Alfaro v. Ramirez

Filing 21

MEMORANDUM DECISION AND ORDER - 1. The parties Motions for Extension of Time (Dkts. 11 , 15 ) are GRANTED. 2. All prior decisions of the Magistrate Judge in this case are hereby adopted and confirmed after a de novo review of the record. 3. Respond ent's Motion for Partial Summary Dismissal (Dkt. 13 ) is GRANTED. 4. Respondent shall file an answer to the remaining claims within 90 days after entry of this Order... Petitioner shall file a reply (formerly called a traverse), containing a br ief rebutting Respondent's answer and brief, which shall be filed and served within 30 days after service of the answer. Respondent has the option of filing a sur-reply within 14 days after service of the reply. At that point, the case shall be deemed ready for a final decision... 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
MICHAEL ALFARO,
Petitioner,

Case No. 1:16-cv-00124-DCN

vs.

MEMORANDUM DECISION
AND ORDER

AL RAMIREZ,
Respondent.

Pending before the Court in this federal habeas corpus matter is Respondent’s
Motion for Partial Summary Dismissal, seeking dismissal of Claims One(A), One(B), and
Four in the Amended Petition. Dkt. 13, 6. The motion is fully briefed and ripe for
adjudication. Having reviewed the briefing and the state court record, the Court enters the
following Order.
REVIEW OF PRELIMINARY MOTIONS
Pending before the Court are Petitioner’s and Respondent’s requests for extensions
of time regarding briefing of the pending summary dismissal issues. Dkt. 11, 15. Good
cause appearing, both motions will be GRANTED.
BACKGROUND
In a state criminal action in the Third Judicial District Court in Canyon County,
Idaho, Petitioner was convicted by jury of aiding and abetting first degree murder, aiding
and abetting aggravated assault, aiding and abetting unlawful use of a firearm, and
infliction of great bodily harm. Petitioner was accused of being the driver in a gang-

MEMORANDUM DECISION AND ORDER - 1

related drive-by shooting perpetrated by a shooter in Petitioner’s car firing into a rival
gang member’s house and killing an occupant who stood in the kitchen.
Petitioner received a prison sentence of 20 fixed years, with life indeterminate.
Judgment was entered on January 3, 2011. Petitioner filed a direct appeal and a postconviction action in state court. This federal habeas corpus case was stayed for several
months to permit Petitioner to exhaust his state court remedies. Dkt. 4. Petitioner
obtained no relief from his state court actions, and this case was re-opened on May 22,
2017. Dkt. 7.
STANDARD OF LAW FOR REVIEW
OF SUMMARY DISMISSAL MOTIONS
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.” The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
A habeas petitioner must exhaust his remedies in the state court system 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

MEMORANDUM DECISION AND ORDER - 2

discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all his federal claims 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
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.;

MEMORANDUM DECISION AND ORDER - 3

Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
REVIEW OF REQUEST FOR DISMISSAL
1. Discussion of Claims One(A) and One(B)
Claim One(A) is that trial counsel was ineffective because he failed to object to
the consolidated amended indictment on the charge of aiding and abetting first degree
murder filed by the State, and he failed to object to the court entering a judgment of
conviction on that charge on the basis that he had not been properly indicted. Claim
One(B) is that direct appeal counsel failed to raise the issue that the State lacked authority
to file the consolidated amended indictment.
Petitioner raised these claims in his initial state post-conviction petition. (State’s
Lodging C-1, p. 6.) Petitioner’s post-conviction appellate counsel—experienced criminal
law attorney Greg Silvey—reviewed Petitioner’s case and could not identify any
meritorious claims to bring on appeal. After appellate counsel withdrew from the appeal,
Petitioner did not file a pro se appellate brief, and the appeal was conditionally dismissed
and then finally dismissed after notice to Petitioner. (See States’ Lodgings D-1 through
D-5.) Therefore, Claims One(A) and One(B) were not properly exhausted, and they are
now procedurally defaulted.
2. Discussion of Claim Four
Claim Four is one of cumulative error, in violation of the Fourteenth
Amendment’s Due Process Clause. Petitioner raised a cumulative error claim on direct
appeal before the Idaho Court of Appeals. (State’s Lodging B-1, p. 19.) However,

MEMORANDUM DECISION AND ORDER - 4

Petitioner’s counsel—experienced criminal attorneys Dennis Benjamin and Robyn
Fyffe—did not include that claim in the petition for review before the Idaho Supreme
Court, but focused instead on claims of prosecutorial misconduct, insufficient evidence,
and abuse of discretion in sentencing. (State’s Lodging B-6.)
Petitioner’s counsel included in the petition for review a footnote that Petitioner’s
“Opening and Reply Briefs [that were submitted to the Court of Appeals] are
incorporated in full herein” (State’s Lodging B-6, p. 1, n. 1). The footnote was attached to
the introductory paragraph that particularly requested review of only three distinct issues.
Cumulative error was not among the three issues presented. The Court rejects Petitioner’s
argument that he presented his cumulative error claim to the Idaho Supreme Court via
such a footnote.
3. Discussion of Exceptions to Allow Claims to Be Heard on the Merits
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).
A. Traditional Coleman Cause
Ordinarily, to show “cause” for a procedural default, a petitioner must prove that
some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Coleman v. Thompson, 501 U.S. at 753. To
show “prejudice,” a petitioner must demonstrate “not merely that the errors [in his
MEMORANDUM DECISION AND ORDER - 5

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).
A petitioner does not have a federal constitutional right to effective assistance of
counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551,
554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general
rule is that any errors of counsel during a postconviction action cannot serve as a basis for
cause to excuse a procedural default. Coleman, 501 U.S. at 752.
B. Martinez Cause
A limited exception to the Coleman rule exists in Martinez v. Ryan, 566 U.S. 1
(2012). That case held that inadequate assistance of post-conviction review (PCR)
counsel or lack of counsel “at initial-review collateral review proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 9 (emphasis added). To show ineffective assistance of PCR counsel, Petitioner must
show that the defaulted ineffective assistance of trial counsel claims are “substantial,”
meaning that the claims have “some merit.” Id. at 14. To show that each claim is
substantial, Petitioner must show that trial counsel performed deficiently, resulting in
prejudice, defined as a reasonable probability of a different outcome at trial. Id.; see
Strickland v. Washington, 466 U.S. 668, 695-96 (1984).
C.

Discussion of Cause and Prejudice

Petitioner asserts that the “cause” of the procedural default of his claims is
ineffective assistance of post-conviction counsel. Dkt. 17. Petitioner argues that his postMEMORANDUM DECISION AND ORDER - 6

conviction counsel on appeal (Mr. Silvey) was ineffective when counsel filed a motion to
withdraw after concluding that there were no nonfrivolous issues that could be presented
from the record. (Dkt. 17-1.) Martinez provides for no exception to the procedural default
rule when post-conviction appellate counsel is the cause of a default.
In addition, the Martinez v. Ryan exception applies only to defaulted claims of
ineffective assistance of trial counsel; it has not been extended to other types of claims.
Therefore, Claim One(B) is not eligible for application of the Martinez exception. See
Davila v. Davis, 137 S. Ct. 2058 (2017) (holding that Martinez is not applicable to claims
of ineffective assistance of direct appeal counsel). Neither is Martinez applicable to
Claim Four, a cumulative error claim. Cf., Hunton v. Sinclair, 732 F.3d 1124 (9th Cir.
2013) (holding that Martinez is not applicable to a defaulted Brady claim).
Further, the traditional Coleman rule specifically excludes post-conviction counsel
as “cause.” While ineffectiveness of direct appeal counsel (Mr. Benjamin and Ms. Fyffe)
could function as “cause” for the procedural default of other claims, such as the
cumulative error claim, that is possible only when the ineffective assistance of direct
appeal counsel claim itself has been fully exhausted in the state court system or when
another level of cause and prejudice for the default of the ineffective assistance of direct
appeal counsel claim has been established. See Edwards v. Carpenter, 529 U.S. 446, 451
(2000).
Petitioner has shown neither that his direct appeal attorneys were ineffective for
selecting the limited claims they brought in the petition for review before the Idaho
Supreme Court, nor that he separately exhausted such a direct appeal counsel claim in
MEMORANDUM DECISION AND ORDER - 7

state court as required by Edwards, nor that cause and prejudice exists for the default of
the ineffective assistance of direct appeal counsel claim, an alternative requirement of
Edwards. Therefore, the traditional Coleman cause and prejudice exception is not
applicable here.
D. Actual Innocence Standard of Law
If a petitioner cannot show cause and prejudice for a procedurally defaulted claim,
he can still raise the claim if he demonstrates that the court’s failure to consider it will
result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494
(1991). A miscarriage of justice means that a constitutional violation has probably
resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477
U.S. at 496.
A compelling showing of actual innocence can satisfy the fundamental
miscarriage of justice exception to procedural default, allowing a court to review
Petitioner’s otherwise defaulted claims on their merits. See Schlup v. Delo, 513 U.S. 298,
315, 324 (1995). There remains the caveat, however, that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 64,
623 (1998).
E.

Discussion of Actual Innocence

Throughout his criminal proceedings, Petitioner has maintained that he is factually
and legally innocent of the crimes for which he was convicted. He has asserted that his
trial counsel failed to investigate and discover a key alibi witness, who would have
established that Petitioner had an alibi and could not have committed the crime. Petitioner
MEMORANDUM DECISION AND ORDER - 8

submitted his own affidavit to this effect in the state post-conviction matter; however, it
does not identify the witness, state the facts the witness knows, explain why the
information provides an alibi, or otherwise provide any facts to support an alibi defense.
Neither is it clear that the witness would have been available and willing to testify on
Petitioner’s behalf at the criminal trial. (See State’s Lodging C-1, pp. 12-13.)
Legal innocence—that the amended indictment was faulty—will not support an
actual innocence claim. Accordingly, Petitioner’s procedural default is not excused under
the miscarriage of justice exception.
4. Conclusion
The Court concludes that Claims One(A), One(B), and Four are procedurally
defaulted and that no exception applies to excuse their default. In addition, all prior
decisions of the Magistrate Judge in this case are hereby adopted and confirmed after a de
novo review of the record. Petitioner may proceed to the merits of Claims Two and
Three.
ORDER
1.

The parties’ Motions for Extension of Time (Dkts. 11, 15) are GRANTED.

2.

All prior decisions of the Magistrate Judge in this case are hereby adopted
and confirmed after a de novo review of the record.

3.

Respondent=s Motion for Partial Summary Dismissal (Dkt. 13) is
GRANTED.

4.

Respondent shall file an answer to the remaining claims within 90 days
after entry of this Order. The answer should also contain a brief setting

MEMORANDUM DECISION AND ORDER - 9

forth the factual and legal basis of grounds for dismissal and/or denial of
the remaining claim. Petitioner shall file a reply (formerly called a
traverse), containing a brief rebutting Respondent=s answer and brief, which
shall be filed and served within 30 days after service of the answer.
Respondent has the option of filing a sur-reply within 14 days after service
of the reply. At that point, the case shall be deemed ready for a final
decision.
5.

No party shall file supplemental responses, replies, affidavits or other
documents not expressly authorized by the Local Rules without first
obtaining leave of Court.

6.

No discovery shall be undertaken in this matter unless a party obtains prior
leave of Court, pursuant to Rule 6 of the Rules Governing Section 2254
Cases.

DATED: March 12, 2018
_________________________
David C. Nye
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 10