Cornelison v. Yordy

Filing 26

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Claim 2 of the Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED. Because Petitioners other claims have already been dismissed, this entire action is DISMISSED with prejudice, and judgment will be entered in favor of Respondent. 2. The Court does not find its resolution of this habeas matter to be reasonablydebatable, and a certificate of appealability will not issue. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARK CORNELISON,
Case No. 1:16-cv-00301-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
JAY CHRISTENSEN,1
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Mark Cornelison (“Petitioner” or “Cornelison”), challenging Petitioner’s
state court conviction for felony driving under the influence (“DUI”). (Dkt. 3.) The Court
previously dismissed, as procedurally defaulted, Claims 1, 3, and 4 of the Petition. (Dkt.
14.) The only remaining claim—Claim 2—is now fully briefed and ripe for adjudication.
(Dkt. 15, 19.) The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 10.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
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.

1

Respondent Jay Christensen is substituted for his predecessors (Keith Yordy, Al Ramirez, and Chad
Page), as warden of the facility in which Petitioner is now confined. See Rule 2(a) of the Rules Governing
§ 2254 Cases; Fed. R. Civ. P. 25(d).

MEMORANDUM DECISION AND ORDER - 1

7.1(d). Accordingly, the Court enters the following Order denying habeas corpus relief on
Petitioner’s remaining claim.
BACKGROUND
While on parole for a DUI conviction, Petitioner led law enforcement officers on a
high-speed chase that ended when Petitioner drove his car into a power pole. Petitioner
was taken to the hospital where, after he refused to perform a field sobriety test, his blood
was drawn without his consent and without a warrant. Testing showed that Petitioner’s
blood alcohol content was well over the legal limit.
In the Fifth Judicial District Court in Twin Falls County, Idaho, Petitioner was
charged with felony DUI and felony eluding a police officer, along with a persistent
violator enhancement. Petitioner asked both of his trial attorneys to file a motion to
suppress the results of the blood test. Petitioner based his request on Missouri v.
McNeely, 569 U.S. 141, 165 (2013), in which the Supreme Court held that the natural
metabolization of alcohol in the blood does not constitute a per se exception to the
warrant requirement in all drunk-driving cases. Neither attorney filed the requested
motion.
In exchange for dismissal of the eluding charge, Petitioner pleaded guilty to felony
DUI and admitted his persistent violator status. Petitioner received a unified sentence of
twenty years in prison with ten years fixed. The Idaho Court of Appeals affirmed. (State’s
Lodging B-4.)
Petitioner then pursued state post-conviction relief, arguing that his trial attorneys
rendered ineffective assistance by failing to file a motion to suppress the results of the
MEMORANDUM DECISION AND ORDER - 2

warrantless blood test. (State’s Lodging C-1 at 5-9.) The state district court dismissed the
petition, holding that Petitioner, as part of his parole agreement, had waived his Fourth
Amendment right to be free from unreasonable searches and seizures. (Id. at 275-77.) The
Idaho Court of Appeals agreed and denied Petitioner’s claim on the merits. (State’s
Lodging D-4.)
HABEAS CORPUS STANDARD OF LAW
Federal habeas corpus relief may be granted when a federal court 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-terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal habeas
relief may be granted only where the state court’s adjudication of the petitioner’s claim:
(1)

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

(2)

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

28 U.S.C. § 2254(d). “Deciding 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 attention on the particular reasons—
both legal and factual—why state courts rejected a state prisoner’s federal claims and to

MEMORANDUM DECISION AND ORDER - 3

give appropriate deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191-92
(2018) (internal quotation marks and citations omitted).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasis omitted).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that
fair-minded jurists could disagree on the correctness of the state court’s decision, then
MEMORANDUM DECISION AND ORDER - 4

relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102
(2011). The Supreme Court has emphasized that “even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. To be entitled to
habeas relief under § 2254(d)(1), “a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent may be persuasive
authority for determining whether a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] Court has not
announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
“[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, evidence that was not presented to the state court cannot be introduced
on federal habeas review if a claim was adjudicated on the merits in state court and if the
underlying factual determinations of the state court were reasonable. See Murray v.
Schriro, 745 F.3d 984, 999-1000 (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).”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine,
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considering only the evidence before the state court, that the adjudication of a claim on
the merits ... was based on an unreasonable determination of the facts, we evaluate the
claim de novo, and we may consider evidence properly presented for the first time in
federal court.”).
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.”). 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).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to or an unreasonable application of Supreme
Court precedent, or by establishing that the state court’s factual findings were
unreasonable—then the federal habeas court must review the petitioner’s claim de novo,
meaning without deference to the state court’s decision. Hurles, 752 F.3d at 778. De novo
review is also required where the state appellate court did not decide a properly-asserted
claim or where an adequate excuse for the procedural default of a claim exists. Pirtle v.
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Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th
Cir. 2014) (en banc).
DISCUSSION OF CLAIM 2
In Claim 2, Petitioner asserts that trial counsel rendered ineffective assistance by
failing to move to suppress the results of the warrantless blood test.
1.

Relevant Facts
Condition 6 of Petitioner’s parole agreement provided as follows:
Parolee shall: (a) abstain from excessive use of alcoholic
beverages; (b) abstain completely from the possession,
procurement, use, or sale of narcotics or controlled substance,
except as prescribed by a licensed medical practitioner;
(c) freely cooperate and voluntarily submit to medical and
chemical tests and examinations for the purpose of
determining if parolee is using, or under the influence of
alcohol or narcotics, which may be at parolee’s expense;
(d) participate in treatment programs as specified by the
Commission or ordered by the parole officer.

(State’s Lodging D-1 at 35 (emphasis added).)
In Condition 8 of that same agreement, Petitioner agreed to “submit to a search or
person or property, to include residence and vehicle, at any time and place by any agent
of Field and Community Services” and to “waive [his] constitutional right to be free from
such searching.” (Id.)
2.

Clearly-Established Law
The Sixth Amendment to the United States Constitution provides that a criminal

defendant has a right to the effective assistance of counsel in his defense. The standard
for ineffective assistance of counsel (“IAC”) claims is set forth in Strickland v.

MEMORANDUM DECISION AND ORDER - 7

Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel
must show that (1) “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) those errors
prejudiced the defendant by “depriv[ing] the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687. A petitioner must establish both deficient performance and
prejudice to prove IAC. Id. at 697. On habeas review, the court may consider either prong
of the Strickland test first, or it may address both prongs, even if one prong is not
satisfied and would compel denial of the IAC claim. Id.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
reasonableness of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
MEMORANDUM DECISION AND ORDER - 8

Id. at 689 (emphasis added) (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense or which motions or evidence
to present, “are virtually unchallengeable” if “made after thorough investigation of law
and facts relevant to plausible options.” Strickland, 466 U.S. at 690. Moreover, an
attorney who decides not to investigate a potential defense theory is not ineffective so
long as the decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Id. at 690-91. That is, “the duty to investigate does not force defense lawyers to scour the
globe on the off chance something will turn up; reasonably diligent counsel may draw a
line when they have good reason to think further investigation would be a waste.”
Rompilla v. Beard, 545 U.S. 374, 383 (2005). Further, counsel is not deficient in an area
where an investigation would not have been fruitful for the defense.
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional

MEMORANDUM DECISION AND ORDER - 9

errors, the result of the proceeding would have been different.” Id. at 694. As the
Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112.
To show prejudice based on deficient performance of counsel in a case where, as
here, the petitioner pleaded guilty, the petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Further, to
demonstrate prejudice when the ineffective assistance claim is based on counsel’s failure
to file a motion to suppress evidence on Fourth Amendment grounds, the petitioner “must
also prove that his Fourth Amendment claim is meritorious and that there is a reasonable
probability that the [outcome] would have been different absent the excludable
evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

MEMORANDUM DECISION AND ORDER - 10

The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court has explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101. That is, when evaluating an IAC claim under § 2254(d), this
Court’s review of that claim must be “doubly deferential.” Pinholster, 563 U.S. at 190
(internal quotation marks omitted).
Because Petitioner’s IAC claim is based on counsel’s failure to file a suppression
motion, the Court must also consider the standards of law applicable to Fourth
Amendment claims.
The Fourth Amendment protects against unreasonable searches and seizures and
“requires, as a general matter, that police procure a warrant before searching or seizing
property.” United States v. Ewing, 638 F.3d 1226, 1231 (9th Cir. 2011). However, there
are several exceptions to the warrant requirement.

MEMORANDUM DECISION AND ORDER - 11

One such exception is consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973) (“[O]ne of the specifically established exceptions to the requirements of both
a warrant and probable cause is a search that is conducted pursuant to consent.”). If a
person consents to a search or seizure, law enforcement does not need a warrant or
probable cause. With respect to the consent of parolees, the United States Supreme Court
has held that a state can constitutionally require, as a condition of parole, that parolees
consent to submit to any search, at any time, without any suspicion. Samson v.
California, 547 U.S. 843, 857 (2006) (“[T]he Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.”).
Another exception to the warrant requirement is the exigent circumstances
exception, which applies “when the exigencies of the situation make the needs of law
enforcement so compelling that a warrantless search is objectively reasonable under the
Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460 (2011) (internal quotation
marks and alteration omitted). Preventing the “imminent destruction of evidence”
constitutes an exigent circumstance “when the conduct of the police preceding the
exigency is reasonable”—that is, when “the police did not create the exigency by
engaging or threatening to engage in conduct that violates the Fourth Amendment.” Id. at
462.
The imminent loss of evidence is frequently an issue in drunk-driving cases, given
that the natural metabolization of alcohol in the blood over time will eventually result in
the destruction of the evidence of intoxication. In Missouri v. McNeely, 569 U.S. 141
(2013), the United States Supreme Court considered the impact of this natural
MEMORANDUM DECISION AND ORDER - 12

metabolization on the exigent circumstances exception to the warrant requirement. In
McNeely, the Court held that, although the potential loss of evidence resulting from that
metabolization is a factor to be considered in a Fourth Amendment inquiry, it does not
necessarily constitute exigent circumstances in all drunk-driving cases. 569 U.S. at 145,
165. However, there undoubtedly are some cases “when anticipated delays in obtaining a
warrant will justify a blood test without judicial authorization,” and whether a warrant is
required for a blood draw depends on the totality of the circumstances. Id. at 165.
3.

The Idaho Court of Appeals’ Rejection of Claim 2 Was Not Contrary to, or
an Unreasonable Application of, Clearly-Established Federal Law, nor Was
It Based on an Unreasonable Determination of the Facts.
The Idaho Court of Appeals concluded that Petitioner’s counsel was not

ineffective because a motion to suppress the blood test results would have been denied
based on Petitioner’s consent to such testing in his parole agreement:
Pursuant to his parole agreement, Cornelison waived certain
Fourth Amendment rights against unreasonable searches and
seizures. Specifically, Cornelison agreed [in Condition 6] to
“freely cooperate and voluntarily submit to medical and
chemical tests and examinations for the purpose of
determining if parolee is using, or under the influence of
alcohol or narcotics.” The medical and chemical tests
described in Cornelison’s parole agreement include blood
alcohol content tests.... Cornelison agreed to chemical testing
in his parole agreement and cannot assert such testing
violated his Fourth Amendment rights.
(State’s Lodging D-4 at 5.)
Cornelison argued to the court of appeals—as he does to this Court (see Dkt. 19 at
11-12)—that the explanatory phrase of Condition 8 of the parole agreement—stating that
“any agent of Field and Community Services” could conduct searches of Petitioner’s
MEMORANDUM DECISION AND ORDER - 13

“person or property, to include residence and vehicle”—applied to Condition 6, the
consent to testing, as well. Therefore, argued Petitioner, the police officer who ordered
the blood test in his case was not authorized to do so by the parole agreement. The court
of appeals disagreed:
Cornelison maintains that the blood test could only be
conducted by “any agent of Field and Community Services,”
not law enforcement officers. That terminology, however,
applied to a separate condition of his parole agreement where
he waived his constitutional right to be free from searches of
his person or property. Nonetheless, he asserts that if the
parole agreement is read as a whole, the same limitation also
applies to the separate testing provision. No such limitation
applies to the testing provision of his parole agreement.
(State’s Lodging D-4 at 5-6 (emphasis added).)
The court also determined that, even if the phrase “any agent of Field and
Community Services” did apply to both Condition 8 and Condition 6, it did not disqualify
the police officer in Petitioner’s case from ordering the blood test:
Moreover, “[n]othing precludes mutually beneficial
cooperation between law enforcement officials and parole
officers....” State v. Armstrong, 158 Idaho 364, 370, 347 P.3d
1025, 1031 (Ct. App. 2015). Thus, even applying the
“agent[s] of Field and Community Services” language, the
test was appropriately conducted under the agreement waiver.
(State’s Lodging D-4 at 5-6 (ellipsis in original).) The court concluded that any motion to
suppress would have been denied, and that, therefore, Petitioner had not shown a
reasonable probability of prejudice from counsel’s failure to move to suppress. Id. at 6.
The Idaho Court of Appeals’ rejection of Claim 2 was eminently reasonable.
Petitioner agreed to submit to chemical tests, such as the blood test administered after the

MEMORANDUM DECISION AND ORDER - 14

car crash, as a condition of his parole—a parole requirement that the Supreme Court has
upheld. See Samson, 547 U.S. at 857. The blood test was conducted pursuant to
Petitioner’s consent. Therefore, law enforcement officers did not need a warrant, see
Schneckloth, 412 U.S. at 219, and any motion to suppress would have been denied, see
Kimmelman, 477 U.S. at 375.
Petitioner’s reliance on McNeely is misplaced. Regardless of whether there were
exigent circumstances in Petitioner’s case that justified the warrantless blood test under
the particular warrant exception discussed in that case, the blood test was reasonable
under a different exception: the consent exception. The Idaho Court of Appeals’ rejection
of Claim 2 was not contrary to or an unreasonable application of clearly-established
Supreme Court precedent, nor was it based on an unreasonable determination of the facts.
Petitioner simply has not shown prejudice from his attorneys’ decisions not to move to
suppress the blood test results.
CONCLUSION
For the foregoing reasons, Petitioner is not entitled to habeas relief on the merits
of Claim 2.
ORDER
IT IS ORDERED:
1.

Claim 2 of the Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED.
Because Petitioner’s other claims have already been dismissed, this entire
action is DISMISSED with prejudice, and judgment will be entered in favor
of Respondent.

MEMORANDUM DECISION AND ORDER - 15

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 8, 2019

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

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