Brackett v. Yordy
Filing
56
MEMORANDUM DECISION and ORDER - Petitioners Motion Requesting Oral Argument or to Appoint Counsel (Dkt. 54 ) is DENIED in part; Petitioners Motion for a Ruling (Dkt. 54 ) is GRANTED in part. The Amended Petition, and this entire case, are DISMISSED with prejudice. No certificate of appealability will issue. If Petitioner files a timely notice of appeal, the Clerk of Court shall forward a copy of the notice of appeal, together with this Order, to the United States Court of Appeals for the Ninth Circuit. Signed by Judge David C. Nye. (lm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT BRACKETT,
Case No. 1:17-cv-00281-DCN
Petitioner,
MEMORANDUM DECISION
AND ORDER
v.
LAWRENCE WASDEN and JOSH
TEWALT,
Respondents.
Petitioner Robert Brackett (“Petitioner”), a former prisoner who is now on parole,
is proceeding on his Amended Petition for Writ of Habeas Corpus challenging his state
court convictions. Dkt. 28. Respondents Lawrence Wasden and Josh Tewalt (collectively
“Respondent”) filed a Response and Brief in Support of Dismissal, Petitioner filed a Reply,
and Respondent filed a Sur-Reply. Dkts. 37, 49, 53.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings lodged by the parties. Dkts. 11, 36, 40,1 and various individual records
attached as exhibits to Petitioner’s filings. See Fed. R. Evid. 201(b); Dawson v. Mahoney,
451 F.3d 550, 551 (9th Cir. 2006).
Having carefully reviewed the record, including the state court record, the Court
1
All page number references to the trial transcript, found at State’s Lodging A-7, are to the transcripts
internal pages (four per page), and not to the lodging page numbers.
MEMORANDUM DECISION AND ORDER - 1
finds that the parties have adequately presented the facts and legal arguments in the briefs
and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, for the
reasons explained below, the Court enters the following Order denying the Petition for Writ
of Habeas Corpus.
BACKGROUND
1. Factual and Legal Basis of the Criminal Charges
Petitioner characterizes the background facts regarding his dealings with the minor
victim, N.B. (or N.M.B.) and his difficulties with his proposed trial evidence, as follows:
In January of 2011 42 year old Robert Brackett was accused of
having a relationship with 16-year old N.M.B. in which he met
on several different occasions at multiple different nightclubs
and/or bars, as N.M.B. had falsified her identification of that
of an adult. The defendant denied the allegations. At trial the
defendant tried to bring to light the many previous false
allegations made by N.M.B. regarding her father Robert Bailey
to local authorities. However, the court rules this information
was not admissible. Further the defendant attempted to make
the jury aware of the issue of N.M.B. falsifying her
identification and frequenting adult establishments. Again this
defense was denied and ruled irrelevant and not admissible.
State’s Lodging B-3, p. 3 (verbatim). 2
On a tip from a third party that 16-year-old N.B. had a 40-something boyfriend who
2
The Idaho Court of Appeals’ opinion wrongly states that Petitioner was 46 years old when the crimes
occurred. See State’s Lodging A-12, pp. 1-2. Rather, he was 42, as set forth in the charging documents. See
State’s Lodging A-3, p. 186; Petitioner’s Reply, Dkt. 49, pp. 1-2. At trial, it was made clear that he was 42.
See State’s Lodging A-7, p. 281 (In closing argument the prosecutor argued: “In October of 2010, Robert
Brackett was 42 years old. Look at Exhibit 92. This will tell you his date of birth and his age.” The Court
has not relied on this mistake in the state appellate record. To the reasonable adult, however, there is little
difference between whether a 42-year-old adult had a sexual relationship with a 16-year-old high school
student, or a 46-year-old had a relationship with a 16-year-old high school student. Both are strictly
prohibited by the laws of the state of Idaho.
MEMORANDUM DECISION AND ORDER - 2
had burned her arm with a cigarette lighter during an argument, two female Idaho
Department of Health and Welfare officials and a female police detective called N.B. into
a meeting at the high school to ask her about the relationship. State’s Lodging A-7, pp. 19798. N.B. told Detective Jocelyne Nunnally two or three times that nothing had happened
between N.B. and Petitioner, that she did not want to talk about it, and that she “had already
taken care of it.” Id., p. 197. However, after about five minutes, when N.B. was asked about
a mark on her arm, N.B. told Detective Nunally something did happen. Id., pp. 199-200,
418-19, 519-20, 2461.
On January 13, 2011, N.B. revealed to other police investigators that she had been
involved in a sexual relationship with Petitioner from about October 2010 to January 2011.
State’s Lodging A-1, p. 1006. Eric Barzee, the officer who prepared the affidavit in support
of the criminal complaint, stated that N.B. also said Petitioner had taken sexual pictures of
her with her black camera kept at Petitioner’s house. State’s Lodging A-3, p. 127.
During the last several weeks of Petitioner and N.B.’s relationship. Petitioner’s adult
daughter, Summer Brackett, moved in with Petitioner. Summer kept her personal items in
a cardboard box in the living room. State’s Lodging A-7, pp. 1148-1149.
On January 14, 2011, investigators obtained a search warrant for Petitioner’s home
and vehicle; the black camera N.B. had described was listed in the warrant. State’s Lodging
A-7, pp. 834-38. Detectives found a silver Nikon 4600 Coolpix camera on the living room
entertainment stand. Id, pp. 658, 803, 820, 836-838. No SD memory card was in the Nikon.
Id., p. 1298. It had an internal memory; later, 74 non-exploitative pictures were retrieved
from it. Id., pp. 1299-1300.
MEMORANDUM DECISION AND ORDER - 3
A Nokia T-Mobile phone was found in Petitioner’s car. Id., p. 838-839. A Samsung
cell phone identified as Petitioner’s primary phone was found between the driver’s seat and
center console. Id., pp. 2176-77. N.B.’s parents allowed her Verizon LG phone to be
examined and placed into evidence. Id., p. 875. Detectives found no nude photos on N.B’s
cell phone. Id., p. 1606.
Later, when examining Petitioner’s cell phone, investigators found that Petitioner
had sent a text message to Summer on January 14, telling her to erase the pictures on the
camera that was in her personal box. Id., pp. 17-19, 2831-2832; see State’s Lodging A-3,
pp. 291-301. Petitioner stated at trial that he never asked his daughter, Summer, to erase
images from a camera of an explicit nature, just images from a party. Id., p. 2717.
Investigators did not find the black camera they were looking for during their first
search, conducted in Summer’s presence. Id., pp. 1814-1815. After investigators left
Petitioner’s home, Summer sent them a message that she had found the camera in a box of
her personal property. Investigators obtained a second search warrant and returned to
retrieve the camera from Summer. State’s Lodging A-3, pp. 127-129. The camera was a
black Samsung SL600 camera, serial number BI1026516095D, in a gray soft case. State’s
Lodging A-7, p. 11 (referencing State’s Exhibit 19), pp. 196, 846-848, 1847.
At trial, N.B. testified that “Bud” [later identified as Jack Omohundro] gave her the
black Samsung camera. She left it at Petitioner’s house and took it out when she and
Petitioner would go somewhere, but she never took it home. State’s Lodging A-7, pp. 252254. She testified Petitioner took pictures of her with that camera (hereafter, the camera
will be referred to as “Petitioner’s camera”). Id., p. 253. She testified that Petitioner took
MEMORANDUM DECISION AND ORDER - 4
pictures of her at Bud’s house on Petitioner’s camera, that she and Petitioner scrolled
through them together, and that, later, Petitioner told her he had erased them. Id., pp. 299300.
Petitioner was arrested and arraigned on January 14, 2011, after a recorded policemonitored confrontation call between N.B. and Petitioner. Id., pp. 539-543. Detectives
obtained a third search warrant to search the Nikon and Samsung cameras and the blue
SanDisk 8-gigabyte SD card in the Samsung camera. See State’s Lodging A-9, p. 14.
Petitioner’s black Samsung camera was taken to the FBI’s Intermountain West
Regional Computer Forensic Laboratory. Forensic examiner Don Lukasik recovered at
least 269 deleted images from the SD card in Petitioner’s camera. The images showed
N.B.’s exposed vagina, N.B.’s hand touching a naked penis, and N.B.’s mouth touching a
naked penis held in a man’s hand. The detective prepared a forensic report of his analysis
of the SD card, which included images recovered from the SD card. State’s Lodging A-12,
p. 10. Detective Barzee concluded that the images constituted “sexually exploitative
material because N.B. was under the age of sixteen [sic].” Id., p. 128.
The 269 images were recovered from the SD card using the programs “Cellbrite,”
and “Zippy Reporting Tool” (ZRT). State’s Lodging A-7, p. 1594; see State’s Trial Exhibit
91 (Cellbrite report), referenced in State’s Lodging A-7, p. 15. Detective Lukasik explained
that when data is deleted from an electronic device, it is not “erased” until it is overwritten
by new data. Once overwritten, the old data is replaced and is irretrievable. State’s Lodging
A-7, pp. 1273, 1279-81. He explained how to use an “Nv5 hash value” verification of the
MEMORANDUM DECISION AND ORDER - 5
image at the beginning and the end of the examination to make sure that the nothing had
changed during the examination. Id., pp. 1618-1619, 2030.
Detective Lukasik explained that he also used a program called “IrfanView” to
extract EXIF (“exchangeable image file”) information from the digital photographs. Id.,
pp. 1351-1352. EXIF is information about a camera that is embedded into a photograph,
such as the type of camera and the shutter speed. Id., pp. 1350-1351.
Detective Lukasik found the sexually exploitative images on the SanDisk memory
card inside Petitioner’s camera. Id., p. 803, 1312-1314, 2072, 2156; see Trial Exhibit 152.
The examination of the SD card was made on February 8, 2011; the internal memory of
the camera (which needed an external cable) was examined on February 22, 2011. State’s
Lodging A-7, pp. 1329, 1322. No nude photos were found on Petitioner’s camera’s internal
memory. Id., p. 717.
When Detective Lukasik finished his forensic examination, he put the SD card back
into Petitioner’s camera, and the camera back into his evidence locker. Id., p. 1335. He
prepared a forensic report with photographs. At trial, Detective Lukasik testified that the
exploitative photos had come from the SD card in Petitioner’s camera, had been deleted by
someone, had been restored by the Cellbrite program, and did correspond with the dates of
the charged crimes. See State’s Lodging A-7.
After N.B. disclosed that Petitioner had taken photographs of her at “Bud’s house,”
see State’s Lodging A-7, p. 346, detectives served a search warrant on Jack “Bud”
Omohundro and retrieved Omohundro’s personal camera, which was the same model as
Petitioner’s camera. The Omohundro camera had a different serial number
MEMORANDUM DECISION AND ORDER - 6
(7385C90ZA17027J) than Petitioner’s camera (BI1026516095D). Compare Dkt. 49-11, p.
2 with State’s Lodging B-1, p. 299.
Analysis revealed that Omohundro had images of N.B. clothed and in red
underwear. State’s Lodging A-7, pp. 1836, 1855. He also had pornographic photographs of
adult women. State’s Lodging A-9, p. 42. The investigator found that photoshopping edits
had been made on the adult women’s photos on “the Omohundro CD,” but none of the
edited photos were of N.B. Id., pp. 2155-2156.
At trial, Omohundro testified that he met N.B. at the Oasis Bar on Halloween 2010,
where she was with Petitioner. State’s Lodging A-7, p. 1211. Omohundro testified that he
saw Petitioner take photos of N.B. at Omohundro’s house. Id., p. 1213. He testified that his
“landlady is an exotic dancer” who had installed what N.B. called a “stripper pole” in the
bedroom before renting it to him. Id., pp. 271, 1313.
2. The Two Different Cases against Petitioner and Petitioner’s Legal
Representation during Trial
In Criminal Case CR-2011-692, filed on January 18, 2011, prosecutors charged
Petitioner with seven counts of battery of a child, arising between October 1, 2010, and
January 9, 2011, and one count of kidnaping (not for ransom), from January 9, 2011.
See State’s Lodging A-1.
During the pendency of the first case, prosecutors brought a second separate
criminal case against Petitioner, CR-2011-8021, on July 26, 2011. That action charged
MEMORANDUM DECISION AND ORDER - 7
twelve counts of use of a child in sexually exploitative3 material, and two counts of sexual
battery by making sexually exploitative photographs of a minor child, all arising from a
different date (January 18, 2011) than the charges in the first action. When the second
action was originally filed, it had no charges in common with the charges in the first case.
See State’s Lodging A-3, pp. 68-74.
In the first case, four successive attorneys were appointed to represent Petitioner.
All withdrew. Petitioner reports that, first, Sam Beus withdrew because of a conflict of
interest; second, Loren Bingham withdrew on “religious” grounds; third, Tim Williams
withdrew because of a potential conflict of interest. Dkt. 49, pp. 39-41. Petitioner filed a
letter of complaint with the Idaho Bar Association against his fourth attorney, Joe
Rockstahl, who then withdrew on the basis of a breakdown of the attorney-client
relationship. State’s Lodging A-6, pp. 224-226.
When the fifth attorney, David Haley, was appointed, Petitioner refused to waive
his speedy trial rights to allow Haley to get up to speed on the case. On September 2, 2011,
with the first case having been pending nine months, the state stipulated that Petitioner had
been prejudiced by the delay and agreed to dismiss the charges. After some discussion, Mr.
Haley and the prosecutor agreed that the court would dismiss the charges without prejudice.
State’s Lodging A-1.
On September 8, 2011, the prosecutor filed an amended information in the second
3
The charging informations use the term “exploitive,” while the statute uses “exploitative.” The state
district court pointed that out to the parties during the course of proceedings, and the difference is not
material to the Court’s decision here.
MEMORANDUM DECISION AND ORDER - 8
action, adding in some of the first action’s charges that had been dismissed without
prejudice. State’s Lodging A-3, pp. 117-125. The amended information contained 16
charges in total. The information was amended several additional times. Eventually,
Petitioner was tried on 15 charges: eight counts of possession of material sexually
exploiting a child, one count of sexual battery of a child by taking sexually exploitative
photographs of a child, and six counts of sexual battery by having lewd and lascivious
contact with a child.
During the new case, Mr. Haley, Petitioner’s fifth attorney, withdrew “based on
differences in opinion between counsel and defendant as to the integrity of the local judicial
system itself, together with differences in opinion as to preliminary hearing and trial
strategy, which have or in all likelihood will lead to breakdown in the attorney-client
relationship.” State’s Lodgings A-3, p. 109; A-6, p. 225.
After that, a sixth attorney, Dan Brown, was appointed to represent Petitioner. On
March 5, 2012, the day of the scheduled jury trial, the court heard Petitioner’s pretrial
motions in Courtroom 3, because the jury was seated in Courtroom 1. At that time,
Petitioner asked to represent himself for the following reasons, as articulated by Mr.
Brown: “The reason he wishes to represent himself is because he is knowledgeable as to
my role as his attorney; and, therefore, I make the decisions as his attorney; and therefore,
I make the decisions as to the witnesses to be called and the questions to be asked and that
it is Mr. Brackett’s desire apparently to call his own witnesses and ask his own questions.”
State’s Lodging A-5, p. 220. Petitioner agreed to keep Mr. Brown on as stand-by counsel.
MEMORANDUM DECISION AND ORDER - 9
In this midst of these problems over representation, on March 27, 2012, during a
bond reduction hearing, Petitioner notified the court that his former roommate had died.
The court asked Petitioner what he anticipated as to the jurors waiting to go to trial
that morning. “Is it your request to proceed immediately this morning, or are you requesting
a continuance of the court in this case?” Id., p. 221. Petitioner replied: “I need to overlook
some evidence that’s been delayed on my viewing. So, yes, I would ask for a continuance,
Your Honor.” Id. The court continue the trial until October 29, 2012, to permit Petitioner
adequate time to prepare to represent himself at trial.
On July 20, 2012, Petitioner asked to have Mr. Brown withdrawn as stand-by
counsel, because Petitioner said there was huge lack of communication and Mr. Brown was
too busy to work on his case. Mr. Brown confirmed that Petitioner told him Mr. Brown
wasn’t acting in his best interest. Mr. Brown completely disagreed, but said the allegations
had caused the attorney-client relationship or the communication between them to be
broken down. State’s Lodgings A-3, pp. 1160-1163. Mr. Brown said: “Defendant has made
repeated accusations towards your Affiant’s office that we are somehow involved in a
conspiracy against him.” Id., p. 1163.
3. Disclosure and Discovery of Evidence During Trial
Evidentiary issues were complicated by Petitioner’s pretrial detainee and pro se
status and limitations imposed by Idaho’s “Rape Shield Act” and the state counterpart to
Adam Walsh Child and Protection Safety Act of 2006,4 Idaho Criminal Rule 16(m), which
4
Pub. L. 109–248, §§ 1–707, (H.R. 4472), 120 Stat. 587.
MEMORANDUM DECISION AND ORDER - 10
provides that “sexually exploitive material must remain in the care, custody, and control of
the court or a law enforcement agency and that a court shall deny any request to reproduce
any sexually exploitative material,” so long as it is made reasonably available to the
defendant. State’s Lodging A-12, p. 12. Idaho Criminal Rule 16(m)(3) states that evidence
shall be deemed to be reasonably available if the State provides “ampl[e] opportunity for
inspection, viewing, and examination of the property by the defendant, defense counsel,
and any individual the defendant may seek to qualify to furnish expert testimony at trial.”
To comply with Rule 16(m), the trial court provided Petitioner with an opportunity to
access the evidence at the courthouse.
As to access to the original electronic evidence, prior to the first trial Petitioner
sought and was granted access, as follows:
The court GRANTS IN PART and DENIES IN PART [the
Motion for Order for Defendant to View and Examine Original
Devices Samsung Camera, San Disk Memory Card and Nikon
Camera and Plaintiff[’]s phone with Micro SD card with and
in the presence of Defense Expert Chris Pavan and Order for
Transport, filed June 12, 2012]. The defendant may inspect the
original devises [sic] with his expert. However, this court will
not order that the devices and the defendant be transported to
another location. The defendant and his expert must coordinate
with the county jail and agents for the state to establish a
protocol for such a view. Therefore, the portion requesting that
the defendant be able to view and examine the original devises
[sic] with his expert is GRANTED, while his requested order
to be transported is DENIED.
State’s Lodging A-3, p. 1182.
It is clear from the record that Petitioner had a CD copy of Detective Lukasik’s
report, the photographs retrieved from the SD card, a CD of metadata from the forensic
MEMORANDUM DECISION AND ORDER - 11
analysis, and the Omohundro CD. See State’s Lodging A-10, pp. 26-31. On March 27,
2012, the trial court ordered that “a computer be provided to the defendant for his use to
view the discs.” State’s Lodging A-3, p. 2306. The Twin Falls County Jail arranged for
Petitioner to have access to the evidentiary materials at the jail. See State’s Lodging A-8.
In the course of Petitioner’s review of the forensic report and photographs,
Petitioner asserted that sequentially-numbered photographs found in the forensic
examination were missing—meaning that the prosecution had “cherry-picked” and
provided only those images it wanted to use in its prosecution. Julie Sturgill, the prosecutor,
responded that the missing photographs were merely duplicates; she asked Detective
Lukasik to produce a CD with copies of the duplicates to provide to Petitioner and Franklin
Hall, petitioner’s investigator, but represented that the information on the new CD would
be merely duplicative. There was a dispute as to whether Petitioner already had the
“duplicate” images, but the Court stated:
Well, I think the difficulty for Mr. Brackett is, he’s trying to
put this case together, and he's made that choice to do so; but
at the same time, to me, the effort to burn another disk is not
astronomical. I would order it to be done irrespective of the
distinction or disagreement between apparently what Mr. Hall
is saying to the state and what Mr. Brackett is telling the court.
State’s Lodging A-5, pp. 564-565.
Regarding access to the metadata of the photographic images, the trial court stated:
Well, Mr. Brackett, the court stands behind your ability to
prepare your defense and access this information. I guess, in
terms of manpower issues for the bailiffs and the court security
officers, if there is a way to facilitate this to where it could be
done in some conference room in the criminal justice facility,
I don't think Ms. Sturgill [the prosecutor] or I or anyone else
MEMORANDUM DECISION AND ORDER - 12
stands in the way of that. I think we can be proactive. But until
there’s some other means, Mr. Brackett has access to the
courthouse and the information.
Prepare an order, please, that allows you access to the material.
The only reason I made the statement about trying to work out
something less intrusive, perhaps then you aren’t having to be
brought up in cuffs and that kind of thing. I don’t know what
exists. Bruce, I don’t know if there is anything available. I just
state that, if there's a way to make it easier for both sides, great.
If not, then the method you've used is what you have, and you
will have to figure out a way to make it happen, for you to be
able to access the information. It’s impossible for us to know,
just looking at these numbers, what relevance they have to you.
You know that. You represent you need more time. You get it.
State’s Lodging A-5, pp. 511-513.
The state court record reflects that the trial court went to great lengths to determine
whether Petitioner had access to all of the evidence he said he needed. The Court finds that
the following characterization of the record by the State is an accurate summary:
On August 16, 2012, approximately two and a half
months prior to his first trial, Brackett filed a motion to compel
a “copy of all non-sensitive images, files, video[s], audio from
devices imaged by state expert witness Don Lukasik from the
IWRCFL to include all EXIF, JEPG information.” In a
subsequent order, the district court noted that, “[t]he body of
[Brackett’s] motion provides no more information on the
actual request but does request that the information be provided
to the defendant’s investigator so that it can be taken to the
jail.” The court then continued that while it would permit a
hearing on the motion, it was “incumbent upon the defendant
to identify specifically (1) what materials he believes have yet
to [be] provided by the state to him and (2) in what format he
wishes to receive those materials. Only then can the court
consider granting the defendant’s motion.”
A hearing on Brackett’s motion was conducted on August 22,
2012. At the hearing, Brackett asserted that he had not yet been
provided the “exact reports” that Detective Lukasik imaged
MEMORANDUM DECISION AND ORDER - 13
from the SD card that was recovered from the seized Samsung
camera. Brackett [responded]:
I have now three different devices that have contained
three – there’s different things on each different disk.
There’s something different on this disk. Something
different on this disk. I have a zip drive that was emailed to one of the expert witnesses for the defense,
directly from Lukasik; and that zip drive itself contains
no images, just the image number and the metadata. It
has way more images than should be on those disks and
stuff that are [sic] missing; and that’s in the possession
of my investigator. And I’m just not understanding why
I can’t get the exact copy of everything that Don
Lukasik did and why can’t my investigator speak with
him.
In response, the state discussed its disclosures relating
to one of the exhibits specifically referenced by Brackett,
“state’s exhibit 30” from the preliminary hearing. This exhibit
was a “DC disk containing [a] copy of images retrieved by Mr.
[Lukasik] from the Samsung digital camera.”
The state explained that it had previously disclosed and
provided to Brackett an “exact copy” of this exhibit. However,
while this copy contained all of the metadata associated with
the images, it did not include all of the EXIF information that
is embedded into the images. Because Brackett had requested
access to this EXIF information, the state separately disclosed
and provided that information to Brackett. On this disclosure
of EXIF data, the state “blacked out the pictures” that were
associated with the data. However, between the various
formats of disclosure, the state told the court that Bracket “has
one way to get [the EXIF information] in one, and then another
with all the metadata.” With respect to these edits, it appears
that the state was concerned about the I.C.R. 16(m) prohibition
against copying sexually explicit images.
The state further explained that it had made these copies
and disclosed and provided this additional EXIF information
in the hope that it would facilitate Brackett’s trial preparation,
in light of the fact that Bracket had limited access to his
investigator and/or computer at the jail where he was
MEMORANDUM DECISION AND ORDER - 14
incarcerated. Ultimately, the prosecutor represented to the
court it was not aware of any discoverable information
Brackett lacked with regard to his requests, and that Detective
Lukasik had told her that “what is on the [disclosed] report is
everything.”
The district court then expressed a desire to hear
testimony from Detective Lukasik, to have him “come [to
court] with everything he has, duces tecum essentially, to that
hearing,” so that the court could “get this out on the record
because who am I to believe what’s there”? The state also
expressed a willingness to set up a conference call with
Brackett’s investigator and Detective Lukasik to attempt to
determine what disclosures Brackett felt he still lacked. The
state also requested a copy of the zip drive disclosure that
Detective Lukasik provided directly to Brackett’s expert so
that it could attempt to determine what, if anything, Brackett
might be lacking. In response, Brackett stated that he “[didn’t]
want to get [himself] into an evidentiary hearing at this
moment,” and that he wanted to save such factual development
for his jury trial. The district court replied, that “if I’m going to
grant any relief to you, I have to know what he has and hasn’t
given to you.”
Rather than accept the offers of the court and the state
to help facilitate the factual development of his discovery
requests, Brackett instead elicited testimony from Franklin
Hall, his investigator. Hall testified that with regard to the
disclosures provided by the state, “[t]here definitely appears to
be some inconsistencies, and instead explained that he was “far
from an expert.”
At the conclusion of the hearing, the district court
denied both Brackett’s motion to compel, and the state’s
request to obtain a copy of the zip drive possessed by Brackett:
I’m not, as I’ve said already, here to make
findings about what has or hasn’t been done with any
evidence. I’m left with the state telling me they have
given everything they have. Mr. Brackett has a zip drive
that apparently the state doesn’t have.
MEMORANDUM DECISION AND ORDER - 15
So I will decline the request, Ms. Sturgill, at this
time and indicate that you should be able to get [the
information on the zip drive] through [Detective
Lukasik], the same thing that he sent to [Brackett’s
appointed expert] by e-mail, just a copy of the e-mail.
As to your requests, Mr. Brackett, I’m going to
also deny them, finding at this point you have more than
the state has.
If you can come forward and say this, and this is
what I need, that I don’t have and identify it, I’m happy
to order that; but at this point, I’m just in a no man’s
land.
I will also authorize under Rule 15 of the
Criminal Rules a deposition of Lukasik, if you want to
do that, wherein a deposition could be taken duces
tecum. I will certainly grant you a hearing where he
would be required to appear in the court or by telephone
to also inquire in these matters with the court present to
rule on any objections. So those options are available to
you upon your request.
The deposition is taken like a civil deposition.
The court’s not present. A court reporter would be.
Counsel for the state would be, and that would
essentially potentially work into creating a record on the
discovery resolution process, so I make that aware to
you [sic] and available to you.
But, other than that, it seems to me that I have
not a sufficient record to say one way or another what
has yet to be produced. And if Mr. Lukasik comes to a
deposition or to court with his entire file, has it available
to you, then perhaps we can mete out what from there is
missing that you still need. I’m not trying to stand in
your way. I just have to know that there are things there
that need to be ordered; and at this point I have no way
of doing that.
In response to the court’s order and offer to authorize a
deposition, Brackett stated that he did not want to conduct a
deposition of Detective Lukasik. The district court replied that
MEMORANDUM DECISION AND ORDER - 16
it was up to Brackett and his investigator to pursue his available
avenues, and noted that the dilemma Brackett faced in
attempting to facilitate his goals in discovery was based upon
his own decision to represent himself in a case this complex.
State’s Lodging A-10, pp. 26-31 (internal record citations omitted).
4. Petitioner’s Expert Witness Difficulties
The Idaho Court of Appeals outlines the history of Petitioner’s expert witness
requests, appointments, and denials as follows:
In December 2011, the district court appointed an independent
district judge or “money judge” to conduct ex parte reviews of
Brackett’s requests for funding to support expert and
investigative assistance…. On December 13, 2011, the money
judge ordered Brackett to support requests with two
documents: (1) a motion which described the need for the
funds, the requested expert’s credentials, how travel and other
expenses would be measured and billed, and a certification that
the expenditure of public funds was appropriate to make
available necessary services and facilities of representation;
and (2) an accompanying affidavit which contained a specific
estimate of the amount of public funds to be expended, a
certification that Brackett had pursued the available market for
experts, that the requested expert provided the most economic
service available in his or her field, and a certification that the
expert would provide bills on a monthly basis.
In April 2012, Brackett filed a motion requesting public funds
to support expert assistance from a computer forensic expert in
California [Chris Pavan]. The money judge authorized
Brackett to retain the expert for the upcoming trial and
approved funding in the amount of $3,000. In August 2012,
Brackett, citing jail phone restrictions [that obstructed
communication with Pavan], filed a motion requesting the
appointment of a second expert [Mark McLaughlin] to replace
the first as his forensic expert. The money judge issued an order
authorizing Brackett to retain the second expert and approved
additional funding in the amount of $5,000. Later that month,
at a hearing, Brackett told the money judge that the second
expert had done “absolutely nothing” on the case and requested
MEMORANDUM DECISION AND ORDER - 17
that the second expert not be paid. Brackett requested that the
money judge appoint a third forensic expert.
Before the money judge could rule on Brackett's new request,
the second expert sent a letter to the court disputing Brackett’s
characterization of the expert’s services. The second expert
attached a detailed billing invoice which he had previously
submitted to the court. This invoice indicated that the second
expert had communicated with Brackett’s investigator and had
obtained and reviewed the defense casefile provided to him by
Brackett’s first expert. In the accompanying letter, the second
expert stated that he had engaged in numerous and extensive
telephone conversations with Brackett, but that Brackett
repeatedly requested that the second expert travel to Twin Falls
immediately to speak with him—an activity that the second
expert did not believe would be an efficient use of his
resources. The second expert also reported that he had
requested relevant Idaho law enforcement authorities to
provide “original items of digital evidence for [his]
examination,” but it was his understanding that Brackett,
through his investigator, stopped the investigator's request to
have copies of the original evidence transferred for
examination. As a result, the second expert stated he had not
yet had the opportunity to review the copies of the original
digital evidence. However, the second expert explained that he
still planned (assuming adequate funding to support an
additional forty to sixty hours of billable time) to examine the
original evidence, travel to Twin Falls to meet with Brackett,
provide Brackett with the results of the examination, write a
detailed report about the expert’s findings, help prepare
Brackett for trial, and request that the court allow him to sit
alongside Brackett in presenting his defense. For the remainder
of the proceedings in the underlying case, it appears that
Brackett made no additional requests for funding for the
second expert to complete this work.
On September 5, 2012, the money judge denied Brackett’s
motions to appoint and fund Brackett’s third requested expert.
The money judge noted that it was unclear what the second
expert was or was not directed to do by Brackett or his
investigator. The money judge then concluded in light of the
services already provided by the second expert and his
willingness and apparent ability to perform additional services,
MEMORANDUM DECISION AND ORDER - 18
Brackett had failed to make an adequate factual showing for
additional funds to retain a new expert. Approximately one
week later, Brackett submitted an unsworn affidavit, again
requesting that the third expert be funded and appointed to
assist his defense. The money judge denied the request. The
money judge concluded that, based upon its review, the
services completed by the second expert were reasonable. The
money judge further held there was no showing that the second
expert was unable to provide the expert assistance and services
required by Brackett or was otherwise unqualified and that,
although Brackett “may have an unsubstantiated lack of
confidence” in the second expert, it was “not a legitimate basis
to appoint yet another expert.” The money judge also noted that
it would likely approve additional funding requests for the
second expert to continue his work in this case, provided such
requests complied with the December 13, 2011, order. At
approximately the same time, the second expert sent a sealed
declaration to the district court requesting additional funds and
stating that he had completed some additional work on
Brackett’s case for which the money judge had not yet
approved funding. The second expert also informed the district
court that Brackett no longer wanted him to work on the case.
In a subsequent order responding to the second expert’s
declaration, the money judge reiterated that the second expert
remained the appointed expert for Brackett but was not
authorized to perform any services on Brackett's behalf until
Brackett filed a properly supported motion for funding for
those services.
Despite the money judge's invitation to Brackett to request
more funding for the second expert, and despite the judge’s
indication that approval of those requests was likely, Brackett
continued to request that new experts be appointed. Between
September 26, 2012, and November 8, 2012, Brackett filed
several additional motions requesting that a third expert be
appointed to replace the second expert. The money judge
denied all of the motions, noting that Brackett had repeatedly
failed to comply with the December 13, 2011, order governing
the requests and had failed to support his repeated motions with
new or additional information.
Finally, on November 13, 2012, based on Brackett’s continued
failure to comply with the order entered on December 13,
MEMORANDUM DECISION AND ORDER - 19
2011; the previously authorized funds for an investigator to
assist in Brackett’s defense; Brackett’s choice not to utilize the
digital expert appointed; and there having been no further
showing of the need and necessity for further services of an
investigator or expert, the money judge ordered:
1. The appoint[ment] of [Brackett’s] investigator at
county expense hereby TERMINATED and this court
will not consider any further request for the investigator
at county expense;
2. The appointment of a new Digital Expert is hereby
DENIED and this court will not consider any further
application for public funds for an expert;
3. The further request of [Brackett’s investigator] for
payment of investigative services that exceeded the
authorization of this court is DENIED.
State’s Lodging A-12, pp. 14-17; see State’s Lodging A-3, pp. 283-287.
5. Petitioner’s First Trial, Transfer to a Different Jail, and Denial to ReExamine Evidence in Preparation for Second Trial
Petitioner’s first trial ended in a mistrial when, during his opening statement,
Petitioner violated several pretrial orders regarding content that was not to be presented to
the jury. State’s Lodging A-8, pp. 24-35. Petitioner had between October 2012 and January
2013 to prepare for the second trial.
Petitioner was transferred to a different jail prior to the second trial, and access to
any of the State’s evidence was not offered at the new jail. In between the first and second
trials, on November 15, 2012, Petitioner moved for an order transferring evidence under
seal—specifically “Exhibit 30 Cd #1 and CD #2 also item #23 the Omohundro disk”—
kept in Twin Falls County Court House to Blaine County Court House. On the same day,
he filed a motion to allow access to the original cameras and SD card in a separate motion.
MEMORANDUM DECISION AND ORDER - 20
State’s Lodging A-3, p. 1767-1770. Petitioner again requested access to the original
evidence in a motion filed January 9, 2013. State’s Lodging A-3, p 2274.
Because of the sensitive nature of the evidence, the district court decided to deny
Petitioner further access to the evidence during the three months between the mistrial and
the second trial. See State’s Lodging A-8. The court reasoned that Petitioner “has not
provided any statute, procedural rule, or case law that would require the court to permit the
Defendant’s continued access to the evidence at issue where the case was ready to proceed
with trial but was only continued to a new date due to misconduct on the part of the
Defendant.” State’s Lodging A-3, p. 2371.
Petitioner maintains that he was never provided with access to the original or the
detective’s copy of the SD card. However, he does not contest that the record reflects that
the state district court ordered access to the original SD card for himself and his expert.
Petitioner simply did not take advantage of that order after the first expert withdrew and he
decided not to use the second expert.
6. Petitioner’ Second Trial
Functioning as his own attorney at the second trial, Petitioner attempted to show
both that he did not have a relationship with N.B. and that he did not know N.B. was under
the age of 18 (which is not relevant if he did not have a relationship with her). He also
attempted to show that detectives “fabricated, manipulate[d] and/or altered” digital
evidence to frame him. State’s Lodging A-3, p. 2283. Petitioner focused on the
discrepancies in the electronic metadata as part of his defense that the photographs were
fabricated. By cross-examining Detective Lukasik, Petitioner pointed out that there were
MEMORANDUM DECISION AND ORDER - 21
gaps in the numerical system of the photos recovered, which means certain photographs
could have been purposely erased. See State’s Lodging A-7, pp. 20036-2038. Petitioner
also asserted that Detective Barzee manipulated his text messages. Id., pp. 940, 2860-2861.
Petitioner argued in closing that N.B. had been “coerced” and “brainwashed” by the
prosecutor. Id., p. 2878.
After the three-week-long second trial, the jury found Petitioner guilty of eight
counts of possession of sexually exploitative materials and five counts of sexual battery on
a minor child of sixteen or seventeen. State’s Lodging A-12, pp. 1-2. The State dismissed
one count during jury instruction discussions, and the jury was undecided on one sexual
battery count. State’s Lodging A-7, pp. 699, 2922.
7. Appeals
Petitioner’s conviction was affirmed on direct appeal, and his post-conviction
petition was denied, with the denial affirmed on appeal. See Dkt. 2 at 2-3; State’s Lodgings
A-12 to A-18 and D-6 to D-9. Petitioner filed several motions for a new trial, all of which
were denied, with the denials affirmed on appeal by the Idaho Court of Appeals. See State’s
Lodgings B-1 to B-9, C-1 to C-6, and E-1 to E-8. The Idaho Supreme Court denied the
petitions for review. In all, the Idaho appellate courts have reviewed Petitioner’s case six
times.
8. Petitioner’s Federal Habeas Corpus Claims
Petitioner has come to federal court under Title 28 U.S.C. § 2254 to test the findings
and conclusions of the state courts. In this action, Petitioner brings six claims in his
Amended Petition: (1) the trial court violated his federal constitutional right to a speedy
MEMORANDUM DECISION AND ORDER - 22
trial; (2) the trial court violated his constitutional double jeopardy rights by granting, over
his objection, a mistrial following his violation of numerous court orders during his
opening statement; (3) the trial court violated his due process rights by: (a) denying his
request for inspection of the original or an exact copy of the SD card that investigators said
contained nude photographs of the victim that had been deleted from a camera found in
Petitioner’s home, and (b) denying his request to access the forensic and electronic
evidence during the time period in between the two trials (the court reasoned that Petitioner
had been prepared for the first trial and had caused the mistrial, and thus he was already
prepared for the second trial); (4) the “money judge” appointed to consider Petitioner’s
requests for funding for investigative and expert services violated Petitioner’s
constitutional rights by limiting his requests for additional funding; (5) cumulative error;
and (6) Idaho Code § 18-1508A (sexual battery of a minor) unconstitutionally precluded
him from presenting a complete defense. Dkt. 28.
Respondent asserts that Claim 6 is subject to denial on procedural default grounds,
as well as on the merits, and that Claims 1 through 5 are subject to denial on the merits.
The Court will first address Petitioner’s general allegations, then the procedural default
issue, and finally the merits of the claims.
PETITIONER’S ARGUMENTS NOT REFERABLE TO SPECIFIC CLAIMS
Petitioner makes several arguments in his Reply that are not referable to any
particular claim but are intended to support Petitioner’s general theory that the State is
engaging in a “continued manipulation of facts and truth to mislead courts for [an]
advantage.” Dkt. 49, p. 1. The Court rejects these arguments either as additional standMEMORANDUM DECISION AND ORDER - 23
alone claims or as support for the claims in the Amended Petition, but it will address only
some of them here for purposes of judicial efficiency. All of these generalized arguments
are rejected, regardless of whether they are specifically addressed in this Order.
1. Credibility of Complaining Witness
Petitioner argues that the complaining witness, N.B., told authorities multiple times
that nothing sexual happened between her and Petitioner. N.B. admitted at trial that, when
authorities first questioned her at school, she said nothing happened, because Petitioner
had told her to respond in that manner, and she thought the whole inquiry would go away
if she said nothing happened. State’s Lodging A-7, pp. 319-320. When it became clear that
authorities were going to continue to question her, she decided to tell the truth. Id. She then
revealed the relationship that formed the basis of Petitioner’s criminal charges and
convictions.
Petitioner cross-examined N.B. at trial and had adequate opportunity to probe which
version of the facts was true. Petitioner asked N.B. at trial, “And, once again, it’s your
testimony that no false accusations have ever been made by you?” N.B. responded, “Yeah.”
Petitioner said, “Excuse me?” N.B. replied, “I’ve never made any accusations.” State’s
Lodging A-7, pp. 341-342. N.B. clarified she may have said she didn’t want the prosecution
to happen, because she just wanted to forget about the relationship and move on, but she
never said that the allegations were false. State’s Lodging A-7, p. 423. N.B. testified that
she told Idaho Department of Health and Welfare officials that “there was nothing of a
relationship on,” and that “[she] and Mr. Brackett were just friends,” because “Mr. Brackett
had told me numerous times before that day that if anybody were to ask, I were to deny it
MEMORANDUM DECISION AND ORDER - 24
[sic]” Id., p. 454.
The jury heard both N.B. and Detective Nunally testify that N.B. denied that
anything happened two or three times when originally confronted about whether she was
having a relationship with Petitioner, before changing her story. This is not an instance
where important information was withheld from the jury. Petitioner is not bringing forward
new evidence that was not considered by the factfinder. The jury was the fact finder
charged with judging the credibility of N.B. and Petitioner, and, clearly, it decided that
question in favor of N.B. after Petitioner cross-examined her on this topic.
Petitioner further argues that prosecutor Julie Sturgill met with N.B. over 50 times
to ensure that she would tell a false story at trial. The jury heard N.B. admit that she met
with the prosecutor “quite a few times,” and that it could have been “50 to 60 times.” State’s
Lodging A-7, pp. 327-328. N.B. testified on cross-examination that the meetings were to
prepare her for “what was going to happen,” and that the prosecutors told her only to “get
up [t]here and tell the truth.” Id., p. 328. Again, the jury obviously decided this factual
controversy in favor of N.B.
The United States Supreme Court has cautioned that Title 28 U.S.C. § 2254(d)
“gives federal habeas courts no license to redetermine credibility of witnesses whose
demeanor was observed by the [factfinder], but not by them.” Marshall v. Lonberger, 459
U.S. 422, 434 (1983). Accordingly, this Court will not revisit the credibility issue here.
Petitioner’s proffer of an affidavit of Timothy J. Miner, an acquaintance of N.B.,
can do nothing to tip the balance of credibility already decided by the jury. In 2015, in
support of Petitioner’s second motion for a new trial, Mr. Miner came forward to say that
MEMORANDUM DECISION AND ORDER - 25
N.B. said that prosecutor Julie Sturgill told her that if her story changed again, Ms. Sturgill
would put her in prison for perjury and contempt of court. Ms. Sturgill also allegedly told
N.B. that she “should just take the money for her and her family and just walk away.” See
Dkt. 49-1, pp. 2-3 (Declaration of Timothy J. Miner, dated September 22, 2015). The Idaho
Court of Appeals evaluated the merits of the Miner affidavit on appeal of the denial of his
second new trial motion and agreed with the state district court’s opinion that the affidavit
contained inadmissible hearsay, and that Petitioner did not argue that any hearsay exception
would apply to render it admissible. State’s Lodging B-6, p. 4.
Petitioner asserts that the Miner affidavit supports his contention that the prosecutor
was carrying on a “scam”: first, the prosecutor would send $5,000 to $10,000 to a
counseling service, which is “the state’s business partner”; second, the victim was advised
to “attend one class” and then quit; and third, the money would be “refunded” to the victim
(not the county), “minus a small fee (their cut) for the one class [the victim] attended.” Dkt.
49, pp. 75-76. Petitioner did not present this argument in the state district court, nor does
he present any admissible evidence that these allegations are true. Petitioner said that he
asked his post-conviction attorney to subpoena Julie Sturgill to a hearing to ask her about
this scam, but his attorney, Mr. Dunlap, said, “Ms. Sturgill will not be subpoenaed.” See
Dkt. 49, p. 78. Petitioner has not brought forward any admissible evidence to date of the
existence of such a conspiracy, such as payment records or a pattern of victim counseling
dropouts. It is not unreasonable for an attorney not to subpoena a prosecutor to a hearing
to discuss a highly unusual accusation without having some factual basis to show that the
conspiracy exists. The Miner affidavit is inadmissible hearsay, and Petitioner’s allegations
MEMORANDUM DECISION AND ORDER - 26
of a prosecution/victim counseling scheme have no factual support.
2. Conflict of Interest of One of Petitioner’s Trial Attorneys
Petitioner also asserts that Dan Brown, the attorney appointed to represent him from
the public defender’s office at the start of the second trial, had a conflict of interest.
Brown’s representation of Petitioner overlapped for the first few months with his
representation of a man named Senad Cerimovic, who was separately charged with
misdemeanor crimes regarding a completely different incident involving the same victim,
N.B., in June 2011. See State’s Lodging B-1, p. 237. Mr. Cerimovic pleaded guilty and was
sentenced on November 14, 2011. See id., p. 238. By June 2011, Petitioner had already
been incarcerated for six months; he remained imprisoned well beyond Cerimovic’s guilty
plea in November 2011.
On November 29, 2011, Petitioner told the trial court he thought Mr. Cerimovic
fathered N.B.’s child and, therefore, Mr. Brown’s concurrent representation of Mr.
Cerimovic and Petitioner was a conflict of interest. State’s Lodging A-5, pp. 115-122. Mr.
Brown told the Court that his representation of Mr. Cerimovic was completed by that date,
but that Mr. Brown still might be listed as attorney of record in that case. Id., p. 121. Mr.
Brown said that the potential for a conflict existed unless the Court decided that the Idaho
Rape Shield Act prevented Petitioner from introducing evidence that Mr. Cerimovic had
sexual relations with the same underaged victim. Id., p. 169.
The trial court observed:
At this juncture, I guess until I rule on the evidentiary question
of whether Cerimovic’s issue is even admissible—because
under Idaho’s rape shield statute, it is fairly limited when that
MEMORANDUM DECISION AND ORDER - 27
kind of evidence can come in—I think we need to discuss that
and hear argument and see whether this is even a real issue. If
it is, then I guess we need to revisit the issue of the conflict. I
don’t see an actual conflict right now, but it potentially could
be such if my ruling is that your attorney is free to go into all
of those things.
Id., pp. 122-123.
The trial court made it clear in pretrial proceedings that alternative perpetrator
evidence would be deemed inadmissible absent an offer of proof establishing the direct
connection between the alleged perpetrator and the crimes at issue. See State’s Lodgings
A-3, p. 507 (citing Idaho Rule of Evidence 412(c)(2) (a defendant seeking to introduce
evidence regarding a sex-crime victim’s past sexual behavior is required to submit a written
offer of proof from which the trial court determines if that evidence falls within the limited
exceptions for admissibility)), p. 1620; see State’s Lodging A-3 (order on State’s motion in
limine). Petitioner does not argue here that he made an offer of proof at trial to have the
Cerimovic evidence admitted. See State’s Lodging A-7.
A criminal defendant has the right to be represented by conflict-free counsel under
the Sixth Amendment. Wood v. Georgia, 450 U.S. 261, 271 (1981). However, the mere
“possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler v. Sullivan,
446 U.S. 335, 347 (1980). When a conflict is shown, prejudice is presumed only when: (1)
“the defendant demonstrates that counsel actively represented conflicting interests”; and
(2) “an actual conflict of interest adversely affected his lawyer’s performance.” Burger v.
Kemp, 483 U.S. 776, 783 (U.S. 1987)(quoting Strickland v. Washington, 466 U.S. 668, 692
(1984) (citation and quotations marks omitted), and citing Cuyler, 446 U.S. at 348). See
MEMORANDUM DECISION AND ORDER - 28
also Mickens v. Taylor, 535 U.S. 162, 172-73 (2002) (rejecting the proposed rule of
automatic reversal of a conviction where a conflict did not affect counsel’s performance).
A defendant who brings an attorney conflict-of-interest claim must “show that
potential conflicts impermissibly imperil[ed] his right to a fair trial.” Cuyler, 446 U.S. at
348 (internal citations omitted). The Cuyler Court provided the following example of a
conflict of interest that adversely affected the defendant’s trial:
In Glasser v. United States, [315 U.S. 60, (1942)], for example,
the record showed that defense counsel failed to cross-examine a
prosecution witness whose testimony linked Glasser with the
crime and failed to resist the presentation of arguably
inadmissible evidence. Id., at 72-75, 62 S.Ct. at 465-467. The
Court found that both omissions resulted from counsel’s desire to
diminish the jury’s perception of a codefendant’s guilt. Indeed,
the evidence of counsel’s “struggle to serve two masters [could
not] seriously be doubted.” Id., at 75, 62 S.Ct., at 467. Since this
actual conflict of interest impaired Glasser’s defense, the Court
reversed his conviction.
446 U.S. at 348-49.
There is no indication in the record that Mr. Brown’s representation of Mr.
Cerimovic and his representation of Petitioner posed an actual conflict of interest, or that
any potential conflict of interest adversely affected Mr. Brown’s performance. Petitioner
did not make an offer of proof regarding such evidence at trial, and he still does not state
here what Mr. Cerimovic had to do with Petitioner’s crimes that occurred prior to Mr.
Cerimovic’s crimes. Therefore, Petitioner’s conflict of interest argument does not have an
adequate factual basis to warrant further discussion.
3. Conclusion as to Non-Referable Arguments
In summary, to the extent that Petitioner relies upon any of these general arguments
MEMORANDUM DECISION AND ORDER - 29
either as stand-alone claims or as a factual or a legal basis for habeas corpus relief, the
Court rejects them. The Court has considered and rejects Petitioner’s other arguments not
specifically addressed herein, many of which are raised on habeas corpus review for the
first time. See, e.g., Dkt. 53, n. 1 (Respondent’s Sur-Reply listing other arguments not part
of the Amended Petition); Dkt. 49, p. 30 (Petitioner asserts in his Reply: “The District
Court “Crabtree” declared a mistrial over the Defendants’ objection. This was done to give
advantage to the state as it … did not like the jury seated as the jurors were not all white as
in the second trial.”); id, p. 45 (Petitioner asserts in his Reply: The county prosecutor was
forum shopping because the truly Honorable John Brody was presiding. A court much less
likely to go along with the unconstitutional actions involved in this matter.”)
DISCUSSION OF CLAIM 6: PROCEDURAL DEFAULT ANALYSIS
1.
Standard of Law Governing Dismissal
When a petitioner’s compliance with threshold procedural requirements is at issue,
a respondent may move the Court to dismiss claims in a habeas corpus petition before
reaching the merits of the claims. See, e.g., White v. Lewis, 874 F.2d 599, 602 (9th Cir.
1989); Rule 4 of the Rules Governing § 2254 Cases.
2.
Standard of Law Governing Procedural Prerequisites to Habeas Relief
Habeas corpus law requires that a petitioner “exhaust” his state court remedies
before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a
claim, a habeas petitioner must fairly present it as a federal claim to the highest state court
for review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). Unless a petitioner has exhausted his state court remedies relative to a
MEMORANDUM DECISION AND ORDER - 30
particular claim, a federal district court cannot grant relief on that claim, although it does
have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).
State remedies are considered technically exhausted, but not properly exhausted, if
a petitioner failed to pursue a federal claim in state court and there are no remedies now
available. O’Sullivan, 526 U.S. at 848. A claim may also be considered exhausted, though
not properly exhausted, if a petitioner pursued a federal claim in state court, but the state
court rejected the claim on an independent and adequate state law procedural ground.
Coleman v. Thompson, 501 U.S. 722, 731-732 (1991).
If a claim has not been properly exhausted in the state court system, the claim is
considered “procedurally defaulted.” Coleman, 501 U.S. at 731. A procedurally defaulted
claim will not be heard in federal court unless the petitioner shows either that there was
legitimate cause for the default and that prejudice resulted from the default, or,
alternatively, that the petitioner is actually innocent and a miscarriage of justice would
occur if the federal claim is not heard. Id.
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488 (1986).
To show “prejudice,” a petitioner bears “the burden of showing not merely that the errors
[in his proceeding] constituted a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
An attorney’s errors that rise to the level of a violation of the Sixth Amendment
MEMORANDUM DECISION AND ORDER - 31
right to effective assistance of counsel may, under certain circumstances, serve as a cause
to excuse the procedural default of other claims. Murray v. Carrier, 477 U.S. at 488.
However, an allegation of ineffective assistance of counsel will serve as cause to excuse
the default of other claims only if the ineffective assistance of counsel claim itself is not
procedurally defaulted or, if defaulted, a petitioner can show cause and prejudice for that
separate default. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). In other words, before
a federal court can consider ineffective assistance of trial or direct appeal counsel as cause
to excuse the default of underlying habeas claims, a petitioner generally must have
presented the ineffective assistance of counsel claim in a procedurally proper manner to
the state courts, such as in a post-conviction relief petition, including through the level of
the Idaho Supreme Court.
As to a related but different topic–errors of counsel made on post-conviction review
that cause the default of other claims–the general rule on procedural default is that any
errors of a defense attorney during a post-conviction action cannot serve as a basis for
cause to excuse a petitioner’s procedural default of his claims. See Coleman v. Thompson,
501 U.S. at 752. This rule arises from the principle that a petitioner does not have a federal
constitutional right to effective assistance of counsel during state post-conviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d 425,
430 (9th Cir. 1993).
3.
Analysis
In Claim 6, Petitioner asserts that I.C. § 18-1508A—the Idaho sexual battery of a
minor statute—violated his rights to due process and a fair trial because it precluded him
MEMORANDUM DECISION AND ORDER - 32
from presenting a complete defense. Dkt. 28, p. 13. Respondent asserts that Petitioner
failed to properly exhaust this claim because he did not raise it on appeal. The time to
properly exhaust this claim has now expired.
Petitioner asserts that his direct appeal counsel refused to raise this claim. Dkt. 28,
p. 13. Attorney error on direct appeal amounting to ineffective assistance of counsel may
constitute cause to excuse the procedural default of a claim. Coleman, 501 U.S. at, 753754. However, “ineffective assistance adequate to establish cause for the procedural default
of some other constitutional claim is itself an independent constitutional claim.” Edwards,
529 U.S. at 451. Because the direct appeal counsel claim was never properly exhausted in
the state court system, it cannot serve as cause to excuse the default of Claim 6.
On post-conviction review, Petitioner raised this claim as Claim 9. See State’s
Lodging D-3, p. 3. The state district court dismissed the claim because it could or should
have been brought on direct appeal. Id., p. 6. Petitioner brought no argument on appeal
contesting the district court’s conclusion that this claim could or should have been brought
on direct appeal, rather than post-conviction review. Id.
The Idaho Court of Appeals did not consider the merits of this claim. Instead, the
court applied a clear, consistently applied, and well-established state procedural rule to
reject the claim—that appellate courts will not consider claims or issues that are not
supported by argument or authority. Id. The Court of Appeals concluded that Petitioner’s
I.C. § 18-1508A claim was waived. Id. (citing State v. Zichko, 923 P.2d 966, 970 (Idaho
1996), and Powell v. Sellers, 937 P.2d 434, 440 (Idaho App. 1997)). The Zichko rule
constitutes an adequate and independent state ground for dismissal. Twenty years ago, the
MEMORANDUM DECISION AND ORDER - 33
Ninth Circuit held that this procedural rule is adequate and independent. See Zichko v.
Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Hence, the claim is considered procedurally
defaulted here.
Petitioner has not shown that the Coleman procedural default exception applies.
Therefore, it cannot be heard on the merits. Nevertheless, the Court is permitted to deny
such a claim on the merits, if warranted, and it will do so alternatively, below.
STANDARDS OF LAW FOR MERITS ANALYSIS
1. AEDPA Deferential Review Standard
Federal habeas corpus relief may be granted where a petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A challenge to a state court judgment that addressed the merits of any federal claim is
governed by Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”).
The AEDPA limits relief to instances where the state court’s adjudication of the
petitioner’s claim:
1.
resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
2.
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the state court proceeding.
28 U.S.C. § 2254(d). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
MEMORANDUM DECISION AND ORDER - 34
U.S. 797, 804 (1991).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the state court’s 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 v. Cone, 535 U.S. 685, 694 (2002).
If fairminded 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, 101 (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. (internal citation omitted).
Though the source of clearly established federal law must come from only 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. 1999). 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] [Supreme] Court has not announced.”
Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
On federal habeas corpus review, the findings of fact of the state appellate court
(and the state district court findings of fact not in conflict with state appellate court findings
of fact) are entitled to AEDPA deference. See James v. Ryan, 733 F.3d 911, 916 (9th Cir.
2013) (noting that Johnson “does not require us to ignore a state court’s explicit
explanation of its own decision”); Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991)(we look
“to the last reasoned decision” resolving a claim).
MEMORANDUM DECISION AND ORDER - 35
Accordingly, under §2254(e)(1), this Court presumes state court findings of fact are
correct, unless Petitioner shows, by clear and convincing evidence, that the findings of fact
are incorrect and unreasonable. In Pizzuto v. Yordy, the Ninth Circuit reiterated the high
standard for such a showing:
Under § 2254(d)(2), we may not characterize a state
court’s factual determinations as unreasonable “merely
because [we] would have reached a different conclusion in the
first instance.” Brumfield, 135 S. Ct. at 2277 (alteration in
original) (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct.
841, 175 L.Ed.2d 738 (2010)). “Instead, § 2254(d)(2) requires
that we accord the state trial court substantial deference.” Id.
“If ‘[r]easonable minds reviewing the record might disagree
about the finding in question, on habeas review that does not
suffice to supersede the trial court’s ... determination.’” Id.
(alterations in original) (quoting Wood, 558 U.S. at 301, 130
S.Ct. 841).
947 F.3d at 530.
2. De Novo Review Standard
In some instances AEDPA deferential review under § 2254(d)(1) does not apply:
(1) if the state appellate court did not decide a properly-asserted federal claim, (2) if the
state court’s factual findings are unreasonable under § 2254(d)(2), or (3) if an adequate
excuse for the procedural default of a claim exists. In such instances, the federal district
court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
As in the pre-AEDPA era, a district court can 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).
Under de novo review, if the factual findings of the state court are not unreasonable,
MEMORANDUM DECISION AND ORDER - 36
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. Contrarily, if a state court
factual determination is unreasonable, or if there are no state court factual findings, the
federal court is not limited by § 2254(e)(1), the federal district court may consider evidence
outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray
v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
3. Harmless Error Standard
Generally, even if a petitioner succeeds in demonstrating a constitutional error in
his conviction, he is entitled to federal habeas relief only if he “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 must 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.” O’Neal v. McAninch, 513
U.S. 432, 436 (1995) (internal quotation marks omitted).
DISCUSSION OF MERITS OF CLAIMS 1-6
1. Claim 1
Petitioner’s first claim is that his federal constitutional right to a speedy trial was
violated between the date the first case began (January 14, 2011) and the date the second
case went to trial (January 29, 2013).
A. Standard of Law
The Sixth Amendment to the Constitution of the United States guarantees the right
to a speedy criminal trial. Because the speedy trial right requires a very case-specific
MEMORANDUM DECISION AND ORDER - 37
analysis, it has been described as “amorphous,” “slippery,” Barker v. Wingo, 407 U.S. 514,
522 (1972), and “necessarily relative.” Beavers v. Haubert, 198 U.S. 77, 87 (1905)). In its
determination, a court reviews four factors: (1) the length of the delay; (2) the reason for
the delay; (3) the defendant’s assertion of his or her right to a speedy trial; and (4) the
prejudice occasioned by the delay. Barker, 407 U.S. at 530.
The first factor, length of delay, is a threshold showing “dividing ordinary from
‘presumptively prejudicial’ delay.” Doggett v. United States, 505 U.S. 647, 651-52 (1992)
(quoting Barker, 407 U.S. at 530-32). As to the fourth factor, prejudice from “’the
possibility that the [accused's] defense will be impaired’ by dimming memories and loss of
exculpatory evidence” is a serious concern “’because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.’” Id., 505 U.S. at
654 (citing Barker, 407 U.S. at 532). “[A]ffirmative proof of particularized prejudice is not
essential to every speedy trial claim,” and the importance of the fourth factor “increases
with the length of delay.” Id., 505 U.S. at 655-56.
Under Barker, “different weights should be assigned to different reasons” for the
delay. 407 U.S. at 531. “In applying Barker, the Supreme Court has asked ‘whether the
government or the criminal defendant is more to blame for th[e] delay.’” Doggett, 505 U.S.
at 651. A prosecutor’s “deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the [State].” Barker, 407 U.S. at 531. Similarly, “a
defendant’s deliberate attempt to disrupt proceedings [should] be weighted heavily against
the defendant.” Vermont v. Brillon, 556 U.S. 81, 93–94 (2009). For example, where “no
speedy-trial issue would have arisen” without a defendant’s “deliberate efforts to force the
MEMORANDUM DECISION AND ORDER - 38
withdrawal of [defense counsel],” the court’s analysis should factor in a defendant’s
“disruptive behavior in the overall balance.” Id., pp. 91-94.
Finally, in United States v. MacDonald, 456 U.S. 1 (1982), the Supreme Court
emphasized the narrow primary purpose of the right to a speedy trial:
The Sixth Amendment right to a speedy trial is ... not primarily
intended to prevent prejudice to the defense caused by passage
of time; that interest is protected primarily by the Due Process
Clause and by statutes of limitations. The speedy trial
guarantee is designed to minimize the possibility of lengthy
incarceration prior to trial, to reduce the lesser, but nevertheless
substantial, impairment of liberty imposed on an accused while
released on bail, and to shorten the disruption of life caused by
arrest and the presence of unresolved criminal charges.
Id. at 8–9.
Where the length of trial delay is “extraordinary,” and “the presumption of
prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, nor
persuasively rebutted, the defendant is entitled to relief.” Doggett, 505 U.S. at 657-58
(ruling that an 8.5 year delay was presumptively prejudicial, even where the defendant was
not even aware of the charges during that time frame)(internal citations omitted).
B. State Court Decision
The Idaho Court of Appeals conducted a balancing analysis on Petitioner’s speedy
trial claim:
In this case, three of the four Barker factors—length of delay,
assertion of speedy trial right, and prejudice—weigh in
Brackett’s favor in proving his speedy trial right was violated.
On the other hand, one factor—the reason for the delay—
weighs heavily against Brackett. Few would disagree that
twenty-four months is a lengthy time awaiting trial. In addition,
few would deny that the death of a potential defense witness is
MEMORANDUM DECISION AND ORDER - 39
a serious prejudice. Both of these factors weigh heavily in
Brackett’s favor in his effort to prove that his right to a speedy
trial was violated. However, the delay was largely of Brackett’s
own making. As outlined above, at least fifteen months of the
delay is attributed to Brackett’s inability to work with his
appointed counsel, necessitating multiple changes in counsel
and multiple continuances in order for new counsel to become
acquainted with Brackett’s case. That leaves a delay of
between nine and ten months that is attributable to the state,
which is not an unreasonable delay for a case involving sixteen
felony charges. We hold that Brackett’s right to a speedy trial
was not violated by the long delay when much of the delay was
the result of Brackett's own actions.
Id., p. 7. The Idaho Supreme Court implicitly agreed with the decision by denying
Petitioner’s petition for review. State’s Lodging D-8.
C. Discussion
i.
Sixth Amendment Analysis
In concluding that Petitioner’s speedy trial rights were not violated, the Idaho Court
of Appeals recognized that there was a split in authority among the nation’s appellate courts
as to whether to count the entire time between the date Petitioner was first charged and the
date he finally went to trial, notwithstanding the fact that the charges were brought
consecutively in two different actions. The Idaho Court of Appeals decided to count the
entire time period. State’s Lodging A-12, pp. 3-4. However, that position has not been
adopted by the United States Supreme Court.
Pursuant to 28 U.S.C. § 2254(d)(1), this Court must rely only on United States
Supreme Court precedent to assess the state court’s decision. Under MacDonald, as soon
as charges are dismissed, the speedy trial clock ends. The clock begins anew when new
charges are refiled. In Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978), the United States
MEMORANDUM DECISION AND ORDER - 40
Court of Appeals for the Ninth Circuit explained:
After the dismissal Arnold was no longer “accused”; he no
longer had any right to demand a speedy trial under the Sixth
Amendment. Any contention that he was prejudiced by delay
between this dismissal and his second trial must be tested under
the general requirements of due process.
Id. at 1383.
This Court’s AEDPA review is focused on determining only whether the outcome—
not necessarily the method leading to the outcome—comports with federal law as clearly
established by the United States Supreme Court. In addition, because Petitioner has not
shown by clear and convincing evidence that the relevant factual findings of the Idaho
Court of Appeals are incorrect, the Court must presume that those findings are correct. See
28 U.S.C. § 2254(e)(1). As the Court will explain, an analysis of both the reduced period
subject to a speedy trial analysis and the longer period afforded Petitioner by the Idaho
Court of Appeals produces the same result: the delay attributable to the state is not long
enough to violate Petitioner’s rights.
Under MacDonald, the speedy trial delay period used by the Idaho Court of Appeals
must be reduced by the time between the date of arrest in the first case on January 14, 2011,
and the date of its dismissal on September 2, 2011. See State’s Lodging A-1 (Register of
Actions of First Trial).
Petitioner would have been released from custody after dismissal of the first set of
charges, but for the second separate case consisting of new charges involving the same
victim but arising from a separate date. The speedy trial clock for the new case began when
it was filed on July 26, 2011, and it ended when trial began, on January 29, 2013. This
MEMORANDUM DECISION AND ORDER - 41
shortened period of eighteen months still qualifies for presumptive prejudice under the first
Barker factor.
The Idaho Court of Appeals found that the delay between July 2011 and October
2011 is attributable to Petitioner because his counsel “withdrew from representation as a
result of Brackett’s uncooperative behavior.” State’s Lodging A-12, p. 5. The Idaho Court
of Appeals found that the five-month period from October 2011 to March 2012 is
attributable to neither party. State’s Lodging A-12, p. 5.
As noted above, on March 27, 2012, Petitioner notified the court that his former
roommate had died. There is no hint in the record what this witness knew. Nevertheless, if
a witness dies during the delay, the prejudice is considered obvious. Barker, 407 U.S. at
532.
The Idaho Court of Appeals found that the seven-month period from March 2012 to
October 2012 is “largely attributable to” Petitioner, because on the day of trial, he decided
to represent himself, and the trial had to be reset to allow him adequate preparation time.
Id. In October 2012, Petitioner did represent himself at trial and violated three of the trial
court’s pretrial rulings in his opening statement. A mistrial was declared on the first day of
trial, October 29, 2012. State’s Lodging A-8, pp. 26-36. The trial was rescheduled to
January 29, 2013. State’s Lodging A-3, p. 2462. This resulting three-month delay is
attributable to Petitioner for causing the mistrial.
In summary, of the eighteen months between the charges and the second trial,
thirteen months is attributable to Petitioner. While three of the factors—length of delay,
assertion of speedy trial right, and prejudice—weigh in Petitioner’s favor, the remaining
MEMORANDUM DECISION AND ORDER - 42
factor tips the scales away from Petitioner under United States Supreme Court precedent,
because a defendant cannot obtain dismissal of charges against him by causing delay and
simultaneously asserting his speedy trial right. Without the delay attributable to Petitioner,
there would be no federal speedy trial issue at all.
Alternatively, this Court concludes that the Idaho Court of Appeals’ original
analysis and denial of the claim, where it found that fifteen of the twenty-four months from
January 2011 to January 2013 is attributable to Petitioner, is not an unreasonable
application of Barker. State’s Lodging A-12, p. 5. Nor is the decision contrary to
MacDonald, Doggett, or Brillon. Therefore, under either formulation, habeas relief is not
warranted under a Sixth Amendment speedy trial analysis.
ii.
Fourteenth Amendment Analysis
Because Petitioner was never actually released from custody when his first set of
charges were dismissed, the Court concludes that Petitioner’s case is better analyzed as a
Fourteenth Amendment due process claim, rather than a Sixth Amendment speedy trial
claim. The “general requirements of due process” call for application of a different
standard. For a due process violation, Petitioner must show that the prosecutor dismissed
and refiled the criminal complaint for the purpose of harassment, delay, or forum shopping.
See Stockwell v. State, 573 P.2d 116, 125 (Idaho 1977); State v. Averett, 136 P.3d 350, 356
(Idaho Ct. App. 2006).
There is no evidence in the record to support any of these reasons. In fact, the record
supports the opposite inference—it was Petitioner who caused lengthy delays and then tried
to take advantage of that. The Constitution does not allow a defendant to cause a delay that,
MEMORANDUM DECISION AND ORDER - 43
in turn, would require that serious criminal charges against him be dismissed (and, as
Petitioner argues, that should have been dismissed with prejudice).5 Petitioner has not made
a sufficient factual showing that the delay was intentionally caused by the State for an
improper purpose.
Unlike a speedy trial analysis, before a due process violation can be found, not only
must the defendant show that the delay was a deliberate device to gain an advantage over
the defendant, but that dismissal and refiling caused substantial prejudice to the defendant’s
right to a fair trial. Id. To establish actual prejudice sufficient to warrant a dismissal, the
defendant must show not only the loss of the witness or evidence but also demonstrate how
that loss is prejudicial to him. United States v. Marion, 404 U.S. 307, 326 (1971). The proof
of this prejudice “must be definite and not speculative.” United States v. Mays, 549 F.2d
670, 677 (9th Cir. 1977). “The assertion that a missing witness might have been useful does
not show the ‘actual prejudice’ required by Marion.” Arnold v. McCarthy, 566 F.2d 1377,
1384 (9th Cir. 1978).
Here, Petitioner has not revealed the content of the testimony his roommate would
have provided had the roommate not died prior to the second trial. He has not shown how
it would have stacked up to the testimony of Petitioner’s own adult daughter—who was a
“roommate” during the same time frame in which the charges arose—that that she saw the
5
Petitioner argues that his attorney should have done more to have the charges dismissed with prejudice.
However, the attorney acknowledged that the rules stated that dismissal without prejudice was the normal
type of dismissal and that no case law supported his client’s view that a “with prejudice” dismissal was
warranted. Because much of the delay was attributable to Petitioner, the record does not support a
conclusion that the trial court would have dismissed the charges with prejudice had Petitioner’s attorney
made that argument.
MEMORANDUM DECISION AND ORDER - 44
couple holding hands, that she saw N.B. kiss Petitioner on the lips, and that N.B. slept in
Petitioner’s bedroom. State’s Lodging A-7, pp. 2559-2561. Comparing “the gravity of the
actual prejudice shown” to “the reasons for the delay,” Arnold, 566 F.2d at 1383 (relying
on United States v. Lovasco, 431 U.S. at 789 (1977)), this Court concludes that the scales
tip strongly against Petitioner. Because Petitioner has not met the standard for de novo
review of a due process claim according to the standards set forth above, Claim 1 is
alternatively denied as a Fourteenth Amendment due process claim.
2. Claim 2
Claim 2 is that the trial court violated Petitioner’s Fifth Amendment double jeopardy
rights by granting, over his objection, a mistrial following his violation of court orders
during his opening statement. Respondent accurately characterizes the events leading to
declaration of a mistrial in Petitioner’s first trial as follows:
In his opening statement at the first trial, Brackett violated at
least three of these pretrial court directives. (State’s lodging A8, 10/29/12 Tr., pp.20-26.) Brackett told the jury that he was
facing a potential “eight life sentences.” (Id., p.25.) He also
suggested that the prosecutor would coerce witnesses to lie in
exchange for some benefit. (Id., pp.24-25.) Finally, he implied
that N.B. possessed a fake ID and frequented bars. (Id. pp.2526.) The state then moved for a mistrial outside of the presence
of the jury. (Id., pp.26-27.)
The trial court did not rule on the state’s motion immediately,
but instead gave Brackett the opportunity to respond and to
explain why he had violated several of the court’s pretrial
orders. (Id., pp.27-28.) The court then took a recess to consider
the state’s motion and to review the applicable law. (Id., pp.2829.) Following this recess, the court presented a potential
curative instruction that it had drafted. (Id., pp.29-30.)
However, after inviting additional argument from both the state
and Brackett (who opposed the motion), the court elected to
MEMORANDUM DECISION AND ORDER - 45
declare a mistrial. (Id., pp.30-35). The court concluded that
Brackett intended his comments to appeal to the sympathies of
the jury, and that the curative instruction it drafted would not
remedy the prejudice to the state caused by the comments.
(State’s lodging A-3, pp.1826-1828, 1843-1845, 2016-2018.)
The trial court subsequently denied Brackett’s numerous
motions to dismiss the charges against him on double jeopardy
grounds based on the mistrial. (Id., pp.2106-2107, 2282-2283.)
Dkt. 37, pp. 34-35.
A. Standard of Law
The Double Jeopardy Clause of the Fifth Amendment attaches before a criminal
judgment becomes final and protects the defendant’s “valued right to have his trial
completed by a particular tribunal.” Arizona v. Washington, 434 U.S. 497, 503 (1978)
(internal citation omitted). The Idaho Supreme Court summarized the United States
Supreme Court’s reasoning on the balancing of competing interests when trial errors
happen:
While the double jeopardy clause protects against
repeated convictions and prosecutions for the same crime, it
does not mean that a criminal defendant is entitled to go free
every time a trial fails to end in a final judgment. Wade v.
Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974,
977 (1949), reh'g denied, 337 U.S. 921, 69 S.Ct. 1152, 93
L.Ed. 1730 (1949). A criminal defendant may be retried if the
first trial was prematurely terminated by the district court,
without the defendant's consent, due to “manifest necessity.”
United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165
(1824). This is so because the defendant's valued right to have
the trial completed by a particular jury “must in some instances
be subordinated to the public's interest in fair trials designed to
end in just judgments.” Wade, 336 U.S. at 689, 69 S.Ct. at 837,
93 L.Ed. at 978.
State v. Manley, 127 P.3d 954, 960 (2005).
MEMORANDUM DECISION AND ORDER - 46
In Washington, the United States Supreme Court explained the importance of trial
court discretion in weighing whether to attempt to cure a trial error or grant a mistrial:
An improper opening statement unquestionably tends to
frustrate the public interest in having a just judgment reached
by an impartial tribunal. Indeed, such statements create a risk,
often not present in the individual juror bias situation, that the
entire panel may be tainted. The trial judge, of course, may
instruct the jury to disregard the improper comment. In
extreme cases, he may discipline counsel, or even remove him
from the trial as he did in United States v. Dinitz, 424 U.S. 600,
96 S.Ct. 1075, 47 L.Ed.2d 267. Those actions, however, will
not necessarily remove the risk of bias that may be created by
improper argument. Unless unscrupulous defense counsel are
to be allowed an unfair advantage, the trial judge must have the
power to declare a mistrial in appropriate cases. The interest in
orderly, impartial procedure would be impaired if he were
deterred from exercising that power by a concern that any time
a reviewing court disagreed with his assessment of the trial
situation a retrial would automatically be barred. The adoption
of a stringent standard of appellate review in this area,
therefore, would seriously impede the trial judge in the proper
performance of his “duty, in order to protect the integrity of the
trial, to take prompt and affirmative action to stop …
professional misconduct.” Id., at 612, 96 S.Ct., at 1082.
There are compelling institutional considerations militating in
favor of appellate deference to the trial judge's evaluation of
the significance of possible juror bias. He has seen and heard
the jurors during their voir dire examination. He is the judge
most familiar with the evidence and the background of the case
on trial. He has listened to the tone of the argument as it was
delivered and has observed the apparent reaction of the jurors.
In short, he is far more “conversant with the factors relevant to
the determination” than any reviewing court can possibly be.
See Wade v. Hunter, 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93
L.Ed. 974.
Our conclusion that a trial judge's decision to declare a mistrial
based on his assessment of the prejudicial impact of improper
argument is entitled to great deference does not, of course, end
MEMORANDUM DECISION AND ORDER - 47
the inquiry. As noted earlier, a constitutionally protected
interest is inevitably affected by any mistrial decision.
* * *
Thus, if a trial judge acts irrationally or irresponsibly, cf.
United States v. Jorn, supra; see Illinois v. Somerville, 410
U.S., at 469, 93 S.Ct., at 1072, his action cannot be condoned.
But our review of this record indicates that this was not such a
case. Defense counsel aired improper and highly prejudicial
evidence before the jury, the possible impact of which the trial
judge was in the best position to assess. The trial judge did not
act precipitately in response to the prosecutor's request for a
mistrial. On the contrary, evincing a concern for the possible
double jeopardy consequences of an erroneous ruling, he gave
both defense counsel and the prosecutor full opportunity to
explain their positions on the propriety of a mistrial.
Washington, 434 U.S. at 512–16 (footnotes omitted). Importantly, a trial court need not use
the specific words “manifest necessity” in its mistrial analysis to be upheld on review. Id.
at 516-17.
B. State Court Decision
Petitioner presented his federal constitutional argument to the Idaho appellate courts
in his direct appeal briefing. See State’s Lodging A-9. The Idaho Court of Appeals
determined that the trial court did not violate Petitioner’s rights when it declared a mistrial,
reasoning:
Here, the record is clear that Brackett’s comments tainted the
jury, prejudicing the state’s case.
* * *
The United States Supreme Court has held that the trial court’s
determination to declare a mistrial is entitled to special respect
where the trial court ordered a mistrial because the defendant’s
lawyer made improper and prejudicial remarks during his
opening statement to the jury. Arizona v. Washington, 434 U.S.
MEMORANDUM DECISION AND ORDER - 48
497, 510 (1978). Neither party has a right to have a case
decided by a jury which may be tainted by bias; in these
circumstances, the public’s interest in fair trials designed to
end in just judgements must prevail over the defendant’s
valued right to have a jury concluded before the first jury
impaneled. Id. at 516. Accordingly, we hold that the district
court did not abuse its discretion in declaring a mistrial based
upon its finding that the state’s case was prejudiced by
Brackett’s comments and that the available remedy was
inadequate to remove the taint from the jury.
State’s Lodging A-12, pp. 9-10. The Idaho Supreme Court implicitly agreed by denying
Petitioner’s petition for review. State’s Lodging A-17.
C. Discussion
Because the Idaho Court of Appeals decided the claim on the merits, this Court
reviews that decision under AEDPA’s deferential standard. Petitioner argues that the State
asked for a mistrial for two reasons: (1) to discover his defense strategy; and (2) to “jury
shop,” because the first jury “was seated by Rule (the venir) rather than preseating the venir
by some computer program to which gives the State advantage.” Dkt. 49, p. 8 (verbatim).
Petitioner states, without any citation to the state court record, that the second jury venire
was seated by a program that assigns “pro-prosecutor jurors” seats 1-50, and pro-defense
jurors in seats 51-100. Dkt. 28, p. 9. Respondent counters that these are new arguments that
have never been properly presented to the Idaho Supreme Court. This Court agrees that
these arguments are not contained in Petitioner’s direct appeal briefing in the state court
record. See State’s Lodgings A-9 & A-11.
Petitioner states that his direct appeal attorney refused to raised several issues
Petitioner wanted him to raise on direct appeal, and this may explain why these arguments
MEMORANDUM DECISION AND ORDER - 49
are missing from the state court record. Here, there are no facts before this Court to analyze
which computer program was used in jury selection and no explanation how it might have
given the State an advantage. There is nothing showing that, even if such a computer
program existed, the prosecutor was aware that the computer program would be used to
pick a second jury if it requested a mistrial at the first trial. There is nothing in the existing
record to suggest that the prosecution’s request for a mistrial was sought for the purposes
Petitioner suggests, rather than to prevent prejudice to the State because of Petitioner’s
violations of several pretrial rulings. The record reflects that the prosecution had ample
evidence upon which to rely to make its case against Petitioner and had no reason to use
surreptitious means to discover Petitioner’s defense strategy.
Petitioner further argues that the trial court erred by failing to articulate a specific
finding of “manifest necessity” and failing to directly question the jurors about their ability
to serve without bias notwithstanding the opening statement misconduct. Washington
specifically provides that a trial court need not use the words “manifest necessity” in its
mistrial analysis and ruling. 434 U.S. at 516-17. After carefully considering the parties’
points of view, reviewing the circumstances of the case, and crafting a potential curative
instruction, the trial court decided that mistrial was appropriate. The record supporting that
decision sufficiently reflects “manifest necessity” under Washington.
Petitioner also argues that the trial court should not have declared a mistrial without
inquiring whether the jurors themselves felt they were prejudiced by his statements.
However, there is no United States Supreme Court precedent to support such an argument.
The act of questioning the jurors is not necessary and could have caused additional harm.
MEMORANDUM DECISION AND ORDER - 50
Petitioner states that he wanted the jury “polled,” but the purpose of having a jury
polled is to permit an inquiry of individual jurors to ensure that each assented to a verdict
that was reported to be unanimous, not applicable here. See Humphries v. District of
Columbia, 174 U.S. 190 (1899). Further, the United States Supreme Court has never
required a trial court to poll the jury before declaring a mistrial due to a deadlocked jury at
the end of trial. See Blueford v. Arkansas, 566 U.S. 599, 609 (2012). “Polling” is not the
appropriate legal mechanism upon which to base an argument that the trial court had a duty
to question jurors about how his opening statement affected them.
The Idaho Court of Appeals’ decision stands on solid ground. Both the Court of
Appeals and this Court must extend deference to the trial judge who seated the jury and
witnessed the opening statement. The record reflects that Petitioner’s own decision to
contravene court orders regarding permissible opening statement content caused the
mistrial. He is not entitled to attempt to appeal to the sympathies of the jury on
inappropriate grounds and also assert that he is entitled to have the potentially-biased jury
decide his case, without regard to the public’s interest in having an unbiased jury hear the
case.
The AEDPA standard is extremely high. Habeas corpus relief is not warranted if
fairminded jurists could disagree on the correctness of the state court’s decision to deny
relief on the double jeopardy claim. See Richter, 562 U.S. at 101. In other words, if one
fairminded jurist would agree that the decision is reasonable, and another would agree with
Petitioner that it is not, then habeas corpus relief is not warranted. This Court concludes
that, not only could a fair-minded jurist agree with the state court’s decision, but the Court
MEMORANDUM DECISION AND ORDER - 51
is quite certain that any fair-minded jurist would agree. Claim 2 will be denied on the
merits.
3. Claim 3
Petitioner has articulated Claim 3 in the Amended Petition as follows:
The district court abused its discretion by not allowing access
to the evidence. They, (the courts and state) continue to
manipulate the argument regarding this evidence to viewing
the images themselves when in fact defense was intereste[d] in
the “meta data” electronically stored information imbedded in
the images. Information like times, dates, camera used to create
said image etc. etc. This is how defendant started to learn that
these images alleged came from different devices alleged. The
only evidence from the state given to defense was edited, only
what state picked out, this is why access was denied and exact
copy denied and said “Oh the other stuff is irrelevant.”
Dkt. 28, p. 10.
Petitioner asserts, “The defendant never seen, in his life, any SD card alleged.” Id.
(verbatim). Thus, he wanted to examine the SD card from which the exploitative
photographs were restored. Petitioner describes his attempts to examine this evidence as
follows:
[T]the Petitioner never received an exact copy of the SD card
alleged, only a copy of what detectives requested from the SD
card be imaged and the “forensic” report thereof. So, the
Petitioner only received what the detectives requested be given
and the forensic report in support of only that (that was called
the 501 CD throughout this case). The Petitioner on multiple
occasion/motions requested an exact mirror image of
everything discovered from the devices and SD card alleged
(this was known as the “Holy Grail” or 401 CD). The Petitioner
made the mirror image request by way of Rules of Evidence
regarding authenticity Rules of Evidence 1001-1004.
Dkt. 49, pp. 15-16 (verbatim).
MEMORANDUM DECISION AND ORDER - 52
A. Construction of Claim
Here, because Petitioner continues to make his claim somewhat amorphous, the
Court considers it in the most expansive way possible from the record. That is, the Court
assumes for the sake of argument that (1) Petitioner and his investigator were provided
with several copies of the expert’s forensic report, copies of the photographs that were
retrieved from the SD card found at Petitioner’s house, and copies of the photographs that
were retrieved from Jack Omohundro’s camera and/or computer in preparation for the first
trial only; (2) Petitioner and his expert were granted access to the original cameras and SD
card, but Petitioner and his expert never examined the SD card; and (3) Petitioner was
denied access to any and all of the electronic evidence between his first and second trial.
Given these assumptions, the Court considers whether this set of circumstances constitute
a due process violation, as the Idaho Court of Appeals determined, and, if so, whether it
was harmful to his defense.
B. Standard of Law
Under the Fourteenth Amendment’s Due Process Clause, a defendant must have a
meaningful opportunity to present a complete defense, including having access to the
evidence to be used against him. California v. Trombetta, 457 U.S. 479, 485 (1984). There
is no United States Supreme Court case specifically on point with the particular procedural
posture and unusual facts of this case. Lower federal court cases help inform how
Trombetta should be applied, but are not cases of precedent under §2254(d)(1).
Federal courts have encountered a similar “right to review exploitative electronic
evidence” argument in the face of the Adam Walsh Child and Protection Safety Act of
MEMORANDUM DECISION AND ORDER - 53
2006, which prohibits the redistribution of child pornography to prevent revictimization,
even in the course of discovery. See State’s Lodging A-9, p. 48 (Adam Walsh Act
referenced in Petitioner’s direct appeal opening brief). For example, in United States v.
Mitchell, 128 F. Supp. 3d 1266, 1266 (E.D. Cal. 2015), the defendant sought an order
compelling the government to provide him with a “mirror copy” of the computer media
seized from him. He proposed that the copy be provided under a protective order requiring
confidentiality and limiting access to defense attorneys, paralegals, and experts. The
government refused to produce the materials under any circumstance. The court
determined that the Act “provides only that the defendant be given ‘ample opportunity’ to
examine the evidence,” not the right to have it copied. Id. at 1276.
Another factor that must be weighed in Petitioner’s particular case is the conflict
between the Sixth Amendment right of self-representation and the coverage of the Six and
Fourteenth Amendment due process rights to a fair trial. This conflict naturally occurs
when a jailed pro se defendant must prepare his defense despite the inherent difficulties of
being incarcerated. See The Jailed Pro Se Defendant and the Right to Prepare A Defense,
86 Yale L.J. 292, 316 (1976) (suggesting the appointment of standby counsel to help
smooth out “the rough edges” of pro se criminal pretrial detainee litigation).
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized a
defendant's Sixth Amendment right to conduct his own defense. The Court also held that a
trial court may appoint “standby counsel” to assist the pro se defendant in his defense if
the defendant agrees. Id. at 834, n.46; see McKaskle v. Wiggins, 465 U.S. 168, 187-188
(1984). However, neither Faretta nor any subsequent United States Supreme Court case
MEMORANDUM DECISION AND ORDER - 54
addresses the issues present in this case. In The Jailed Pro Se Defendant and the Right to
Prepare A Defense, the author observed:
The Faretta decision, it is true, makes scant mention of the
difficulties a pro se defendant may expect in presenting his
defense, and no mention at all of his difficulties in preparing
one. The decision casts much light around the historical base
of the right to self-representation, but leaves in darkness the
procedural superstructure which the trial courts must erect
upon that base.
86 Yale L.J. at 301–02.
The United States Supreme Court has provided no clear guidance to fill that gap. In
2005, that Court observed, “Faretta says nothing about any specific legal aid that the State
owes a pro se criminal defendant,” but it did not give any further clarification. Kane v.
Garcia Espitia, 546 U.S. 9, 10 (2005) (per curiam). In Kane, the Court held that a defendant
who elected to proceed pro se on state court charges did not have a viable habeas corpus
claim on the basis that he was denied access to a law library during pretrial confinement.
Id. (“[T]he court below … erred in holding, based on Faretta, that a violation of a law
library access right is a basis for federal habeas relief.”); see also United States v. Sykes,
614 F.3d 303, 311 (7th Cir. 2010) (stating that the “rule is that the defendant has the right
to legal help through appointed counsel, and when he declines that help, other alternative
rights, like access to a law library, do not spring up.”). (internal quotation marks and
alterations omitted).
In Faretta, the Supreme Court stated that the right of self-representation does not
equal a license not to comply with relevant rules of procedural and substantive law. 422
US at 834 n.46. In addition, under the Sixth Amendment, “a defendant’s right to present
MEMORANDUM DECISION AND ORDER - 55
relevant evidence is not unlimited, but rather is subject to reasonable restrictions.” United
States v. Scheffer, 523 U.S. 303, 308 (1998). “A defendant’s interest in presenting such
evidence may thus ‘bow to accommodate other legitimate interests in the criminal trial
process,’” and “state and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials” so long as the rules are not
“arbitrary” or “disproportionate to the purposes they are designed to serve.” Id. (citing Rock
v. Arkansas, 483 U.S. 44, 55-56 (1987).
Indigent defendants are entitled to the basic tools of an adequate defense, including
the provision of expert assistance at public expense when such is necessary for a fair trial.
Ake v. Oklahoma, 470 U.S. 68, 82–83 (1985). However, an indigent defendant does not
have a constitutional right “to choose an [expert] of his personal liking.” Id. at 83.
Piecing together a guide for trial courts that balances an indigent pretrial detainee’s
due process right to prepare for trial with the limitations he has imposed on himself by
invoking the right of self-representation, this Court concludes that incarcerated pro se
defendants need not be granted everything they want simply by invoking the Trombetta
due process right to present a defense, but they must work within reasonable, case-specific
parameters set by the trial court. If defendants reject the regular aids set up to facilitate
their due process rights, such as expert witnesses and standby counsel, that is a detriment
they implicitly have agreed to bear. A decision of a pro se person acting as his or her own
counsel cannot later be challenged as ineffective. See Wiggins, 465 U.S. at 177 n.8.
On federal habeas corpus review, “petitioners ‘are not entitled to habeas relief based
on trial error unless they can establish that it resulted in ‘actual prejudice.’” Davis v. Ayala,
MEMORANDUM DECISION AND ORDER - 56
576 U.S. 256, 267 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).) The
United States Supreme Court has clarified that, when a state appellate court has undertaken
a harmless error review under Chapman v. California, 386 U.S. 18 (1967), the federal
district court reviewing the decision under § 2254 applies the harmless error analysis under
Brecht v. Abrahamson, 507 U.S. 619 (1993). See Fry v. Pliler, 551 U.S. 112, 120 (2007)
(“Brecht obviously subsumes AEDPA/Chapman review”). Under Brecht, a federal habeas
court that determines constitutional error occurred cannot grant a writ of habeas corpus
unless the error “had substantial and injurious effect or influence in determining the jury’s
verdict.” 507 U.S. at 638. Under the Brecht harmlessness analysis, “if a judge is in grave
doubt” about the effect of the error on the jury, the error is deemed harmful. O’Neal v.
McAninch, 513 U.S. 432, 438-39 (1995).
C. Subclaim 3(b)
The Court first considers Subclaim 3(b), because it provides a context for
consideration of Subclaim 3(a). Claim 3(b) is an alleged denial of due process resulting
from the trial court denying his request to access the forensic and electronic evidence
during the time period in between the two trials (the court reasoned that Petitioner had been
prepared for the first trial and had caused the mistrial, and thus he was already prepared for
the second trial); As above, the general standard of law governing this claim is that a
defendant is guaranteed the Fourteenth Amendment right to a meaningful opportunity to
present a complete defense, including having access to the evidence to be used against him.
Trombetta, 457 U.S. at 485.
MEMORANDUM DECISION AND ORDER - 57
i.
State Court Decision
As to subclaim 3(b), the Idaho Court of Appeals concluded that, even though
Petitioner had ample opportunity to access State’s Exhibit 30 (CD 1 and 2 containing the
forensic report and photographs) and Exhibit 23 (the Omohundro CD) before his first trial,
the trial court violated his due process rights by failing to allow him additional access for
trial preparation before his second trial. State’s Lodgings A-12, p. 13; A-3, pp. 2196-98,
2274-2277.
However, the Idaho Court of Appeals concluded that this error was harmless:
Brackett claims that denying him access to the evidence during
the three months before the second trial meant that he could not
review the images the state alleged to be sexually exploitative
as he readied himself for the second trial and impacted his
ability to prepare a defense. The images had not changed and
allowing Brackett to access and view the images, some of
which were images of the victim’s genitals, would not have
changed whether they were sexually exploitative. Brackett was
aware of the images and knew what they depicted, based upon
his prior access, sufficient to prepare a defense to whether they
were sexually exploitative. Accordingly, the district court’s
denial of access was harmless error.
Id., p. 14.
ii.
Discussion
This Court agrees that Petitioner’s due process rights were violated when he was
not given access to evidence between the two trials. To show that the error was harmful to
his defense, Petitioner argues that he could have found metadata on the SD card showing
that the photographs were not taken from the SD card in his camera, but were taken from
Jack “Bud” Omohundro’s Samsung camera, which was the same color and model of
MEMORANDUM DECISION AND ORDER - 58
Petitioner’s. See Dkt. 49-11, p. 2. Had he been able to compare the metadata from the
original SD card and the Omohundro metadata, he argues, he would have been permitted
to introduce the Omohundro CD to the jury to show that Omohundro had clothed
photographs of N.B., as well as pornographic photographs of adult women, on his camera.
Dkt. 49, pp. 65-66.
The question on habeas corpus review is whether the Idaho Court of Appeals’
decision that the error did not harm Petitioner’s defense is contrary to, or an unreasonable
application of, United States Supreme Court precedent. In other words, did Petitioner’s
lack of access to the electronic materials in the three months prior to the second trial
foreclose his ability to assert that Omohundro was an alternative perpetrator, or did the
denial otherwise prejudice his defense?
During the first trial, the Twin Falls County Jail made accommodations to allow
Petitioner the opportunity to access the original SD card and the forensic report, which
contained the exploitative photographs of the victim, Petitioner’s body, and Petitioner’s
genitals. See State’s Lodging A-3, p. 2113. No new evidenced was added by the State
during this time period. The trial transcript, in fact, reflects that Petitioner had sufficient
familiarity with the photographic evidence that he was able to point to those photographs
he believed did not match his body features and compare them to other photographs of his
body. See State’s Lodging A-7. He had familiarity with the forensic report and the metadata
for the photographs, shown by the detailed manner in which he cross-examined the forensic
expert. See id. Here, Petitioner has not shown that examining the evidence a second time
would have enabled him to make the offer of proof required to present evidence to the jury
MEMORANDUM DECISION AND ORDER - 59
that Omohundro, not Petitioner, took the nude photographs of N.B.
Even assuming Petitioner would have been able to introduce the Omohundro CD,
the totality of the evidence against Petitioner remains overwhelming. Officer Todd Rudner
testified that, in reviewing a jail conversation between Petitioner and Brandon Estes,
Petitioner referred to N.B. and himself as “a couple.” State’s Lodging A-7, p. 951.
Petitioner’s own adult daughter testified that she saw the couple holding hands, that she
saw the minor victim kiss Petitioner on the lips, and that the minor victim slept in
Petitioner’s bedroom. State’s Lodging A-7, pp. 2559-2561. Telephone records showed that
Petitioner and the victim had 158 phone contacts in October 2010; 365 in November 2010,
and 84 in December 2010. There were 24 calls exchanged between them on January 3, 16
calls on January 4, and 26 calls on January 5. State’s Lodging A-7, pp. 954-975. N.B.
testified that she spent the entire two weeks of winter school vacation at Petitioner’s house,
accounting for the reduced number of calls; the couple broke up in early January. See id.,
pp. 314-315.
N.B. also testified that Petitioner persuaded her to keep the relationship secret, and
that he often kept his face hidden when they were out in public together. State’s Lodging
A-7, pp. 262-266. The prosecutor introduced Exhibit 22, a photograph of Petitioner and
N.B. to illustrate that Petitioner “wore [his] hoodie … pulled up, kind of over his face.” Id.,
p. 516. See id., pp. 2822 (referencing State’s Exhibits 20 and 21, where Petitioner wore a
hood and a mask). N.B. wrote Petitioner a set of love poems, one of which discussed him
being “always hooded and/or hatted.” Id., p. 515. Another poem titled, “Our Love,”
contained a phrase, “Nobody needs to know about us.” Id., p. 263. N.B. testified that she
MEMORANDUM DECISION AND ORDER - 60
wrote that because Petitioner “asked me not to tell anybody …. [t]hat me and him were
dating.” Id.
Cell phone evidence showed that N.B. and Brackett utilized the code number “123”
to mean “I love you,” State’s Lodging A-7, p. 265, “456” to indicate “I miss you,” id., and
“911” to communicate any concern that someone was becoming suspicious of their
relationship, or that either of them was in trouble. Id., p. 266. During a recorded
confrontation call between N.B. and Petitioner that was arranged by authorities and
admitted into evidence, Petitioner said “911.” Id., pp. 539-545. The officer who arranged
the confrontation call interpreted Petitioner’s use of that code number as an indication that
Petitioner knew N.B. had gone to the police. Id., p. 545.
The belt buckle, shoes, and pants in the exploitative photos were identified as
Petitioner’s. The belt buckle retrieved from the jail is the same belt buckle in some of the
photographs; the victim also identified the belt buckle as one Petitioner wore every day.
State’s Lodging A-7, pp. 82-85. White Adidas tennis shoes with a black stripe were found
at Petitioner’s home, were seen in some of the photographs, and were mentioned by
Petitioner in a telephone call while at the jail. Id., pp. 986-989. Petitioner also mentioned
in the telephone call that the black Aeropostale pants—which were also in the
photographs—were his favorite pair of pants. Id., p. 1131.
Petitioner’s defense surrounding the Omohundro photos is unclear. Petitioner would
have been left to argue that Omohundro took the intimate photos of Petitioner and N.B.,
which meant Petitioner would essentially be admitting to the other set of charges related to
having a sexual relationship with a minor, or Petitioner would have had to argue that
MEMORANDUM DECISION AND ORDER - 61
Omohundro was wearing Petitioner’s pants, belt, and shoes in the photographs. An
argument that another man would be both wearing Petitioner’s clothing and being
photographed with a teen that Petitioner treated as his girlfriend is unconvincing.
The investigator testified at trial that, after comparing the photographs from the
camera to the photographs taken of Petitioner during the warrant of detention, “[t]here was
a – like a mark or a blemish that was on his right hand that appeared to be consistent with
the photograph of the right hand that was holding the penis in [N.B.’s] mouth.” State’s
Lodging A-7, pp. 1190-1195. Petitioner himself testified, “It looks to be my hand” in the
photo holding the penis, but added, “I don’t know how they did it or what they did,”
insinuating that his hand was photoshopped into the photo by investigators.” Id., p. 2687.
The jury had three and half weeks of trial to assess the credibility of the minor
victim and the forensic investigators versus the credibility of Petitioner. See State’s
Lodging A-7. Given the presence of Petitioner’s belt buckle, pants, shoes, and hand in the
photographs that were the subject of the criminal charges (and the phone calls, the kissing,
the handholding, and the shared bedroom), it is unlikely that the jurors would believe that
Jack “Bud” Omohundro was snapping nude photographs of Petitioner and N.B. (or even
less likely, that Omohundro was snapping nude photos of himself and N.B.), rather than
believe that Petitioner was taking nude photographs of himself and his teenaged girlfriend,
because she was, in actuality, his girlfriend, and Petitioner had taken his girlfriend to
Omohundro’s rented space to use the exotic dancer’s “stripper pole,” as N.B. called it, for
a backdrop. See id., p. 271.
Petitioner’s argument that his conviction is invalid rests on allegations of
MEMORANDUM DECISION AND ORDER - 62
a
government-wide conspiracy to manufacture evidence to find him guilty. Petitioner was
able to point out several minor technical discrepancies in the forensic photography
recovery process, but his hours-long cross-examination of Detective Lukasik only
highlighted that the detective was both skilled and careful in his occupation. Petitioner’s
cross-examination of the State’s witnesses revealed no bias or prejudice showing that one
or more of them had any motive or ability to “photoshop” Petitioner’s pants, belt buckle,
shoes or hand into the photographs. Petitioner has not, in all the years since his conviction,
been able to show how his defense would have been strengthened had he personally been
given access to the evidence during the three-month trial gap.
Petitioner also complains that he was not permitted to point to N.B.’s father or Mr.
Cerimovic as alternative perpetrators. The court made it clear in pretrial proceedings that
alternative perpetrator evidence would be inadmissible absent an offer of proof, during the
trial, establishing the direct connection between the alleged perpetrator and the crimes at
issue here. See State’s Lodgings A-3, p. 1620; A-7, p. 1507.6 Whether other adult males
perpetrated sexual crimes upon N.B. is not relevant to the particular acts charged against
Petitioner.7 In all the years since his conviction, he has not shown that the hand in the
6
In Hartman v State, 376 N.E. 2d 100 (Ind. App. 1978), the court rejected the defendant’s contention that
the trial court had erred in prohibiting him from presenting his alibi defense because of his failure to file a
timely and correct notice of alibi when he was acting as his own attorney. The court held that, although
some allowance is made for persons proceeding without counsel, a defendant acting as his own counsel
must be held to the established rules of procedure, the same as trained legal counsel. Pointing out that the
defendant’s failure to meet the statutorily required conditions precedent to admission of alibi evidence was
contrary to the purpose of the alibi notice statute, the court concluded that the trial court was acting within
its discretion in granting the prosecution’s motion to keep out the alibi defense.
7
Mr. Brown, when representing Petitioner, filed a notice of intent to introduce Rule 412 (non-rape shield)
evidence, which was that a 20-year-old man named Andy Anderson had sex with N.B. after N.B. went to
his house to receive comfort when she was having problems with Petitioner sometime between October
MEMORANDUM DECISION AND ORDER - 63
photograph belonged to any of the alternative perpetrators. He has not shown that any of
these men borrowed his shoes, his favorite pants, and the belt buckle he wore every day.
Habeas corpus relief on subclaim 3(b) is not warranted because Petitioner has not
shown that being deprived of access to the State’s evidence between the two trials rendered
the criminal defense “far less persuasive,” Chambers, 410 U.S. at 294, or that nonaccessibility during that time frame had a “substantial and injurious effect or influence” on
the jury's verdict, Brecht, 507 U.S. at 637. The error was harmless.
D. Subclaim 3(a)
Subclaim 3(a) is whether it was error for the state district court to fail to provide the
original SD card from the Samsung camera found at Petitioner’s house, or an exact copy
of that SD card, to Petitioner for his examination, rather than providing only the data that
the State asked for that was allegedly found on the original SD card. Petitioner’s appellate
counsel characterized this claim on appeal as whether Petitioner’s expert was entitled to
access to the original or an exact copy of the SD card. See State’s Lodgings A-9, pp. 5153; A-3, pp. 2274-77.
i.
State Court Decision
The Idaho Court of Appeals decided subclaim 3(a) (couched in terms of denial of
access of Petitioner’s expert—because that is how Petitioner’s appellate counsel presented
it) on procedural grounds and alternatively on the merits. As to the original SD card, the
appellate court first determined that “[i]t is uncontested that under Rule 16(m)(3) an
2010 and January 2011. See State’s Lodging A-3, pp. 451-453. The trial court ruled the evidence
inadmissible. Id., pp. 504-513.
MEMORANDUM DECISION AND ORDER - 64
individual who Brackett might seek to qualify as an expert, such as an independent analyst,
was entitled to access the SD card had Brackett moved the court to allow an expert access
to the evidence.” State’s Lodging A-12, p. 12. But, the Court of Appeals continued,
Petitioner never requested that of the trial court, and, thus, the claim was not properly
preserved for appeal. State’s Lodging A-12, p. 12 (relying on State v. Fodge, 824 P.2d 123,
126 (1992)).8 This factual finding is technically correct, because, though Petitioner sought
access to the original camera and SD card for his first expert, he never requested that same
access for his second expert. Petitioner later sought access only for himself, but, by that
time, the first trial had begun and ended, and the trial court would not require a new jail to
provide special access for Petitioner, given that he was already on notice of the evidence
the prosecution planned to use at trial.
As to an exact copy of the SD card, the Idaho Court of Appeals held that “the district
court did not err in denying Brackett’s request for a copy of the SD card or forensic report,
which contained sexually exploitive materials,” because Idaho Criminal Rule 16(m)
provides that a court shall deny any request to reproduce sexually exploitive material. Id.,
p. 12.
Despite the procedural default of the claim that Petitioner’s expert did not have
access to the original SD card, the Idaho Court of Appeals went on to conduct a harmless
error review. The Court of Appeals concluded that, even if the trial court erred, the error
8
This ground is considered an adequate and independent state procedural ground for refusal to hear a claim
on appeal because it is a longstanding rule of the Idaho Supreme Court. See, e.g., Gosch v. Idaho, 2017 WL
4820348, at *3 (D. Idaho Oct. 25, 2017).
MEMORANDUM DECISION AND ORDER - 65
was harmless because “there is nothing in the record that suggests Brackett had access to
the sophisticated software needed to restore and access the deleted contents.” State’s
Lodging A-12, p. 13. “Thus,” the court concluded, “granting Brackett access to the original
SD card or an exact copy thereof would have been of no benefit to Brackett in preparing
his defense.” Id., pp. 13-14.
ii.
Discussion
This Court concludes that it was a due process error to withhold the original SD card
used in the detective’s forensic analysis when Petitioner asked to examine it in between the
two trials. However, before the first trial ended in mistrial, there was no due process
violation, because there was a standing order that Petitioner and his expert could examine
the original evidence.9
But, like the Idaho Court of Appeals, this Court concludes that the error was
harmless.
Here, Petitioner argues:
What they [local authorities] did exactly your Honor is they
retrieved images from multiple devices and/or the search of
Jack Omohundro’s home on 6-9-11 loaded them on to an
“Acer” computer got an SD card, (the one alleged) and
downloaded the images from the computer to the SD card
alleged and said they found it in a camera retrieved from my
daughter. This is why I wasn’t allowed a mirrored image of SD
card alleged, to continue to view evidence after mis-trial and/or
an expert of my choosing after the McLaughlin “crook” expert
that “worked for the court,” not Petitioner.
9
While the examination order specifies Petitioner’s first expert’s name, it is abundantly clear from the
record that the court substituted Petitioner’s second expert, Mark McLaughlin, for all purposes and would
have permitted Mr. McLaughlin to examine the evidence had Petitioner not refused to use him.
MEMORANDUM DECISION AND ORDER - 66
Dkt. 49, pp. 17-18.
First, this Court agrees with the Idaho Court of Appeals that, even if Petitioner had
been given access to the original SD card, he has not demonstrated that he had access to
the specialized software or equipment necessary to forensically analyze the electronic data
himself. Petitioner argues that he should have been given access to the software to review
the original SD card. The Court disagrees. Simply because Petitioner chose to represent
himself does not mean that he was entitled to have personal access to the software an expert
would have—Petitioner had the choice to continue to employ the expert chosen by
Petitioner and appointed by the court to be able to have that access, but he chose not to
continue to employ Mr. McLaughlin and has not shown adequate reason why he should
have been able to change experts.10 Petitioner has not shown he had the ability to hire a
different expert on his own without public funding. Therefore, due process did not require
Petitioner to have both access to the original evidence and the software to review it himself
or a third publicly-funded expert of his choice.
Addressing Petitioner’s argument that access to the original SD card would have
helped him prove that the photographic evidence was fabricated by law enforcement
officers, the Court finds that Petitioner has not provided sufficient admissible evidence that
Detective Lukasik or Officer Barzee (or anyone else) altered the evidence, as Petitioner
suggests, either as part of a larger conspiracy or for the investigator’s own purposes. See
State’s Lodging A-3, pp. 2206, 2283. Petitioner’s conspiracy theory includes (1) that
10
McLaughlin’s curriculum vitae is found at A-4, pp. 138 -139.
MEMORANDUM DECISION AND ORDER - 67
investigators did not obtain the SD card from his residence but “planted it” in the camera,
(2) that investigators took photos from Omohundro and placed them on the SD card, (3)
that investigators photoshopped his hand onto the penis photograph, (4) that investigators
altered the telephone message to his daughter asking her to erase the photographs, (5) that
the prosecutor had a scheme to launder a payment to the victim through an otherwise
legitimate counseling service, and (6) that the prosecutor brainwashed and coerced the
Petitioner into lying at the trial. Somewhere in the mix of things, Petitioner was also
asserting that it was not he who carried on a sexual relationship with N.B., but instead it
was Andy Anderson, Senad Cerimovic, or N.B.’s father.
To the contrary, all of the other evidence naturally and readily points to Petitioner
as the perpetrator. No habeas corpus relief is warranted because there is no evidence that
Petitioner could have made use of the SD card without the aid of additional software or a
third expert—neither of which he was entitled to. The court’s refusal to permit Petitioner
to examine the original SD card was harmless error. The error did not render the criminal
defense “far less persuasive,” Chambers, 410 U.S. at 294, nor did it have a “substantial and
injurious effect or influence” on the jury's verdict.
4. Claim 4
Claim 4 is that the “money judge” appointed to consider Petitioner’s requests for
funding for investigative and expert services violated his constitutional rights by limiting
his requests for additional funding.
A. State Court Decision
The Idaho Court of Appeals analyzed and rejected Petitioner’s claim as follows:
MEMORANDUM DECISION AND ORDER - 68
In this case, the money judge considered Brackett’s request to
appoint a third expert and determined that an adequate defense
was available without the assistance of the third expert. As the
United States Supreme Court held, an indigent defendant does
not have a constitutional right “to choose an [expert] of his
personal liking.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096, 84
L.Ed.2d at 66. The money judge found that the second expert
was competent and willing to adequately provide the services
sought by Brackett in preparation of his defense. In addition,
the money judge indicated to Brackett that it was “likely” that
it would grant additional funds for the second expert to
continue working on Brackett’s case. However, Brackett failed
to follow the proper procedure to seek funds and utilize his
expert’s assistance. The money judge's decision to deny
Brackett’s request for funds for a third expert was not clearly
erroneous or unsupported by the circumstances of the case.
Accordingly, Brackett has not shown that the money judge
abused its discretion in denying Brackett’s request for funds to
hire a third expert.
State’s Lodging A-12, pp. 14-18.
B. Standard of Law
The Idaho Court of Appeals set forth the correct clearly-established law: Ake v.
Oklahoma, 470 U.S. at 82–83 (holding that the Constitution guarantees an indigent
defendant access to a “competent” expert, chosen by the trial court, who will conduct an
“appropriate” examination of the evidence and “assist in evaluation, preparation, and
presentation of the defense,” but not an expert “of his personal liking”); and Britt v. North
Carolina, 404 U.S. 226, 227 (1971) (reiterating that “the State must, as a matter of equal
protection, provide indigent prisoners with the basic tools of an adequate defense.”).
C. Discussion
In this action, Petitioner explains his problems with Mr. McLaughlin as follows:
The second [expert] McLaughlin would not talk with me until
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he was appointed, so once he was appointed he would not
adhere to my request to come and view evidence with me to
prepare for a suppression hearing, said he “listens to the court
not” me. And got the $5000.00 without the “defendant”
providing any request or affidavit to support the expenditure of
any public funds as required. The court said it would allow
more funds but not a different expert showing the interest of
keep this “McLaughlin.” The defense had multiple other
experts ready some for even less money and that the defense
trusted. Once “McLaughlin” (expert) took (without any
“request,” “motion,” affidavit” from the defendant as required)
the $5000.00 allowed for absolutely no digital evidence
investigating, the defendant had absolutely no confidence in
this person. And if additional funds are available upon request
who cares what expert the defense requests. As long as their
(the expert) resume (CV) checks out. More due process and
purposeful violations of fundamental fairness “manifest
constitutional error” “clear manifest constitutional error.”
Dkt. 28-1, p. 4 (verbatim).
Petitioner demanded a third expert be appointed, but the state court reasonably
declined. The state court clarified:
This court has not denied the defendant the appointment of an
expert. The appointment of Mark McLaughlin is still in effect
and there is no showing that Mr. McLaughlin is unable to
provide the expert assistance and services required by the
defendant or that he is otherwise unqualified. The mere fact
that the defendant may have an unsubstantiated lack of
confidence in Mr. McLaughlin is not a legitimate basis to
appoint yet another expert.
State’s Lodging A-4, p. 277.
Petitioner provides no adequate reason why the second expert should not have been
permitted to continue his work on the case, rather than having a third expert redo and charge
a third time for the foundational work completed by the first and second experts. Petitioner
argued that he would engage an expert only if the expert would let him sit beside him
MEMORANDUM DECISION AND ORDER - 70
throughout the expert’s analysis of the photographic evidence, and only the third expert
indicated that Petitioner could help him in such a manner. Petitioner’s right to have expert
assistance at taxpayer expense does not extend that far. State’s Lodging A-4, pp. 230-39.
The state district court and the Idaho Court of Appeals found that Petitioner did not
show that the second expert was not competent; could not perform an adequate
examination; or could not assist in the evaluation, preparation, and presentation of
Petitioner’s defense in a reasonable manner. See State’s Lodging A-4, pp. 240-244, 32325, 368-371. Petitioner has not rebutted this finding with clear and convincing evidence.
Petitioner believed that McLaughlin charged too much for the preliminary work he
had done; however, the court approved the work and had him paid over Petitioner’s
objection. There is insufficient evidence in the record showing that McLaughlin was
“crooked,” untruthful, or incompetent. Because there is no adequate reason in the record
why the second expert should not have been permitted to complete his work or could not
have adequately assessed the electronic evidence, the Court agrees that Petitioner has failed
to show that the Idaho Court of Appeals’ decision was contrary to, or an unreasonable
application of, United States Supreme Court precedent. Petitioner is not entitled to relief
on Claim 4 under AEDA’s deferential review standard.
5. Claim 5
Petitioner asserts that cumulative error combined in his case to cause prejudice to
his defense.
A. Standard of Law
A cumulative-error analysis aggregates all errors found to be harmless and analyzes
MEMORANDUM DECISION AND ORDER - 71
whether their cumulative effect on the outcome of the trial is such that collectively they
can no longer be determined to be harmless, and the court considers whether the defendant's
substantial rights were affected by the cumulative effect of the harmless errors. The United
States Supreme Court has clearly established that the combined effect of multiple trial
errors may give rise to a due process violation if it renders a trial fundamentally unfair,
even where each error considered individually would not require reversal. Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974); Chambers v Mississippi, 410 U.S. 284, 290 n.
3, 298, 302-03 (1973). The fundamental question in determining whether the combined
effect of trial errors violated a defendant’s due process rights is whether the errors rendered
the criminal defense “far less persuasive,” Chambers, 410 U.S. at 294, and thereby had a
“substantial and injurious effect or influence” on the jury's verdict, Brecht, 507 U.S. at 637
(internal quotations omitted). See, e.g., Killian v. Poole, 282 F.3d 1204 (9th Cir.
2002)(cumulative trial errors required grant of relief).
B. State Court Decision
The Idaho Court of Appeals rejected Petitioner’s cumulative error claim on appeal,
concluding that:
[A] necessary predicate to the application of the doctrine is a
finding of more than one error. Id. Brackett has only shown
that the district court erred in denying him access to evidence.
Accordingly, Brackett has failed to demonstrate at least two
errors, a necessary predicate to the application of the
cumulative error doctrine.
State’s Lodging A-12, p. 18.
MEMORANDUM DECISION AND ORDER - 72
C. Discussion
This Court agrees. Even if the subclaims regarding the forensic photographic
evidence is considered two errors, rather than one—that Petitioner did not have access to
an exact copy of the SD card because he did not comply with court’s rulings on the expert
witnesses and he did not have access to that or any of the other previously-reviewed
evidence for three months in between the trials—the other evidence against Petitioner is
overwhelming. There is nothing in the record showing that, had Petitioner had access to
the evidence between trials that the State’s evidence would have been far less persuasive.
The State’s evidence was not just plentiful, but varied, as set forth above.
6. Claim 6
Even though the Court has concluded that Claim 6 is procedurally defaulted, it will
review the merits of the claim. It must do so do novo, because the Idaho appellate courts
did not render a decision on the merits of this claim. Petitioner asserts that Idaho Code §
18-1508A, the statute pursuant to which Brackett was convicted of five counts of sexual
battery of a minor, is unconstitutional because it precluded him from presenting a complete
defense. See State’s Lodging A-3 (Counts IX-XVI). In particular, he asserts that the statute
should have required the State to prove that Petitioner knew that the victim was a minor at
the time he engaged in sexual relations with her.
The statute at issue, I.C. § 18-1508A (1992), provides:
SEXUAL BATTERY OF A MINOR CHILD SIXTEEN OR
SEVENTEEN YEARS OF AGE — PENALTY. (1) It is a
felony for any person at least five (5) years of age older than a
minor child who is sixteen (16) or seventeen (17) years of age,
who, with the intent of arousing, appealing to or gratifying the
MEMORANDUM DECISION AND ORDER - 73
lust, passion, or sexual desires of such person, minor child, or
third party, to:
(a) Commit any lewd or lascivious act or acts upon or with the
body or any part or any member thereof of such minor child
including, but not limited to, genital-genital contact, oralgenital contact, anal-genital contact, oral-anal contact, manualanal contact or manual-genital contact, whether between
persons of the same or opposite sex, or who shall involve such
minor child in any act of explicit sexual conduct as defined in
section 18-1507, Idaho Code; or
(b) Solicit such minor child to participate in a sexual act; or
(c) Cause or have sexual contact with such minor child, not
amounting to lewd conduct as defined in paragraph (a) of this
subsection; or
(d) Make any photographic or electronic recording of such
minor child.
Petitioner asserts that the victim “falsified her identification” and admits to entering
adult establishments, bars, and nightclubs. Dkt. 49, p. 34. At trial, Petitioner elicited
testimony from a witness that he saw the victim using a fake ID to purchase items. Another
witness testified to having met the victim in a bar. The victim herself admitted to going
into bars. However, the victim and her friend testified that, when they first met Petitioner
they told him how old they were—sixteen. State’s Lodging A-7, pp. 218, 528-529.
Petitioner testified contrarily, even though he knew Petitioner was in high school, lived at
home, and had a fake ID, and therefore, should have inquired about her true age from
another reliable source. The fact that Petitioner hid his face in public when he was with
N.B., told her to keep their relationship a secret, and never met her parents are indications
that Petitioner knew there was something wrong with carrying on the relationship.
MEMORANDUM DECISION AND ORDER - 74
A. Standard of Law
Courts have universally rejected the “I-didn’t-know-my-sexual-partner-was-aminor” defense as to “statutory rape” offenses in both state and federal jurisdictions.
Rather, “statutory rape is a recognized judicial exception to the general principle that
mistake of fact is a defense if it negatives the existence of a mental state essential to the
crime charged.” United States v. Juvenile Male, 211 F.3d 1169, 1170–71 (9th Cir. 2000)
(per curiam) (internal quotation omitted); see also Morissette v. United States, 342 U.S.
246, 251 n. 8 (1952) (noting that common-law commentators recognize statutory rape as
an exception to general principles of criminal intent). “Accordingly, federal courts
uniformly have rejected claims that the Constitution requires the government to prove that
a defendant charged with statutory rape knew that the victim was underage, or that such a
defendant has a constitutional right to the defense that he made a reasonable mistake as to
the victim's age.”); United States v. Wilcox, 487 F.3d 1163, 1174 (8th Cir. 2007)(collecting
cases).
In United States v. Brooks, 841 F.2d 268 (9th Cir. 1988), the court held that
there was no defense of reasonable mistake of age to the charge of statutory rape because
Congress failed to provide for such a defense in the statute. Id. at 269. The court therefore
“infer[red] that [Congress] accepted the established judicial interpretation of the offense of
statutory rape.” Id. When a court construes a statute, “[i]t is always appropriate to assume
that our elected representatives, like other citizens, know the law.” Cannon v. University
of Chicago, 441 U.S. 677, 696–97 (1979). The Brooks court concluded:
Brooks suggests that section 2032 violates due process
MEMORANDUM DECISION AND ORDER - 75
because it imposes strict liability in a fundamentally unfair
manner, since he may not have had an opportunity to know the
age of the female. No federal court has so held. We see no
reason to depart from the observation of the First Circuit which
rejected a similar constitutional attack on a state statutory rape
law. It stated [t]he Supreme Court has never held that an honest
mistake as to the age of the prosecutrix is a constitutional
defense to statutory rape ... and nothing in the Court's recent
decisions clarifying the scope of procreative privacy [citations
omitted] suggests that a state may no longer place the risk of
mistake as to the prosecutrix's age on the person engaging in
sexual intercourse with a partner who may be young enough to
fall within the protection of the statute. Petitioner's argument is
without merit.
841 F.2d at 270.
B. Discussion
The Court concludes that Petitioner’s argument has no support in the law. Because
Idaho lawmakers did not include a defense of lack of knowledge of the victim’s age, the
Court cannot insert one, but must assume that the lawmakers knew and rejected that option.
Neither does the Court have any reason to depart from those courts holding that the failure
to include such a defense does not violate the federal Constitution. Accordingly, Claim 6
is denied on the merits under a de novo review standard.
CONCLUSION
From the thickets of the forest, it may be difficult for Petitioner to see how
overwhelming the evidence against him is, but an objective adult with a view of the entire
landscape can come to no conclusion other than that Petitioner made a very grave
decision—either with knowledge of the victim’s age (as the victim and her friend testified)
or with “purposeful ignorance”—to carry on a sexual relationship with a minor and to
MEMORANDUM DECISION AND ORDER - 76
photograph the minor nude. Reasonable adults would have taken steps to determine if a
high school junior was an adult before doing what Petitioner did with the victim.
Reasonable adults would have checked the true age of a high school student who was
known to carry a false ID card. The law is intended to protect minors from sexual
exploitation, even if the minors act badly sometimes, because that is, after all, a normal
feature of a child. This case is a prime example of why the law exists and how its existence
protects minors to the degree it can when adults choose sexual gratification over the welfare
of a person whom society has designated a child.
Petitioner’s claims fail on the merits, and some are barred on procedural grounds,
but the Court has nonetheless addressed them on the merits. This Court agrees with the
Idaho Court of Appeals that the due process violation depriving Petitioner of the electronic
evidence for the three months between trials did not have a substantial and injurious effect
or influence in Petitioner’s trial. Petitioner was thoroughly familiar with the subject matter
of the photographs. He chose to dismiss his appointed expert and had no means to do the
type of forensic analysis that expert could have done with specialized software. The
evidence against Petitioner was overwhelming. The theory that government officials
conspired against him in all of the ways discussed above has no support and is simply
implausible, given the State’s overwhelming evidence. Petitioner’s other claims do not
warrant relief. This entire action will be dismissed with prejudice.
The Court does not find its resolution of any claim in 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.
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ORDER
IT IS ORDERED:
1. Petitioner’s Motion Requesting Oral Argument or to Appoint Counsel (Dkt. 54) is
DENIED in part; Petitioner’s Motion for a Ruling (Dkt. 54) is GRANTED in part.
2. The Amended Petition, and this entire case, are DISMISSED with prejudice.
3. No certificate of appealability will issue. If Petitioner files a timely notice of appeal,
the Clerk of Court shall forward a copy of the notice of appeal, together with this
Order, to the United States Court of Appeals for the Ninth Circuit. Petitioner may
seek a certificate of appealability from the Ninth Circuit by filing a request in that
court.
DATED: October 20, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge
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