Brummett v. Finn

Filing 27

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: The remaining claims in the Petition for Writ of Habeas Corpus 3 are DENIED, and this entire action is DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. 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 a Petition for Writ of Habeas Corpus filed by former
Idaho state prisoner David Brummett (“Petitioner” or “Brummett”), challenging his
Canyon County conviction of possession of a controlled substance. (Dkt. 3.) On August
3, 2016, the Court dismissed Claim 1 and the related portion of Claim 31 as
noncognizable, pursuant to the doctrine of Stone v. Powell, 428 U.S. 465 (1976). (Dkt.
24.) The remaining claims in the Petition—Claim 2 and the related portion of Claim 3—
are now fully briefed and ripe for adjudication on the merits. (Dkt. 25, 26.) 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 n.1 (9th Cir. 2006).

1

Claim 3 is not an independent basis for relief, but rather restates Claims 1 and 2. Therefore, the
Court considered Claim 1, and the related portion of Claim 3, together. (Dkt. 24.) The Court will do the
same with the remaining claims and consider Claim 2, and the related portion of Claim 3, together.

MEMORANDUM DECISION AND ORDER - 1

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. 17.) 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 the remaining claims in the Petition.
BACKGROUND
The following facts, which Petitioner does not dispute, are taken from the decision
of the Idaho Court of Appeals during Petitioner’s post-conviction proceedings:
A Nampa City police officer observed Brummett
walking on railroad tracks, which were separated by a chainlink fence topped with barbed wire and marked with a no
trespassing sign. The officer called for Brummett to come
over to talk to him. Brummett, who was wearing headphones,
appeared not to hear the officer at first, but after repeated
efforts of yelling at Brummett, Brummett approached the
officer on the other side of the fence. The officer informed
Brummett that he was trespassing and instructed him to walk
toward an overpass and climb over the fence. Brummett
replied that he was not going to follow the officer’s
instruction because he was not traveling in that direction. At
that point, the officer advised Brummett that he was not free
to leave.
After repeated requests, Brummett agreed to walk to
the overpass. However, as he was doing so, Brummett
stopped on the railroad tracks, put his backpack down, and
put his headphones on. The officer advised Brummett to keep
walking toward the overpass, but Brummett ignored him.
This caused the officer to call for backup and to scale the
fence to reach Brummett. As the officer climbed the fence,
Brummett started running away from the officer. A train was
moving at a slow pace, and Brummett climbed through the
middle of two cars. The officer continued to pursue Brummett
MEMORANDUM DECISION AND ORDER - 2

as he ran, and the train stopped in time for the officer to climb
through the same location of the two railroad cars. As
Brummett was running, he tripped on a curb, but then stood
up and faced the officer as the officer was running toward
him. The officer twice advised Brummett to get on the
ground, but Brummett refused to follow the officer's
instruction. The officer tackled Brummett to the ground and
placed him in handcuffs.
The officer then searched Brummett and found a green
leafy substance in his pants pocket and a hypodermic needle
and spoon with a white crystal residue on it in his jacket
pocket. After the officer advised Brummett of his Miranda
rights, Brummett told the officer that the green leafy
substance was marijuana and that the white crystal substance
was methamphetamine. He also told the officer that he bought
the marijuana the night before and that he used the
methamphetamine earlier that morning by using the
hypodermic needle to inject it into his person.
The State charged Brummett with felony possession of
a controlled substance, Idaho Code § 37–2732(c)(1), and four
misdemeanors: possession of a controlled substance, I.C. §
372732(c)(3); possession of paraphernalia, I.C. § 37–
2734A(1); trespassing, I.C. § 18–7008; and resisting or
obstructing officers, I.C. § 18–705. The State also added a
persistent violator enhancement, I.C. § 19–2514.
(State’s Lodging D-4 at 1-2 (footnote omitted).)
Pursuant to a plea agreement, Petitioner pleaded guilty to felony possession of a
controlled substance, and the state dismissed the misdemeanor charges and the sentencing
enhancement. (Id. at 2.) Petitioner was sentenced to seven years in prison with three years
fixed.2 (Id.) The Idaho Court of Appeals affirmed. (State’s Lodging B-3.)
Petitioner filed a petition for state post-conviction relief, alleging, in relevant part,
that his trial counsel rendered ineffective assistance by failing to file a motion to suppress
2

Petitioner has since been paroled. (See Dkt. 23.)

MEMORANDUM DECISION AND ORDER - 3

the evidence seized by the officer during the search incident to Petitioner’s arrest. The
state district court summarily dismissed the petition, and the Idaho Court of Appeals
affirmed. (State’s Lodging D-4.)
In the instant federal Petition, Petitioner’s remaining claims assert that his trial
counsel rendered ineffective assistance by failing to file a motion to suppress the
evidence found on Petitioner.
HABEAS CORPUS 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). 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). In determining whether a petitioner is entitled to habeas relief, a
federal court reviews the state court’s “last reasoned decision,” Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991)—here, the decision of the Idaho Court of Appeals on postconviction review.
MEMORANDUM DECISION AND ORDER - 4

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). 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) (emphasis omitted).
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
MEMORANDUM DECISION AND ORDER - 5

mean the state court’s contrary conclusion was unreasonable.” Id. 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 beyond any possibility for
fairminded disagreement.” Id. at 103.
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 th[e] Court has not
announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).
As to the facts, the United States Supreme Court has clarified “that review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” 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, 999-1000 (9th Cir. 2014).
Two separate statutory subsections govern a federal court’s review of state court
factual findings. When a petitioner contests the reasonableness of the state court’s factual
determinations based entirely on the state court record, a federal court must undertake a
MEMORANDUM DECISION AND ORDER - 6

§ 2254(d)(2) analysis. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). There are
two general ways to challenge factual findings as unreasonable under § 2254(d)(2).
“First, a petitioner may challenge the substance of the state court’s findings and attempt
to show that those findings were not supported by substantial evidence in the state court
record. Second, a petitioner may challenge the fact-finding process itself on the ground
that it was deficient in some material way.” Hibbler v. Benedetti, 693 F.3d 1140, 1146
(9th Cir. 2012) (internal citations omitted).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the state
court decision was based upon factual determinations that were “unreasonable . . . in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A
“state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.” Wood v. Allen, 558
U.S. 290, 301 (2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The
question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold.”).
Under the second subsection dealing with state court factual findings, 28 U.S.C. §
2254(e)(1), such findings are presumed to be correct, and the petitioner has the burden of
rebutting this presumption by clear and convincing evidence. The Ninth Circuit has held
that “the presumption of correctness and the clear-and-convincing standard of proof [as
set forth in § (e)(1)] only come into play once the state court’s fact-findings survive any
intrinsic challenge [under § (d)(2)]; they do not apply to a challenge that is governed by
MEMORANDUM DECISION AND ORDER - 7

the deference implicit in the ‘unreasonable determination’ standard of section
2254(d)(2).” Taylor, 366 F.3d at 1000.
Despite this distinction in Taylor v. Maddox, the relationship between
§ 2254(d)(2) and § 2254(e)(1) is not entirely clear. Wood, 558 U.S. at 300 (declining to
address the issue); Murray, 745 F.3d at 1001 (noting that the Supreme Court has, in some
cases, assumed that § (e)(1) merely qualifies § (d)(2) and that “we too have continued to
struggle with the relationship between §§ 2254(d)(2) and (e)(1) when reviewing statecourt factual findings under AEDPA”). The uncertainty of that relationship in the Ninth
Circuit is amplified a result of the Supreme Court’s abrogation of the underpinning of
Taylor—that a federal could review, under § (e)(1), factual findings of a state court based
on evidence not presented to that court even if the claim was adjudicated on the merits.
See Pinholster, 563 U.S. at 180. However, any differences between § 2254(d)(2) and §
2254(e)(1) are rarely determinative. See Wood, 558 U.S. at 304-05 (“Because the
resolution of this case does not turn on them, we leave for another day the questions of
how and when § 2254(e)(1) applies in challenges to a state court’s factual determinations
under § 2254(d)(2).”); Murray, 745 F.3d at 1001 (“[W]e do not believe the difference
between our two lines of cases is determinative in this case, and thus we need not resolve
the apparent conflict to decide this case.”).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to, or an unreasonable application of Supreme
Court law or by establishing that the state court’s factual findings were unreasonable—
then the federal habeas court must review the petitioner’s claim de novo. Hurles v. Ryan,
MEMORANDUM DECISION AND ORDER - 8

752 F.3d 768, 778 (9th Cir. 2014). De novo review is also required where the state
appellate court did not decide a properly-asserted claim or where an adequate excuse for
the procedural default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.
2002); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc).
When considering a habeas claim de novo, a district court may, as in the preAEDPA era, 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). Even
under de novo review, however, if the factual findings of the state court are not
unreasonable under § 2254(d)(2), the Court must apply the presumption of correctness
found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at
1167-68. Contrarily, if a state court factual determination is unreasonable, the federal
court is not limited by § 2254(e)(1) and may consider evidence outside the state court
record, except to the extent that § 2254(e)(2) might apply. Murray, 745 F.3d at 1000.
DISCUSSION
For the reasons that follow, Petitioner is not entitled to habeas relief on his claim
of ineffective assistance of trial counsel.
1.

Clearly-Established Law
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
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’
MEMORANDUM DECISION AND ORDER - 9

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
plausible options.” Strickland, 466 U.S. at 690. Moreover, an attorney who decides not to
investigate a potential defense theory is not ineffective so long as the decision to forego
investigation is itself objectively reasonable:
MEMORANDUM DECISION AND ORDER - 10

[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. Further, counsel is not deficient in an area where an investigation would
not have been fruitful for the defense.
The Ninth Circuit has provided some insight into the Strickland standard when
evaluating an attorney’s “strategy calls.” These cases are instructive in the 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 - 11

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, as
here, the petitioner pleaded guilty, the petitioner “must show that there is 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). Further, to
demonstrate prejudice when the ineffective assistance claim is based on counsel’s failure
to file a motion to suppress evidence on Fourth Amendment grounds, the petitioner “must
also prove that his Fourth Amendment claim is meritorious and that there is a reasonable
probability that the [outcome] would have been different absent the excludable
evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
MEMORANDUM DECISION AND ORDER - 12

The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101. That is, 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.
Because Petitioner’s ineffective assistance claim is based on trial counsel’s
decision not to file a motion to suppress asserting a violation of the Fourth Amendment,
the Court must also consider the standards of law governing Fourth Amendment claims.
That amendment, which is applicable to the States through the Fourteenth Amendment,
“provides in pertinent part that the ‘right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.’” Soldal v. Cook County, 506 U.S. 56, 61 (1992) (quoting U.S. Const., amend.
MEMORANDUM DECISION AND ORDER - 13

IV). The general rule is that “searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted).
One of these exceptions is a search incident to a lawful arrest. Arizona v. Gant,
556 U.S. 332, 338 (2009). This exception “permits law enforcement officers to conduct a
warrantless search of a person who is arrested, and of his surrounding area, when the
search is incident to the arrest.” United States v. Smith, 389 F.3d 944, 950-51 (9th
Cir.2004) (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)). The scope of a
lawful search incident to arrest is limited to the arrestee’s person and the area within his
immediate control, including the area in which he might gain control of a weapon or
destructible evidence. Chimel, 395 U.S. at 763.
The search-incident-to-arrest exception is justified by “interests in officer safety
and evidence preservation that are typically implicated in arrest situations.” Gant, 556
U.S. at 338. Searches that do not implicate either of these justifications do not trigger the
exception and are, therefore, unlawful. Id. at 344 (holding unlawful a search conducted
after arrestee was handcuffed and locked in back of patrol car, because arrestee posed no
threat to officers and was arrested for traffic offense for which no evidence could be
found in vehicle).
If an arrest is unlawful, then a search incident to that arrest is also unlawful.
Johnson v. United States, 333 U.S. 10, 15-17 (1948). To be lawful, an arrest must be
supported by probable cause. Michigan v. Summers, 452 U.S. 692, 700 (1981). Probable
MEMORANDUM DECISION AND ORDER - 14

cause exists where the “facts and circumstances [are] sufficient to warrant a prudent man
in believing that the [suspect] had committed or was committing an offense.” Gerstein v.
Pugh, 420 U.S. 103, 111 (1975).
The protections of the Fourth Amendment extend to brief investigatory stops of
persons that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9 (1968). Where
justification for an investigatory stop is in question, “the Fourth Amendment is satisfied if
the officer’s action is supported by reasonable suspicion to believe criminal activity may
be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989).
“Reasonable suspicion is formed by specific, articulable facts which, together with
objective and reasonable inferences, form the basis for suspecting that the particular
person detained is engaged in criminal activity.” United States v. Miguel, 368 F.3d 1150,
1153 (9th Cir. 2004) (internal quotation marks omitted), overruled on other grounds by
United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (en banc). An investigatory
stop based on reasonable suspicion satisfies the Constitution even if that reasonable
suspicion is based on an officer’s good-faith mistake of fact. Id. at 1153-54.
2.

State Court Decision
The Idaho Court of Appeals appropriately cited Strickland v. Washington as the

governing law with respect to ineffective assistance of counsel claims. (State’s Lodging
D-4 at 6.) The court then rejected Petitioner’s Strickland claim because (1) the initial stop
of Petitioner was supported by reasonable suspicion, (2) the arrest was supported by
probable cause, and therefore (3) the search incident to the arrest was lawful. As a result,
any motion to suppress the evidence obtained in that search would have been denied:
MEMORANDUM DECISION AND ORDER - 15

Brummett asserts that a motion to suppress would have
been successful because his flight, without more, could not
justify the stop, and “[t]here was no behavior that indicated
any sort of criminal activity.” Specifically, Brummett argues
he was not trespassing because he did not see any no
trespassing signs, and he was able to find an opening in the
fence. However, for purposes of establishing reasonable
suspicion and probable cause, whether Brummett knew he
was trespassing is irrelevant. An investigative detention is
permissible if it is based upon specific articulable facts which
justify suspicion that the detained person is, has been, or is
about to be engaged in criminal activity. State v. Sheldon, 139
Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003). The
justification for an investigative detention is evaluated upon
the totality of the circumstances then known to the officer.
United States v. Cortez, 449 U.S. 411, 418 (1981); State v.
Rawlings, 121 Idaho 930, 932, 829 P.2d 520, 522 (1992). The
information available to the detaining officers must show a
“particularized and objective basis for suspecting the
particular person stopped of criminal activity.” Cortez, 449
U.S. at 417–18. See also Florida v. Royer, 460 U.S. 491, 498
(1983); State v. Salato, 137 Idaho 260, 264, 47 P.3d 763, 767
(Ct. App. 2001). Thus, reasonable suspicion and probable
cause is dependent upon the information possessed by the
officer, not the information possessed by the defendant. See
Sheldon, 139 Idaho at 983, 88 P.3d at 1223.
At the time the officer seized Brummett, the officer
had reasonable suspicion that Brummett was trespassing and
that he had committed the crime of resisting and obstructing
an officer. First, the officer testified that he observed
Brummett walking on railroad tracks that were protected by a
chain link, barbed wire fence that was labeled no trespassing.
Thus, the officer had ample basis to reasonably believe that
Brummett was trespassing. Furthermore, Brummett
repeatedly ignored the officer’s instructions to approach the
officer and to walk to the overpass where he could climb the
fence and then proceeded to run from the officer when the
officer climbed the fence. Therefore, the officer reasonably
believed that Brummett willfully resisted, delayed, and
obstructed him in the attempted discharge of his duty. See
State v. Quimby, 122 Idaho 389, 391, 834 P.2d 906, 908 (Ct.
App. 1992) (defendant’s flight from police can provide
MEMORANDUM DECISION AND ORDER - 16

additional basis for probable cause to arrest for resisting and
obstructing). Contrary to Brummett’s contention, the district
court did not consider his flight, without more, when finding
that his stop was justified. The officer had reasonable
suspicion that Brummett was committing criminal activity
based on the totality of the circumstances, which included
trespassing, refusing to follow the officer’s instruction, and
fleeing from the officer. Accordingly, the district court
correctly determined that the officer had reasonable suspicion
that Brummett was engaged in criminal activity at the time he
was seized, and probable cause to arrest for resisting and
obstructing. Therefore, the subsequent search was lawful, and
Brummett has failed to demonstrate that his attorney was
ineffective for failing to file a motion to suppress.
(Id. at 7-8.)
3.

Petitioner Is Not Entitled to Habeas Relief on Claim 2 or the Related Portion
of Claim 3
The Idaho Court of Appeals’ decision that a motion to suppress would have been

denied was objectively reasonable. The specific, articulable facts supporting reasonable
suspicion for the officer’s initial attempt to speak to Petitioner include (1) the existence of
a chain-link and barbed-wire fence containing the railroad tracks and (2) a no trespassing
sign. Even if, as the arresting officer testified during Petitioner’s preliminary hearing, the
sign was near the tracks on the east side of the street, whereas Petitioner was walking on
the tracks on the west side of the street, that fact does not eliminate reasonable suspicion.
(See State’s Lodging C-2 at 172.) It was reasonable for the officer to infer, from the
chain-link, barbed-wire fence, that the railroad tracks where Petitioner was walking
were—like the tracks on the other side of the street—on private property and that
Petitioner was engaged in the crime of trespassing. Therefore, the Idaho Court of Appeals
correctly held that reasonable suspicion justified the officer’s initial actions.
MEMORANDUM DECISION AND ORDER - 17

Given that the officer had reasonable suspicion of criminal activity, once
Petitioner fled from the officer, the officer had additional reason to believe that Petitioner
was engaged not only in the crime of trespass, but also the crime of obstructing a police
officer. See Gerstein, 420 U.S. at 111. The state court’s conclusion that the facts known
to the officer constituted probable cause was reasonable. And because the arrest was
lawful, the search incident to the arrest was also lawful. Trial counsel reasonably decided
not to file a motion to suppress (and there was no prejudice in any event) because the
motion would have been denied.
The double deference that applies when reviewing ineffective assistance claims in
habeas proceedings leaves no room for this Court to second-guess the decision of the
Idaho Court of Appeals. See Pinholster, 131 S. Ct. at 1403. Petitioner simply has not
shown that his counsel performed deficiently in failing to file a motion to suppress or that
Petitioner’s Fourth Amendment claim was meritorious such that counsel’s decision
prejudiced Petitioner. See Kimmelman, 477 U.S. at 375.
Therefore, the remaining claims in the Petition shall be denied.
ORDER
IT IS ORDERED:
1.

The remaining claims in the Petition for Writ of Habeas Corpus (Dkt. 3) are
DENIED, and this entire action is DISMISSED with prejudice.

2.

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

MEMORANDUM DECISION AND ORDER - 18

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: May 11, 2017

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 19