Parsons v. Blades

Filing 52

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Petitioners Request for an Evidentiary Hearing (Dkt. 48 ) is DENIED. 2. Petitioners Request for Discovery (Dkt. 49 ) is DENIED. 3. The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED and DI SMISSED with prejudice. 4. 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 David C. Nye. (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
DANIEL DALE PARSONS,
Case No. 1:15-cv-00531-DCN
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
JOSH TEWALT, Director, Idaho
Department of Correction,
Respondent.

Pending before the Court is the Petition for Writ of Habeas Corpus of Idaho state
prisoner Daniel Dale Parsons, Jr. (“Petitioner” or “Parsons”), challenging Petitioner’s
state court convictions. Dkt. 3. The Petition is now fully briefed and ripe for adjudication.
Dkts. 3, 38, 39.
The Court previously determined that Claims 6 and 7 were procedurally defaulted.
Dkt. 33. The Court did not dismiss those claims to permit Petitioner to show cause and
prejudice. In response to the Petition, Respondent argues that additional claims are
procedurally defaulted: Claims 3(b), 3(e), 4(d), 4(e), and 5(c). Dkt. 38 at 11-14. The
Court also identifies Claim 4(c) as potentially procedurally defaulted because it mirrors
Claim 3(e). Respondent also argues that all of Petitioner’s claims fail on the merits, under
either deferential or de novo review. Id. at 22-73.
The Court takes judicial notice of the parties’ lodging of the records from
Petitioner’s state court proceedings. 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,
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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 and dismissing the Petition for Writ of Habeas Corpus.
BACKGROUND
Petitioner and his wife, Felicia Parsons (“Felicia”), lived in Winnemucca, Nevada.
In October 2010 they decided to take a trip to Idaho. The couple drove Petitioner’s 2005
silver Mazda RX-8 sports car, equipped with disguises, walkie talkies, a police scanner,
and a loaded gun, to Boise, Idaho. They later described the purpose of their trip as a
“vacation.”
On October 18, 2010, at 1:45 a.m., the couple checked into a local hotel without
reservations. Even though they had driven to Idaho from Nevada in their own car,
Petitioner had made a one-day reservation for a rental vehicle (a black minivan) from
Enterprise Rent-a-Car. At about 8:51 a.m., the couple picked up the black minivan, which
bore Connecticut license plates.
At 1:15 p.m., they checked out of the hotel. Felicia was wearing what she
described as a “Muslim costume.” Petitioner and Felicia drove the black minivan to a
KeyBank branch on Overland Road in Meridian, Idaho.
At about 2:30 p.m., as Felicia approached the bank, Keisha Bloxham, a bank
employee, was just returning from lunch and pulled into the bank parking lot. Bloxham
had been trained to notice out-of-the-ordinary clothing and circumstances. Bloxham
immediately noticed Felicia walking toward the bank wearing unusual clothing—a dark
hat, sunglasses, and a large scarf or shawl. Bloxham purposely stayed in her car. She
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called in to the bank to see if anything had occurred, but she was put on hold. She saw
Felicia exit the bank and quickly walk to what Bloxham described as a “navy blue”
minivan with Connecticut plates that was waiting in front of a dumpster. Bloxham
described the driver of the minivan as a 50-ish balding man, about 250 to 300 pounds.
The minivan left the parking lot once Felicia got inside.
At 2:49 p.m., the couple returned to the same hotel and checked into a different
room. They returned the black minivan at 8:04 a.m. on October 19, 2010.
On their third day in Idaho, October 20, 2010, Petitioner and Felicia checked out
of the hotel at 1:48 p.m. and headed toward a different KeyBank branch, on Broadway
Road in Boise, Idaho, in their own silver sports car. Petitioner did not park in the parking
lot, but behind a fence near the bank. Twenty minutes after checking out of the hotel,
Felicia—in a different wig, sunglasses, gloves, and baggy clothing—entered the bank
carrying a tote and a plastic “superman” bag and concealing her loaded weapon. She
handed a note to the teller, Paul Lucareillo, that said, “WE HAVE GUNS! MONEY IN
BAG!” The teller gave Felicia about $1,791 in cash , including marked bills and a police
tracker, which consists of two $20 bills that are sealed together with a computer chip
inside.
Felicia ran out of the bank, returning to the car with the cash and the tracker. She
shouted, “Go, go, go.” Petitioner sped away and merged onto the Interstate.
After the two entered the Interstate, Meridian Police Department Corporal Terry
Hodges began getting signals from the police tracker. Hodges noticed the tracker signal
was being emitted from either a blue minivan (not to be confused with the earlier black or
MEMORANDUM DECISION AND ORDER - 3

“navy” rented minivan that had been returned to the rental company the previous day) or
a silver sports car (carrying Petitioner and Felicia). Hodges activated his overhead police
car lights behind the two cars, and, initially, both pulled over.
As Hodges got out of his vehicle to check the cars, the silver sports car
immediately sped away. Petitioner and Felicia were unaware that, by that time, not one,
but several, police cars were involved in trying to apprehend them. The state district court
described what happened next—a situation which resulted in the charge of evading law
enforcement officers:
A high speed chase ensues. This high speed chase puts many
people at risk. At one point Parsons suddenly leaves I-84 and
the chase continues in Meridian. Parsons is on a two-lane
road and attaining speeds of up to 90 m.p.h. He crosses into
on-coming traffic several times. Police deploy spikes and
finally the Parsons leave the roadways at a high rate of speed
(calculated at 100 m.p.h. when it left the pavement) and crash
in a residential yard, having gone through a wooden fence and
landing on the vehicle’s roof—just missing children’s swings.
The Parsons are injured and Parsons’ wife immediately
admits to being the robber. She tells police that he did nothing
and it was all her. In the vehicle, the police find a scanner and
a loaded gun with one bullet in the chamber. They also find
the stolen money. In the trunk, other disguises could be seen.
Both Parsons were transported to the hospital where Parsons’
wife admitted to the two incidents and admitted to several
bank robberies in prior years where the robberies were
performed similarly—female in wigs, gloves, concealing
clothes, and sunglasses using a similar note....
State’s Lodging C-1 at 507-08.
Petitioner and Felicia were charged with crimes in the Fourth Judicial District
Court in Boise, Ada County, Idaho. Felicia was charged with robbery for the October 20

MEMORANDUM DECISION AND ORDER - 4

Boise KeyBank incident, as well as another count of robbery. See Felicia Parsons v.
State, No. 40585, 2014 WL 2535193, at *1 (Idaho Ct. App. June 2, 2014).1 Petitioner was
charged with aiding and abetting the October 20th robbery and eluding a police officer,
along with a persistent violator enhancement. State’s Lodging B-4 at 1-2. Before her trial,
Felicia pleaded guilty. Petitioner chose to proceed to trial.
Attorney Laurence Smith of the county public defender’s office, who had about 20
years of criminal defense experience at the time, was appointed to represent Petitioner at
trial. Dkt. A-3 at 23. Smith passed away after Petitioner’s trial and thus was unavailable
for a deposition or affidavit concerning his trial strategy or other questions about how he
conducted Petitioner’s defense.
It is clear from the record that Smith decided upon a defense theory of
demonstrating that the State did not sufficiently prove beyond a reasonable doubt that
Petitioner had aided and abetted Felicia in robbing the Boise KeyBank. Smith decided (1)
not to put on Petitioner to testify, (2) to try to keep Felicia from testifying, (3) to have
Felicia’s out-of-court statements tending to exonerate Petitioner be admitted or at least
heard by the jury, and (4) not to put on any defense witnesses but to attack the
prosecution’s case via cross-examination. In particular, Petitioner’s counsel’s crossexamination of the state’s witnesses reveals that his strategy was to place all the blame on
Felicia, and to put the prosecution to its burden of showing that Petitioner was actually

1

The district court sentenced Felicia Parsons to consecutive unified terms of thirty-eight years, with a
determinate period of confinement of eighteen years.

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aware of what Felicia intended when she entered the second KeyBank on October 20,
2010.
Although Petitioner was not charged with a crime stemming from the October 18
attempted robbery, evidence of that incident was introduced by the prosecution for the
purpose of establishing that, on the second occasion, Petitioner had ample notice that
Felicia intended to rob the bank.
The jury found Petitioner guilty of both charges and, in a separate phase of the
trial, determined that he was a persistent violator. Petitioner was sentenced to two
consecutive terms of life imprisonment without the possibility of parole. State’s Lodging
D-5 at 2. The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied
review. State’s Lodgings B-4, B-6.
STANDARDS OF LAW FOR REVIEW OF MERITS
Because disposition of some of the properly-exhausted claims on the merits bears
on disposition of several of the procedurally-defaulted claims, the Court will first review
the merits of those claim that are properly exhausted.
1. AEDPA Deferential Review Standard
Federal habeas corpus relief may be granted where a petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). A challenge to a state court judgment that addressed the merits of any federal
claims is governed by Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).

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The AEDPA limits relief to instances where the state court’s adjudication of the
petitioner’s claim:
1.

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

2.

resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the state court’s 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 v. Cone, 535 U.S. 685, 694 (2002).
If fairminded jurists could disagree on the correctness of the state court’s decision, then
relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 101
(2011). The Supreme Court emphasized that “even a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.” Id. (internal citation omitted).
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. 1999).
However, circuit law may not be used “to refine or sharpen a general principle of

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Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
2. De Novo Review Standard
In some instances AEDPA deferential review under § 2254(d)(1) does not apply:
(1) if the state appellate court did not decide a properly-asserted federal claim, (2) if the
state court’s factual findings are unreasonable under § 2254(d)(2), or (3) if an adequate
excuse for the procedural default of a claim exists. In such instances, the federal district
court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
As in the pre-AEDPA era, a district court can draw from both United States Supreme
Court and well as circuit precedent, limited only by the non-retroactivity rule of Teague
v. Lane, 489 U.S. 288 (1989).
Under de novo review, if the factual findings of the state court are not
unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. §
2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a
state court factual determination is unreasonable, or if there are no state court factual
findings, the federal court is not limited by § 2254(e)(1), the federal district court may
consider evidence outside the state court record, except to the extent that § 2254(e)(2)
might apply. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
3. Harmless Error Standard
Generally, even if a petitioner succeeds in demonstrating a constitutional error in
his conviction, he is entitled to federal habeas relief only if the petitioner “can establish
that [the error] resulted in ‘actual prejudice.’” Brecht v. Abrahamson, 507 U.S. 619, 637
MEMORANDUM DECISION AND ORDER - 8

(1993). Under the Brecht standard, 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 jury’s verdict.”
O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).
However, some types of claims “are analyzed under their own harmless error [or
prejudice] standards, which can render Brecht analysis unnecessary.” Jackson v. Brown,
513 F.3d 1057, 1070 (9th Cir. 2008). Ineffective assistance of counsel claims are
included in this category. Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009).
REVIEW OF PROPERLY-EXHAUSTED CLAIMS ON MERITS
1. Discussion of Claim 1
A. Ineffective Assistance of Counsel Standard of Law
The Sixth Amendment to the United States Constitution provides a right to
effective assistance of counsel for criminal defendants. The case of Strickland v.
Washington, 466 U.S. 668 (1984), is clearly-established law setting forth two necessary
prongs for a petitioner to show ineffective assistance: (1) that “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment,” and (2) those errors “deprive[d] the defendant of a fair trial, a trial
whose result is reliable.” Id. at 687. Under Strickland, a petitioner must establish both
deficient performance and prejudice to prove an ineffective assistance of counsel claim.
Id. at 697. On habeas review, the court may consider either prong of the Strickland test
first, or it may address both prongs, even if one is deficient and will compel denial. Id.

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Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of which witnesses or other evidence to
present, “are virtually unchallengeable” if “made after thorough investigation of law and
facts relevant to plausible options.” Id. at 690. Moreover, an attorney who decides not to
investigate a potential defense theory is not ineffective so long as the decision to forego
investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
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reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91. Further, counsel is not deficient in an area where an investigation would
not have been fruitful for the defense.
The Ninth Circuit has provided some insight into the Strickland standard when
evaluating an attorney’s “strategy calls.” First, tactical decisions do not constitute
ineffective assistance simply because, in retrospect, better tactics are known to have been
available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Second, a mere
difference of opinion as to tactics does not render counsel’s assistance ineffective. United
States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Third, “counsel’s investigation must
determine trial strategy, not the other way around.” Weeden v. Johnson, 854 F.3d 1063,
1070 (9th Cir. 2017) (“Weeden’s counsel could not have reasonably concluded that
obtaining a psychological examination would conflict with his trial strategy without first
knowing what such an examination would reveal.”).
Finally, Strickland gives a trial attorney wide discretion with respect to choosing
or abandoning a particular defense. See Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir.
1998) (holding that counsel’s failure to develop a mens rea defense was reasonable
because such a defense “would have conflicted with the primary defense theory of
misidentification”); Turk v. White, 116 F.3d, 1264, 1267 (9th Cir. 1997) (counsel’s
selection of self-defense theory was reasonable and obviated his need to investigate

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defendant’s claim of incompetency).
A petitioner must show not only that counsel’s performance was deficient, but also
the petitioner was prejudiced by that performance. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691.
To satisfy the prejudice standard, a petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. As the Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. at 112.
The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims

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on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Harrington v. Richter, 562 U.S. 86, 101 (2011). That is, when evaluating an IAC claim
that the state court adjudicated on the merits, a federal district court’s review of that
claim, under § 2254(d), must be “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170,
190 (2011) (internal quotation marks omitted).
B. Discussion of Claim 1
Claim 1 is that defense counsel Laurence Smith performed ineffectively when he
failed to interview and subpoena Felicia Parsons as a defense witness at trial. One of the
elements the prosecution had to prove to convict Petitioner of aiding and abetting a crime
is that a crime was committed. Prior to Petitioner’s trial, Felicia pleaded guilty to
robbery.
There is no question that Felicia’s conviction was admissible and was going to be
admitted at Petitioner’s trial—either by testimony or stipulation. State’s Lodging D-4 at
28. The question before the Court is whether Smith performed adequately in deciding

MEMORANDUM DECISION AND ORDER - 13

how to have that evidence admitted. Smith’s overall defense strategy was to show that the
prosecution could not prove Petitioner was involved in the robbery on October 20th. In
his opening statement Smith asserted: “One thing that I believe is going to be profoundly
evident by the end of this case is that you’ll never hear any evidence whatsoever that Mr.
Parsons was ever inside the bank, never brandished a gun and never handed anybody a
note.” State’s Lodging A-3 at 155.
Petitioner argues that Smith’s performance was deficient simply because he
because he failed to actually interview Felicia before choosing not to call her as a
witness. Rather than interview Felicia, Smith evaluated information from other attorneys
about Felicia’s potential trial testimony.
Smith had two letters from the prosecutor. On April 22, 2011, after meeting with
Felicia, Prosecutor Shawna Dunn wrote a letter to Smith pursuant to Brady v. Maryland,
373 U.S. 83 (1963), containing the following information: (1) Felicia said that Petitioner
did not know about the robbery until after police attempted to stop them, at which time
Felicia pointed the gun at the ceiling and told him she had robbed a bank; (2) Felicia
climbed into the backseat of the car and began to point the gun at police; (3) Petitioner
was not at the attempted robbery on October 18; (4) Felicia did not threaten Petitioner or
point the gun at him; and (5) Petitioner’s decision to drive was voluntary. State’s Lodging
C-1 at 249-50.
On April 28, 2011, after meeting with Felicia a second time, Dunn wrote a second
letter to Smith containing the following changed version of Felicia’s story: (1) Felicia
dressed in “character” at the hotel and traveled to the bank already wearing the wig; (2)
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Petitioner knew where to park; (3) Petitioner was aware that she was going to rob the
bank prior to her completion of the act; (4) Petitioner did not know she had the gun until
after the robbery; (5) it was Felicia’s idea to rob the bank; (6) she was counting the
money when they saw the police officer’s lights; (7) she did not threaten Petitioner nor
point the gun at him; and (8) Petitioner’s decision to drive was voluntary. State’s Lodging
C-1 at 251-52. Smith also spoke to Felicia’s defense counsel about Felicia’s proposed
trial testimony.
In addition, Smith had Felicia’s comprehensive voluntary hospital interview with
police investigators Wigington and Ayotte. See State’s Lodging C-1 at 300-56. That
interview is described in detail in the discussion of Claim 2 below. Importantly, Felicia
never mentioned putting a gun to Petitioner’s head or forcing him to participate in the
robbery in that interview. Prosecutors most certainly would have used the lack of any
mention of force in the hospital interview to cross-examine Felicia had she testified
contrarily at trial.
After evaluating all the foregoing, Smith wrote a letter to Petitioner explaining:
In addition to conversations I had with the State’s attorneys, I
spoke for approximately 30 minutes with Mr. Ellsworth,
Felicia’s attorney. Felicia will not be called in the State’s case
in chief. She will only be called by the State as a rebuttal
witness if YOU choose to testify, and then only with respect
to what transpired after police attempted to initiate a stop. She
will testify that she did not threaten you, did not point the gun
at you, and that you drove the vehicle voluntarily.
Felicia does not want to testify against you. HOWEVER, it is
very clear to me that if WE call her to testify, we will not only
open to door to any questions the State may wish to ask, but
also, Felicia will testify that she was in costume when you
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drove to the bank. Because that testimony, coupled with your
driving away at very high rates of speed will establish the
elements of Aiding and Abetting Robbery, it is my intention
NOT to call Felicia as a witness.
State’s Lodging C-1 at 253 (capitalization in original).
Petitioner’s argument rests on the fact that on August 17, 2012—after Petitioner’s
trial and after Felicia had been sentenced for the robbery—Petitioner drafted an affidavit
that Felicia signed and had notarized, stating:
(1) That, I Felicia E. Parsons, did attack and threaten to kill
Daniel Parsons, October 20, 2010.
(2) That, I Felicia E. Parsons, did stick a gun to Daniel
Parsons head and demand for him to drive, instead of
pulling over for police on the freeway after the robbery of
Key Bank, on October 20, 2010. That Daniel Parsons had
no knowledge before of said robbery, of my intent.
State’s Lodging C-1 at 216.
When reviewing Claim 1 on post-conviction appeal, the Idaho Court of Appeals
concluded that, based on the facts known to Smith before trial, he performed an adequate
investigation of Felicia’s potential testimony before deciding whether to call her as a
witness. Id. at 7. The Idaho Court of Appeals concluded that Smith’s decision not to call
Felicia as a witness was “a reasoned tactical decision designed to avoid opening the door
to introduction of incriminating evidence.” Id. That is, Smith determined what Felicia’s
testimony would be and decided that it would not benefit Petitioner. That Petitioner was
able to produce a “post-hoc and contradictory affidavit” from Felicia after trial did not
sway the Idaho Court of Appeals, because trial counsel’s decisions are evaluated “based
on the evidence available at the time of the trial.” Id., citing Strickland, 466 U.S. at 689.
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This Court agrees. Though Smith did not interview Felicia himself, there is
nothing contemporaneous in the record showing that he could not rely on Felicia’s own
attorney’s representation of her potential testimony. Smith did not do everything he could
have done, but he did enough to satisfy the standard for effective assistance. Importantly,
the two interviews the prosecutor had with Felicia showed her potential to change her
testimony from one story to another. Smith had to calculate whether—even though
Felicia might have testified favorably—the negative facts still might have emerged
unintentionally from Felicia under intense cross-examination by the prosecutor. Smith
was not required to do any further investigation into what Felicia might have testified to
at trial. See Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” (emphasis added)); Mulligan v. Kemp, 771 F.2d 1436, 1443 (11th Cir.
1985) (“Although it would have been wiser to interview each of the state’s eyewitnesses
..., we cannot conclude on this record that [trial counsel’s] conversations with the
prosecutor and his prepared cross-examination f[ell] below the ‘reasonable substantial
investigation’ standard.”).
Far from being ineffective, Smith carefully and effectively chose quite an
ingenious way to have the jury hear most of Felicia’s helpful statements and to foreclose
the possibility that her harmful statements would reach the jury. That plan was to (1) have
only the fact of Felicia’s conviction be known to the jury via a stipulated jury instruction;
(2) have the jury be able to hear the police audio where Felicia takes responsibility for the
robbery and the gun; and (3) have the police officer who interviewed her at the hospital
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repeat what Felicia said that was helpful to Petitioner’s case, without risking any crossexamination of Felicia herself. As set forth elsewhere herein, the trial transcript reflects
that, as Smith planned, the jury did, in fact, hear most of Felicia’s helpful out-of-court
statements and heard very few harmful statements.
Accordingly, based on the analysis above, this Court concludes that under deferential
review of § 2254(d) or de novo review, Claim 1 fails under Strickland and is subject to
denial and dismissal with prejudice.
2. Discussion of Claim 2
Claim 2 is that Smith was ineffective for failing to investigate and pursue a
“necessity” defense and request a necessity instruction. Petitioner asserts that this was
“the only possible defense.” Dkt. 3 at 10-11.
To qualify for a jury instruction for Idaho’s common law necessity defense, the
defendant must present some evidence of four elements: “(1) a specific threat of
immediate harm; (2) the circumstances which necessitate the illegal act must not have
been brought about by the defendant; (3) the same objective could not have been
accomplished by a less offensive alternative available to the actor; and (4) the harm
caused was not disproportionate to the harm avoided.” State’s Lodging D-5 at 6.
In determining whether to admit evidence related to a defense, a trial court should
‘“focus on the probative value or the potential adverse effects of admitting the defense
evidence’ instead of focusing on the strength of the prosecution’s case.” Holmes v. South
Carolina, 547 U.S. 319, 329-31 (2006). Doing so ensures that the trial court does not
violate a defendant’s federal due process right to have “a meaningful opportunity to
MEMORANDUM DECISION AND ORDER - 18

present a complete defense.” Id.
The Idaho Court of Appeals’ rejection of Petitioner’s affirmative defense claim
was simple and straightforward. The court found that the only evidence in the record that
supported Petitioner’s claim was the post-trial, post-sentencing affidavit of Felicia that
was prepared by Petitioner. State’s Lodging C-5 at 5. The affidavit was not available to
trial counsel before trial. Felicia had not admitted to threatening Petitioner with harm in
either interview with the prosecutor, in conversation with her own attorney, or in her
hospital confession interview with police investigators. “Thus, as noted by the district
court, no reasonable view of the evidence available at the time of Parsons’ trial supported
the giving of a necessity instruction,” the Idaho Court of Appeals concluded. Id. at 6.
Petitioner points to other portions of Felicia’s hospital confession describing how
the robbery was all her own doing: “I told him I wanted him to go on vacation with me. I
told him I needed him to drive me. And I had to fight and argue with him. I told him that
he was going to drive…drive me…be my driver or I was going to find somebody else to
do it….Or I was going to do it without him.” State’s Lodging C-1 at 343-44. Felicia also
told investigators that Petitioner “[did] not really [go willingly with her to the bank], but
he did it for [her].” Id. at 307. She repeated, “This is none of his doing. It’s mine…. It
was all my doing. This is not his doing, it is my doing…. He was just driving for me.” Id.
at 249. She emphasized many times that Petitioner “has never robbed any banks,” and
pleaded, “Let him go….just let him go.” Id. at 325-27. This portion of the statement does
not support a necessity defense because there is no specific threat of immediate harm.
In the hospital confession, Felicia also described the circumstances when the
MEMORANDUM DECISION AND ORDER - 19

couple began to flee the police; again, no threat of harm to Petitioner is evident:
Uhm…all of a sudden we were like…the cops are after us.
We (get away) [note that this part was unintelligible to
transcriber] and…and he was pulling over and I told him not
to pull over…keep going. And so when we went to stop he
decided to keep going and the [sic] I jumped in the back and
pulled out my gun and he told me, “Don’t shoot nobody.
Don’t shoot nobody. Put that gun away. Don’t shoot nobody.”
State’s Lodging C-1 at 314. When specifically asked if she had pointed the gun at
anyone, Felicia said, “I pointed it at all the cops that were coming towards me.” State’s
Lodging C-1 at 314. None of Felicia’s hospital confession supports a necessity defense.
Further, nothing in the hospital confession statement shows that Felicia was
holding back any information. For example, at the start of her statement, Felicia said she
understood that the investigators didn’t “want any bullshit,” and wanted her to tell the
truth and “[not] fuck around.” Id. at 328. At the end of her statement, she emphasized
twice, “I gave you ever…everything. I gave you everything.” Id. at 355. Surely, if Felicia
had evidence of threats of harm to Petitioner, she would have included it in her
comprehensive statement.
This Court agrees with the Idaho Court of Appeals that the post-trial affidavit
drafted by Petitioner does not support his ineffective assistance of trial counsel claim,
which is to be judged on what is known at the time of trial. This Court disagrees with
Petitioner that anything in the record before trial showed that Felicia threatened Petitioner
to the degree that it would provide a basis for a necessity defense.
Accordingly, Smith made a reasonable tactical decision not to pursue a necessity
defense or request a necessity instruction. Not only was the decision of the Idaho Court of
MEMORANDUM DECISION AND ORDER - 20

Appeals reasonable under § 2254(d), but the Court also rejects these claims under de
novo review on the grounds set forth above.
3. Discussion of Claim 3(a)
Claim 3(a) is that Petitioner was denied his rights to due process and effective
assistance of counsel when trial counsel failed to request a jury instruction on the “rules
of law … material to the affirmative defense in order for the jury to make a determination
of Mr. Parson’s guilt or innocence.” Dkt. 3 at 12 (spelling regularized). This error,
Petitioner asserts, denied him the “the ability to present his theory of the case.” Id.
The Idaho Court of Appeals construed this claim as challenging the lack of a
necessity instruction. As explained above, a necessity instruction was not warranted
because insufficient facts supported such a defense.
Generally, claims of error in jury instructions are matters of state law. See
Williams v. Calderon, 52 F.3d 1465, 1480–81 (9th Cir. 1995). In particular, the United
States Supreme Court has held that the due process guarantee of In re Winship, 397 U.S.
358 (1970), does not apply to affirmative defenses. Gilmore v. Taylor, 508 U.S. 333,
343–44 (1993).
Failure to give a jury instruction warranted under state law does not by itself merit
federal habeas relief. Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005).2 Such
an error becomes a federal issue only when the error creates a broader situation in which
a criminal defendant is deprived of his due process right to present the defense of his

2

Even if a jury instruction error is only a matter of state law, it still can form the factual basis of a federal
ineffective assistance of counsel claim.

MEMORANDUM DECISION AND ORDER - 21

choice to the jury. Federal law is clear that a criminal defendant “is entitled to an
instruction as to any recognized defense for which there exists evidence sufficient for a
reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988)
(emphasis added).
When the alleged error involves the failure to give an instruction, the petitioner’s
burden is especially heavy because “[a]n omission ... of an instruction is less likely to be
prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155
(1977). To warrant habeas relief on this basis, a petitioner must show that the alleged
instructional error had a “substantial and injurious effect or influence in determining the
jury’s verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); see also Byrd v.
Lewis, 566 F.3d 855, 860 (9th Cir. 2009) (noting that the “substantial and injurious
effect” test applies to the trial court’s erroneous failure to provide a jury instruction on
the defense theory); Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002) (same). A
“substantial and injurious effect” in this context means a “reasonable probability” that the
jury would have reached a different verdict had the defense instruction been given. Byrd,
566 F.3d at 860.
The Idaho Court of Appeals treated Claim 3(a) and the necessity instruction claim
as a state law issue, citing six different state cases as the governing standards of law.
State’s Lodging D-5 at 5-6. As noted above, Plaintiff has not only this hurdle to
overcome, but the hurdle that it is an instruction omitted rather than an erroneous
instruction given.

MEMORANDUM DECISION AND ORDER - 22

Petitioner argues that several other items should have been introduced at trial to
add to the weight of evidence that a “necessity” instruction was required. For example,
criminalists could find no fingerprints on the scanner that was found in Petitioner’s car.
Petitioner asserts that this “non-finding” supports his position that he did not commit the
crime of aiding and abetting. Petitioner refuses to accept the fact that a “non-finding” as
to who touched the scanner is not the equivalent of a “finding” that no one touched the
scanner. Similarly, he argues that his fingerprints were not found on the gun.
However, the prosecution did not charge Petitioner with robbery, but with aiding
and abetting robbery. No one asserted that Petitioner touched the scanner or the gun.
Touching the scanner or the gun were not necessary elements of aiding and abetting a
robbery. Felicia’s self-described “no bullshit” statement to investigators while she was in
the hospital, plainly laid out that she, alone, touched the gun, and that it was her idea,
alone, to rob the bank. The scanner and gun evidence would not have substantially aided
Petitioner’s necessity defense.
Accordingly, Claim 3(a) fails under a federal due process theory because there
was insufficient evidence to support the giving of this affirmative defense instruction.
The lack of the jury instruction did not have a “substantial and injurious effect or
influence in determining the jury’s verdict,” given the dearth of evidence that Felicia
forced Petitioner via threat of harm to participate in the robbery.
For the same reasons, Claim 3(a) fails as a Sixth Amendment ineffective
assistance of trial counsel claim. Had Smith requested a necessity instruction, the district
court would not have given it. Petitioner is looking at the set of facts from hindsight and
MEMORANDUM DECISION AND ORDER - 23

from only his point of view. Reviewing the entire record in this case, this Court finds
that, contrary to Petitioner’s point of view, the evidence against him is overwhelming
(borrowing the state court’s description), to the degree that Petitioner’s arguments seem
frivolous. Therefore, there is neither deficient performance nor prejudice to his defense.
For all of these reasons, Claim 3(a) will be denied and dismissed with prejudice.
4. Discussion of Claim 3(c)
Claim 3(c) challenges Smith’s failure to object to the phrase “mere knowledge” in
Jury Instruction No. 15, the aiding and abetting instruction, which provided as follows:
The law makes no distinction between a person who
directly participates in the acts constituting a crime and a
person who, either before or during its commission,
intentionally aids, assists, facilitates, promotes, encourages,
counsels, solicits, invites, helps or hires another to commit a
crime with intent to promote or assist in its commission. Both
can be found guilty of the crime. Mere presence at,
acquiescence in, or silent consent to, the planning or
commission of a crime is not sufficient to make one an
accomplice.
All persons who participate in a crime either before or
during its commission, by intentionally aiding, abetting,
advising, hiring, counseling, or procuring another to commit
the crime with intent to promote or assist in its commission
are guilty of the crime. All such participants are considered
principals in the commission of the crime. Participation of
each defendant in the crime must be proved beyond a
reasonable doubt.
State’s Lodging A-1 at 200 (emphasis added).
Petitioner asserts that Smith should have requested the following language: “mere
knowledge of a crime and assent or acquiescence in its commission does not give rise to
accomplice liability,” in place of the italicized language in Instruction No. 15 above. Dkt.

MEMORANDUM DECISION AND ORDER - 24

3 at 12.
Though the Idaho Court of Appeals indirectly touched upon Claim 3(c) in its
discussion of Claim 3(f), it did not squarely address Claim 3(c). However, “[w]hen 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.” Richter, 562 U.S. at 99.
Therefore, the Court will presume that Claim 3(c) was denied on the merits. Richter
instructs that, in this circumstance, the federal district court should consider the theories
that could support the state court’s rejection of the claim and determine whether
fairminded jurists could disagree. Id. at 102.
Several theories could have supported the Idaho courts’ rejection of Claim 3(c).
One is is that Smith did not perform deficiently because Instruction No. 15 already
conveyed the essence of Petitioner’s desired “mere knowledge” instruction. A
comparison of the two sentences establishes that fairminded jurists could determine that
the two instructions are so similar that Smith’s decision not to request an additional
“mere knowledge” instruction was objectively reasonable. Petitioner’s desired
instruction—“mere knowledge of a crime and assent or acquiescence in its commission
does not give rise to accomplice liability”—is only slightly different from the instruction
that was actually given—“Mere presence at, acquiescence in, or silent consent to, the
planning or commission of a crime is not sufficient to make one an accomplice.” State’s
Lodging A-1 at 200.
A more likely theory is that the instruction given implicitly provided the jury with
MEMORANDUM DECISION AND ORDER - 25

the theory Petitioner advances. Dkt. 38, at 32-34. If “[m]ere presence at, acquiescence in,
or silent consent to, the planning or commission of a crime” is insufficient for accomplice
liability, then “mere knowledge” is similarly insufficient because acquiescence and
consent presuppose and are greater than mere knowledge. Therefore, the given
instruction covered the concept embodied in Petitioner’s desired instruction.
Under any theory, the Idaho Court of Appeals’ opinion implicitly denying this
claim on the merits is not contrary to United States Supreme Court precedent. Nor does
the claim succeed under de novo review. Because the instruction was already clear that if
Petitioner’s actions did not rise to the level of mere acquiescence or silent consent, then it
was implicit that something less than acquiescence or consent—knowledge—would not
be enough. This claim is subject to denial and dismissal with prejudice.
5.

Discussion of Claim 3(d)
Claim 3(d) is that Smith was ineffective for stipulating to Felicia’s robbery

conviction in Jury Instruction No. 3 without Petitioner’s informed consent. The narrow
foundational question at issue is whether stipulating to Jury Instruction No. 3 was a
matter of strategy falling outside the category of “important decisions” reserved for the
defendant to make.
“An attorney undoubtedly has a duty to consult with the client regarding
‘important decisions,’ including questions of overarching defense strategy.” Florida v.
Nixon, 543 U.S. 175, 187 (2004). A defendant “has the ultimate authority to determine
whether to plead guilty, waive a jury, testify in his own behalf, or take an appeal,” and

MEMORANDUM DECISION AND ORDER - 26

thus defense counsel “must both consult with the defendant and obtain consent to the
recommended court of action.” Id. (internal citations and quotation marks omitted).
Under this case law, a defense attorney is obliged to explain his proposed trial
strategy to the defendant. Id. at 189. The Court will assume that Smith did not explain his
proposed strategy to Defendant until three days before trial, because that disclosure
prompted Defendant to want to fire Smith (see discussion of Claims 5(a)(ii) and 5(a)(vii)
herein below). Within Smith’s strategy, determining the manner in which Felicia’s
confession would be admitted into evidence clearly is not an “important decision” that
Defendant was entitled to make, as defined by Nixon, but was a tactical consideration for
Smith.
Assuming that Smith’s late disclosure of his proposed trial strategy to Petitioner
was deficient performance, this Court nevertheless concludes that Smith’s decision to
stipulate to the entry into evidence of Felicia’s conviction via a stipulated jury instruction
and to elicit helpful statements of Felicia via other witnesses’ testimony was sound and
effective trial strategy under the circumstances. There is no prejudice associated with this
claim. It will be denied and dismissed with prejudice under all theories.
6. Discussion of Claim 3(f)
Claim 3(f) concerns a question the jury asked the trial court during deliberations,
as explained by the presiding judge:
They want to know on Instruction No. 15 can you clarify the
term during, when does the commission of the robbery end,
when does the commission of robbery begin. And the answer
that I intend to give the jury is that they need to reread the
instruction.
MEMORANDUM DECISION AND ORDER - 27

State’s Lodging A-3 at 612.
Both counsel agreed with the trial court’s suggested course of action. Id.
Petitioner’s trial counsel “stated his desire not to define “during” unnecessarily and
preferred the instructions as given.” Id.
Petitioner challenges the court’s and his counsel’s action regarding Jury
Instruction No. 15, which provided as follows:
The law makes no distinction between a person who directly
participates in the acts constituting a crime and a person who,
either before or during its commission, intentionally aids,
assists, facilitates, promotes, encourages, counsels, solicits,
invites, helps or hires another to commit a crime with intent
to promote or assist in its commission. Both can be found
guilty of the crime. Mere presence at, acquiescence in, or
silent consent to, the planning or commission of a crime is not
sufficient to make one an accomplice.
All persons who participate in a crime either before or during
its commission, by intentionally aiding, abetting, advising,
hiring, counseling, or procuring another to commit the crime
with intent to promote or assist in its commission are guilty of
the crime. All such participants are considered principals in
the commission of the crime. Participation of each defendant
in the crime must be proved beyond a reasonable doubt.
State’s Lodging A-1 at 200 (emphasis added).
Petitioner argued on appeal that “his trial counsel should have asked the district
court to instruct the jury that a robbery only occurs while the robber is taking the property
of another.” He asserted that had “the district court given this information, he would have
been acquitted because he participated only after the robbery took place.” Id. However,
this suggestion conflicts with the word “before” in the same jury instruction.

MEMORANDUM DECISION AND ORDER - 28

The Idaho Court of Appeals turned to the record, which shows that the district
court “noted that substantial evidence … was presented in support of Parson’s
involvement before the robbery.” State’s Lodging D-5 at 9. In fact, “the district court
noted that there was ‘virtually no evidence to suggest [Parsons] was doing anything other
than aiding and abetting his wife; any suggestion that he did not know what he was up to
is inconceivable.’” Id. at 9.
In Idaho, whether and how a trial court responds to a jury question during
deliberations is a matter within that court’s discretion. “The grant of discretion is
premised on the assumption that the instructions as given are clear, direct, and proper
statements of the law.” The Court of Appeals explained that, “if a point of law correctly
and adequately covered in a given instruction,” the trial court has no duty to further
instruct the jury. Id. at 9. However, if there is “a defect, ambiguity or gap in the
instructions,” the trial court does have a duty to further instruction “to alleviate the jury’s
doubt or confusion.” Id. at 10.
The Idaho Court of Appeals held that summary dismissal of this claim was proper,
because Petitioner had not shown that there was a defect, ambiguity, or gap in the
instruction. Therefore, Smith’s “failure to recommend an additional instruction under
such circumstances cannot constitute ineffective assistance of counsel.” Id.
This Court agrees. Counsel adequately exercised his strategic judgment to let the
instruction stand—for example, the jurors’ disagreement on how to interpret “during”
might have led to acquittal if not all could agree on what the instruction meant. That the
jury did convict him cannot be the standard by which the strategy is judged—Strickland
MEMORANDUM DECISION AND ORDER - 29

specifically warns against trying to apply “20/20 hindsight.” Further, Petitioner has
provided nothing showing that the trial court and the prosecutor would have agreed with
Petitioner’s version of how to further instruct the jury—especially given its conflict with
the word “before” in the instruction. This claim will be denied and dismissed with
prejudice.
7. Discussion of Claim 4(a)
Claim 4(a) is that trial counsel was ineffective for failing to object to Detective
Wigington testifying on redirect examination about Felicia’s out-of-court statement made
to him and Detective Ayotte at the hospital, because Detective Wigington did not quote
Felicia’s out-of-court statement exactly. Wigington testified at trial:
Q.

[D]uring your conversation with Felicia Parsons,
where does she report this money came from?

A.

The Broadway bank.

Q.

And what was she doing with it that it ended up getting
spread out all over this car?

A.

She stated that while they were traveling from the bank
toward Canyon County, she was initially counting the
money at one point inside the vehicle.

(Id. at 482-83.)
Petitioner asserts that this testimony harmed his case because it “was used to prove
[he] knew she had robbed the bank, but her actual confessed ‘I started to’ would
undermine the state’s version that the truth of the matter asserted [sic].” Dkt. 3 at 14.
When Petitioner refers to “her actual confessed” words, he is referring to the exact words
contained in the transcript of Felicia’s hospital confession:
MEMORANDUM DECISION AND ORDER - 30

Ayotte:

Okay, you ran out and what happened?

Felicia:

I ran out and got in the car and told him to drive
to the south…to the freeway.

Ayotte:

Did you count the money?

Felicia:

I started to.

Ayotte:

Who was driving?

Felicia:

My husband was driving….

State’s Lodging C-1 at 313.
The Idaho Court of Appeals rejected Petitioner’s ineffective assistance claim
because he failed to show that Smith’s tactical decision to elicit hearsay from Officer
Wigington on cross-examination—which would in turn would waive the right to object to
rebuttal hearsay on redirect—was “the product of inadequate preparation, ignorance of
the law, or some other shortcoming capable to objective evaluation.” State’s Lodging D-5
at 12. The Idaho Court of Appeals further assumed for the sake of argument that the
failure to object was deficient performance, but still determined that no prejudice
occurred because the prosecution may have elected to call Felicia as a witness had an
objection to the hearsay been made and sustained. Id.
This Court agrees. Petitioner is attempting to make a very fine point that does not
substantially help his case. Whether the detective quoted Felicia as saying “she was
initially counting the money” or “she started to [count the money]” is of little concern. It
is quite clear from the car rental, the checking in and out of the same hotel in one day, the
items the couple brought from Nevada, the waiting in the car for Felicia to go into and
return from banks in costume, and, finally, the high-speed car chase that Petitioner was
MEMORANDUM DECISION AND ORDER - 31

aiding and abetting Felicia in a robbery. Petitioner has not shown that an objection would
have been sustained because it was fair rebuttal to opening the door to Felicia’s out-ofcourt statements on cross-examination, or, if it had been, that any clarification between
“she was initially counting money” and “she started to count money” would have been
helpful to his defense. Hence, there is no deficient performance and no prejudice. This
claim is subject to denial and dismissal with prejudice.
8.

Discussion of Claim 4(b)
Claim 4(b) challenges Jury Instruction No. 3, the stipulation about Felicia’s guilty

plea. This claim has been adequately addressed above because it is a restatement of
Claim 3(d). Claim 4(b), on any variation of legal theory addressing the same factual
basis, will be denied and dismissed with prejudice on the grounds set forth in that
subsection.
9. Introduction to Claims 5(a) and (b)
Claim 5 is that Smith failed to properly prepare for trial, violating his (a)
Strickland rights or his (b) Cronic rights, based on ten different errors (i) through (x). The
Court will first address the simpler claim alternative, which is the Cronic theory.
10. Discussion of Claims 5(a) and (b): Cronic Analysis
A. Standard of Law
The rule of “constructive denial of counsel” set forth in United States v. Cronic,
466 U.S. 648, 658–62 (1984), is an exception to the Strickland rule requiring that a
petitioner demonstrate prejudice from deficient attorney performance. In Cronic, the
United States Supreme Court explained that prejudice may be presumed in

MEMORANDUM DECISION AND ORDER - 32

“circumstances that are so likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” 466 U.S. at 658. The Court articulated three
such circumstances: (1) where there is a “complete denial” of counsel at a critical stage of
criminal proceedings; (2) where “counsel entirely fails to subject the prosecution’s case
to meaningful adversarial testing”; and (3) where, “although counsel is available to assist
the accused during trial, the likelihood that any lawyer, even a fully competent one, could
provide effective assistance is so small that a presumption of prejudice is appropriate.”
Id. at 658–60. Cronic applies when “there has been an actual breakdown in the
adversarial process at trial.” Toomey v. Bunnell, 898 F.2d 741, 744 n. 2 (9th Cir.), cert.
denied, 498 U.S. 960 (1990).
The Cronic court further explained the difference between mere attorney error and
constructive denial of counsel:
[T]he adversarial process protected by the Sixth
Amendment requires that the accused have “counsel acting in
the role of an advocate.” Anders v. California, 386 U.S. 738,
743 [87 S.Ct. 1396, 1399, 18 L.Ed.2d 493] (1967). The right
to the effective assistance of counsel is thus the right of the
accused to require the prosecution’s case to survive the
crucible of meaningful adversarial testing. When a true
adversarial criminal trial has been conducted—even if
defense counsel may have made demonstrable errors—the
kind of testing envisioned by the Sixth Amendment has
occurred. But if the process loses its character as a
confrontation between adversaries, the constitutional
guarantee is violated.
466 U.S. at 656-57 (footnotes omitted). Unless there is entire failure and not simply
several specific instances of failure, Cronic is not met. Bell, 535 U.S. at 697.

MEMORANDUM DECISION AND ORDER - 33

B. Discussion
A review of the trial transcript shows that Petitioner’s counsel put on quite an
ingenious defense, notwithstanding the fact that there was little to work with to show that
Petitioner did not participate in the robbery or elude the police officers. The crossexamination was careful, pointed, and meaningful, always aimed at showing that Felicia
robbed the bank and that the witness did not see Petitioner taking part in the robbery. See,
e.g., State’s Lodging A-3 at 183, 339, 480-82, 500-01, 518-20, 553.
Smith had to put much creative thought and effort into getting Felicia’s helpful
statements into court while trying to keep her harmful statements out of court. Contrary
to Petitioner’s insinuations, that the strategy of the case was to require the State to meet
its burden of proof does not mean that Cronic applies automatically. In fact, that is the
sort of defense that was used in Cronic that survived a challenge to counsel’s
effectiveness.
Mr. Cronic asserted that the defense lawyer did not call the defendant to testify
and “put on no defense.” 466 U.S. at 651. However, even that alleged “deficiency” was
not enough to satisfy the standard of failing to “subject the prosecution’s case”—a
criminal charge that Mr. Cronic was involved in a sham business— “to meaningful
adversarial testing.” Id. at 659. What Mr. Cronic’s counsel had done was enough:
By cross-examination of Government witnesses, . . . he
established that Skyproof was not merely a sham, but actually
was an operating company with a significant cash flow,
though its revenues were not sufficient to justify as large a
“float” as the record disclosed. Cross-examination also
established the absence of written evidence that respondent

MEMORANDUM DECISION AND ORDER - 34

had any control over Skyproof, or personally participated in
the withdrawals or deposits.
Id. at 651.
In Bell v. Cone, the United States Supreme Court reiterated how difficult it is to
show that an attorney fell below the “meaningful adversarial testing” standard:
We said “if counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing.” Cronic, [466 U.S.] at
659 [emphasis added in Bell]. Here, respondent’s argument is
not that his counsel failed to oppose the prosecution
throughout the sentencing proceeding as a whole, but that his
counsel failed to do so at specific points.
535 U.S. at 697.
Petitioner’s trial record reflects that Smith reviewed and investigated the evidence.
He determined whether to use Felicia as a witness, or whether to employ a stipulation. He
decided whether to put on evidence and whether to have Petitioner testify. He objected
when necessary. He gave an adequate opening statement and an adequate closing
argument. There is nothing in the record suggesting that Smith’s performance was the
equivalent of a “complete denial” of counsel or that Smith “entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing.” See Cronic, supra. No reasonable
jurist would agree that Cronic applies to Petitioner’s trial, and thus this claim fails on the
merits. Where counsel did something, rather than nothing, the case is to analyzed under
Strickland, not Cronic. Bell, 535 U.S. at 697-98. Petitioner’s Cronic claim, consisting of
Claims 5(b)(i) through (x), is denied and dismissed with prejudice.
11. Discussion of Claims 5(a) and 5(b): Alternative Strickland Analysis
Because Petitioner has not shown that Cronic is applicable to his circumstances,
MEMORANDUM DECISION AND ORDER - 35

by default Strickland operates to govern his claims. Bell, 535 U.S. at 697–98 (“The
aspects of counsel’s performance challenged by respondent … are plainly of the same ilk
as other specific attorney errors we have held subject to Strickland’s performance and
prejudice components…. The remaining issue, then, is whether respondent can obtain
relief on the ground that the state court's adjudication of his claim involved an
‘unreasonable application’ of Strickland.”).
Moreover, on federal habeas review, it is not the federal court’s opinion on
whether the state court “applied Strickland incorrectly” that is the measuring stick for
granting the writ, but whether the state court was objectively unreasonable in its
application. Bell, 535 U.S. at 699-99. The double deference that applies when reviewing
ineffective assistance claims in habeas proceedings leaves no room for this Court to
second-guess, with the benefit of hindsight, the tactical decisions of Petitioner’s counsel.
Pinholster, 563 U.S. at 189; Strickland, 466 U.S. at 689.
Prejudice under these circumstances means there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different. Id. at
684, 694. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id. at 694.
A. Discussion of Claim 5(a)(i)
Petitioner alleges that counsel failed to obtain the police car camera video of the
pursuit of his silver sports car on October 20, 2010. Even if counsel was deficient in
failing to obtain the video, Petitioner has not shown that the failure caused his defense
prejudice. Several officers described their pursuit of Petitioner’s vehicle at trial. See
MEMORANDUM DECISION AND ORDER - 36

State’s Lodging A-3. Petitioner has not shown that the video would have contradicted
their testimony or raised doubt as to the aiding and abetting or eluding the officers
charges.3 Because Petitioner has failed to show any prejudice, this claim will be denied
and dismissed with prejudice.
B. Discussion of Claim 5(a)(ii)
Petitioner asserts that counsel was ineffective for failing to interview Petitioner
more than three days before trial. At that time, Smith interviewed Petitioner for about two
hours. Petitioner then decided that he wanted to represent himself, based on a difference
of opinion on defense strategy. This claim appears to be part of the factual basis for
Claim 5(a)(vii), and so the Court will address this claim in that subsection below. To the
extent that this claim is a stand-alone claim different from Claim 5(a)(vii) the Court
rejects it for failure to show any prejudice that resulted to the defense by the timing of
Smith’s interviews with Petitioner.
C. Discussion of Claim 5(a)(iii)
Petitioner asserts that counsel was ineffective for failing to interview Felicia or
read and listen to her confession. The Court has already determined above that the failure
to interview Felicia was not deficient performance and did not prejudice Petitioner’s case.
Petitioner has not shown that counsel failed to read and listen to Felicia’s confession. On
the contrary, it appears that this was one of the grounds upon which counsel based the
defense strategy, including the tactical decision on how to cross-examine the

3

The video that was used at trial showed Felicia and Petitioner still trapped within the car after the pursuit
ended by Petitioner wrecking his car.

MEMORANDUM DECISION AND ORDER - 37

investigators. Smith could not have cross-examined Detective Wigington in the manner
he did without having read Felicia’s confession. Petitioner has failed to show either
deficient performance or prejudice related to this claim. It will be denied and dismissed
with prejudice.
D. Discussion of Claim 5(a)(iv)
Petitioner asserts that Smith failed to read police reports until the day of trial.
Assuming that this is true, Petitioner has failed to show any prejudice to his defense. This
claim is subject to dismissal with prejudice.
E. Discussion of Claim 5(a)(v)
Petitioner asserts that Smith failed to advise him of counsel’s legal and factual
analysis of the case. Petitioner states that he wrote several letters to counsel suggesting
potential witnesses for trial and asking Smith to obtain the police video of the car pursuit.
Petitioner also asked counsel to provide legal advice about the necessity defense and
whether he should testify at trial.
Petitioner alleges that he did not hear back from Smith on these points. However,
Petitioner has not provided the names of the witnesses or the content of their testimonies,
let alone information on whether they were available at trial. He has not shown how the
police video would have made a difference in any of his convictions.
It is understandable why Smith did not put Petitioner on the stand. Petitioner’s
preferred “necessity defense” was quite unbelievable, and Smith’s chosen defense that
Petitioner did not participate at all in the robbery was more convincing under the facts.
Petitioner’s proposed testimony was very likely to be focused on the “necessity defense,”
MEMORANDUM DECISION AND ORDER - 38

which was contrary to and would have harmed the chosen defense—that Petitioner did
not know the robbery was going to occur.
In addition, had Petitioner testified, the prosecution would have been able to
introduce Petitioner’s prior felony convictions related to credibility to the jury. State’s
Lodging A-3 at 20. Petitioner’s extensive criminal history was detailed by the state postconviction court:
Parsons himself has a very long criminal history with multiple
felony convictions. His first arrest was at age 23 in 1981.
However, as the State argued at sentencing, Parsons admitted
to criminal behavior two years before when he admitted to
burglarizing a doctor’s home twice to steal guns, jewelry,
prescription medication, and cash. He admitted to extensive
narcotics dealings and tells the presentence investigator this
was driven by greed. For example, he sold ½ gram of cocaine
to an undercover agent for $1,250 and then attempted to
speed away and crashed into a sheriff’s car that was sealing
an exit. In his car law enforcement found marijuana, cocaine,
mushrooms, hash oil, prescription pills, and $3,600 in cash.
The judge in that case, based on his claim that he had learned
his lesson, placed him on probation. However, just 5 years
later, as the State argued, he had “graduated” to armed
robbery where he robbed a credit union at gunpoint. Just a
month later he pointed a gun at a grocery store manager and
ordered him to open a safe. Then less than a month later he
committed another armed robbery when he and another
individual went to a grocery store wearing masks, pointing a
gun, and demanding money. This time he received a
significant sentence and was not released until April 2005. In
2007 he was arrested for home invasion and stalking. This
was reduced to a misdemeanor.
State’s Lodging C-1 at 508. Granted, not all of this information would have been
admissible, but Petitioner’s prior felonies that implicated credibility would have been.
Silence was a better alternative.

MEMORANDUM DECISION AND ORDER - 39

Because Petitioner has not shown prejudice from any of these complaints about his
counsel’s preparation and presentation of the case, this claim fails and is subject to denial
and dismissal with prejudice.
F. Discussion of Claim 5(a)(vi)
Petitioner reported to counsel that Felicia had threatened to kill Petitioner, but
Smith allegedly failed to investigate Felicia’s alleged threats. It is unknown whether or to
what extent Smith investigated these allegations. However, it is clear from the record that
Smith spoke to the prosecutor and Felicia’s attorney to ascertain the content of her
anticipated trial testimony. None of Felicia’s pretrial confessions revealed an admission
of a serious threat to Petitioner. As a result, it was clear that at trial she either (1) would
testify that she did not threaten Petitioner; or (2) would testify that she did threaten
Petitioner, but she would be impeached by her prior confessions that were devoid of any
threats of harm.
Therefore, the Court concludes that the record makes it clear that counsel
conducted sufficient investigation into the alleged threats (the record is devoid of any
threats, and so little investigation was necessary). Alternatively, even if counsel
performed deficiently, there was no prejudice to Petitioner’s defense. Accordingly, the
claim will be denied and dismissed with prejudice.
G. Discussion of Claim 5(a)(vii)
Petitioner asserts that Smith failed to consult with Petitioner for more than one to
two hours, and that Smith did nothing to prepare for trial other than to interview him two
hours before trial. As discussed above, the record does not bear out the allegations that
MEMORANDUM DECISION AND ORDER - 40

Smith did nothing to prepare for trial.
Assuming that counsel was deficient in failing to meet with Petitioner sooner, or
failing to change the trial strategy to please him, still Petitioner has not shown prejudice.
Necessity clearly was not a better strategy. The lack of prejudice from the alleged
omissions and decisions of counsel causes the ineffective assistance claim to fail. It will
be dismissed with prejudice.
H.

Discussion of Claim 5(a)(viii)

Petitioner asserts that Smith was ineffective for failing to provide him with all the
requested documents and information he wanted prior to trial. Petitioner cited this as a
reason he wanted to fire his counsel and proceed pro se. Petitioner does not set forth
which items he was missing and how that prejudiced his case.
Nevertheless, the Court reviewed the state court record to discern the factual basis
for this claim. The post-conviction record shows that Petitioner wrote to Smith on
January 5, 2011, asking for statements of codefendant, car inventory, fingerpoints [sic],
handwriting analysis, alcohol and drug tests on Felicia and himself, the police report and
recordings of the car chase, and a copy of the preliminary hearing transcript. State’s
Lodging C-1 at 240. On January 27, 2011, Petitioner wrote another letter to Smith, asking
for information on the planned defense and informing Smith that he has not been able to
reach him by phone. Id. at 241. Smith wrote back to Petitioner on January 31, 2011,
telling Petitioner how to schedule phone appointments and, informing Petitioner that he
would receive the discovery that Smith had in his file under separate cover (except for
CD/DVD evidence). Id. at 242.
MEMORANDUM DECISION AND ORDER - 41

On February 7, 2011, Petitioner wrote to Smith informing him that “the State has
not provided complete discovery.” Id. at 243. He asked Smith, “Please show me all
DVDs that you have.” There is nothing in the letter indicating that Petitioner had not
received the discovery Smith had sent—albeit it was not everything Petitioner had
requested. Id. Smith’s follow up letter of February 8, 2011, indicated that his assistant
had sent “everything we have (minus CDs/DVDs) to Petitioner on January 31. Id. at 244.
Petitioner raised this issue with the trial court on March 2, 2011. Petitioner stated
that he wanted Smith to provide him with “stuff that hasn’t been available to me like CDs
and DVDs” and the unredacted versions of police reports. State’s Lodging A-2 at 5. At
the hearing, Smith responded generally, but not specifically, about the particular items
Plaintiff wanted. The trial court took Smith at his word because the court found him
generally to be competent and experienced, explained to Petitioner that the court had
recently ordered the unredacted versions of the police reports to be made available, and
said that if Smith “tells me that he gave you the discovery, then he gave you the
discovery.” State’s Lodging A-2 at 6-10. In short, the record reflects that neither Smith
nor the trial court particularly responded to Petitioner’s statements that the CDs/DVDs
and the unredacted police reports were not in his hands. Because the trial court somewhat
ignored Petitioner’s exact claim, this Court reviews the claim de novo.
On April 13, 2011, Petitioner wrote to Smith asking several questions about the
defense to be put on at trial. On April 18, 2011, Smith wrote back and answered
Petitioner’s questions, notifying him, “I continue to sift through the growing amounts of
discovery in your case, to communicate with the State, and to communicate with Felicia’s
MEMORANDUM DECISION AND ORDER - 42

attorney.” State’s Lodging C-1 at 248.
On May 2, 2011, the day before trial, Petitioner told the trial court that he desired
to represent himself because he and Smith had “fundamentally … a disagreement on how
to proceed because of strategy.” State’s Lodging A-3 at 19. The trial court probed
whether Petitioner knew how to conduct a trial, and he did not. Therefore, after a
discussion on the record with the trial court, Petitioner decided that he wanted Smith to
represent him at trial. State’s Lodging A-3, at 16-24.
Even if Smith performed deficiently, Petitioner has not shown prejudice resulted
from Smith not providing him with the particular items Petitioner requested. The record
is clear that Smith provided Petitioner with some, but not all, of the discovery that was
provided by the State in Petitioner’s case. Petitioner has not shown that there is a
reasonable probability—sufficient to undermine confidence in the outcome—that, but for
counsel’s failure to provide Petitioner with these items, the result of the proceeding
would have been different. Therefore, this claim in all its aspects fails under deferential
and de novo review and is subject to denial and dismissal with prejudice.
I. Discussion of Claim 5(a)(ix)
Petitioner asserts that Smith failed to keep confidential Petitioner’s statements that
Felicia coerced him to drive to the robbery. Petitioner asserts that he confided in counsel
that Felicia had coerced him to drive the getaway car. Petitioner takes issue with the fact
that Smith provided this information to the prosecutor during plea negotiations without
the consent of Petitioner. He asserts that this is a violation of the attorney-client privilege,
and that he did not even want a plea agreement but wanted to proceed to trial.
MEMORANDUM DECISION AND ORDER - 43

Smith was not amiss in exploring plea agreements for Petitioner, especially with
the facts arrayed as they were against Petitioner on both substantive charges and with the
persistent violator charge; Petitioner might have changed his mind had the State offered
favorable terms. Even assuming that Smith performed deficiently by pursuing settlement
negotiations and informing the State ahead of trial that Petitioner would be relying on a
theory that he did not know Felicia was going to rob the bank, Petitioner has not shown
prejudice to his defense. All that is known is that, after the State learned this defense
theory, it asked to have the scanner was tested. No fingerprints were revealed in the
testing. This claim fails for lack of prejudicial effect. It is subject to denial and dismissal
with prejudice.
J. Discussion of Claim 5(a)(x)
Petitioner contends that Smith did not realize that the lack of Petitioner’s and
Felicia’s fingerprints on the gun could have been used at trial to raise a reasonable doubt.
Dkt. 3 at 18. Smith wrote a letter to Petitioner on April 28, 2011, three days before trial,
stating: “the Criminalistics Analysis Report regarding the fingerprint analysis [shows] the
tests are not conclusive and are essentially useless to both the State and to us as they can
neither prove nor disprove that either you or Felicia had contact with the gun.” State’s
Lodging C-1 at 253.
The Criminalistics Analysis Report showed that there were latent fingerprints on
the gun. It concluded: “No identifications were established.” Id. at 281. There were
“inconclusive results” as to Petitioner “due to a lack of sufficiently clear detail in the
latent prints and known impressions.” Felicia was excluded as the source of some of the
MEMORANDUM DECISION AND ORDER - 44

latent prints because enough detail was present for that conclusion. Felicia could not be
excluded from another of the latent prints. Id.
Petitioner believes that Smith should have used the gun and scanner fingerprint
evidence to show that Petitioner’s fingerprints were not found on the gun and the scanner.
The gun report does not show that Petitioner’s fingerprints are not found on the gun; they
simply show that fingerprints appear on the gun but cannot be matched to anyone
because of the quality of the fingerprints. In fact—while the testing specifically excluded
Felicia from some of the latent prints—it did not specifically exclude Petitioner from any
of the latent prints. Therefore, if the prosecution highlighted that important point on
rebuttal, the report likely would have been more damaging to Petitioner on rebuttal than
any help gained by suggesting that the unknown fingerprints on the gun were not
Petitioner’s.
A better piece of evidence was Felicia’s own statement taking ownership of the
gun right after the car wreck, which was on a video and audio recording. Smith did not
object to admission of this evidence, which was a better strategy to show that the gun was
Felicia’s than trying to use the inconclusive gun fingerprint report.
Even assuming that Smith was ineffective for not using at trial the police scanner
fingerprint report that showed conclusively that no one’s fingerprints, including
Petitioner’s, were on the scanner, Petitioner has not shown that Strickland prejudice
resulted— a reasonable probability that, but for the omission of the scanner fingerprintless evidence, the result of the proceeding would have been different. Too many other
certain facts placed Petitioner in the planning and execution stages of the robbery. In
MEMORANDUM DECISION AND ORDER - 45

addition, the scanner had to be placed in the car by someone; the lack of anyone’s
fingerprints on the scanner does not detract from its presence in the car. This claims fails
because the prejudice prong of Strickland has not been met. It will be denied and
dismissed with prejudice.
K. Discussion of Claim 8
Claim 8 is that Petitioner’s direct appeal counsel, Greg Silvey, performed
ineffectively on direct appeal. The Strickland principles also apply to determining
ineffective assistance of appellate counsel claims. Evitts v. Lucey, 469 U.S. 387 (1985).
To show prejudice on appeal, a petitioner must show that his attorney failed to raise an
issue obvious from the trial record that probably would have resulted in reversal. See
Miller v. Keeney, 882 F.2d 1428, 1434 n.9 (9th Cir. 1989). If a petitioner does not show
that an attorney’s act or omission would have resulted in reversal, then he cannot satisfy
either prong of Strickland: appellate counsel was not ineffective for failing to raise such
an issue, and petitioner suffered no prejudice as a result of it not having been raised. See
Miller, 882 F.2d at 1435.
“Effective legal assistance” does not mean that appellate counsel must appeal
every question of law or every nonfrivolous issue requested by a criminal defendant.
Jones v. Barnes, 463 U.S. 745, 751-54 (1983). “[N]othing in the Constitution” requires
“judges to second-guess reasonable professional judgments and impose on appointed
counsel a duty to raise every ‘colorable claim’ suggested by a client.” Id. at 754. “[T]he
process of winnowing out weaker claims on appeal and focusing on those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective appellate
MEMORANDUM DECISION AND ORDER - 46

advocacy.” Burger v. Kemp, 483 U.S. 776, 784 (1987) (internal citations and punctuation
omitted).
Petitioner asserts that, prior to Silvey’s preparation of the appellate brief,
Petitioner wrote him a letter delineating numerous claims he desired to raise on appeal.
Dkt. 3 at 24. Silvey gave Petitioner the choice of proceeding pro se or proceeding with
counsel, in which case Silvey made it clear that he would not be presenting a
supplemental brief to include other claims. Id.
Silvey told Petitioner that the claims he wanted to bring could not be brought on
appeal because his trial counsel had not objected to the alleged trial errors. Silvey also
advised Petitioner that he could bring the claims as ineffective assistance of counsel
claims on post-conviction. In addition, because Silvey thought the prosecutorial
misconduct claims also needed extra-record evidentiary development, he told Petitioner
to bring those claims on post-conviction review, as well. As it turns out, on postconviction appellate review the Idaho Court of Appeals disagreed with Silvey as to the
prosecutorial misconduct claims, refusing to hear them because they should have been
brought on direct appeal. State’s Lodging D-5 at 14.
During post-conviction appellate review, the Idaho Court of Appeals examined
whether Silvey performed deficiently on direct appeal and rejected Petitioner’s claim of
ineffective assistance, opining:
Parsons failed to allege in his petition what arguments his
appellate counsel should have raised or how he was
prejudiced by his appellate counsel’s actions, although he
improperly tries to remedy this failure on appeal. Moreover,
Parsons has presented no argument or authority to show that
MEMORANDUM DECISION AND ORDER - 47

any unraised issue were clearly stronger than those raised….
Accordingly, Parsons has failed to raise a genuine issue of
material fact that his appellate counsel provided ineffective
assistance.
State’s Lodging D-5 at 13-14.
The Court reviews this claim de novo. The issue is whether Petitioner has raised a
potential appellate claim that Silvey failed to raise that (1) was obvious from the trial
record and (2) that probably would have resulted in reversal.
In his Reply brief, Petitioner identifies the claims as the “ineffective assistance [of
trial counsel] issues, such as the Confrontation Clause violation and Prosecutorial
Misconduct.” Dkt. 39-6 at 17. Other than the ineffective assistance claims, these are the
claims that Silvey told Petitioner should be brought on post-conviction review, when, in
fact, they should have been brought on direct appeal. However, this Court determines
elsewhere in this Order that the ineffective assistance of trial counsel claims, including
the Confrontation Clause claims and the prosecutorial misconduct claims, are without
merit on de novo review. Therefore, the claims would not have been successful had they
been raised on direct appeal. Accordingly, Silvey did not perform deficiently and there is
no prejudice arising from narrowing the potential claims for appeal. Petitioner has no
persuasive argument why any of his preferred claims would have been as strong as or
stronger than the one that Mr. Silvey presented on appeal—whether “the district court
gave an erroneous jury instruction during the persistent violator phase of trial that
partially relieved the State of its burden of proving two prior felony convictions.” State’s
Lodging B-4 at 1. For these reasons, Petitioner’s ineffective assistance of direct appeal

MEMORANDUM DECISION AND ORDER - 48

counsel claim will be denied and dismissed with prejudice.
REVIEW OF PROCEDURAL DEFAULTED CLAIMS
1. Standard of Law for Procedural Default
In general, if a petitioner did not bring his federal claims before the highest state
court in a procedurally proper way, then a federal district court cannot adjudicate the
claims in a later federal habeas corpus petition. O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). “The exhaustion doctrine is principally designed to protect the state courts’ role
in the enforcement of federal law and prevent disruption of state judicial proceedings.”
Coleman v. Thompson, 501 U.S. 722, 731 (1991) (internal citation marks omitted).
A procedurally defaulted claim will not be heard in federal court unless the
petitioner shows either that there was legitimate cause for the default and that prejudice
resulted from the default, or, alternatively, that the petitioner is actually innocent and a
miscarriage of justice would occur if the federal claim is not heard. Murray v. Carrier,
477 U.S. 478, 488 (1986).
Upon a review of the record, the Court agrees with Respondent that the following
claim are procedurally defaulted because Petitioner failed to present the legal and factual
bases of the claims to the Idaho Supreme Court and it is now too late to do so: Claims
3(b), 3(e), 4(c), 4(d), 4(e), 5(c), 6, and 7. Rather than engage in a lengthy and
complicated procedural default analysis, the Court concludes it is more efficient to
address Petitioner’s claims on de novo.4

4

In addition, based on the entirety of the record and the discussion in this Order, the Court concludes that
Petitioner has not shown that he is actually innocent.

MEMORANDUM DECISION AND ORDER - 49

2. Discussion of Claim 3(b)
Claim 3(b) is that trial counsel failed to request a cautionary instruction on the
accomplice testimony and corroborating evidence. Petitioner has not explained how this
is different from his other claims of jury instruction error. Upon a review of the jury
instructions in the light of the record, the Court finds nothing related to this area that
would amount to deficient performance or prejudice. Therefore, this claim is subject to
denial and dismissal with prejudice.
3. Discussion of Claim 3(e)
Claim 3(e) is that Smith failed to object to Instruction No. 5: “Some of you have
probably heard the terms circumstantial evidence, direct evidence and hearsay evidence.
Do not be concerned about these terms. You are to consider all the evidence admitted in
this trial.” State’s Lodging A-3 at 139. Petitioner argues that Smith failed “to object to the
trial court’s requirement for the jury to hear ‘hearsay’ and failed to instruct them about
Idaho Rule of Evidence 801(c) about hearsay.” Dkt. 39-2.
Smith was not deficient in failing to object. This general instruction, given at the
beginning of trial, was necessary to inform the jury that it was to consider all evidence
admitted at trial. If an objection was made as to “hearsay” and sustained during the trial,
the court would then particularly instruct the jury not to consider the statement. In
general, it is to be expected that some hearsay evidence will be admitted at trial based on
attorney-court discussions outside the jury’s presence, motions in limine, or attorney
stipulations. In addition to Instruction No. 5, the totality of the jury instructions covered
all of the necessary points, for example: “The law requires that your decision be made
MEMORANDUM DECISION AND ORDER - 50

solely upon the evidence before you”; “in determining the facts you must – you may
consider only the evidence admitted in this trial”; and “[I]f I tell you not to consider a
particular statement or an exhibit, you should put it out of your mind and not refer to it or
rely to [sic] it in your later deliberations.” State’s Lodging A-3 at 137-139.
As explained elsewhere, Smith’s strategy was to use certain hearsay statements to
his client’s advantage by either cross-examination or remaining silent during direct
examination rather than objecting to hearsay. This strategy helped protect against most of
the harmful evidence that otherwise could have been admitted. Petitioner’s claim fails on
the merits for failure to show deficient performance or prejudice to his case. It will be
denied and dismissed with prejudice.
4. Prosecutorial Misconduct Claims Standard of Law
Many of Petitioner’s procedurally-defaulted claims are prosecutorial misconduct
issues. They are presented either cloaked in an ineffective assistance of counsel claim—
which requires proof of an extra set of elements to prevail—or as a stand-alone due
process claim. Because the Due Process Clause guarantees the right to a fair trial,
prosecutors have a “duty to refrain from improper methods calculated to produce a
wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). Prosecutorial
misconduct acts will warrant habeas relief only if they “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Darden v.
Wainwright, 477 U.S. 168, 180 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)).
A court must consider the record as a whole, because even a prosecutor’s
MEMORANDUM DECISION AND ORDER - 51

inappropriate or erroneous comments or conduct may not be sufficient to undermine the
fairness of the proceedings when viewed in context. See United States v. Young, 470 U.S.
1, 16-17 (1985); Darden, 477 U.S. at 182. The Supreme Court distinguished between
“ordinary trial error of a prosecutor” and the type of “egregious misconduct . . . [that]
amount[s] to the denial of constitutional due process.” Donnelly, 416 U.S. at 647-48.
“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S.
209, 219 (1982).
A prosecutor “should not use arguments calculated to inflame the passions or
prejudices of the jury.” Darden, 477 U.S. at 192 (internal quotation marks omitted).
However, a prosecutor’s closing argument, “billed in advance to the jury as a matter of
opinion not of evidence,” is “seldom carefully constructed” and may contain “[i]solated
passages” that are “less than crystal clear.” Donnelly, 416 U.S. at 646-47. Therefore, a
court must not “lightly infer that a prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.” Id. at 647. In addition, when
a prosecutor’s allegedly improper comments occur in a rebuttal closing, those comments
“must be evaluated in light of the defense argument that preceded [them].” Darden, 477
U.S. at 179.
5. Discussion of Claim 4(d)(i)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
opening statement referring to facts allegedly not supported by the evidence. Petitioner
MEMORANDUM DECISION AND ORDER - 52

challenges the prosecutor’s opening statement to the jury that, “when asked, Mr. Parsons
explained that they were here on vacation, but this was no ordinary vacation.” State’s
Lodging A-3 at 147. The prosecutor then went on to describe the bank robbery. Petitioner
claims this statement constituted misconduct because it was actually Felicia, not
Petitioner who reported they were on vacation. (Dkt. 3 at 20.)
However, the prosecutor’s statement accurately described the evidence later
admitted at trial. Officer Dave Saindon testified that, while riding with Petitioner in the
ambulance, Petitioner stated that he “was vacationing” in Idaho with his wife, Felicia.
State’s Lodging D-4 at 336. To the extent that the prosecutor was using sarcasm by
saying “but this was no ordinary vacation,” no harm resulted from this innocuous
remark—because there is too much evidence in the record showing that the purpose of
the trip was to rob a bank, not take a vacation. For example, if the purpose of the 24-hour
rental of the black minivan from Enterprise was for a vacation activity—Petitioner has
never revealed the alternative activity. Nor has there been any explanation for the
checking out and checking in of the hotel in the same day. Nor is there any explanation
for the high speed chase—again, not a regular feature of a vacation. Smith was not
ineffective for failing to object to an accurate characterization of the evidence or the
slight sarcasm of the prosecutor in her opening statement. The Court concludes that
Petitioner’s claim will be denied and dismissed with prejudice on de novo review.
6. Discussion of Claim 4(d)(ii)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
opening statement that Petitioner knew exactly what he was doing when he drove away
MEMORANDUM DECISION AND ORDER - 53

from the crime scene. State’s Lodging A-3 at 153. The prosecutor explained that the jury
would hear evidence about the October 18, 2011 attempted robbery of the KeyBank in
Meridian, but that Petitioner was not charged with that robbery. Rather, the October 18th
incident was merely “informative”:
It’s informative because it tell us what Mr. Parsons
knew. When his wife came running out of the bank on
October 18th wearing a costume and then went into another
bank two days later wearing a different costume, he knew this
was no ordinary vacation. He knew exactly what he was
doing as he drove her away from the crime scene, which was
demonstrated by the way he drove when law enforcement
tried to pull him over.
Id.
Petitioner does not explain why the prosecutor acted wrongfully in discussing the
narrow reason for the admission of the October 18th incident and then explaining that the
prior robbery attempt would be evidence showing that Petitioner knew that his wife was
going to try to rob a bank each time she put on a costume and he drove her to a bank and
waited outside. There is no prosecutorial misconduct, and hence no ineffective assistance
of counsel. This claim will be denied and dismissed with prejudice.
7. Discussion of Claim 4(d)(iii)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
opening statement that Keisha Bloxham was going to testify that “someone who looked a
lot like” Petitioner was driving the blue minivan with Connecticut license plates. Id. In
fact, Bloxham described the driver of the minivan as a 50-ish balding man of about 250
to 300 pounds, a description that fit Petitioner at the time of the crime. State’s Lodging
A-3 at 551. There is no prosecutorial misconduct, and hence no ineffective assistance of
MEMORANDUM DECISION AND ORDER - 54

counsel. This claim will be denied and dismissed with prejudice.
8. Discussion of Claim 4(d)(iv)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
opening statement that Keisha Bloxham’s testimony about the initial attempted robbery
would show that Petitioner knew his wife was robbing the bank two days later. This is the
same content addressed directly above in the discussions of Claims 4(d)(ii) & (iii). There
is no prosecutorial misconduct, and hence no ineffective assistance of counsel. This claim
will be denied and dismissed with prejudice.
9. Discussion of Claim 4(e)(i)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
statements in closing argument that Felicia told a detective she was counting the money
as the couple was going down I-84. This is the same argument and content addressed
above. There was no inaccuracy and hence no prosecutorial misconduct. For the same
reasons, Petitioner has not shown that he is entitled to relief under either prong of the
Strickland test. This claim will be denied and dismissed with prejudice.
10. Discussion of Claim 4(e)(ii)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
closing statement, “Then they also have the police scanner that’s found at the crash[,]
screen in the on position, not to white noise, but it’s actually emitting frequency.” State’s
Lodging A-3 at 594. Petitioner argues that this statement does not reflect Officer Chris
Davis’s actual testimony, which was that the scanner was on, but it was turned to what
Davis thought was “an EMS channel,” not a police traffic channel. See State’s Lodging

MEMORANDUM DECISION AND ORDER - 55

A-3 at 376. There is no distortion of the truth in this statement. The prosecutor said only
that it was on and emitting frequency, which reflects Davis’ testimony. The prosecutor
did not say police frequency. The important point is that the scanner was on when it was
found at the scene of the wreck, and the jury was left to determine whether this made it
more or less likely that Petitioner helped commit the robbery. There is inaccuracy, and
hence no prosecutorial misconduct. There is no ineffective assistance for failing to object
to accurate evidence descriptions. This claim will be denied and dismissed with
prejudice.
11. Discussion of Claim 4(e)(iii)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
closing statement that:
[t]he money is also the motivation for this crime. You heard
that on video, State’s Exhibit 16. They didn’t commit this for
adrenalin rush. They needed the money. Felicia told you that.
State’s Lodging A-3 at 595.
The statement was an accurate representation of what Felicia said on the police
accident scene video/audio—that they needed money for medical bills. As noted above,
no objection was made as to hearsay, and none could have been made about an inaccurate
portrayal of Felicia’s statement because the statement was accurate. Smith’s lack of
objection to the video/audio evidence upon which the prosecutor’s closing remarks were
based was part of defense counsel’s strategy—a strategy that was nether deficient nor
prejudicial. This claim fails on the merits under any legal theory on de novo review. It
will be denied and dismissed with prejudice.
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12. Discussion of Claim 5(c)
Petitioner asserts that Smith was ineffective for failing to object to the prosecutor’s
statement at the preliminary hearing that Keisha Bloxham reported the exact license plate
numbers of the minivan to the dispatcher. See State’s Lodging A-2 at 28-29. This
information was not used at trial. Rather, at trial, the prosecutor stated in opening that
Bloxham was going to testify that she saw Felicia get into a blue minivan with
Connecticut plates on October 18th. State’s Lodging A-3 at 152.
Petitioner has not shown how something that was reported in the preliminary hearing
that was not restated at trial in front of the jury is relevant to the jury verdict. The
information regarding the Connecticut plates relayed to the jury in the opening statement
was accurately reflected in Bloxham’s trial testimony. Id. at 550. Petitioner has not
shown that Smith performed deficiently or that prejudice occurred. Hence, this claim will
be denied and dismissed with prejudice.
13. Discussion of Claim 6
In Claims 6(a) through 6(e), Petitioner asserts that his constitutional rights to due
process and to confront the witnesses against him were violated by certain witness
testimony and comments made by the prosecutor at various points in the state court
proceedings.
A. Standard of Law for Confrontation Clause and Due Process Clause
Claims
The Confrontation Clause of the Sixth Amendment guarantees an accused the
right to confront and cross-examine the witnesses against him. This right of confrontation

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prohibits the admission of testimonial out-of-court statements unless (1) the declarant is
unavailable to testify and (2) the accused had a prior opportunity to cross-examine the
witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). Testimonial statements are
those that are made for purposes of investigation or prosecution, such as the following:
(1) statements made in prior testimony; (2) “[s]tatements taken by police officers in the
course of interrogations”; (3) “formalized” statements, e.g., affidavits, depositions, and
confessions; (4) “pretrial statements that declarants would reasonably expect to be used
prosecutorially”; and (5) “statements that were made under circumstances which would
lead an objective witness to reasonably believe that the statement would be available for
use at a later trial.” Id. at 51-52 (internal quotation marks omitted). “[N]on-testimonial
statements do not implicate the Confrontation Clause” because they are not made for
purposes of investigation or prosecution. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.
2009).
A defendant or defense counsel may waive the Sixth Amendment right to
confrontation by, for example, failing to—or choosing not to—“object to the offending
evidence.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3 (2009); see also
Wilson v. Gray, 345 F.2d 282, 286 (9th Cir. 1965) (“It has been consistently held that the
accused may waive his right to cross examination and confrontation and that the waiver
of this right may be accomplished by the accused’s counsel as a matter of trial tactics or
strategy.”).
In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court outlined the
important purposes of the due process right of cross-examination of adverse witnesses:
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The right of cross-examination is more than a desirable rule
of trial procedure. It is implicit in the constitutional right of
confrontation, and helps assure the ‘accuracy of the truthdetermining process.’ Dutton v. Evans, 400 U.S. 74, 89, 91
S.Ct. 210, 220, 27 L.Ed.2d 213 (1970); Bruton v. United
States, 391 U.S. 123, 135—137, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968). It is, indeed, ‘an essential and fundamental
requirement for the kind of fair trial which is this country's
constitutional goal.’ Pointer v. Texas, 380 U.S. 400, 405, 85
S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). Of course, the right
to confront and to cross-examine is not absolute and may, in
appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process. E.g., Mancusi v. Stubbs,
408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). But its
denial or significant diminution calls into question the
ultimate “integrity of the fact-finding process” and requires
that the competing interest be closely examined. Berger v.
California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d
508 (1969).
Id. at 295.
B. Discussion of Claim 6(a)(i)
Petitioner asserts that his Due Process Clause and Confrontation Clause rights
were violated by the admission at trial of Felicia’s “out-of-court confession ... under
police interrogation.” Dkt. 3 at 20. He argues that the Confrontation Clause was violated
by admission of a co-defendant’s statement during interrogation because the testimony
was offered to prove the truth of the matter asserted. Dkt. 39-5 at 5.
In actuality, Felicia’s recorded hospital confession to Detectives Wigington and
Ayotte (State’s Lodging C-1 at 300-56) was not introduced or admitted at Petitioner’s
trial. See State’s Lodging A-3 at 7-8. Therefore, Petitioner’s allegation in Claim 6(a)(i) is
simply wrong as a factual matter. Because the confession was not admitted into evidence,
there was no Confrontation Clause or Due Process Clause violation. The portions of the
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confession that were re-stated by trial witness Detective Wigingon will be addressed
below. This claim fails for lack of a factual or legal basis and will be denied and
dismissed with prejudice.
C. Discussion of Claim 6(a)(ii)
Petitioner contests the prosecutor’s playing of a video and audio taken at the scene
of the crash. The video showed Felicia trapped halfway inside and halfway outside the
car and contained audio of her shouting out several statements relevant to the robbery.
State’s Lodging A-5 at 4. Petitioner asserts that playing the video/audio for the jury
violated his Confrontation Clause and Due Process Clause rights.
The video/audio of the scene of the crash taken by Nampa city police officer Tyler
Gray was authenticated by his testimony at trial. It was not objected to by Petitioner’s
counsel and was properly admitted into evidence. State’s Lodging A-3 at 280. The 20minute video showed Felicia and Petitioner trapped in their car, captured Felicia’s excited
utterances, and lasted until paramedics extricated Petitioner from the overturned car. The
jury saw the video after direct examination of Gray. Id. at 292. Smith then examined
Gray on some of the excited utterances of Felicia on the video, including: “There’s just
one gun. It’s my gun.” and “He’s got internal bleeding, motherfuckers. Why do you think
I did this fucking robbery?” Id. at 294-95.
In accordance with the law cited above, Petitioner waived any Confrontation
Clause and Due Process Clause claim by Smith failing to object to admission of the
video/audio. Second, because the video/audio was a way to introduce Felicia’s claimed
ownership of the gun and responsibility for the robbery to the jury without subjecting her
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to cross-examination on topics that would be damaging to Petitioner’s case, Smith’s
strategy to allow the video/audio in was neither deficient performance nor prejudicial.
Therefore, this claim fails on the merits under any legal theory on de novo review. This
claim will be denied and dismissed with prejudice.
D. Discussion of Claim 6(a)(iii)
Petitioner generally alleges that police officers testified about “hearsay
statements” made by Felicia, violating his due process and confrontation rights. Petitioner
attempts to raise the question that the statements were made for the truth of the matter
asserted, and not for any exception for which hearsay normally would be admitted.
However, as discussed above, to have the hearsay statements admitted for the truth of the
matter asserted was a calculated strategy call by his counsel. Because his counsel did not
object, and in fact, used the substance of the testimony to Petitioner’s advantage by
stratagem, there was neither deficient performance nor prejudice. Therefore, this claim
fails on the merits under any legal theory on de novo review. It will be denied and
dismissed with prejudice.
E. Discussion of Claim 6(b)
In Claim 6(b), Petitioner challenges the prosecutor’s opening statement to the jury
that, “when asked, Mr. Parsons explained that [he and Felicia] were here on vacation, but
this was no ordinary vacation.” State’s Lodging A-3 at 147. The prosecutor then went on
to describe the bank robbery. Petitioner claims this statement violated his confrontation
and cross-examination rights because it was actually Felicia, not Petitioner who reported
they were on vacation. (Dkt. 3 at 20.)
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However, as described above in the discussion of Claim 4(d)(i), the prosecutor’s
statement accurately described the evidence later admitted at trial. Officer Dave Saindon
testified that, while riding with Petitioner in the ambulance, Petitioner stated that he “was
vacationing” in Idaho with his wife, Felicia. State’s Lodging D-4 at 336. Petitioner had
opportunity to challenge Saindon’s testimony on cross-examination. Therefore,
Petitioner’s claim will be denied and dismissed with prejudice on de novo review.
F. Discussion of Claim 6(c)
Petitioner asserts that Detective Wigington violated the Confrontation Clause and
the Due Process Clause when he testified on redirect examination that Felicia told
Wigington she started counting the money from the robbery inside the car, thus
supporting the prosecution’s theory that Petitioner knew Felicia had robbed the bank
when he initially fled the scene and later fled from the police. Respondent counters that
Petitioner opened the door to this testimony by asking about other statements in Felicia’s
confession on cross-examination.
On direct examination, Detective Wigington did not testify about anything Felicia
told him.5 See State’s Lodging A-3 at 436-78. On cross-examination, Smith elicited the
following testimony about the money found by the police:
Q.

So without actually having a record of serial numbers,
you wouldn’t be able to say whether one $20 bill is
pretty much the same as another one?

5

Respondent mistakenly states that, on direct examination, Detective Wigington was asked a question
about something Felicia had said and answered affirmatively, but that defense counsel’s objection to the
question was sustained. (Dkt. 38 at 29.) However, this exchange actually occurred during the prosecutor’s
examination of Corporal Stephen Van Doren, not Detective Wigington. (See State’s Lodging A-3 at 34147.)

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A.

With the exception of the bait bills, yes.

Q.

So if there was a bait bill and there was a record of
that, you’d be able to track that because you’d have a
record of the serial number; correct?

A.

Yes.

Q.

But any other $20 bill that was found in a back yard or
a parking lot or a wallet could just be another $20 bill;
right?

A.

Correct.

Q.

And so with respect to the money that you found in the
car or in the yard, you can’t necessarily say whether
any of that was taken from the bank, can you?

A.

With—no, again, with the exception of the bait bills.

(Id. at 479-80.)
Smith also asked Detective Wigington about things that Felicia had said in her
statement to police:
Q.

Did you have a conversation with Felicia Parsons?

A.

Yes, I did.

Q.

At all times is it true that she took responsibility and
said that Mr. Parsons did not rob any bank ever?

A.

She did, yes, during that interview.

....
Q.

So Mrs. Parsons took responsibility for [robbing the
bank on October 20, 2010] and several other banks; is
that right?

A.

Yes, she did.

Q.

And she at all times maintained that Mr. Parsons never
robbed any bank; is that right?

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A.

Up until recently, yes.

Q.

I don’t think I’m going to ask for clarification of that
question. What I’m asking is when you spoke to her on
October 20th or 21st is it not true that she maintained
Mr. Parsons never robbed a bank?

A.

Yes.

Id. at 481-82.
On redirect, the prosecutor immediately began exploring more of Felicia’s
statements:
Q.

Has Felicia Parsons reported to you that she’s pretty
madly in love with Daniel Parsons.

A.

Yes, every conversation.

Q.

And she has reported that she is solely responsible for
this event; is that true? At various times she’s told you
she’s the only one that should be held accountable?

A.

Yes.

Q.

In those same conversations has she reiterated to you
how much she loves him?

A.

Oh, yes.

Q.

You indicated to [defense] counsel that you didn’t
know that this money that was kind of all over the car
and in the backyard came from this robbery; is that—
you don’t have first-hand observer’s knowledge; is that
correct?

A.

Correct.

Q.

But, during your conversation with Felicia Parsons,
where does she report this money came from?

A.

The Broadway bank.

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Q.

And what was she doing with it that it ended up getting
spread out all over this car?

A.

She stated that while they were traveling from the bank
toward Canyon County, she was initially counting the
money at one point inside the vehicle.

(Id. at 482-83.)
There is no question that Felicia’s out-of-court statements to Detective Wigington
were testimonial, and therefore subject to the Confrontation Clause. However, the
question this Court must answer is whether Petitioner—having been the party who first
inquired into Felicia’s statement—can now complain that the prosecutor followed suit.
The United States Supreme Court has not determined specifically whether a
defendant waives a Confrontation Clause objection to a testimonial statement by crossexamining a witness about the statement, thus opening the door to allow the prosecution
also to elicit testimony about the statement. Further, the Court has not found a published
Ninth Circuit case on this question, though several unpublished decisions have been
issued. See United States v. Quinones-Chavez, 641 F. App’x 722, 725-26 (9th Cir. Feb.
24, 2016) (unpublished) (holding that testimony did not violate Confrontation Clause of
non-testifying witnesses in part because it “emerged only after defense counsel opened
the door by eliciting testimony concerning these witnesses”); United States v. Kloeppel, 5
F.3d 542 (9th Cir. Aug. 18, 1993) (unpublished) (holding that trial court’s admission of
appraisal reports did not violate the Confrontation Clause because defendant
“opened the door for the admission of these records by creating a false impression about
the value of the property appraised in the reports. Once the door was opened, the

MEMORANDUM DECISION AND ORDER - 65

government was entitled to introduce the reports to correct the false impression”).
Other courts reviewing the issue have come to different conclusions. Compare
United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), with United States v. LopezMedina, 596 F.3d 716, 733 (10th Cir. 2010). The Sixth Circuit has held that the
admission of a testimonial statement, without the opportunity to cross-examine, violates
the Confrontation Clause even if the defendant has first opened the door by asking about
a portion of that statement. Cromer, 389 F.3d at 379 (“If there is one theme that emerges
from Crawford, it is that the Confrontation Clause confers a powerful and fundamental
right that is no longer subsumed by the evidentiary rules governing the admission of
hearsay statements. Thus, the mere fact that Cromer may have opened the door to the
testimonial, out-of-court statement that violated his confrontation right is not sufficient to
erase that violation.”).
However, Cromer is based on a strained reading of Crawford and would allow a
defendant to introduce helpful parts of an out-of-court statement but prohibit the State
from clarifying or rebutting those parts of the statement by inquiring into other parts of
that same statement—a result not likely intended by the Crawford decision itself. Further,
the Supreme Court’s later decision in Melendez-Diaz calls Cromer into question. If, as
the Supreme Court stated in Melendez-Diaz, a defendant can forfeit a Confrontation
Clause claim by failing to object to the introduction of a testimonial statement, 557 U.S.
at 313 n.3, then it likely follows that a defendant can also forfeit (or knowingly waive)
that claim by actively introducing a portion of that statement. Cf. United States v.
Tarantino, 846 F.2d 1384, 1407 (D.C. Cir. 1988) (per curiam) (holding that restriction on
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cross-examination, which forced defendant to make tactical decision whether to crossexamine a witness and open the door to other contextual information, did not violate right
of confrontation or constitute an abuse of discretion).
The Court finds the Tenth’s Circuit’s analysis in Lopez-Medina persuasive. In that
case, defense counsel expressly told the trial court that he intended to open the door, on
cross-examination, to an out-of-court statement of a confidential informant, thereby
knowingly waiving the right of confrontation. 596 F.3d at 731. The prosecutor, on
redirect, elicited additional testimony about that statement. The Tenth Circuit disagreed
with Cromer and held that the defendant had waived his Confrontation Clause claim in a
limited manner: “If the Cromer rule were correct, a defendant would be free to mislead a
jury by introducing only parts of an out-of-court statement, confident that the remainder
of the statement could not be introduced because the Confrontation Clause would provide
a shield.” Id. at 733 (internal quotation marks omitted). Therefore, the court held that the
defendant could not raise a confrontation claim on appeal after having waived it at trial.
This Court agrees that “[t]he Confrontation Clause is a shield, not a sword,” and,
therefore, “a defendant can open the door to the admission of evidence otherwise barred
by the Confrontation Clause” and afterward he may not prevent the State from rebutting
those statements. Lopez-Medina, 596 F.3d at 732. Any other reading would essentially
allow a defendant to pick and choose favorable portions of an otherwise inadmissible
statement, while—at the same time—keep the prosecution from fairly responding with
unfavorable portions. The jury, thus manipulated, would see a skewed picture of reality.
The Sixth Amendment does not countenance, let alone require, such an absurd result.
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This is not to say that a defendant who inquires into a hearsay statement on cross
loses all challenges with respect to additional testimony about the statement on redirect.
The prosecution’s re-direct examination is limited to the subject matter of crossexamination.
In addition, “[i]f counsel’s decision to waive his client’s confrontation right [on
cross-examination] was made over the client’s dissent or was not a legitimate trial tactic,
the client might have a viable claim of ineffective assistance of counsel.” Id. at 731 n.8.
As stated elsewhere herein, Smith’s decision to have Felicia’s statements admitted into
evidence in a manner other than having her testify was sound, and no ineffective
assistance claim lies for waiver of confrontation and due process confrontation rights.
Further, the decision in this action should not be construed to permit any inquiry
into any portion of a hearsay statement a defendant raised. Rather, here, the questioning
on redirect was without question a fair response to the questioning on cross. That is,
when Smith probed that Felicia took full responsibility for the robbery, the prosecutor
was permitted to probe whether Felicia had said anything that would indicated why she
did so—such as her love for and desire to protect Petitioner. When Smith discussed the
origin of the bills found at the scene of the car wreck, the prosecutor was permitted to ask
the investigator if Felicia had stated where the money had come from.
Finally, the Court notes that the law is not well-settled whether the Confrontation
Clause is subject to harmless error analysis, but, even if it were, Petitioner would not
prevail on this claim. The prosecutor elicited from Felicia statements that loved Petitioner
very deeply. Given that they were married, it would be difficult if not impossible to
MEMORANDUM DECISION AND ORDER - 68

impeach her on this subject. Similarly, there was much evidence about the amount and
type of money stolen from KeyBank, and this additional reference to the original of the
money was merely cumulative. While whether harmless error analysis of these issues
presents an interesting legal issue because the law is not well-settled in the Ninth Circuit
or in the United States Supreme Court, there is no real factual issue here.
For the foregoing reasons, the Court concludes on de novo review that Petitioner is
not entitled to relief on the merits of Claims 6(a). It will be denied and dismissed with
prejudice.
G. Discussion of Claim 6(d)
In closing argument, the prosecutor spent several paragraphs describing
everything that witness Keisha Bloxham had seen and how she identified the driver of
what she describes as a “navy minivan.” The prosecutor wanted to make the point that
Bloxham’s description of the driver as being “heavy set, about 250 to 300 pounds”
matched what Felicia said at the crash scene, which was that Petitioner was 330 pounds.
However, the prosecutor accidentally interchanged the names and said “Felicia” instead
of “Keisha.” State’s Lodging D-4 at 591. The court reporter noticed the misstatement,
and noted it in the record: “So he’s right near that range of what Felicia [verbatim]
describes as the driver of the minivan.” State’s Lodging D-4 at 591 (parenthetical in
original).
The Court concludes that no harm came from this mistake, because it was clear
from the prosecutor’s context that she meant to say “Keisha” but inadvertently said
“Felicia.” An objection would have been an unnecessary interruption because the context
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made it clear what the prosecutor meant. There is no confrontation or cross-examination
deficiency arising from this obvious mistake.
Petitioner also argues that Bloxham’s testimony was improperly admitted because
she did not have any direct knowledge of the facts. Dkt. 39-6 at 41. However, the
prosecutor properly laid foundation showing that Bloxham was a bank employee, had
been trained in how to recognize unusual circumstances that might present a security risk,
saw Felicia in clothing similar to that found in the couple’s wrecked car, saw Felicia
acting suspiciously, and saw Felicia get into the van that matches the rental vehicle with a
driver that matched the description of Petitioner, Felicia’s husband. Bloxham testified
about the facts of which she had knowledge.
Adding this argument does not bolster Petitioner’s confrontation or crossexamination claims regarding the mis-statement of the prosecutor in closing or the
testimony of Bloxham at trial. Petitioner had the opportunity to confront and crossexamine Bloxham at trial. This claim will be denied and dismissed with prejudice.
H. Discussion of Claim 6(e)
Petitioner asserts that his rights under the Due Process and Confrontation Clauses
were violated when police officers described Felicia’s out-of-court statements and the
prosecutor later commented based on that testimony. Petitioner particularly contests the
prosecutor’s comment in closing argument that Felicia said they needed money to pay
medical bills. However, the statement was an accurate representation of what Felicia said
on the police accident scene video/audio, and confrontation and cross-examinations rights
as to Felicia herself were waived as a part of the defense strategy. This claim fails on the
MEMORANDUM DECISION AND ORDER - 70

merits under any legal theory on de novo review. It will be denied and dismissed with
prejudice.
14. Discussion of Claim 7
In Claim 7, Petitioner asserts that the prosecutor committed misconduct by making
certain comments, including some of the same comments challenged in Claim 6. The
prosecutorial misconduct standard of law is set forth above where the Court discussed
whether Smith was ineffective for failing to object to alleged prosecutorial misconduct
based on nearly all the same factual bases. In this claim, there is no Strickland overlay to
the analysis, but the Court’s prior analysis of whether there was prosecutorial misconduct
in the first instance will be referenced but not repeated.
A. Discussion of Claim 7(a)
Claim 7(a) is a duplicate of Claim 5(c), regarding prosecutorial misconduct
centered on Bloxham’s alleged reporting of the rented minivan’s license plate number
during the preliminary hearing—a fact which was not repeated at the jury trial. For the
reasons stated above, it is subject to denial and dismissal with prejudice.
B. Discussion of Claim 7(b)
Claim 7(b) is a duplicate of Claim 4(d)(i), regarding prosecutorial misconduct for
opening remarks about the couple’s vacation. For the same reasons stated above, it is
subject to denial and dismissal with prejudice.
C. Discussion of Claim 7(c)
This claim is a duplicate of Claim 4(e)(ii), with the exception that the claim
centers on the prosecutor’s opening statement, rather than the closing argument, about the

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scanner. The prosecutor’s words are virtually the same—no reference to it being tuned to
a police frequency—and so this claim meets the same demise. It will be denied and
dismissed with prejudice.
D. Discussion of Claim 7(d)
This claim is a duplicate of Claim 4(d)(ii), regarding the prosecutor’s opening
remarks about evidence that would show that Petitioner knew that Felicia was going to
commit the robbery on October 20th. This claim will be denied and dismissed with
prejudice for the same reasons set forth above.
E. Discussion of Claim 7(e)
Petitioner contests the prosecutor’s closing remark that “we know” Petitioner
came to Boise to commit the robbery. The prosecutor began her closing argument with
the fact that a robbery occurred—the first necessary element of the crime of aiding and
abetting robbery. Petitioner rightly observes that the fact that the robbery occurred does
not show his knowledge. However, he is taking too narrow a view of the prosecutor’s
introduction to her closing argument. The introduction was to the whole argument, not to
only the next subtopic the prosecutor discussed—that a robbery occurred. As the
prosecutor went on, it became clear that her argument’s organizational plan was to hit
every element of the crime in list-fashion, and that she was not, as Petitioner asserts,
trying to say that the fact the robbery occurred shows that Petitioner planned it. That is a
nonsensical reading of the transcript, and the Court rejects it as prosecutorial misconduct.
Petitioner’s claim will be denied and dismissed with prejudice.

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F. Discussion of Claim 7(f)
Petitioner asserts that the prosecutor committed misconduct in closing argument
by mistakenly saying “Felicia” instead of “Keisha,” as discussed above. This is the same
claim as 6(d), and it will be denied on the merits and dismissed with prejudice for the
reasons stated above.
G. Discussion of Claim 7(g)
This is the same claim as 6(d), regarding Felicia’s out-of-court excited utterances
about needing money to pay medical bills as the reason for having robbed the bank. This
claim will be denied on the merits and dismissed with prejudice for the reasons stated
above.
CONCLUSION
Petitioner is not entitled to relief on his Petition for Writ of Habeas Corpus. Many
of his claims are frivolous, and he has wasted public resources in pursuing them.
Petitioner is not entitled to discovery or an evidentiary hearing. The Court has done its
best to separate Petitioner’s mass of claims into separate claims and subclaims,
considering each on its own merit. To the extent that it has not expressly addressed one of
the subclaims, this Court implicitly rejects it and rejects the Petition in its entirety as not
warranting habeas corpus relief. The entire Petition will be dismissed with prejudice and
his motions will be denied. A certificate of appealability will not issue.
ORDER
IT IS ORDERED:
1.

Petitioner’s Request for an Evidentiary Hearing (Dkt. 48) is DENIED.

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2.

Petitioner’s Request for Discovery (Dkt. 49) is DENIED.

3.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED and
DISMISSED with prejudice.

4.

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. In fact,
many of Petitioner’s claims are frivolous, and it is clear that he is not
actually innocent. Further litigation is a waste of public resources. 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: March 29, 2019
_________________________
David C. Nye
Chief U.S. District Court Judge

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