Sivak v. Blades

Filing 270

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: Petitioner's Petition for Injunction (Dkt. 269 ) is DENIED. Claim 29(g) and (t) is DENIED on the merits. Because all other claims have already been dismissed, this entire action is DISMISSED with p rejudice. 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 wishe s 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. Signed by Senior Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)

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,
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus (and a
clarification), filed by Idaho prisoner Lacey Mark Sivak (“Petitioner” or “Sivak”),
challenging Petitioner’s Ada County conviction of first-degree murder. See Dkt. 2,
10. The Petition is now fully briefed, including briefing submitted by amicus
counsel, and is ripe for adjudication.1
Having carefully reviewed the record in this matter, including the state court
record, the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ.
R. 7.1(d). Accordingly, and for the reasons explained below, the Court enters the
following Order denying habeas corpus relief.

The Court takes judicial notice of the records from Petitioner’s state court proceedings. See Fed. R.
Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
1

MEMORANDUM DECISION AND ORDER - 1

INTRODUCTION
The parties are familiar with the labyrinthian procedural history of
Petitioner’s state and federal litigation surrounding his murder conviction, and that
history will not be repeated here. It is enough to note that, in the instant case, all of
Petitioner’s claims have been dismissed except for Claim 29(g) and (t).
Given the vague and conclusory nature of this claim as presented in the
Petition, the Court has construed the claim to the same extent the claim was
presented in state court. See Dkt. 236 at 14–15. That is, Claim 29(g) and (t) is a
combined claim that prescription drugs rendered Petitioner incompetent to stand
trial. State’s Lodging F-51 at 116. The Court will refer to this claim as the
“incompetency claim.”
Petitioner raised his incompetency claim in state court in a petition for postconviction relief. He argued that the prescription medications he was taking during
trial and sentencing caused “mood alteration of petitioner, making him unable to
understand and participate in the trial proceedings.” State’s Lodging E-35 at 62.
The trial court denied the claim, id. at 109–110, and the Idaho Supreme Court
affirmed, Sivak v. State (Sivak II), 731 P.2d 192, 208–09 (Idaho 1986).
For the reasons that follow, the Court concludes that Petitioner is not entitled
to federal habeas relief on his incompetency claim.

MEMORANDUM DECISION AND ORDER - 2

PETITION FOR INJUNCTION
Before the Court considers Petitioner’s incompetency claim, it must first
address Petitioner’s “Petition for Injunction to Protect [Petitioner’s] Files.” See
Dkt. 269. In that filing, Petitioner complains of the alleged theft of his legal
materials by prison officials. He asks the Court to order the return of all such files.
Petitioner’s allegations that prison officials have stolen or wrongfully
confiscated his legal materials are—once again—not supported by admissible
evidence. See, e.g., Dkt. 236 at 2–3 (“Petitioner has repeatedly made baseless
accusations against Respondent’s counsel and state employees, contending that he
is being denied access to his legal materials. The Court has repeatedly rejected
these contentions as unsupported by the evidence, and Petitioner has been warned
that making such frivolous and malicious accusations could result in sanctions, up
to and including dismissal.”). Accordingly, the Court will deny Petitioner’s request
for an injunction.
The Court will now consider Petitioner’s incompetency claim on the merits.
HABEAS CORPUS STANDARDS OF LAW
A federal court may grant habeas corpus relief when it determines that the
petitioner “is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). If the state court has adjudicated a claim on
the merits, habeas relief is further limited by § 2254(d), as amended by the Anti-

MEMORANDUM DECISION AND ORDER - 3

terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA,
federal habeas relief must be denied unless 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).
The term “unreasonable” in § 2254(d) is reserved for “extreme malfunctions
in the state criminal justice system,” not for “ordinary error” or even for cases
“where the petitioner offers a strong case for relief.” Mays v. Hines, 592 U.S.385,
391 (2021) (per curiam) (internal quotation marks omitted). Accordingly, a federal
court reviewing a state court’s adjudication of a claim on the merits “must
carefully consider all the reasons and evidence supporting the state court’s
decision.” Id. Courts are not permitted “to essentially evaluate the merits de novo
by omitting inconvenient details from its analysis.” Id. at 392 (internal quotation
marks and alteration omitted). Instead, “[d]eciding whether a state court’s decision
involved an unreasonable application of federal law or was based on an
unreasonable determination of fact requires the federal habeas court to train its

MEMORANDUM DECISION AND ORDER - 4

attention on the particular reasons—both legal and factual—why state courts
rejected a state prisoner’s federal claims and to give appropriate deference to that
decision.” Wilson v. Sellers, 584 U.S. 122, 125 (2018) (internal quotation marks
and citations omitted).
When a petitioner contests the state court’s legal conclusions, including
application of the law to the facts, § 2254(d)(1) governs. That section consists of
two 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 applie[d] it to
the facts of the particular state prisoner’s case.” Williams 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, 572 U.S. 415, 426 (2014) (emphasis omitted).

MEMORANDUM DECISION AND ORDER - 5

The AEDPA standard is extraordinarily high, and a federal court cannot
grant habeas relief simply because it concludes in its independent judgment that
the state court’s decision is incorrect or wrong. Rather, the state court’s application
of federal law must be objectively unreasonable to warrant relief. Williams, 529
U.S. at 411. If there is any possibility that fair-minded jurists could disagree on the
correctness of the state court’s decision, § 2254(d)(1) precludes relief. Nevada v.
Jackson, 569 U.S. 505, 508–09 (2013); Harrington v. Richter, 562 U.S. 86, 101–02
(2011). In other words, if one fair-minded jurist could conclude that the state
court’s decision is reasonable, habeas relief must be denied—even if other fairminded jurists would disagree.
“Clearly established federal law” means the governing legal principles set
forth in the holdings—not the dicta—of the United States Supreme Court, as of the
time the state court rendered its decision. Williams, 529 U.S. at 412. The habeas
statute does not require an identical factual pattern before a legal rule must be
applied. Rather, state courts must reasonably apply the rules squarely established
by the Supreme Court’s holdings to the facts of each case. See White, 572 U.S. at
427.
A federal habeas court “may not overrule a state court for … holding a view
different from its own” when the precedent from the Supreme Court “is, at best,
ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 (2003). Although circuit

MEMORANDUM DECISION AND ORDER - 6

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), a federal court may not use
circuit law to refine or sharpen a general principle of Supreme Court habeas corpus
jurisprudence into a specific legal rule that the Supreme Court itself has not
announced, Lopez v. Smith, 574 U.S. 1, 7 (2014).
If no Supreme Court decision has confronted the specific question presented
by a state prisoner’s federal habeas petition—that is, if the circumstances of a
petitioner’s case are only generally similar to the Supreme Court’s precedents—
then the state court’s decision cannot be “contrary to” any holding from the
Supreme Court. Woods v. Donald, 575 U.S. 312, 317 (2015) (per curiam). By the
same token, a state court cannot unreasonably apply established federal law that
does not exist. See, e.g., Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per
curiam); Carey v. Musladin, 549 U.S. 70, 77 (2006).
“[R]eview 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, 180 (2011). Therefore, if (1) a claim was adjudicated on the merits in state
court, and (2) the underlying factual determinations of the state court were not
unreasonable, then evidence that was not presented to the state court cannot be
introduced on federal habeas review. See Murray v. Schriro, 745 F.3d 984, 999–

MEMORANDUM DECISION AND ORDER - 7

1000 (9th Cir. 2014) (“After Pinholster, a federal habeas court may consider new
evidence only on de novo review, subject to the limitations of § 2254(e)(2).”).
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.” 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.”).
Instead, state court factual findings are presumed to be correct and are
binding on the federal court unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); see Kirkpatrick v. Chappell, 950
F.3d 1118, 1131 (9th Cir. 2020) (holding that § 2254(e)(1) “appears to apply to all
factual determinations made by state courts”). “If reasonable minds reviewing the
record might disagree about the finding in question,” the finding is not
unreasonable under § 2254(d)(2). Pizzuto v. Yordy, 947 F.3d 510, 530 (9th Cir.
2019) (internal quotation marks and alterations omitted).

MEMORANDUM DECISION AND ORDER - 8

DISCUSSION
For the reasons discussed below, Petitioner’s incompetency claim fails on
the merits under AEDPA.
1.

Background
Under 28 U.S.C. § 2254(e)(1), the following facts of Petitioner’s case, as

described by the Idaho Supreme Court, are presumed correct, absent clear and
convincing evidence to the contrary:
On April 6, 1981, Dixie Wilson, an attendant at a
[self-service] gas station, was discovered near death by a
customer. She had been stabbed numerous times and shot
several times. Evidence indicated she had also been
sexually molested. She later died from her wounds.
Witnesses saw two men inside the station with
Wilson shortly before the murder, one they identified as
Randall Bainbridge. [Sivak] and Bainbridge were seen
together before and after the killing.
[Sivak] admitted being present during the robbery
and murder, but claimed he was merely an innocent
bystander. He claimed he did not participate in the
robbery and murder and did not carry a firearm.
However, [Sivak’s] fingerprint was found on the murder
weapon.
Evidence indicated [Sivak] had previously worked
at the station, was known to the victim, had expressed
animosity toward her, and had called to inquire who
would be on duty at the station on April 6, 1981. The gun
used in the attack was found in a storage shed rented by
[Sivak].
State v. Sivak (Sivak I), 674 P.2d 396, 398 (Idaho 1983).

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The jury found Petitioner guilty, and he was initially sentenced to death.
Following a series of reversals and remands, as well as a grant of federal habeas
relief as to his death sentence, Petitioner ultimately was resentenced to fixed life
imprisonment.
2.

Factual Basis of Petitioner’s Incompetency Claim
During trial and at sentencing, Petitioner was taking (1) a form of aspirin

called Synalgos, and (2) an NSAID2 called Zomax. These pain medications were
prescribed for Petitioner by jail medical personnel. State’s Lodging E-48 at 115–
17.
At the evidentiary hearing in state court, Petitioner testified that these drugs
had made his mind “fuzzy,” as if he were “lightheaded or in a dream,” and that he
felt that his “surroundings … [we]ren’t real.” State’s Lodging E-49 at 208.
Petitioner contended he had trouble remembering things and that the pain relievers
“slowed down [his] mind”:
Q.
Were you able to understand, in this condition of
the surroundings being unreal and so on, … [w]ere you
aware that there was a trial going on?
A.

Yes, I was.

Q.
Were you aware that you were the defendant in the
trial?

NSAID stands for “non-steroidal anti-inflammatory drug.” This category of pain relievers includes
drugs like ibuprofen and naproxen.
2

MEMORANDUM DECISION AND ORDER - 10

A.

Yes, I was.

Q.
Were you able to—did you know how to eat and
how to walk and things like that?
A.

Yes.

Q.
What did the medication prevent you from doing
during the trial?
A.
It—what it did, it slowed down the mind where—I
could hear what was going on and reply and everything
else, but the mind—my mind was slowed down to the
point where it was just like you were in a big dream. And
just sit and watch everything go on around you.
Q.
Did you try at any time during your trial to
remember things that had happened and have trouble
remembering?
A.

Yes.

Q.
Did that affect your ability to help out your
attorneys with your defense at all, do you think?
A.
I feel it did. As a matter of fact, I recall very little
of what went on during the trial. Only from my notes do I
have any—do I have a clear recollection of what went on
or anything else.
Id. at 209–10.
Petitioner’s defense counsel testified that Petitioner’s affect during trial “was
so flat as to be bizarre.” State’s Lodging E-48 at 66. Petitioner was “completely
unemotional about his circumstance, the fact that he may get put to death, about
the killing, about the trial. He just showed absolutely no emotion at all, which

MEMORANDUM DECISION AND ORDER - 11

[defense counsel] thought was extremely bizarre for a person in [Petitioner’s]
shoes.” Id. at 66–67.
During trial, defense counsel and Petitioner discussed the proceedings
frequently, including what Petitioner would say if he were to testify and how
Petitioner’s unemotional affect might hurt his chances with the jury. According to
counsel:
Well, when we were going over what he was going
to testify to, his affect when he was talking about the
woman bleeding to death and getting stabbed 20 times
and shot five times was about the same as when he was
talking about eating a piece of pie with his mother.
And we told him that the jurors would probably be
horrified to listen to him testify about such a thing with
that kind of lack of emotion in it.
And so we were encouraging him to show
emotion. He told us that it was real hard for him, that he
is the type of person that has difficulty expressing
emotion to other people.
State’s Lodging E-49 at 326. Notwithstanding Petitioner’s “bizarre” affect and lack
of emotion, defense counsel acknowledged that he and Petitioner could
communicate with and understand one another. State’s Lodging E-48 at 90–91.
Petitioner’s sister also testified at the evidentiary hearing. She stated that
Petitioner “looked like he was in a daze” and “wasn’t really aware of what was
going on.” State’s Lodging E-49 at 188. She testified that “it seemed like he
wouldn’t notice people or, you know, notice really what he was doing.” Id.

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In contrast, however, one of the doctors who had treated Petitioner during
trial testified that Petitioner never raised any complaint about side effects from
taking the pain medications, nor did the doctor observe any such side effects.
State’s Lodging E-48 at 125. Although it was “possible” for Synalgos and Zomax
“to produce reactions … of dizziness [and] drowsiness,” the doctor explained that
these side effects were uncommon. Id. at 118, 124. In fact, “one of the reasons
those two drugs were selected” to treat Petitioner was because “the effects are
pretty minimal.” Id. at 124.
A physician’s assistant who treated Petitioner during the trial also testified
about the pain medications Petitioner had been taking. State’s Lodging E-49 at
266. According to the physician’s assistant, Petitioner did not complain of any side
effects while he was taking Synalgos and Zomax. Id. at 276.
In addition, Petitioner acknowledged at the evidentiary hearing that, at the
time he alleged to have been under the influence of these medications, he wrote
various letters to his defense counsel and others, drafted a witness list and various
subpoenas, and discussed the documents with counsel. State’s Lodging E-49 at
235–38. Petitioner also testified that he told his attorneys everything he knew about
the case, that he discussed his defense with them, and that he talked about aspects
of the case with his attorneys on a daily basis. Id. at 240–41.

MEMORANDUM DECISION AND ORDER - 13

3.

Clearly Established Law
Due process requires that a criminal defendant be competent to stand trial. A

defendant is competent if “he has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding” and if he has “a rational
as well as factual understanding of the proceedings against him.” Dusky v. United
States, 362 U.S. 402, 402 (1960) (per curiam) (internal quotation marks omitted)
see also Drope v. Missouri, 420 U.S. 162, 171 (1975) (“[A] person whose mental
condition is such that he lacks the capacity to understand the nature and object of
the proceedings against him, to consult with counsel, and to assist in preparing his
defense may not be subjected to a trial.”). “Requiring that a criminal defendant be
competent has a modest aim: It seeks to ensure that he has the capacity to
understand the proceedings and to assist counsel.” Godinez v. Moran, 509 U.S.
389, 402 (1993).
Relevant factors in a competency determination include “a defendant’s
irrational behavior, his demeanor at trial, and any prior medical opinion on
competence to stand trial.” Drope, 420 U.S. at 180. The question of competency
“is often a difficult one in which a wide range of manifestations and subtle nuances
are implicated.” Id. Therefore, “[e]ven when a defendant is competent at [one point
in the proceedings], a trial court must always be alert to circumstances suggesting a

MEMORANDUM DECISION AND ORDER - 14

change that would render the accused unable to meet the standards of competence
to stand trial.” Id. at 181.
4.

State Court Decision
Petitioner asserted in state court that he was incompetent to stand trial

because of the pain medications he was taking and, as a result, his conviction was
invalid. After an evidentiary hearing, the trial court specifically found as follows:
… [D]uring part of the petitioner’s trial and
sentencing hearing he was required to take medication
for pain which was dispensed and administered by the
State of Idaho. Such medication did not result in any
mind or mood alteration of the petitioner. He was able to
understand and participate in the entire trial proceedings.
As a result[,] his convictions and sentences did not
violate his rights to a fair trial, and to confront the
witnesses against him, as guaranteed by the United States
Constitution, the Idaho Constitution, and court decisions
relating thereto.
State’s Lodging E-35 at 109–110. Accordingly, the trial court rejected Petitioner’s
incompetency claim.
The Idaho Supreme Court affirmed, concluding that Petitioner’s contention
that he was incompetent was “not uncontradicted”:
In fact, the state pointed out that Sivak had the presence
of mind during trial to take notes sufficient to provide a
clear recollection. Also, a physician who had observed
Sivak during the trial testified that he was familiar with
the medication prescribed to Sivak and concluded that it
would not have produced the type of symptoms that
Sivak described.

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Sivak II, 731 P.2d at 208–09. The state supreme court held that the lower court
judge, “as a fact finder, could have fully believed the state’s evidence [of
competence] and completely disbelieved Sivak’s evidence [of incompetence].” Id.
at 209. As a result, the finding of competence was not clearly erroneous, and
Petitioner had not established he was incompetent to stand trial.
5.

In Rejecting Petitioner’s Incompetency Claim, the State Court Did Not
Unreasonably Apply Clearly Established Supreme Court Precedent or
Base its Decision on an Unreasonable Finding of Fact
In considering Petitioner’s claim, the Idaho Supreme Court adopted the trial

court’s factual findings that the pain medication Petitioner was taking did not cause
any mind- or mood-altering side effects, that Petitioner was able to understand the
proceedings against him, and that he participated in the entire trial proceedings. Id.
at 208–09; see also State’s Lodging E-35 at 109–10. Petitioner has not established
that these factual findings are unreasonable, nor has he rebutted these findings by
clear and convincing evidence. See 28 U.S.C. § 2254(d)(2), (e)(1).
The state courts did not credit the testimony that Petitioner was incapable of
understanding the proceedings or of assisting counsel in his defense. Such
credibility findings are the quintessential type of finding generally left to the trier
of fact, who hears the witness’s testimony and observes his or her demeanor:
All aspects of the witness’s demeanor including the
expression of his countenance, how he sits or stands,
whether he is inordinately nervous, his coloration during
critical examination, the modulation or pace of his speech
MEMORANDUM DECISION AND ORDER - 16

and other non-verbal communication may convince the
observing trial judge that the witness is testifying
truthfully or falsely. These same very important factors,
however, are entirely unavailable to a reader of the
transcript ….
Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074, 1078–79 (9th Cir. 1977). The
state courts’ findings are not unreasonable under 28 U.S.C. § 2254(d)(2).
In addition, the Idaho Supreme Court reasonably rejected Petitioner’s
incompetency claim under 28 U.S.C. § 2254(d)(1). That court’s determination that
Petitioner was competent to stand trial was fully consistent with Dusky, Drope, and
Godinez. As a result, Petitioner is not entitled to relief on his incompetency claim
under AEDPA.
CONCLUSION
For the foregoing reasons, the Court concludes that Petitioner is not entitled
to habeas relief on his only remaining claim.
ORDER
IT IS ORDERED:
1.

Petitioner’s Petition for Injunction (Dkt. 269) is DENIED.

2.

Claim 29(g) and (t) is DENIED on the merits. Because all other
claims have already been dismissed, this entire action is DISMISSED
with prejudice.

MEMORANDUM DECISION AND ORDER - 17

3.

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 8, 2024

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

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