Knight v. Yordy

Filing 29

MEMORANDUM DECISION AND ORDER Petitioners implicit request to file a Second Amended Petition (Dkt. 23 ) is GRANTED. Respondent's Motion for Summary Dismissal (Dkt. 20 ) is GRANTED. Respondent's Motion to Strike Second Amended Petition (D kt. 25 ) is DENIED. Petitioner's Motion for Permission to File Order of Time Notice (Dkt. 26 ) is DENIED as MOOT. The Court's resolution of this habeas matter is not reasonably debatable; therefore, a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (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
RICHARD KNIGHT,
Petitioner,

Case No. 1:16-cv-00459-REB
MEMORANDUM DECISION
AND ORDER

vs.
KEITH YORDY,
Respondent.

Respondent Keith Yordy filed a Motion for Summary Dismissal in this habeas
corpus matter on March 5, 2018. (Dkt. 20.) Petitioner responded by filing a Second
Amended Petition. (Dkt. 23.) On July 9, 2018, the Court notified Petitioner that he must
file a response to the summary dismissal motion or suffer dismissal of this action for
failure to prosecute. (Dkt. 22.) Petitioner filed a response, and the parties filed several
other motions that are now ripe for adjudication. (Dkts. 24, 25, 26.)
All named parties have consented to the jurisdiction of a United States Magistrate
Judge to enter final orders in this case. (Dkt. 16.) See 28 U.S.C. § 636(c) and Fed. R. Civ.
P. 73. The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Having carefully reviewed the record,

MEMORANDUM DECISION AND ORDER - 1

including the state court record, the Court finds that the parties have adequately presented
the facts and legal arguments in the briefs and record and that oral argument is
unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
Order.
REVIEW OF SECOND AMENDED PETITION
AND MOTION TO STRIKE SECOND AMENDED PETITION
In its Successive Review Order (Dkt. 13), the Court noted that Petitioner has
brought fourteen claims in his Amended Petition (Dkt. 11), but he had failed to state
whether he exhausted any of them. The Court determined that, to avoid delay, the Court
would not require Petitioner to explain the status of exhaustion in a second amended
petition. Nevertheless, Petitioner filed a Second Amended Petition (Dkt. 23), which is an
exact duplicate of his Amended Petition at Docket 11. Because Petitioner intends Docket
23 to be the operative pleading in this matter and Respondent will suffer no prejudice
from permitting amendment, the Court will deny Respondent’s Motion to Strike the
Second Amended Petition (Dkt. 23).
REVIEW OF MOTION FOR SUMMARY DISMISSAL
1. Background
In a criminal action in the Third Judicial District Court in Canyon County, Idaho,
Petitioner was convicted by jury of two counts of lewd conduct with a minor under the
age of 16 and one count of sexual abuse of a minor under the age of 16, involving two
victims, S.B. (Petitioner’s 14-year-old granddaughter) and K.B. (S.B.’s 16-year-old
friend). (State’s Lodging A-2.)

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Petitioner’s first jury trial ended in a mistrial. Petitioner was convicted at a second
jury trial. He was sentenced to concurrent terms of ten years fixed with ten years
indeterminate on the two lewd conduct charges and five years fixed with ten years
indeterminate on the sexual abuse charge. Petitioner’s judgment of conviction was
entered on October 17, 2012. (See State’s Lodging A-1 to A-2.)
Petitioner filed a direct appeal asserting the sentence constituted an abuse of
discretion. The Idaho Court of Appeals affirmed the sentences, and the Idaho Supreme
Court denied Petitioner’s petition for review of the claim. (See State’s Lodging B-1 to B7.)
Petitioner next filed a post-conviction relief petition, containing various ineffective
assistance of counsel claims. After appointment of counsel (Gregory Swanson of the
Canyon County public defender’s office) and a hearing, the state district court granted the
State’s motion for summary dismissal. (See State’s Lodgings C-1 to C-3.)
On appeal, Petitioner was appointed new counsel (experienced criminal defense
attorney Deborah Whipple of Nevin, Benjamin, PLLC) who scoured the record and then
filed a motion to withdraw, having found no appealable issue in the record. The motion
was granted, and Petitioner proceeded pro se on appeal. In his appellate brief, Petitioner
winnowed his claims down to two—that trial counsel was ineffective, first, for failing to
call Petitioner as a witness to testify at trial and, second, for failing to adequately crossexamine the State’s witnesses. (See State’s Lodgings D-1 to D-5.) The Idaho Court of
Appeals affirmed the summary dismissal of the two claims. (State’s Lodging D-10.)
Petitioner did not file a petition for review with the Idaho Supreme Court. In due course,
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the Idaho Court of Appeals issued its remittitur, concluding Petitioner’s related state
court actions. (State’s Lodging D-11.)
In this matter, Respondent asserts that all of Petitioner’s claims are procedurally
defaulted and the entire Petition should be dismissed with prejudice.
2. Standard of Law
Federal habeas corpus relief under 28 U.S.C. § 2254 is available to petitioners who
show that they are held in custody under a state court judgment and that such custody
violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a).
The Court is required to review a habeas corpus petition upon receipt to determine
whether it is subject to summary dismissal. See Rule 4 of the Rules Governing Section
2254 Cases. Summary dismissal is appropriate where “it plainly appears from the face of
the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court.” Id.
Habeas corpus law requires that a petitioner “exhaust” his state court remedies
before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a
claim, a habeas petitioner must fairly present it as a federal claim to the highest state
court for review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative
to a particular claim, a federal district court cannot grant relief on that claim, although it
does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).

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State remedies are considered technically exhausted, but not properly exhausted, if
a petitioner failed to pursue a federal claim in state court and there are no remedies now
available. O’Sullivan, 526 U.S. at 848. A claim may also be considered exhausted,
though not properly exhausted, if a petitioner pursued a federal claim in state court, but
the state court rejected the claim on an independent and adequate state law procedural
ground. Coleman v. Thompson, 501 U.S. 722, 731-732 (1991).
If a claim has not been properly exhausted in the state court system, the claim is
considered “procedurally defaulted.” Coleman, 501 U.S. at 731. A procedurally defaulted
claim will not be heard in federal court unless the petitioner shows either that there was
legitimate cause for the default and that prejudice resulted from the default, or,
alternatively, that the petitioner is actually innocent and a miscarriage of justice would
occur if the federal claim is not heard. Id.
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
An attorney’s errors that rise to the level of a violation of the Sixth Amendment
right to effective assistance of counsel may, under certain circumstances, serve as a cause
to excuse the procedural default of other claims. Murray v. Carrier, 477 U.S. at 488.
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However, an allegation of ineffective assistance of counsel will serve as cause to excuse
the default of other claims only if the ineffective assistance of counsel claim itself is not
procedurally defaulted or, if defaulted, a petitioner can show cause and prejudice for the
default. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). In other words, before a federal
court can consider ineffective assistance of counsel as cause to excuse the default of
underlying habeas claims, a petitioner generally must have presented the ineffective
assistance of counsel claim in a procedurally proper manner to the state courts, such as in
a post-conviction relief petition, including through the level of the Idaho Supreme Court.
As to a related but different topic–errors of counsel made on post-conviction
review that cause the default of other claims–the general rule on procedural default is that
any errors of a defense attorney during a post-conviction action cannot serve as a basis
for cause to excuse a petitioner’s procedural default of his claims. See Coleman v.
Thompson, 501 U.S. at 752. This rule arises from the principle that a petitioner does not
have a federal constitutional right to effective assistance of counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez,
999 F.2d 425, 430 (9th Cir. 1993).
Martinez v. Ryan, 566 U.S. 1 (2012), established a limited exception to this
general rule. That case held that inadequate assistance of post-conviction review (PCR)
counsel or lack of counsel “at initial-review collateral review proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 9. To demonstrate ineffective assistance of PCR counsel, a petitioner must show that a
defaulted ineffective assistance of trial counsel claim is “substantial,” meaning that the
MEMORANDUM DECISION AND ORDER - 6

claim has “some merit.” Id. at 14. To show that a claim is substantial, Petitioner must
show that trial counsel performed deficiently, resulting in prejudice, defined as a
reasonable probability of a different outcome at trial. Id.; see Strickland v. Washington,
466 U.S. 668, 695-96 (1984).
If a petitioner cannot show cause and prejudice for a procedurally defaulted claim,
he can still raise the claim if he demonstrates that the court’s failure to consider it will
result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494
(1991). A miscarriage of justice means that a constitutional violation has probably
resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477
U.S. at 496.
To show a miscarriage of justice, a petitioner must make a colorable showing of
factual innocence, Herrera v. Collins, 506 U.S. 390, 404 (1993), meaning that the new
evidence presented shows “it is more likely than not that no reasonable juror would have
found Petitioner guilty.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Types of evidence
that “may establish factual innocence include credible declarations of guilt by another,
see Sawyer v. Whitley, 505 U.S. 333, 340 (1992), trustworthy eyewitness accounts, see
Schlup, 513 U.S. at 331, and exculpatory scientific evidence.” Pitts v. Norris, 85 F.3d
348, 350-51 (8th Cir. 1996). The evidence supporting the actual innocence claim must be
“newly presented” evidence of actual innocence, meaning that “it was not introduced to
the jury at trial”; it need not be “newly discovered,” meaning that it could have been
available to the defendant during his trial, though it was not presented to the jury. Griffin
v. Johnson, 350 F.3d 956, 962–63 (9th Cir. 2013).
MEMORANDUM DECISION AND ORDER - 7

3. Discussion of Claims
Petitioner’s Amended Petition contains fourteen ineffective assistance of counsel
claims in his Amended Petition. Most pertain to Lance Fuisting of the Canyon County
Public Defender’s office, who represented Petitioner at the beginning of his case. The
other claims pertain to Ryan K. Dowell took over representation after Fuisting left the
public defenders’ office.
A. Claims against Lance Fuisting
Claim One: Trial counsel refused to let Petitioner testify at trial. The prosecutor
told the judge she did not want Petitioner to testify, and trial counsel agreed, but
Petitioner disagreed.
Claim Two: Trial counsel failed to cross examine victim Kaylee Berube when she
said she had been touched by Petitioner.
Claim Three: Trial counsel did not object when the prosecutor, Erica Kallin, raised
physical violence issues regarding an incident where the victim jumped into Petitioner’s
lap and kneed him in the groin, and he slapped her on the leg—which provided the basis
for a five-year sentence for abuse of a minor.
Claim Four: Trial counsel allowed the prosecutor to use a transcript of another
trial at Petitioner’s trial, even though the transcript had nothing to do with his case.
Claim Five: Trial counsel failed to cross-examine (or call as a defense witness) the
State’s witness Tammy Bartholomew (the victim’s mother) regarding Petitioner going
back to Rhode Island during the time period of the alleged sexual abuse and on other
points that the prosecutor did not raise with that witness.
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Claim Six: Trial counsel failed to raise the issue of Petitioner’s sexual dysfunction
during the relevant time period.
Claim Seven: Petitioner was not informed that trial counsel was leaving the public
defender’s office. Counsel did not help him get another attorney; counsel left Petitioner in
jail for three months without counsel, and finally the Court appointed new counsel from
the same office the day before sentencing.
Claim Nine: Trial counsel did not file a motion regarding a speedy trial after 180
days passed without having a trial.
Claim Ten: Trial counsel failed to raise the issue on cross-examination of Caldwell
City Officer Cheryl Wendell that she set up a confrontational call between the alleged
victim and Petitioner without informing Petitioner of his rights, as a means of improperly
interrogating Petitioner.
Claim Eleven: Trial counsel failed to cross-examine State’s witness/victim
Shannon Bartholomew about hitting Petitioner or being hit by Petitioner, which was
necessary because the prosecutor fabricated these allegations.
Claim Twelve: Trial counsel failed to cross-examine Shannon Bartholomew for
fabricating the entire factual basis of the criminal charges to retaliating against Petitioner,
and her grandfather (who caught her having sex with older boys and told her he would
put her in detention).
Claim Thirteen: Counsel failed to move to disqualify the judge assigned to the
case, Judge Renae J. Hoff, was dismissed from the bench for DUI for a short time, but

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then returned to the bench five months later conducting sentencing hearings. Petitioner
believes this is a bias that counsel should have addressed.
Claim Fourteen: Counsel was ineffective at the sentencing phase. He never
obtained a copy of Petitioner’s criminal record. He never brought up Petitioner’s stable
work history—Petitioner was 60 years old and had the same job for 35 years. Petitioner
asserts he had worked with people in their homes and with their children with “total
trust.” He “was not listed on the national sex offender’s site, and had no related history in
spillman or NCIC [sic].”
(Dkt. 23, pp. 2-5.)
B.

Claims against Ryan Dowell

Claim Eight: Counsel did not adequately prepare for sentencing, failed to review
the presentence report with Petitioner, lied to the judge, and didn’t know Petitioner’s
name when they went to court. (Dkt. 23, p. 3.)
4. Discussion of Procedural Default Issues
Respondent first opposes Petitioner’s claims on the basis that although Petitioner
brought two of his claims before the Idaho Court of Appeals, he raised none of the claims
before the Idaho Supreme Court. Accordingly, Respondent argues, Petitioner did not give
the Idaho Supreme Court a full and fair opportunity to consider and remedy the alleged
federal constitutional violations and therefore the claims are considered procedurally
defaulted in federal court.

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Respondent’s argument is simple and clear. Petitioner responds that he does not
understand what procedural default means and he is unable to respond without legal help.
Unfortunately, the law does not provide for counsel at this stage of proceedings. In
addition, the Court concludes that legal help is not essential for Petitioner to consider and
respond about why he did not raise his claims before the Idaho Supreme Court. The issue
is straightforward and involves factual matters within Petitioner’s knowledge.
Respondent has explained the standards in his motion, but Petitioner has not come
forward with any facts showing that his claims are not procedurally defaulted or that
cause and prejudice or the miscarriage of justice exceptions should be applied in his case.
Turning to the record to determine whether there are any reasons contained therein
that would constitute cause and prejudice or actual innocence, the Court finds none. No
external cause is evident, such that the Coleman exception would apply. No ineffective
assistance of post-conviction counsel is evident from the record, such that the Martinez
exception would apply.
Additionally, the record does not reflect that Petitioner is actually innocent. The
victims were teenagers who articulated their stories in detail. One of the victims had
connected with a school counselor (a licensed clinical social worker). The counselor
testified that based upon her interactions with the victim, the counselor believed the
victim had been sexually abused. The Petitioner’s own daughter, who is the mother of
one of the victims, testified against him. A police officer testified about several
interactions with Petitioner, including a confrontational call from the victim and an
interview between Petitioner and the officer.
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Petitioner contends that his granddaughter accused him in retaliation for his
interference with her relationship with her 18-year-old boyfriend and for her mother’s
subsequent decision to move her to Washington, away from her boyfriend. Petitioner also
asserts that the boyfriend was later charged with statutory rape regarding his relationship
with the fourteen-year-old victim. However, it is far-fetched that another teenager would
separately accuse Petitioner of sexual abuse, disclose that to her school counselor, and
come to court to testify—all because that person’s friend was angry at her grandfather.
The victim’s relationship with her boyfriend and the move to Washington were
brought up and probed at trial. The jury had opportunity to hear Petitioner’s defense
through his counsel’s questioning and argument. Petitioner’s counsel did not put
Petitioner on the stand to testify as a matter of strategy. Petitioner does not have any
particularly damaging evidence to the prosecution’s case that his testimony would have
raised or that shows he is actually innocent of the crimes. (See State’s Lodgings A-8, A-9,
C-1.)
The Court has considered that Petitioner had counsel Randall S. Grove from the
Canyon County public defender’s office to aid him in his post-conviction matter.
Petitioner also had counsel Deborah Whipple aiding in him reviewing that matter to see
whether there were any meritorious issues for appeal. After a review of all materials in
Petitioner’s file, Ms. Whipple found no arguable appeal issues. Further appointment of
counsel at taxpayer expense is not warranted. Accordingly, the Second Amended Petition
for Writ of Habeas Corpus, and this entire action, will be dismissed with prejudice.

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ORDER
IT IS ORDERED:
1. Petitioner’s implicit request to file a Second Amended Petition (Dkt. 23) is
GRANTED.
2. Respondent’s Motion for Summary Dismissal (Dkt. 20) is GRANTED, as its
reasoning is equally applicable to the Amended Petition (Dkt. 11) or the
Second Amended Petition (Dkt. 23), because they are identical.
3. Respondent’s Motion to Strike Second Amended Petition (Dkt. 25) is
DENIED.
4. Petitioner’s Motion for Permission to File Order of Time Notice (Dkt. 26) is
DENIED as MOOT. Petitioner points to the petition for review he filed in the
direct appeal as evidence that he filed a petition for review in the postconviction matter. (See State’s Lodging B-5.) He is mistaken. The petition for
review in the direct appeal is already contained in the record and need not be
re-filed.
5. The Court’s resolution of this habeas matter is not reasonably debatable;
therefore, 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 Appeals for
the Ninth Circuit. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.
MEMORANDUM DECISION AND ORDER - 13

DATED: March 20, 2019

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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