Adams v. Carlin
Filing
33
MEMORANDUM DECISION AND ORDER. The Petition for Writ of Habeas Corpus (Dkt. 1 ) 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. Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a request in that court. Signed by Judge Ronald E. Bush. (alw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CLAYTON ADAMS,
Case No. 1:17-cv-00246-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
TEREMA CARLIN,
Respondent.
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Clayton Adams (“Petitioner” or “Adams”), challenging Petitioner’s Canyon
County convictions of second-degree murder and aggravated battery. (Dkt. 1.) The
Petition is now fully briefed and ripe for adjudication. The Court takes judicial notice of
the records from Petitioner’s state court proceedings, which have been lodged by
Respondent. (Dkts. 8 & 12.) 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. 7.) 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
Absent clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1),
the following facts of Petitioner’s case, as described by the Idaho Court of Appeals, are
presumed correct:
Three friends, Tyler Gorley, Stephen Maylin and
Mikeal Campbell, were leaving a Caldwell bar at closing time
when they ran into Adams and his friend, Sergio Madrigal,
outside the entrance. Campbell spoke to Adams, whom he
knew, and the group decided to go to a private party at
another location, with the intent to buy beer and drop off
Maylin at his home along the way. The five men got into
Adams' car. According to the State's evidence at Adams'
subsequent trial, the following events then unfolded. En route,
Adams asked for beer and gas money from Gorley, Maylin
and Campbell, and when he was told that they had no money,
Adams became enraged. Adams told the men that he had a
knife and a gun and that someone was going to get hurt if he
was not given money. In an apparent attempt to scare the men
into compliance, Adams started driving recklessly, speeding
and running stop lights and stop signs. Gorley, Maylin and
Campbell demanded to be let out of the car, but Adams
initially refused to stop. Eventually, Adams slammed on his
brakes in the middle of a rural road, and the three men got out
of the car to escape from him. Campbell was successful in
doing so but the other two men were not. As Maylin was
exiting by the left-rear passenger door, he was met by Adams,
who stabbed Maylin once in the side before Maylin got away.
Adams then stabbed Gorley five times, killing him. Adams
then got back in his car and drove away, with Madrigal still a
passenger. The two men then bought beer, unsuccessfully
looked for the party and then drove to Adams' home where he
was arrested.
Adams was charged with first degree premeditated
murder, or in the alternative, first degree felony murder, three
counts of attempted robbery, and one count of aggravated
battery.
MEMORANDUM DECISION AND ORDER - 2
State v. Adams, 216 P.3d 146, 148–49 (Idaho Ct. App. 2009) (Adams I) (see also State’s
Lodging B-4 at 1–2).
The jury found Petitioner guilty of second-degree murder and aggravated battery
but acquitted him of first-degree murder and attempted robbery. Petitioner received a
unified sentence of life imprisonment with 25 years fixed for second-degree murder, as
well as a consecutive 10-year term, with three years fixed, for aggravated battery.
The Idaho Court of Appeals affirmed Petitioner’s convictions and sentences, and
the Idaho Supreme Court denied review. (State’s Lodging B-4; B-7.)
Petitioner pursued post-conviction relief. The state district court ordered
resentencing on the second-degree murder conviction, but summarily dismissed
Petitioner’s other claims. (State’s Lodging E-1 at 1669–71; E-5 at 1859–60.) Upon
resentencing, the trial court again sentenced Petitioner to life imprisonment with 25 years
fixed on the second-degree murder conviction; that sentence was affirmed on appeal.1
(State’s Lodging C-1 at 129–30; D-4.)
Petitioner appealed the dismissal of six of his post-conviction claims. The Idaho
Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging
F-4; F-12; F-10.)
In his federal Petition, Petitioner asserts seven claims: (1) ineffective assistance of
trial counsel for failing to call Lynette Skeen as a witness; (2) ineffective assistance of
The trial court’s denial of Petitioner’s Rule 35 motion for credit for time served, which argued that his
sentences should run concurrently rather than consecutively, was also affirmed. (State’s Lodging H-1; H4.)
1
MEMORANDUM DECISION AND ORDER - 3
trial counsel for failing to object to a paramedic’s testimony that Gorley and Maylin
suffered stab wounds; (3) ineffective assistance of trial counsel for failing to seek
independent DNA testing of Gorley’s clothing; (4) ineffective assistance of trial counsel
for allegedly abandoning Petitioner’s self-defense theory and conceding that Petitioner
was guilty of manslaughter; (5) denial of the right to an impartial based on the trial
court’s failure to excuse a juror for cause sua sponte; (6) prosecutorial misconduct based
on the prosecutor’s statements in rebuttal closing argument; and (7) cumulative error.
(Dkt. 1 at 9-20.)
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
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.
MEMORANDUM DECISION AND ORDER - 4
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]
[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).
MEMORANDUM DECISION AND ORDER - 5
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
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
MEMORANDUM DECISION AND ORDER - 6
(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
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).
MEMORANDUM DECISION AND ORDER - 7
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 and 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.
Generally, even if a petitioner succeeds in demonstrating a constitutional error in
his conviction, he is entitled to federal habeas relief only if the petitioner “can establish
that [the error] resulted in ‘actual prejudice.’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). Under the Brecht standard, an error is not harmless, and habeas relief may be
granted, only if the federal court has “grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury’s verdict.”
MEMORANDUM DECISION AND ORDER - 8
O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).
However, some types of claims “are analyzed under their own harmless error standards,
which can render Brecht analysis unnecessary.” Jackson v. Brown, 513 F.3d 1057, 1070
(9th Cir. 2008). Ineffective assistance of counsel claims are included in this category.
Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition
governed by AEDPA alleges ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), we apply
Strickland’s prejudice standard and do not engage in a separate analysis applying the
Brecht standard.”).
DISCUSSION
Respondent argues that Petitioner’s claims do not survive review under 28 U.S.C.
§ 2254(d). For the following reasons, the Court agrees.
1.
The Idaho Court of Appeals Reasonably Rejected Petitioner’s Ineffective
Assistance Claims (Claims 1 through 4)
The state’s theory of the case was that Petitioner became angry at his three
passengers and tried to rob them, stabbed Maylin with a knife, and then fatally stabbed
Gorley. Petitioner told a different story—that the passengers attacked him and that he
stabbed Gorley in self-defense. Claims 1 through 4 essentially assert that trial counsel’s
actions undermined, or even abandoned, Petitioner’s claim of self-defense.
A.
Clearly-Established Law
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 - 9
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. Id. at 697.
On habeas review, a 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 - 10
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.
MEMORANDUM DECISION AND ORDER - 11
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 strategy does not render counsel’s
assistance ineffective. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Third,
Strickland gives a trial attorney wide discretion with respect to abandoning inconsistent
defenses. See Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998) (holding that
counsel’s failure to develop a mens rea defense was reasonable because such a defense
“would have conflicted with the primary defense theory of misidentification”); Turk v.
White, 116 F.3d, 1264, 1267 (9th Cir. 1997) (counsel’s selection of self-defense theory
was reasonable and obviated his need to investigate defendant’s claim of incompetency).
Fourth, “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.”).
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
MEMORANDUM DECISION AND ORDER - 12
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.
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
MEMORANDUM DECISION AND ORDER - 13
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).
B.
Petitioner Is Not Entitled to Relief on Claims 1, 2, 3, or 4
The Idaho Court of Appeals considered and rejected Petitioner’s ineffective
assistance claims, presented here as Claims 1 through 4, on appeal from the partial
dismissal of Petitioner’s post-conviction petition.
i.
Claim 1
In Claim 1, Petitioner asserts that his trial counsel was ineffective in failing to
investigate and call a witness in his defense.
After the altercation that resulted in Gorley’s death, Lynette Skeen—who lived
nearby—reported that she heard a male voice outside her home yell, “Get the Fuck back
here.” (State’s Lodging E-1 at 393.) She also saw the headlights of Petitioner’s car.
Though the state listed Lynette Skeen as a witness, it did not call her at trial. Adams v.
State, 387 P.3d 153, 167 (Idaho Ct. App. 2016) (Adams II). Petitioner’s counsel also did
not call Skeen to testify as a witness.
MEMORANDUM DECISION AND ORDER - 14
Petitioner asserts that trial counsel should have investigated Skeen, and called her
as a witness, because Skeen’s statement—that she heard a male yelling “Get the Fuck
back here”—corroborated Petitioner’s self-defense theory.2 (Dkt. 21 at 13.)
The Idaho Court of Appeals rejected this claim. In doing so, it addressed both
Strickland prongs:
Adams only offered conclusory allegations as to what [Skeen]
would have testified to at trial based on a police report. Such
argument is mere speculation and inadmissible. Thus, Adams
failed to provide admissible evidence concerning the
substance of [Skeen’s] testimony. Moreover, Adams failed to
show that [Skeen] would have been available to testify and
that [she] would have testified consistently with her
respective alleged statements and consistently with Adams’s
version of the events. Adams has not provided evidence
sufficient to overcome the presumption that trial counsel
made a strategic decision not to call either witness.
Adams II, 387 P.3d at 167–68. That is, the state court held that trial counsel reasonably
decided not to call Skeen and that Petitioner could not show prejudice in any event, since
he had not shown that Skeen would have testified consistently with Petitioner’s story
about the altercation.3
The Court has already rejected Petitioner’s argument that Claim 1 is fundamentally altered such that
Martinez v. Ryan, 566 U.S. 1 (2012), might apply and permit de novo review. (Dkt. 21 at 8-13; Dkt. 32 at
5-6.) Thus, the Court reviews the state court’s decision on Claim 1 under § 2254(d).
2
Contrary to Petitioner’s assertion (see Dkt. 21 at 14-15), the Idaho Court of Appeals did, in fact,
consider the prejudice prong of Claim 1. The court stated that “Adams failed to show that [Skeen] would
have been available to testify and that [she] would have testified consistently with her respective alleged
statements and consistently with Adams’s version of the events.” Adams II, 387 P.3d at 167–68. The
court did not use the term “prejudice,” but this is plainly a holding that Petitioner had not established a
reasonable probability of a different outcome under Strickland.
3
MEMORANDUM DECISION AND ORDER - 15
The Idaho Court of Appeals’ rejection of Claim 1 was not unreasonable under
AEDPA. There was no evidence that Skeen could identify the voice she heard. As this
Court previously explained when it denied Petitioner’s motion for discovery with respect
to this claim, “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,’” especially given that “multiple witnesses
testified that Petitioner was the aggressor.” (Dkt. 32 at 6.) Petitioner cannot show
prejudice based on counsel’s failure to investigate Skeen or to call her as a witness at
trial.
For the foregoing reasons, the state court’s decision on Claim 1 was not contrary
to, or an unreasonable application of, Supreme Court precedent, nor was it based on an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
ii.
Claim 2
In Claim 2, Petitioner asserts that his trial counsel rendered ineffective assistance
in failing to object to testimony by Jennifer Wyatt, the paramedic who treated Maylin and
testified that Maylin suffered what appeared to be a stab wound.
The paramedic first described Maylin as a “stabbing victim.” (State’s Lodging A-3
at 476.) She then went on to testify as to the nature of Maylin’s wound:
Q.
What did you observe?
A.
I observed—it was about a one-inch in width
laceration type puncture wound. It appeared to be, you know,
in deep through the tissue to where you could see like the
muscle and the fatty tissue underneath, so it appeared to me to
MEMORANDUM DECISION AND ORDER - 16
be a deep—a deep puncture. I mean, I can’t tell how deep at
that point.
….
Q.
[showing the witness a photograph of Maylin’s
wound] Is that what you saw?
A.
Yeah. I could see the top laceration portion, the wider
part. That below that where the oozing was just appeared to
be blood at that point. So as far as—because right here, that
looks like—that looks different from when I saw it.
….
Q.
… Can you use that [laser pointer] to illustrate what
you just testified to?
A.
Yes. That laceration right there was there. That’s the
one I’m speaking of that I recall. And this all area was just the
oozing blood, so that looks like the remnants of the blood
stain, and it looks like it’s up there in his arm here and up on
his armpit there too, but I can’t say for sure that’s what that is.
That just—
Q.
But you believe its appearance is consistent with a
blood stain?
A.
Right, like where he was bleeding ….
….
Q.
And, Ms. Wyatt, is that wound consistent with what
you’ve seen of stab wounds in the past?
A.
Yes.
Q.
And do you believe that to be a stab wound?
A.
Yes.
(Id. at 483-85 (emphasis added).) Petitioner’s counsel did not object to this testimony.
MEMORANDUM DECISION AND ORDER - 17
The Idaho Court of Appeals held that Petitioner’s counsel’s failure to object to the
paramedic’s testimony was not deficient performance and that, even if it had been, the
failure to object was not prejudicial. As to the performance prong of Strickland, the court
found that Petitioner did not come forward with evidence that trial counsel’s lack of
objection was not the result of a reasonable “trial strategy.” Adams II, 387 P.3d at 163.
As to the prejudice prong, the state court held that the paramedic would have been
qualified as an expert witness under Idaho Rule of Evidence 702. Id. at 162-63.
Therefore, the paramedic’s testimony that Maylin suffered a stab wound was admissible,
and any objection by trial counsel would have been overruled:
The paramedic, at the time of her testimony, had worked as a
paramedic in Idaho for three years and had previously worked
in emergency medical services in Utah for six years. The
paramedic testified that she had graduated from a specialized
school qualifying her to be a paramedic and provide
emergency care for injured persons. The paramedic’s
testimony indicated that she had observed and treated several
stab wounds in the past in her role as a paramedic. Notably,
the paramedic testified about stab wounds on the deceased
victim as well as the surviving victim. As part of her
testimony, the paramedic detailed how stab wounds
differentiated from cuts caused by other objects. The
paramedic testified that she had observed various stab
wounds on the deceased victim and described the appearance
of the wounds as being consistent with a cut caused by a
knife. When the paramedic testified concerning the surviving
victim’s wound, the State introduced a photograph of the
surviving victim’s wound and the paramedic confirmed that
the photo is what she saw on the surviving victim. The
paramedic detailed the nature of the wound she observed and
testified that she believed it to be a stab wound because it was
consistent with other stab wounds she had observed in the
past.
Id. (footnote omitted).
MEMORANDUM DECISION AND ORDER - 18
Whether the paramedic’s testimony was admissible under Rule 702 of the Idaho
Rules of Evidence is a question of state law. Therefore, this Court is bound by the Idaho
Court of Appeals’ determination that the evidence was admissible. See Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991). Because an objection to the paramedic’s testimony
would have been overruled under Rule 702, Petitioner cannot show a reasonable
probability of prejudice from the lack of such an objection.
Also, there is no evidence to rebut the presumption that not objecting to the
paramedic’s testimony based on her qualifications “might be considered sound trial
strategy.” Strickland, 466 U.S. at 689. Petitioner’s counsel reasonably could have
concluded that an overruling of an objection on Rule 702 grounds would have bolstered
the testimony of the paramedic in the eyes of the jury, as the paramedic would explicitly
be qualified as an “expert.” Because the decision not to risk that outcome was not
objectively unreasonable, Petitioner has not shown deficient performance on the part of
trial counsel.
For these reasons, the Idaho Court of Appeals reasonably rejected Claim 2, and
Petitioner is not entitled to relief on that claim under § 2254(d).
iii.
Claim 3
Claim 3 asserts that trial counsel should have requested independent DNA testing
of Gorley’s clothing.
Before trial, the state tested Petitioner’s knife for DNA. That testing showed that
Gorley’s DNA was on the knife. DNA from another individual was also on the knife, but
MEMORANDUM DECISION AND ORDER - 19
it could not be identified as Maylin’s (or any other particular individual’s) DNA. (State’s
Lodging A-3 at 643–53.) Gorley’s clothing was not tested.
During post-conviction proceedings, the state district court ordered DNA testing
of that clothing. The testing involved four swabs and revealed that only Gorley’s DNA
was present on the portions of the clothing that were tested. Maylin’s DNA was not found
on those swabs. Adams II, 387 P.3d at 163.
Petitioner also submitted an affidavit of Dr. Greg Hampikian regarding the DNA.
Dr. Hampikian opined that if a weapon punctured a person, caused “extensive bleeding,”
and was not “cleaned in any way,” he would expect to find DNA on the weapon. (State’s
Lodging E-5 at 1906.) The affidavit continued:
Hypothetically, if someone were to stab one person (person
A) with an instrument and then stab a second person with that
same instrument (person B), I would expect to find a mixture
of person A and person B’s DNA on the instrument. If person
B was stabbed through his or her clothing, I would also
expect to find person’s A’s DNA transferred to person B’s
clothing.
(Id. at 1907.) Specifically, Dr. Hampikian asserted that if Maylin’s DNA was not present
on Gorley’s clothing, “it would support the defense.”4 (Id.) Another doctor, Kent
Kreuder, stated that he could not conclude that Petitioner’s knife caused Maylin’s stab
wound. (State’s Lodging E-8 at 17-18.)
4
By mistake, the notarized signature of Dr. Hampikian on his affidavit was not filed. The state district
court—on a limited remand during post-conviction proceedings—stated that it considered the entirety of
the affidavit “as if it had been notarized” and that the court “would have reached the same conclusions
had Dr. Hampikian’s affidavit had [sic] been received and filed in proper form.” (State’s Lodging F-3 at
2.)
MEMORANDUM DECISION AND ORDER - 20
The State’s theory at trial, supported by the testimony of Maylin and Campbell,
was that Petitioner stabbed Maylin before he stabbed Gorley. Petitioner contends that the
“absence of [Maylin’s] DNA [on Gorley’s clothing] indicates that Mr. Maylin had not
been stabbed when he first left the car and that he may not have been stabbed by a knife
at all.” (Dkt. 21 at 24.) Had trial counsel tested the clothing, argues Petitioner, counsel
could have used the DNA results to impeach the paramedic’s testimony that Maylin’s
“puncture wound” appeared to be a stab wound. (Dkt. 21 at 24.)
a)
Petitioner’s Martinez Argument
In considering Claim 3, the Court must first address Petitioner’s argument that the
Court should hold an evidentiary hearing to determine whether post-conviction counsel
rendered ineffective assistance in failing to adequately develop the DNA evidence. (Dkt.
21 at 21-22.) Petitioner appears to assert that—under Martinez v. Ryan, 566 U.S. 1
(2012), and Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (en banc)—Claim 3
was procedurally defaulted as a result of post-conviction counsel’s ineffectiveness;
therefore, contends Petitioner, the purported default of Claim 3 is excused, and the Court
must hold an evidentiary hearing and review the claim de novo.
As the Court previously explained with respect to Claim 1, the Court can consider
whether Martinez applies to Claim 3 only if that claim is “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, 740 F.3d at 1318 (internal quotation marks omitted). If that is the case, then
MEMORANDUM DECISION AND ORDER - 21
Claim 3 is a new claim that “was neither fairly presented to the state court in the first
instance nor was it adjudicated on the merits.” (Dkt. 32 at 3.)
Petitioner does not contend that Claim 3 is fundamentally altered, or that it is in a
significantly different and stronger evidentiary posture, from the claim he raised in state
court. (See Dkt. 21.) And the Court concludes, based on its review of the record, that it is
not. Therefore, because the state court adjudicated Claim 3 on the merits, § 2254(d)
applies. Petitioner’s request for a Martinez hearing is denied.
b)
Merits Review of Claim 3
The Idaho Court of Appeals rejected Claim 3 on both Strickland prongs,
concluding that Petitioner had not shown deficient performance or prejudice arising from
trial counsel’s failure to seek DNA testing of Gorley’s clothing before trial.
The court first noted the limited nature of the DNA results from Gorley’s clothing:
The deceased victim suffered five stab wounds, but only four
swabs were submitted for analysis—two from the deceased
victim’s shirt and two from his jacket. The DNA report
indicates that only the deceased victim’s DNA was detected.
The record is not clear as to whether the swabs tested
two wounds at two different levels of clothing or four
separate wounds. Furthermore, the absence of the surviving
victim’s DNA on any of the four swabbed areas of the
deceased victim’s clothing does not constitute exculpatory
evidence proving the surviving victim was not stabbed first or
that he was not stabbed by the knife at all. The report did not
include analysis of all of the deceased victim’s woundsites or
contemplate other possible explanations as to why there may
not be DNA from the surviving victim on the deceased
victim’s clothing. Given the limited DNA results, Adams’s
contention that the report shows the surviving victim was not
stabbed when he first left the car and that he may not have
been stabbed by a knife at all is conclusory and not supported
by the report.
MEMORANDUM DECISION AND ORDER - 22
Adams II, 387 P.3d at 164.
Alternatively, the state court also took the DNA evidence in the light most
favorable to Petitioner and “presum[ed] that it bolstered his testimony.” Adams II, 387
P.3d at 164. The state court held that, nonetheless, Petitioner had not established
prejudice with respect to trial counsel’s failure to obtain DNA testing of Gorley’s
clothing because there was enough other evidence “for the jury to conclude that Adams
stabbed the surviving victim,” Maylin, with the knife:
At trial, the surviving victim testified that Adams struck him
under the arm while he was exiting the vehicle. Physical
evidence was admitted showing the surviving victim’s
wound, which could be compared to the deceased victim’s
stab wounds. A paramedic testified that the wound was
consistent with what she had seen of stab wounds in her prior
experience. Adams admitted that he used his knife in
the altercation. Moreover, there was no other testimony or
evidence suggesting that any other person held a knife during
the incident or that the surviving victim’s puncture wound
was caused by a different object. Based on the other evidence
admitted at trial for the jury’s consideration and the limited
nature of the DNA results, we hold that Adams has failed to
show the district court erred in concluding that the report
suggesting the absence of DNA transfer would not have
changed the outcome of the trial.
Id. at 164–65. Thus, the state court held, Petitioner had “failed to show that trial counsel’s
performance was both deficient and prejudicial.” Id. at 165.
The decision of the Idaho Court of Appeals was not unreasonable under AEDPA.
The evidence showed that Maylin had a “puncture wound,” that Petitioner was armed
with a knife, that Petitioner struggled with Maylin, and that no other sharp instrument
was used in the altercation. Indeed, the only other “weapons” involved at all were blunt
MEMORANDUM DECISION AND ORDER - 23
objects—the rocks thrown at Petitioner—which could not have caused Maylin’s puncture
wound.
The only reasonable conclusion from this evidence was that Petitioner used his
knife to stab Maylin; the fact that Maylin’s DNA was not found on the tested portions of
Gorley’s clothing is only marginally relevant. And there was DNA from someone else on
the knife. There simply was not enough DNA to identify it as Maylin’s or as anyone
else’s. Moreover, the forensic scientist testified at trial that if Gorley was stabbed after
Maylin was stabbed, it would be “possible” to find Maylin’s DNA on the knife but that it
depended on several factors, including the amount of bleeding caused by the wound. This
would be true of the potential for Maylin’s DNA on Gorley’s clothing as well. Therefore,
even if trial counsel had tested Gorley’s clothing before trial, Petitioner has not shown a
reasonable probability of prejudice, and he is not entitled to relief on Claim 3 under
§ 2254(d).
iv.
Claim 4
In Claim 4, Petitioner asserts that trial counsel, during closing argument,
abandoned Petitioner’s claim of self-defense and conceded that Petitioner committed the
lesser-included offense of manslaughter.
Because defense counsel’s closing argument must be considered as a whole, the
Court recites, at length, all portions of that argument that are relevant to Claim 4:
Now, … the prosecutor told us at the beginning of this
trial … if you’ve been drinking, you ought to take
responsibility for your action. I agree. If I’ve been drinking or
they’ve been drinking or any one of us in this room have been
MEMORANDUM DECISION AND ORDER - 24
drinking, we have to take responsibility for our action, but no
more and no less. No more and no less.
….
No question, this is a case, a sudden quarrel that rises
to the heat of passion among a group of people that have been
drinking all night, drunk, intoxicated, and end result was
tragedy, deadly. That’s what it is. There’s no robbery. There’s
no attempted robbery. If there’s no robbery, there’s no
attempted robbery, the felony murder evaporate, disappear
[sic].
There’s no premeditation to kill anyone that night.
What evidence do they have, for heaven’s sake? Nothing.
There’s no premeditation. There’s no evil intent. The end
result was tragic, deadly.
This is a fight that took place among a group of people
that had been drinking heavily. There’s no question about
that. There was no dispute about that. We call it a sudden
quarrel that rises to the level of heat of passion among a
group of people.
Call them stupid. I agree. Call them irresponsible. I
agree. Call them immature. I agree. Call them whatever you
want to call them, but there was no intent to kill anybody that
night. Let him take responsibility for what he did, but no
more and no less. No more and no less.
….
This is a fight, a sudden quarrel that rises to the level
of a heat of passion among a group of drunk people that night
that turned deadly. Deadly.
….
…Sergio said as soon as [Petitioner] came back into
the car, the first thing—one of the first thing [Petitioner] said
was, gosh, I thought you were my fucking friend. You know,
why would somebody say that? The implication is you should
have come out there and helped me, come out there and
MEMORANDUM DECISION AND ORDER - 25
helped me. I was fighting three or two of those guys out there
by myself.
….
So he was fighting two or three guys out there by
himself, and that’s what he told Sergio, and Sergio didn’t hear
anything about threat, about money, about robbery, about $3,
about $10, then what else do we have?
….
The essence of [Sergio’s] testimony was that
[Petitioner] said, gosh, I thought I stabbed that guy, but I’m
not sure. And he said it not once, not twice. If I remember
right, it was three separate occasions. But I’m not sure. What
do you believe was the intent here, the intent to kill
somebody? Where is the premeditation for first degree
murder?
….
What are the surrounding facts and circumstances that
they’ve shown you that there was premeditation for him to
kill [Gorley] that night? What are the surrounding facts and
circumstances? He didn’t dispose of the knife. He went home.
You’re supposed to consider that.
What did he do after this incident that can enlighten
you and educate you, shed more light on his intent?
This is a fight, a sudden quarrel that rises to the heat of
passion among a group of drunk people that night that turned
deadly.
….
Now, if there is no robbery, there’s no attempted
robbery, felony murder disappear [sic]. Then what do we
have left? First degree murder. There’s no premeditation here.
Read the instruction of premeditation. Read the instruction of
MEMORANDUM DECISION AND ORDER - 26
malice aforethought. We don’t have that.[5] And he’ll take
responsibility for what he did, but no more and no less.
….
You know, I told you talking about self-defense, you
know hindsight is good, 20-20 is good. It describes what
happened, where he was. I wasn’t there. They were not there.
But one thing we know for sure is there was testimony about
two people swinging at each other. I think it was [Campbell]
that said that, Mike Campbell, that when he looked back, he
saw him and [Gorley] taking a swing at each other.
….
Hindsight is good. 20-20 is good. I wasn’t there, you
were not there, and he told you how he felt. That’s why we
have that self-defense jury instruction. You don’t have to be
100 percent sure before you defend yourself. You don’t. And
not only that, and this is even better, you don’t have to retreat.
I didn’t make that all up. It’s right there in the jury
instruction. You can stand your ground.
He’s entitled to the benefit of that law, just like each
and every one of us are.
This is a fight, a sudden quarrel that rise [sic] to the
level of heat of passion that took place among a group of
drunken people that night, and the end result was tragedy,
deadly, I concede.
That’s what we have. That’s what we have. This case
should not be decided on emotion or sympathy. It shouldn’t
because that wouldn’t be fair, that wouldn’t be just, that
wouldn’t be reasonable.
….
As can be seen from this statement by defense counsel, Petitioner’s claim that his attorney “did not
contest the malice aforethought element” of second-degree murder is inaccurate. (Dkt. 21 at 36 n.10.)
5
MEMORANDUM DECISION AND ORDER - 27
We take the good with the bad. This is a fight, a
sudden quarrel that rises to the heat of passion among a group
of people heavily intoxicated that turned deadly.
….
…[Petitioner] will take responsibility for what he did,
but no more, no less. No more, no less.
He’s not guilty of robbery. He’s not guilty of
attempted robbery because he didn’t take anything from
anyone, and the only witness you can believe is Sergio.
Sergio didn’t hear any threat. There’s no robbery. Felony
murder evaporate, disappear [sic]. There’s no premeditation,
none.
….
[Petitioner’s] glad for this opportunity because he’s
been waiting for this for a long time. He’s not a murderer.
He’s not a killer. Irresponsible action went from that day on
among all these people, and the end result was tragedy. That
doesn’t make him a murderer, a first degree murderer, and
armed robber. No, it’s not. He’s not guilty.
(State’s Lodging A-3 at 946–71.)
The Idaho Court of Appeals made a factual finding that defense counsel did not
abandon Petitioner’s self-defense claim in closing argument, nor did he concede that
Petitioner was guilty of manslaughter: “Although [counsel’s] description of the
altercation”—a “sudden quarrel that rises to the heat of passion”—“was reflective of
language in the jury instructions on manslaughter, it does not follow that the use of such
language means trial counsel conceded that the State had proven all the elements of the
crime.” Adams II, 387 P.3d at 166.
MEMORANDUM DECISION AND ORDER - 28
This factual finding is not unreasonable under § 2254(d)(2). Defense counsel did
invoke self-defense in closing argument—twice—and never asked the jury to return a
verdict on manslaughter. As the Idaho Court of Appeals held, Petitioner’s “self-defense
theory was before the jury throughout all proceedings”:
During opening statements, trial counsel told the jury that,
during the altercation, Adams perceived a danger, feared for
his life, and extracted a knife during the fight to protect
himself. During the trial, defense counsel elicited testimony
from Adams that he felt that he was in danger in fighting two
men and was forced to defend himself from the attack. Prior
to deliberations, the jury was instructed on the theory of selfdefense. Finally, during closing argument, trial counsel
emphasized the sudden nature of the altercation and
referenced self-defense multiple times.
Adams II, 387 P.3d at 166.
Because defense counsel’s closing argument did not do what Petitioner contends it
did, the state court did not unreasonably apply Strickland in concluding that trial
counsel’s closing argument was objectively reasonable and did not constitute deficient
performance. See 28 U.S.C. § 2254(d)(1). Counsel made a tactical decision to
acknowledge that the altercation was an unfortunate fight between drunk people and to
focus on the lack of premeditation and malice aforethought, rather than to focus
exclusively, or heavily, on Petitioner’s claim of self-defense. Counsel likely—and
reasonably—determined that, given the strength of the state’s case, an acquittal on all
charges was improbable.
The double deference that applies when reviewing ineffective assistance claims in
habeas proceedings leaves no room for this Court, with the benefit of hindsight, to
MEMORANDUM DECISION AND ORDER - 29
second-guess the tactical decision of Petitioner’s counsel, i.e., to focus primarily on
downplaying Petitioner’s conduct so that the jury might compromise on manslaughter,
while not abandoning the self-defense claim entirely. Pinholster, 131 S. Ct. at 1403;
Strickland, 466 U.S. at 689. Thus, Petitioner has not shown that trial counsel performed
deficiently, and Claim 4 must be denied.
2.
The Idaho Court of Appeals Reasonably Rejected Petitioner’s Claim of Juror
Bias (Claim 5)
In Claim 5, Petitioner argues that the trial judge should have excused Juror No.
608 sua sponte for cause, based on that juror’s statements during jury selection.
During voir dire, the prosecutor asked potential Juror No. 608 about her previous
experience as a juror in a criminal case. She described that experience as follows:
…I was disappointed. At the end, the prosecutor said if you
have questions, you know, stay in the room and we'll come in
and answer. And I didn't like that, as jurors, we weren't given
what I thought was all of the information, you know, that the
courts are very selective about what jurors can hear. It's like
we want you to sit up there, we want you to rule or do
whatever it is you do, but we're only going to give you this
little piece, and then you have to make your decision with
that. I wanted—the things that he told us afterwards about the
case that he could not present, I didn't understand the reasons
why they couldn't, so I didn't care for that.
....
…I didn't like having to—it was like every three minutes a
word would be mentioned, and it's, oh, juror, leave, come
back in five minutes, three minutes. Later a word is
mentioned. Oh, jury's got to leave. It was like, you know,
either stop saying the word or tell us what you're not telling
us.
(State’s Lodging A-2 at 249–50.)
MEMORANDUM DECISION AND ORDER - 30
Defense counsel followed up with Juror No. 608 on this issue as follows:
DEFENSE COUNSEL: You know, there might be an
occasion, an instance or an occasion where we might have to
take up some legal issues, and we might have to do that in the
absence of the jury.
JUROR NO. 608: Yes
DEFENSE COUNSEL: That we might have to excuse the
jury. Will you promise me that you will not hold that against
either myself or the State if that happens in this case?
JUROR NO. 608: Do I promise? No.
DEFENSE COUNSEL: You cannot promise that?
JUROR NO. 608: (Shakes head.)
DEFENSE COUNSEL: Okay. At least will you be willing to
promise me that you will not be willing to hold that against
Mr. Adams, the individual I'm trying to help over here?
THE COURT: Counsel, with all due respect, I'm not going to
allow you to require her to promise.
DEFENSE COUNSEL: Okay. Will you be willing to do your
best to make sure if that happens in this case, you do not hold
that against Mr. Adams, the individual I'm trying to help in
this case?
JUROR NO. 608: Yes, I will do my best.
DEFENSE COUNSEL: You will do your best. That's all we
can ask for….
(Id. at 313–14.) Petitioner’s counsel did not challenge Juror No. 608 for cause or
exercise a peremptory challenge. Adams I, 216 P.3d at 150.
MEMORANDUM DECISION AND ORDER - 31
A.
Clearly-Established Law
The Sixth and Fourteenth Amendments guarantee a defendant the right to an
impartial jury. The constitutional standard for juror impartiality is whether the juror “can
lay aside his impression or opinion and render a verdict based on the evidence presented
in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961). A juror should be excused for cause if
a particular belief will “prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412,
424 (1985).
A judge’s findings on whether a juror is biased, and thus should be removed for
cause, are presumed correct absent clear and convincing evidence to the contrary. 28
U.S.C. § 2254(e)(1); Smith v. Phillips, 455 U.S. 209, 218 (1982); see also Uttecht v.
Brown, 551 U.S. 1, 9 (2007) (“[I]n determining whether [to remove] a potential juror…,
the trial court makes a judgment based in part on the demeanor of the juror, a judgment
owed deference by reviewing courts.”). It is the trial court that “is in a position to assess
the demeanor of the venire, and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of potential jurors.” Uttecht, 551
U.S. at 9.
B.
Petitioner Is Not Entitled to Relief on Claim 5
Petitioner argues that the trial court should have excused Juror No. 608 sua sponte
as biased. Because trial counsel did not object to the seating of Juror No. 608, the Idaho
Court of Appeals reviewed Claim 5 for fundamental error. Adams I, 216 P.3d at 150. The
MEMORANDUM DECISION AND ORDER - 32
state court found that Juror No. 608 did not have a “clear bias against the defense” and,
thus, that there was no fundamental error:
At no time did the juror indicate that she was biased against
criminal defendants or in favor of the State. Instead, the juror
disclosed that she resented the removal of the jurors from the
courtroom when attorneys’ objections required discussion in
the jury's absence, and that if this occurred at Adams’ trial she
would not promise not to hold it against the defense attorney
or the prosecutor. She expressed resentment toward a part of
the trial process, not toward either party.
Id. at 151 (internal quotation marks omitted).
The Ninth Circuit and other appellate courts have held that a trial court has a duty
to excuse a juror for cause sua sponte—meaning without a request by either party—when
a juror makes statements during jury selection that demonstrate actual bias. United States
v. Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009); see also Franklin v. Anderson, 434 F.3d
412, 428 (6th Cir. 2006) (trial court “had a duty to dismiss a prospective juror who could
not follow the law”); United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (stating that
“the presiding trial judge has the authority and responsibility, either sua sponte or upon
counsel’s motion, to dismiss prospective jurors for cause”); cf. United States v.
Simmons, 961 F.2d 183, 184–86 (11th Cir. 1992) (finding no abuse of discretion in
district court’s failure to excuse jurors sua sponte for cause). The court in Mitchell held
that, where “no motion was made during jury selection to dismiss the juror in question for
cause, [a petitioner] … must show that the evidence of partiality before the district court
was so indicative of impermissible juror bias that the court was obliged to strike [the
juror], even though neither counsel made the request.” 568 F.3d at 1151.
MEMORANDUM DECISION AND ORDER - 33
But this Court has found no United States Supreme Court precedent clearly
establishing that a trial judge has a duty to excuse prospective jurors for cause in the
absence of a motion by one of the parties. See, e.g., Cage v. McCaughtry, 305 F.3d 625,
626–27 (7th Cir. 2002) (“The absence of a case in the Supreme Court … declaring such a
rule [requiring sua sponte dismissal of juror who gave ‘potentially equivocal assurances
of impartiality’] is not surprising. There is nothing suspicious about a lawyer’s refusing to
strike a prospective juror for cause. The lawyer might feel that on balance the juror was
more likely to vote for than against his client.”). In a context different from that presented
here—specifically, in the context of the potential for racial bias of jurors in a capital
case—the Supreme Court has held that “a capital defendant accused of an interracial
crime is entitled to have prospective jurors informed of the race of the victim and
questioned on the issue of racial bias.” Turner v. Murray, 476 U.S. 28, 36–37, 37 n.10
(1986). However, the Turner Court expressly stated, “Should defendant’s counsel decline
to request voir dire on the subject of racial prejudice, we in no way require or suggest the
judge broach the topic sua sponte.” Id. at 37 n.10.
Because “[t]he Supreme Court has never announced” a rule that a trial judge “has
an obligation to dismiss a juror for cause even if no lawyer objects,” Cage, 305 F.3d at
626, the Idaho Court of Appeals’ decision was not unreasonable under § 2254(d)(1). And
Petitioner has not established that the factual finding of the state court—that Juror 608
was not biased—was unreasonable under § 2254(d)(2). Thus, Petitioner is not entitled to
MEMORANDUM DECISION AND ORDER - 34
habeas relief on his claim that the trial judge should have excused Juror No. 608 sua
sponte. See 28 U.S.C. § 2254(d)(1).
3.
The Idaho Court of Appeals Reasonably Rejected Petitioner’s Prosecutorial
Misconduct Claim (Claim 6)
Claim 6 asserts that the prosecutor committed misconduct in rebuttal closing
argument by “appeal[ing] to the passions and
In rebuttal closing argument, the prosecutor ended with the following statement:
So I just want to make it real clear what it is that we are
asking for….
…
We spoke at the beginning about how on March 11 of
‘06, Clayton Adams was in the driver’s seat, how he’s not
anymore, that you are. And as you take that wheel and we
slide into the back seat, mere passengers at this point, we ask
one thing, that you take us home, home to justice, justice for
Mike Campbell who watched his friend die, justice for
Stephen Maylin who got stabbed trying to run away from
someone he didn’t even know, justice for Tyler Gorley whose
death is the reason we are here and whose life is insulted by
the story that he wants you to believe, and justice for Clayton
Adams who did these things, who you know committed these
crimes, and who thought so little of it, that he went and
bought beer.
We ask for justice. Thank you.
(State’s Lodging A-3 at 974-75.)
A.
Clearly-Established Law
The Due Process Clause guarantees the right to a fair trial, and prosecutors have a
“duty to refrain from improper methods calculated to produce a wrongful conviction.”
Berger v. United States, 295 U.S. 78, 88 (1935). However, such methods will warrant
MEMORANDUM DECISION AND ORDER - 35
habeas relief only if they “‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 180 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
A court must consider the record as a whole when making such a determination,
because even a prosecutor’s inappropriate or erroneous comments or conduct may not be
sufficient to undermine the fairness of the proceedings when viewed in context. See
United States v. Young, 470 U.S. 1, 16-17 (1985); Darden, 477 U.S. at 182 (applying
Young); see also Donnelly, 416 U.S. at 647-48 (distinguishing between “ordinary trial
error of a prosecutor” and the type of “egregious misconduct . . . [that] amount[s] to the
denial of constitutional due process”). “[T]he touchstone of due process analysis in cases
of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
A prosecutor “should not use arguments calculated to inflame the passions or
prejudices of the jury.” Darden, 477 U.S. at 192 (internal quotation marks omitted).
However, a prosecutor’s closing argument, “billed in advance to the jury as a matter of
opinion not of evidence,” is “seldom carefully constructed” and may contain “[i]solated
passages” that are “less than crystal clear.” Donnelly, 416 U.S. at 646-47. Therefore, a
court must not “lightly infer that a prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.” Id. at 647.
MEMORANDUM DECISION AND ORDER - 36
When reviewing prosecutorial misconduct claims under the “unreasonable
application” prong of § 2254(d)(1), the Court must keep in mind that the due process
standard is a “very general one” that affords state courts “leeway in reaching outcomes in
case-by-case determinations.” Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam)
(internal quotation marks and alterations omitted).
B.
The Idaho Court of Appeals Reasonably Rejected Claim 6
Because trial counsel did not object to the prosecutor’s argument, the state
appellate court reviewed Petitioner’s prosecutorial misconduct claim under the
fundamental error doctrine. Adams I, 216 P.3d at 152. The court began by setting forth
the types of cases where a prosecutor’s closing argument was so “patent, repeated and
egregious” that it warranted reversal—cases where the prosecutor (1) “repeatedly and
improperly appealed to the emotions of the jury by arguing that the jury should be upset
and irritated by trial evidence that he attributed to the defense, but that was actually
elicited by the prosecution”; (2) “misstated the evidence, misstated the law by
grotesquely mischaracterizing the defendant’s defense, and repeatedly appealed to the
jury to decide the case on factors other than evidence of guilt”; or (3) “repeatedly
disparaged defense counsel by implying that the defense attorney participated in or
facilitated the defendant’s ‘lies,’ asked the jury to rely on the prosecutor’s selfproclaimed trustworthiness and integrity and that of the arresting officer, and appealed to
the emotion and passion of the jury by asking its members to step into the shoes of a
hypothetical victim of the defendant’s alleged drunk driving.” Adams I, 216 P.3d at 152.
MEMORANDUM DECISION AND ORDER - 37
The court of appeals then held that, unlike in those other cases, the prosecutor’s
statement at Petitioner’s trial did not constitute fundamental error:
First, it is permissible for a prosecutor to ask the jury to do
justice if that request is in the context of argument addressing
how trial evidence demonstrates the defendant’s guilt. Justice
is, after all, the goal of any criminal trial. If the prosecutor’s
requests here for justice for the victims, or his reference to the
evidence of Adams’ indifference to his stabbing victims, can
be viewed as straying into the realm of emotion, it does not
approach the level of egregiousness necessary to constitute
fundamental error. These concluding remarks in the
prosecutor’s rebuttal argument came immediately after his
description of how the trial evidence proved Adams’ guilt,
and it does not amount to an inflammatory appeal for the jury
to render its decision on anything other than the evidence
adduced at trial.
Id. at 153.
This decision was not unreasonable under § 2254(d). The prosecutor’s brief
statement, while perhaps framed to elicit sympathy and emotion, did not “so infect[] the
trial with unfairness” as to violate due process. Darden, 477 U.S. at 180 (internal
quotation marks omitted). Therefore, Petitioner is not entitled to relief on his
prosecutorial misconduct claim.
4.
The Idaho Court of Appeals Reasonably Rejected Petitioner’s Cumulative
Error Claim (Claim 7)
Claim 7 asserts that the “cumulative impact of the[] errors” in Claims 1 through 6
requires habeas relief.
The Ninth Circuit has determined that the doctrine of cumulative error has been
clearly established by the United States Supreme Court. Parle v. Runnels, 505 F.3d 922,
927 (9th Cir. 2007). Under cumulative error principles, “the combined effect of multiple
MEMORANDUM DECISION AND ORDER - 38
trial court errors violates due process where it renders the resulting criminal trial
fundamentally unfair,” even if each of the errors, taken alone, would not require reversal.
Id.
Habeas relief is warranted for cumulative error “only where the errors have ‘so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Id. (quoting Donnelly, 416 U.S. at 643). This occurs when a petitioner can
show that the prejudice standard set forth in Brecht, 507 U.S. at 637, has been met. Parle,
505 F.3d at 927. “In simpler terms, where the combined effect of individually harmless
errors renders a criminal defense far less persuasive than it might otherwise have been,
the resulting conviction violates due process.” Id. (alteration and internal quotation marks
omitted).
However, cumulative error presupposes error, and the Idaho Court of Appeals
found no error with respect to any of Petitioner’s habeas claims. Adams II, 387 P.3d at
168 (“Because Adams has failed to make a necessary showing he is entitled to relief on
any of his ineffective assistance of counsel claims, the doctrine of cumulative error has
no applicability in this case.”) (post-conviction appeal finding no ineffective assistance in
Claims 1 through 4); Adams I, 216 P.3d at 151 (direct appeal finding no fundamental
error in Claim 5 or Claim 6). Because that state court reasonably found no error with
respect to any of Petitioner’s current habeas claims, see 28 U.S.C. § 2254(d), Petitioner is
not entitled to relief pursuant to the cumulative error doctrine.
MEMORANDUM DECISION AND ORDER - 39
CONCLUSION
The Idaho Court of Appeals’ rejection of Petitioner’s habeas claims was not
contrary to, or an application of, clearly established Supreme Court precedent, nor was it
based on an unreasonable factual finding. Therefore, Petitioner is not entitled to habeas
relief under 28 U.S.C. § 2254(d).
ORDER
IT IS ORDERED:
1.
The Petition for Writ of Habeas Corpus (Dkt. 1) 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. 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: September 30, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 40
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