Wilson v. Yordy

Filing 19

MEMORANDUM DECISION AND ORDER. IT IS ORDERED:1. The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED, this entireaction is DISMISSED with prejudice, and judgment will be entered in favorof Respondent.2. The Court does not find its resolution o f this habeas matter to be reasonablydebatable, and a certificate of appealability will not issue. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JARED J. WILSON,
Case No. 1:17-cv-00055-DCN
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
KEITH YORDY, Warden,
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Jared J. Wilson (“Petitioner” or “Wilson”), challenging Petitioner’s Gem
County convictions on two counts of lewd conduct with a minor under the age of sixteen.
Dkt. 3. The Petition is now fully briefed and ripe for adjudication. Dkt. 11, 13. The Court
takes judicial notice of the records from Petitioner’s state court proceedings, which have
been lodged by Respondent. See Dkt. 10; 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.
7.1(d). Accordingly, the Court enters the following Order denying habeas corpus relief.
BACKGROUND
In the Third Judicial District Court in Gem County, Idaho, Petitioner was charged
with two counts of violating Idaho’s Sexual Offender Registration Notification and
Community Right-to-Know Act by (1) failing to register as a sex offender and (2) failing

MEMORANDUM DECISION AND ORDER - 1

to provide a notice of a change of address.
In a separate case, Petitioner was also charged with two counts of lewd conduct
with a minor under the age of sixteen. One of the lewd conduct counts alleged that
Petitioner molested the victim at his home in Emmett. The other count alleged that
Petitioner molested her while driving the victim between her home in Twin Falls and his
home in Emmett. The state alleged that both lewd conduct crimes were committed “on or
between the years 2006 and 2007,” when the victim was seven and eight years of age.
State’s Lodging A-3 at 416.
The cases were consolidated, with the agreement of Petitioner’s trial counsel.
Counsel’s agreement was based on his belief that, if the cases were consolidated,
Petitioner could not be charged with a persistent violator, or habitual offender,
enhancement. That belief was incorrect, as the parties learned shortly before trial.
Because Petitioner had other qualifying convictions, he was subject to the habitual
offender enhancement regardless of whether the cases were consolidated or were tried
separately. Petitioner’s counsel later stated that his initial agreement to consolidate the
cases might have been different if he had known about Petitioner’s previous convictions.
After the prosecution ran a criminal history check and discovered the previous
convictions, it suggested that it might consider dismissing the charges, then refiling them
in new informations that included a habitual offender enhancement in each case. At a
pretrial hearing, the prosecution agreed not to do so if Petitioner agreed to keep the cases
consolidated and to go to trial as scheduled. Petitioner’s counsel so agreed.

MEMORANDUM DECISION AND ORDER - 2

The jury convicted Petitioner on all four counts. He was sentenced to terms of ten
years in prison on each of the registration/notification counts, and concurrent unified
terms of life imprisonment, with ten years fixed, on each lewd conduct count. The Idaho
Court of Appeals vacated the conviction for failing to register but affirmed the other
convictions.1 State’s Lodging B-8.
Petitioner then pursued state post-conviction relief, asserting claims of ineffective
assistance of counsel, as well as other claims that he does not raise in his federal Petition.
State’s Lodging C-1 at 4-54. The state district court dismissed the post-conviction
petition. Id. at 163-67.
On appeal from the dismissal of that petition, Petitioner raised two claims of
ineffective assistance of trial counsel. First, he alleged that his trial counsel rendered
ineffective assistance by failing to investigate Petitioner’s criminal history before
agreeing to consolidate the lewd conduct case with the registration/notification case.
State’s Lodging B-3. Such an investigation would have revealed that Petitioner could be
charged with a habitual offender enhancement regardless of whether the cases were
consolidated. This claim is asserted as Claim 1 of the instant Petition.
Second, Petitioner alleged that his counsel rendered ineffective assistance by
failing to call certain witnesses and present certain other evidence. Id. This claim is
presented as Claim 2 of the Petition.

1

The instant Petition challenges only Petitioner’s two lewd conduct convictions—not the failure-to-notify
conviction.

MEMORANDUM DECISION AND ORDER - 3

The Idaho Court of Appeals affirmed the dismissal of the post-conviction petition.
State’s Lodging D-6. With respect to Claim 1, the court concluded that trial counsel’s
(1) initial agreement to consolidate the cases, and (2) later agreement to keep the cases
consolidated, were tactical decisions and that, although the initial decision was based on
ignorance, Petitioner had not shown that this initial decision played a role in the second
strategic decision to keep the cases consolidated so as to avoid refiling of the charges
with the addition of habitual offender enhancements. Id. at 5-6. As for Claim 2, the court
determined that (1) counsel’s decision not to present the evidence identified by Petitioner
was a reasonable strategic decision, and (2) even if the evidence had been presented, it
would not have altered the jury’s verdicts. Id. at 6-9.
The instant Petition challenges the Idaho Court of Appeals’ rejection of Claims 1
and 2.
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

MEMORANDUM DECISION AND ORDER - 4

(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
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

MEMORANDUM DECISION AND ORDER - 5

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
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).

MEMORANDUM DECISION AND ORDER - 6

“[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,
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

MEMORANDUM DECISION AND ORDER - 7

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. When
considering a habeas claim de novo, a district court may, as in the pre-AEDPA era, draw
from circuit precedent as well as Supreme Court precedent, limited only by the nonretroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even on de novo review,
however, so long as the state courts’ factual findings are not unreasonable under
§ 2254(d)(2), the federal habeas court still must apply § 2254(e)(1)’s presumption of
correctness to any such findings. Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir.
2002).
DISCUSSION
1.

Clearly-Established Law Governing Claims of 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 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
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(2) those errors “deprive[d] 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).
Strategic decisions, such as the choice of which 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
MEMORANDUM DECISION AND ORDER - 9

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 Ninth Circuit has provided some insight into the Strickland standard when
evaluating an attorney’s “strategy calls.” These cases are instructive in the Court’s
assessment of whether the state court reasonably applied Strickland. See Duhaime, 200
F.3d at 600. First, tactical decisions do not constitute IAC simply because, in retrospect,
better tactics are known to have been available. Bashor v. Risley, 730 F.2d 1228, 1241
(9th Cir. 1984). Second, a mere difference of opinion as to tactics does not render
counsel’s assistance ineffective. United States v. Mayo, 646 F.2d 369, 375 (9th Cir.
1981). Third, “counsel’s investigation must determine trial strategy, not the other way
around.” Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017); see also id.
(“Weeden’s counsel could not have reasonably concluded that obtaining a psychological
MEMORANDUM DECISION AND ORDER - 10

examination would conflict with his trial strategy without first knowing what such an
examination would reveal.”).
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
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.
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

MEMORANDUM DECISION AND ORDER - 11

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. 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.

Petitioner Is Not Entitled to Relief on Claim 1
In Claim 1, Petitioner asserts that his trial counsel rendered ineffective assistance

in initially agreeing to consolidate the lewd conduct charges with the
registration/notification charges without first investigating Petitioner’s criminal
background.2 If counsel had investigated that background, counsel would have learned

2

In his Reply in support of his Petition, Petitioner suggests that the prosecution committed a Brady
violation “by waiting to bring forth his prior criminal history just before trial.” Dkt. 13 at 3; see Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution must disclose evidence favorable to the
defense that is material to guilt or punishment, regardless of whether the defense has requested such
evidence). Setting aside the fact that Petitioner does not assert a Brady claim in his Petition, this argument
fails. Petitioner’s criminal history is not Brady evidence because the fact that Petitioner was convicted of
numerous prior felonies was not suppressed by the prosecution—Petitioner, without question, already
knew he had been so convicted.

MEMORANDUM DECISION AND ORDER - 12

that Petitioner already qualified for a habitual offender enhancement—even if the cases
were not consolidated. According to Petitioner, a properly-informed attorney would have
insisted that the cases remain separate, thereby lessening the risk that the jury would
convict based solely on Petitioner’s propensity to commit sex crimes.
A.

Relevant Facts

The lewd conduct charges and the registration/notification charges against
Petitioner were initially filed in two separate cases. The issue of consolidating the cases
for trial first arose sometime prior to a December 13, 2010 hearing, when the prosecutor
informed Petitioner’s counsel that the state was considering moving to consolidate the
cases. In addressing this possibility, Petitioner’s counsel told the trial court:
Judge, one of the other issues that would come about if my
client is charged on a consolidated pleading is the fact that the
good side is that the State would not be allowed to file an
enhancement for habitual status offender, exposing my client
to a mandatory minimum of five years up to natural life,
because [of] the fact that if there are any convictions, they’d
be on the same information.
State’s Lodging A-5 at 6. The state then formally moved to consolidate the cases, and the
court took the motion under advisement. Id. at 8-9.
At a later hearing, Petitioner’s counsel stipulated to the consolidation of the two
cases. Defense counsel stated that there was an upside and a downside to consolidation.
In explaining to the trial court his decision to stipulate, Petitioner’s counsel stated, “[P]art
of the problem that we had in this case was we didn’t want to try the cases consecutively
and expose my client to the habitual offender enhancement.” State’s Lodging A-4 at 10.

MEMORANDUM DECISION AND ORDER - 13

Thus, as of the date of that hearing—January 24, 2011—Petitioner’s counsel was
still under the impression that there would be a benefit to Petitioner if the cases were
consolidated. The primary detriment to consolidation, of course, was that the jury would
hear evidence not only that Petitioner committed lewd conduct, but also that he had failed
to register as a sex offender—that is, the jury would know that Petitioner had previously
been convicted of a registrable sex offense.3 Such knowledge would create a risk that the
jury would convict on the lewd conduct charges based on the fact that Petitioner had
committed a previous sex offense and, therefore, had a propensity to commit sex
crimes—rather than convicting because the jury found Petitioner guilty of lewd conduct
beyond a reasonable doubt. If the trials remained separate, the jury in the lewd conduct
case would not have known that Petitioner had previously been convicted of a sex
offense.
However, believing that the benefit of avoiding a habitual offender enhancement
outweighed that detriment, Petitioner’s counsel made the strategic decision to agree to
consolidate the cases. As the Idaho Court of Appeals later determined, that decision was
based on ignorance, due to counsel’s lack of adequate investigation.
About a week before trial, Petitioner’s counsel realized—after the prosecution’s
background check—that Petitioner was already subject to being charged with a habitual
offender enhancement whether or not the cases were consolidated. At a hearing the day

3

Petitioner’s counsel initially identified a different detriment to consolidation: that the state could object
to credit for time served. State’s Lodging A-5 at 6. However, counsel immediately recognized that this
potential detriment to consolidation was not truly a concern because the state represented that it would not
object to any such credit. Id.

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before trial, Petitioner’s counsel raised the issue to the court:
Judge, it’s my understanding that the State’s
considering trying to add the habitual offender on both of the
cases which would expose my client to a mandatory
minimum of five years up to actual life on all of the counts.
Judge, obviously when we were making our determinations
on having these matters consolidated, it was a situation where
we didn’t believe that my client was currently exposed to the
habitual offender enhancement which could have been filed.
Judge, last week the State had discovered when they
did a background check, because it had never previously been
done, that my client has actually quite a few number of felony
convictions here in the state of Idaho. I believe he has four
prior felony convictions ranging from driving without
privileges to NSF check, forgery, and burglary.
Apparently, Judge, if we had known that, we may have
come up with a different position on whether or not to
consolidate these matters. Obviously when we were—of
primary concern, trying to avoid a situation where the State
could enhance and file the habitual. One of the things we had
to weigh was the likelihood or the possibility that the court
would allow in 404(b) evidence that may not necessarily have
come in on the lewd conduct case.
Judge, obviously in the failure to register case, one of
the primary pieces of proof that the State has to put on is the
fact that my client has a registration requirement because of
a prior felony conviction for a sex offense. So Judge, we knew
that it was coming in on that case. The question was, was it
going to come in on the lewd conduct case and what were the
pros and cons.
Judge, in weighing the pros and cons at that point, we
didn’t want to face because of consecutive trials the exposure
to the habitual because then all of a sudden we’d changed the
registration case from a maximum of five years[4] to a
minimum of five years up to natural life.

4

The legislature had recently increased the statutory maximum punishment for the registration and
notification charges, so that at the time of Petitioner’s offenses, the maximum was actually ten years, not
five. See State’s Lodging A-6 at 28; Idaho Code § 18-8311.

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Judge, at this point, part of the reason that the State
agreed or we allowed the State to [consolidate the cases] was
to avoid the habitual. But if the State is—
State’s Lodging A-6 at 25-27 (emphasis added). The trial court interjected and noted that
no motion for severance was pending. The court asked whether severance was “even an
issue.” Id. at 27. The prosecutor replied:
It’s not an issue, Your Honor. If we—I’ve told
[defense counsel] that we’re not filing a habitual. If these
cases are tried together and go forward to trial tomorrow,
we’re not moving to add the habitual.... If we took that route,
what we would do ... is dismiss and refile to separate the
cases and go forward that way. So it’s not an issue for trial
tomorrow.
Id. (emphasis added).
The trial court agreed with the prosecution regarding its discretion to dismiss and
refile, stating, “the State would always have the opportunity to—or the option of
dismissing these and refiling, but that isn’t anything in terms of adding it in for
tomorrow.” Id. Petitioner’s counsel did not object at any point in this exchange nor did he
move to sever, thereby choosing not to object to keeping the cases consolidated and the
trial date as scheduled.
B.

The Idaho Court of Appeals’ Rejection of Claim 1 Was Reasonable under
AEDPA

The Idaho Court of Appeals held that trial counsel’s initial decision to agree to
consolidate, without investigating Petitioner’s criminal history, constituted deficient
performance. State’s Lodging D-6 at 5-6. This Court agrees. Counsel’s goal—to avoid a
habitual offender enhancement, which would increase the statutory maximum

MEMORANDUM DECISION AND ORDER - 16

punishment on the registration/notification charges to life in prison—was reasonable,5 but
his decision to agree to consolidate without first knowing his client’s criminal history, in
order to reach that goal, was not. See Weeden, 854 F.3d at 1070 (“[C]ounsel’s
investigation must determine trial strategy, not the other way around.”).
However, the state court determined that, despite the unreasonableness of
counsel’s initial agreement to consolidate, Petitioner had not shown prejudice as required
by Strickland:
[T]he record indicates that on two occasions Wilson
stipulated to the consolidation of his cases in an effort to
avoid a persistent violator enhancement. The first stipulation
was predicated on trial counsel’s erroneous belief that Wilson
would be ineligible for the enhancement if both cases were
tried together instead of consecutively. The State later
discovered that Wilson had multiple prior felony convictions,
meaning that he could have been charged as a persistent
violator regardless of whether the cases were consolidated.
The second stipulation occurred after Wilson’s criminal
record was revealed to trial counsel. As noted by the district
court, the State had the option to include the enhancement
based on Wilson’s prior criminal record. However, trial
counsel and the State agreed that, despite Wilson’s eligibility
for the enhancement, if the cases continued to remain
consolidated and went to trial as scheduled, the State would
not seek the persistent violator enhancement. Wilson, through
his trial counsel, agreed that the cases would remain
consolidated.
Although trial counsel initially was under the
erroneous belief that Wilson was not subject to the persistent
violator enhancement, Wilson has not shown that this error
played any role in the second stipulation to consolidate the
cases. Rather, trial counsel’s decision to keep the cases
consolidated was strategic in nature, based on the relevant
5

That Petitioner was already exposed to a maximum punishment of life in prison on the lewd conduct
charges does not render counsel’s concern about the habitual offender enhancement unreasonable or
superfluous. Four potential life sentences are substantially different from two.

MEMORANDUM DECISION AND ORDER - 17

facts, and ensured that Wilson did not face a persistent
violator enhancement, which was the original strategic
reason for agreeing to case consolidation. Wilson has failed
to show that the second stipulation was based on inadequate
preparation, ignorance of relevant law, or other shortcomings
capable of objective evaluation. To the contrary, Wilson
endorsed the strategy of avoiding the persistent violator
enhancement. Accordingly, Wilson has failed to show that the
district court erred in summarily dismissing Wilson’s
ineffective assistance of counsel claim for consolidating his
criminal cases.
Id. (emphasis added). In essence, the court of appeals concluded Petitioner failed to show
a reasonable probability that trial counsel would have objected to consolidation—forcing
the prosecution to dismiss and refile, in which case it could charge the habitual offender
enhancement in both cases—if counsel had known from the beginning that Petitioner
would be subject to the enhancement even in a consolidated proceeding.
The decision of the Idaho Court of Appeals on Claim 1 was not contrary to, or an
unreasonable application of, Strickland, nor was it based on an unreasonable
determination of the facts. The State always had the ability to dismiss the charges—even
on the eve of trial—and refile two new cases, with two new charging documents, each
including the habitual offender enhancement. Petitioner’s counsel’s initial agreement to
consolidate, though an unreasonable tactical decision because it was based on inadequate
investigation, did not change that fact. If Petitioner had objected to consolidation, either
at the initial hearing or at the hearing the day before trial, or both, the prosecution easily
could have—and implied at the last pretrial hearing that it would have—dismissed and
refiled rather than continue the trial. Counsel’s second agreement to keep the cases
consolidated did indeed keep Petitioner from being charged with the habitual offender

MEMORANDUM DECISION AND ORDER - 18

enhancement.
Moreover, Petitioner may be able to establish prejudice as to his ability to have
separate trials, but that is not the question. Instead, to establish ineffective assistance
based on trial counsel’s initial agreement to consolidate, Petitioner must establish
prejudice as to the ultimate verdict on the lewd conduct charges. He has not done so,
even under de novo review.
The danger of consolidated trials in this case was the risk of conviction based on
propensity evidence—the risk that the jury would believe that because Petitioner did it
before, he likely did it again. Thus, Petitioner must show a reasonable probability that the
jury convicted him of the lewd conduct charges not because the prosecution proved
Petitioner’s guilt on those charges beyond a reasonable doubt, but because the evidence
proving the registration/notification charges showed a propensity to commit lewd
conduct. Stated another way, Petitioner must show a reasonable probability that—without
any of the failure-to-register or failure-to-notify evidence—the jury would have found
Petitioner not guilty of the lewd conduct charges.
But Petitioner has not pointed to anything in the trial record supporting a
conclusion that the jury convicted based on propensity evidence, rather than because the
prosecution proved beyond a reasonable doubt that Petitioner committed two counts of
lewd conduct. Instead, Petitioner simply states, in a conclusory fashion, that the jury
treated “proof of one offense as corroborative of the other.” Dkt. 13 at 4. Such a
statement is insufficient to meet Petitioner’s burden of showing a reasonable probability
of a different result, much less the even heavier burden of showing that the state court’s

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decision was unreasonable under § 2254(d). See Richter, 562 U.S. at 101.
For the above reasons, the Court will deny Claim 1 of the Petition.
3.

Petitioner Is Not Entitled to Relief on Claim 2
In Claim 2, Petitioner asserts that trial counsel should have called four witnesses—

all members of Petitioner’s family—to testify on Petitioner’s behalf. Claim 2 also asserts
that, with respect to the charge of lewd conduct committed in Petitioner’s vehicle, trial
counsel should have presented evidence that Petitioner had an ankle injury and did not
have a valid driver’s license during the relevant time frame.
A.

Relevant Facts

According to the evidence submitted with Petitioner’s post-conviction petition,
Petitioner’s father would have testified that (1) somebody else was “usually” with
Petitioner and the victim during the drive between Twin Falls and Emmett because
Petitioner’s driver’s license had been suspended and because Petitioner had a leg injury,
(2) the victim initially denied the sexual misconduct allegations, (3) Petitioner’s father
never witnessed any inappropriate behavior, and (4) the victim had been sexually abused
by her brother and stepfather. State’s Lodging C-1 at 55-57. Petitioner’s mother would
have offered similar testimony; she also would have stated that Petitioner had leased his
home to his sister and was not living there during the relevant time period. Id. at 58-60.
Petitioner’s brother would have testified that the victim often talked about how much she
loved Petitioner, that the victim would have told Petitioner’s brother if Petitioner had
abused her, and that the victim’s brother molested her. Id. at 61-62. Finally, Petitioner’s
daughter would have testified that she never witnessed any inappropriate behavior

MEMORANDUM DECISION AND ORDER - 20

between Petitioner and the victim and that the victim had told her Petitioner had not
molested her. Id. at 63.
Also included with the post-conviction petition was evidence that Petitioner’s
driver’s license had been suspended during part of 2006 and 2007 and that Petitioner had
an ankle injury during the relevant time period. Id. at 65-71. According to Petitioner, this
evidence would have established that he could not have driven a car during the time when
he was accused of molesting the victim while traveling between Twin Falls and Emmett.
B.

The State Court’s Rejection of Claim 2 Was Reasonable under AEDPA

The Idaho Court of Appeals determined that trial counsel’s decision not to present
the above evidence was reasonable and that, even if the evidence had been presented, it
would not have altered the jury’s verdicts:
In this case, the State was required to show that Wilson
sexually abused the victim at least once for each count, during
the times and at the locations alleged. The victim offered
testimony that Wilson sexually abused her in the car and the
house, but only when they were alone. The witness affidavits
cover only a portion of the alleged timeframe of the sexual
abuse and only the times when the witness was present with
Wilson. Even if Wilson was usually accompanied by another
adult who never observed any abuse, it does not follow that
such evidence would show that Wilson did not commit the
alleged sexual abuse at a time when Wilson and the victim
were alone. Therefore, even if the purported testimony had
been presented, it would not have proved that no crime was
committed.
Furthermore, we note that there is a tactical basis for
not calling these witnesses and presenting the testimony
proposed by the Wilson. Trial counsel’s strategic decision
regarding whether to call witnesses will not be secondguessed on appeal unless the decision was the product of
inadequate preparation, ignorance of relevant law, or some
other shortcoming capable of objective evaluation. Caldwell
MEMORANDUM DECISION AND ORDER - 21

v. State, 159 Idaho 233, 240, 358 P.3d 794, 801 (Ct. App.
2015). As discussed, the proposed testimony only accounts
for a portion of the alleged timeframe. Presentation of this
evidence would be subject to cross-examination by the State,
who could then elicit testimony for the jury’s consideration
indicating how much opportunity Wilson had to commit the
crimes during the alleged timeframe. Moreover, as Wilson
notes, the record shows that trial counsel, during crossexamination of State witnesses, inquired into the same topics
that Wilson alleges the witnesses were to have offered
testimony.
As for the medical records, these documents indicate that
Wilson had instances of injury to his leg in both 2006 and
2007. Such evidence does not provide proof that Wilson was
either physically prohibited from driving or that he followed
the medical advice for the entire time alleged in the two
counts of lewd conduct with a minor. Similarly, Wilson's
driving records only indicate that he was legally prohibited
from driving for a portion of the alleged time period.
Evidence of Wilson’s driving privileges suspension and
reinstatement does not show that he did not drive a car at any
time during the alleged timeframe.
The affidavit and records evidence provided by Wilson fail to
show a complete alibi, impossibility, or actual innocence.
See, e.g., Roman, 125 Idaho at 650, 873 P.2d at 904 (holding
that the petitioner had failed to show that the testimony of
these witnesses would have raised a viable alibi defense to
present to the jury). It is not enough to show that such
evidence was relevant or that some other attorney would have
presented the evidence at trial. Rather, Wilson was required to
show that trial counsel’s decision—not to present the
purported testimony and records evidence—was based on
inadequate preparation, ignorance of relevant law, or other
shortcomings capable of objective evaluation. Wilson has not
done so and, consequently, failed to rebut the presumption
that trial counsel's performance fell within the wide range of
constitutionally effective assistance. Moreover, Wilson has
failed to show that the purported testimony and evidence
would have changed the outcome of his trial.
State’s Lodging D-6 at 8-9 (emphasis added).

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This decision was eminently reasonable. The evidence that Petitioner claims
counsel should have presented was of marginal relevance. The potential witnesses’
testimony—which would have been viewed with a healthy dose of skepticism by the jury,
given that all four witnesses are close relatives of Petitioner—would not have shown that
Petitioner did not sexually abuse the victim and would have allowed the state to explore
all of the times that Petitioner could, indeed, have committed the crimes. The evidence of
Petitioner’s license suspension and ankle injury is even less relevant, as none of it would
have shown that Petitioner did not, or could not, drive a vehicle during the time period
alleged in the information.
The double deference that applies when reviewing ineffective assistance claims in
habeas proceedings leaves no room for this Court to second-guess, with the benefit of
hindsight, the tactical decisions of Petitioner’s counsel regarding the presentation of these
witnesses and the other evidence. Pinholster, 131 S. Ct. at 1403; Strickland, 466 U.S. at
689. Moreover, even if counsel had performed deficiently by failing to present the
evidence, Petitioner has not shown prejudice from that performance. Thus, the Court will
deny Claim 2.
CONCLUSION
For the foregoing reasons, the Court concludes that the Idaho Court of Appeals’
rejection of Petitioner’s claims 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. Therefore, Petitioner has not established that he is entitled to
habeas relief under 28 U.S.C. § 2254(d).

MEMORANDUM DECISION AND ORDER - 23

ORDER
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED, 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 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: February 13, 2019
_________________________
David C. Nye
Chief U.S. District Court Judge

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