Vanzant v. Yordy

Filing 19

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Respondent's Motion for Extension of Time 11 is GRANTED. Respondent's Motion for Summary Dismissal 13 is GRANTED, and the Petition is DISMISSED with prejudice. 3. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BRADLEY JOSEPH VANZANT,
Case No. 1:17-cv-00109-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
KEITH YORDY,
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Bradley Joseph Vanzant (“Petitioner”), challenging Petitioner’s Ada
County conviction for possession of a controlled substance. (Dkt. 3.) Respondent has
filed a Motion for Summary Dismissal, arguing that Claim 1 is noncognizable and that
Petitioner’s remaining claims are procedurally defaulted. (Dkt. 13.) The Motion is now
ripe for adjudication.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 12.) See Fed. R. Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
The 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). (Dkt. 10.)
Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
MEMORANDUM DECISION AND ORDER - 1

record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting Respondent’s Motion and
dismissing this case with prejudice.
BACKGROUND
In the Fourth Judicial District Court in Ada County, Idaho, Petitioner pleaded
guilty to possession of methamphetamine, in violation of Idaho Code § 37-2732(c).
(State’s Lodging B-4 at 1.) He received a unified sentence of six years in prison with
three and one-half years fixed. Petitioner filed an Idaho Criminal Rule 35 motion for
reduction of sentence, which was denied. (State’s Lodging A-4, A-7.)
Petitioner filed a direct appeal, arguing that his sentence was excessive under
Idaho law and that the trial court abused its discretion in denying his Rule 35 motion.
(State’s Lodging B-1.) The Idaho Court of Appeals affirmed, and the Idaho Supreme
Court denied review. (State’s Lodging B-4, B-6.)
Petitioner next filed a petition for state post-conviction relief, arguing that his
guilty plea was involuntary and that Petitioner’s trial counsel and direct appeal counsel
rendered ineffective assistance. (State’s Lodging C-1 at 4-6.) The Ada County Public
Defender’s Office was appointed to represent Petitioner in the post-conviction
proceedings. (Id. at 39.) The public defender’s office later withdrew, and new counsel
appeared on behalf of Petitioner. (Id. at 44.)
The trial court held a hearing on the state’s motion to dismiss, concluding that the
claims identified in the state’s motion were conclusory and not supported by admissible

MEMORANDUM DECISION AND ORDER - 2

evidence. (State’s Lodging C-2 at 13.) However, because two of Petitioner’s claims had
not been cited by the state in its motion to dismiss, the court gave Petitioner twenty days
to “file additional affidavits and/or briefs laying out specifics as to these two issues and
these two issues only.” (Id. at 14.)
Petitioner’s post-conviction counsel did not submit additional evidence or briefing.
As a result, Petitioner filed a “Motion for Conflict Free Counsel,” asserting that his postconviction attorney would not adequately assist him. (Id. at 84.) Petitioner sought new
counsel, stating “there is absolutely no type of attorney [c]lient relationship between the
Petitioner” and his attorney. (Id.) The trial court denied Petitioner’s motion and dismissed
the post-conviction petition. (Id. at 88-104 and 89 at n.2.)
Petitioner, through new counsel, appealed the dismissal of the petition, arguing
only that the post-conviction court erred by denying Petitioner’s motion for conflict-free
counsel. (State’s Lodging D-1, D-3.) Petitioner did not appeal any of the substantive
claims raised in his post-conviction conviction. The Idaho Court of Appeals affirmed the
dismissal of the petition, and the Idaho Supreme Court denied review. (State’s Lodging
D-4, D-7.)
Petitioner’s instant federal habeas petition asserts the following claims: (1) the
state district court violated Petitioner’s right to due process by denying his motion for
conflict-free counsel, during post-conviction proceedings, without holding a hearing; (2)
Petitioner’s guilty plea was involuntary and resulted from ineffective assistance of trial
counsel; and (3) Petitioner’s trial counsel rendered ineffective assistance by failing (a) to

MEMORANDUM DECISION AND ORDER - 3

call witnesses, (b) to challenge the drug amount discrepancies, (c) to review audio and
video recordings of the arrest, and (d) to file a motion to suppress. (Dkt. 3; see also Dkt. 7
at 2.)
The Court previously reviewed the Petition and allowed Petitioner to proceed on
his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action,
(2) were timely filed in this Court, and (3) were either properly exhausted in state court or
subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 2-3.)
DISCUSSION
Federal habeas corpus relief may be granted only when the 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).
The Rules Governing Section 2254 Cases (“Habeas Rules”) authorize the Court to
summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the
face of the petition and any attached exhibits,” as well as those records subject to judicial
notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. Where appropriate, a respondent may
file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599,
602 (9th Cir. 1989).
Respondent argues that Claim 1 is noncognizable, that Claims 2 and 3 are
procedurally defaulted, and that no legal excuse for the default exists. For the reasons that
follow, the Court agrees.

MEMORANDUM DECISION AND ORDER - 4

1.

Claim 1 Is Subject to Dismissal as Noncognizable
Claim 1 asserts that the post-conviction court improperly deprived Petitioner of

due process by denying his motion for “conflict free” counsel without holding a hearing
or otherwise inquiring into the situation. However, claims of error during state
postconviction proceedings are not cognizable on federal habeas review. Franzen v.
Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam).
Further, there is no federal constitutional right to counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“Our cases
establish that the right to appointed counsel extends to the first appeal of right, and no
further.”); Murray v. Giarratano, 492 U.S. 1, 7, (1989) (“[N]either the Due Process
Clause of the Fourteenth Amendment nor the equal protection guarantee of ‘meaningful
access’ require[s] [a] State to appoint counsel for indigent prisoners seeking state
postconviction relief.”); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993) (“[T]he
protections of the Sixth Amendment right to counsel do not extend to either state
collateral proceedings or federal habeas corpus proceedings.”). Though ineffective
assistance of initial post-conviction counsel can constitute cause to excuse the default of
an ineffective-assistance-of-trial-counsel claim, it is not itself an independent
constitutional claim. See Martinez v. Ryan, 566 U.S. 1 (2012).1
For these reasons, Claim 1 is noncognizable and must be dismissed.

1

This cause-and-prejudice issue will be discussed in more detail in Section 2.C., below.

MEMORANDUM DECISION AND ORDER - 5

2.

Claims 2 and 3 Are Subject to Dismissal as Procedurally Defaulted
A.

Standards of Law

A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, for proper exhaustion, a petitioner must bring his federal claim before the state court
by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).

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When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
If a claim is procedurally defaulted, a federal court can hear the merits of the claim
only if the petitioner meets one of two exceptions: (1) a showing of adequate legal cause
for the default and prejudice arising from the default, or (2) a showing of actual
innocence, which means that a miscarriage of justice will occur if the claim is not heard
in federal court. See Coleman, 501 U.S. at 731; Schlup v. Delo, 513 U.S. 298, 329 (1995);
Murray v. Carrier, 477 U.S. 478, 488 (1986). Neither an assertion of cause and prejudice
nor an assertion of actual innocence under Schlup is an independent constitutional claim.
Rather, these are federal procedural arguments that, if sufficiently established by the
petitioner, allow a federal court to consider the merits of an otherwise procedurallydefaulted constitutional claim.

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B.

Claims 2 and 3 Are Procedurally Defaulted

The most straightforward manner in which to resolve the exhaustion and
procedural default status of Petitioner’s federal claims is to review which claims were
raised and addressed on the merits in the state court appellate proceedings.
The only claim Petitioner raised on direct appeal was that his sentence was
excessive under Idaho law. No such claim is included in the Petition.2
On appeal from the dismissal of his post-conviction petition, Petitioner raised only
Claim 1, which—as the Court has already explained—is not cognizable. Thus, Petitioner
did not fairly present Claim 2 or 3 to the Idaho appellate courts. Because it is now too late
to do so, these claims are procedurally defaulted. See Gray, 518 U.S. at 161-62.
C.

Petitioner Has Not Shown Cause and Prejudice, or Actual Innocence, to
Excuse the Procedural Default of His Claims

Petitioner does not dispute that Claims 2 and 3 are procedurally defaulted.
However, Petitioner asserts that cause and prejudice exist to excuse the default pursuant
to Martinez v. Ryan, 566 U.S. 1 (2012).
Because there is no federal constitutional right to post-conviction review counsel,
the general rule is that any errors of counsel during a post-conviction action cannot serve
as a basis for cause to excuse a procedural default. Coleman, 501 U.S. at 752. However,
the United States Supreme Court established a limited exception to that general rule in
Martinez, which held that, in limited circumstances, “[i]nadequate assistance of counsel

2

Even if Petitioner had asserted such a claim, it would not be cognizable because it is based on
state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for
errors of state law.”).

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at initial-review collateral proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial.” 566 U.S. at 9. Martinez does not
apply to any claims other than claims of ineffective assistance of trial counsel (“IATC”).
Davila v. Davis, 137 S. Ct. 2058, 2063 (2017) (holding that Martinez does not apply to
underlying claims of ineffective assistance of direct appeal counsel); Hunton v. Sinclair,
732 F.3d 1124, 1126-27 (9th Cir. 2013) (holding that Martinez does not apply to claims
under Brady v. Maryland).
The Supreme Court has described and clarified the Martinez cause and prejudice
test as consisting of four necessary prongs: (1) the underlying claim of ineffective
assistance of trial counsel must be a “substantial” claim; (2) the “cause” for the
procedural default consists of there being “no counsel” or only “ineffective” counsel
during the state collateral review proceeding; (3) the state collateral review proceeding
was the “initial” collateral review proceeding where the IATC claim could have been
brought; and (4) state law requires that an IATC claim be raised in an initial-review
collateral proceeding, or by “design and operation” such claims must be raised that way,
rather than on direct appeal. Trevino v. Thaler, 569 U.S. 416, 423, 429 (2013).
In this case, Claims 2 and 3 fail the third prong of the Martinez exception.
Contrary to Petitioner’s contention (see Dkt. 16 at 4-6), the default of these claims did not
occur in the initial collateral review proceeding in the state district court. That petition
asserted, and the initial post-conviction court squarely addressed, Claim 2 and all
subparts of Claim 3. (See State’s Lodging C-1 at 94-102.)

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Rather, the default of Claims 2 and 3 occurred on appeal from the dismissal of the
post-conviction petition, when Petitioner failed to present those claims in his appellate
briefing. Because a petitioner may not use, as cause to excuse a default, any attorney
error that occurred in “appeals from initial-review collateral proceedings,” Martinez, 566
U.S. at 16, the Martinez cause-and-prejudice exception does not apply to excuse the
procedural default of Claims 2 and 3.
As for the actual innocence exception, Petitioner has not presented any new,
reliable evidence of factual innocence, nor does the record reflect any basis for the Court
to apply that exception. Thus, Claims 2 and 3 are subject to dismissal.
CONCLUSION
For the foregoing reasons, Claim 1 is not cognizable in this federal habeas
proceeding, and Petitioner’s remaining claims are procedurally defaulted. Therefore, the
Court must dismiss the Petition.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Extension of Time (Dkt. 11) is GRANTED.

2.

Respondent’s Motion for Summary Dismissal (Dkt. 13) is GRANTED, and
the Petition is DISMISSED with prejudice.

3.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a

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timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: January 10, 2018

Honorable Candy W. Dale
United States Magistrate Judge

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