Russo v. Yordy

Filing 23

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED, and this entire action 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 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 (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL ROWE RUSSO,
Case No. 1:17-cv-00232-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
prisoner Michael Rowe Russo, challenging his state court convictions of rape,
kidnapping, and burglary. (Dkt. 3.) The Petition is now fully briefed and ripe for
adjudication.
The Court takes judicial notice of the records from Russo’s state court
proceedings, which have been lodged by Respondent. (Dkt. 14, 21.) 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. 11.) 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.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Pursuant to 28 U.S.C. § 2254(e)(1), the following facts of Russo’s case, as
described by the Idaho Supreme Court, are presumed correct absent clear and convincing
evidence to the contrary:
In the predawn hours of August 27, 2009, a woman
sleeping in the bedroom of her apartment in Nampa, Canyon
County, Idaho, awakened to see an unknown male standing
over her with a knife in his hand. He was wearing a mask that
covered his face and exposed his eyes. He put a hand over her
mouth and held a knife against her throat, and he then stated
that she was going to cooperate. He initially attempted several
sexual acts, but was unable to obtain an erection. He then had
her lie on her back at the bottom of the bed, where he raped
her. He wore a condom and used his cell phone to take photos
of her during the rape. Before leaving, he took her sheets and
a pillow case. He also had her remove the battery from her
cell phone, and he placed it under clothing in her panty
drawer. She ran to a neighbor’s house, where she called 911.
Defendant was immediately the focus of law enforcement.
The Nampa police had been investigating Michael
Russo (Defendant) for an assault and battery that had
occurred in Nampa on August 21, 2008 [which had also
involved a male intruder with a knife]….[1]
….
After the Nampa police responded to the victim’s
apartment in this case and spoke with the victim, Defendant
became the focus of their investigation. They contacted the
Meridian police, who sent an officer to Defendant’s
During the investigation of the 2008 assault and battery, police had learned that Russo “had been
convicted of rape in Washington in 1995 and was a registered sex offender.” State v. Russo, 336 P.3d 232,
235 (Idaho 2014). Police had also interviewed Russo, who was found near the scene of that crime; Russo
admitted “that he fantasized about raping a girl who would get turned on during the rape and decide she
liked it; that he fantasized about being dominant over someone; and that he still struggled with issues
involving aggression and sexual boundaries.” Id. at 236. Russo had also consented to a search of his
computer, which “contained several videos of women being violently raped, and some of the search
criteria in the computer included rape fantasies.” Id. at 235.
1

MEMORANDUM DECISION AND ORDER - 2

apartment in Meridian, Ada County, Idaho. When the officer
arrived there at 5:47 a.m., the lights were on in the apartment.
He confirmed that Defendant was inside the apartment, and
he checked Defendant’s motorcycle that was parked outside
and determined that the engine was still warm. The Meridian
officer stayed outside Defendant’s apartment for about an
hour and left when he was relieved by Detective Deborah
Cain of the Nampa Police Department. Another Nampa
officer later arrived at about 8:30 a.m., and they both kept the
apartment under surveillance.
[Nampa Police Department] Corporal Weekes[, who
had been involved in the investigation of the 2008 assault and
battery,] contacted Detective Ray Ellis of the Meridian Police
Department and asked him to obtain a search warrant from a
judge in Ada County, and he did. In his affidavit, Detective
Ellis provided the information described above; information
concerning the rape of a young woman working as a barista in
Fruitland, Idaho, on July 8, 2009, and Defendant’s conduct at
that coffee shop the day and evening before the rape; and
information concerning Defendant’s 1995 rape of a young
woman working as a barista at a coffee shop in Washington.
On August 27, 2009, at 11:10 a.m., the magistrate judge
issued a search warrant authorizing the police to search
Defendant’s residence and motorcycle and to seize, as
evidence of the crime of rape, certain described items that
may be located in those places, including a cellular phone. As
soon as Detective Ellis had obtained the search warrant, he
informed Corporal Weekes that the warrant had been issued,
and he then proceeded to Defendant’s apartment with the
warrant. Corporal Weekes and two other Nampa detectives
then headed to Defendant’s apartment.
At about 11:50 a.m., Detective Cain saw Defendant
leave his apartment and walk to his mailbox. She called
Corporal Weekes, and then she and the other Nampa officer
detained Defendant at his mailbox. Corporal Weekes
performed a patdown search of Defendant and removed his
wallet and a cell phone from his pockets. She told him that he
was not being arrested but was being detained for
investigation, and she handcuffed him and placed him in a
patrol car. About five minutes later, Detective Brice King of
the Nampa Police Department arrived, and Corporal Weekes
MEMORANDUM DECISION AND ORDER - 3

gave him the cell phone. He looked through what was stored
on the phone and saw a video of a condom-covered penis
penetrating a shaved vagina. He then turned the phone off.
The officers searched Defendant’s apartment pursuant
to the warrant, and they found, among other items of
evidence, two cell phones. Later that afternoon, Detective
Ellis went back to the magistrate court to obtain an amended
search warrant for the search of the two cell phones found in
Defendant’s apartment and the cell phone taken from his
person. He presented to the court an amended affidavit, which
included all of the information contained in the initial
affidavit and additional information, including the statement:
“Additionally, a cellular phone was recovered from Mr.
Russo’s person during a pat down search for officer safety.
This phone was opened and looked at to determine
ownership. Your affiant knows that a video was located on
that phone that appears to depict the victim from this
morning’s rape.” Based upon the amended affidavit, the
magistrate judge issued a search warrant on August 27, 2009,
at 3:15 p.m. authorizing the search of the three cell phones.
Defendant was indicted …. Prior to his trial, he moved
to suppress various items of evidence including the video
found on the cell phone that was on his person. The district
court denied his motion to suppress. [The cell phone video
was presented at trial as Exhibit 49.] During the … trial, the
victim’s gynecologist testified that the victim was the woman
in the video [introduced as Exhibit 49] based upon various
physical characteristics of [the victim’s] vaginal area.[2]
State v. Russo, 336 P.3d 232, 235–37 (Idaho 2014).

In addition to this identification by the victim’s gynecologist, the victim identified herself as the female
in a video that Detective King had shown to her; the victim testified she knew that she was the female in
the video because “I know my vagina, and I know just how I am. I just knew it was me.” (State’s Lodging
A-11 at 226.) However, because the victim testified before the video was introduced—it was introduced
later during Detective King’s testimony—the victim did not have the opportunity to identify the video she
was shown, and in which she identified herself, as the same video as the video found on Russo’s cell
phone. Respondent has not contested Russo’s argument that the victim’s testimony did not actually link
the video she saw herself in to Exhibit 49, the video found on Russo’s cell phone.
2

MEMORANDUM DECISION AND ORDER - 4

Russo testified in his own defense. He claimed that the woman in the video was
not the victim, but a woman with whom he had consensual sex that night. Russo stated he
had met the woman at a bar in Meridian called The New Frontier, that her name was
Melissa or Michelle, and that he took the video on his cell phone during their sexual
encounter because he did not think he would remember the encounter the next day.
(State’s Lodging A-12 at 114-18.)
The jury found Russo guilty of rape, first-degree kidnapping, and burglary. Russo
appealed, arguing that the trial court should have suppressed the cell phone video and
excluded certain Rule 404(b) evidence as to Russo’s deviant sexual interests. (State’s
Lodging B-2.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court
granted review. (State’s Lodging B-6, B-9.) The state supreme court also affirmed
Russo’s convictions, holding that the cell phone video was admissible under the
independent source doctrine and that the trial court did not abuse its discretion in
admitting the Rule 404(b) evidence. Russo, 336 P.3d at 235.
Russo returned to the trial court and filed a post-conviction petition asserting
numerous claims. (State’s Lodging C-1 at 4-14.) The state district court dismissed the
petition. (Id. at 139-62.) Russo appealed, asserting three claims of ineffective assistance
of counsel (“IAC”). The Idaho Court of Appeals affirmed the dismissal of the postconviction petition on the merits, and the Idaho Supreme Court denied review. (State’s
Lodging D-4; D-6.)

MEMORANDUM DECISION AND ORDER - 5

In his federal Petition, Russo asserts the following three ineffective assistance of
counsel (IAC) claims, all of which were raised on appeal from the dismissal of Russo’s
state post-conviction appeal: (1) trial counsel should have filed a pretrial motion to
exclude expert testimony of the victim’s gynecologist, Dr. Lisa Minge, in which Dr.
Minge identified the victim as the woman in the cell phone video “beyond a degree of
medical certainty” (State’s Lodging A-13 at 92, 94); (2) trial counsel should have moved
for a judgment of dismissal or acquittal based on insufficient evidence; and (3) direct
appeal counsel should have appealed the trial court’s decision to overrule trial counsel’s
mid-trial objection to the doctor’s identification of the victim as the woman in the cell
phone video. (Dkt. 3-1, Att. B.)
For the following reasons, the Court concludes that Russo is not entitled to habeas
relief.
DISCUSSION
1.

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

MEMORANDUM DECISION AND ORDER - 6

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. This 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,

MEMORANDUM DECISION AND ORDER - 7

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.
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

MEMORANDUM DECISION AND ORDER - 8

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
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

MEMORANDUM DECISION AND ORDER - 9

incorrect but whether that determination was unreasonable—a substantially higher
threshold.”). State court factual findings are presumed to be correct and are binding on
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 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
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.
2.

Clearly-Established Law Governing Ineffective Assistance Claims
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
MEMORANDUM DECISION AND ORDER - 10

for 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 (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:
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
MEMORANDUM DECISION AND ORDER - 11

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 a defense, “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.
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,
MEMORANDUM DECISION AND ORDER - 12

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).
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. Further, to

MEMORANDUM DECISION AND ORDER - 13

demonstrate prejudice when the IAC claim is based on counsel’s failure to file a motion,
the petitioner must show a reasonable probability that the motion would have been
granted. Gable v. Wengler, No. 1:10-CV-00644-REB, 2013 WL 4097711, at *18 (D.
Idaho Aug. 13, 2013) (“Even if trial counsel had made a timely motion to suppress, that
motion would not have been granted, and Petitioner has thus failed to show he was
prejudiced by trial counsel’s failure to file a timely motion to suppress.”).
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
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).

MEMORANDUM DECISION AND ORDER - 14

3.

Russo Is Not Entitled to Habeas Relief
For the following reasons, the Court concludes that Russo’s three habeas claims

must be denied.
A.

Trial Counsel Was Not Ineffective for Failing to File a Pretrial Motion to
Exclude Dr. Minge’s Identification

In Claim 1, Russo alleges that his trial counsel rendered ineffective assistance in
failing to file a pretrial motion to exclude Dr. Minge’s identification of the victim as the
woman in the cell phone video. Although most of Dr. Minge’s testimony was lay
testimony—she simply identified the victim’s external genitalia in the cell phone video
due to her knowledge of the victim’s body—the prosecution seemed to steer Dr. Minge,
at the end of her direct testimony, toward the territory of expert testimony:
Q.

So when you’re conducting this pelvic exam on [the
victim], can you describe what her female pelvic area
looks like for the jury?

A.

She has a normal female genitalia. The—notably
absent any public hair, which is consistent with
shaving or waxing. She has a markedly defined
prepuce, which is unique to most patients. It is
different in her. Otherwise, everything is normal in
appearance.

Q.

Okay. Are there any other distinct features about her
pelvic area?

A.

She has a very distinctive crease. All people have
permanent skin creases in different locations. All
people have one on the lower abdomen, which would
be above the mons [pubis].… That’s a permanent
lateral crease. But she also has a very distinctive crease
that wraps around the mons and is unusual.

Q.

Unusual for most females?

MEMORANDUM DECISION AND ORDER - 15

A.

Right.

Q.

Are there any other distinctive marks or any indicators
of her?

A.

She has two—a C-section scar times two. So that’s in
her lower abdomen, and a mole right off to the left side
of that. She also has a significant tattoo on her lower
abdomen here. And at the time of the exam, a belly
button ring as well. And then, those are the most
significant features of her genitalia.

….
Q.

Doctor, I’m going to show you what’s been admitted
into evidence as State’s Exhibit 49 [the video
recovered from Russo’s cell phone]. If you have your
fancy little laser pointer—
So Doctor, as I play this, I know it’s very quick, as the
video’s playing, if you could highlight what you see.

A.

Okay, sure.
Again, the larger than average prepuce of the clitoris.
Off to the side right here, you can see the crease that
comes around the top of the mons that was clearly
evident in the photos. Up here, you can also see the
two lines. So this was the one from the C-section. And
then, the one below it was her permanent crease. That,
I don’t feel, shows anything significant.

Q.

Thank you.
And that, you compared with photographs, Doctor?

A.

Yes.

Q.

And Doctor, after your review of the photographs in
relationship to the video and those still photos, can you
make a determination beyond a degree of medical
certainty whose pelvic region the female’s in that
video is?

MEMORANDUM DECISION AND ORDER - 16

(State’s Lodging A-12 at 86-92 (emphasis added).) At this point, defense counsel
objected that Dr. Minge was not “qualified to make this opinion testimony.” (Id. at 93.)
The trial court overruled the objection.
The prosecutor asked the doctor again if she could identify the woman in the video
“beyond a degree of medical certainty,” and Dr. Minge answered, “I believe it’s [the
victim].” (Id. at 94.) The “medical certainty” language arguably moved Dr. Minge’s
testimony from that of a fact or lay witness into an area of expert testimony.
Russo asserts that his counsel should have moved before trial to exclude Dr.
Minge’s expert testimony. The Idaho Court of Appeals rejected this claim, because Russo
had not shown that the identification probably would have been excluded as improper
expert testimony. That is, any such motion would have been denied and, therefore, no
prejudice resulted from counsel’s failure to file one:
Russo argues that the trial court, in a pretrial hearing,
regarded the victim’s doctor as primarily a fact witness for
the purposes of trial, and thus Russo’s trial counsel should
have filed a motion in limine to exclude expert testimony
from the victim’s doctor as to the identification of the female
in the video at trial. Russo concludes that, had his trial
counsel properly excluded such testimony prior to trial, the
State would not have been allowed to present the doctor’s
prejudicial identification testimony and Russo would not have
been found guilty. Even assuming the accuracy of Russo's
allegation, his claim failed to allege on what basis the expert
testimony of the victim’s doctor would have been excluded.
Russo’s claim is impermissibly conclusory. Consequently,
Russo has failed to show that the district court erred in
summarily dismissing his claim that his trial counsel was
ineffective for failing to file a motion in limine to exclude
expert testimony from being offered by the victim’s doctor.
(State’s Lodging D-4 at 5.)
MEMORANDUM DECISION AND ORDER - 17

This decision of the Idaho Court of Appeals was not unreasonable under
§ 2254(d). Russo did not provide any basis upon which Dr. Minge’s testimony should
have been excluded. Instead, he simply assumed that Dr. Minge’s identification was
inadmissible expert testimony. Having failed to show any reason why Dr. Minge’s
identification was inadmissible, Russo failed to show prejudice from his trial counsel’s
failure to file a motion in limine.
Further, the Court concludes on de novo review that Russo’s trial counsel made a
reasonable strategic decision not to file a pretrial motion to exclude expert testimony by
Dr. Minge. At a pretrial hearing, the trial court correctly characterized Dr. Minge as
primarily a fact witness, stating that the defense would have to show a particular need for
the court to appoint a defense expert to rebut Dr. Minge’s identification:
I think [Dr. Minge is] largely a fact witness. I’m not sure if
you’re going to have an opinion from the person, or if they’re
just going to say, look, I’m—this is—I’m the doctor, and I’m
familiar with this person, and I do these examinations, and
that—but if there’s an opinion, it’s based on their factual
person. So I’m not saying I’m going to appoint a physician
for the defense. There needs to be a showing that that is
necessary.
(State’s Lodging A-8 at 18-19 (emphasis added).) Defense counsel did not then request
funding for a defense expert, presumably because Dr. Minge’s anticipated identification
of the victim was anticipated to be lay testimony.
It was reasonable for counsel not to file a motion to exclude the identification as
expert testimony, because the trial court had already informed defense counsel that the
court did not consider the doctor to be testifying as an expert. And once the prosecutor

MEMORANDUM DECISION AND ORDER - 18

asked Dr. Minge for an identification “beyond a degree of medical certainty”—
potentially approaching the realm of expert testimony—defense counsel objected.
To be clear, the Court does not conclude that Dr. Minge’s identification, if
characterized as expert testimony, was inadmissible. In fact, Dr. Minge’s testimony
regarding her credentials indicates that she easily could have qualified as an expert in
female anatomy. See Idaho R. Evid. 702 (“A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion
or otherwise if the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue.”). The Court
simply concludes, on de novo review, that trial counsel’s strategic decision not to file a
pretrial motion regarding Dr. Minge’s expert qualifications was reasonable, given that the
trial court had already indicated that it considered her primarily a fact or lay witness.
For these reasons, Russo cannot meet either Strickland prong, whether considered
de novo or under § 2254(d), and he is not entitled to relief on Claim 1.
B.

Trial Counsel Was Not Ineffective for Failing to Move for a Judgment of
Acquittal

In Claim 2, Russo alleges that trial counsel should have moved for a judgment of
dismissal or acquittal. Specifically, Russo asserts that Dr. Minge’s testimony was
inconclusive and, therefore, the prosecution “failed to produce a proper and positive
identification to support its allegation that the cellphone video showed the Petitioner
raping the victim.” (Dkt. 3-1, Att. B, at 4; see also State’s Lodging D-4 at 5.)

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A motion for judgment of acquittal under Idaho Criminal Rule 29 must be granted
if “the evidence [presented at trial] is insufficient to sustain a conviction.” I.C.R. 29(a).
Evidence is sufficient to support a conviction if, “‘after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” State v. Adamcik, 272 P.3d 417, 432
(Idaho 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The Court need not decide if the Idaho Court of Appeals’ rejection of Claim 2 was
unreasonable under § 2254(d)(1) or (2) because, on de novo review, the Court concludes
that a reasonable juror could have found Russo guilty beyond a reasonable doubt.
Specifically, taking all the evidence in the light most favorable to the state, a rational
juror could have concluded, based on Dr. Minge’s testimony, that the victim was the
woman in the cell phone video. The identification, made by a doctor familiar with the
victim’s genitalia and supported by specific and individualized characteristics—such as
the unusually large prepuce, the two C-section scars, and the crease wrapping around the
mons pubis—constituted more than sufficient evidence from which a reasonable juror
could have concluded that the victim was the woman in the video.
Besides Dr. Minge’s identification, circumstantial evidence also supported a
finding that the woman in the video was the victim. The victim testified she could tell
that the rapist was using a cell phone camera during the rape: “He had a—and I could
hear his cell—a cell phone flip open. And I heard the flash and I saw like the light.
Because the pillow was over my head, but my face was facing to the right, so I saw my

MEMORANDUM DECISION AND ORDER - 20

room. And so I saw a flash, so I assumed he took a picture.” (State’s Lodging A-11 at
214.) Russo recorded the video on his cell phone on August 27, 2009, the morning of the
rape, at 3:59 a.m. (Id. at 501.) And the victim testified that, sometime after she heard the
cell phone “clicking,” she looked at her alarm clock and noted that it was 4:14 a.m. (Id. at
217.) Finally, Russo admitted that he did not inform Detective Weekes during his
interview that he had an alibi witness named Melissa or Michelle. He testified that, even
though he knew he was being investigated for rape, he did not think it would be
beneficial for him to tell Detective Weekes that he was with someone else at the very
time the rape occurred; he also stated he believed at the time that this consensual sexual
encounter was none of Weekes’s business. (State’s Lodging A-12 at 126-28.)
Therefore, the jury heard evidence of the following: (1) the victim’s rapist used his
phone to record the rape, (2) the video was found on Russo’s cell phone, (3) Russo
recorded the video at the time of the rape, and (4) Russo did not inform the investigating
officers about his alleged alibi, allowing for a reasonable inference that the story of the
mysterious Melissa or Michelle was recently fabricated. Considering this evidence in the
light most favorable to the prosecution, along with the testimony of Dr. Minge—who was
familiar with the victim’s external genitalia and, due to that familiarity, identified her as
the woman in the video—a rational juror could have found Russo guilty beyond a
reasonable doubt. Therefore, a Rule 29 motion would have been denied, and Russo
cannot show prejudice from trial counsel’s failure to file such a motion.

MEMORANDUM DECISION AND ORDER - 21

C.

Appellate Counsel Was Not Ineffective for Failing to Argue that the Trial
Court Erred in Overruling Trial Counsel’s Mid-Trial Objection to Dr.
Minge’s Identification

In Claim 3, Russo asserts that his direct appeal counsel rendered ineffective
assistance by failing to appeal the trial court’s decision to overrule trial counsel’s
objection, during Dr. Minge’s testimony, that Dr. Minge was not qualified to give her
opinion that the woman in the video was the victim.
The principles from Strickland set forth above apply both to claims of ineffective
assistance of trial counsel and to claims of ineffective assistance of direct appeal counsel.
Additionally, there is specific federal precedent regarding constitutionally-effective
appellate advocacy. Effective legal assistance on appeal does not mean that appellate
counsel must appeal every question of law, or even every nonfrivolous issue requested by
a criminal defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). “Nothing in the
Constitution” requires “judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a
client.” Id. at 754. “Experienced advocates since time beyond memory have emphasized
the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Id. at 751-52.
Therefore, although it is “possible to bring a Strickland claim based on [appellate]
counsel’s failure to raise a particular claim, … it is difficult to demonstrate that counsel
was incompetent.” Smith v. Robbins, 528 U.S. 259, 288 (2000). A petitioner can show
deficient performance of appellate counsel only when counsel failed to raise a

MEMORANDUM DECISION AND ORDER - 22

nonfrivolous issue that “was clearly stronger than [the] issues that counsel did present.”
Id.
To show prejudice with respect to direct appeal counsel’s failure to challenge an
alleged trial error, a petitioner must show (1) that the error was obvious from the trial
record and (2) a reasonable probability that appellate consideration of the issue would
have resulted in reversal. Miller v. Keeney, 882 F.2d 1428, 1434 and n.9 (9th Cir. 1989).
If a petitioner does not do so, he cannot satisfy either prong of Strickland—appellate
counsel was not ineffective for failing to raise a weak issue, and the petitioner suffered no
prejudice as a result of it not having been raised. Id. at 1435.
The Idaho Court of Appeals rejected Claim 3 because Russo did not show that
appellate counsel performed deficiently, nor did he show a reasonable probability that a
challenge to the trial court’s decision to overrule the objection would have succeeded on
appeal:
Russo claims it was improper when the testimony of the
victim’s doctor shifted from being that of a fact-witness to
that of an expert but cites no authority to support the
contention. Russo also asserts that the issue was meritorious
given the trial court’s previous rulings regarding the doctor's
testimony as being a fact witness. In support, Russo states
that, “if this was a meritorious issue then it is necessarily
stronger than the ones raised which were all rejected by the
[Idaho] Supreme Court when it affirmed [Russo’s]
conviction.” Such an assertion is conclusory and fails to
demonstrate why this issue was stronger than the issues which
were raised on direct appeal. Furthermore, there is no reason
to assume that, because Russo’s issues raised on appeal were
unsuccessful, other issues must have been meritorious.
Moreover, even presuming the issue was meritorious, Russo
has failed to show that the doctor's testimony was legally
MEMORANDUM DECISION AND ORDER - 23

impermissible requiring the trial court to sustain trial
counsel’s objection, much less that such an argument would
have prevailed on direct appeal had appellate counsel raised
the issue. Russo’s conclusory allegations are insufficient to
overcome the strong presumption of effective assistance of
appellate counsel.
(State’s Lodging D-4 at 7 (alterations in original).)
The double deference that applies when reviewing ineffective assistance claims in
habeas proceedings leaves no room for this Court to second-guess the tactical decision of
Russo’s direct appeal counsel with the benefit of hindsight. Pinholster, 131 S. Ct. at
1403; Strickland, 466 U.S. at 689. The two issues direct appeal counsel raised—that the
cell phone should have been suppressed under the Fourth Amendment and that evidence
of Russo’s deviant sexual interests was inadmissible under Rule 404(b)—were stronger
than the argument regarding Dr. Minge’s identification. Therefore, Russo has not shown
that appellate counsel performed deficiently by choosing not to challenge the trial court’s
decision to allow Dr. Minge’s identification.
Moreover, Russo cannot show a reasonable probability of success on appeal had
appellate counsel raised the issue. As the Court already noted with respect to Claim 1,
Russo has not set forth any basis upon which Dr. Minge’s identification—even if it is
deemed to be expert testimony—was excludable. Further, as Respondent accurately
points out, all of Dr. Minge’s testimony prior to the question regarding a degree of
medical certainty was undoubtedly factual, not expert, testimony: “Th[e] final question,
and Dr. Minge’s answer to it, merely summarized Dr. Minge’s testimony.” (Dkt. 17 at 9.)
Therefore, even if the answer to that final question was improper, the remainder of Dr.

MEMORANDUM DECISION AND ORDER - 24

Minge’s testimony—in which she identified various portions of the genitalia of the
woman in the video as being consistent with the victim’s genitalia—would have
remained unaffected. Thus, Russo has not shown prejudice, and the Idaho Court of
Appeals did not unreasonably reject Claim 3.
CONCLUSION
For the foregoing reasons, Russo’s habeas petition will be denied.
ORDER
IT IS ORDERED:
1.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED, and 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.

DATED: June 19, 2019

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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