Peterson v. Blades

Filing 21

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Respondents Motion for Summary Dismissal (Dkt. 13 ) is GRANTED, and the Petition (Dkt. 3 ) 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. Signed by Judge Edward J. Lodge. (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

ROBERT E. PETERSON,
Case No. 1:15-cv-00486-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY BLADES,
Respondent.

Pending before the Court is Petitioner Robert Ervin Peterson’s Petition for Writ of
Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal, arguing
that all of Petitioner’s claims are procedurally defaulted and that some are noncognizable.
(Dkt. 13.) Petitioner has not responded to the Motion.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
Petitioner’s claims with prejudice as procedurally defaulted.

1

The Court granted Petitioner’s motion for extension of time to respond, but that order was
returned to the Court as undeliverable, and the time for responding to Respondent’s Motion has now
expired. (Dkt. 19, 20.) It appears that Petitioner was released from prison in 2016.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 12.) See Fed. R. Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner pleaded guilty in the Sixth Judicial District Court in Bannock County,
Idaho, to four counts of possession of sexually exploitative material. He received an
aggregate unified sentence of ten years in prison with sex years fixed. (State’s Lodging
B-6 at 1.) Petitioner filed a motion for reduction of sentence under Idaho Criminal Rule
35, which the trial court denied. (State’s Lodging A-2, A-6 at 10.)
Petitioner appealed, arguing that the trial court abused its discretion in sentencing
Petitioner and in denying the Rule 35 motion. (State’s Lodging B-1, B-3.) The Idaho
Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging
B-6, B-9.)
Petitioner later filed a second Rule 35 motion, arguing that he was not informed of
his right, established in Estrada v. State, 149 P.3d 833 (Idaho 2006), to refuse to
participate in the court-ordered psychosexual evaluation. (State’s Lodging C-1 at 13-16.)
Petitioner’s motion was granted, and the trial court ordered a new sentencing hearing
before a different judge. (Id. at 32-35.)
Before resentencing, Petitioner moved to disqualify the new judge. This motion
was denied. (Id. at 37-40.) Petitioner also moved to withdraw his guilty pleas, asserting
that the state violated the plea agreement, that Petitioner’s trial counsel rendered

MEMORANDUM DECISION AND ORDER - 2

ineffective assistance, that the guilty pleas were invalid, and that Petitioner was actually
innocent. (Id. at 52-53, 58-66.) This motion was denied after the resentencing hearing,
and Petitioner was resentenced to an aggregate unified sentence of twenty years in prison
with four years fixed. (Id. at 73-75.) Petitioner filed another Rule 35 motion, which was
denied. (Id. at 89.)
Petitioner appealed, arguing that (1) the trial court should have allowed him to
withdraw his guilty pleas because the plea was not knowing, intelligent, and voluntary,
(2) the initial sentencing judge should not have elicited the first motion for
disqualification from Petitioner, (3) the resentencing judge should have granted
Petitioner’s second motion to disqualify, and (4) Petitioner’s due process rights were
violated when resentencing resulted in a higher sentence. (State’s Lodging D-1, D-3.)
The Idaho Court of Appeals held that the initial order vacating Petitioner’s original
sentence was void because the trial court lacked jurisdiction to enter it. (State’s Lodging
D-5 at 5.) The court of appeals reinstated Petitioner’s original sentence, affirmed the
denial of Petitioner’s motion to withdraw his guilty plea, and held that all other issues
were moot. (Id. at 5-7.) The Idaho Supreme Court denied review. (State’s Lodging D-8.)
Petitioner later filed a petition for state post-conviction relief, raising numerous
claims. (State’s Lodging E-1 at 10-54.) Following an evidentiary hearing, the trial court
dismissed the petition. (Id. at 229-35; State’s Lodging E-3.) Petitioner appealed the
dismissal, arguing—under Idaho state law—that (1) the trial court was required to make

MEMORANDUM DECISION AND ORDER - 3

findings of fact and conclusions of law after the evidentiary hearing, and (2) the state’s
motion for summary dismissal was untimely. (State’s Lodging F-2, F-4.)
The Idaho Court of Appeals affirmed. The court declined to address Petitioner’s
arguments because Petitioner did not preserve the issues for appeal. (State’s Lodging F-5
at 2-3.) The Idaho Supreme Court denied review. (State’s Lodging F-8.)
In the instant federal habeas corpus petition, Petitioner asserts the following
claims:
Claim 1:

The trial court lacked jurisdiction because Petitioner
was deprived of his state and federal constitutional
rights to a speedy trial.

Claim 2:

The trial court lacked jurisdiction because of an
“improperly waived preliminary hearing.”

Claim 3:

The trial court lacked jurisdiction “due to the
unconstitutional appointment of Judge McDermott.”

Claim 4:

The trial court failed to comply with the requirements
of Idaho Code § 19-2523.

Claim 5:

The prosecutor committed misconduct by breaching
the plea agreement.

Claim 6:

The prosecutor committed misconduct by failing “to
fully disclose [the] nature of [the] charge.”

Claim 7:

The prosecutor committed misconduct by failing “to
disclose fault of law.”

Claim 8:

The charging statutes were unconstitutional.

Claim 9:

Petitioner was denied his Sixth Amendment right to
the effective assistance of counsel based on trial
counsel’s failure “to invoke” Idaho Code § 19-811.

MEMORANDUM DECISION AND ORDER - 4

Claim 10:

Petitioner’s trial counsel rendered ineffective
assistance by failing to move to suppress a search
warrant.

Claim 11:

Petitioner’s trial counsel rendered ineffective
assistance by failing to move to suppress Petitioner’s
statement to the Chubbuck Police Department.

Claim 12:

Petitioner’s trial counsel rendered ineffective
assistance by failing to move to reduce the number of
criminal charges.

Claim 13:

Petitioner’s trial counsel rendered ineffective
assistance by failing “to be aware of and discuss with
Petitioner elements of the charged crimes and
prosecutorial burden of proof.”

Claim 14:

Petitioner’s trial counsel rendered ineffective
assistance by failing “to be aware of and challenge the
constitutionality of the law.”

Claim 15:

Petitioner’s trial counsel, along with other unidentified
individuals, rendered ineffective assistance by failing
“to be aware of the law re: psycho-sexual evaluation
and to object to court’s use of [the evaluation] at
sentencing.”

Claim 16:

Petitioner’s trial counsel, along with other unidentified
individuals, rendered ineffective assistance by failing
to advise Petitioner concerning presentence
investigation reports.

Claim 17:

Petitioner’s trial counsel rendered ineffective
assistance by failing to “seek effective treatment of
Petitioner’s mental health.”

Claim 18:

Petitioner’s trial counsel rendered ineffective
assistance by failing to conduct “any meaningful
discovery as instructed to by Petitioner.”

Claim 19:

Petitioner’s trial counsel rendered ineffective
assistance by failing to “be prepared for and willing to
go to trial and threatening to quit [the] case.”

MEMORANDUM DECISION AND ORDER - 5

Claim 20:

Petitioner’s trial counsel rendered ineffective
assistance by failing to move to reduce the number of
criminal charges. This appears to be a restatement of
Claim 12.

Claim 21:

Petitioner’s trial counsel rendered ineffective
assistance by failing to object to the prosecutor’s
alleged breach of the plea agreement.

Claim 22:

Petitioner’s trial counsel rendered ineffective
assistance by failing to notify Petitioner or the trial
court of a continuing conflict of interest.

Claim 23:

Petitioner’s appellate counsel rendered ineffective
assistance by failing to raise on appeal the issue of
prosecutorial misconduct and breach of the plea
agreement.

Claim 24:

Petitioner’s appellate counsel rendered ineffective
assistance by failing to raise on appeal the issue of the
unconstitutionality of the charging statutes.

Claim 25:

Petitioner’s appellate counsel rendered ineffective
assistance by failing to raise on appeal the issue of “the
unconstitutionality of the enhanced re-sentence of May
2008.”

Claim 26:

Petitioner’s postconviction review counsel rendered
ineffective assistance by failing to file an amended
petition for state postconviction relief.

Claim 27:

Petitioner’s postconviction appellate counsel rendered
ineffective assistance by failing to assert due process
and equal protection arguments.

Claim 28:

Petitioner received ineffective assistance of trial and
appellate counsel based on the actions of 9 of his 10
attorneys, in that these attorneys allegedly only
pretended to tell Petitioner the truth, and were
incompetent to a degree that “stretchs [sic] the
credulity of the American mind.”

MEMORANDUM DECISION AND ORDER - 6

(Dkt. 3.)2
The Court previously reviewed the Petition and allowed Petitioner to proceed on
his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action,
(2) were timely filed in this Court, and (3) were either properly exhausted in state court or
subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 6 at 5.)
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).
Respondent argues that all of Petitioner’s claims are procedurally defaulted. For
the reasons that follow, the Court agrees.3
1.

Standards 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
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
2

This Court previously construed the claims in this manner, and Petitioner has not objected to the
that construction. (See Dkt. 6 at 2-5.)

3

The Court need not address Respondent’s argument that some of Petitioner’s claims are
noncognizable.

MEMORANDUM DECISION AND ORDER - 7

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). 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

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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).
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).
2.

Petitioner’s Claims Are Procedurally Defaulted, and Petitioner Has Not
Established a Legal Excuse for the Default
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 after his initial sentencing, Petitioner raised only a state law claim
that the trial court abused its discretion in sentencing Petitioner and in denying
Petitioner’s Rule 35 motion. He raised no federal claims in that appeal.
On appeal from Petitioner’s resentencing, Petitioner argued that his guilty plea
was not knowing, intelligent and voluntary, that the initial judge improperly elicited
Petitioner’s motion to disqualify, that the resentencing judge should have granted the

MEMORANDUM DECISION AND ORDER - 9

motion to disqualify, and that his due process rights were violated due to an increased
sentence. However, Petitioner raises none of these claims in the instant Petition.4
On appeal from the dismissal of Petitioner’s post-conviction petition, Petitioner
made only state law arguments—which the Idaho Court of Appeals did not address
because Petitioner had failed to preserve his objections in the state district court.
Petitioner raised no federal claims in that appeal.
Petitioner did not fairly present any of his current federal habeas claims to the state
courts. Therefore, because it is now too late to do so, all of the claims in the Petition are
procedurally defaulted. See Gray, 518 U.S. at 161-62.
The only way that a federal court can hear a procedurally defaulted claim is if the
petitioner meets one of two exceptions: (1) a showing of adequate legal cause for the
default and prejudice arising from the default, see Coleman v. Thompson, 501 U.S. 722,
731 (1991), or (2) a showing of actual innocence, which means that a miscarriage of
justice will occur if the claim is not heard in federal court, see Schlup v. Delo, 513 U.S.
298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986). However, Petitioner has
not argued that either of these exceptions applies. Thus, Petitioner has not established an
excuse for the default of his habeas claims.

CONCLUSION
4

In Claim 3, Petitioner argues that the appointment of the first judge was unconstitutional.
However, this argument deals with the initial appointment of that judge—not the judge’s actions with
respect to the motion to disqualify. (Dkt. 3-1 at 4-6.)

MEMORANDUM DECISION AND ORDER - 10

All of the claims in the Petition are procedurally defaulted, and Petitioner has not
established cause and prejudice, or actual innocence, to excuse that default. Therefore,
the Court must dismiss this case with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Summary Dismissal (Dkt. 13) is GRANTED, and
the Petition (Dkt. 3) 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
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: January 19, 2017

_________________________
Edward J. Lodge
United States District Judge

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