Ellis v. Little
MEMORANDUM DECISION & ORDER Petitioner's Motion to Amend (Dkt. 35 ) is GRANTED. The Clerk of Court shall docket the Amended Complaint (currently Dkt. 35-1) as a separate docket entry, noting the date it was initially submitted to the Court. R espondent's Motion for Extension of Time (Dkt. 37 ) is GRANTED. Petitioner's request for appointment of counsel (contained in Dkt. 41 -1) is DENIED. Petitioner's Motion to Expand the Record (Dkt. 42 ) is GRANTED IN PART to the exte nt set forth above. Respondent's Motion to File Oversize Brief (Dkt. 43 ) is GRANTED. Petitioner's Supplemental Motion to Expand the Record (Dkt. 47 ) is GRANTED IN PART to the extent set forth above. Petitioner's Motion for an Evide ntiary Hearing (Dkt. 50 ) is DENIED. Respondent's Motion for Partial Summary Dismissal (Dkt. 39 ) is GRANTED. Claims 1, 2, and 6-22 are DISMISSED with prejudice. Respondent shall file an answer to the remaining claims (Claims 3, 4, and 5) with in 90 days of the date 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. R espondent has the option of filing a surreply within 14 days after service of the reply. At that point, the case will be deemed ready for a final decision. 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 (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JERRY LEONARD ELLIS,
Case No. 1:15-cv-00515-BLW
MEMORANDUM DECISION AND
STEVEN LITTLE, Warden, Southern
Idaho Correctional Institution,
Pending before the Court is Petitioner Jerry Leonard Ellis’s Amended Petition for
Writ of Habeas Corpus, which challenges two state court convictions of felony driving
under the influence (“DUI”).1 (Dkt. 35-1 at 1.) Respondent has filed a Motion for Partial
Summary Dismissal, which is now ripe for adjudication. (Dkt. 39.) Respondent argues
that most of Petitioner’s claims are procedurally defaulted, that some are untimely, and
that some are noncognizable. Also pending are several other motions filed by the parties,
including Petitioner’s motions to expand the record and for an evidentiary hearing. (Dkt.
37, 42, 43, 47, 50.)
Respondent does not object to Petitioner’s Motion to Amend. (See Dkt. 36.) Therefore, this
Motion will be granted, and the Amended Petition (Dkt. 35-1) will be separately entered on the docket,
noting the date it was initially submitted.
MEMORANDUM DECISION AND ORDER - 1
Having carefully reviewed the record, including the state court record, the Court
finds that the parties have adequately presented the facts and legal arguments in the briefs
and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order dismissing Claims 1, 2, and 6 through
22 as procedurally defaulted.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 16, 30.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
In 2006, in the First Judicial District in Kootenai County, Idaho, Petitioner pleaded
guilty to felony DUI (“first DUI case”). (State’s Lodging A-1 at 78-79.) He received an
indeterminate sentence of three and a half years. However, the trial court suspended the
sentence and placed Petitioner on probation. (Id. at 90-94.)
During the next two years, Petitioner committed multiple probation violations
resulting in the revocation of his probation. However, the trial court retained jurisdiction
and placed Petitioner on a rider. (Id. at 179-81.) After completion of the rider, Petitioner
was again given probation. (Id. at 187-94.)
In 2009, Petitioner was charged with another felony DUI (“second DUI case”), to
which he pleaded guilty. (State’s Lodging A-2 at 309-11.) Petitioner received a unified
sentence of 10 years in prison with five years fixed, but the court retained jurisdiction and
placed Petitioner on a rider. (Id. at 323-27.) The charge in the second DUI case resulted
in a charge of probation violation in the first DUI case, and Petitioner was placed on a
MEMORANDUM DECISION AND ORDER - 2
rider for that violation as well. (Id. at 320-22.) After completion of the riders, Petitioner
was again released on probation. (Id. at 333-45.)
In January 2011, Petitioner was charged with probation violations in both cases,
but instead of revoking probation, the court increased the terms of probation and required
that Petitioner complete the mental health drug court program. (Id. at 357-60, 409-14.)
Apparently, Petitioner had still not learned his lesson. Not even a year later, he
again violated the terms of his probation, this time by failing to comply with the rules of
mental health court and by driving without a license. (Id. at 439-41.) Petitioner completed
yet another rider and was placed back on probation in both cases. (Id. at 453-55, 463-68.)
This ongoing cycle of probation, violation, and retained jurisdiction eventually
came to an end. In 2013, Petitioner was again charged with violating probation in both
cases. Petitioner, represented by a public defender, admitted one violation and disputed
another. (Id. at 538.) The trial court denied Petitioner’s request for a continuance so that
he could retain private counsel. (Id. at 538-39.) After an evidentiary hearing on the
contested violation, the trial court found the violation proven. Petitioner then asked to
continue the disposition hearing so that he could call witnesses to testify on his behalf.
(Id. at 539.) The court denied Petitioner’s request—but accepted his offer of proof as
true—and immediately proceeded to disposition. (Id. at 539-40.) The court revoked
Petitioner’s probation and imposed the underlying sentences. (Id. at 540-41.)
Petitioner appealed the disposition in both cases, which had been consolidated.
Petitioner argued that the trial court erred by (1) denying Petitioner’s first request for a
continuance so he could retain private counsel, and (2) denying Petitioner’s second
MEMORANDUM DECISION AND ORDER - 3
request for a continuance so he could present witnesses. (State’s Lodging B-1.) The Idaho
Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging
While his direct appeal was pending, Petitioner filed a petition for state postconviction relief with respect to both DUI convictions. (State’s Lodging C-1 at 3-252.)
Petitioner was appointed counsel, who filed an amended petition. (Id. at 256-64.) The
trial court summarily dismissed the petition, and Petitioner filed a notice of appeal. (Id. at
268-310, 312-13.) However, Petitioner—through post-conviction appellate counsel—
voluntarily dismissed the appeal. (State’s Lodging D-4.) Petitioner alleges that he did not
consent to counsel’s filing of the motion for voluntary dismissal.
In his Amended Petition for Writ of Habeas Corpus, Petitioner asserts the
Petitioner was denied his Fourth Amendment right to be free
from unreasonable searches and seizures when his blood was
drawn without a warrant.
Petitioner’s privately retained attorney rendered ineffective
assistance by (1) failing to investigate the legality of
Petitioner’s arrest, (2) providing false information and advice
to Petitioner regarding the legality of the blood draw, (3)
falsely informing Petitioner regarding the need for a warrant
for the blood draw, (4) failing to hold a preliminary hearing
on the suppression issue, (5) failing to file a motion to
suppress, and (6) coercing Petitioner into an involuntary and
unintelligent guilty plea.
Petitioner’s Sixth Amendment right to retain counsel of his
choice was violated when his request for a continuance was
denied during his probation revocation proceeding.
MEMORANDUM DECISION AND ORDER - 4
Petitioner’s due process rights were violated when the state
trial court failed to notice Petitioner’s disposition hearing in
conjunction with his probation revocation proceeding,
resulting in Petitioner not having an opportunity to prepare a
full and proper defense.
Petitioner’s due process rights were violated when the trial
court denied Petitioner’s request for a continuance of the
revocation proceedings based on Petitioner’s lack of notice.
Petitioner’s due process rights were violated when the trial
court denied a continuance for the purpose of obtaining a
mental health evaluation of Petitioner.
Petitioner was denied adequate medical treatment while
Petitioner was in mental health court, in violation of the
Eighth Amendment, resulting in Petitioner’ impulsive
behavior and subsequent incarceration.
Petitioner’s state postconviction petition was erroneously
dismissed, resulting in manifest injustice.
Petitioner’s public defender rendered ineffective assistance by
(1) failing to adequately communicate with Petitioner, (2)
failing to prepare a successful defense, (3) failing to interview
witnesses, (4) failing to obtain expert testimony, (5) failing to
prepare for the March 21, 2013 hearing, (6) failing to deny
the allegations in that hearing, (7) failing to seek approval
from the court to obtain a mental health evaluation, (8) failing
to inform the court that Petitioner needed a continuance for
private counsel to prepare a defense, (9) failing to explain the
nature of the proceedings prior to the March 21, 2013
hearing, (10) failing to “inform Petitioner of the course of
proceedings,” (11) failing to object to due process violations
during the March 2013 hearing, (12) acting under a conflict of
interest, (13) failing to move to disqualify the judge, and (14)
failing to obtain a continuance of the hearing.
Petitioner’s Sixth Amendment rights were violated when the
court ordered the public defender to represent Petitioner
despite a conflict of interest based on the public defender
having been hired as a prosecutor.
MEMORANDUM DECISION AND ORDER - 5
Petitioner’s due process rights were violated when the district
court judge failed to recuse himself on the grounds of judicial
Petitioner’s due process rights were violated when, during the
March 2013 hearing, the court failed to inform him of his
“necessary hearing rights” regarding the nature of pleas. This
claim also appears to implicate Petitioner’s Fifth Amendment
right to be free from compelled self-incrimination.
Petitioner’s due process rights were violated because his plea
was involuntary and unintelligent.
Petitioner’s due process rights were violated because he was
suffering from mental health issues and “medication
instability” when he participated in his probation revocation
Petitioner’s due process rights were violated when he was
prohibited from assert the defense of necessity during his
March 2013 hearing.
Petitioner’s right to due process was violated because his
probation revocation proceeding, the disposition of his
motion to transport, and his Rule 35 proceedings were
arbitrary and capricious.
Petitioner’s due process rights were violated when he was not
allowed to obtain an updated mental health evaluation during
his motion to transport and Rule 35 proceedings.
Petitioner’s due process rights were violated when the district
court refused to hear argument at Petitioner’s Rule 35
Petitioner’s counsel rendered ineffective assistance on
October 23 and November 5, 2013, by (1) failing to obtain a
mental health evaluation with respect to Petitioner’s motion
to transport, (2) “failing to do any research” on Petitioner’s
ADHD, including medication Petitioner was taking, (3) failed
to set up telephone conferences with Petitioner’s doctors prior
to Petitioner’s Rule 35 hearing, (4) failing to secure expert
testimony during the Rule 35 hearing, and (5) failing to assert
a necessity defense.
MEMORANDUM DECISION AND ORDER - 6
Petitioner’s Sixth Amendment rights were violated when his
appellate counsel (1) failed to include, on direct appeal, all of
the issues raised in Petitioner’s postconviction petition, (2)
failing to argue that the convictions and sentence were in
violation of the federal and state constitutions, (3) failing to
challenge Petitioner’s convictions based on the trial judge’s
errors, (4) failing to argue that Petitioner’s rights were
violated under Idaho Criminal Rules 11 and 5.3, (5) failing to
appeal the denial of Petitioner’s request for a continuance,
and (6) failing to inform Petitioner of his ability to file a
petition for rehearing with the Idaho Court of Appeals.
Petitioner’s due process rights were violated when the district
court judge abused his discretion by dismissing Petitioner’s
postconviction petition, denying Petitioner’s request for an
evidentiary hearing, and failing to review affidavits or to
allow Petitioner to call expert witnesses.
Petitioner’s due process rights were violated when a police
officer denied Petitioner’s request to speak to counsel before
submitting to scientific testing.
(Dkt. 35-1 at 8-32.)
Respondent now argues that all of Petitioner’s claims other than Claims 3, 4, and 5
are procedurally defaulted and that some of these claims are untimely or noncognizable.
PETITIONER’S PENDING MOTIONS
Petitioner’s Motions to Expand the Record
Rule 7 of the Rules Governing Section 2254 Cases gives a federal court the
authority to expand the existing state court record with “materials relating to the
petition.” One of the purposes of Rule 7 is to permit the court to dispose of habeas
petitions without the time and expense of conducting an evidentiary hearing. See
Advisory Committee Note, Habeas Rule 7.
MEMORANDUM DECISION AND ORDER - 7
Petitioner seeks to expand the record with several documents he has submitted.
Though some of these documents do not appear relevant, others—particularly those
attached to Petitioner’s Supplemental Motion to Expand the Record (Dkt. 47)—relate to
Petitioner’s argument that cause and prejudice exist to excuse the procedural default of
Therefore, Petitioner’s motions to expand the record will be granted in part, to the
extent that the Court has considered the documents submitted by Petitioner for purposes
of resolving Respondent’s Motion for Partial Summary Dismissal. See Dickens v. Ryan,
740 F.3d 1302, 1320-21 (9th Cir. 2014) (en banc) (stating that the limitations on
consideration of new evidence set forth in 28 U.S.C. § 2254(e)(2) and in Cullen v.
Pinholster, 131 S. Ct. 1388 (2011), do not apply to gateway procedural issue of cause and
prejudice). The Court has not yet determined whether any of these documents may be
considered by the Court at a later stage, such as consideration of the merits of Petitioner’s
Motion for Evidentiary Hearing
Petitioner also requests that the Court hold an evidentiary hearing. (Dkt. 50.) To
the extent Petitioner seeks an evidentiary hearing on the merits of his claims, his request
is premature and will be denied. This case is still at the motion to dismiss stage of
litigation, and the parties have not yet briefed the merits of Petitioner’s claims. If it
appears at a later date that an evidentiary hearing on the merits is necessary—and
permissible under § 2254(e)(2) and Pinholster—the Court will issue an appropriate order
at that time.
MEMORANDUM DECISION AND ORDER - 8
Petitioner also seeks an evidentiary hearing on the procedural default issue.2 This
portion of Petitioner’s Motion will be addressed in conjunction with the Court’s analysis
of that issue below.
Petitioner’s Request for Counsel
In his response to the Motion for Partial Summary Dismissal, Petitioner renews his
request for appointment of counsel. (Dkt. 41-1 at 38; see also Dkt. 3 at 32, Dkt. 9 at 6-7.)
As the Court has previously explained, 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 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 procedural issue—whether Petitioner properly presented his federal claims to the
Idaho Supreme Court and whether, if he did not, cause and prejudice (or actual
Because this Memorandum does not address Respondent’s assertions that some of Petitioner’s
claims are untimely or noncognizable, Petitioner’s request for an evidentiary hearing on these issues will
be denied. See infra, n.3.
MEMORANDUM DECISION AND ORDER - 9
innocence) exists to excuse that failure—for which appointment of counsel is not
required. Further, 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 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 counsel.
RESPONDENT’S MOTION FOR PARTIAL SUMMARY DISMISSAL
For the following reasons, the Court concludes that Claims 1, 2, and 6-22 must be
dismissed as procedurally defaulted.3
Standard of Law Governing Summary Dismissal
The Rules Governing § 2254 Cases (“Habeas Rules”) authorize 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,” as well as those records subject to judicial
notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551. 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).
Because the Court will dismiss these claims as procedurally defaulted, it need not address
Respondent’s arguments that some of them are untimely or noncognizable.
MEMORANDUM DECISION AND ORDER - 10
Claims 1, 2, and 6-22 Are Procedurally Defaulted
Procedural Default 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
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). 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).
MEMORANDUM DECISION AND ORDER - 11
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.4 Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
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. The only
issues that Petitioner raised through the level of the Idaho Supreme Court are (1) the
denial of his first request for a continuance to retain private counsel, and (2) the denial of
his second request for a continuance to call witnesses on Petitioner’s behalf, both of
which were raised on direct appeal. These issues correspond to Claims 3, 4, and 5 of the
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).
MEMORANDUM DECISION AND ORDER - 12
Though Petitioner initially appealed the dismissal of his state post-conviction
petition, Petitioner—through counsel—later dismissed that appeal. Therefore, none of
Petitioner’s claims were presented to the Idaho Supreme Court in that appeal.
Because Petitioner did not fairly present Claims 1, 2, or 6-22 to the Idaho Supreme
Court, and because it is now too late to do so, those claims are procedurally defaulted.
See Gray, 518 U.S. at 161-62.
Petitioner Has Not Established Cause and Prejudice, or Actual Innocence, to
Excuse the Default
That Claims 1, 2, and 6 through 22 are procedurally defaulted does not end the
inquiry. If a 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, which means that a miscarriage of justice will occur if the
constitutional claim is not heard in federal court. Murray v. Carrier, 477 U.S. 478, 488
(1986); Schlup v. Delo, 513 U.S. 298, 329 (1995). “An evidentiary hearing is not
necessary to allow a petitioner to show cause and prejudice [or actual innocence] if the
court determines as a matter of law that he cannot satisfy the standard.” Clark v. Lewis, 1
F.3d 814, 820 (9th Cir. 1993).
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.
MEMORANDUM DECISION AND ORDER - 13
Cause and Prejudice
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).
Cause for the default may exist as a result of ineffective assistance of counsel. For
example, the failure on appeal to raise a meritorious claim of trial error—or the failure at
trial to preserve a claim for appeal—may render that claim procedurally defaulted. See
Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“[I]n certain circumstances counsel’s
ineffectiveness in failing properly to preserve the claim for review in state court will
suffice.”). However, for ineffective assistance of counsel (“IAC”) to serve as cause to
excuse a default, that IAC claim must itself have been separately presented to the state
appellate courts. If the ineffective assistance asserted as cause was not fairly presented to
the state courts, a petitioner must show that an excuse for that separate default exists, as
well. Id. at 451 (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally defaulted.”).
A petitioner does not have a federal constitutional right to the effective assistance
of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S.
551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the
MEMORANDUM DECISION AND ORDER - 14
general rule is that any errors of counsel during a post-conviction action cannot serve as a
basis for cause to excuse a procedural default, because the petitioner bears the risk of
attorney errors in such proceedings. Coleman, 501 U.S. at 752.
However, the Supreme Court established an exception to that general rule in
Martinez v. Ryan, 132 S. Ct. 1309 (2012). Martinez held that, in limited circumstances,
“[i]nadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 1315. The Ninth Circuit has concluded that the Martinez exception—which addressed
underlying claims of ineffective assistance of trial counsel (“IATC”)—can also apply to
claims of ineffective assistance of direct appeal counsel (“IADAC”). Nguyen v. Curry,
736 F.3d 1287, 1293-94 (9th Cir. 2013).5 Martinez does not apply to any claims other
than IAC claims, and it can apply only if the underlying IAC claim is exhausted and
procedurally defaulted. See Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013)
(holding that Martinez does not apply to claims under Brady v. Maryland and noting that
Martinez applies only to IAC claims).
The Supreme Court has described and clarified the Martinez cause-and-prejudice
test as consisting of four necessary prongs: (1) the underlying claim of ineffective
assistance of counsel must be a “substantial” claim; (2) the “cause” for the procedural
default consists of there being “no counsel” or only “ineffective” counsel during the state
The Supreme Court recently granted a petition for writ of certiorari in a Fifth Circuit case on the
issue of whether Martinez extends to underlying claims of IADAC. See Davila v. Davis, 650 F. Appx.
860 (5th Cir. May 31, 2017), cert. granted, 2017 WL 125677 (U.S. Jan. 13, 2017).
MEMORANDUM DECISION AND ORDER - 15
collateral review proceeding; (3) the state collateral review proceeding was the “initial”
collateral review proceeding where the ineffective assistance of trial counsel claim could
have been brought; and (4) state law requires that an ineffective assistance of counsel
claim be raised in an initial-review collateral proceeding, or by “design and operation”
such claims must be raised that way, rather than on direct appeal. Trevino v. Thaler, 133
S. Ct. 1911, 1918, 1921 (2013). The failure to meet any of these four prongs means that
the Martinez exception is unavailable to excuse the procedural default of an IAC claim.
See Martinez, 132 S. Ct. at 1319.
Petitioner asserts that ineffective assistance of trial, direct appeal, and postconviction appellate counsel caused the default of Claims 1, 2, and 6 through 22. (Dkt.
41-1 at 31-32.) Petitioner did not separately exhaust any arguments that trial or direct
appeal counsel was ineffective. Therefore, with respect to all of Petitioner’s non-IAC
claims, ineffective assistance of trial or direct appeal counsel cannot be used to excuse
the default—absent an excuse for that separate default. See Edwards, 529 U.S. at 451-52.
With respect Petitioner’s assertion that PCR appellate counsel rendered ineffective
assistance,6 the Martinez exception does not apply to excuse the default of Petitioner’s
trial or direct appeal ineffectiveness claims. Petitioner asserts that post-conviction
Because ineffective assistance of PCR counsel is not an independent constitutional claim, it is
unclear whether Edwards v. Carpenter—which holds that an IAC “cause” claim must itself have been
separately exhausted (or subject to an exception to procedural default)—applies to assertions of
ineffective assistance of post-conviction counsel asserted as cause for purposes of the Martinez exception.
See Dickens v. Ryan, 688 F.3d 1054, 1072-73 (9th Cir. 2012) (stating that a Martinez cause argument
need not be exhausted), op. withdrawn, 740 F.3d 1302 (9th Cir. 2014), on reh’g en banc, 740 F.3d 1302
(9th Cir. 2014). The resolution of this issue is unnecessary in this case.
MEMORANDUM DECISION AND ORDER - 16
appellate counsel was ineffective in causing the default—specifically, that his appellate
attorney filed a motion to voluntarily dismiss the appeal without Petitioner’s consent.
However, ineffective assistance of post-conviction appellate counsel cannot constitute
cause for the default of a claim. Martinez, 132 S. Ct. at 1320 (noting that the exception
does not apply to “attorney errors in . . . appeals from initial-review collateral
proceedings”). Therefore, PCR appellate counsel’s alleged ineffectiveness in moving to
dismiss the post-conviction appeal does not excuse the default of any of Petitioner’s IAC
One other limited circumstance when PCR counsel’s conduct may constitute cause
is attorney abandonment. Maples v. Thomas, 132 S. Ct. 912, 924 (2012). However, to
establish abandonment by post-conviction counsel, a petitioner must show that his
attorney’s inaction was so egregious that it effectively severed the attorney-client
relationship and left the petitioner “without any functioning attorney of record.” Id. at
927; see id. at 922-23 (“Having severed the principal-agent relationship, an attorney no
longer acts, or fails to act, as the client’s representative.”). Mere negligence on the part of
PCR counsel does not suffice, because “under well-settled principles of agency law, the
principal bears the risk of negligent conduct on the part of his agent.” Id. at 922.
Petitioner’s post-conviction appellate counsel communicated with Petitioner,
discussed the appeal, and informed Petitioner that counsel believed Petitioner’s claims
lacked merit. (Dkt. 47-1.) Petitioner acknowledges these discussions. (Dkt. 41-1 at 36.)
According to Petitioner, however, although he asked his attorney to write a letter
MEMORANDUM DECISION AND ORDER - 17
explaining counsel’s reasoning for finding the claims meritless, he did not direct counsel
to dismiss the appeal on that basis. (Id. at 37.)
There is no evidence that Petitioner objected to the motion for voluntary dismissal
in the state appellate court—which one might presume would have been his first order of
business if the appeal had actually been dismissed without his consent. The Court also
notes that Petitioner’s PCR appellate counsel has been admitted to the Idaho State Bar for
over 26 years and that he is a well-known and well-respected attorney who specializes in
criminal law. Nonetheless, the Court accepts, for purposes of this decision only,
Petitioner’s statement that he did not authorize counsel to dismiss the appeal. Even so,
however, Petitioner’s submissions show—at most—that PCR appellate counsel might
have misunderstood Petitioner’s statements as constituting consent to dismissal.
After the discussion between Petitioner and PCR appellate counsel regarding
counsel’s belief that the appeal was meritless, counsel filed the motion to dismiss the
appeal. (State’s Lodging D-4.) The same day he filed the motion, counsel also sent
Petitioner the requested letter explaining counsel’s reasoning. (Dkt. 27-1 at 1-2.) The
introductory portion of the letter states, “Please find enclosed a copy of the motion
voluntarily dismissing your appeal. As promised, here are my thoughts about why the
appeal was not meritorious.” (Id. at 1.) That the motion was enclosed with the letter to
Petitioner implies that PCR counsel believed he had previously been given authority to
dismiss the appeal, and counsel’s acting in accordance with that belief does not constitute
abandonment. Counsel remained in contact with Petitioner at all times as a “functioning
MEMORANDUM DECISION AND ORDER - 18
attorney of record,” Maples, 132 S. Ct. at 927, and did not effectively sever the attorneyclient relationship.
For the foregoing reasons, the Court concludes—as a matter of law—that
Petitioner cannot establish cause and prejudice to excuse the default of Claims 1, 2, and 6
through 22. Therefore, the Court will deny Petitioner’s motion for an evidentiary hearing
on this issue. See Clark, 1 F.3d at 820 (“An evidentiary hearing is not necessary to allow
a petitioner to show cause and prejudice if the court determines as a matter of law that he
cannot satisfy the standard.”).
If a petitioner does not 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
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
MEMORANDUM DECISION AND ORDER - 19
[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.
When a district court is considering an actual innocence gateway argument, it has
the discretion to assess the reliability and probative force of the petitioner’s proffer,
including making some credibility determinations, if necessary. Schlup, 513 U.S. at 331332. Although “habeas petitioners who assert convincing actual-innocence claims [need
not] prove diligence to cross a federal court’s threshold,” a court “‘may consider how the
timing of the submission and the likely credibility of a petitioner’s affiants bear on the
probable reliability of evidence of actual innocence.’” McQuiggin v. Perkins, 133 S. Ct.
1924, 1935 (quoting Schlup, 513 U.S. at 332) (alterations omitted).
MEMORANDUM DECISION AND ORDER - 20
Petitioner has not presented any reliable evidence that he is factually innocent.
Therefore, Petitioner has not satisfied his heavy burden of showing a fundamental
miscarriage of justice.
All of Petitioner’s claims other than Claims 3, 4, and 5 are procedurally defaulted,
and Petitioner has not shown cause and prejudice, or actual innocence, to excuse that
default. Therefore, Claims 1, 2, and 6 through 22 must be dismissed.
IT IS ORDERED:
Petitioner’s Motion to Amend (Dkt. 35) is GRANTED. The Clerk of Court
shall docket the Amended Complaint (currently Dkt. 35-1) as a separate
docket entry, noting the date it was initially submitted to the Court.
Respondent’s Motion for Extension of Time (Dkt. 37) is GRANTED.
Petitioner’s request for appointment of counsel (contained in Dkt. 41-1) is
Petitioner’s Motion to Expand the Record (Dkt. 42) is GRANTED IN
PART to the extent set forth above.
Respondent’s Motion to File Oversize Brief (Dkt. 43) is GRANTED.
Petitioner’s Supplemental Motion to Expand the Record (Dkt. 47) is
GRANTED IN PART to the extent set forth above.
Petitioner’s Motion for an Evidentiary Hearing (Dkt. 50) is DENIED.
MEMORANDUM DECISION AND ORDER - 21
Respondent’s Motion for Partial Summary Dismissal (Dkt. 39) is
GRANTED. Claims 1, 2, and 6-22 are DISMISSED with prejudice.
Respondent shall file an answer to the remaining claims (Claims 3, 4, and
5) within 90 days of the date 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. Respondent has the option of filing a surreply within 14 days after service of the reply. At that point, the case will
be deemed ready for a final decision.
DATED: January 27, 2017
B. Lynn Winmill
United States District Court
MEMORANDUM DECISION AND ORDER - 22
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