Lynch v. Blades

Filing 17

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: The Petition for Writ of Habeas Corpus (Dkt. 1) is DISMISSED IN PART and DENIED IN PART, and this entire action is DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LESLIE R. LYNCH,
Case No. 1:15-cv-00598-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY BLADES, Warden,
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus, filed by Idaho
state prisoner Leslie R. Lynch (“Petitioner” or “Lynch”), challenging Petitioner’s
Gooding County conviction on two counts of sexual abuse of a child under the age of
sixteen. (Dkt. 1.) The Petition is now ripe for adjudication. The Court takes judicial
notice of the records from Petitioner’s state court proceedings, which have been lodged
by Respondent. (Dkt. 11.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550,
551 n.1 (9th Cir. 2006).
All parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. (Dkt. 8.) Having carefully reviewed the record in this matter,
including the state court record, the Court concludes that oral argument is unnecessary.
MEMORANDUM DECISION AND ORDER - 1

See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order
denying habeas corpus relief.
BACKGROUND
In 2008, Petitioner was charged in the Fifth Judicial District Court in Gooding
County, Idaho, with crimes related to sexual misconduct with two minors that occurred in
1996 and 1997 and that were the basis of criminal charges filed in 1997. (State’s Lodging
B-5 at 1-2.) In 1997, the case against Petitioner was dismissed without prejudice “just
prior to trial.” (State’s Lodging A-7 at 20.) The investigation into the 1996 allegations
was reopened after similar sexual abuse allegations against Petitioner surfaced, though
Petitioner was not charged on the basis of the later allegations. The 2008 case against
Petitioner included new charges, for crimes that occurred in 1996 or 1997, which had not
been included in the previous case.
Pursuant to a plea agreement and an amended information, Petitioner pleaded
guilty to two counts of sexual abuse of a child under the age of sixteen. Petitioner was
initially sentenced to concurrent unified terms of twenty years in prison with ten years
fixed. (State’s Lodging B-5 at 3.) Petitioner’s sentence was later reduced to concurrent
unified terms of fifteen years in prison with ten years fixed because, under the version of
the statute in force when the crimes were committed, the maximum sentence for
Petitioner’s convictions was fifteen years. (Id. & n.3.)
Petitioner appealed, but the appeal was stayed when Petitioner filed a motion to
withdraw his guilty plea. In support of his motion, Petitioner argued, among other things,
that his trial counsel was ineffective for failing to file a motion to dismiss based on a
MEMORANDUM DECISION AND ORDER - 2

claim of pre-accusatory delay under the Due Process Clause. After an evidentiary
hearing, the trial court denied the motion. (State’s Lodging A-7.)
On direct appeal, Petitioner contended that the trial court should have granted his
motion to withdraw the guilty plea because his trial counsel rendered ineffective
assistance by “failing to move to dismiss the complaint on due process ground [sic] for
the state’s delayed prosecution.” (State’s Lodging B-2 at 27.) The Idaho Court of Appeals
rejected this argument, holding that Petitioner did not establish that he was prejudiced
from the pre-accusatory delay or that the state had an improper motive in delaying the
refiling of the charges. (State’s Lodging B-5 at 14-15.) The Idaho Supreme Court denied
review. (State’s Lodging B-11.)
Petitioner later filed a post-conviction petition, which the state district court
denied. (State’s Lodging C-1 at 355-61, 409-25.) Petitioner appealed, and the Idaho Court
of Appeals affirmed. (State’s Lodging D-4.) Petitioner did not file a petition for review
with the Idaho Supreme Court, and the Idaho Court of Appeals issued its remittitur.
(State’s Lodging D-5.)
In his federal Petition, Petitioner asserts the following claims:
Claim 1:

Ineffective assistance of trial counsel based on
counsel’s failure to discover the correct maximum
sentence applicable to Petitioner’s crimes, which
affected the “original sentence of 20 years” and
resulted in the trial court later “reduc[ing] only the
indeterminate portion of Lynch’s sentence.”

Claim 2:

(a) Violation of Petitioner’s Sixth Amendment right to
a speedy trial, and (b) ineffective assistance of trial

MEMORANDUM DECISION AND ORDER - 3

counsel in failing to raise a speedy trial issue prior to
Petitioner’s guilty plea.1
(Dkt. 1 at 2-6.) Although Petitioner refers to the Sixth Amendment right to a speedy trial
when describing Claims 2(a) and 2(b) (Dkt. 1 at 6), the Speedy Trial Clause of the Sixth
Amendment does not apply to pre-arrest, or pre-accusatory, delay. United States v.
Marion, 404 U.S. 307, 321 (1971).
Therefore, the Court will construe Claim 2(a) as asserting a violation of the Due
Process Clause based on pre-accusatory delay. See id. at 325-36 (“Nor have appellees
adequately demonstrated that the pre-indictment delay by the Government violated the
Due Process Clause. . . . Events of the trial may demonstrate actual prejudice, but at the
present time appellees’ due process claims are speculative and premature.”). Similarly,
the Court will construe Claim 2(b) as asserting ineffective assistance of counsel for
failing to move to dismiss based on pre-accusatory delay under the Due Process Clause.
Respondent argues that Petitioner’s claims are procedurally defaulted and that they
fail on the merits.
DISCUSSION
1.

Claims 1 and 2(a) Are Subject to Dismissal as Procedurally Defaulted
A.

Procedural Default Standard of Law

A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
1

In its Initial Review Order, the Court mistakenly omitted Claim 2(b) from its recitation of
Petitioner’s claims. (Dkt. 5 at 2.)

MEMORANDUM DECISION AND ORDER - 4

established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, for proper exhaustion, a petitioner must bring his federal claim before the state court
by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
MEMORANDUM DECISION AND ORDER - 5

and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
B.

Claims 1 and 2(a) Are Procedurally Defaulted

Petitioner did not fairly present Claim 1 or Claim 2(a) to the Idaho Supreme Court.
Petitioner raised Claim 1 on appeal from the dismissal of his post-conviction petition.
(State’s Lodging D-1, D-3.) However, after the Idaho Court of Appeals affirmed (State’s
Lodging D-4), Petitioner did not file a petition for review in the Idaho Supreme Court.
See O’Sullivan, 526 U.S. at 847 (requiring “state prisoners to file petitions for
discretionary review when that review is part of the ordinary appellate review procedure
in the State”). Because it is now too late for him to do so, Claim 1 is procedurally
defaulted. See Gray, 518 U.S. at 161-62.
Petitioner did not raise Claim 2(a) to any state appellate court. Although he did
raise (on direct appeal) the related claim that his trial counsel rendered ineffective
assistance in failing to move to dismiss based on pre-accusatory delay as set forth in
Claim 2(b), he did not separately present the underlying substantive claim of a violation
of the Due Process Clause based on that delay. (State’s Lodging B-2 at 27-34.) See Rose
v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“Here, although [the petitioner’s]
Fifth Amendment claim is related to his claim of ineffective assistance, he did not fairly
present the Fifth Amendment claim to the state courts when he merely discussed it as one
of several issues which were handled ineffectively by his trial and appellate counsel.
MEMORANDUM DECISION AND ORDER - 6

While admittedly related, they are distinct claims with separate elements of proof, and
each claim should have been separately and specifically presented to the state courts.”
(emphasis added)). Because it is too late for Petitioner to present Claim 2(a) to the state
courts, that claim is procedurally defaulted. See Gray, 518 U.S. at 161-62.
C.

Petitioner Has Not Shown Cause and Prejudice, or Actual Innocence, to
Excuse the Procedural Default of Claims 1 and 2(a)

The Court’s conclusion that Claims 1 and 2(a) are procedurally defaulted does not
end the inquiry. If a claim is procedurally defaulted, a federal court can still hear the
merits of the claim if the petitioner meets one of two exceptions: (1) a showing of
adequate legal cause for the default and prejudice arising from the default, see Coleman
v. Thompson, 501 U.S. 722, 731 (1991), or (2) a showing of actual innocence, which
means that a miscarriage of justice will occur if the claim is not heard in federal court, see
Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986).
Neither an assertion of cause and prejudice nor an assertion of actual innocence under
Schlup is an independent constitutional claim. Rather, these are federal procedural
arguments that, if sufficiently established by the petitioner, allow a federal court to
consider the merits of an otherwise procedurally-defaulted constitutional claim.
i.

Cause and Prejudice

To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. at 488. To
show “prejudice,” a petitioner generally bears “the burden of showing not merely that the

MEMORANDUM DECISION AND ORDER - 7

errors [in his proceeding] constituted a possibility of prejudice, but that they worked to
his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
Petitioner’s submissions do not establish cause and prejudice to excuse the default
of Claim 1—that his trial counsel was ineffective for discovering the correct maximum
sentence. Although, in limited circumstances, the procedural default of an ineffective
assistance of counsel claim may be excused based on lack of counsel (or ineffective
counsel) during initial-review post-conviction proceedings, see Martinez v. Ryan, 566
U.S. 1 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), that equitable exception
does not apply to claims that were defaulted because of a petitioner’s failure to file a
petition for review with the state’s highest court. See Martinez, 566 U.S. at 16 (stating
that a petitioner may not use, as cause to excuse default, any attorney error that occurred
in “appeals from initial-review collateral proceedings, second or successive collateral
proceedings, [or] petitions for discretionary review in a State’s appellate courts”). Thus,
Petitioner’s lack of counsel on appeal from the dismissal of his post-conviction petition
does not constitute cause to excuse his default of Claim 1.
With respect to Claim 2(a), Petitioner argues that his due process rights were
violated based on pre-accusatory delay. Petitioner presented, on direct appeal, a claim
that his counsel was ineffective in failing to dismiss the charges on that basis. (State’s
Lodging B-2.) Therefore, Petitioner can argue that his counsel’s ineffectiveness
constitutes cause to excuse the procedural default of Claim 2(a). See Edwards v.
Carpenter, 529 U.S. 446, 452 (2000) (“A claim of ineffective assistance . . . generally
MEMORANDUM DECISION AND ORDER - 8

must be presented to the state courts as an independent claim before it may be used to
establish cause for a procedural default.”) (internal quotation marks and alteration
omitted). Because that ineffectiveness claim is presented as Claim 2(b) of the Petition,
the question of whether cause and prejudice excuses the default of Claim 2(a) necessarily
rests on the Court’s resolution of the merits of Claim 2(b). Therefore, for the reasons set
forth below in the Court’s discussion of Claim 2(b), see Section 2, infra, Petitioner’s
attorney was not ineffective in failing to raise an issue of pre-accusatory delay, and
Petitioner has failed to establish cause and prejudice to excuse the default of Claim 2(a).
ii.

Fundamental Miscarriage of Justice

The fundamental miscarriage of justice exception allows a federal habeas court to
hear a procedurally defaulted claim if the petitioner shows that he is actually innocent.
Actual innocence in this context “means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998).
In asserting actual innocence, a petitioner must “support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A procedurally defaulted
claim may be heard under the miscarriage of justice exception only if “in light of all of
the evidence, ‘it is more likely than not that no reasonable juror would have found
[Petitioner] guilty beyond a reasonable doubt.’” United States v. Avery, 719 F.3d 1080,
1083 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 327). Stated another way, it must be
more likely than not that every reasonable juror would vote to acquit.
MEMORANDUM DECISION AND ORDER - 9

This is an extremely demanding standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old
and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence standard “does not turn on discrete findings regarding disputed points of fact,
and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must “make a
probabilistic determination about what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329.
Petitioner has not made a colorable showing of actual innocence under Schlup,
513 U.S. at 329. Petitioner’s self-serving statements that he did not commit the crime are
insufficient to meet the extremely strict standard of the actual innocence gateway.
2.

Petitioner Is Not Entitled to Habeas Relief on Claim 2(b)
On direct appeal, the Idaho Court of Appeals rejected Petitioner’s claim that his

counsel rendered ineffective assistance by failing to move to dismiss the 2008 case based
on pre-accusatory delay. (State’s Lodging B-5.) The Court will now review that claim—
presented here as Claim 2(b)—on the merits.
A.

Standards of Law for Review of the Merits of Claim 2(b)

Federal habeas corpus relief may be granted on claims adjudicated on the merits in
a state court judgment when the federal court determines that the petitioner “is in custody
MEMORANDUM DECISION AND ORDER - 10

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances
where the state court’s adjudication of the petitioner’s claim
(1)

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

(2)

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

28 U.S.C. § 2254(d). In determining whether a petitioner is entitled to habeas relief, a
federal court reviews the state court’s “last reasoned decision”—here, the decision of the
Idaho Court of Appeals. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
MEMORANDUM DECISION AND ORDER - 11

applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasis omitted).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that
fair-minded jurists could disagree on the correctness of the state court’s decision, then
relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102
(2011). The Supreme Court has emphasized that “even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. To be entitled to
habeas relief under § 2254(d)(1), “a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
AEDPA deference is required even where the state court denied a petitioner’s
claim without expressly addressing it. In such a case, the federal court must “conduct an
independent review of the record to determine what arguments or theories could have
supported the state court’s decision”; the court must then determine “whether it is
possible fairminded jurists could disagree that those arguments or theories are
MEMORANDUM DECISION AND ORDER - 12

inconsistent with the holding in a decision of the Supreme Court.” Bemore v. Chappell,
788 F.3d 1151, 1161 (9th Cir. 2015) (internal quotation marks and alterations 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. 2000).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] Court has not
announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).
As to the facts, the United States Supreme Court has clarified “that review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). This means that
evidence not presented to the state court may not be introduced on federal habeas review
if a claim was adjudicated on the merits in state court and if the underlying factual
determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d
984, 999-1000 (9th Cir. 2014).
Two separate statutory subsections govern a federal court’s review of state court
factual findings. When a petitioner contests the reasonableness of the state court’s factual
determinations based entirely on the state court record, a federal court must undertake a
§ 2254(d)(2) analysis. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). There are
two general ways to challenge factual findings as unreasonable under § 2254(d)(2).
“First, a petitioner may challenge the substance of the state court’s findings and attempt
MEMORANDUM DECISION AND ORDER - 13

to show that those findings were not supported by substantial evidence in the state court
record. Second, a petitioner may challenge the fact-finding process itself on the ground
that it was deficient in some material way.” Hibbler v. Benedetti, 693 F.3d 1140, 1146
(9th Cir. 2012) (internal citations omitted).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the state
court decision was based upon factual determinations that were “unreasonable . . . in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A
“state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.” Wood v. Allen, 558
U.S. 290, 301 (2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The
question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold.”).
Under the second subsection dealing with state court factual findings, 28 U.S.C. §
2254(e)(1), such findings are presumed to be correct, and the petitioner has the burden of
rebutting this presumption by clear and convincing evidence. The Ninth Circuit has held
that “the presumption of correctness and the clear-and-convincing standard of proof [as
set forth in § (e)(1)] only come into play once the state court’s fact-findings survive any
intrinsic challenge [under § (d)(2)]; they do not apply to a challenge that is governed by
the deference implicit in the ‘unreasonable determination’ standard of section
2254(d)(2).” Taylor, 366 F.3d at 1000.

MEMORANDUM DECISION AND ORDER - 14

Despite the Ninth Circuit’s distinction between §§ (d)(2) and (e)(1) in Taylor, the
relationship between § 2254(d)(2) and § 2254(e)(1) is not entirely clear. See Wood, 558
U.S. at 300 (declining to address the issue); Murray v. Schriro, 745 F.3d at 1001 (noting
that the Supreme Court has, in some cases, assumed that § (e)(1) merely qualifies § (d)(2)
and that “we too have continued to struggle with the relationship between §§ 2254(d)(2)
and (e)(1) when reviewing state-court factual findings under AEDPA”). The uncertainty
of the relationship between the two subsections is amplified in the Ninth Circuit as a
result of the Supreme Court’s abrogation of the underpinning of Taylor—that a federal
could review, under § (e)(1), factual findings of a state court based on evidence not
presented to that court even if the claim was adjudicated on the merits. See Pinholster,
563 U.S. at 180. However, any differences between § 2254(d)(2) and § 2254(e)(1) are
rarely determinative. See Wood, 558 U.S. at 304-05 (“Because the resolution of this case
does not turn on them, we leave for another day the questions of how and when
§ 2254(e)(1) applies in challenges to a state court’s factual determinations under
§ 2254(d)(2).”); Murray, 745 F.3d at 1001 (“[W]e do not believe the difference between
our two lines of cases is determinative in this case, and thus we need not resolve the
apparent conflict to decide this case.”).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to, or an unreasonable application of, Supreme
Court law or by establishing that the state court’s factual findings were unreasonable—
then the federal habeas court must review the petitioner’s claim de novo. Hurles v. Ryan,
752 F.3d 768, 778 (9th Cir. 2014). De novo review is also required where the state
MEMORANDUM DECISION AND ORDER - 15

appellate court did not decide a properly-asserted claim or where an adequate excuse for
the procedural default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.
2002); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc).
When considering a habeas claim de novo, a district court may, as in the preAEDPA era, draw from both United States Supreme Court and well as circuit precedent,
limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even
under de novo review, however, if the factual findings of the state court are not
unreasonable under § 2254(d)(2), the Court must apply the presumption of correctness
found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at
1167-68. Contrarily, if a state court factual determination is unreasonable, the federal
court is not limited by § 2254(e)(1) and may consider evidence outside the state court
record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d at
1000.
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
(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).
Claim 2(b) alleges ineffective assistance of counsel based on counsel’s failure to
move to dismiss the charges against Petitioner based on pre-accusatory delay. The Sixth
MEMORANDUM DECISION AND ORDER - 16

Amendment to the United States Constitution provides that a criminal defendant has a
right to the effective assistance of counsel in his defense.
The standard for ineffective assistance of counsel claims was identified in
Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective
assistance of counsel must show that (1) counsel rendered deficient performance, that is,
“counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and (2) those errors were prejudicial
in that they “deprive[d] the defendant of a fair trial, a trial whose result is reliable.” Id. at
687. A petitioner must establish both deficient performance and prejudice to prove an
ineffective assistance of counsel case; 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. at 697.
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
MEMORANDUM DECISION AND ORDER - 17

within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense or which witnesses to present,
“are virtually unchallengeable” if “made after thorough investigation of law and facts
relevant to plausible options.” Strickland, 466 U.S. at 690. Moreover, an attorney who
decides not to investigate a potential defense theory is not ineffective so long as the
decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91. Further, counsel is not deficient in an area where an investigation would
not have been fruitful for the defense.
The Ninth Circuit has provided some insight into the Strickland standard when
evaluating an attorney’s “strategy calls.” These cases are instructive in the Court’s
assessment of whether the state court reasonably applied Strickland. Duhaime, 200 F.3d
at 600. First, tactical decisions do not constitute ineffective assistance simply because, in
MEMORANDUM DECISION AND ORDER - 18

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, ___ F.3d ___, No. 14-17366, slip op. at 13, 2017 WL
1416392, at *4 (9th Cir. April 21, 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.”).
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
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
MEMORANDUM DECISION AND ORDER - 19

making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112. To show prejudice
based on deficient performance of counsel in a case where, as here, the petitioner pleaded
guilty, the petitioner “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.

MEMORANDUM DECISION AND ORDER - 20

Richter, 562 U.S. at 101. That is, when evaluating a claim of ineffective assistance of
counsel in a federal habeas proceeding under § 2254(d), the Court’s review of that claim
is “doubly deferential.” Pinholster, 563 U.S. at 190 (internal quotation marks omitted).
B.

Discussion

During “the pre-accusatory stage of criminal proceedings, defendants are protected
from undue delay by the applicable statute of limitations and the general proscriptions of
the Due Process Clause.”2 United States v. West, 607 F.2d 300, 304 (9th Cir. 1979)
(citing Marion, 404 U.S. at 322-24). In United States v. Marion, the Supreme Court
described the requirements of due process in this situation as follows:
the Due Process Clause of the [Fourteenth] Amendment
would require dismissal of the indictment if it were shown at
trial that the pre-indictment delay . . . caused substantial
prejudice to [defendants’] rights to a fair trial and that the
delay was an intentional device to gain tactical advantage
over the accused.
404 U.S. at 324. Marion stands for the proposition that pre-accusatory delay results in a
due process violation only if the defendant was prejudiced by the delay and the delay was
a tactical decision by the prosecutor to gain an advantage over the defendant. Relying on
Marion, the Ninth Circuit has held that a due process claim based on pre-accusatory
delay requires consideration of three elements: (1) actual prejudice to the defendant; (2)
the length of the delay; and (3) the reason for the delay. West, 607 F.2d at 304.
Pre-accusatory delay based on the need to investigate and to establish probable
cause does not violate the Due Process Clause, and that clause “does not permit courts to
2

There is no statute of limitations for the charge of sexual abuse of a child under the age of sixteen.
See Idaho Code § 19-401(4).

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abort criminal prosecutions simply because they disagree with a prosecutor’s judgment as
to when to seek an indictment.” United States v. Lovasco, 431 U.S. 783, 790-91 (1977).
In addition, “prosecutors are under no duty to file charges as soon as probable cause
exists but before they are satisfied they will be able to establish the suspect’s guilt beyond
a reasonable doubt.” Id. at 791.
To establish Strickland prejudice as to Claim 2(b), Petitioner must show a
reasonable probability that, had his attorney moved to dismiss, that motion would have
granted such that Petitioner would not have pleaded guilty. See Hill, 474 U.S. at 59. The
motion would have been granted if Petitioner established actual prejudice from the delay
and an improper government motive behind the delay.
In considering whether a motion to dismiss based on pre-accusatory delay would
have been granted, the Idaho Court of Appeals appropriately relied on a state court
decision that, in turn, relied on the United States Supreme Court’s decision in Marion.
(State’s Lodging B-5 at 14, citing State v. Kruse, 606 P.2d 981, 982 (Idaho 1980) (per
curiam).) The court of appeals accurately described Petitioner’s claim as follows:
Lynch argues he was substantially prejudiced because
the delay caused a loss of evidence. He asserts witnesses,
intended to be called to testify in the 1997 case, are now
unable to be found and another witness has since died. Lynch
also claims the State gained tactical advantages because the
delay allowed for the development of 404(b) prior bad act
evidence and the addition of two charges to the information.
Finally, he claims prejudice because his bond requirement
was higher in the re-filed case and, because he could not meet
the bond requirement, the State gained another witness, a
cellmate and jailhouse informant, to testify against Lynch.
Lynch asserts that had defense counsel filed a motion to
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dismiss for pre-accusatory delay, it would have been a
complete defense to the charges.
(Id.; see also State’s Lodging B-2 at 27-34.)
The court then held that Petitioner had failed to establish actual prejudice from the
delay:
Although a loss of evidence can constitute prejudice, Lynch
does not assert who the witnesses are, now unable to be
located or deceased, or to what those witnesses would have
testified. Lynch provided defense counsel in the 2008 case
with a list of character witnesses. He does not assert in any
specific way that the unavailable witnesses from the 1997
case would have added any evidence or testimony to the case
in addition to those potential character witnesses. Lynch also
fails to point to how the use of 404(b) evidence against him
violated due process. The State did develop 404(b) evidence
for use in the second case. However, most of that evidence
was regarding acts by the defendant which occurred prior to
the charges in 1997 and Lynch has not established that the
continuing investigation of charges caused substantial and
actual prejudice to him in the 2008 prosecution. See United
States v. Lovasco, 431 U.S. 783, 790–91, 97 S. Ct. 2044, 52
L.Ed.2d 752 (1977) (prosecuting a defendant following
investigative delay does not deprive him of due process, even
if his defense may be somewhat prejudiced by a lapse of
time). As to the additional charges brought in 2008, any
further investigation may result in additional or new charges.
See Averett, 142 Idaho at 885, 136 P.3d at 356 (“[N]ew
evidence constitutes a sufficient basis to dismiss and re-file
charges.”). Finally, Lynch has failed to establish prejudice by
the State’s additional witness, the cellmate, gained as a result
of Lynch’s incarceration during the 2008 case due to the
higher bond requirement. Lynch made statements, similar in
nature to those made to the cellmate, on other occasions to
various individuals. Statements made by Lynch in 1997,
nearly identical to those Lynch made to the cellmate, were
permitted by the district court to be used in trial against
Lynch when the court denied Lynch’s motion to suppress
based on illegal seizure.

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(State’s Lodging B-5 at 14-15.)
Relying on the original prosecutor’s testimony that the earlier charges were
dismissed “because of a lack of corroborating evidence,” the state court went on to find
that the delay in prosecuting the charges was not “a deliberate act by the State to harass,
delay, or forum shop.” (Id. at 15.) Because Petitioner had not established either actual
prejudice from the pre-accusatory delay or an improper reason for the delay, the court
rejected Petitioner’s claim that his trial counsel rendered ineffective assistance in failing
to move to dismiss based on that delay. (Id.)
Petitioner has not established that the court of appeals’ decision (1) was an
unreasonable application of Strickland or (2) was based on an unreasonable finding of
fact. Although the length of time between the dismissal of the original charges and
Petitioner’s 2008 prosecution was substantial, Petitioner has not shown that this delay
was motivated by the state’s desire for a tactical advantage or that he suffered actual
prejudice from the delay. Therefore, Petitioner has not established a reasonable
probability that any motion to dismiss based on pre-accusatory delay would have been
granted, he has not shown Strickland prejudice, and he is not entitled to relief on Claim
2(b) under 28 U.S.C. § 2254(d).
CONCLUSION
For the foregoing reasons, Claims 1 and 2(a) will be dismissed as procedurally
defaulted, and Claim 2(b) will be denied on the merits.

MEMORANDUM DECISION AND ORDER - 24

ORDER
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus (Dkt. 1) is DISMISSED IN PART
and DENIED IN PART, and this entire action is DISMISSED with
prejudice.

2.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If
Petitioner wishes to appeal, he must file a timely notice of appeal with the
Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.

DATED: May 11, 2017

Honorable Candy W. Dale
United States Magistrate Judge

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