Plaster v. Yordy

Filing 14

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Respondent's Motion for Extension of Time to File Answer or Pre-Answer Motion 9 is GRANTED. Respondent's Motion for Summary Dismissal 11 is GRANTED, and the Petition is DISMISSED with prejudice. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JONATHON G. PLASTER, JR.,
Case No. 1:15-cv-00170-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
ISCI WARDEN KEITH YORDY,
Respondent.

Pending before the Court is Petitioner Jonathon G. Plaster, Jr.’s Petition for Writ
of Habeas Corpus. (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal,
arguing that all of Petitioner’s claims are procedurally defaulted and/or noncognizable.
(Dkt. 11.) The Motion is now ripe for adjudication. The Court takes judicial notice of the
records from Petitioner’s state court proceedings, which have been lodged by
Respondent. (Dkt. 10.) See Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551
(9th Cir. 2006).
The 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). (Dkt. 8.)

MEMORANDUM DECISION AND ORDER - 1

Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting the Motion and dismissing
this case with prejudice.
BACKGROUND
In 2005, Petitioner was charged, in the Fifth Judicial District Court in Cassia
County, Idaho, with two counts of lewd conduct with a child under the age of sixteen, in
violation of Idaho Code § 18-1508, and one count of sexual abuse of a child under the
age of sixteen years, in violation of Idaho Code § 18-1506. (State’s Lodging B-5 at 1.)
Pursuant to a binding plea agreement, Petitioner entered a conditional Alford1 plea, to
a single count of lewd conduct. Even though the plea agreement called for a specific
sentence of thirty years in prison with seven years fixed, the trial court ordered a
psychosexual evaluation prior to sentencing. (Id. at 1-2; State’s Lodging A-5, Plea
Agreement, at 2.)
During the psychosexual evaluation, Petitioner was advised by the examiner “that
he had the right to remain silent, that anything he said could and would be used against
him, that he had the right to have an attorney present during the assessment, and that he
had the right to stop answering questions at any time.” (State’s Lodging B-5 at 2.)

See North Carolina v. Alford, 400 U.S. 25, 35 (1970) (approving the use of a “plea by which a
defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the
court for purposes of the case to treat him as if he were guilty”).
1

MEMORANDUM DECISION AND ORDER - 2

Petitioner waived those rights. During the evaluation, Petitioner “admitted to sex crimes
. . . in addition to those acts charged in the original information.” (Id.)
Petitioner later filed a motion to withdraw his plea in the 2005 case. The trial court
granted Petitioner’s motion, rendering the plea agreement void.
Then, in 2008, before trial on the 2005 charges, the State charged Petitioner with
eight counts of lewd conduct and two counts of sexual abuse, based primarily on
Petitioner’s statements during the psychosexual evaluation conducted by order of the
court in the 2005 case. (Id.) The State later amended the 2008 information to allege seven
counts of lewd conduct and one count of sexual abuse.
Prior to trial, the prosecution filed a motion in limine regarding the admissibility
of the statements Petitioner made in the course of the psychosexual evaluation. (Id.) The
trial court ruled that the statements were admissible in the 2008 case, and that case was
consolidated with the 2005 case for purposes of trial.
Petitioner and the State again reached a plea agreement. Petitioner entered a
conditional Alford plea to seven counts of lewd conduct and one count of sexual abuse, as
alleged in the amended information in the 2008 case, reserving the right to appeal only
the trial court’s ruling on the motion in limine. (Id.) The 2005 case was dismissed.
(State’s Lodging A-4 at 27-28.) Petitioner was sentenced to a total of forty years in prison
with twenty years fixed. (Id. at 33.)
On direct appeal, Petitioner challenged the trial court’s ruling on the admissibility
of Petitioner’s statements during the psychosexual evaluation in the 2008 case, arguing

MEMORANDUM DECISION AND ORDER - 3

that the admission of those statements was fundamentally unfair. His entire argument was
as follows:
Mindful of the fact that [Petitioner’s] participation in
the psychosexual evaluation in the [2005 case] was not
required as part of the plea agreement with the State and
would not factor into his sentence in any way, and mindful of
the fact that [Petitioner] moved to withdraw his plea and,
thereby, knowingly withdrew from his plea agreement with
the State, [Petitioner] nevertheless contends that, because the
admissions made during the psychosexual evaluation were
made in reliance on the original plea agreement, it was
fundamentally unfair for the district court to have ruled that
the State could use those admissions against him even after
the plea agreement had been vacated.
(State’s Lodging B-2 at 11.) Petitioner cited two federal criminal cases in support of his
argument: United States v. Escamilla, 975 F.2d 568 (9th Cir. 1992), and United States v.
Ventura-Cruel, 356 F.3d 55 (1st Cir. 2003).
The Idaho Court of Appeals affirmed Petitioner’s convictions, holding that it was
not fundamentally unfair to allow the statements made during Petitioner’s previous
psychosexual evaluation to be used against Petitioner in the later prosecution. The court
relied on the following facts: (1) Petitioner was advised of his rights prior to making the
incriminating statements; (2) nothing in the plea agreement induced Petitioner to make
such statements; (3) Petitioner—not the State—voluntarily withdrew from the plea
agreement; and (4) the statements were voluntary. (State’s Lodging B-5 at 4.) The court
also noted that Petitioner had not provided any “relevant authority” in support of his
claim of fundamental unfairness. (Id.)

MEMORANDUM DECISION AND ORDER - 4

Petitioner filed a petition for review with the Idaho Supreme Court, relying on the
briefs reviewed by the Idaho Court of Appeals. (State’s Lodging B-6.) The Idaho
Supreme Court denied the petition for review without comment. (State’s Lodging B-7.)
Petitioner later filed a pro se petition for state post-conviction relief, in which he
specified that he was not seeking counsel to represent him. (State’s Lodging C-1 at 25.)
Petitioner alleged ineffective assistance of counsel, prosecutorial misconduct, and judicial
misconduct. (Id. at 23.) The state district court dismissed the petition, and Petitioner
appealed.
On appeal from the dismissal of the postconviction petition, Petitioner—now
represented by counsel—raised a single issue: whether the court improperly dismissed
the petition without granting Petitioner’s requests for discovery.2 (State’s Lodging D-1.)
Petitioner cited the First, Fifth, and Fourteenth Amendments when asserting that the
denial of discovery violated Petitioner’s “right to access . . . the courts and his right to
due process.” (Id. at 1.) He argued that the state district court abused its discretion by
denying the discovery requests and, in turn, dismissing the petition. The Idaho Court of
Appeals affirmed the dismissal of the post-conviction petition, and the Idaho Supreme
Court denied review. (State’s Lodging D-4, D-5, D-7.)

Petitioner’s post-conviction appellate attorney framed this argument as two distinct issues: (1)
“Were [Petitioner’s] requests for discovery improperly denied?” and (2) Was [Petitioner’s] petition
improperly dismissed?” (State’s Lodging D-1 at 6.) However, as revealed by the body of the brief,
Petitioner actually made a single broad argument—that the trial court should not have dismissed the
petition without first allowing discovery. (See id. at 6-10.)
2

MEMORANDUM DECISION AND ORDER - 5

Shortly thereafter, Petitioner filed a pro se successive post-conviction petition in
the state district court. (State’s Lodging E-1 at 7-55.) The court dismissed the petition,
and Petitioner appealed. (Id. at 109-19.) The Idaho Court of Appeals affirmed. (State’s
Lodging F-6.) Petitioner did not file a petition for review with the Idaho Supreme Court,
and the Idaho Court of Appeals issued the remittitur. (State’s Lodging F-7.)
In the instant federal habeas corpus petition, Petitioner asserts the following
claims3:
Claim 1:

Violation of the Fourth Amendment based on
an officer’s entrance into Petitioner’s home
without consent and without presenting a
warrant.

Claim 2:

Violation of the Fifth Amendment based on the
alleged denial of a grand jury.

Claim 3:

Violation of due process based on allegedly
“vague allegations.”

Claim 4:

Violation of the Fifth Amendment based on
alleged “pre-indictment delay.”

Claim 5:

Violations of the Fifth, Eighth, and Fourteenth
Amendments based on an excessive bond.

Claim 6:

Equal Protection violation of equal protection
based on the amount of the bond. Petitioner also
cites the Fifth and Eighth Amendments in this
claim.

The Court adopts Respondent’s construction of the claims in the Petition. (See Dkt. 11-1 at 6-9.)
The Court agrees that the claims are best construed in this manner, and Petitioner has not objected to that
construction.
3

MEMORANDUM DECISION AND ORDER - 6

Claim 7:

Claim 8:

Ineffective assistance of counsel in the 2005
case.

Claim 104:

Violations of “Due Process, Equal Protection,
Ineffective Assistance, Cruel & Unusual” based
on Petitioner’s having to appear in court in
restraints and jail clothes.

Claim 11:

Violation of Petitioner’s Sixth Amendment
right to a speedy trial. Petitioner also cites the
Fifth and Fourteenth Amendments in support of
this claim.

Claim 12:

“Deliberate Indifference,” in violation of the
Eighth Amendment,5 based on Petitioner’s
allegedly inadequate health care while in
custody and substandard conditions of
confinement. Petitioner also cites the Fifth and
Fourteenth Amendments in support of this
claim.

Claim 13:

Cruel and unusual punishment, in violation of
the Eighth Amendment, based on Petitioner’s
placement in segregation following a fight with
another inmate in which Petitioner was
“defending himself.” Petitioner also cites the
Fifth and Fourteenth Amendments in support of
this claim.

Claim 14:

4

“Vindictive/Malicious Prosecution” in violation
of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.

Due process violation based on alleged
withholding of evidence with respect to the
State’s motion in limine. Petitioner also cites

Petitioner has withdrawn Claim 9.

Petitioner cites the “Eighteenth” Amendment in reference to this claim of deliberate indifference.
However, the Court assumes this is a typographical error, as Petitioner’s assertions actually implicate the
Eighth Amendment.
5

MEMORANDUM DECISION AND ORDER - 7

the Fifth and Eighth Amendments in support of
this claim.
Claim 166:

Claim 17:

Violations of the Fifth, Eighth, and Fourteenth
Amendments resulting from a denial of
Petitioner’s request for a furlough to attend his
grandmother’s funeral.

Claim 18:

Violations of the Fifth, Sixth, and Fourteenth
Amendments based on alleged delay with
respect to Petitioner’s motion to withdraw his
plea in the 2005 case.

Claim 19:

Violations of the Sixth, Eighth, and Fourteenth
Amendments based on “pretrial delay.”

Claim 20:

Violations of the Fifth, Sixth, Eighth, and
Fourteenth Amendments due to alleged
“Vindictive/Malicious Prosecution” in the 2008
case, based on the State’s decision to charge
Petitioner with additional crimes following the
withdrawal of his plea in the 2005 case.

Claim 21:

Violations of the Fifth, Sixth, Eighth, and
Fourteenth Amendments because the state
“waited” until January 2008 to file charges, five
months after its notice of intent to file, and
eleven months after the withdrawal of
Petitioner’s guilty plea.

Claim 22:

Ineffective assistance of counsel by attorney
Keith Roark.

Claim 23:

6

Violations of the Sixth, Eighth, and Fourteenth
Amendments and “Prejudice” resulting from the
“court not replacing ineffective counsel” David
Haley.

Violations of the Fifth, Sixth, Eighth, and
Fourteenth Amendments based on allegedly

Petitioner has withdrawn Claim 15.

MEMORANDUM DECISION AND ORDER - 8

“coerced statement[s]” made to the
psychosexual evaluator.
Claim 24:

Violations of the Fifth, Sixth, Eighth, and
Fourteenth Amendments based on the timing of
the charges filed in the 2008 case.

Claim 25:

Violations of the Fifth, Sixth, Eighth, and
Fourteenth Amendments based on dismissal of
charges in the 2005 case and, again, alleged
delay as to the 2008 case.

Claim 26:

“False Claims; Vindictive/Malicious
Prosecution” at sentencing, including
statements by the prosecutor (a) that Petitioner
was dishonorably discharged from the Army
and (b) regarding Petitioner’s efforts to “do the
right thing.”

Claim 27:

Violations of the Fifth, Eighth, and Fourteenth
Amendments based on the denial of Petitioner’s
request for a furlough to attend his
grandmother’s funeral.

Claim 28:

Ineffective assistance of counsel by attorney D.
Brown.

(Petition, Dkt. 1 through Dkt. 1-4.)7
Respondent argues that some of these claims are noncognizable and that all of
them are subject to dismissal as procedurally defaulted. For the reasons that follow, the
Court agrees.

The Court has not described Plaintiff’s Idaho state constitutional claims, because such claims are
not cognizable in federal habeas proceedings and, therefore, are subject to summary dismissal. See Lewis
v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”).
7

MEMORANDUM DECISION AND ORDER - 9

DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily
dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” Where appropriate, a respondent may file a motion for summary dismissal, rather
than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
1.

Some of Petitioner’s Claims Are Subject to Dismissal as Noncognizable
A.

Standard of Law

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).
B.

Discussion

As explained in footnote 7, all of Petitioner’s claims based on Idaho state law
cannot be considered in this federal habeas corpus action. Further, Claims 12, 13, 17, and
27 are noncognizable because they “do[] not fall within the ‘core of habeas corpus.’”
Nettles v. Grounds, 830 F.3d 922, 925 (9th Cir. 2016) (en banc) (quoting Preiser v.
Rodriguez, 411 U.S. 475, 487 (1973)). Rather, these claims assert civil rights violations
that must be brought, if at all, in a civil action pursuant to 42 U.S.C. § 1983. Id.
Moreover, Plaintiff’s grand jury claim (Claim 2) is noncognizable because the
Fifth Amendment right to grand jury indictment, applicable in federal prosecutions, does
not extend to state prosecutions. Hurtado v. California, 110 U.S. 516, 538 (1884); see
MEMORANDUM DECISION AND ORDER - 10

also Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007) (“[T]his Fifth Amendment
right has not been incorporated into the Fourteenth Amendment so as to apply against the
states.”).
Finally, Plaintiff’s Fourth Amendment claim (Claim 1) is noncognizable based on
the doctrine established in Stone v. Powell, 428 U.S. 465 (1976). In Stone, the United
States Supreme Court held that, so long as the state provided the petitioner an opportunity
for full and fair litigation of his Fourth Amendment claim in state court, a federal court
cannot grant habeas corpus relief on the ground that evidence was obtained in violation of
the Fourth Amendment. Id. at 494. “The relevant inquiry is whether petitioner had the
opportunity to litigate his claim, not whether he did in fact do so or even whether the
claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996)
(emphasis). Because Petitioner had a full and fair opportunity to litigate his Fourth
Amendment claim in state court, it is not cognizable in this habeas corpus action.
For the foregoing reasons, Claims 1, 2, 12, 13, 17, and 27—as well as all of
Petitioner’s claims based on Idaho state law—will be dismissed as noncognizable.
2.

All of Petitioner’s Claims Are Subject to Dismissal as Procedurally Defaulted
In addition to asserting that some of Petitioner’s claims are noncognizable,

Respondent also argues that all of Petitioner’s claims are procedurally defaulted.
A.

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
MEMORANDUM DECISION AND ORDER - 11

established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). In Duncan v.
Henry, the United States Supreme Court clarified that state appellate courts must not be
left to guess whether a petitioner is presenting a constitutional issue:
If state courts are to be given the opportunity to correct
alleged violations of prisoners’ federal rights, they must
surely be alerted to the fact that the prisoners are asserting
claims under the United States Constitution. If a habeas
petitioner wishes to claim that an evidentiary ruling at a state
court trial denied him the due process of law guaranteed by
the Fourteenth Amendment, he must say so, not only in
federal court, but in state court.
513 U.S. 364, 365-66 (1995) (per curiam).

MEMORANDUM DECISION AND ORDER - 12

The United States Court of Appeals for the Ninth Circuit has recognized at least
four different ways to properly present a federal claim in state court. The first is to
“explicitly” reference specific provisions of the federal Constitution or federal statutes.
Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th
Cir. 2001). Proper exhaustion in this manner “demands more than drive-by citation,
detached from any articulation of an underlying federal legal theory.” Castillo v.
McFadden, 399 F.3d 993, 1003 (9th Cir. 2005).
The second way to properly present a federal issue in a state court appellate brief
is to cite to federal case law that directly supports one’s claim. Lyons, 232 F.3d at 668-69.
The citation of “irrelevant federal or state cases does not provide a state court with a fair
opportunity to apply controlling legal principles to the facts bearing upon his
constitutional claim.” Castillo, 399 F.3d at 1001 (internal quotation marks omitted); see
also Hiivala, 195 F.3d at 1107 (holding that the petitioner did not properly exhaust his
sufficiency of the evidence claim in state court because he “neither cited the Fourteenth
Amendment nor any federal case law involving the legal standard for a federal
Constitutional violation predicated upon a claim of insufficiency of the evidence to
support a state law conviction”).
The third way is to cite “state cases involving the legal standard for a federal
constitutional violation,” rather than to cite a specific constitutional provision. Castillo,
399 F.3d at 999. To satisfy the exhaustion requirement in this manner, the state cases

MEMORANDUM DECISION AND ORDER - 13

cited in the state court appellate brief must “engage[] in a federal constitutional analysis.”
Fields v. Waddington, 401 F. 3d 1018, 1021 (9th Cir. 2005).
The fourth way to accomplish proper exhaustion is to “refer[] to a state
constitutional right when the contours of the federal and state constitutional rights are
identical.” Sanders v. Ryder, 342 F.3d 991, 1000 (9th Cir. 2003). Where the state courts
have held that the right under the state constitution is coextensive with the federal
constitutional right, and have analyzed both types of claims under federal standards, the
federal aspect of the claim is considered properly presented to the state courts, so long as
there is nothing in the briefing suggesting that the petitioner meant to allege
“specifically,” “consistently,” and “exclusively” a violation of his state constitutional
right. Id. at 999.
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).

MEMORANDUM DECISION AND ORDER - 14

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).
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
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.
B.

Petitioner’s Claims Are Procedurally Defaulted

The most straightforward manner in which to resolve the exhaustion and
procedural default status of Petitioner’s federal claims is to review which claims were
raised and addressed on the merits in the state court appellate proceedings.
On direct appeal, Petitioner argued that the admission of Petitioner’s inculpatory
statements, which he made during his psychosexual evaluation, was fundamentally
MEMORANDUM DECISION AND ORDER - 15

unfair. (State’s Lodging B-2 at 11.) Petitioner did not explicitly cite to any federal
constitutional provision. Further, Petitioner cited only two cases for this proposition:
United States v. Escamilla and United States v. Ventura-Cruel, both of which involved
statements made by defendants pursuant to plea agreements—statements that were later
used against the defendants at trial, after the plea agreement was rendered void.
Although Escamilla and Ventura-Cruel are both federal cases, neither directly
supports any federal constitutional claim. See Hiivala, 195 F.3d at 1107. These cases
were not decided on any constitutional basis, but on contractual principles. In Escamilla,
the plea agreement did not state whether the defendant’s statements could be used against
him in the event the plea agreement was rendered void. 975 F.2d at 571-72. Therefore,
“[i]n light of the absence of any evidence that the parties to the plea agreement
contemplated the use of Escamilla’s confession against him at trial and the fundamental
unfairness of allowing the government to keep the benefit of its bargain while denying
Escamilla his,” the Ninth Circuit held that the statements should not have been admitted
at trial. Id. at 572. In addition, allowing the statements would not bring the parties back to
the same positions they had been in before they reached the plea agreement. Id. at 571.
In Ventura-Cruel, the First Circuit held that the use of a confession made during a
pre-sentence investigation before a plea agreement was rendered void was fundamentally
unfair. 356 F.3d at 63-64. Like Escamilla, the holding in Ventura-Cruel was based on
contractual principles—that the government should not receive the benefit of its bargain
when the defendant does not receive the benefit of his. The First Circuit expressly stated

MEMORANDUM DECISION AND ORDER - 16

that it did “not reach the constitutional grounds” implicated by the use of the statements.
Id. at 63.
Neither of the cases that Petitioner relied on in the Idaho appellate courts involved
the legal standard for any particular federal constitutional claim, and Petitioner did not
expressly rely on any state or federal constitutional provision. See Lyons, 232 F.3d at
668-69. Therefore, Petitioner’s direct appeal did not serve to exhaust any of his current
habeas claims.8
On appeal from the dismissal of Petitioner’s initial post-conviction petition,
Petitioner made a passing reference to Petitioner’s “right to access . . . the courts and his
right to due process” and nominally mentioned the First, Fifth, and Fourteenth
Amendments. (State’s Lodging D-1 at 1.) However, citation to such “broad constitutional
principles” do not constitute fair presentation. Hiivala, 195 F.3d at 1106. Petitioner
argued only that his requests for discovery should have been granted under state law and
that, therefore, the state court erred by dismissing the petition. Petitioner’s postconviction appellate briefing did not serve to exhaust any federal constitutional claim.

8

Because Petitioner did not raise any federal claims in his state court appellate briefs, the Court
need not address Respondent’s argument that the petition for review filed in the Idaho Supreme Court was
insufficient to constitute proper exhaustion because the petition was submitted on the briefs previously
filed, rather than on a separate brief in support of review. (See Dkt. 11-1 at 11-12.) The Court notes,
however, that this argument is likely without merit. The Idaho Supreme Court denied the petition for
review without comment. (State’s Lodging B-7.) Therefore, this Court would presume that the state court
denied the petition for review on the merits, not because Petitioner failed to file a separate brief. See
Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a . . . 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.”).

MEMORANDUM DECISION AND ORDER - 17

Finally, Petitioner did not properly exhaust any of his claims during his successive
post-conviction proceedings because, after the Idaho Court of Appeals affirmed the
dismissal of that petition, he did not file a petition for review with the Idaho Supreme
Court. See O’Sullivan, 526 U.S. at 845-847.
For the foregoing reasons, none of Petitioner’s claims are exhausted. Because it is
now too late to exhaust them in state court, see Gray, 518 U.S. at 161-62, all of the
claims are procedurally defaulted.
C.

Petitioner Has Not Shown Cause and Prejudice, or Actual Innocence, to
Excuse the Procedural Default of His Claims

The Court’s conclusion that Petitioner’s habeas claims are procedurally defaulted
does not end the inquiry. As stated above, a federal court can still hear a procedurally
defaulted claim if the petitioner establishes cause and prejudice, or actual innocence, to
excuse that default. See Coleman, 501 U.S. at 731; Schlup, 513 U.S. at 329.
In Petitioner’s Response to the Motion for Summary Dismissal, he states that he
should not be expected “to defend himself against . . . a juggernaut” like the State, which
has access to the “abundant and influential resources of the Idaho Attorney General’s
Office.” (Dkt. 13 at 2.) Petitioner received mostly failing grades in his senior year of high
school, and he has “what can be considered a potentially debilitating mental health
disorder.” (Id.) Petitioner also claims that the legal resources in the prison are “substandard” because (1) inmates often are not provided with “access to courts forms,” (2)
Petitioner has been unable to review the Federal Rules of Civil Procedure, and (3) legal

MEMORANDUM DECISION AND ORDER - 18

books are sometimes checked out by other inmates and, therefore, inmates must at times
wait “another week for a replacement.” (Id. at 4.)
To establish “cause” to excuse a procedural default, the petitioner is required to
show that “some objective factor external to the defense impeded counsel’s efforts [or
those of a pro se petitioner] to comply with the State’s procedural rule.” Murray, 477
U.S. at 488 (emphasis added). The only external factor on which Petitioner relies is the
prison’s allegedly inadequate legal resources. However, Petitioner’s description of the
restrictions on these resources do not establish that they impeded his efforts to properly
exhaust his federal claims either on appeal or during state post-conviction proceedings.
The Federal Rules of Civil Procedure are not applicable in Idaho state court, there is no
evidence suggesting that the prison’s access to courts forms are required for inmates to
pursue a direct appeal or post-conviction relief in state court, and Petitioner has not
explained how having to wait a mere week for a legal book could possibly have caused
him to forfeit his federal constitutional claims during direct appeal or state postconviction proceedings.
Neither has Petitioner established actual innocence to excuse the default of his
claims. Actual innocence in this context “means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). In asserting actual
innocence, a petitioner must “support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo,

MEMORANDUM DECISION AND ORDER - 19

513 U.S. 298, 324 (1995). A procedurally defaulted claim may be heard under the
miscarriage of justice exception only if “in light of all of the evidence, ‘it is more likely
than not that no reasonable juror would have found [Petitioner] guilty beyond a
reasonable doubt.’” United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013) (quoting
Schlup, 513 U.S. at 327). Stated another way, it must be more likely than not that every
reasonable juror would vote to acquit.
This is an extremely demanding standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old
and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence analysis “does not turn on discrete findings regarding disputed points of fact,
and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
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.
Petitioner has submitted no evidence tending to show that he is actually innocent.
Therefore, that doctrine does not apply to excuse the procedural default of Petitioner’s
habeas claims.

MEMORANDUM DECISION AND ORDER - 20

CONCLUSION
For the foregoing reasons, the Petition will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Extension of Time to File Answer or Pre-Answer
Motion (Dkt. 9) is GRANTED.

2.

Respondent’s Motion for Summary Dismissal (Dkt. 11) is GRANTED, and
the Petition 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: December 21, 2016

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 21