Adams v. Carlin

Filing 32

ORDER. IT IS ORDERED:1. Petitioner's Motion for Discovery (Dkt. 22 ) is DENIED.2. The Court will issue a decision on the merits of the Petition at a later date. Signed by Judge Ronald E. Bush. (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

CLAYTON ADAMS,
Case No. 1:17-cv-00246-REB
Petitioner,
ORDER
v.
TEREMA CARLIN,
Respondent.

In this habeas corpus action, Petitioner Clayton Adams challenges his state court
convictions for second-degree murder and aggravated battery. Now pending is
Petitioner’s Motion for Discovery Pursuant to Habeas Rule 6. (Dkt. 22.) Petitioner seeks
discovery related to Claim 1, which asserts ineffective assistance of trial counsel
(“IATC”). In that claim, Petitioner alleges that his trial attorney should have contacted,
interviewed, and called Lynette Skeen as a witness to a portion of the relevant events on
the night of the murder. In his Motion for Discovery, Petitioner seeks to depose Skeen.
For the reasons that follow, the Court will deny the Motion.
1.

Legal Standards
Habeas petitioners, unlike traditional civil litigants, are not entitled to discovery as

a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, the petitioner
must first seek leave of court, and such leave may be granted only upon a showing of
good cause. See Rule 6(a) of the Rules Governing Section 2254 Cases. A petitioner has
ORDER - 1

generally shown good cause when there is “reason to believe that the petitioner may, if
the facts are fully developed, be able to demonstrate that he is entitled to relief.” Bracy,
520 U.S. at 908-09 (internal quotation marks and alteration omitted).
A petitioner cannot establish good cause simply by providing conclusory
assertions—instead, a request for discovery must be supported by specific factual
allegations. Habeas corpus review “was never meant to be a fishing expedition for habeas
petitioners to explore their case in search of its existence.” Rich v. Calderon, 187 F.3d
1064, 1067 (9th Cir. 1999) (internal quotation marks omitted).
Further, if the state court adjudicated a claim on the merits, new evidence may not
be introduced on federal habeas review. Cullen v. Pinholster, 563 U.S. 170, 180 (2011);
28 U.S.C. §225(e)(2). The state court record may be supplemented by new factual
development in federal court only in very limited circumstances: (1) when a state court
did not decide the merits of a properly-asserted claim; (2) when the state court decision
was based on an unreasonable factual determination; (3) when a petitioner attempts to
show cause and prejudice in a procedural default setting; or (4) when a petitioner
attempts to show actual innocence to overcome a procedural default or statute of
limitations bar.
One way that habeas petitioners may attempt to avoid Pinholster’s bar on new
evidence is by arguing that the claim is procedurally defaulted and that, therefore, the
state court did not actually decide the merits of the claim. The argument goes as follows:
the petitioner’s attorney did not adequately support the claim in state court; therefore, the

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claim—as asserted in federal court—is now either “fundamentally alter[ed] [from] the
legal claim already considered by the state courts” or “in a significantly different and
stronger evidentiary posture than it was when the state courts considered [the claim].”
Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (en banc) (internal quotation marks
omitted). In other words, if a claim is now fundamentally altered or in a stronger
evidentiary posture because of counsel’s failure to support it in state court, then the claim
was neither fairly presented to the state court in the first instance nor was it adjudicated
on the merits. If there is no longer a way to exhaust the claim in state court, the claim is
also procedurally defaulted.
In turn, if a claim is procedurally defaulted, a federal court can still hear the claim,
but only if the Petitioner shows a legal excuse—such as cause and prejudice—for that
default. In the case of purportedly ineffective post-conviction counsel, a petitioner can
show cause and prejudice to excuse the default of an IATC claim if the petitioner satisfies
the standard described in Martinez v. Ryan, 566 U.S. 1 (2012) and further clarified in
Trevino v. Thaler, 569 U.S. 416 (2013).1 Under Martinez, ineffective assistance of postconviction counsel excuses the default of an IATC claim if (1) the underlying IATC
claim is a “substantial” claim; (2) the “cause” for the procedural default consists of there
being “ineffective” counsel during the state collateral review proceeding; (3) the state
collateral review proceeding was the “initial” collateral review proceeding where the

1

Martinez does not apply to any claims other than IATC claims. See Davila v. Davis, 137 S. Ct. 2058,
2063 (2017) (holding that Martinez does not apply to underlying claims of ineffective assistance of direct
appeal counsel); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (holding that Martinez does
not apply to claims under Brady v. Maryland).

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IATC claim could have been brought2; and (4) state law requires that an IATC claim be
raised in an initial-review collateral proceeding (or, by “design and operation,” such
claims must be raised that way rather than on direct appeal). Trevino, 569 U.S. at 423,
429.3
2.

Discussion
Petitioner argues that his post-conviction counsel rendered ineffective assistance

by failing to seek early investigative funding to discover additional facts supporting the
claim. Therefore, contends Petitioner, the only way he can show that Claim 1 is
fundamentally altered (or in a significantly stronger evidentiary posture) is to conduct
Skeen’s deposition. According to Petitioner, Claim 1—as presented in the Petition—is a
“new” claim that (1) is procedurally defaulted, (2) is excused from default by cause and
prejudice under Martinez, and (3) may be supported by new evidence: the deposition of
Skeen that Petitioner seeks in his Motion for Discovery.
Lynette Skeen was an earwitness to part of the altercation culminating in the death
of the victim. Skeen reported that she heard someone outside her home yell, “Get the
Fuck back here.”4 (State’s Lodging E-1 at 393.) According to Petitioner, Skeen’s

2

The Martinez exception applies only to claims that were defaulted in the initial-review collateral
proceeding—a petitioner may not use, as cause to excuse a default, any attorney error that occurred in
“appeals from initial-review collateral proceedings, second or successive collateral proceedings, and
petitions for discretionary review in a State’s appellate courts.” Martinez, 566 U.S. at 16.
3

In Dickens, the Ninth Circuit held that Martinez can apply not only to IATC claims that were never
adjudicated in state court, but also to IATC claims that were adjudicated on the merits, but were
adjudicated on an inadequate record as a result of post-conviction counsel’s ineffectiveness. 740 F.3d at
1319-20.
4

Skeen stated that the voice she heard was male. Petitioner is male, as was the victim.

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statement corroborates Petitioner’s self-defense theory, i.e. Petitioner states that he told
his attorney that the victim—who Petitioner alleged was the initial aggressor—said to
Petitioner, “Get the fuck back here I am not done with you.” (Id. at 300.) Claim 1 asserts
that trial counsel should have called Skeen as a witness.
The Idaho Court of Appeals considered and rejected an analogous claim. See
Adams v. State, 387 P.3d 153, 500 (Idaho Ct. App. 2016) (holding that Petitioner “has not
provided evidence sufficient to overcome the presumption that trial counsel made a
strategic decision not to call [the] witness” and that Petitioner “only offered conclusory
allegations as to what the second witness would have testified to at trial based on a police
report”). Therefore, this Court may consider whether Martinez applies to Claim 1—and,
consequently, whether discovery is permitted on that claim as requested by Petitioner—
only if Claim 1 is fundamentally altered, or in a significantly stronger evidentiary
posture, such that it constitutes a new claim not previously decided on the merits in state
court.
The Court concludes it is not such a new claim. The only evidence Petitioner
provides to support this claim, other than evidence already presented in state court, is an
affidavit from an investigator. The investigator says he talked to Skeen in March 2017.
Skeen did not appear cooperative, but told the investigator that, on the night of the
murder, Skeen heard “people ... yelling and she heard, ‘Come back here. I’m going to kill
you.’” (Ex. A to Pet., Dkt. 1.) This statement is substantially similar to what Skeen
previously reported. Therefore, Claim 1 is the substantially the same claim adjudicated on

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the merits in state court, and the holding in Pinholster prohibits this Court from granting
Petitioner’s requested discovery.
In addition, the Court rejects Petitioner’s claim that Skeen’s testimony “would
have corroborated [Petitioner’s] testimony.” (Dkt. 22 at 2.) The Court accepts, for
purposes of this decision, that Petitioner informed his attorney before trial that the victim
yelled, “Get the fuck back here I am not done with you.” (State’s Lodging E-1 at 300.)
However, although he did testify at trial, the Petitioner did not testify that the victim said
any such thing. (State’s Lodging A-3 at 722-886.) Therefore, even if the jury had heard
Skeen’s report of the incident, it is highly unlikely that the jurors would have assumed
that the victim—rather than Petitioner—made the statement, “Get the fuck back here,” or
“Come back here, I’m going to kill you.” This is particularly true given that multiple
witnesses testified that Petitioner was the aggressor.
3.

Conclusion
Respondent correctly notes that, other than seeing the headlights of Petitioner’s

car, Skeen “was not a visual witness to the events, nor has there ever been any indication
that she could identify the person who yelled ‘Get the fuck back here’ during the
incident.” (Dkt. 30 at 4.) Without any evidence that Skeen’s testimony would actually
have corroborated Petitioner’s statement to his attorney that the victim—and not
Petitioner—yelled “Get the fuck back here,” the Court concludes that discovery on this
issue would be a “fishing expedition.” See Rich, 187 F.3d at 1067. Nor is Claim 1
fundamentally altered such that the Court may permit discovery under Pinholster,
Martinez, and Dickens.
ORDER - 6

ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Discovery (Dkt. 22) is DENIED.

2.

The Court will issue a decision on the merits of the Petition at a later date.

DATED: March 8, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

ORDER - 7