Hayes v. Page

Filing 29

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Respondents Motion for Extension of Time to File Answer (Dkt. 23 ) is GRANTED. The Answer is considered timely. The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED and DISMISSEDwith prejudice. Th e Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL THOMAS HAYES
#34295,
Petitioner,

Case No. 1:16-cv-00386-BLW
MEMORANDUM DECISION
AND ORDER

v.
HENRY ATENCIO,
Respondent.

While incarcerated, Petitioner Michael Thomas Hayes filed a Petition for Writ of
Habeas Corpus challenging his third state DUI conviction. His conviction would have
been a misdemeanor, but for previously having been convicted of two DUI within a tenyear period, which elevated the third offense to a felony. (Dkt. 3.) Petitioner is now a
parolee under supervision of the Idaho Department of Correction (IDOC). Accordingly,
the Court has substituted IDOC Director Henry Atencio for Warden Chad Page as the
appropriate respondent.
Without objection from Petitioner, Respondent has construed the Petition as
containing the following claims: (1) Hayes’ trial counsel was ineffective for (a) failing to
seek dismissal of the third DUI charge based on the fact that, when the prior two DUI

MEMORANDUM DECISION AND ORDER - 1

guilty pleas were entered, the law provided for enhancements for a third DUI charge if it
occurred within five years, not within ten years—as Petitioner was charged with in 2011
(a “specific performance” argument); and (b) failing to collaterally attack the prior
misdemeanor DUI convictions which served as the predicate offenses for Hayes’ felony
DUI; (2) Idaho Code §§ 18-8005 and 18-8006 are facially unconstitutional; (3) trial
counsel was ineffective for coercing Hayes’ guilty plea; and (4) the state courts’
“misapplication” of State v. Lamb, 206 P.3d 497 (Idaho App. 2009) violated his
constitutional rights. (Id.)
Earlier in this matter, the Court granted partial summary dismissal in favor of
Respondent, dismissing Claims Two and Four on procedural default grounds, dismissing
Claim Four on alternative grounds of failure to state a federal claim upon which relief can
be granted, and permitting Claims One and Three to proceed to a merits adjudication.
(Dkt. 22.) The Court permitted Petitioner to submit any cause and prejudice arguments or
miscarriage of justice arguments and any arguments arising from his late receipt of the
full state court record in this matter with his reply to the answer.
Respondent has filed his Answer, and Petitioner has filed his Reply. (Dkts. 24,
25.) Accordingly, the Petition is ready for disposition. Having reviewed the record,
including the state court record, and having considered the arguments of the parties, the
Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 2

BACKGROUND
In a criminal action in the Fourth Judicial District Court in Ada County, Idaho,
Petitioner pleaded guilty to and was convicted of felony DUI (“2011 DUI”), a charge
which consists of three or more DUI convictions within ten years, under I.C. § 18-8004.
The judgment of conviction was entered on October 26, 2011. Petitioner had been
convicted of two prior DUI convictions—in 2003, 2004—although the State labeled the
charges “first offense DUIs.” The third conviction is primarily at issue in this matter,
because it was elevated to a felony conviction as a result of the two prior offenses.
Petitioner’s arguments to challenge the third conviction focus on how the two prior
offenses were used as a basis for elevating the third offense from a misdemeanor to a
felony. The supervised probation terms of the two prior plea agreements expired in 2005
and 2006, and thus both sentences were satisfied prior to the 2011 charge.
For the 2011 felony DUI conviction, Petitioner received a sentence of two years
fixed with eight years indeterminate. He did not file a direct appeal, but pursued a state
post-conviction action.1
Petitioner contests the fact that, at the time he was convicted of his first two DUIs,
state law provided that three DUIs within five years amounted to a felony for the third
DUI, but, after that date, the law changed to be three DUIs within ten years, and,

1

Petitioner also filed a Rule 35 motion to correct an illegal sentence regarding restitution, which is not relevant here.

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therefore, Petitioner’s third DUI, committed after enactment of the new statute, made him
eligible for felony DUI and a longer sentence. (See Dkt. 13-1.)
STANDARD OF LAW FOR MERITS DETERMINATION
Where the petitioner files a federal habeas corpus action to challenge a state court
judgment, Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), applies. Title 28 U.S.C.§ 2254(d) limits relief to
instances 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).
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. 1999).
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] [Supreme] Court has not
announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

MEMORANDUM DECISION AND ORDER - 4

To assess whether habeas corpus relief is warranted, the federal district court
reviews “the last state-court adjudication on the merits.” Greene v. Fisher, 565 U.S. 34,
41 (2011). The deferential standard of section 2254(d) applies regardless of whether the
state court decision “is unaccompanied by an opinion explaining the reasons relief has
been denied.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Id. at 99. When the last adjudication on
the merits provides a reasoned opinion, federal courts evaluate the opinion as the grounds
for denial. 28 U.S.C. 2254(d).
However, where the state’s highest court did not issue a reasoned decision, courts
within the Ninth Circuit review the decision of the Idaho Court of Appeals, using the
“look through” principle of Ylst v. Nunnemaker, 501 U.S. 797 (1991), and “presume the
higher court agreed with and adopted the reasons given by the lower court.” Curiel v.
Miller, 830 F.3d 864 (9th Cir. 2016).2
The clearly-established law governing a claim of ineffective assistance of counsel
is found in Strickland v. Washington, 466 U.S. 668 (1984). There, the United States

The United States Supreme Court recently clarified: “In Ylst, we said that where “the last
reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later
decision rejecting the claim did not silently disregard that bar and consider the merits. 501 U.S., at 803,
111 S.Ct. 2590,” but that the presumption can be refuted by “strong evidence.” Kernan v. Hinojosa, 136
S. Ct. 1603, 1605–06 (2016).
2

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Supreme Court determined that, to succeed on an ineffective assistance claim, a petitioner
must show that (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness, and that (2) the petitioner was prejudiced by the deficient
performance. Id. at 684.
In assessing whether trial counsel’s representation fell below an objective standard
of competence under Strickland’s first prong, a reviewing court must view counsel’s
conduct at the time that the challenged act or omission occurred, making an effort to
eliminate the distorting lens of hindsight. Id. at 689. The court must indulge in the strong
presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance. Id.
Prejudice under these circumstances means there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different. Id. at
684, 694. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id. at 694.
A petitioner must establish both incompetence and prejudice to prove an
ineffective assistance of counsel case. 466 U.S. 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 is deficient and will compel denial. Id.
“[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of
the Sixth Amendment right to effective assistance of counsel.” Missouri v. Frye, 566 U.S.

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134 (2012) (citation omitted); see Hill v. Lockhart, 474 U.S. 52 (1985) (holding that the
Strickland v. Washington test applies to guilty plea challenges based on ineffective
assistance of counsel).
It is “clear that appointed counsel, and not his client, is in charge of the choice of
trial tactics and the theory of defense.” United States v. Wadsworth, 830 F.2d 1500, 1509
(9th Cir. 1987) (citing Henry v. Mississippi, 379 U.S. 443, 451 (1965)). An attorney is not
ineffective for refusing to pursue a certain defense after making a reasonable strategic
choice supported by an adequate investigation. Hendricks v. Calderon, 70 F.3d 1032,
1036 (9th Cir. 1995).
The foregoing standard, giving deference to counsel’s decisionmaking, 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 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.

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DISCUSSION
A.

Claim 1(A)

Claim 1(A) is that Petitioner’s trial counsel was ineffective for failing to seek
“specific performance,” meaning a dismissal of the 2011 DUI charge or a reduction of
that charge from a felony to a misdemeanor, for the state’s alleged breach of the
“contract” made in Petitioner’s two prior misdemeanor DUI convictions.
Petitioner raised this claim to the Idaho Court of Appeals under two separate
theories: (a) that after charging Petitioner’s two previous DUIs as “first offense DUIs,”
the state breached a “contract” with him when it charged his 2011 DUI as a “third offense
DUI,” when it had not charged him with a “second offense DUI”; and (b) the notification
forms Petitioner received with his two prior DUI convictions, which informed him that a
third DUI within five years would be charged a felony, formed a binding contract with
the State that was then breached when it charged his 2011 DUI as a felony under the
amended version of I.C. § 18-8005 that changed the time period to three DUIs within ten
years. (State’s Lodgings C-5, C-7.) Neither theory was successful. (State’s Lodging C-8.)
i. First Theory
The Idaho Court of Appeals rejected Petitioner’s first theory as follows:
[Hayes’] first theory is that the State entered a binding
contract with him by charging his 2003 and 2004 DUIs as
“first offense DUIs.” He asserts the State breached this
contract when it charged his 2011 DUI as a felony. Because
the State never charged him with a “second offense DUI,” he
asserts the State could not charge his third DUI as a felony

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under I.C. § 18-8005. This argument fails under the plain
language of I.C. § 18–8005. Subsection six states:
[A]ny person who pleads guilty to or is found
guilty of a violation of the provisions of section
18–8004(1)(a), (b) or (c), Idaho Code, who
previously has been found guilty of or has pled
guilty to two (2) or more violations of the
provisions of section 18–8004(1)(a), (b), or (c),
Idaho Code ... within ten (10) years,
notwithstanding the form of the judgment(s) or
withheld judgment(s), shall be guilty of a
felony....
I.C. § 18–8005(6).
Both of Hayes’ 2003 and 2004 convictions were for
violations of I.C. § 18–8004(1)(a), regardless of whether the
State charged them as “first offense DUIs.” These convictions
were within ten years of his 2011 charge for violating I.C. §
18–8004(1)(a). Hayes never disputed that he violated I.C. §
18–8004(1)(a) for any of his charges. Thus, the plain
language of I.C. § 18-8005(6) authorized the State to charge
Hayes’ 2011 DUI as a felony. Further, this Court and the
Idaho Supreme Court have held that if a defendant is found
guilty of three or more DUI offenses within the requisite time
period under I.C. § 18–8005(6), the defendant has committed
a felony. State v. Craig, 117 Idaho 983, 985, 793 P.2d 215,
217 (1990); State v. Locke, 149 Idaho 641, 643, 239 P.3d 34,
36 (Ct. App. 2010). This is true regardless of how the State
characterizes prior DUI charges. Thus, a motion by Hayes’
counsel asserting Hayes’ first theory would have failed.
(State’s Lodging C-8, pp. 4-5.)
This Court concludes that Petitioner’s first theory is frivolous. Petitioner cannot
point to any language in the statute that he must have been charged with a DUI offense
particularly designated a “first offense,” and then another DUI offense particularly

MEMORANDUM DECISION AND ORDER - 9

designated a “second offense.” There are no such designations in I.C. § 18-8004. Rather,
the statute plainly states that if a person is charged with “two (2) or more violations of the
provisions of section 18–8004(1)(a), (b), or (c), Idaho Code ... within ten (10) years,”
then that person is eligible for the third offense to be elevated to a felony. Petitioner does
not contend that he did not commit the prior DUIs, only that the second was mislabeled
as a “first offense” again.3
Had Petitioner’s trial counsel made this argument to the state district court, he
would have lost credibility for himself as an attorney and for Petitioner’s case. Attorneys
are obligated by their code of ethics to refrain from bringing frivolous arguments. Though
this argument may seem attractive to a layperson, it is unlikely that Petitioner could find
any lawyer who would agree to raise it, because no such language is in the statute under
which Petitioner was charged, and Petitioner can point to no terms in the plea agreement
that particularly hinged on the charge being called a “first offense DUI.”
Petitioner’s sub-argument is that the Idaho public defenders’ offices are
underfunded, causing his public defender to refuse to make an effort to raise arguments
such as this one. However, this sub-argument is not relevant, because Petitioner’s counsel
was not ineffective, regardless of how the public defenders were or were not funded.

3

This was actually Petitioner’s third offense, and so he certainly knew it was not his first. He had a first offense in
1999, outside both the five- and ten-year statutory periods, and then repeat offenses in 2003, 2004, and 2011.
(State’s Lodging B-2, pp. 30-31.) In all, Petitioner has had four DUIs, demonstrating that he is a great danger to the
public.

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Petitioner’s trial counsel did not perform deficiently, nor was Petitioner’s defense
prejudiced when his counsel refused to raise a frivolous argument on Petitioner’s behalf.
The Idaho Court of Appeals’ opinion is sound. This claim will be denied on the merits.
ii. Second Theory
The Idaho Court of Appeals rejected Petitioner’s second theory, which is that the
notification forms he received with his first two DUI convictions constituted a binding
contract that the state breached. That court reasoned:
Hayes’ second theory is also without merit. This Court
addressed a similar argument in State v. Lamb, 147 Idaho
133, 206 P.3d 497 (Ct. App. 2009). With his prior DUI
convictions, the defendant in Lamb received notices that the
State would charge a third DUI conviction in five years as a
felony. Id. at 136, 206 P.3d at 500. The defendant argued
those notices were part of his plea agreements, which the
State breached by charging his third DUI as a felony under
the amended version of I.C. § 18–8005(6) more than five
years after his first DUI. Id. This Court rejected that
argument, stating:
The 2006 amendment to I.C. § 18–8005 [(6)]
placed [the defendant] on notice that the DUI
enhancement law was no longer as had been
described to him upon his earlier convictions.
The notion that the trial courts’ warnings given
in his prior DUI cases somehow became part of
[the defendant’s] plea agreements is frivolous.
A trial court’s advisement of the risk of future
penalties under a recidivist statute is a warning
designed to deter the defendant from
committing future offenses, not a promise that
puts restraints on future prosecutions. It
certainly does not constitute a promise that the

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law will, with respect to the defendant, never
change.
Lamb, 147 Idaho at 137, 206 P.3d at 501 [internal citations
omitted in Hayes opinion, emphasis in original].
The same reasoning applies to Hayes’ second theory. The
notification forms he received with his prior DUI convictions
were not binding contracts, part of his plea agreements, or
promises that the law, with respect to him, would not change.
Rather, the forms were warnings meant to deter Hayes from
reoffending. The 2006 amendment to I.C. § 18–8005(6) put
Hayes on notice that the law had changed. Thus, Hayes’
theory that the notification forms were binding upon the State
is frivolous, and a motion by Hayes’ counsel asserting that
theory would have failed.
(State’s Lodging C-8, pp. 5-6.)
Here, Petitioner asserts that the Court of Appeals misunderstood his argument. In
his pro se appellant’s brief, he argued not that the plea agreement and the recidivist notice
constituted a binding contract together, but that each constituted a binding contract
standing alone. (State’s Lodging C-5, p. 5.) That is, “Petitioner never argued that the
Recidivist Notice was part of any of his plea bargains, but did assert that when the statute
did change—it was not his fault, nor does Legislation (new) language cover him.” (Id., p.
13 (verbatim).)
Reviewing the argument both ways, the Court concludes that the better legal
argument is that the two items should be construed together, but that argument
nonetheless fails. Construing each document separately also nets a loss. Petitioner argues
that, “the ‘Recidivist Notice’ creates its own contractual duties due to its elements of a

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contract, thus binding the contracts’ performances (inherent obligations and duties) to the
trueness and correctness of the statute at the time this document was presented and
considered.” (Id., pp. 5-6 (verbatim).)
However, Petitioner has shown that none of the elements of a contract are present
in the recidivist notice. The notice is clearly marked as a warning, and its function is to
provide Petitioner with notice of then-existing statutory consequences of a subsequent
DUI. It is not a promise or an “offer” to Petitioner, or anyone. There is no manner
indicated by which Petitioner or anyone can “accept” the purported offer. Petitioner gave
no “consideration” for the alleged terms of the recidivist notice “contract.” Nothing in the
notice indicates that its terms would continue to govern in the event the applicable statute
was amended by the state legislature.
The Court concludes that this theory is frivolous. A warning that subsequent DUI
convictions would bring harsher penalties under then-existing law is not the equivalent of
a contract. It is an elementary principle of criminal law that no one need be particularly
and personally aware of the existence of a law to be held criminally liable for breaking it;
rather, adoption and publication of a law by the legislature is deemed notice to the public
of the law’s existence. See, e.g., Joshua Dressler, Understanding Criminal Law § 13.01.02, at 141 (1987) (explaining that the doctrine that ignorance of the law excuses no one
is “deeply imbedded in Anglo-American criminal jurisprudence”).

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When the statute was amended, Petitioner was deemed to have notice—simply by
its publication in the Idaho Code—that the terms in the prior notice he received had been
replaced. As the Idaho Court of Appeals discussed in State v. Lamb, 206 P.3d 497 (Idaho
Ct. App. 2009) and repeated in Petitioner’s case, “[t]he 2006 amendment to I.C. § 188005[(6]) placed [the defendant] on notice that the DUI enhancement law was no longer
has had been described to him upon his earlier convictions.” (State’s Lodging C-8, p. 5.)
As to the prior plea agreements—which are rightly construed as “contracts” with
the State—at the time Petitioner committed a third DUI in 2011 and the two prior DUI
convictions were used as the foundation of the felony charge, there was no term in the
prior two plea agreements that was breached. The supervised probation terms of the 2003
and 2004 DUI plea agreements expired in 2005 and 2006, respectively, and the State did
what it promised to do within that time frame. The terms of the plea agreements were
over and done without any “breach” well before the 2011 DUI occurred.
The Court concludes that Petitioner’s trial counsel was not deficient for refusing to
raise an argument that had no chance of prevailing. Petitioner suffered no prejudice to his
defense from counsel’s refusal to raise a frivolous argument. This claim will be denied on
the merits.
iii. Petitioner’s Additional Arguments
Petitioner takes issue with the language of Idaho Code § 18-8005(12) providing
that “notwithstanding the form of judgment,” the statutory terms still apply. Petitioner

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argues: “In the above connection, the statutory language of ‘notwithstanding the form of
the judgment(s) or withheld judgments’ does not fit within the historical jurisprudence
used in the plea bargaining system where, as in this case, the statute has disturbed the res
judicata doctrine.” (Dkt. 3, p. 16.) Petitioner articulated this argument in his postconviction appellate brief as follows:
In connection to the legislature’s incorporation of the
notwithstanding form of judgment phrase into the statute—
what was there intent? If the intent was to count a conviction
despite “the form of judgment,” then how does the statute
truly affect the states ability to enter into a plea bargain with a
defendant?
(State’s Lodging C-5, p. 13 (verbatim).)
The statute at issue, Idaho Code § 18-8005(6), provides:
Except as provided in section 18-8004C, Idaho Code, any
person who pleads guilty to or is found guilty of a violation of
the provisions of section 18-8004(1)(a), (b) or (c), Idaho
Code, who previously has been found guilty of or has pled
guilty to two (2) or more violations of the provisions of
section 18-8004(1)(a), (b) or (c), Idaho Code, or any
substantially conforming foreign criminal violation, or any
combination thereof, within ten (10) years, notwithstanding
the form of the judgment(s) or withheld judgment(s), shall be
guilty of a felony.
(Id. (emphasis added).)
The import of the statute is clear. It emphasizes that commission of a DUI—not
the way the DUI charge eventually was disposed of—is the deciding factor for whether a
prior DUI is counted as one of the two prior DUIs that transform a third DUI into a

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felony. That is, DUIs committed but disposed of via withheld judgments, suspended
judgments, orders of probation, or judgments of conviction count as priors. DUIs
committed but disposed of by plea agreement or by conviction by jury trial count as
priors.
Petitioner’s two prior convictions counted because he “previously ha[d] been
found guilty of or had[d] pled guilty to two (2) or more violations of the provisions of
section 18-8004(1)(a), (b) or (c).” It did not matter that his prior judgments of conviction
were borne of plea agreements. There is nothing suspect, illegal, or unconstitutional
about the state legislature determining that it is the fact of driving under the influence
over and over again that must be stopped—and that has nothing to do with the type of
judgment entered in a case where a person was either convicted of or pleaded guilty to
the fact of DUI. This statutory term does nothing to alter application of res judicata
principles—which simply do not apply, as here, when a new crime is committed. The
statute does not retroactively alter the past convictions or sentences. Petitioner’s
argument is incorrect and without merit.
B.

Claim 1(B)

Claim 1(B) is that trial counsel was ineffective for failing to attempt to collaterally
attack his two prior misdemeanor DUI convictions which served as the predicate offenses
for the felony DUI. (Dkt. 3, pp.6-6(d).) This claim has its roots in the frivolous breach-ofcontract theory above. Petitioner wanted his counsel to argue that the notices amounted to

MEMORANDUM DECISION AND ORDER - 16

promises the State made to Petitioner as part of the basis for his guilty plea, subjecting
the prior convictions to collateral attack.
The Court of Appeals rejected this claim as follows:
As discussed above, the forms were not promises, contracts,
or part of Hayes’ plea agreements. Thus, the forms did not
create any basis for Hayes to rely on in making his prior
guilty pleas. Further, regardless of whether the forms were
promises, the Idaho Supreme Court held in State v. Weber,
140 Idaho 89, 92, 90 P.3d 314, 317 (2004) that a defendant
has no right to collaterally attack the validity of prior DUI
convictions used to support a charge of felony DUI, unless
the prior convictions were obtained in violation of the
defendant’s right to counsel. Because Hayes’ prior DUI
convictions were not obtained in violation of his right to
counsel, he cannot collaterally attack their validity in this
proceeding. Thus, the district court would not have granted a
motion collaterally attacking the validity of Hayes’ prior DUI
convictions, and his claim that counsel should have moved
for dismissal of his prior DUI convictions fails both prongs of
the Strickland test.
(State’s Lodging C-8, p.6 (footnote omitted).)
Petitioner urges that all of the lawyers and judges who have addressed his theory
have circumvented the fact that each conviction was by plea agreement and have ignored
his request to seek “specific performance of those deals and contracts.” (State’s Lodging
C-8, p. 8.) Petitioner argues that the State has “withdrawn” or breached the plea
agreement. However, Petitioner can point to nothing in the plea agreement that shows he
was guaranteed the privilege of not being charged with a DUI felony in the future, that he
was guaranteed that he could recommit a DUI after five years had passed and be free

MEMORANDUM DECISION AND ORDER - 17

from the possibility of a felony DUI, or that the law would never be changed to increase
punishment if a new DUI were committed in the face of two (here, three) prior DUIs.
There were no factual or legal grounds available to counsel to collaterally challenge the
prior convictions.
If this point has been ignored, it is because it is frivolous. Counsel was not
deficient for refusing to raise an argument that had no chance of prevailing.
C.

Claim 3

Claim 3 is that Petitioner’s trial counsel acted ineffectively by coercing him to
plead guilty. (Dkt. 3, pp. 8-8(d).) Petitioner asserts: “Defense Counsel threatened Hayes
with an ‘up to life sentence’ if he did not plead guilty to the felony DUI, even though
Hayes believed he was guilty of a misdemeanor second offense; this is based upon the
previously deals and contracts Hayes entered into with the state.” (Dkt. 3, p. 19.) The
state district court found:
There is no persuasive evidence that the petitioner’s
plea was in any way coerced. While he was unhappy that he
faced the potential longer sentence resulting from the
possibility of a persistent violator enhancement, his
unhappiness does not amount to coercion…. His attorney
gave him correct legal advice when he told the petitioner that
he did not have a legal defense to the DUI. The petitioner
testified that he did not have a factual defense to the DUI. The
petitioner failed to prove that his plea was in any fashion
coerced or that he received anything other than correct legal
advice.
(State’s Lodging B-1, p.121 & C-8, p. 3.)

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Petitioner makes the same argument here, but did not and does not suggest any
legal or factual basis for his assertion that his lawyer should have advised him differently.
There is nothing amounting to coercion evident in the record. The Idaho Court of
Appeals correctly observed: “the United States Supreme Court has long held a plea is not
coerced because it is motivated by the defendant’s desire to accept the certainty of a
‘lesser penalty rather than face a wider range of possibilities extending from acquittal to
conviction and a high penalty authorized by law for the crime charged.’” (State’s
Lodging C-8, p. 4, quoting Brady v. United States, 397 U.S. 742, 751 (1970).)
The United States Supreme Court has held that the validity of a guilty plea turns
on “whether the plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31
(1970). In Hill v. Lockhart, 474 U.S. 52, 59 (1985), the Court held that a plea is not
knowing and voluntary if it was the result of defense counsel’s advice amounting to
ineffective assistance of counsel. At his plea hearing, Hayes stated that his guilty plea
was freely and voluntarily given.
The record reflects that trial counsel listened to Petitioner’s theories and advised
him that they would not warrant dismissal. Counsel informed Petitioner that, under the
plea agreement he would receive a maximum ten-year sentence, but if he proceeded to
trial, he faced a possible life sentence with the felony DUI and a persistent violator
enhancement. (State’s Lodging C-8, p. 2.) Petitioner perhaps does not realize that even

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his first of his four DUI charges could have been considered by the sentencing court in
fashioning a sentence to protect society from Petitioner’s repetitive dangerous behavior.
Petitioner’s counsel, the Idaho Court of Appeals, the Idaho Supreme Court, and this
Court agree that Petitioner’s arguments are frivolous and that his counsel performed
effectively in helping Petitioner avoid a harsher sentence. This claim is without merit.
Having addressed all of Petitioner’s claims, the Court concludes that relief is not
warranted, and the Petition for Writ of Habeas Corpus will be denied and dismissed with
prejudice.
ORDER
IT IS ORDERED:
1. Respondent’s Motion for Extension of Time to File Answer (Dkt. 23) is
GRANTED. The Answer is considered timely.
2. The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED and DISMISSED
with prejudice.
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
files a timely notice of appeal, the Clerk of Court shall forward a copy of the
notice of appeal, together with this Order, to the United States Court of

MEMORANDUM DECISION AND ORDER - 20