Leytham v. Page

Filing 54

MEMORANDUM DECISION AND ORDER Petitioner's Motion to Encourage State to Get Records Released (Dkt. 50 ) is DENIED. The remaining portion of Claim 2 of the Amended Petition for Writ of Habeas Corpus (Dkt. 8 ) is DENIED. Because all other claims have already been dismissed, this entire action is DISMISSED with prejudice. Petitioner's Motion to Object to Dismissal (Dkt. 51 ) is DENIED. Respondent's Motion to Strike (Dkt. 47 ) is DENIED AS MOOT. The Court does not find its reso lution 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. Signed by Judge Candy W. Dale. (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

JIMMY LEYTHAM,
Case No. 1:16-cv-00437-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
CHAD PAGE,
Respondent.

Pending before the Court is an Amended Petition for Writ of Habeas Corpus filed
by Idaho prisoner Jimmy Leytham (“Petitioner”), challenging his Ada County
convictions of forgery and criminal possession of a financial transaction card (“FTC”).
The Court previously dismissed, as procedurally defaulted, Claim 1, part of Claim 2 (as it
pertains to Petitioner’s FTC conviction), Claim 3, and Claim 4. (Dkt. 44.) Petitioner’s
only remaining claim—Claim 2, as it pertains to Petitioner’s forgery conviction—is now
fully briefed and ripe for adjudication on the merits. (Dkt. 49, 51, 53.)
Claim 2 asserts that, as a result of inadequate investigation, preparation, and
explanation of trial strategy, Petitioner’s trial counsel assured Petitioner “that he would
receive probation by pleading guilty.” (Dkt. 8 at 14.) Petitioner claims that this conduct
violated his Sixth Amendment right to the effective assistance of counsel and rendered
Petitioner’s guilty plea involuntary.

MEMORANDUM DECISION AND ORDER - 1

All parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. (Dkt. 18.) 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, the Court enters the following
Order denying habeas corpus relief on the remaining portion of Claim 2 and dismissing
this case with prejudice.
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

MEMORANDUM DECISION AND ORDER - 2

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
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

MEMORANDUM DECISION AND ORDER - 3

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, 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

MEMORANDUM DECISION AND ORDER - 4

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,
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

MEMORANDUM DECISION AND ORDER - 5

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.
When considering a habeas claim de novo, a district court may, as in the preAEDPA era, draw from both United States Supreme Court and well as circuit precedent,
limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even
under de novo review, however, if the factual findings of the state court are not
unreasonable under § 2254(d)(2), the Court must apply the presumption of correctness
found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at
1167-68. Conversely, if a state court factual determination is unreasonable, the federal
court is not limited by § 2254(e)(1) and may consider evidence outside the state court
record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d at
1000.
DISCUSSION
Petitioner asserts in Claim 2 that his trial counsel rendered ineffective assistance
by assuring Petitioner he would receive probation if he pleaded guilty, which caused
Petitioner to enter an involuntary guilty plea.
1.

Clearly-Established Law Regarding Ineffective Assistance of Counsel
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 was set forth by the Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting IAC must show
MEMORANDUM DECISION AND ORDER - 6

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 an
IAC claim. 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.
Id. at 689 (internal citations and quotation marks omitted).

MEMORANDUM DECISION AND ORDER - 7

Strategic decisions, such as the choice of a defense, “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.
The Supreme Court has explained that “strict adherence to the Strickland standard
[is] all the more essential when reviewing the choices an attorney made at the plea
bargain stage,” because “[f]ailure to respect the latitude Strickland requires can create at
least two problems in the plea context”:
First, the potential for the distortions and imbalance that can
inhere in a hindsight perspective may become all too real. The
art of negotiation is at least as nuanced as the art of trial
advocacy, and it presents questions further removed from
MEMORANDUM DECISION AND ORDER - 8

immediate judicial supervision. There are, moreover, special
difficulties in evaluating the basis for counsel’s judgment: An
attorney often has insights borne of past dealings with the
same prosecutor or court, and the record at the pretrial stage
is never as full as it is after a trial. In determining how
searching and exacting their review must be, habeas courts
must respect their limited role in determining whether there
was manifest deficiency in light of information then available
to counsel. AEDPA compounds the imperative of judicial
caution.
Second, ineffective-assistance claims that lack
necessary foundation may bring instability to the very process
the inquiry seeks to protect. Strickland allows a defendant “to
escape rules of waiver and forfeiture.” Prosecutors must have
assurance that a plea will not be undone years later because of
infidelity to the requirements of AEDPA and the teachings
of Strickland. The prospect that a plea deal will afterwards be
unraveled when a court second-guesses counsel’s decisions
while failing to accord the latitude Strickland mandates or
disregarding the structure dictated by AEDPA could lead
prosecutors to forgo plea bargains that would benefit
defendants, a result favorable to no one.
Premo v. Moore, 562 U.S. 115, 125 (2011) (internal citations omitted).
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
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
MEMORANDUM DECISION AND ORDER - 9

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. And to show prejudice
from counsel’s performance 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).
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 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
MEMORANDUM DECISION AND ORDER - 10

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).
2.

Relevant Facts
In exchange for Petitioner’s guilty plea to forgery and criminal possession of an

FTC, the state agreed to dismiss the remaining charges in those two cases, to refrain from
pursuing new charges against Petitioner, and to refrain from prosecuting Petitioner as a
persistent violator. (State’s Lodging A-3 at 5-8.) The state agreed to limit its sentencing
recommendation to ten years in prison, and Petitioner agreed to pay restitution. (Id. at 610.)
At the change-of-plea hearing, the Court questioned Petitioner extensively about
his understanding of the plea agreement and about any promises made to Petitioner
regarding his potential sentence:
Q. Now, you understand I’m not required to follow this plea
agreement?
A. Yes, ma’am, I understand.
Q. What that means is I can actually give you a 14-year
prison sentence in the forgery case and a five-year prison
sentence in the financial transaction card case and I can run

MEMORANDUM DECISION AND ORDER - 11

them consecutive to each other for a total of 19 years without
the possibility of parole. Do you understand that?
A. Yes, ma’am.
Q. And I’m not required to follow recommendations of either
counsel. Do you understand that?
A. Yes, ma’am.
Q. Now, you understand that you’re agreeing to pay
restitution in all of these cases including the dismissed cases.
Do you understand that?
A. Yes, ma’am.
Q. And you’re also agreeing to pay restitution in the case
that’s the DR [Departmental Report] case, 2014-411861. Do
you understand that?
A. Which one would that be, ma’am?
Q. That’s the one that—it’s the one that they’re not going to
file on.
A. Yes.
Q. All right. And you understand again that because these are
two crimes that I can run them consecutive to each other?
A. Yes, ma’am.
Q. You also understand that if I don’t follow this plea
agreement, you will not be allowed to withdraw your guilty
plea? Do you understand that?
A. I understand.
Q. You understand the only person who can make any
promises to you as to what’s going to happen at sentencing is
me?
A. Yes, ma’am.
Q. Have I made you any promises?
MEMORANDUM DECISION AND ORDER - 12

A. No, ma’am.
Q. Have you reviewed the evidence that was provided to your
attorney provided during discovery?
A. Yes, I have.
Q. Is there anything that your attorney has—that you’ve
asked your attorney to do that he has not done?
A. No, ma’am.
Q. And have you told your attorney everything that you know
about these crimes?
A. Yes, ma’am.
Q. Have you had enough time to talk to your attorney?
A. Yes, ma’am.
…
Q. Are there any promises that have been made to you that
influenced your decision to plead guilty—
A. No, ma’am.
Q. —besides the plea agreement?
A. No.
…
Q. And you understand again about the requirement that
you’re going to have to pay restitution to your victims?
A. Yes, ma’am.
Q. And I noticed that you crossed yes and then it looks like
over no it says—you wrote L—it looks like a signature, but
I’m not positive. It looks like an initial. But you do
understand that you have to pay restitution to the victims?
A. Yes, ma’am.
MEMORANDUM DECISION AND ORDER - 13

Q. You understand that?
A. Yes.
…
Q. Has anyone including law enforcement or even your
attorney threatened you in any way to get you to enter this
plea against your will?
A. No, ma’am.
Q. Has anyone promised you a special sentence, reward or
favorable treatment with regard to your decision to enter a
guilty plea?
A. No, ma’am.
…
Q. Are you satisfied with your attorney?
A. Yes, ma’am.
(Id. at 24-31.)
At sentencing, the court once again described the plea agreement as providing for
a recommendation by the state of no more than ten years’ imprisonment and requiring
restitution in each of the three cases at issue (the two cases in which Petitioner pleaded
guilty and the third case that the state did not pursue). The prosecutor described the
restitution award as consisting of $202.75 in the FTC case, an undisclosed amount that
already had been paid to the victim in the forgery case, and $55,331.92 in the third case
that was not pursued. (Id. at 37-38.) Petitioner, through counsel, agreed to these
restitution amounts. (Id. at 38.)

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After argument, Petitioner declined the trial judge’s invitation to make a statement
or present any additional information. (Id. at 58.) The court then imposed a sentence of
ten years in prison, with five years fixed, on the forgery conviction and ordered Petitioner
to pay restitution in the amounts of $202.75 and $55,331.92. (Id. at 64-66.)
3.

Petitioner Is Not Entitled to Relief on the Remaining Portion of Claim 2
Petitioner asserts in Claim 2 that trial counsel rendered ineffective assistance with

respect to Petitioner’s guilty plea. According to Petitioner, his attorney promised him he
would receive probation, and, if counsel had not done so, Petitioner would not have
pleaded guilty. (Dkt 8 at 14 (citing Strickland v. Washington and Hill v. Lockhart).)
The Idaho Court of Appeals rejected Claim 2, finding that, even assuming
Petitioner’s trial counsel promised him he would receive probation, Petitioner “was made
aware by the district court that no promises were enforceable.” (State’s Lodging D-4 at
6.) That is, the trial court’s explanation “cured” any error, and Petitioner could not show
prejudice from any promise of probation. (Id.) The appellate court also found that the trial
court clearly advised Petitioner he would be required to pay restitution and that Petitioner
agreed to the amount of the restitution awards; because Petitioner declined to make a
statement at sentencing after his counsel agreed to the amount of restitution, Petitioner’s
“allegations that he was misinformed by his counsel are clearly disproven by the record.”
(Id. at 7.)
The Idaho Court of Appeals’ application of Strickland to Claim 2 was reasonable
under AEDPA, as was the court’s factual finding that Petitioner knew, prior to pleading
guilty, that he was not guaranteed probation and that he would be required to pay
MEMORANDUM DECISION AND ORDER - 15

restitution. See 28 U.S.C. § 2254(d). Petitioner’s own statements at the plea hearing, as
well as his counsel’s agreement to the amount of restitution at the sentencing hearing
(which Petitioner did not contest), clearly support the state court’s decision. Because
Petitioner knew that his maximum possible sentence was nineteen years’ imprisonment
and that no promises were enforceable, he cannot establish that, absent counsel’s alleged
promise of probation, he would have insisted on going to trial. See Hill, 474 U.S. at 59.
Therefore, Petitioner is not entitled to relief on Claim 2.
CONCLUSION
For the foregoing reasons, the Court will deny the remaining portion of Claim 2 on
the merits.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion to Encourage State to Get Records Released (Dkt. 50)
is DENIED.

2.

The remaining portion of Claim 2 of the Amended Petition for Writ of
Habeas Corpus (Dkt. 8) is DENIED. Because all other claims have already
been dismissed, this entire action is DISMISSED with prejudice.

3.

Petitioner’s Motion to Object to Dismissal (Dkt. 51) is DENIED.

4.

Respondent’s Motion to Strike (Dkt. 47) is DENIED AS MOOT.

5.

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.

MEMORANDUM DECISION AND ORDER - 16

§ 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: July 29, 2019

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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