Ash v. Blades
Filing
30
MEMORANDUM DECISION & ORDER The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED and DISMISSED with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TERRY LEE ASH,
Case No. 1:17-cv-00308-REB
Petitioner,
MEMORANDUM DECISION
AND ORDER
v.
RANDY E. BLADES,
Respondent.
Petitioner Terry Lee Ash filed a Petition for Writ of Habeas Corpus challenging
his state court conviction and sentences for driving under the influence and being a
persistent violator of the law. (Dkt. 3.) Petitioner’s first state court trial ended in mistrial,
but he was convicted in a second trial. All named parties have consented to the
jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt.
11.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Earlier in this matter, the Court granted Respondent Randy Blades’ Motion for
Partial Summary Judgment and dismissed with prejudice Claims 2(b), 3(a), 3(b), and
those portions of Claim 1 asserting violations of the Idaho Constitution. Respondent has
filed an Answer and Brief in Support of Dismissal addressing the remaining claims (Dkt.
29), and Petitioner has elected not to file a reply.
MEMORANDUM DECISION AND ORDER - 1
Accordingly, Claims 1 and 2(a) are ripe for adjudication. The Court takes judicial
notice of the records from Petitioner’s state court proceedings, which have been lodged
by the parties. 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
finds that the parties have adequately presented the facts and legal arguments in the briefs
and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Therefore, the Court enters the following Order denying Petitioner’s claims.
BACKGROUND FACTS UNDERLYING CONVICTION
(FROM SECOND TRIAL)
Two fishermen traveling to the Snake River on September 4, 2011, came upon
Petitioner about 7:00 a.m. Petitioner’s car had been wrecked into a ditch on the side of
the road. They stopped to see if Petitioner needed help. Petitioner said he had driven the
car into the ditch, expressed his gratitude for stopping to help, and asked the fisherman to
pull his car out of the ditch. The fishermen declined, but told Petitioner they would call
the sheriff’s department to help him. Petitioner “emphatically” told them no, he did not
want the sheriff’s department to be called. The fishermen left and called the sheriff’s
office because they were suspicious of the circumstances. (State’s Lodging A-5, pp. 7082.)
Ada County Sheriff’s Deputy Paul Lim arrived on the scene about 8:00 a.m. He
saw Petitioner’s car being towed by a tractor on the west shoulder of the road. Deputy
Lim did not check the original crash site, but remained with Petitioner and his car.
Deputy Lim asked Petitioner whether he had been drinking, and Petitioner replied that he
MEMORANDUM DECISION AND ORDER - 2
had not been drinking before the crash, but after the crash he had drunk one 16-ounce
Ranier beer while he was sitting in the car for two hours waiting for help.
Deputy Lim testified at trial that Petitioner told him he crashed because his coffee
was spilling, but Deputy Lim did not see any coffee stains or wet marks on Petitioner or
in the car. (Id., pp. 109-113.) Deputy Lim observed what he classified as thick speech or
slurred speech from Petitioner, and administered field sobriety tests t Petitioner. (Id., pp.
83-114.) Petitioner failed the tests. Petitioner was smoking while talking with Deputy
Lim; when Petitioner finished his cigarette, he threw the butt on the ground. Deputy Lim
told him to pick up the butt, or he would cite him for littering. (Id.)
Deputy Lim transported Petitioner to the Ada County Jail testing center. At 9:11
a.m., Petitioner’s two Intoxilyzer 5000 EN tests registered blood alcohol content readings
of .130 and .133—within the range to be charged with DUI.
State’s expert Gary Dawson, who holds a Ph.D. degree in pharmacology, testified
that, taking into consideration the time frames above, he believed Petitioner’s high blood
alcohol level could not have been caused by drinking just one 16-ounce beer between the
time of the crash and the time the deputy arrived on the scene. Dr. Dawson estimated that
it would have taken about six or seven 12-ounce beers for the blood alcohol content
reading of 1.3, and that one 16-ounce beer would have yielded only a .02 to a .03 level.
That is, if a male of average height and average weight drank one beer, it would be out of
his system and virtually undetectable within one hour. (Id., p. 127-146.)
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Dr. Dawson testified that, given that the breath test was administered about two
hours after Petitioner stated he drank the one can of beer that would have been
metabolizing out of his system within an hour, at the time of the wreck Petitioner’s
“blood alcohol had to be much higher than would be attributable to just one 16-ounce can
of beer in order to maintain that level that long.” (Id., p. 149.) In summary, Dr. Dawson
agreed that it was scientifically impossible “for a person to have consumed one beer right
before the police show up—in this case before—at 7:30, eight o’clock, to drink one 16ounce beer to have blow a .13 an hour later.” (Id., p. 155.)
On cross-examination, Dr. Dawson agreed with defense counsel that, had
Petitioner drunk four beers, not one, after the wreck, that would mean that his blood
alcohol level at the time he wrecked the car would only have been approximately .05, not
enough to meet the DUI statutory minimum of .08 for an adult over 21. (Id., pp. 155-64.)
At trial Petitioner testified that he had actually drunk eight beers the day before the
wreck, and four beers after he wrecked. He said that, after the wreck, he threw three beer
cans out the window across the road and left only one in his car. He said he told the
deputy he had drunk only one beer, because he did not want to get cited for littering, after
the deputy threatened him about the tossed cigarette butt. Other trial evidence showed
that, when Petitioner was in the jail, he told his sister that he drank only one beer. (Id., pp.
184-202.)
Petitioner testified that he wrecked his car because one of his back tires went flat,
making the car a “little bit squirrely,” and, then another tire went flat. As he was trying to
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juggle his cup of coffee and the car, he “did a 180” and “put the car in the ditch, where it
got stuck.” (Id., p. 184-85.) Both of the flat tires, however, were on the passenger side of
the car where Petitioner ran the car into the ditch—suggesting that the tire damage did
not cause the wreck but occurred from contact with the ditch. (Id., pp. 204-05.) Deputy
Lim testified that Petitioner did not tell him that the tire had a part in causing the wreck;
Petitioner told him only about the spilled coffee. (Id., p. 112. ) Petitioner also testified
that he had a brain injury as a result of a fire he was in, and that is why his speech is
impaired. (Id., p. 188.)
After the second trial, Petitioner was found guilty of felony DUI. (State’s
Lodgings A-1, p. 135; A-5, pp. 1, 247.) He underwent a psychological evaluation before
sentencing. On October 17, 2012, a judgment of conviction was entered on the crime of
felony driving under the influence with a persistent violator enhancement. Petitioner
received a unified sentence of life imprisonment with fifteen years fixed. The sentencing
judge noted that Petitioner had been convicted of eleven prior misdemeanor DUIs and
five prior felony DUIs. (State’s Lodging A-5, p. 289-90.)
Petitioner pursued a direct appeal as well as state post-conviction remedies. (Dkt.
3 at 1-2.) He received no relief in state court.
DISCUSSION
Two claims remain to be adjudicated:
Claim 1
Petitioner’s trial counsel rendered ineffective
assistance by “failing to move to dismiss the second
prosecution as a violation of [Petitioner’s] state and
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federal constitutional protections against double
jeopardy” (Id. at 6), and
Claim 2(a)
1.
Petitioner was denied his right to be free from double
jeopardy. (Id. at 7.)
Claim 1: Ineffective Assistance of Counsel
A.
Standard of Law
Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), applies when a petitioner files a federal habeas corpus
action to challenge a state court judgment. That section 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).
The source of clearly established federal law must come only from the holdings of
the United States Supreme Court, but 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,
a habeas court is not permitted to use circuit law “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).
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To assess whether habeas corpus relief is warranted, the federal district court
reviews “the last state-court adjudication on the merits.” Greene v. Fisher, 565 U.S. 34,
41 (2011). The deferential standard of section 2254(d) applies regardless of whether the
state court decision “is unaccompanied by an opinion explaining the reasons relief has
been denied.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Id. at 99. When the last adjudication on
the merits provides a reasoned opinion, federal courts evaluate the opinion as the grounds
for denial. 28 U.S.C. 2254(d).
However, where the state’s highest court did not issue a reasoned decision, courts
within the Ninth Circuit review the decision of the Idaho Court of Appeals, using the
“look through” principle of Ylst v. Nunnemaker, 501 U.S. 797 (1991), and “presume the
higher court agreed with and adopted the reasons given by the lower court.” Curiel v.
Miller, 830 F.3d 864 (9th Cir. 2016).1
The clearly-established law governing a Sixth Amendment claim of ineffective
assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984).
Strickland dictates that, to succeed on an ineffective assistance claim, a petitioner must
1
The United States Supreme Court has since clarified: “In Ylst, we said that where “the last
reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later
decision rejecting the claim did not silently disregard that bar and consider the merits. 501 U.S., at 803,
111 S.Ct. 2590,” but that the presumption can be refuted by “strong evidence.” Kernan v. Hinojosa, 136
S. Ct. 1603, 1605–06 (2016).
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show that (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness, and that (2) the petitioner was prejudiced by the deficient
performance. Id. at 684.
In assessing trial counsel’s performance under Strickland’s first prong, a
reviewing court must view counsel’s conduct at the time that the challenged act or
omission occurred, making an effort to eliminate the distorting lens of hindsight. Id. at
689. The court must indulge in the strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance. Id.
In assessing prejudice under Strickland’s second prong, a court must conclude
that, under the particular circumstances of the case, there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different. Id. at
684, 694. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id. at 694.
A petitioner must establish both deficient performance and prejudice to prove an
ineffective assistance of counsel claim. 466 U.S. at 697. On habeas review, the court may
consider either prong of the Strickland test first, or it may address both prongs, even if
one is deficient and will compel denial. Id.
The foregoing standard, giving deference to counsel’s decisionmaking, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court explained:
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The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.
Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct review
of a criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are different. For
purposes of § 2254(d)(1), “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams, supra, at
410, 120 S.Ct. 1495. A state court must be granted a deference and latitude
that are not in operation when the case involves review under the Strickland
standard itself.
Harrington v. Richter, 562 U.S. 86, 112 (2011).
Within an ineffective assistance of counsel claim, the Court also reviews the law
governing the subject of the alleged deficient performance—here, double jeopardy.
Generally, a defendant’s motion for mistrial removes any double jeopardy bar to retrial.
Oregon v. Kennedy, 456 U.S. 667, 673 (1982). A narrow exception to this general rule
arises when the prosecutor intended to provoke the defendant into moving for a mistrial.
Id., p. 679. In that instance, double jeopardy attaches, because a defendant has “an
interest[] in having his case decided by the jury first selected.” Id., p. 672.
B.
Facts from First Trial Underlying Double Jeopardy Claim
Petitioner’s double jeopardy claim is based upon the following question and
answer at his first trial:
Prosecutor: Now, after he performed those FSTs [field
sobriety tests] and you arrested him, did he say
anything about drinking any more alcohol
besides the one beer?
Deputy:
He decided not to say anything more after that.
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Prosecutor: Once you transported him, where did you take
him?
Deputy:
To the Ada County Jail intoxilyzer room.
Prosecutor: And when you got there, what did you do?
(State’s Lodging C-1, p. 94 (emphasis added).)
At that point, defense counsel moved for a mistrial, arguing that “it’s reasonable to
assume that some of the jurors, especially after voir dire, that his failure to be completely
open with the police might work against him in this matter.” (Id., p. 96.) Petitioner’s
counsel reasoned that, simply because the answer “could be understood by the jury that
he did not decide to talk any further and could be held against him in the deliberations,”
declaring a mistrial was required. (Id., pp. 97-98.)
The trial court observed:
Certainly it is settled that it is erroneous for a prosecutor to
introduce the fact of post-arrest silence for the purpose of
raising an inference of guilt. Even in the form police
testimony regarding post arrest silence, it is improper for the
State to elicit police testimony of post-arrest silence as a
violation as certainly implication of defendant’s Fifth
Amendment rights. Certainly the defendant’s right to remain
silent attaches upon custody. And a prosecutor cannot use
post-custody silence to infer guilty in its case in chief.
(Id., pp. 99-100.)
The trial court asked the prosecutor to submit an affidavit explaining the reasoning
for her question and asked both sides to brief the issue. Id., pp. 101-02.
In her Affidavit, the prosecutor stated that she had reviewed several times a video
of Deputy Lim interacting with Petitioner. At no time in her reviews did she recognize
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that Petitioner actually stated he would be “standing on the Fifth”; she reasoned that she
did not hear that statement because Petitioner said it in a low tone during his pat down,
and she had no reason to believe that Petitioner had asserted his right to remain silent
because he continued to talk to the deputy throughout the video. To prepare for trial, the
prosecutor met with the deputy, but was unaware of Petitioner’s statement and thus did
not discuss it with the deputy. (State’s Lodging A-1, pp. 63-64.)
The prosecutor explained the objective of her question as follows:
In preparation for trial, your affiant learned from the
Defendant’s attorney through multiple discussions, that the
Defendant planned to testify that he consumed more alcohol
than he originally told the deputy and during voir dire at trial,
the Defendant’s attorney asked questions tending to suggest
that defense. Based on these factors, your affiant asked the
deputy if the Defendant ever said he had more than one beer
to preempt [that] defense.
(State’s Lodging C-1, p. 121.)
The prosecutor also averred that she understood how the Fifth Amendment
applies, that she would not intentionally violate that right, and that she did not
intentionally attempt to elicit testimony that would violate Petitioner’s right to silence.
(State’s Lodging A-1, p. 64.) In support of the State’s position, another prosecutor
argued: “There were statements the defendant made spontaneously while being
transported that she thought were relevant, and she was going toward that direction with
this line of questioning and didn’t understand or didn’t know this was going to occur until
the officer made the statement and pointed out to her where it was made—it’s not in the
police reports [or] in other matters.” (C-1, pp. 106-07.)
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The trial court pointed out that, for the prosecutor to have properly discussed postarrest statements with the jury present, she first should have laid a foundation to show
that a Miranda warning was given and waived. She did not provide any relevant
foundation to permit her to enter into the forbidden area of post-arrest statements.
Further, it was improper for a prosecutor to try to anticipate a defendant’s testimony and
prevent “rebuttal” evidence before a defendant testifies. “So,” the court reasoned, “the
bare question here simply asks the officer to testify about post-arrest statements,” even
though it is fundamental error for an officer to testify about post-arrest silence. (Id., p.
108.)
The trial court found that
the State’s inquiry about post-arrest silence was to influence
[Ash’s] decision about testifying to different facts than stated
by the officer. In this sense, [the prosecutor] certainly acted
intentionally. However, there is nothing in the record that the
State intended thereby to “provoke the defendant into calling
for a mistrial...” Rather it appears the deputy prosecutor acted
upon an inadequate understanding of the law. Therefore,
double jeopardy did not attach to [Ash’s] case and was not a
bar to subsequent prosecution....
Even if Ash’s trial counsel had objected or moved to dismiss
the second trial, the end result would have been the same.
(State’s Lodging D-4, pp. 5-6.)
Based on the submissions of counsel, the trial court “concluded that there was no
genuine issue of material fact about whether the prosecutor intended to provoke Ash into
moving for a mistrial, and concluded, in fact, that the prosecutor did not intend to
provoke him into moving for a mistrial.” (State’s Lodging D-4, p. 5.)
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C.
State Appellate Court Decision
On appeal, Petitioner re-asserted his claim that the prosecutor intended to provoke
him into moving for a mistrial by inquiring about post-arrest silence, and that his trial
counsel should have objected to the second trial as a violation of the Fifth Amendment’s
Double Jeopardy Clause. (State’s Lodging D-1.) The Idaho Court of Appeals affirmed
dismissal of Claim 1, concluding that an objection to the second trial on double jeopardy
grounds would not have been successful; thus, the claim failed under both prongs of
Strickland: counsel did not perform deficiently and prejudice did not result. (State’s
Lodging D-4, pp. 4-6.)
D.
Analysis
First, there is no unreasonable determination of the facts apparent from the record
because Petitioner has pointed to no set of facts supporting intentional “goading.” He
argues only that the Affidavit is inconsistent in that the prosecutor’s “averment that she
understands the Fifth Amendment and that she did not intend to violate it cannot be
true—because she either did not understand the Amendment or she did intend to violate
it, because she did violate it.” (State’s Lodging D-4, p. 5.) Another option Petitioner
ignores—made clear by the trial court’s explanation of the right way to try to present
such evidence—is that the prosecutor understood the Fifth Amendment only in a cursory
manner and violated it not because she intended to, but because she was suffering from
the classic myopia symptom of “not knowing what she did not know.” Regardless, the
true issue is whether there is evidence in the record that the prosecutor intended to cause
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Petitioner to invoke his right to a mistrial, not whether the prosecutor understood or
intended to violate the Fifth Amendment. Petitioner points to no such evidence.
This Court gives deference to the factual findings of the state trial and appellate
courts and to the legal conclusion of the appellate court. However, even without the
added layer of AEDPA deference, the claim still fails on de novo review. Application of
double jeopardy in the context of mistrial is very narrow. Double jeopardy does not
attach for any intentional act of the prosecutor, but only to “governmental conduct ...
intended to ‘goad’ the defendant into moving for a mistrial.” See Kennedy, 456 U.S. at
676. It is very clear from the entire record that the prosecutor’s intention was to try to
preclude Petitioner from testifying that he had drunk four beers after the wreck, instead of
sticking with what he told Deputy Lim and his sister—that he had drunk only one.
Whether out of negligence or ineptitude, the prosecutor thought she could pursue a line of
improper questioning with the object of cutting off what she perceived to be perjury
before it happened.
This Court concludes that Petitioner’s constitutional rights were protected by the
declaration of the mistrial. Because the problematic question was not for the purpose of
forcing Petitioner to request a mistrial, Petitioner had no constitutional right to be free
from being re-tried on the same charges. There is no double jeopardy violation apparent
from the record. Hence, the Idaho Court of Appeals’ decision is not an unreasonable
application of Strickland. Accordingly, relief under Section 2254(d) is not warranted.
MEMORANDUM DECISION AND ORDER - 14
2.
Claim 2: Double Jeopardy Claim
Petitioner also brings a stand-alone Double Jeopardy claim that is not enveloped in
an ineffective assistance of counsel claim. There was some question on appeal whether
Petitioner should have brought his stand-alone claim on direct appeal, rather than on postconviction review. Regardless, the Idaho Court of Appeals rejected Claim 2 on the
merits, because it upheld the state post-conviction court’s “conclusion that the prosecutor
did not intend to provoke Ash into moving for a mistrial.” (State’s Lodgings D-4, p. 7.)
For the reasons set forth directly above, this claim is also subject to denial.
ORDER
IT IS ORDERED:
1.
The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DENIED and DISMISSED with
prejudice.
2.
The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files
a timely notice of appeal, the Clerk of Court shall forward a copy of the notice of
appeal, together with this 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.
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DATED: December 23, 2019
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
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