Jackson v. Yordy
Filing
26
MEMORANDUM DECISION AND ORDER granting in part and denying in part 12 Respondent's Motion for Partial Summary Dismissal. The Motion is granted with respect to Claims 1, 3, 4, 5, 6, 8, 9, 10, 11, and 16. The Motion is denied without prejudice w ith respect to Claim 14. Within 60 days after entry of this Order, Respondent shall file an answer to Petitioners remaining claims (Claims 2, 7, 12, 13, 14, and 15). Petitioner shall file a reply (formerly called a traverse), containing a brief rebut ting Respondents answer, which shall be filed and served within 30 days after service of the answer. Respondent has the option of filing a sur-reply within 14 days after service of Petitioners reply. 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 (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
PONY LEO JACKSON,
Case No. 1:15-cv-00339-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
TEREMA CARLIN,
Respondent.
Pending before the Court is Petitioner Pony Leo’s Petition for Writ of Habeas
Corpus, which asserts 16 claims. (Dkt. 1.) Respondent has filed a Motion for Summary
Dismissal, which is now ripe for adjudication. (Dkt. 12, 23, 25.)
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 Respondent’s Motion in part
and dismissing Claims 1, 3, 4, 5, 6, 8, 9, 10, 11, and 16 with prejudice. The Court will
deny the Motion without prejudice with respect to Claim 14.
MEMORANDUM DECISION AND ORDER - 1
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
Jackson v. State, Docket No. 42116, Op. 504 (Idaho Ct. App. May 26, 2015)
(unpublished), which is contained in the record at State’s Lodging D-4. The facts will not
be repeated here except as necessary to explain the Court’s decision.
Petitioner was convicted by a jury in the Seventh Judicial District in Clark County,
Idaho, of two counts of lewd conduct with a minor child under the age of sixteen, in
violation of Idaho Code § 18-1508. (State’s Lodging D-4 at 2-3.) Petitioner was
sentenced to twenty years in prison with ten years fixed. Petitioner’s convictions were
affirmed, and he did not obtain postconviction relief.
Claims 1 through 10 of the instant Petition assert ineffective assistance of trial
counsel. Claim 11 appears to assert both actual innocence and ineffective assistance of
counsel. Claims 12 through 15 assert prosecutorial misconduct, and Claim 16 asserts
ineffective assistance of postconviction counsel. (Pet., Dkt. 1; Initial Review Order, Dkt.
7, at 2-3.)
In her Motion for Partial Summary Dismissal, Respondent argues that Claims 1, 3,
4, 5, 6, 8, 9, 10, 11, 14, and 16 are procedurally defaulted and that Claims 11 and 16 are
also noncognizable in this federal habeas corpus action. (Dkt. 12.)
DISCUSSION
1.
Standards of Law
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
MEMORANDUM DECISION AND ORDER - 2
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” The Court may also take judicial notice of relevant state court records in
determining whether to dismiss a petition.1 Fed. R. Evid. 201(b); Dawson v Mahoney,
451 F.3d 550, 551 (9th Cir. 2006). Where appropriate, a respondent may file a motion for
summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir.
1989).
2.
Claims 11(a) and 16 Are Not Cognizable in this Federal Habeas Corpus
Action
A.
Claim 11(a): Actual Innocence
In Claim 11, Petitioner alleges that he is actually innocent. (Pet. at 54, Dkt. 1-4 at
6.) The Court will refer to this claim as Claim 11(a). Because Petitioner uses the phrase
“ineffective assistance of counsel” in discussing this claim, he may also be attempting to
assert that his counsel was ineffective in failing to establish Petitioner’s innocence at trial.
The Court will refer to this claim as Claim 11(b).
Claim 11(a) is subject to summary dismissal because a freestanding claim of
actual innocence is not cognizable in a non-capital habeas corpus case. Stephenson v.
Blades, 2014 WL 3509448, at *7 (D. Idaho July 14, 2014); see Herrera v. Collins, 506
U.S. 390, 400 (“Claims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding . . . . This
The Court takes judicial notice of the records from Petitioner’s state court proceedings, which
have been lodged by Respondent. (Dkt. 11.)
1
MEMORANDUM DECISION AND ORDER - 3
rule is grounded in the principle that federal habeas courts sit to ensure that individuals
are not imprisoned in violation of the Constitution—not to correct errors of fact.”).
B.
Claim 16: Ineffective Assistance of Postconviction Counsel
Claim 16 asserts that Petitioner’s postconviction counsel rendered ineffective
assistance. The Court will summarily dismiss this claim because there is no federal
constitutional right to counsel during state postconviction proceedings. Pennsylvania v.
Finley, 481 U.S. 551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993).2
3.
Claims 1, 3, 4, 5, 6, 8, 9, 10, and 11(b) Are Procedurally Defaulted, and
Petitioner Has Not Shown Cause and Prejudice, or Actual Innocence, to
Excuse the Procedural Default of Those Claims
The Court now considers Respondent’s argument that Claims 1, 3, 4, 5, 6, 8, 9, 10,
and 11(b) are procedurally defaulted.
A.
Standards of Law Governing Procedural Default
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
2
However, in certain circumstances, ineffective assistance of counsel on initial postconviction
review can—as an equitable matter—establish cause to excuse the procedural default of a constitutional
claim of ineffective assistance of trial or direct appeal counsel. Martinez v. Ryan, 132 S. Ct. 1309, 1315
(2012); Ha Van Nguyen v. Curry, 736 F.3d 1287, 1293-94 (9th Cir. 2013).
MEMORANDUM DECISION AND ORDER - 4
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, for proper exhaustion, a petitioner must bring his federal claim before the state court
by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).
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.;
MEMORANDUM DECISION AND ORDER - 5
Baldwin v. Reese, 541 U.S. 27, 32 (2004); 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).
If a petitioner’s claim is procedurally defaulted, a federal district court can still
hear the merits of the claim if the petitioner meets one of two exceptions: (1) a showing
of adequate legal cause for the default and prejudice arising from the default, or (2) a
showing of actual innocence. Coleman v. Thompson, 501 U.S. 722, 750 (1991); 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 Has Not Established Cause and Prejudice as to Claims 1, 3, 4,
5, 6, 8, 9, 10, or 11(b)
Petitioner does not dispute that Claims 1, 3, 4, 5, 6, 8, 9, 10, and 11(b) are
procedurally defaulted. Rather, he argues that the procedural default of these claims is
excused because Petitioner’s postconviction appellate attorney’s abandonment of the
MEMORANDUM DECISION AND ORDER - 6
claims, as well as her statement to Petitioner that all of his claims would be exhausted,
establish cause and prejudice to excuse the default of these claims.
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray, 477 U.S. at 488. To show
“prejudice,” a petitioner generally bears “the burden of showing not merely that the errors
[in his proceeding] constituted a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
Although there is no constitutional right to counsel during state collateral
proceedings, the Supreme Court has held that complete abandonment by an attorney—
even during postconviction proceedings—constitutes sufficient cause to excuse the
procedural default of a constitutional claim. Maples v. Thomas, 132 S. Ct. 912, 927
(2012). In Maples, the lawyers ceased acting as the petitioner’s attorneys without telling
him—they did not serve as his agents in any meaningful sense, and left him in a situation
where he lacked the assistance of any authorized attorney. Therefore, “in reality, [the
petitioner] had been reduced to pro se status” without having any reason to suspect so. Id.
Because of counsel’s abandonment, the failure of counsel to pursue the petitioner’s
claims could not be attributed to the petitioner and, thus, constituted cause to excuse
procedural default.
MEMORANDUM DECISION AND ORDER - 7
As Petitioner acknowledges, his attorney during the postconviction appellate
proceedings did not completely abandon Petitioner. (Dkt. 24 at 9.) Petitioner’s
postconviction appellate counsel filed a timely brief on two claims, supported by
argument. (State’s Lodging D-1, D-3.) Because Petitioner’s postconviction appellate
attorney did not abandon Petitioner, Maples does not apply.
Instead of relying exclusively on Maples, Petitioner also contends the “cause” that
excuses the procedural default of his ineffective assistance claims is his postconviction
appellate attorney’s refusal to include the claims in her briefing despite Petitioner’s clear
instruction that she do so, combined with the attorney’s incorrect advice to Petitioner that
“his claims would be preserved for habeas corpus review regardless” of whether they
were raised in the postconviction appellate briefing. (Dkt. 24 at 9.) Petitioner’s contention
is not persuasive.
An attorney is not required to make every argument a client desires. Indeed,
attorneys are ethically prohibited from asserting certain arguments, such as those
arguments the attorney believes are frivolous. See Idaho Rule of Professional Conduct 3.1
(“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis in law and fact for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal of existing law.”). Faced
with his postconviction appellate attorney’s statement that she would raise only certain
issues in her brief, Petitioner had a choice: he could continue to proceed as represented,
knowing that his attorney would not be making all of arguments Petitioner wanted, or he
MEMORANDUM DECISION AND ORDER - 8
could ask his attorney to withdraw so that he could proceed pro se, in which case he
would have been able to raise all of his intended arguments. Petitioner decided to
continue as represented by his attorney, and he cannot now use that decision as cause to
excuse procedural default.
Postconviction appellate counsel’s statement that Petitioner’s claims would be
preserved for federal habeas review, notwithstanding her failure to include them in her
appellate briefing, also does not constitute cause. Inaccurately informing a client as to
legal consequences is an act of negligence, and negligence on the part of postconviction
counsel cannot constitute cause to excuse a procedural default. Maples, 132 S. Ct. at 922.
Therefore, the actions of Petitioner’s postconviction appellate attorney do not excuse the
default of Claims 1, 3, 4, 5, 6, 8, 9, 10, and 11(b).
C.
Petitioner Has Not Established Actual Innocence as to Claims 1, 3, 4, 5,
6, 8, 9, 10, or 11(b)
If a petitioner cannot show cause and prejudice for his procedural default, he can
still bring the claim in a federal habeas petition if he demonstrates that failure to consider
the claim will result in a “fundamental miscarriage of justice,” which means that a
constitutional violation has probably resulted in the conviction of someone who is
actually innocent. Murray v. Carrier, 477 U.S. at 496. 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
MEMORANDUM DECISION AND ORDER - 9
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A procedurally defaulted
claim may be heard under the miscarriage of justice exception only if “in light of all of
the evidence, ‘it is more likely than not that no reasonable juror would have found
[Petitioner] guilty beyond a reasonable doubt.’” United States v. Avery, 719 F.3d 1080,
1083 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 327). Stated another way, it must be
more likely than not that every reasonable juror would vote to acquit.
This is an extremely demanding standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old
and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence analysis “does not turn on discrete findings regarding disputed points of fact,
and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
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 not provided any credible evidence that he is actually innocent.
Therefore, the actual innocence exception does not apply to excuse the procedural default
of Claims 1, 3, 4, 5, 6, 8, 9, 10, and 11(b).
MEMORANDUM DECISION AND ORDER - 10
4.
Claim 14 May Be Procedurally Defaulted, but It May Also Be Subject Either
to AEDPA or De Novo Review on the Merits
In Claim 14, Petitioner asserts that the prosecutor committed misconduct during
Petitioner’s trial by violating a trial court order excluding certain evidence. Defense
counsel did not object to any of these violations. Under the fundamental error doctrine,
the Idaho Court of Appeals denied Petitioner relief on Claim 14. (State’s Lodging B-4.)
Respondent asserts that this claim is procedurally defaulted. (Dkt. 12-1 at 9-10.)
Petitioner responds that (1) at the time of the Idaho Court of Appeals’ decision, the
fundamental error doctrine was not an adequate state procedural ground, so the claim is
not defaulted, and (2) if the claim is defaulted, cause and prejudice exist to excuse that
default. (Dkt. 24 at 15-18.)
It is unclear at this time whether the Idaho Court of Appeals rejected Claim 14 on
a procedural basis, on the merits, or both. Therefore, rather than decide the procedural
default issue now, the Court will deny the motion to dismiss without prejudice as to
Claim 14 and will allow that claim to proceed to the merits stage.
In Idaho, a trial error to which there was no contemporaneous objection can be
reversed by the state appellate court only for fundamental error. State v. Perry, 245 P.3d
961, 979-80 (Idaho 2010). The fundamental error doctrine, which is somewhat similar to
the federal courts’ plain error doctrine,3 allows for reversal only if (1) the alleged error
“violates one or more of the defendant’s unwaived constitutional rights,” (2) the alleged
3
See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
MEMORANDUM DECISION AND ORDER - 11
error “plainly exists (without the need for any additional information not contained in the
appellate record),” and (3) the alleged error was not harmless. Id. at 980.
A fundamental error decision by an Idaho appellate court can perhaps be seen as a
procedurally-based decision. Holding that the fundamental error standard is not satisfied
means that the court will not reverse because—procedurally—the party alleging the error
did not object at trial.
However, a fundamental-error decision can also readily be seen as a merits-based
decision. The appellate court still reviews a claim asserted under the fundamental error
doctrine—it just uses a different standard than it would use if the error had been the
subject of an objection at trial. Moreover, the first prong of the fundamental-error
standard requires the reviewing court to consider whether a constitutional right was
violated by the alleged error. For example, in this case, the Idaho Court of Appeals
concluded that there had been “no demonstration that the prosecutor’s alleged
misconduct in disobeying the pretrial order violated one or more of [Petitioner’s]
unwaived constitutional rights.” (State’s Lodging B-4 at 5.) Such a statement seems to
indicate a merits decision.
In sum, whether the fundamental error decision of the Idaho Court of Appeals
constituted a procedurally-based decision, a merits-based decision, or both, is a
complicated and difficult question. See Brink v. Wengler, No. 1:13-cv-00039-EJL, 2014
WL 1153745, at *10 (D. Idaho Mar. 20, 2014) (stating that “[w]hether the fundamental
error doctrine indicates a procedural default or can be deemed a merits analysis is a
MEMORANDUM DECISION AND ORDER - 12
complex issue,” citing case law supporting that proposition, and moving to the merits of
the underlying claim); Sheahan v. Smith, No. 1:08-cv-00444-EJL, 2011 WL 1219681, at
*4 (D. Idaho Mar. 28, 2011) (“[T]he question becomes whether the failure to object at
trial is an adequate state procedural bar resulting in procedural default on federal review,
or whether a fundamental error review is the equivalent of a review of the claim on its
merits. This claim is more efficiently resolved by setting aside the procedural issue and
going to the merits . . . .”) (internal citation omitted).) The resolution of that question may
affect the governing legal standard and, consequently, is extremely important.4
Although both parties appear to agree that the Idaho Court of Appeals rejected
Claim 14 based on a state procedural rule, neither party has briefed the question of
whether the state court’s invocation of the fundamental error doctrine in Petitioner’s case
also constituted an “adjudication on the merits in State court proceedings.”5 28 U.S.C. §
2254(d). Therefore, the Court will order briefing on this issue.
CONCLUSION
Claims 11(a) and 16 are not cognizable on federal habeas review. Claims 1, 3, 4,
5, 6, 8, 9, 10, and 11(b) are procedurally defaulted, and Petitioner has not established an
4
If the prosecutorial misconduct issue in Claim 14 was properly asserted but not decided on the
merits by the court of appeals—or if cause and prejudice apply to excuse any procedural default—then
this Court would review the claim de novo. However, if the claim was properly asserted and the court of
appeals’ decision constitutes a merits decision, then the deferential standards of the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), would apply to the Court’s review
of Claim 14.
5
Respondent states, in a different context (contending the fundamental error doctrine is
independent of federal law), that the court of appeals’ decision on Claim 14 “did not involve an
examination of the merits of the underlying claim.” (Dkt. 25 at 10.) However, this bare statement,
supported only by a recitation of the state court’s decision, is less than helpful.
MEMORANDUM DECISION AND ORDER - 13
excuse for that default. Therefore, Claims 1, 3, 4, 5, 6, 8, 9, 10, 11, and 16 will be
dismissed with prejudice. The Court will defer ruling on Claim 14.
ORDER
IT IS ORDERED:
1.
Respondent’s Motion for Partial Summary Dismissal (Dkt. 12) is
GRANTED IN PART and DENIED IN PART. The Motion is granted with
respect to Claims 1, 3, 4, 5, 6, 8, 9, 10, 11, and 16. The Motion is denied
without prejudice with respect to Claim 14.
2.
Within 60 days after entry of this Order, Respondent shall file an answer to
Petitioner’s remaining claims (Claims 2, 7, 12, 13, 14, and 15); the answer
shall include a brief discussing the merits of those claims. As to Claim 14,
the answer may include a renewed request for dismissal based on
procedural default (without the need to file a second motion for summary
dismissal), but must not include any additional procedural default
argument. The answer and brief must include argument with respect to the
following issues: (1) whether the Idaho Court of Appeals’ rejection of
Claim 14 on direct appeal can be considered an adjudication on the merits
for purposes of § 2254(d), (2) whether Petitioner is entitled to relief on the
merits of Claim 14 under AEDPA review, and (3) whether Petitioner is
entitled to relief on the merits of Claim 14 under de novo review.
MEMORANDUM DECISION AND ORDER - 14
3.
Petitioner shall file a reply (formerly called a traverse), containing a brief
rebutting Respondent’s answer, which shall be filed and served within 30
days after service of the answer. As to Claim 14, Petitioner’s reply must
include argument as to the same three issues identified in the immediate
paragraph above. The reply must not include any additional procedural
default argument. The Court will rely on the parties’ previous procedural
default briefing, or will order additional briefing, if necessary for resolution
of this case.
4.
Respondent has the option of filing a sur-reply within 14 days after service
of Petitioner’s reply. At that point, the case will be deemed ready for a final
decision.
5.
If the parties agree to one or more extensions of time with respect to the
above briefing schedule, they may file a joint stipulation informing the
Court of their agreement and of the new briefing shedule. A separate
motion for extension of time need not be filed unless the parties cannot
agree to an extension.
DATED: September 23, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
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