Crow et al

Filing 24

MEMORANDUM DECISION AND ORDER. Claims 4(a), 4(b), and 4(d) of the Petition are DENIED. Because all other claims have already been dismissed, this entire action is DISMISSED with prejudice. 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 (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LAWRENCE JAMES CROW,
Case No. 1:17-cv-00125-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
KEITH HOWARD YORDY,
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Lawrence James Crow (“Petitioner” or “Crow”), challenging Petitioner’s
Bingham County conviction of attempted first-degree murder. (Dkt. 1.) On June 22,
2018, the Court dismissed Claims 1, 2, 3, 4(c), and 4(e) as procedurally defaulted or
noncognizable. (Dkt. 19.) The remaining claims in the Petition—Claims 4(a), 4(b), and
4(d)—are now fully briefed and ripe for adjudication on the merits. (Dkt. 20, 21, 22.)
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 10.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
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. 8.) Having carefully reviewed the record in this matter,

MEMORANDUM DECISION AND ORDER - 1

including the state court record, the Court concludes that oral argument is unnecessary.1
See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order
denying habeas corpus relief.
BACKGROUND
The following facts of Petitioner’s case, as described by the Idaho Court of
Appeals, are presumed correct absent clear and convincing evidence to the contrary:
In July 2010, officers responded to a shooting
involving Crow and his ex-girlfriend (victim). Crow and the
victim dated for approximately six years and separated
around one month prior to the shooting. Crow and the victim
had a child together and, at the time, were sharing custody.
On the day of the shooting, Crow had custody of the child (at
Crow’s mother’s residence) and was to return the child to the
victim around noon. The victim observed Crow pull into her
driveway that day. However, instead of dropping off the
child, Crow backed up and left. The victim indicated that
normally she would have been alone, but that day her mother
was at her residence. The victim later surmised Crow had
seen her mother’s car in the driveway and left.
A short time thereafter, the victim drove to Crow’s
mother’s residence to pick up the child. When the victim
arrived, Crow desired to talk about their relationship and the
victim agreed. While talking on the front porch, the victim
realized Crow had been drinking and decided to leave. The
victim attempted to open the front door to retrieve her child,
but found the door was locked and so she knocked. Because
Crow was acting aggressively, the victim dialed 911 on her
cell phone but did not send the call initially. Crow then drew
a handgun from his pants and stated to the victim, “If I can't
have you, no one can.” Crow also stated “I got this for you”
in a threating manner while pointing the gun at the victim. By
this time, the front door had been unlocked by someone
1

The Court also denies Petitioner’s request for an evidentiary hearing. (See Dkt. 21 at 2.) Because
Petitioner’s only remaining claims were adjudicated on the merits in state court, this Court is prohibited
from holding such a hearing. See Cullen v. Pinholster, 563 U.S. 170, 180 (2011).

MEMORANDUM DECISION AND ORDER - 2

within the house. The victim fled into the house and dialed
911. Crow pursued her. Crow again pointed the gun into the
victim’s face and chest, and the victim pushed the gun away.
Crow fired the gun, wounding the victim in the arm.
The victim retreated into a bathroom and locked the
door. The victim heard one or two additional shots. One of
these shots went through the bathroom door, although missing
the victim. Crow subsequently gained entry into the
bathroom. In desperation, the victim began hugging Crow,
telling him that she would come back to him. Crow loosened
his grip on the gun and the victim seized it and turned it over
to Crow’s sister. Police arrived shortly thereafter.
(State’s Lodging B-4 at 1-2.) See 28 U.S.C. § 2254(e)(1).
In the Seventh Judicial District Court in Bingham County, Idaho, Petitioner was
charged with attempted first-degree murder and domestic battery involving traumatic
injury in the presence of a child, along with two sentencing enhancements for use of a
firearm and for infliction of great bodily injury. (Id. at 2.) Petitioner eventually pleaded
guilty to attempted first-degree murder. In exchange, the state dismissed the sentencing
enhancements, which, by that time, were the only remaining charges.2 Petitioner was
sentenced to a unified term of 15 years in prison, with 9 years fixed, and was ordered to
pay a civil fine. (Id.)
Petitioner appealed his sentence, the civil fine, and the trial court’s denial of his
motion for reduction of sentence under Idaho Criminal Rule 35. The Idaho Court of
Appeals reduced the amount of the fine, but otherwise affirmed the judgment of
conviction. (Id. at 2-6.)

2

The state had previously amended the information to dismiss the domestic battery count. (State’s
Lodging A-1 at 132-33, 156-60.)

MEMORANDUM DECISION AND ORDER - 3

Petitioner filed a state post-conviction petition asserting numerous claims,
including claims of ineffective assistance of trial counsel. (State’s Lodging C-1 at 4-10.)
After holding an evidentiary hearing, the state district court dismissed the petition.
(State’s Lodging C-4; C-1 at 38-39.) The Idaho Court of Appeals affirmed, denying
Petitioner’s ineffective assistance claims on the merits,3 and the Idaho Supreme Court
denied review. (State’s Lodging D-4; D-6.)
Petitioner filed the instant habeas corpus petition in March 2017. (Dkt. 1.) Claims
4(a), 4(b), and 4(d)—all of which allege ineffective assistance of counsel—remain for
adjudication on the merits. In Claim 4(a), Petitioner argues that his initial trial counsel
rendered ineffective assistance when—based on counsel’s erroneous belief that Petitioner
was facing the death penalty—counsel waived Petitioner’s preliminary hearing and told
Petitioner he had to plead guilty, presumably to avoid that penalty. (Dkt. 1 at 7.) Claim
4(b) asserts that Petitioner’s later trial counsel never spoke to Petitioner about filing an
appeal. (Id.) And Claim 4(d) alleges that trial counsel refused to challenge the charging
document as duplicative. (Id.) Respondent contends that Petitioner is not entitled to
habeas relief on any of these claims.
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

3

As the Court explained in its decision granting Respondent’s motion for partial summary dismissal, the
court of appeals declined to consider Petitioner’s claims of trial error because they could have been raised
on direct appeal. (See Dkt. 19.)

MEMORANDUM DECISION AND ORDER - 4

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
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]

MEMORANDUM DECISION AND ORDER - 5

[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
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.

MEMORANDUM DECISION AND ORDER - 6

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
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

MEMORANDUM DECISION AND ORDER - 7

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 a
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 preAEDPA era, draw from both United States Supreme Court as 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

MEMORANDUM DECISION AND ORDER - 8

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
Respondent asserts that the Idaho Court of Appeals’ rejection of Claims 4(a), 4(b),
and 4(d) was reasonable under AEDPA. For the following reasons, the Court agrees.
1.

Clearly-Established Federal Law: 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
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:

MEMORANDUM DECISION AND ORDER - 9

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 of counsel “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.
MEMORANDUM DECISION AND ORDER - 10

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).
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
examination would conflict with his trial strategy without first knowing what such an
examination would reveal.”).
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
MEMORANDUM DECISION AND ORDER - 11

art of negotiation is at least as nuanced as the art of trial
advocacy, and it presents questions further removed from
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 quotation marks and 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 Strickland
instructs:
MEMORANDUM DECISION AND ORDER - 12

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. To show prejudice based
on deficient performance of counsel in a case where, as here, the petitioner pleaded
guilty, the petitioner must show “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’s 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
MEMORANDUM DECISION AND ORDER - 13

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. 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 (internal quotation marks and citations omitted). 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 4(a)
Petitioner alleges that his initial trial counsel—who did not testify at the

evidentiary hearing in state court—rendered ineffective assistance when, based on the
mistaken belief that the maximum penalty for the attempted first-degree murder charge
was death, counsel (1) waived Petitioner’s preliminary hearing and (2) advised Petitioner
that he should plead guilty.
As the Idaho Court of Appeals noted, there is no evidence contradicting
Petitioner’s claim that his previous trial attorney incorrectly advised Petitioner that he
could be sentenced to death for attempted first-degree murder. (State’s Lodging D-4 at 6.)
However, the state court rejected Claim 4(a) because Petitioner had not shown
prejudice—he had not “present[ed] any argument or evidence to show that, absent
counsel’s (presumed) error, he would not have pled guilty and would have insisted on
going to trial.” (Id. at 7.)

MEMORANDUM DECISION AND ORDER - 14

The Idaho Court of Appeals did not unreasonably apply federal law or base its
decision on an unreasonable factual finding when it concluded that Petitioner did not
suffer prejudice from initial counsel’s alleged advice regarding the maximum sentence.
As the state court noted, “many months passed” between the erroneous advice and
Petitioner’s guilty plea.4 (Id. at 7. n.4) And as the plea colloquy reveals, Petitioner
pleaded guilty—with the advice of new counsel and without any coercion—after he was
correctly advised of the maximum possible penalty:
THE COURT:

Do you understand what you’re charged
with in this case?

THE DEFENDANT:

Yes.

THE COURT:

What are you charged with?

THE DEFENDANT:

Attempted homicide.

THE COURT:

Okay. And do you understand what the
max—take away the enhancements. Without
the enhancements, do you understand what
the maximum possible penalty is?

THE DEFENDANT:

Yes.

THE COURT:

And what is that?

THE DEFENDANT:

15 years.

THE COURT:

And what about a fine?

THE DEFENDANT:

I don’t know.

THE COURT:

Okay. It’s up to $25,000. Do you understand
that?

4

Petitioner waived the preliminary hearing on August 4, 2010, and he pleaded guilty on March 14, 2012.
(State’s Lodging A-1 at 66-67, 282-84; State’s Lodging A-4.)

MEMORANDUM DECISION AND ORDER - 15

THE DEFENDANT:

Yeah.

THE COURT:

Do you understand I can impose both the
incarceration and the fine?

THE DEFENDANT:

Yes.

THE COURT:

Do you also understand that I could order
that you pay restitution, if any is owed, to
the victim in this matter?

THE DEFENDANT:

Yeah.

THE COURT:

All right. Now, the Plea Agreement provides
that you’re going to plead guilty. The State
will dismiss the enhancements, Part 2 and
Part 3. And there’s no agreement as to what
the underlying sentence would be from the
State or from this court; is that correct?

THE DEFENDANT:

Yeah.

THE COURT:

Has anyone coerced or pressured you into
entering into the Plea Agreement itself?

THE DEFENDANT:

No.

…
THE COURT:

Okay. Are you pleading guilty freely and
voluntarily?

THE DEFENDANT:

Yes, I am.

THE COURT:

Is anyone forcing or pressuring you to plead
guilty?

THE DEFENDANT:

No, they—no.

…
THE COURT:

Is it fair to say that you’re pleading guilty to
this crime of your own free will and without
any pressure or influence from anyone else?

MEMORANDUM DECISION AND ORDER - 16

THE DEFENDANT:

Yeah.

(State’s Lodging A-4 at 11-13 (emphasis added).)
Petitioner knew of the maximum possible sentence before he entered his guilty
plea. Therefore, he cannot show prejudice based on his previous counsel’s advice on that
issue. Petitioner simply has not established that, if his initial counsel had properly advised
him as to the maximum potential sentence, he would have insisted on going to trial
instead of pleading guilty. See Hill, 474 U.S. at 59. Therefore, the Idaho Court of
Appeals’ rejection of Claim 4(a) was not unreasonable under § 2254(d).
3.

Petitioner Is Not Entitled to Relief on Claim 4(b)
In Claim 4(b), Petitioner claims that his trial counsel did not speak to him about

filing a direct appeal. (Dkt. 1 at 7.) Specifically, Petitioner asserts that his attorney “did
not file an appeal from the Civil Judgment entered against the Petitioner.” (Dkt 1-1 at
10.)
The Idaho Court of Appeals rejected this claim, because Petitioner’s attorney
did—in fact—file an appeal challenging the civil fine. (State’s Lodging D-4 at 10.) Not
only was this a reasonable factual finding, it was an indisputably correct factual finding.
Because counsel appealed the civil judgment—and obtained some relief from that
judgment when the appellate court reduced the amount of the fine—Petitioner cannot
show either deficient performance or prejudice. Thus, the state court’s decision was
reasonable under AEDPA.

MEMORANDUM DECISION AND ORDER - 17

4.

Petitioner Is Not Entitled to Relief on Claim 4(d)
Claim 4(d) alleges that Petitioner’s trial counsel was ineffective for failing “to

challenge the charging document as duplicative.” (Dkt. 1 at 7.) Petitioner’s argument in
support of this claim is presumably the same one he asserted in state court: that the two
substantive criminal charges against him—attempted first-degree murder and domestic
battery—“both arose from the same conduct and ‘would have been a lesser included
offense of each other.’” (State’s Lodging D-4 at 10 (quoting State’s Lodging D-1 at 6).)
The state appellate court rejected Claim 4(d), because Petitioner “presented no
evidence or testimony that the two substantive charges … resulted in a coerced plea.”
(Id.) Having reviewed the state court record, this Court agrees. Indeed, the prosecution
amended the information to eliminate the domestic battery charge nearly one year prior to
Petitioner’s guilty plea. (State’s Lodging A-1 at 132-33, 156-60.) Therefore, Petitioner
cannot show prejudice from counsel’s failure to challenge the initial charging document
as duplicative. The state court’s factual finding that Petitioner did not present evidence
supporting Claim 4(d) was reasonable, and its holding that Petitioner did not establish
ineffective assistance was a reasonable application of Strickland.
CONCLUSION
The Idaho Court of Appeals’ decision rejecting Claims 4(a), 4(b), and 4(d) 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. See 28 U.S.C.
§ 2254(d). Therefore, the Court will deny habeas relief.

MEMORANDUM DECISION AND ORDER - 18

ORDER
IT IS ORDERED:
1.

Claims 4(a), 4(b), and 4(d) of the Petition are DENIED. Because all other
claims have already been dismissed, this entire action is DISMISSED with
prejudice.

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: May 13, 2019
_________________________
Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 19