Sivak v. Blades

Filing 116

MEMORANDUM DECISION AND ORDER The Court's conditional grant of Respondent's Motion for Summary Dismissal with respect to Petitioner's resentencing claims (Dkt. 82 ) is CONFIRMED. All of Petitioner's resentencing claims are DISMIS SED with prejudice as procedurally defaulted. Petitioner's Motion for Court to Rescind its Memorandum Decision and Order dated 8/29/17, based on False Data and Perjured Presentations (Dkt. 83 ) is DENIED as frivolous. Petitioner's Request for Hearing (Dkt. 88 ) is DENIED. Petitioner's Motion to Sanction Respondent (Dkt. 91 ) is DENIED as frivolous. Petitioner's Motion for Restraining Order (Dkt. 96 ) is DENIED. Petitioner's Motion to Allow Other Issues Previously Denied to Proceed (Dkt. 101 ) is GRANTED to the extent that the Court VACATES its previous dismissal of Petitioner's guilt-phase claims. The Court's previous dismissal of (1) Petitioner's claim challenging his now-vacated death senten ce, (2) Petitioners civil rights claims, and (3) Petitioner's "claim" that he might have other potential claims, is not affected by this Order. Petitioner's Request for Investigation Relevant to Case (Dkt. 110) is DENIED. Withi n 60 days after entry of this Order, Respondent must file an answer and brief. Within 28 days after service of Respondent's answer and brief as to Petitioner's guilt phase claims, Petitioner must file a reply to that answer and brief. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LACEY MARK SIVAK,
Case No. 1:16-cv-00189-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
JAY CHRISTENSEN,1
Respondent.

On October 3, 2016, the Court dismissed numerous claims in the instant Petition
for Writ of Habeas Corpus, filed by Petitioner Lacy Mark Sivak (“Petitioner” or
“Sivak”), because the claims (1) were guilt-phase claims and thus were barred as second
or successive pursuant to 28 U.S.C. § 2244(b), (2) challenged Petitioner’s previouslyvacated death sentence, (3) were civil rights claims that could not be asserted in federal
habeas but must be brought, if at all, in an action under 42 U.S.C. § 1983, or (4) did not
constitute a cognizable, freestanding federal claim. (See Successive Review Order, Dkt.
13, at 9 n.3, 12-14.) At that point, the only claims remaining in this case were those that
challenged Petitioner’s fixed life sentence, which was imposed following a resentencing
hearing:
Petitioner may proceed on the following Claims, but only to
the extent they challenge Petitioner’s life sentence: Claim
1

Respondent Jay Christensen, the warden of the Idaho State Correctional Center, is substituted for
Howard Yordy, the warden of Petitioner’s former facility, the Idaho State Correctional Institution. See
Fed. R. Civ. P. 25(d); see also Dkt. 100.

MEMORANDUM DECISION AND ORDER - 1

8(b) through (f); Claim 14; Claim 18(b); Claim 19; Claim 20;
Claim 22; Claim 23; Claim 24; Claim 26(b); Claim 29(b);
Claim 30; Claim 33(a) through (c) and (g) through (j); and
Claim 35.
(Id. at 14.)
On August 29, 2017, the Court conditionally granted Respondent’s Motion for
Summary Dismissal of these resentencing claims, preliminarily concluding that the
Petition appeared barred by the statute of limitations and that the resentencing claims
were procedurally defaulted. (Dkt. 82.) The Court gave Petitioner an opportunity to file a
supplemental response addressing the Court’s analysis. (Id. at 2, 14, 17-19.) Petitioner
has done so. (Dkt. 84.) Petitioner has also filed several motions, one of which asks that
the Court reconsider its previous dismissal of Petitioner’s guilt-phase claims. (Dkt. 83,
88, 91, 96, 101, 110.)
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). Therefore, Petitioner’s Motion for Hearing (Dkt. 88) will be denied.
Having carefully reviewed the record, including the state court record, the Court
has reconsidered its previous dismissal of Petitioner’s guilt-phase claims and determined
that they are not subject to the successive petitions bar. Accordingly, Respondent will be
instructed to respond to those claims.
As for Petitioner’s claims challenging his life sentence, imposed upon
resentencing, the Court is persuaded by Petitioner’s new evidence of timeliness and
concludes that the claims are not barred by the statute of limitation. However, the Court
MEMORANDUM DECISION AND ORDER - 2

reaffirms its previous conclusion that Petitioner’s resentencing claims are subject to
dismissal as procedurally defaulted. Because Petitioner has not shown an adequate excuse
for the default, his resentencing claims will be dismissed.
1.

Petitioner Will Be Allowed to Proceed on His Guilt-Phase Claims
Because a new judgment of conviction was entered following Petitioner’s

resentencing,2 the Court’s previous dismissal of Petitioner’s guilt-phase claims—under
the unauthorized second or successive claim rule of § 2244(b)—was incorrect under
Ninth Circuit precedent. See Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012)
(“[W]here a first habeas petition results in an amended judgment, a subsequent petition is
not successive, even if its claims could have been raised in a prior petition or the
petitioner effectively challenges an unamended component of the judgment.”) (internal
quotation marks omitted). Therefore, Petitioner’s Motion to Allow Other Issues
Previously Denied to Proceed (Dkt. 101) will be granted. However, such claims may later
be subject to dismissal based on procedural defenses, such as procedural default or res
judicata. See id. (“[P]rocedural default rules—rather than the rules governing ‘second or
successive’ petitions—are the more appropriate tools for sorting out new claims from the
old.”).
2.

The Petition Is Timely
Petitioner has provided evidence that, contrary to Respondent’s and the Court’s

previous belief, Petitioner did file a petition for writ of certiorari with the United States

2

The new judgment of conviction, for felony first-degree murder and possession of a firearm
during the commission of a felony, was entered on August 28, 2013. (State’s Lodging Q-3 at 529-30.)

MEMORANDUM DECISION AND ORDER - 3

Supreme Court following the Idaho appellate courts’ affirmance of his fixed life
sentence. (See Dkt. 84 at 8.) Therefore, the statute of limitations for Petitioner’s federal
habeas petition did not begin to run until that petition for writ of certiorari was denied.
Petitioner has demonstrated that the claims in his Petition are timely, and Respondent has
conceded that issue.3 (Dkt. 87 at 2-3.)
3.

Petitioner’s Claims Challenging His Life Sentence, Imposed upon
Resentencing, Are Procedurally Defaulted without Adequate Excuse
Even though Petitioner’s resentencing claims are timely, the Court must still

consider whether they are subject to summary dismissal as procedurally defaulted. The
Court previously analyzed the issue as follows:
The most straightforward manner in which to resolve
the exhaustion and procedural default status of Petitioner’s
federal claims is to review which claims were raised and
The Court finds that—contrary to Petitioner’s baseless assertions—Respondent did not lie or
otherwise mislead this Court in initially asserting that the Petition was time-barred or in later stating
(correctly) that (1) the Petition did not refer to the petition for writ of certiorari filed by Petitioner
following the Idaho court’s affirmance of his life sentence, or that (2) Petitioner did not previously
mention filing a certiorari petition. In accusing Respondent of lying, Petitioner cites an attachment to his
Petition referring to a certiorari petition. However, the Petition itself does not refer to any such petition.
And although the attachments to the Petition should have been served upon Respondent, the Court
erroneously neglected to do so. That was a simple mistake, and Respondent reasonably believed that no
certiorari petition had been filed.
The Court also reasonably held that belief. The Court was not required to meticulously search
through the many documents Petitioner submitted with his Petition. Instead, it was entitled to rely on the
habeas Petition itself to contain all of the information necessary to adjudicate that Petition. See Rule 2(c)
& (d) of the Rules Governing Section 2254 Cases; see also Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d
1409, 1418 (9th Cir. 1988) (“The district judge is not required to comb the record to find some reason to
deny a motion for summary judgment... If a party wishes the court to consider [certain evidence], the
party should bring that desire to the attention of the court.”); United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991) (per curiam) (“Judges are not like pigs, hunting for truffles buried in briefs.”). Petitioner’s
own failure to cite to his United States Supreme Court proceedings in the Petition itself is what caused the
misunderstanding—not any nefarious intent on the part of Respondent or the Court.
Respondent also did nothing wrong by referring to Petitioner’s case as a noncapital case.
Although Petitioner initially was sentenced to death, that sentence was vacated, and Petitioner has been
resentenced to life imprisonment. Therefore, Petitioner’s case is no longer a death penalty case.
For these reasons, Petitioner’s Motion to Sanction Respondent’s Counsel (Dkt. 91) will be denied
as frivolous.
3

MEMORANDUM DECISION AND ORDER - 4

addressed on the merits in the state court appellate
proceedings. On direct appeal from the imposition of his life
sentence, Petitioner argued only that the sentencing judge
abused his discretion, under Idaho state law, by sentencing
Petitioner to life in prison without the possibility of parole
and by denying Petitioner’s Rule 35 motion. (State’s Lodging
R-1.)
Petitioner raised no federal claims on direct appeal of
his fixed life sentence, and he did not pursue any other appeal
involving that sentence. Therefore, none of the claims in the
Petition is exhausted. Further, because it is now too late for
Petitioner to exhaust those claims, they appear to be
procedurally defaulted. See Gray [v. Netherland], 518 U.S.
[152,] 161-62 [(1996)]; see also Idaho Code § 19-4902 (“An
application may be filed at any time within one (1) year from
the expiration of the time for appeal or from the
determination of an appeal or from the determination of a
proceeding following an appeal, whichever is later.”); Idaho
Code § 19-4908 (“All grounds for relief available to an
applicant under this act must be raised in his original,
supplemental or amended application.”).
(Dkt. 82 at 16-17 (footnote omitted).) The Court instructed Petitioner to set forth any
reason why the claims should not be dismissed as procedurally defaulted, including with
respect to the issues of actual innocence and cause and prejudice.
Petitioner now argues that (1) his resentencing claims are not procedurally
defaulted because he fairly presented them to the Idaho Supreme Court in his pro se
filings, and (2) even if the claims are defaulted, actual innocence excuses that default.
A.

Petitioner’s Pro Se Documents Filed with the Idaho Appellate Courts Did
Not Fairly Present His Resentencing Claims

Petitioner first challenges the Court’s previous determination that his resentencing
claims are procedurally defaulted. Petitioner argues that he did, in fact, fairly present his
resentencing claims to the Idaho appellate courts—through his submission of pro se
MEMORANDUM DECISION AND ORDER - 5

filings—but the state courts refused to consider those pro se arguments because Petitioner
was represented by counsel. (Dkt. 84 at 10-12.) This amounts to an argument that,
pursuant to the Eighth Circuit’s decision in Clemmons v. Delo, 124 F.3d 944 (8th Cir.
1997), Petitioner did all that he could do to present those claims to the state appellate
courts.
The petitioner in Clemmons initially raised a Brady claim in his state postconviction petition, but his appellate post-conviction counsel did not raise that claim on
appeal. Counsel omitted the claim from the appellate briefing despite the fact that the
petitioner “specifically stated [to his attorney] that he wanted all of his issues preserved”
and that the petitioner—after the brief was filed without including all of Clemmons’s
issues—instructed counsel to file a supplemental brief. 124 F.3d at 948. The petitioner
also expressly notified counsel that “issues not raised would later be held not to have
been properly presented.” Id. Counsel responded that the decision on which claims to
raise was correct, stating that he had “made every argument on [the petitioner’s] behalf
that [he] felt could be supported by law and evidence.” Id. Clemmons then filed a motion
with the Missouri Supreme Court, asking that he be allowed to file a supplemental pro se
brief and informing the court that counsel’s brief did not include all the claims the
petitioner had requested. The court denied the motion.
In federal habeas proceedings, Clemmons asserted the Brady claim. He then faced
an argument that the claim was procedurally defaulted because it had not been fairly
presented to the highest state court. The Eighth Circuit held that Clemmons had fairly
presented the issue, despite counsel’s failure to include it in counsel’s brief, because
MEMORANDUM DECISION AND ORDER - 6

Clemmons “did the only thing he could do: he tried to bring the issue to the attention of
the Missouri Supreme Court himself.” Id. Because there was nothing more he could have
done “as a practical matter” to present that claim, the claim was not procedurally
defaulted. Id. at 948-49; see also Veenstra v. Smith, No. 1:11-cv-00632-BLW, 2014 WL
1270626, at *16 (D. Idaho Mar. 26, 2014) (“[T]o fairly present claims in a circumstance
where the petitioner disagrees with counsel’s narrowing of claims, a petitioner must take
steps on his own, such as seeking leave of court to introduce a supplemental pro se filing
containing the additional claims counsel refused to present.”). Importantly, the state court
in Clemmons did not have a regularly-applied rule regarding pro se briefs filed by
represented litigants:
No rule of court or reported Missouri case of which we are
aware specifies the circumstances under which Missouri
appellate courts allow pro se briefs. A state procedural rule
must be regularly adhered to if it is to be an adequate state
ground supporting a procedural bar. Sometimes Missouri
courts allow pro se briefs, and sometimes they do not. That is
their prerogative. But in the absence of regularly applied
criteria, the decision not to allow such a brief cannot be said
to rest on a regularly applied rule of state procedural law.
124 F.3d at 956 (internal citation omitted).
The Eighth Circuit has since emphasized the narrow application of Clemmons. In
Oglesby v. Bowersox, that court held that the Clemmons principle, though applicable in
certain “unique circumstances,” does not apply if the petitioner’s “claim was defaulted
pursuant to an independent and adequate state procedural rule that is firmly established
and regularly followed.” 592 F.3d 922, 925 (8th Cir. 2010).

MEMORANDUM DECISION AND ORDER - 7

The Ninth Circuit has also distinguished Clemmons. See Custer v. Hill, 378 F.3d
968 (9th Cir. 2004). In Custer, the petitioner’s attorney did not raise an ineffective
assistance of counsel claim in the petition for review in the Oregon Supreme Court,
which was required for proper exhaustion. Id. at 974. In federal habeas proceedings,
Custer relied on Clemmons in arguing that he fairly presented his ineffectiveness claim to
the state’s highest court by “request[ing] and receiv[ing] permission from the Oregon
Court of Appeals [the intermediate court of appeals] to file a pro se brief” asserting that
claim. Id. at 974-75.
The Ninth Circuit, however, rejected Custer’s argument that his action during
post-conviction appellate proceedings fairly presented the claim to the Oregon Supreme
Court. Although Custer “did take personal action to bring the ineffective assistance of
counsel claim to the attention of the Oregon Court of Appeals by requesting to file a pro
se brief ... he did not take similar action with regard to the Oregon Supreme Court, the
court in which the issue must be raised to be preserved.” Id. at 975 (emphasis added).
Because Custer did not attempt to raise the issue in the highest state court, that claim was
not fairly presented and was procedurally defaulted.
Petitioner argues that his resentencing claims should be heard on the merits
because, like the petitioner in Clemmons, he did everything he could to bring those claims
to the attention of the Idaho appellate courts. However, a review of the record proves
otherwise.
In Petitioner’s appeal of his fixed life sentence and while represented by counsel,
he filed several pro se documents prior to the deadline for filing the opening brief. On
MEMORANDUM DECISION AND ORDER - 8

August 8, 2014, Petitioner filed a “Notice of Change of Counsel for Defense,” in which
he complained (1) that the State Appellate Public Defender’s Office “do[es] not challenge
all issues,” (2) that Petitioner’s attorney would not communicate with him, and (3) that
his attorney would “only address some of the issues.” (State’s Lodging R-9 at 2-3
(emphasis in original).)
On August 12, 2014, Petitioner filed two additional pro se documents with the
appellate court. In his “Motion and Order to Provide [Petitioner] with All Court
Files/Case Records,” Petitioner asked to be provided with his legal files because he
“ha[d] given notice to remove the State Appellate Public Defender ... from this case, and,
put [Petitioner] on.” (State’s Lodging R-10 at 1.) In Petitioner’s “Motion and Order to
Dis-Allow Barristers ... from: 1. Any Employment with Any State Entity [and] 2. Any
Disclosure of Any Gleaned Information in Their Judicial Capacity,” Petitioner again
appeared to express a desire to replace his attorney. (State’s Lodging R-11.)
Petitioner’s attorney received a copy of Petitioner’s pro se filings and later moved
the appellate court for an extension of time to file the opening brief. On August 14, 2014,
the attorney stated in his motion that, from Petitioner’s filings, it appeared Petitioner was
dissatisfied with his legal representation, but it “was unclear whether [Petitioner] wished
to proceed pro se.” (State’s Lodging R-12 at 2.) The attorney also stated that he had not
received a telephone call from Petitioner since July 7, 2014, and he had not received a
letter from Petitioner since July 14, 2017. (Id.) After receiving the pro se filings,
Petitioner’s counsel “had a lengthy prison visit with [Petitioner] ... in order to discuss his
case and his options on how to proceed.” (Id. at 3.)
MEMORANDUM DECISION AND ORDER - 9

Counsel sought the extension of time to file the opening brief because, even after
that lengthy visit with Petitioner, counsel “was not comfortable filing the brief as it now
stands until I have additional time to consult further with [Petitioner] about the issues to
be raised in his appeal and his apparent desire to represent himself on appeal.” (Id.) The
appellate court granted the requested extension and stated that it would take no action on
Petitioner’s pro se filings. (State’s Lodging R-13, R-14.)
Petitioner’s counsel later filed the opening appellate brief, raising only state-law
claims. (State’s Lodging R-1.) The opening brief raised none of Petitioner’s current
resentencing claims.
For the following reasons, the Court concludes that Petitioner’s pro se documents,
filed on appeal from the resentencing hearing, did not fairly present to the state courts any
of the resentencing claims included in his federal Petition.
First, the principle established in Clemmons does not apply when the state court
has a “regularly applied rule of state procedural law” that bars represented litigants from
filing pro se briefs. Clemmons, 124 F.3d at 956; see also Oglesby, 592 F.3d at 925
(“Clemmons does not apply in this case, because here the procedural rule invoked by the
court of appeals was the regularly-applied time limits in Rule 29.15(g).”). Idaho courts
have a consistent and longstanding rule permitting courts to ignore pro se filings when
the filing party is represented by counsel. See, e.g., Johnson v. State, No. 38425, 2012
WL 9490829, at *2 (Idaho Ct. App. Feb. 3, 2012) (“[I]t was within the discretion of the
trial court to require all documents to be filed by Johnson’s legal representative.”);
Musgrove v. State, Case No. 37407, 2011 WL 11037672, at *1 (Idaho Ct. App. May 16,
MEMORANDUM DECISION AND ORDER - 10

2011) (noting that “the district court ... ordered Musgrove to refrain from filing additional
documents pro se because he was represented by counsel.”); State v. Brink, Case No.
34391, 2008 WL 9471256, at *8 (Idaho Ct. App. Nov. 7, 2008) (noting that the district
court refused to accept pro se filings from represented defendant and holding that the
refusal did not violate defendant’s constitutional rights). Respondent has sufficiently
invoked the state courts’ procedural rule against pro se filings by represented parties, and
Petitioner has not “assert[ed] specific factual allegations that demonstrate the
inadequacy” of that rule, such as “citation to authority demonstrating inconsistent
application of the rule.” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003).
Petitioners in state appellate matters have two choices in Idaho. Either they choose
to be represented by counsel, or they choose to ask counsel to withdraw so that they can
proceed pro se. A petitioner cannot have it both ways under Idaho’s rule. The Idaho
courts are entitled to create rules that aid them in the orderly administration of cases, and
this is one such rule. Cf. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (holding that the
Sixth Amendment does not entitle a criminal defendant to “hybrid” representation—that
is, a defendant does not have the right to represent himself and to have the assistance of
counsel).
That the Idaho appellate court could have exercised its discretion to consider
Petitioner’s pro se filings does not render inconsistent or otherwise inadequate Idaho’s
procedural rule barring pro se documents filed by parties who are represented by counsel.
See Walker v. Martin, 562 U.S. 307, 318 (2011) (holding that a state court’s “use of an
imprecise standard ... is no justification for depriving a [procedural] rule’s language of
MEMORANDUM DECISION AND ORDER - 11

any meaning”) (internal quotation marks and alteration omitted); Beard v. Kindler, 558
U.S. 53, 61 (2009) (holding that a state procedural bar can be considered adequate even if
it is a discretionary rule and even though “the appropriate exercise of discretion may
permit consideration of a federal claim in some cases but not others”). Similarly, that
Idaho’s rule against pro se filings by represented parties may be based on case law does
not negate its adequacy. See, e.g., Emery v. Johnson, 139 F.3d 191, 201 (5th Cir. 1997)
(“Emery has not demonstrated that Texas failed to apply its common-law abuse-of-thewrit doctrine with sufficient strictness and regularity to render it an adequate state ground
as of the time of Emery’s procedural default.”); Hill v. Jones, 81 F.3d 1015, 1024 (11th
Cir. 1996) (“On several occasions we have upheld procedural defaults based on
Alabama’s common law successive petition rule.”). Idaho’s bar on pro se filings by
represented parties is a “regularly applied rule of state procedural law,” and, therefore,
Clemmons is inapplicable. Clemmons, 124 F.3d at 956.
Second, even were the Court to disregard the Idaho appellate courts’ rule against
dual self-representation and attorney representation, Petitioner has not established that his
appellate counsel in fact failed to raise any issues that Petitioner decided he wanted
raised. The attorney filed an opening brief raising two issues, presumably after consulting
with Petitioner as counsel’s motion for extension of time stated that he would. There is no
evidence Petitioner raised any further objections or filed any additional pro se documents
indicating that he was unhappy with the issues raised in counsel’s brief or that counsel’s
brief was incomplete or otherwise contradictory to what Petitioner wanted argued. In the
absence of such evidence, the Court will not presume that Petitioner’s attorney failed to
MEMORANDUM DECISION AND ORDER - 12

include issues requested by Petitioner. See McKaskle, 465 U.S. at 183 (“Once a pro
se defendant invites or agrees to any substantial participation by counsel, subsequent
appearances by counsel must be presumed to be with the defendant’s acquiescence, at
least until the defendant expressly and unambiguously renews his request that standby
counsel be silenced.”). Instead, it is more likely that Petitioner decided, after consulting
with his attorney, to refrain from representing himself and to accept counsel’s advice with
respect to the issues to be raised on appeal.
Finally, even if the Court were to consider Petitioner’s pro se documents filed with
the Idaho appellate courts as supplemental briefing that raised the specter of other issues
that Petitioner wanted raised, those documents “did not ‘call[] the attention of the [Idaho]
Supreme Court’ to the particular federal claims that he wished to put before it.” Nelson
v. Blades, No. CV 04-001-S-LMB, 2009 WL 790172, at *8 (D. Idaho Mar. 23, 2009)
(emphasis added) (quoting Clemmons, 124 F.3d at 948). Rather, Petitioner vaguely
discussed unspecified “issues” without actually identifying any such issues. (State’s
Lodging R-9 at 2-3.) These generalized statements did not serve to fairly present any of
Petitioner’s resentencing claims; the state appellate court “had no obligation to wade
through lower court filings in search of potential federal issues that Petitioner may or may
not have intended to include” in his pro se documents. Nelson, 2009 WL 790172, at *8
(citing Baldwin v. Reese, 541 U.S. 27, 32 (2004)).
For the foregoing reasons, Petitioner’s resentencing claims cannot be deemed
fairly presented under Clemmons v. Delo. Thus, the Court’s preliminary procedural
default determination remains unchanged.
MEMORANDUM DECISION AND ORDER - 13

B.

Petitioner Has Not Established Actual Innocence to Excuse the Default
of His Resentencing Claims

Because Petitioner’s resentencing claims are procedurally defaulted, they must be
dismissed unless Petitioner can establish cause and prejudice, or actual innocence, to
excuse that default. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Schlup v. Delo,
513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986). Though
Petitioner does not argue cause and prejudice as an excuse for the default, he does assert
that he is actually innocent.
Specifically, Petitioner argues that his resentencing claims can be heard despite
their default because he “has shown actual innocence through double jeopardy.” (Dkt. 84
at 9.) Petitioner was prosecuted on two alternate theories: (1) first-degree premeditated
murder and (2) felony murder. The jury acquitted Petitioner of premeditated murder but
convicted him of felony murder. Petitioner asserts that, because he was acquitted of
premeditated murder, he could not have been sentenced for felony murder. Therefore,
argues Petitioner, he is actually innocent of his fixed life sentence. (Id. (“When the jury
acquitted on Count Two, it was a bar to all other murders ....”).)
This argument fails for several reasons. First, although the actual innocence
exception applies in the capital sentencing context, neither the Supreme Court nor the
Ninth Circuit has determined whether that exception applies to noncapital sentences such
as Petitioner’s. See Dretke v. Haley, 541 U.S. 386, 393-94 (2004) (“We are asked in the
present case to extend the actual innocence exception to procedural default of
constitutional claims challenging noncapital sentencing error. We decline to answer the

MEMORANDUM DECISION AND ORDER - 14

question in the posture of this case ....”); Marrero v. Ives, 682 F.3d 1190, 1195 (9th Cir.
2012) (declining to consider whether a petitioner can “assert a cognizable claim of actual
innocence of a noncapital sentencing enhancement,” for purposes of the escape hatch rule
of §§ 2241 and 2255, because the petitioner did not qualify for any such exception even if
it did exist).
This Court agrees with the decision of those courts that have addressed the issue
and held that “[a] person cannot be actually innocent of a noncapital sentence.” United
States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993). As explained by the Eighth
Circuit, “actual innocence” of such a sentence would simply be a means to “resuscitate
[a] legal claim that [the petitioner] was wrongly convicted and sentenced.” Embrey v.
Hershberger, 131 F.3d 739, 741 (8th Cir. 1997). If a petitioner could bring such a claim,
“then every sentence would be subject to an endless number of successive reviews.” Id.
Second, even if the actual innocence exception did apply in the noncapital
sentencing context, Petitioner would have to establish that he was ineligible for a fixed
life sentence under Idaho law. See Sawyer v. Whitley, 505 U.S. 333, 348 (1992) (death
penalty context). In other words, Petitioner would have to show that his sentence was not
within that permitted by the statute under which he was convicted. However, Idaho law
specifically allows for a fixed life sentence for murder—whether that murder was
premeditated or occurred during the commission of a felony. Idaho Code §§ 18-4001, 184003, 18-4004.
Third, Petitioner has not shown “factual innocence”—that is, he has not shown
that he did not commit felony murder. Bousley v. United States, 523 U.S. 614, 623
MEMORANDUM DECISION AND ORDER - 15

(1998). Legal innocence or insufficiency, such as that involved with a double jeopardy
violation, is not enough for application of the actual innocence exception. Id.; see also
Brown v. Smith, No. 1:12-cv-00112-REB, 2013 WL 149357, at *5 (D. Idaho Jan. 14,
2013) (“Petitioner argues only that a miscarriage of justice will occur if his sentence is
allowed to stand because of the double jeopardy violation that arose when he was
sentenced on both the aggravated battery and the weapon enhancement. This is a legal
sufficiency argument, not an actual innocence argument ....”).
Finally, Petitioner cannot establish any double jeopardy violation with respect to
his fixed life sentence. The Ninth Circuit has already rejected a double jeopardy claim
with respect to Petitioner’s felony murder conviction in the context of his now-vacated
death sentence:
Sivak was charged with two separate counts of firstdegree murder. Count two of the Information charged that he
murdered Wilson “willfully, unlawfully, deliberately, with
premeditation and with malice aforethought.” Count three
charged him with murdering Wilson “in the perpetration of a
robbery.” The jury found Sivak guilty on count three (felony
murder) but not count two (premeditated murder).
We reject Sivak’s argument that these verdicts
conclusively establish that he did not personally stab and
shoot Wilson. Sivak is correct that it is possible that the jury
concluded that Bainbridge [Petitioner’s co-defendant, who
was tried separately] used the murder weapons. However, we
cannot agree that the jury “necessarily decided” whether
Sivak or Bainbridge was the killer. Yeager, 129 S. Ct. at
2366. We have previously rejected a similar argument, using
language directly applicable to this case: although the “two
verdicts may be harmonized by concluding that the jury found
that [Sivak] was guilty as an aider and abettor[,] ... it is also
conceivable that all twelve jurors were convinced beyond a
reasonable doubt that [Sivak] played some role, either as the
MEMORANDUM DECISION AND ORDER - 16

shooter or as an aider and abettor, without ascertaining
exactly which role. We have no way of knowing, because
these alternatives ... are rationally consistent with the jury’s
verdict in th[is] case.” Santamaria, 133 F.3d at 1246. By
convicting Sivak on count three, the jury determined that
either Sivak or Bainbridge committed a murder “in the
perpetration of, or attempt to perpetrate robbery,” and, to the
extent that it found that Bainbridge committed the murder,
that Sivak “aid[ed] and abet[ted] in its commission.” By
acquitting Sivak on count two, the jury found reasonable
doubt as to whether Sivak or Bainbridge committed a
“willful, deliberate and premeditated killing,” or, to the extent
it found that Bainbridge committed a “willful, deliberate and
premeditated killing,” that there was reasonable doubt
whether Sivak aided and abetted that crime. In other words,
there are numerous “rational conclusion[s] that can be drawn
from the ... jury’s verdict,” and we are therefore unable to
conclude that the jury found that Bainbridge, not Sivak,
committed the murder. Id. Sivak’s argument rests entirely on
impermissible “guesswork,” “conjecture,” and “speculation.”
Yeager, 129 S. Ct. at 2368.
....
... The jury could have reached one of the following
conclusions under the jury instructions: (1) Sivak did not
intend to kill Wilson (and thus did not act willfully,
deliberately, or with premeditation); (2) even if Sivak
intended to kill Wilson, he did not form this intent to kill
prior to killing her (and thus did not act deliberately or with
premeditation); or (3) even if Sivak formed an intent to kill
prior to killing Wilson, he did not reflect on this intention
(and thus did not act with premeditation). If we take into
account the court’s aiding and abetting instruction, the
number of possible conclusions is multiplied: if the jury
concluded that Bainbridge committed the murder, it could
have acquitted Sivak of aiding and abetting because (4)
Bainbridge did not act intentionally, (5) Bainbridge did not
form an intent prior to acting, (6) Bainbridge did not reflect
on his intent, or (7), even if Bainbridge did commit a
premeditated murder, Sivak did not aid and abet the murder.

MEMORANDUM DECISION AND ORDER - 17

Viewing the record with “realism and rationality,”
Ashe, 397 U.S. at 444, 90 S. Ct. 1189, we must conclude that
there is “more than one rational conclusion that can be drawn
from the ... jury’s verdict” of acquittal. Santamaria, 133 F.3d
at 1246. We have no way of knowing which of these seven
conclusions the jury actually reached. Accordingly, we agree
with the district court’s conclusion that “Sivak has not
established that the [sentencing judge’s] finding of specific
intent ‘was actually decided in his favor’” and “[t]he trial
court was free to conclude during the subsequent penalty
phase, based on all of the evidence before it, that Sivak
intended to kill Wilson.” (Quoting Schiro, 510 U.S. at 236,
114 S. Ct. 783.)
Sivak v. Hardison, 658 F.3d 898, 919-21 (9th Cir. 2011) (alterations in original)
(footnotes omitted). Petitioner’s current double jeopardy argument with respect to his
fixed life sentence fails for the same reasons.
Therefore, Petitioner has not shown actual innocence to excuse the procedural
default of his resentencing claims.
4.

Conclusion
For the reasons set forth above, all of Petitioner’s resentencing claims will be

dismissed. Because the Court will vacate its previous dismissal of Petitioner’s guilt-phase
claims, those claims are now the only ones remaining in this case.
ORDER
IT IS ORDERED:
1.

The Court’s conditional grant of Respondent’s Motion for Summary
Dismissal with respect to Petitioner’s resentencing claims (Dkt. 82) is
CONFIRMED. All of Petitioner’s resentencing claims are DISMISSED
with prejudice as procedurally defaulted.

MEMORANDUM DECISION AND ORDER - 18

2.

Petitioner’s Motion for Court to Rescind its Memorandum Decision and
Order dated August 29, 2017, Based on False Data and Perjured
Presentations (Dkt. 83) is DENIED as frivolous.

3.

Petitioner’s Request for Hearing (Dkt. 88) is DENIED.

4.

Petitioner’s Motion to Sanction Respondent (Dkt. 91) is DENIED as
frivolous.

5.

Petitioner’s Motion for Restraining Order (Dkt. 96) is DENIED.

6.

Petitioner’s Motion to Allow Other Issues Previously Denied to Proceed
(Dkt. 101) is GRANTED to the extent that the Court VACATES its
previous dismissal of Petitioner’s guilt-phase claims. The Court’s previous
dismissal of (1) Petitioner’s claim challenging his now-vacated death
sentence, (2) Petitioner’s civil rights claims, and (3) Petitioner’s “claim”
that he might have other potential claims, is not affected by this Order. See
Dkt. 13 at 9 n.3, 12-13.

7.

Petitioner’s Request for Investigation Relevant to Case (Dkt. 110) is
DENIED.

8.

Within 60 days after entry of this Order, Respondent must file an answer
and brief raising any procedural defenses to Petitioner’s guilt-phase claims,
which are the only claims remaining at this point.4 A separate motion for

4

Petitioner appears to raise guilt-phase arguments in each (or in certain sub-claims of each) of the
following claims: 1-18, 20-21, 25-27, and 29-34. To the extent that portions of any of these claims also
include a challenge to Petitioner’s fixed life sentence or to his now-vacated death sentence, Respondent
need not substantially discuss them; rather, in the answer and brief, Respondent may simply note the
portions of these claims that have already been dismissed and provide a citation to the record.

MEMORANDUM DECISION AND ORDER - 19

summary dismissal based on procedural defenses will not be required. If
Respondent chooses not to raise any procedural defenses, he must so notify
the Court within 60 days after entry of this Order. If Respondent does not
raise procedural defenses, or if some of Petitioner’s guilt-phase claims
survive such defenses, the Court will then set a briefing schedule on the
merits of the remaining claims.
9.

Within 28 days after service of Respondent’s answer and brief as to
Petitioner’s guilt-phase claims, Petitioner must file a reply to that answer
and brief. Failure to file a reply may result in dismissal with prejudice,
without further notice, for failure to prosecute or failure to comply with a
Court order. See Fed. R. Civ. P. 41(b); Rule 12 of the Rules Governing
Section 2254 Cases (“The Federal Rules of Civil Procedure, to the extent
that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”).

10.

Respondent has the option of filing a sur-reply, in support of the answer
and brief as to Petitioner’s guilt-phase claims, within 14 days after service
of Petitioner’s reply.

11.

Other than the briefing described above with respect to Petitioner’s guiltphase claims, no party may file anything further in this case until the Court
resolves those claims. Violations of this or any other Court Order may lead
to sanctions, up to and including dismissal or default judgment. If the Court

MEMORANDUM DECISION AND ORDER - 20

determines that further briefing or an evidentiary hearing is warranted, it
will issue a sua sponte order accordingly.

DATED: September 27, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 21