Ellis v. Little
Filing
99
MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner is not entitled to habeas relief on Claims 3, 4, and 5the only remaining claims. Therefore, the Amended Petition for Writ of Habeas Corpus 54 is DISMISSED IN PART and DENIED IN PART. Th e 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 B. Lynn Winmill. (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
JERRY LEONARD ELLIS,
Case No. 1:15-cv-00515-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
STEVEN LITTLE, Warden, Southern
Idaho Correctional Institution,
Respondent.
Pending before the Court is an Amended Petition for Writ of Habeas Corpus filed
by Idaho state prisoner Jerry Leonard Ellis (“Petitioner” or “Ellis”), challenging
Petitioner’s convictions of felony driving under the influence (“DUI”). (Dkt. 54.) The
Court previously dismissed, as procedurally defaulted, Claims 1, 2, and 6 through 22 of
the Amended Petition. (Dkt. 53.) The merits of the remaining claims—Claims 3, 4, and
5—are now fully briefed and ripe for adjudication.1 (Dkt. 61, 62, 64.) The Court takes
judicial notice of the records from Petitioner’s state court proceedings, which have been
1
In his merits briefing, Petitioner includes arguments as to claims that the Court previously held to
be procedurally defaulted. The Court will not address those arguments, as those claims have already been
dismissed.
MEMORANDUM DECISION AND ORDER - 1
lodged by Respondent. (Dkt. 16, 30.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451
F.3d 550, 551 n.1 (9th Cir. 2006).
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 habeas corpus relief on
Petitioner’s remaining claims.
BACKGROUND
Petitioner pleaded guilty in two felony DUI cases. He was given suspended
sentences of incarceration and placed on probation. Petitioner had multiple opportunities
to help him succeed on probation—for example, Petitioner was granted a place in the
mental health court program—but he did not.
Instead, Petitioner consistently failed to comply with the terms of his probation.
However, he was given numerous chances to avoid prison. This Court has previously
recounted Petitioner’s “ongoing cycle of probation, violation, and retained jurisdiction”
and will not do so again here. (Dkt. 53 at 3.) It suffices to state that, in 2013, Petitioner
was—yet again—charged with violating his probation in both of his felony DUI cases.
At the beginning of the admit/deny hearing on the probation violation charges, as
later explained by the Idaho Court of Appeals, Petitioner requested a continuance “to
obtain an updated mental health evaluation”:
Ellis claimed he was not feeling well on his medication that
particular day and, specifically, that he was feeling extremely
overwhelmed. The district court explained that Ellis was
receiving his medication in jail and that neither the district
MEMORANDUM DECISION AND ORDER - 2
court, the state, nor those responsible for Ellis’s regular
treatment was aware of any complaint, prior to the hearing,
that Ellis was not feeling stable on his medication. The
district court further explained that there was a difference
between not feeling well and being incompetent and that it
found no evidence that there was a lack of competency or an
inability to assist counsel. Explaining that it had reviewed
Ellis’s file and believed that there was a pattern of delay
every time there was a prospect of prison, the district court
did not find Ellis’s complaint credible and, therefore, denied
Ellis’s motion for continuance.
(State’s Lodging B-5 at 2.)
Petitioner then requested a continuance on a different basis—to retain private
counsel. The court denied the request, “again explaining that it believed Ellis’s request
was a delay tactic.” (State’s Lodging B-5 at 2.)
Petitioner admitted one of the violations—that he had driven without privileges—
and denied another—that he had been terminated from the mental health court program
for noncompliance.2 (See State’s Lodging A-2 at 503-04; A-7.) After an evidentiary
hearing, the state district court found the noncompliance allegation proven. (State’s
Lodging A-7 at 8-15.) The court then stated that it would proceed immediately to the
revocation/disposition stage of the proceedings. (Id. at 15.) Petitioner asked that the court
“continue the disposition portion of the hearing because his witnesses were not at the
hearing to testify on his behalf.” (State’s Lodging B-2 at 5.) Petitioner’s attorney said that
the reason the witnesses were not at the hearing was the attorney’s belief that “this was
simply the admit/deny hearing on it.” (State’s Lodging A-7 at 16.)
2
The state withdrew a third violation. (State’s Lodging A-7 at 8.)
MEMORANDUM DECISION AND ORDER - 3
Petitioner made an offer of proof as to the testimony that Petitioner’s witnesses
would give. The court accepted that offer as true and denied the motion to continue. (Id.
at 16-18.) After allowing Petitioner to make a statement, the court revoked probation and
ordered execution of the underlying sentences. (State’s Lodging B-5 at 2.)
On appeal, the Idaho Court of Appeals held that the district court did not violate
Petitioner’s right to counsel of choice. (State’s Lodging B-5 at 2-4.) This counsel-ofchoice claim is presented as Claim 3 of the Amended Petition.
With respect to Petitioner’s claim that the district court’s failure to notify
Petitioner that the hearing would include disposition, which corresponds to Claim 4 of the
Amended Petition, the court of appeals assumed error, but found that error harmless. (Id.
at 4-6.)
Although the state court did not separately address Petitioner’s claim that the trial
court should have continued the disposition hearing so Petitioner could present
witnesses—presented here as Claim 5—that claim is inextricably intertwined with Claim
4. Therefore, the Court presumes that the Idaho Court of Appeals adjudicated Claim 5 on
the merits and rejected it for the same reasons as Claim 4—that the failure to grant the
continuance was harmless. See Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a
federal claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.”).
MEMORANDUM DECISION AND ORDER - 4
The Idaho Supreme Court denied review of Petitioner’s appeal. (State’s Lodging
B-8.)
Because the Idaho Court of Appeals adjudicated the merits of Claims 3, 4, and 5,
this Court may not, and therefore does not, consider the additional documents submitted
by Petitioner—which were not presented to the state court—in its merits review of those
claims.3 See Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
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.
The Court previously did consider Petitioner’s extra-record evidence for purposes of its
procedural default analysis, as permitted by Dickens v. Ryan, 740 F.3d 1302, 1320-21 (9th Cir. 2014) (en
banc) (holding that neither Pinholster nor 28 U.S.C. § 2254(d)(2) bars new evidence considered for
purposes of the cause and prejudice exception to procedural default). (See Dkt. 53 at 8.)
3
MEMORANDUM DECISION AND ORDER - 5
28 U.S.C. § 2254(d). “Deciding whether a state court’s decision involved an
unreasonable application of federal law or was based on an unreasonable determination
of fact requires the federal habeas court to train its attention on the particular reasons—
both legal and factual—why state courts rejected a state prisoner’s federal claims and to
give appropriate deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191-92
(2018) (internal quotation marks and citations omitted).
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).
MEMORANDUM DECISION AND ORDER - 6
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). Richter, 562 U.S. at 102. The Supreme Court
has emphasized that “even a strong case for relief does not 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, 569 U.S. 58, 64 (2013).
“[R]eview under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 180. This means
MEMORANDUM DECISION AND ORDER - 7
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
determinations of the state court were reasonable. See Murray v. Schriro, 745 F.3d 984,
999-1000 (9th Cir. 2014); (“After Pinholster, a federal habeas court may consider new
evidence only on de novo review, subject to the limitations of § 2254(e)(2).”); Hurles v.
Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine, considering only the evidence
before the state court, that the adjudication of a claim on the merits ... was based on an
unreasonable determination of the facts, we evaluate the claim de novo, and we may
consider evidence properly presented for the first time in federal court.”).
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.” 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.”). State court factual findings are presumed correct and are binding on the
federal court unless the petitioner rebuts that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
MEMORANDUM DECISION AND ORDER - 8
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of a 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 court must review the petitioner’s claim de novo. Hurles, 752 F.3d at
778. 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).
Generally, even if a habeas petitioner succeeds in demonstrating a constitutional
error in his conviction, he is entitled to relief only if he can also show that he was
prejudiced by that error. Most constitutional errors are subject to some type of harmlesserror analysis. On direct appeal, a constitutional error can be considered harmless only if
the prosecution proves that it was “harmless beyond a reasonable doubt,” as explained in
Chapman v. California, 386 U.S. 18, 24 (1967); see also Davis v. Ayala, 135 S. Ct. 2187,
2197 (2015) (“[I]n the absence of the rare type of error that requires automatic reversal,
relief is appropriate only if the prosecution cannot demonstrate harmlessness.”) (internal
quotation marks omitted).
The test for harmless error on federal habeas review, however, is different from—
and stricter than—the Chapman standard. Petitioners generally are not “entitled to habeas
relief based on trial error unless they can establish that [the error] resulted in ‘actual
prejudice.’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under the Brecht standard,
MEMORANDUM DECISION AND ORDER - 9
an error is not harmless, and habeas relief must be granted, only if the federal court has
“grave doubt about whether a trial error of federal law had substantial and injurious effect
or influence in determining” the outcome of the proceeding. O’Neal v. McAninch, 513 U.
S. 432, 436 (1995) (internal quotation marks omitted). A “reasonable possibility” of
prejudice is insufficient. Brecht, 507 U.S. at 637. In addition, the petitioner, rather than
the State, has the burden of showing prejudice.
AEDPA’s deferential standard—restricting habeas relief to cases where the state
court’s decision was objectively unreasonable—applies to a state court’s harmlessness
determination. Ayala, 135 S. Ct. at 2198-99. Thus, in addition to the Brecht standard, a
federal court on habeas review considers whether fairminded jurists could debate whether
the state court’s Chapman analysis was reasonable. See Richter, 562 U.S. at 101. The
Brecht analysis “subsumes” the AEDPA standard, Fry v. Pliler, 551 U.S. 112, 120
(2007), and although a federal court “need not formally apply both Brecht and
AEDPA/Chapman,” section 2254(d) “nevertheless sets forth a precondition to the grant
of habeas relief.” Ayala, 135 S. Ct. at 2198 (internal quotation marks and alteration
omitted).
DISCUSSION
For the reasons that follow, Petitioner is not entitled to habeas relief on his
remaining claims.
MEMORANDUM DECISION AND ORDER - 10
1.
Claim 3: Denial of Continuance to Retain Counsel of Choice
A.
Relevant Facts
Immediately before the admit/deny portion of the hearing, Petitioner told the court
he was not ready to proceed because his preferred counsel was not available:
The Defendant: I understand the allegations against me,
Your Honor, but I’m not ready to proceed.
The Court:
Okay, then the next question I have is
whether you admit or deny those ...
allegations. I’ll take them one at a time.
Allegation Number One, that you were
terminated from Kootenai County Mental
Health Court for noncompliance, do you
admit that allegation?
The Defendant: Your Honor, I believe I’m going to have to
retain counsel at this point. Um—
The Court:
You have counsel. Do you admit or deny
that allegation?
The Defendant: I understand that, but I’m not prepared here
today, and I’ve already talked with John
Redal [a private attorney]. He’s not going to
be here, and he asked me to get a
continuance today until he gets back on the
8th to represent me in this matter.
The Court:
Okay, he is not here today. You have an
attorney. I’m going to enter a denial for you
on allegation one....
(State’s Lodging A-7 at 7.)
The trial court later expressly found that, by requesting new counsel, Petitioner
was intending to delay the proceedings:
You have shown an incredible inability to delay these
proceedings every time you face prison, and I know I wasn’t
MEMORANDUM DECISION AND ORDER - 11
your judge back in 2006, but I look at what happened back in
2006. It took eleven months for you to enter a plea on felony
DUI. Every time you’ve had a probation violation where
prison is the recommendation you manage to draw it out into
a six, seven, eight-month ordeal before you even go on a
rider, and you showed every ability to do that here again
today.
....
.... You—your claim today that you wanted to hire John
Redal, who’s a fine attorney ..., but the best attorney you’ve
ever had is seated to your left. Your claim that you wanted
John Redal today was made nothing—for no other reason
than to create delay. That’s my specific finding....
(Id. at 48-49.) The court denied Petitioner’s request for a continuance.
B.
Clearly-Established Law
In Claim 3, Petitioner asserts that the trial court deprived him of his right to
counsel of his choice when it denied his request to continue the proceedings so that he
could retain a different attorney.
The Sixth Amendment guarantees criminal defendants the right to the assistance
of counsel, including the “right of a defendant who does not require appointed counsel to
choose who will represent him.” Wheat v. United States, 486 U.S. 153, 159 (1988).
However, because “the essential aim of the [Sixth] Amendment is to guarantee an
effective advocate for each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers,” the right to counsel of one’s
choice “is circumscribed in several important respects.” Id.
One of these respects is court scheduling and docket management. Trial courts
have “broad discretion ... on matters of continuances,” even when the reason for the
MEMORANDUM DECISION AND ORDER - 12
requested continuance is to retain counsel of one’s choice. Morris v. Slappy, 461 U.S. 1,
11 (1983). Consequently, the denial of such a continuance violates the right to counsel of
choice only if it constitutes “an unreasoning and arbitrary ‘insistence upon
expeditiousness in the face of a justifiable request for delay.’” Id. at 11-12 (quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). See also Gonzalez-Lopez, 548 U.S. at 152
(“We have recognized a trial court’s wide latitude in balancing the right to counsel of
choice against the needs of fairness and against the demands of its calendar.”) (internal
citation omitted). Where a defendant’s request for a continuance to retain counsel of his
choice is made for purposes of delay, a judge may deny the continuance and require the
accused to proceed as represented by his current counsel. See, e.g., United States v.
Vallery, 108 F.3d 155, 157 (8th Cir. 1997) (“The right to choice of counsel must not
obstruct orderly judicial procedure or deprive courts of their inherent power to control the
administration of justice. If a defendant’s attempted exercise of his choice is dilatory, the
trial court can require him to proceed with designated counsel.”) (internal quotation
marks and citation omitted).
Denial of the right to counsel of choice is considered structural error. This means
that, if a habeas petitioner succeeds in demonstrating a violation of his right to counsel of
choice, he need not show Brecht prejudice. United States v. Gonzalez-Lopez, 548 U.S.
140, 148 (2006) (“Where the right to be assisted by counsel of one’s choice is wrongly
denied ... it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish
a Sixth Amendment violation. Deprivation of the right is ‘complete’ when the defendant
MEMORANDUM DECISION AND ORDER - 13
is erroneously prevented from being represented by the lawyer he wants, regardless of the
quality of the representation he received.”).
C.
Petitioner Is Not Entitled to Relief on Claim 3
For two reasons, Petitioner has not met his burden to show that the Idaho Court of
Appeals’ rejection of Claim 3 was unreasonable under § 2254(d). First, the United States
Supreme Court has never held that the Sixth Amendment right to counsel of one’s choice
extends to a probation revocation proceeding. Indeed, because revocation proceedings are
“not a stage of a criminal prosecution,” the Sixth Amendment right to counsel does not
apply to such proceedings at all—at least where, as here, the sentence was imposed,
suspended, and later ordered executed following revocation.4 Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973); see also Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“[T]he
full panoply of rights due a defendant in [a criminal prosecution] does not apply to
[probation or] parole revocations.”). And although the Due Process Clause includes, in
some cases, the right to counsel during revocation proceedings, 5 there is no clearly-
4
The right to counsel does, however, extend to probationers in revocation-and-sentencing
proceedings where the sentence had been deferred, but not actually imposed. Mempa v. Rhay, 389 U.S.
128, 136–37 (1967).
There is no “inflexible constitutional rule” that an attorney must be appointed for indigent
defendants in every probation or parole revocation hearing. Gagnon, 411 U.S. at 790. However, “there
will remain certain cases in which fundamental fairness—the touchstone of due process—will require that
the State provide at its expense counsel for indigent probationers or parolees.” Id. Therefore, whether
there is a right to counsel during a revocation proceeding must be analyzed on a case-by-case basis. Id.
(“[T]he decision as to the need for counsel must be made on a case-by-case basis in the exercise of a
sound discretion by the state authority charged with responsibility for administering the probation and
parole system.”).
5
MEMORANDUM DECISION AND ORDER - 14
established Supreme Court precedent that the Due Process Clause includes a right to
counsel of choice—as opposed to a right to counsel in general—in any such proceeding.
Second, even if the right to counsel-of-choice does apply in probation revocation
proceedings, the Idaho Court of Appeals’ decision—that the trial court’s denial of the
continuance did not violate that right—was not objectively unreasonable under § 2254(d).
The state appellate court analyzed Petitioner’s counsel-of-choice claim as follows:
At the hearing, Ellis sought a continuance in order to obtain
private counsel. Ellis explained that he had spoken to private
counsel who told Ellis to seek a continuance until counsel
was available to represent Ellis in the matter, approximately
eighteen days later....
In this case, it appears the district court believed the motion
for continuance to obtain private counsel was an attempt to
manipulate the proceedings, which is supported by Ellis’s
multiple requests for a continuance at the hearing. The district
court explained that “every time you’ve had a probation
violation where prison is the recommendation you managed
to draw it out into a six, seven, eight month ordeal before you
even go on a rider, and you showed every ability to do that
here again today.” The district court further explained that
Ellis already had an attorney, who was present at the hearing,
and that Ellis’s claim that he wanted private counsel “was
made ... for no other reason than to create delay.” Further,
there was no evidence presented to the district court of any
conflict between Ellis and his counsel supporting his request
for substitute counsel. The district court properly weighed the
factors relevant to Ellis’s case and ultimately exercised its
discretion to deny Ellis’s motion for continuance to obtain
private counsel. Ellis has failed to show that the district court
abused its discretion in denying his motion for continuance to
obtain private counsel, and thus the district court did not err
in denying Ellis’s motion.
(State’s Lodging D-5 at 3-4.)
MEMORANDUM DECISION AND ORDER - 15
The state appellate court was well within its authority to rely on the factual finding
of the trial court that Petitioner’s request for a continuance was made for purposes of
delay. Its adoption of that finding was not unreasonable under AEDPA, and Petitioner
has not rebutted the presumption of correctness found in § 2254(e)(1). Because the law
allows trial courts wide latitude with respect to scheduling, see Morris, 461 U.S. at 11;
see also Vallery, 108 F.3d at 157, the Idaho Court of Appeals reasonably concluded that
Petitioner was not unconstitutionally deprived of his right to counsel of choice—even
assuming such a right applies in revocation proceedings.
2.
Claims 4 and 5: Lack of Notice of Immediate Revocation/Disposition Hearing
Following Admit/Deny Hearing, and Denial of Continuance So Petitioner’s
Witnesses Could Testify
In Claims 4 and 5, Petitioner asserts that he was denied due process when the trial
court failed to notify Petitioner that the hearing would be both an admit/deny hearing and
a revocation/disposition hearing (Claim 4), as well as when the court denied Petitioner’s
motion to continue the disposition proceeding so he could call witnesses on his behalf
(Claim 5). As noted previously, the Idaho Court of Appeals found any error to be
harmless. Because Claims 4 and 5 are closely related, the Court will address them
together.
A.
Relevant Facts
After the evidentiary hearing, the trial court proceeded immediately to the
revocation/disposition stage of the proceedings. Petitioner’s counsel responded that the
defense was not ready for its disposition presentation:
MEMORANDUM DECISION AND ORDER - 16
Mr. Whitaker:
I would like the opportunity, in speaking
with Mr. Ellis, to call a couple of witnesses
on his behalf. Specifically, I’m thinking
about calling his mother and his girlfriend.
His mother’s not here today. I have not been
able to get a hold of her, a so I would ask the
Court to set this out for next week. I can be
prepared to go on Thursday and have my
witnesses all lined up.
The Court:
What is the reason why those witnesses
aren’t here today?
Mr. Whitaker:
Well, Your Honor, this was just simply the
admit/deny hearing on it, and he did deny.
We went directly to evidentiary, and I guess
at this point in time that’s all I can let the
Court know. They just simply are not here.
The Court:
All right. What, as an offer of proof, would
these witnesses testify about?
Mr. Whitaker:
Well, Your Honor, big issue here is the State
is recommending that my client go to prison.
He has a rather lengthy suspended prison
sentence over his head. I think we’re—have
moved away from the retained jurisdiction
portion of that. I am not only going to ask
the Court to modify the sentence, I plan on
asking the Court to place Mr. Ellis on
probation, and, uh, I think that having his
mother, who this court is well aware having
been so close to Mr. Ellis, um, I think I need
her to testify about how well he’s done and
whether she believes that he would be a
threat to the community because that’s one
of the issues—that is the main issue that the
Court has to look at at sentencing, so I do
believe I need her here for some mitigation,
anticipating what the State is going to be
recommending.
....
MEMORANDUM DECISION AND ORDER - 17
The Court:
What specifically would she testify about as
far as not being a threat to the community?
Mr. Whitaker:
Well, Your Honor, I don’t know. I’m
assuming that she—I’m not quite sure, to be
honest with the Court. I think that she can
testify that he has lived with her and, uh, has
seen him in the community. I know there’s
all kinds of allegations that are, I guess for
lack of a better term, hearsay allegations
about him driving, when he’s been driving
whether he’s been drinking alcohol, and I
think that the person who is closest to him
would be relevant to that discussion, and he
also has a—he’s indicating to me, Your
Honor, that he wants to call his sponsor.
The Court:
And what, as an offer of proof, would the
sponsor say?
Mr. Whitaker:
Your Honor, I believe that he has been clean
and been working the steps.
(State’s Lodging A-7 at 17-18.)
The trial court accepted “that everything that’s been said today in the offer of
proof would be proven and would be found as the Court to be true” and denied the
motion for a continuance. (Id. at 18.) The court proceeded to revoke probation and order
execution of Petitioner’s sentences.
B.
Clearly-Established Law
The clearly-established law regarding harmless error is the Chapman standard set
forth above.
MEMORANDUM DECISION AND ORDER - 18
C.
Petitioner Is Not Entitled to Relief on Claims 4 or 5
The state court assumed, without deciding, that the trial court had improperly
proceeded to the disposition stage without providing adequate notice or granting a
continuance for Petitioner to prepare a defense. (State’s Lodging B-5 at 5.) However, the
court held that any due process violation was harmless. In doing so, the Idaho Court of
Appeals correctly relied on the Chapman standard—that the prosecution must prove
harmlessness beyond a reasonable doubt.6 (Id.) (“Where a defendant meets his or her
initial burden of showing that a constitutional violation has occurred, the state has the
burden of demonstrating to the appellate court beyond a reasonable doubt that the
violation did not contribute to the jury’s verdict.”). Thus, the decision was not contrary to
Supreme Court precedent.
Next, the Court considers whether the state court unreasonably applied the
harmless-error standard. The state court analyzed harmlessness as follows:
Even if the district court erred by failing to notify Ellis of the
nature of the proceedings, it was irreversible harmless error
because Ellis was not prejudiced by the absence of his
witnesses. The district court was clear that its decision to
revoke Ellis’s probation and impose the previously suspended
sentences was based entirely upon public safety concerns.
The district court described Ellis’s considerable history of
DUIs and driving without privileges and explained that Ellis’s
sentences were being imposed because Ellis admittedly drove
without privileges. Ellis’s offer of proof, which was accepted
6
Though the court of appeals did not cite Chapman, such citation is not required. See Early v.
Packer, 537 U.S. 3, 8 (2002) (“Avoiding [AEDPA’s] pitfalls does not require citation of our cases—
indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of
the state-court decision contradicts them.”). The Idaho Court of Appeals did cite State v. Perry, an Idaho
case that discussed Chapman. See Perry, 245 P.3d 961, 973 (2010) (“In Idaho, the harmless error test
established in Chapman is now applied to all objected-to error.”).
MEMORANDUM DECISION AND ORDER - 19
by the district court, provided no evidence that he was not a
public safety concern, except Ellis’s mother’s opinion on the
matter. Thus, even if the witnesses had been available and
testified according to Ellis’s offer of proof, Ellis has failed to
show that the testimonies would have had any effect on the
district court’s decision, which was made having accepted the
offer of proof as evidence and having taken the evidence into
consideration when the district court made its ruling.
Therefore, Ellis was not prejudiced and, if the district court
violated Ellis’s due process right, the error was irreversible
harmless error.
(State’s Lodging B-5 at 5-6 (emphasis added).)
The court of appeals’ decision was not objectively unreasonable under
§ 2254(d)(1). The trial court accepted Petitioner’s offer of proof as truth. However,
notwithstanding that evidence, the court stated that the revocation was based entirely on
its concern for public safety, as Petitioner—who had nine DUIs—consistently refused to
refrain from driving without privileges in violation of his probation. Because the court
accepted the offer as established proof, the prosecution proved beyond a reasonable doubt
that the witnesses’ testimony would not have changed the outcome of the
revocation/disposition proceedings, and the court of appeals’ decision on that basis was
reasonable.
Nor has Petitioner established, by clear and convincing evidence, that the court of
appeals’ factual finding as to the district court’s motivation—concern for public safety—
was incorrect or unreasonable.7 At the disposition stage of the hearing, Petitioner made a
7
Petitioner contends that the district court violated the Constitution by relying on alleged hearsay
statements to conclude that protecting the public required revocation of probation. (Reply, Dkt. 63-1, at
19-21.) Because the Sixth Amendment right of confrontation does not apply in probation revocation
proceedings—and, therefore, there is no absolute bar to testimonial hearsay being considered in such
MEMORANDUM DECISION AND ORDER - 20
lengthy statement, and counsel for both sides presented their arguments. After hearing
from all parties, the trial court stated clearly, numerous times, that the decision to revoke
Petitioner’s probation was motivated solely by the desire to keep the community safe:
Mr. Ellis, I am going to revoke your probation ....
....
... I need to make some comments on the various things that
I’ve heard. First of all, this is a decision that is based entirely
on public safety, and you can shake your head and disagree
with me, Mr. Ellis, but that’s the entire reason I’m sending
you to prison. You drove. Judge Gibler told you when you
received the benefit of another felony DUI in 2011 that was
dismissed if you can get into this program, Judge Gibler told
you that, “I don’t have a lot of comfort that you won’t get
behind the wheel. This is a really tough decision for me. I’m
not a hundred percent convinced this is the right decision to
place you back on probation and have you do the mental
health court.” Judge Gibler went out on a huge limb to get
you into this program.
I went out even further the first time you messed up in the
mental health court program and sent you on your third
retained. You can do just fine on a retained, but what you
can’t do, what you’ve shown your inability to do is not get
behind the wheel when you don’t have the ability to do that,
so it’s really entirely about allegation number two which you
admitted to that you committed the misdemeanor crime of
driving without privileges, that’s the reason you’re going to
proceedings—Petitioner appears to allege that the trial court’s consideration of hearsay evidence violated
his right to due process. See United States v. Hall, 419 F.3d 980, 985 (9th Cir. 2005) (“Because
revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of
the conditional liberty properly dependent on observance of special parole restrictions the full protection
provided to criminal defendants, including the Sixth Amendment right to confrontation, does not apply to
them. Rather, a due process standard is used to determine whether hearsay evidence admitted during
revocation proceedings violates a defendant’s rights (internal quotation marks, alteration, and citation
omitted). The Court need not address this issue, as the Amended Petition does not raise such a claim and,
even if it did, the claim would be procedurally defaulted. (See Dkt. 53.)
MEMORANDUM DECISION AND ORDER - 21
prison. You, as [the prosecutor] pointed out, have I think it is
nine prior DUIs that haven’t been dismissed.
You spent it must have been close to an hour speaking, and I
want to thank you for providing evidence of your competence
for the Idaho appellate courts. I have every confidence that
you will appeal my decision today, and I think you’ve done a
great job establishing exactly why your claim that you don’t
understand what’s going on here, this is going way too fast,
all that is simply talk. I specifically find you not to be credible
in those claims. You’ve never once in the three years that I’ve
known you since coming into this program, not once have
you claimed not to be stable on your mental health
medications. Even if you were credible that you’re not feeling
well right now, that’s in fact nothing to do—that’s got
nothing to do with your decision on February 21st, 2013, to
get behind the wheel and drive. Doesn’t have anything to do
with that at all. That’s my finding.
....
This is the only way I can protect the public. We have tried
and tried to do that in the mental health court program, and
you are the reason that that has failed. Nobody else.
(State’s Lodging A-7 at 45-50.)
This recitation fully supports the state appellate court’s conclusion that the trial
court’s revocation decision was motivated entirely by public safety concerns and that
Petitioner suffered no prejudice from not being able to present live testimony at the
disposition hearing.
CONCLUSION
For the foregoing reasons, the Idaho Court of Appeals’ rejection of Claims 3, 4,
and 5 was not unreasonable under § 2254(d), and those claims will be denied. Because
MEMORANDUM DECISION AND ORDER - 22
Claims 1, 2, and 6 through 22 have already been dismissed, judgment will be entered in
favor of Respondent.
ORDER
IT IS ORDERED:
1.
Petitioner is not entitled to habeas relief on Claims 3, 4, and 5—the only
remaining claims. Therefore, the Amended Petition for Writ of Habeas
Corpus (Dkt. 54) is DISMISSED IN PART and DENIED IN PART.
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 intends 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: December 11, 2018
_________________________
B. Lynn Winmill
Chief U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 23
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