Brummett v. Finn

Filing 24

MEMORANDUM DECISION AND ORDER granting in part and denying in part 11 Motion for Partial Summary Dismissal; denying 15 MOTION for Hearing; granting 13 MOTION for Extension of Time to File; denying 16 MOTION to Appoint Counsel. Re spondent shall file an answer and brief addressing the remaining claimsClaim 2 and the related portion of Claim 3within 60 days after entry of this Order. 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

DAVID BRUMMETT,
Case No. 1:15-cv-00368-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
BRIAN FINN,
Respondent.

Pending before the Court is Petitioner David W. Brummett’s Petition for Writ of
Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Partial Summary Dismissal,
which is now ripe for adjudication. (Dkt. 11.) In addition, Petitioner has filed a Motion
for an Evidentiary Hearing and a Motion for Appointment of Counsel. (Dkt. 15, 16.)
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. 17.)
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

MEMORANDUM DECISION AND ORDER - 1

record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order dismissing, with prejudice, Claim 1
and the related portion of Claim 3.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
Brummett v. State, Docket No. 42466, Op. 537 (Idaho Ct. App. June 29, 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(unpublished), which is contained in the record at State’s Lodging D-4.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.
Pursuant to a plea agreement, Petitioner pleaded guilty in the Third Judicial
District in Canyon County, Idaho, to felony possession of a controlled substance, in
violation of Idaho Code § 37-2732(c)(1). (State’s Lodging D-4 at 2.) In exchange for
Petitioner’s guilty plea, the state dismissed four misdemeanor charges and a persistent
violator enhancement. Petitioner was sentenced to seven years in prison with three years
fixed. (Id.) Petitioner filed a timely motion for reduction of sentence under Idaho
Criminal Rule 35, which the trial court denied.
Petitioner filed a direct appeal, arguing that the trial court abused its discretion by
imposing an excessive sentence and by denying Petitioner’s request, in his Rule 35
motion, that a substance abuse evaluation be ordered and considered in reevaluating his
sentence. (State’s Lodging B-1.) The Idaho Court of Appeals affirmed, and the Idaho
Supreme Court denied review. (State’s Lodging B-3, B-5.)

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Petitioner next filed a petition for postconviction relief in the state district court.
(State’s Lodging C-1 at 3-55.) The court construed the petition as raising the following
claims1: (1) Petitioner’s guilty plea was involuntary; (2) Petitioner’s trial counsel was
ineffective in failing to argue that Petitioner’s arrest was unlawful and in failing to
understand the law; (3) Petitioner was not trespassing when he was arrested and,
therefore, the arrest was without probable cause; and (4) Petitioner’s conduct was lawful
because the Ninth Amendment protects the recreational use of drugs. (State’s Lodging at
267.) The court issued notice of its intent to summarily dismiss the petition, and
Petitioner objected, addressing only the claim that trial counsel was ineffective for failing
“to fully investigate [Petitioner’s] case and consider possible motions to suppress and/or
dismiss based on the fact that there was no probable cause for his arrest and/or search by
police officers.” (State’s Lodging C-2 at 281.)
The trial court denied the postconviction petition, and Petitioner appealed. (Id. at
285-89; 292-84.) Petitioner argued that he did not receive adequate notice of the court’s
intent to summarily dismiss the petition and that his trial counsel rendered ineffective
assistance in failing to adequately challenge Petitioner’s arrest and search under the
Fourth Amendment. (State’s Lodging D-1, D-3.) The Idaho Court of Appeals affirmed,
and the Idaho Supreme Court denied review. (State’s Lodging D-4, D-6.)
In the instant federal habeas corpus petition, Petitioner asserts three claims. Claim
1 argues that Petitioner’s Fourth Amendment rights were violated because he was

1

Petitioner did not object to the state district court’s construction of the postconviction petition.

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arrested without probable cause and, therefore, the search of Petitioner was illegal and the
resulting evidence should have been excluded. Claim 2 argues that Petitioner’s trial
counsel was ineffective in failing to file a motion to suppress the evidence obtained in the
search. Claim 3 argues that Petitioner was denied due process based on the allegations
contained in Claims 1 and 2. (Dkt. 3 at 6-8.)
Claim 3 does not appear to assert an independent basis for habeas relief, but
merely restates Claims 1 and 2. (Dkt. 3 at 6-8; Dkt. 6 at 2.) See Gideon v. Wainwright,
372 U.S. 335, 343 (1963) (holding that the Sixth Amendment right to counsel applies to
the states through the Due Process Clause of the Fourteenth Amendment); Baker v.
McCollan, 443 U.S. 137, 142 (1979) (recognizing that the Fourth Amendment applies to
the States “by virtue of its ‘incorporation’ into the Fourteenth Amendment”). Therefore,
the Court will consolidate Claim 3 with Petitioner’s other claims, as suggested by
Respondent. (Dkt. 11-1 at 7 n.2.) The portion of Claim 3 involving Petitioner’s allegedly
illegal arrest and subsequesnt search will be considered below, along with Claim 1. The
portion of Claim 3 involving the allegedly ineffective assistance of Petitioner’s counsel
will be considered, along with Claim 2, at a later stage of these proceedings.
PRELIMINARY MOTIONS
1.

Petitioner’s Motion for Appointment of Counsel
There is no constitutional right to counsel in a habeas corpus action. Coleman v.

Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as
provided by rule, if counsel is necessary for effective discovery or an evidentiary hearing

MEMORANDUM DECISION AND ORDER - 4

is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases.
In addition, the Court may exercise its discretion to appoint counsel for an indigent
petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18
U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner’s
ability to articulate his claims in light of the complexity of the legal issues and his
likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1983).
Prior to reaching the merits of the claims in the Petition, the Court must address a
narrow issue—whether certain claims are cognizable in this action—for which
appointment of counsel is not required. In addition, discovery has not been ordered in this
case, and, as explained below, the Court concludes that an evidentiary hearing is not
required at this time.
Moreover, it appears from Petitioner’s filings that he has been able to adequately
bring his claims and protect his interests to date. The Court understands that Petitioner
does not have legal training or legal resources. Therefore, the Court independently
reviews the case citations and references provided by the State for accuracy and
applicability. The Court also does its own research to determine whether other cases not
cited by the State apply. Finally, the appellate review process before the United States
Court of Appeals for the Ninth Circuit is available to ensure that the case has been
adjudicated according to the proper legal standards. For these reasons, the Court will
deny Petitioner’s request for appointment of counsel.

MEMORANDUM DECISION AND ORDER - 5

2.

Petitioner’s Motion for an Evidentiary Hearing
Petitioner seeks an evidentiary hearing. However, an evidentiary hearing is not

necessary to consider whether a claim is cognizable on federal habeas review because
that inquiry does not rely on any factual determination—rather, it is purely a question of
law. As explained below, Claim 1 and the related portion of Claim 3 are noncognizable in
this habeas case, meaning that they cannot serve as a basis for a grant of federal habeas
relief. Therefore, the Court will deny Petitioner’s request for an evidentiary hearing.
DISCUSSION
In his Motion for Partial Summary Dismissal, Respondent argues that Claims 1
and 3 are procedurally defaulted and noncognizable. For the reasons set forth below, the
Court agrees that Claim 1 and the related portion of Claim 3 are not cognizable in this
federal habeas case.2 Therefore, the Court will grant Respondent’s Motion in part and
dismiss these claims.
1.

Standard of Law for Summary Dismissal
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.” The Court may also take judicial notice of relevant state court records in

2

For this reason, the Court needs not to determine whether these claims are procedurally defaulted,
or whether there is sufficient legal reason to excuse the default.

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determining whether to dismiss a petition.3 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.

Claim 1 and the Related Portion of Claim 3 Are Not Cognizable on Federal
Habeas Review
In Claim 1 and the related portion of Claim 3, Petitioner asserts that his arrest was

not supported by probable cause and that, therefore, the resulting search of Petitioner was
unconstitutional under the Fourth and Fourteenth Amendments. The threshold issue for
an unreasonable-search-or-seizure claim presented in a federal habeas corpus petition is
whether the state provided the petitioner an opportunity for full and fair litigation of that
claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). Under Stone, if the
federal district court determines that the petitioner had a full and fair opportunity to
litigate the claim in state court, then it cannot grant habeas corpus relief on the ground
that the evidence was obtained in violation of the Fourth Amendment. Id.
The Stone rule is based on the principle that the exclusionary rule is “not a
personal constitutional right” but is instead a practical way to deter police conduct that
violates the Fourth Amendment. Id. at 486. The social costs of the exclusionary rule are
heavy: the rule “deflects the truthfinding process and often frees the guilty.” Id. at 490.
On collateral review of a criminal conviction, “the contribution of the exclusionary rule,

The Court takes judicial notice of the records from Petitioner’s state court proceedings, which
have been lodged by Respondent. (Dkt. 10.)
3

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if any, to the effectuation of the Fourth Amendment is minimal, and the substantial
societal costs of application of the rule persist with special force.” Id. at 494-95.
To determine whether Petitioner had a full and fair opportunity to challenge his
Fourth Amendment claim in state court, the Court here “inquire[s] into the adequacy and
fairness of available state court procedures for the adjudication of Fourth Amendment
claims.” Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001). If the Court determines that the
state court procedures are adequate, the inquiry ends there. Id. at 8-9. That is, “[s]o long
as a state prisoner has had an opportunity to litigate his Fourth Amendment claims by
means of such a set of procedures, a federal habeas court lacks the authority, under Stone,
to second-guess the accuracy of the state court’s resolution of those claims.” Id. at 9.
Stated another way, “[t]he 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). Petitioner
bears the burden of establishing that the state courts did not consider his Fourth
Amendment claim fully and fairly. Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977).
Petitioner certainly could have raised his claims of unreasonable search and
seizure, before he pleaded guilty, by filing a motion to suppress the evidence obtained in
the search. Petitioner’s contention that his trial counsel was ineffective by failing to file
such a motion—although a basis for Claim 2 of the Petition—does not alter the Court’s
analysis, under Stone v. Powell, for purposes of Claim 1 and the related portion of Claim
3. Therefore, because the Idaho courts gave Petitioner a full and fair opportunity to

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litigate his search and seizure claims in state court, those claims cannot support a grant of
federal habeas relief.
CONCLUSION
Claim 1 and the related portion of Claim 3 must be dismissed as noncognizable
pursuant to the doctrine of Stone v. Powell. Therefore, Respondent’s Motion for Partial
Summary Dismissal will be granted in part. Petitioner’s remaining claims—Claim 2 and
the remaining portion of Claim 3—will be consolidated and adjudicated at a later date.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for an Extension of Time to respond to Respondent’s
motion for partial summary dismissal (Dkt. 13) is GRANTED.

2.

Petitioner’s Motion for an Evidentiary Hearing (Dkt. 15) is DENIED.

3.

Petitioner’s Motion for Appointment of Counsel (Dkt. 16) is DENIED.

4.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 11) is
GRANTED IN PART. Claim 1 and the portion of Claim 3 asserting an
unconstitutional search and seizure are DISMISSED with prejudice.

5.

Respondent shall file an answer and brief addressing the remaining
claims—Claim 2 and the related portion of Claim 3—within 60 days after
entry of this Order. Petitioner shall file a reply (formerly called a traverse),
containing a brief rebutting Respondent’s answer and brief, which shall be
filed and served within 30 days after service of the answer and brief.

MEMORANDUM DECISION AND ORDER - 9

Respondent has the option of filing a sur-reply within 14 days after service
of the reply. At that point, the case will be deemed ready for a final
decision.

DATED: August 3, 2016

Honorable Candy W. Dale
United States Magistrate Judge

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