Walck v. Blades

Filing 75

MEMORANDUM DECISION AND ORDER - The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issu e. See 28 U.S.C. § 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a timely notice of appeal, the Clerk of Court shall forward a copy of the notice of appeal, together with this Order, to the United States Court of Appeals for the Ninth Circuit. Petitioner may seek acertificate of appealability from the Ninth Circuit by filing a request in that court. Signed by Judge Candy W. Dale. (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MITCHELL LEE WALCK,
Case No. 1:17-cv-00194-CWD
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
JOSH TEWALT, Director, Idaho
Department of Correction,1
Respondent.

Earlier in Petitioner Mitchell Lee Walck’s habeas corpus matter, the Court granted
Respondent Josh Tewalt’s Motion for Partial Summary Dismissal, resulting in dismissal
of Claims 1(e), 1(f), 1(g), and 3. (Dkts. 23, 49.) The remaining claims are ready for
adjudication on the merits. Both named 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. 14.)
The Court takes judicial notice of the record from Petitioner’s state court
proceedings, lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451
F.3d 550, 551 (9th Cir. 2006).

1

The current IDOC director has been substituted for the former director, and the warden has been deleted
as a result of Petitioner’s transfer to a Texas facility.

MEMORANDUM DECISION AND ORDER - 1

Having carefully reviewed the record and considered the arguments of the parties,
the Court finds that the parties have adequately presented the facts and legal arguments in
the briefs and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order.
BACKGROUND
Just after midnight on December 1, 2012, law enforcement officers in Athol,
Idaho, tried to pull over Petitioner’s vehicle. Petitioner failed to stop his truck for the
officers, instead leading them on a chase from Athol to Rathdrum, Idaho. Police officers
set up a spike system in Rathdrum, causing Petitioner’s driver’s front tire to go flat, and
yet he kept going.
When Petitioner’s truck finally came to a stop, he fled on foot. Officer Kevin
White pursued Petitioner. Seconds later, Petitioner turned and fired a single shot from his
pistol at White, missing him. Officers immediately stopped their pursuit, and Petitioner
got away. However, officers discovered Petitioner’s identity and name from the vehicle
registration left behind in the abandoned truck. (See State’s Lodging A-1 to A-2.)
Later that same day, Susan Smith went outside her home to let her cat out.
Petitioner was hiding behind a woodpile in her yard. He revealed himself, pushed his gun
into her back, and led her inside the house. There, he took a bath, trimmed his beard, and
prepared food. Petitioner then directed Smith to get into her 2005 Subaru Forrester at
gunpoint and drove away with her. (See id.)

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The next day, Petitioner let Smith go in an Albertson’s parking lot in Glendive,
Montana, making arrangements for her to stay with a church group when he dropped her
off. Petitioner then traveled to North Dakota in Smith’s Subaru. Smith immediately called
her sister and Idaho law enforcement when she was released by Petitioner. (See id.)
In North Dakota, officers received a notification to keep a watch for Petitioner,
who might be traveling through the state in the kidnaping victim’s Subaru. Petitioner was
arrested in North Dakota and charged with Terrorizing, Unlawful Entry into a Motor
Vehicle, Possession of Stolen Property (the Subaru stolen from Idaho), and Felon in
Possession of a Firearm. (State’s Lodging D-8.) Petitioner had served one year on the tenyear Possession of Stolen Property sentence when he was sentenced to prison in Idaho for
robbery—with both crimes centering on the Subaru stolen from the kidnaping victim.
The Subaru was eventually returned to the victim, with 1500 additional miles on the
odometer and various types of damage, and without the key, electronic key fob, and floor
mat. (See id.)
On advice from public defender Christopher Schwartz, Petitioner entered into a
plea agreement with the State of Idaho and pleaded guilty to and was convicted of
robbery, second degree kidnaping, and aggravated assault on a law enforcement officer in
a criminal action in the First Judicial District Court in Kootenai County, Idaho. A
judgment of conviction was entered on April 23, 2014. Petitioner’s Idaho sentences were
ordered to run concurrently with the North Dakota sentences Petitioner was serving.

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STANDARD OF LAW
Federal habeas corpus petitions are governed by Title 28 U.S.C.§ 2254(d), as
amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Title 28 U.S.C.§ 2254(d) limits relief to instances 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).
To assess whether habeas corpus relief is warranted, the federal district court
reviews “the last state-court adjudication on the merits.” Greene v. Fisher, 132 S.Ct. 38,
45 (2011). The deferential standard of Section 2254(d) applies regardless of whether the
state court decision “is unaccompanied by an opinion explaining the reasons relief has
been denied.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Id. at 99. When the last adjudication on
the merits provides a reasoned opinion, federal courts evaluate the opinion as the grounds
for denial. 28 U.S.C. 2254(d).

MEMORANDUM DECISION AND ORDER - 4

However, where the state’s highest court did not issue a reasoned decision, courts
within the Ninth Circuit review the decision of the Idaho Court of Appeals using the
“look through” principle of Ylst v. Nunnemaker, 501 U.S. 797 (1991), and “presume the
higher court agreed with and adopted the reasons given by the lower court.” Curiel v.
Miller, 830 F.3d 864 (9th Cir. 2016).2
DOUBLE JEOPARDY
Following a logical rather than a sequential pattern, the Court begins with Claim 2,
Petitioner’s double jeopardy claim, because it is the foundation for one of his ineffective
assistance of counsel claims, which the Court will discuss directly after Claim 2.
1.

Claim 2
A.

Standard of Law

The Double Jeopardy Clause of the Fifth Amendment protects against “multiple
punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984). The
protection against cumulative punishments “is designed to ensure that the sentencing
discretion of courts is confined to the limits established by the legislature.” Id. at 499.
Even though application of double jeopardy principles may not make intuitive
sense to a nonlawyer, the law is clearly established that the Double Jeopardy Clause’s
protections are not invoked when a defendant is charged by two separate sovereigns. In
the context of simultaneous federal and state sovereign government charges, the Supreme
2

The United States Supreme Court recently clarified: “In Ylst, we said that where “the last
reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later
decision rejecting the claim did not silently disregard that bar and consider the merits. 501 U.S., at 803,
111 S.Ct. 2590,” but that the presumption can be refuted by “strong evidence.” Kernan v. Hinojosa, 136
S. Ct. 1603, 1605–06 (2016).

MEMORANDUM DECISION AND ORDER - 5

Court explained:
In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d
684 (1959), and Abbate v. United States, 359 U.S. 187, 79
S.Ct. 666, 3 L.Ed.2d 729 (1959), this Court reaffirmed the
well-established principle that a federal prosecution does not
bar a subsequent state prosecution of the same person for the
same acts, and a state prosecution does not bar a federal one.
The basis for this doctrine is that prosecutions under the laws
of separate sovereigns do not, in the language of the Fifth
Amendment, “subject [the defendant] for the same offence to
be twice put in jeopardy”.
United States v. Wheeler, 435 U.S. 313 (1978).
The same is true when the sovereigns are two different states. In Heath v.
Alabama, 474 U.S. 82, 88 (1985), the Supreme Court held that successive prosecutions
by two states for the same conduct are not barred by the Double Jeopardy Clause. “When
a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking
the laws of each, he has committed two distinct ‘“offences,’” the Court explained in
United States v. Lanza, 260 U.S. 377, 382 (1922).
B.

Discussion

Plaintiff asserts that his right to be free from double jeopardy was violated because
he was convicted of and sentenced for the same crime—once in North Dakota, and again
in Idaho. (Dkt. 3, p. 6.) The Idaho Court of Appeals affirmed the summary dismissal of
this claim, stating:
Walck argues he illegally served two sentences for the same
crime, claiming on appeal he served a prison sentence in
North Dakota and another prison sentence in Idaho for the
same crime, the theft of a 2005 Subaru Forester. Walck
claims that because the same stolen property resulted in two
MEMORANDUM DECISION AND ORDER - 6

different sentences, his constitutional rights have been
violated under the Double Jeopardy Clause.
Walck failed to demonstrate how the district court erred. The
district court explained in its notice of intent to dismiss:
“Petitioner claims he is ‘serving a sentence twice for the same
crime,’ but the record shows that he is serving his sentences
concurrently for distinct crimes.” On appeal, Walck argues:
“The conviction and sentencing in North Dakota-Idaho
clearly substantiate in sentencing records the validity proof
thereof to the State and Federal double jeopardy violation
constitutional infringement.” However, Walck failed to
provide sufficient evidence in support of his double jeopardy
claim. His statement regarding the clear proof of the double
jeopardy claim is conclusory and the district court was free to
disregard Walck’s legal conclusion. Walck also failed to
provide this Court with the judgment of conviction from the
North Dakota case. Because Walck did not provide an
adequate record to support his claim, we find no evidence of
error in the district court’s holding that there was not a double
jeopardy violation.
(State’s Lodging D-4, p.7.) Petitioner tried to provide his North Dakota documents to the
Idaho Supreme Court during the petition for review stage of the proceedings, but that
court refused to expand the record to include them because the order denying the petition
already had been issued. (State’s Lodgings D-8, D-9.) This Court has considered the
North Dakota documents for the sake of Petitioner’s argument.
Based on the standard of law set forth above, the Court finds that, at the time of
Petitioner’s convictions, the law was clearly established that the Double Jeopardy bar
does not apply when a person is charged with crimes by two different states, even though
the crimes arise from the same set of facts, here, the theft of a car. In this case, the crimes
are not identical, as one is for robbery and one is for possession of stolen property, even

MEMORANDUM DECISION AND ORDER - 7

though the same car is involved in each. Accordingly, Petitioner has not shown that the
decision of the Idaho Court of Appeals is contrary to, or an unreasonable application of,
federal law. This claim will be dismissed with prejudice.
INEFFECTIVE ASSISTANCE OF COUNSEL
1. Claim 1(c): Ineffective Assistance re: Double Jeopardy
A.

Standard of Law

The clearly-established law governing a claim of ineffective assistance of counsel
is found in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a
petitioner to show that (1) counsel’s performance was deficient in that it fell below an
objective standard of reasonableness, and that (2) the petitioner was prejudiced by the
deficient performance. Id. at 684.
In assessing whether trial counsel’s representation fell below an objective standard
of competence under Strickland’s first prong, a reviewing court must view counsel’s
conduct at the time that the challenged act or omission occurred, making an effort to
eliminate the distorting lens of hindsight. Id. at 689. The court must indulge in the strong
presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance. Id.
The Strickland Court outlined how to use the factors of deficient performance and
prejudice to assess an ineffective assistance claim:
These standards require no special amplification in order to
define counsel’s duty to investigate, the duty at issue in this
case. As the Court of Appeals concluded, strategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic
MEMORANDUM DECISION AND ORDER - 8

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.
466 U.S. at 690-91.
Prejudice under these circumstances means there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different. Id. at
684, 694. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id. at 694.
A petitioner must establish both incompetence and prejudice to prove an
ineffective assistance of counsel case. 466 U.S. 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 is deficient and will compel denial. Id.
B.

Discussion

Claim 1(c) is the ineffective assistance counterpart of Claim 2—that trial counsel
erred by allowing Petitioner to be sentenced “twice for the same crime in violation of
double jeopardy.” (Dkt. 3, p. 4.) Because there was no viable double jeopardy claim to
assert, trial counsel did not perform deficiently, and no prejudice could have accrued for
failing to bring a nonviable claim. This claim is subject to dismissal with prejudice under
either § 2254(d) or de novo review.

MEMORANDUM DECISION AND ORDER - 9

2.

Claim 1(a): Ineffective Assistance of Counsel for Coerced Guilty Plea
A. Standard of Law
It is well-established that “the negotiation of a plea bargain is a critical phase of

litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”
Missouri v. Frye, 566 U.S. 134 (2012) (citation omitted); see Hill v. Lockhart, 474 U.S.
52 (1985) (holding that the Strickland v. Washington test applies to guilty plea challenges
based on ineffective assistance of counsel).
The United States Supreme Court has held that the validity of a guilty plea turns
on “whether the plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31
(1970). A plea is “knowing” if a defendant understands the federal constitutional rights
he is waiving by pleading guilty; it is “voluntary” if he “possesses an understanding of
the law in relation to the facts.” Boykin v. Alabama, 395 U.S. 238, 243 n.5 (quoting
Johnson v. Zerbst, 304 U.S. 458, 466 (1938)). Another definition of “voluntary and
intelligent” is if the plea “represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” Alford, 400 U.S. at 31. In Hill, the
Court held that a plea is not knowing and voluntary if it is the result of defense counsel’s
advice amounting to ineffective assistance of counsel. 474 U.S. at 59.
B.

Discussion

Petitioner did not raise the alleged involuntariness of his guilty plea by motion
until two months after the state court had dismissed his post-conviction petition.
MEMORANDUM DECISION AND ORDER - 10

Petitioner argued in the motion that he should be permitted to withdraw his plea on the
double jeopardy grounds discussed above. (State’s Lodging C-1, p. 108-110.) His motion
was denied. (Id., pp. 111-15.)
On appeal, the Idaho Court of Appeals determined that Petitioner’s guilty plea
claim was not properly presented—“a district court does not have jurisdiction to rule on a
motion to withdraw a guilty plea after a judgment becomes final”—citing State v.
Jakoski, 79 P.3d 711, 714 (2003). Importantly, Petitioner did not raise this claim as an
ineffective assistance of counsel claim on appeal; therefore, the Idaho Court of Appeals
did not address such a claim.
This Court reviews this claim de novo. Petitioner alleges:
Public Defender Schwartz in two different meetings
insisted I take the stand in my own defense. He stated, your
case is a no win situation. I’ll be your bulldog when the
prosecution attacks you. Nothing but sarcasm and negativity.
He subjected me to a guilty plea that was not voluntary,
knowingly or intelligently entered. P.D. Schwartz failed to
even consider an adequate defense. Actually even a whole
hearted attempt to put a defense in place. The end result a
product of ineffective assistance of counsel (forcing Petitioner
to take a plea (non-negotiable one) according to P.D.
Schwartz under duress.
(Dkt. 72, p. 4.)
While Petitioner may have thought that counsel did not do enough to investigate
his case, Petitioner has not come forward with any physical evidence or witnesses that
could have supported a viable defense at trial. Petitioner has not shown that he would
have, or should have, gone to trial in the absence of the advice—albeit frank, if not harsh

MEMORANDUM DECISION AND ORDER - 11

advice—from the public defender. The foregoing statements of counsel are not coercive
and do not constitute duress.
Counsel also told Petitioner, “[Y]ou are mentally disturbed and belong
incarcerated and sedated daily.” (State’s Lodging D-4, p. 6.) Although Petitioner contests
this characterization, the Idaho Department of Health and Welfare report in his case
similarly concluded: “It is likely that the defendant may present a high risk of danger to
the public at large due to his poor coping skills, poor impulse control, and sense of
entitlement.” (State’s Lodging A-2, p. 28.) The sentencing court also concluded that
Petitioner posed “a high risk of danger to the public.” Counsel’s characterization that
Petitioner is mentally disturbed and needs incarceration and medication cannot be
classified as a threat, but as merely an observation later echoed by a mental health
professional and the presiding judge. There is no evidence in the record that counsel
threatened Petitioner with these statements or in any other way to induce him to enter into
the plea agreement.
During the plea colloquy, the state district judge specifically asked Petitioner
whether any threats or promises had caused him to plead guilty. (State’s Lodging A-2, p.
14.) Petitioner responded that there were none. The record reflects that Petitioner had
several opportunities to advise the court he felt pressured or coerced into pleading guilty.
Instead, Petitioner pleaded guilty and answered in the affirmative when the court asked,
“Do you believe your guilty plea is a free and voluntary act on your part?” Id., p. 14. The
state district court found that Petitioner “made a knowing and voluntary waiver of [his]

MEMORANDUM DECISION AND ORDER - 12

right to trial,” that he “entered the plea knowing the potential consequence,” and that “the
plea is [his] free and voluntary act.” Id., pp. 14-15.
Turning to whether counsel should have advised Petitioner to enter into a plea
agreement at all, the Court notes that Petitioner points to no evidence his counsel should
have uncovered and no witnesses he should have brought forward in support of
Petitioner’s case, had he chosen to go trial. Rather, the record is devoid of any facts
pointing to a better outcome for Petitioner had he chosen not to enter into a plea
agreement. This was not just one crime, but a series of very serious crimes. The record
does not reflect that Petitioner’s counsel performed deficiently regarding the plea
proceedings or that prejudice to the defense resulted from counsel’s performance. Rather,
the record shows that Petitioner made a rational and voluntary choice based on the facts
and the advice of counsel. Therefore, this claim is subject to dismissal with prejudice.
3.

Claim 1(b): Ineffective Assistance: Change of Venue
A. Standard of Law
Unlike the other ineffective assistance claims in the Petition, the Idaho Court of

Appeals adjudicated the merits of Claim 1(b), that counsel was ineffective for failing to
file a motion for change of venue. The Strickland standard, set forth above, requiring that
the Court give deference to counsel’s decisionmaking, is the de novo standard of review.
Another layer of deference—to the state court decision—is afforded under AEDPA. In
giving guidance to district courts reviewing Strickland claims on habeas corpus review,
the United States Supreme Court explained:

MEMORANDUM DECISION AND ORDER - 13

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.
B.

Discussion

Public Defender Schwartz did not file a motion for change of venue, even though
he himself said Petitioner’s case was “highly publicized” and the “worst of crimes
committed in the Panhandle of Idaho.” (State’s Lodging D-4, p. 6.) On appeal, Petitioner
did not lodge the state court transcripts with the Idaho Court of Appeals to enable it to
assess his claim.
The Idaho Court of Appeals observed:
Walck ... failed to meet his burden on his claim that defense
counsel was ineffective when it [sic] refused to request a
venue change or a jury trial. First, the issue is raised for the
first time on appeal. Second, the record does not establish
when Walck requested the change of venue and whether his
trial counsel refused. Even if we assume counsel refused to
file Walck’s requested motion to change the venue, Walck
failed to provide evidence of the prejudicial effect of the
failure to file the motion.
(State’s Lodging D-4, p. 6.)
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This Court agrees with the state appellate court. Petitioner has failed to present
facts showing that a change of venue would have impacted his case, because he pleaded
guilty. There are insufficient facts showing that Petitioner could have put on an adequate
defense—not because his counsel did not investigate the case, but because the evidence
supporting the crime spree clearly pointed to him as the perpetrator, and the crimes were
all linked together by the evidence.
Had a change of venue been requested, it very well may have been granted, but
there is nothing showing that a jury in a different Idaho county would have assessed the
strong evidence against him any differently. The kidnaping and aggravated assault crimes
were both serious and shocking—thus, the guilty plea route, rather than a route to trial
with a change of venue, was a logical strategic choice by counsel. Petitioner’s claim fails
on de novo review, and it also fails on deferential review. Because Petitioner has not
shown deficient performance or prejudice, the claim will be denied on the merits.
4.

Claim 1(d): Ineffective Assistance: Refusal to Request Co-Counsel
A. Standard of Law
The Strickland de novo review standard governs this claim. Petitioner must show

both deficient performance of counsel and prejudice to his defense. Both factors are
required to prevail.
B. Discussion
Petitioner asserts that trial counsel was ineffective for refusing file a motion for
appointment of co-counsel. (Dkt. 3, p. 4.) The Court agrees with Respondent that
Petitioner has not provided any factual basis to show that co-counsel was necessary or
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that such a motion would have been granted by the trial court if co-counsel had been
requested. See Hill, 474 U.S. at 59. For example, Petitioner was not charged with the
death penalty, which usually requires appointment of co-counsel. See Idaho Criminal
Rule 44.3 (two attorneys must be appointed as defense counsel in death penalty cases
unless the court specifically finds that two are not necessary). While the charges against
Petitioner were serious, they were very much straightforward in law and fact. Petitioner
has not come forward with anything showing that the issues were complex. Accordingly,
this claim fails for lack of a showing of deficient performance or prejudice to the defense.
It will be dismissed with prejudice.
CONCLUSION
Petitioner has not shown that he is entitled to relief on any of the remaining
claims. Because all of his claims now have been adjudicated, this entire case will be
dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus (Dkt. 3 ) 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 files a timely notice of
appeal, the Clerk of Court shall forward a copy of the notice of appeal, together with this

MEMORANDUM DECISION AND ORDER - 16

Order, to the United States Court of Appeals for the Ninth Circuit. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that court.

DATED: November 20, 2019
_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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