Osterhoudt v. Blades

Filing 21

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Respondents Motion for Summary Dismissal (Dkt. 15 ) is GRANTED, and the Petition is DISMISSED with prejudice. 2. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Candy W. Dale. (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

FRANKLIN W. OSTERHOUDT,
Case No. 1:16-cv-00053-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY BLADES, Warden, Idaho State
Correctional Center,
Respondent.

Pending before the Court is Petitioner Franklin W. Osterhoudt’s Petition for Writ
of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal,
arguing that (1) all of Petitioner’s claims are procedurally defaulted, (2) all of the claims
are untimely, and (3) some of Petitioner’s claims are not cognizable. (Dkt. 15.) The
Motion 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 (9th Cir. 2006).

MEMORANDUM DECISION AND ORDER - 1

The 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). (Dkt. 10.)
Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting Respondent’s Motion and
dismissing the Petition with prejudice.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Osterhoudt, 318 P.3d 636 (Idaho Ct. App. 2013). The facts will not be repeated
here except as necessary to explain the Court’s decision.
After three trials, Petitioner was convicted by a jury in the Fifth Judicial District in
Twin Falls County, Idaho, of rape, incest, and two counts of lewd conduct with a minor
under the age of sixteen.1 Id. at 638. Petitioner filed a direct appeal, alleging violations of
the Idaho Rules of Evidence and cumulative error. (State’s Lodging B-1; B-3.) The Idaho
Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging
B-5, B-9.)

Petitioner’s first trial ended in a hung jury. After the jury returned guilty verdicts in the second
trial, the court ordered a new trial based on the prosecutor’s improper comment, during closing argument,
regarding Petitioner’s decision not to testify. Osterhoudt, 318 P.3d at 639; State’s Lodging A-2 at 512-30.
1

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Petitioner then filed a petition for state post-conviction relief. (State’s Lodging C-1
at 11-14.) The trial court dismissed the petition, and Petitioner did not file an appeal. (Id.
at 21-28.)
Petitioner filed a second state post-conviction petition. This petition was not
signed by Petitioner, although Petitioner did submit documents designating an agent, who
purportedly signed on Petitioner’s behalf. (State’s Lodging D-1 at 3-26.) The trial court
dismissed the petition, and Petitioner did not appeal. (Id. at 154-62.)
Petitioner returned to state district court with a third post-conviction petition.
(State’s Lodging E-1 at 3-6.) The court dismissed the petition, and Petitioner did not
appeal. (Id. at 145-52.)
Petitioner then filed a fourth post-conviction petition. (State’s Lodging F-1 at 315.) The state district court dismissed the petition, and—once again—Petitioner did not
appeal. (Id. at 28-35.) Before the fourth petition was dismissed, the administrative district
judge found that Petitioner was a vexatious litigant. (State’s Lodging G-1 at 2-5.) The
judge later entered a prefiling order prohibiting Petitioner from filing “any new litigation
in the courts of this state pro se without first obtaining leave of a judge of the court where
the litigation is proposed to be filed.” (Id. at 11.)
Pursuant to the prefiling order, Petitioner submitted a motion for leave to file a
fifth post-conviction petition. (Id. at 15-16.) The trial court denied the motion. (Id. at 5859.) Although Petitioner attempted to appeal the denial of the motion, the court dismissed

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the notice of appeal because the denial of the motion was not an appealable order. (Id. at
60-64.)
In the instant federal habeas corpus petition, Petitioner asserts the following
claims:
Claim 1:

Petitioner’s due process rights were violated by the
state court’s denial of Petitioner’s prefiling motion for
leave to file his fifth post-conviction petition.

Claim 2:

Petitioner’s constitutional rights were violated when he
was declared a vexatious litigant.

Claim 3:

Petitioner’s trial attorney denied Petitioner his
constitutional right to testify.

Claim 4(a):

Law enforcement did not follow proper procedures or
conduct an adequate investigation into the crime.

Claim 4(b):

A witness committed perjury at Petitioner’s trial.

Claim 4(c):

The lead detective on Petitioner’s case was dishonest
in conducting search warrants and coaching witnesses.

Claim 4(d):

The prosecution violated Petitioner’s rights by
allowing the lead detective to sit at the prosecution’s
table during trial.

Claim 4(e):

The state court improperly allowed the lead detective
to listen to the testimony of other witnesses during
trial.

Claim 4(f):

Law enforcement mishandled evidence admitted at
trial.

Claim 4(g):

The trial court improperly admitted evidence of prior
uncharged acts.

Claim 4(h):

The trial court allowed a witness to make a prejudicial
statement during her testimony.

MEMORANDUM DECISION AND ORDER - 4

Claim 4(i):

The trial judge had previous knowledge of the prior
uncharged acts.

Claim 4(j):

Several different judges presided over Petitioner’s
hearings and at trial.

Claim 4(k):

The prosecutor charged Petitioner maliciously and
without supporting evidence.

Claim 4(l):

The search and arrest warrants were invalid as based
on false information.

Claim 4(m):

The trial court “allow[ed] the jury to believe petitioner
fled to Mexico, which was not allowed at prior trials.”

Claim 4(n):

The trial court did not make a record of whether
Petitioner wished to testify on his own behalf.

Claim 4(o):

The prosecutor committed misconduct by making
prejudicial remarks during trial.

Claim 4(p):

The prosecutor committed misconduct by having
access to evidence “which clears Petitioner of all
charges,” yet continuing to pursue a conviction
“contrary to evidence.”

Claim 4(q):

Petitioner is actually innocent.

Claim 4(r):

Law enforcement failed to investigate evidence that
the victim had sex with another adult.

Claim 4(s):

Petitioner’s counsel was ineffective by failing to raise
the issues identified in Claims 4(a) through 4(r).2

Claim 4(t):

Petitioner’s attorney did not allow Petitioner to testify.
This claim appears to be duplicative of Claim 3.

2

Because of the way in which Petitioner structured his Petition and supporting documents, the
Court initially construed Claim 4(s) as alleging ineffective assistance of post-conviction counsel. (Dkt. 7
at 4.) However, as Respondent points out (see Dkt. 15-1 at 7 n.5.), Claim 4(s) is more likely an allegation
that Petitioner’s trial or direct appeal counsel was ineffective, as Claims 4(a) through 4(r) are issues that
could have been raised at trial and on direct appeal.

MEMORANDUM DECISION AND ORDER - 5

Claim 4(u):

Petitioner’s trial attorney rendered ineffective
assistance by failing to call key witnesses who would
have established that the victim was lying.

Claim 4(v):

Petitioner’s trial counsel requested a mistrial due to
several prejudicial comments. It is unclear whether
Petitioner is claiming that counsel was ineffective in
moving for a mistrial (a Sixth Amendment claim) or
that the trial court improperly denied counsel’s request
for a mistrial (a Fourteenth Amendment claim).

Claim 4(w):

Petitioner’s trial counsel did not adequately prepare for
trial and visited Petitioner “very few times.”

Claim 4(x):

Petitioner’s counsel on direct appeal failed “to include
many other appealable issue’s [sic].”

(Dkt. 1, 7.)
The Court previously reviewed the Petition and allowed Petitioner to proceed on
his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action,
(2) were timely filed in this Court, and (3) were either properly exhausted in state court or
subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 4-10.)
DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily
dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” Where appropriate, a respondent may file a motion for summary dismissal, rather
than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
Respondent argues that Petitioner’s claims are procedurally defaulted and
untimely and that some of the claims are noncognizable. The Court need not address

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Respondent’s timeliness or cognizability arguments, because the Court finds that all of
Petitioner’s claims are procedurally defaulted and that no legal excuse for the default
exists.
1.

Standards of Law
A habeas petitioner must exhaust his or her remedies in the state courts before a

federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
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

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by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
To be an “adequate” state ground, a procedural bar must be one that is “‘clear,
consistently applied, and well-established at the time of the petitioner’s purported
default.” Martinez v. Klauser, 266 F.3d 1091, 1093 (9th Cir. 2001) (quoting Wells v.
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is “independent” of
federal law if it does not rest on, and if it is not interwoven with, federal grounds. Bennett
v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
2.

Petitioner’s Claims Are Procedurally Defaulted
The most straightforward manner to resolve the exhaustion and procedural default

status of Petitioner’s federal claims is to review which claims were raised and addressed
on the merits in the state court appellate proceedings.
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On direct appeal, Petitioner argued only that the admission of evidence at trial
violated the Idaho Rules of Evidence. He did not raise any federal claims. (State’s
Lodging B-1.) Although Petitioner cited his right to a “fair trial” during his cumulative
error argument (id. at 39), his reference to this “broad constitutional principle[]” is not
enough to constitute fair presentation of a federal constitutional claim, see Hiivala, 195
F.3d at 1106.
Petitioner did not appeal the state district court’s dismissal of his first, second,
third, or fourth post-conviction petitions. Therefore, he did not fairly present any of those
claims to the Idaho Supreme Court.
Although Petitioner attempted to appeal the trial court’s denial of his motion for
leave to file a fifth post-conviction petition, that order was not appealable. For the sake of
argument, the Court will assume that Petitioner’s attempt to appeal would have
constituted fair presentation of the claims included the fifth post-conviction petition if
those claims were otherwise properly before the trial court. However, the trial court
denied the motion because Petitioner’s proposed fifth post-conviction petition was
nothing more than “another successive petition for post-conviction relief.” (State’s
Lodging G-1 at 59.) It is clear, then, that the trial court relied on the successive petitions
bar in Idaho Code § 19-4908—which prohibits successive petitions absent a “sufficient
reason” why the claims were “not asserted or [were] inadequately raised” in the initial
post-conviction petition—in denying Petitioner’s prefiling motion.

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This Court has held previously that Idaho Code § 19-4908 is an adequate and
independent state procedural ground, and Petitioner has not persuaded the Court to
reconsider that conclusion. See, e.g., Gallegos v. Yordy, No. 1:15-CV-00316-REB, 2016
WL 4186915, at *5 (D. Idaho Aug. 8, 2016); McCormack v. Baldridge, No. 1:10-cv00289-EJL, 2012 WL 4138479, at *5-6 (D. Idaho Sept. 19, 2012). Therefore, Petitioner’s
fifth post-conviction petition did not properly exhaust any of his federal claims.
Because none of Petitioner’s habeas claims was fairly presented to the Idaho
Supreme Court, and because it is now impossible to do so, all of Petitioner’s claims are
procedurally defaulted. See Gray, 518 U.S. at 161-62.
3.

Petitioner Has Not Established that the Procedural Default of His Claims
Should Be Excused
The Court’s conclusion that Petitioner’s claims are procedurally defaulted does not

end the inquiry. A federal court can still hear the merits of a procedurally-defaulted 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, they 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.

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Petitioner argues that his claims should be heard on the merits because he is
actually innocent.3 (Dkt. 17.) 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.
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
3

Petitioner does not assert cause and prejudice as an excuse for the default of his claims. Although
Petitioner raises ineffective assistance of counsel claims in his Petition (Dkt. 1), he does not separately
assert ineffective assistance as cause for the default of any claim (Dkt. 17, 20). Even if he did, however,
such an argument would fail. For ineffective assistance of trial or direct counsel to serve cause to excuse a
default, that ineffectiveness claim must itself have been separately presented to the state appellate courts.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (“[A]n ineffective-assistance-of-counsel claim asserted
as cause for the procedural default of another claim can itself be procedurally defaulted.”). Petitioner’s
ineffectiveness claims were not properly exhausted and, thus, cannot constitute cause. Further, Petitioner
does not argue that ineffective assistance of counsel, or lack of counsel, in his initial-review collateral
proceedings caused the default of a substantial claim of ineffective assistance of trial or direct appeal
counsel. See Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012); Nguyen v. Curry, 736 F.3d 1287, 1293-94
(9th Cir. 2013).

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F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence analysis “does not turn on discrete findings regarding disputed points of fact,
and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must “make a
probabilistic determination about what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329.
When a district court is considering an actual innocence gateway argument, it has
the discretion to assess the reliability and probative force of the petitioner’s proffer,
including making some credibility determinations, if necessary. Schlup, 513 U.S. at 331332. Although “habeas petitioners who assert convincing actual-innocence claims [need
not] prove diligence to cross a federal court’s threshold,” a court “‘may consider how the
timing of the submission and the likely credibility of a petitioner’s affiants bear on the
probable reliability of evidence of actual innocence.’” McQuiggin v. Perkins, 133 S. Ct.
1924, 1935 (quoting Schlup, 513 U.S. at 332) (alterations omitted).
Petitioner has not submitted any reliable evidence that he is actually innocent.
Based on a thorough review of the entire state court record, the Court cannot conclude it
is more likely than not that every reasonable juror would vote to acquit Petitioner.
Therefore, Petitioner has not established that a miscarriage of justice would occur if his
claims are not heard on the merits, and all of his claims must be dismissed as
procedurally defaulted.

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CONCLUSION
For the foregoing reasons, the Court must dismiss the Petition with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Summary Dismissal (Dkt. 15) is GRANTED, and
the Petition is DISMISSED with prejudice.

2.

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

DATED: January 10, 2017

Honorable Candy W. Dale
United States Magistrate Judge

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