeas Corpus (Dkt. 17) is GRANTED. Petitioner’s reply (Dkt. 19) is
deemed timely.

2.

The Petition for Writ of Habeas Corpus, including Petitioner’s supplement
to that Petition (Dkt. 3 & 12), is DENIED. This entire action is
DISMISSED with prejudice.

3.

The Court finds that its resolution of this habeas matter is not 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

MEMORANDUM DECISION AND ORDER - 28

Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.

DATED: August 22, 2016

Honorable Ronald E. Bush
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 29