Lonkey v. Blades
Filing
16
MEMORANDUM DECISION & ORDER Respondent's Motion for Extension of Time (Dkt. 11 ) is GRANTED. Respondent's Motion for Partial Summary Dismissal (Dkt. 13 ) is GRANTED. Claims 1, 2, and 3 are DISMISSED with prejudice. Respondent must file an answer to the remaining claimClaim 4within 60 days of the date of this Order. Petitioner may file a reply (formerly called a traverse), containing a brief rebutting Respondents answer and brief, which must be filed and served within 28 days after se rvice of the answer and brief. Respondent has the option of filing a sur-reply within 14 days after service of the reply. At that point, the case will be deemed ready for a final decision. 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
JOHN MATHEW LONKEY,
Case No. 1:17-cv-00379-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
RANDY BLADES,
Respondent.
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner John Mathew Lonkey (“Petitioner”), challenging Petitioner’s state court
convictions for burglary and rape. (Dkt. 3.) Respondent has filed a Motion for Partial
Summary Dismissal, seeking the dismissal of Claims 1, 2, and 3. (Dkt. 13.) The Motion
is now ripe for adjudication.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 12.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. (Dkt. 10.) Having carefully reviewed the record, including
the state court record, the Court finds that oral argument is unnecessary. See D. Idaho L.
MEMORANDUM DECISION AND ORDER - 1
Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Motion and
dismissing Claims 1 through 3 with prejudice.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Lonkey, Docket No. 41835, Op. 316 (Idaho Ct. App. Jan. 22, 2015)
(unpublished), which is contained in the record at State’s Lodging B-3. The facts will not
be repeated here except as necessary to explain the Court’s decision.
In the Third Judicial District Court in Owyhee County, Idaho, Petitioner pleaded
guilty to one count of burglary and one count of rape. In return for the plea, the state
dismissed (1) an additional charge of interfering with a telephonic communication
instrument and (2) a deadly-weapon sentencing enhancement. (State’s Lodging B-3 at 12.) Petitioner received a unified sentence of life in prison with 25 years fixed on the rape
conviction, and a concurrent unified sentence of ten years in prison with five years fixed
on the burglary conviction. (Id. at 2.)
Petitioner appealed, arguing (1) that the state violated due process by breaching
the plea agreement with respect to its sentencing recommendation, and (2) that the trial
court abused its sentencing discretion. (State’s Lodging B-1.) The Idaho Court of Appeals
affirmed, and the Idaho Supreme Court denied review. (State’s Lodging B-3; B-6.)
Petitioner then filed a pro se petition for state post-conviction relief, once again
asserting that the state breached the plea agreement and that the trial court imposed an
excessive sentence. (State’s Lodging C-2 at 4-7.) Petitioner was appointed counsel. (Id. at
20, 24.) Counsel did not amend the petition, even after the trial court notified Petitioner
MEMORANDUM DECISION AND ORDER - 2
of its intent to dismiss based on the doctrine of res judicata. (Id. at 25-29, 33-35.) The
state district court dismissed the petition on that basis—that the claims had already been
decided on direct appeal. (Id. at 36-37.)
Petitioner was initially appointed counsel on appeal from dismissal of the postconviction petition. However, counsel later withdrew from the representation, with the
approval of the Idaho Supreme Court. (State’s Lodging D-1; D-2.) Petitioner then filed a
pro se brief, arguing (1) that his trial counsel rendered ineffective assistance by failing to
adequately communicate with Petitioner or to argue that the sentencing judge had a
conflict of interest, and (2) that his post-conviction counsel in the state district court—the
proceeding from which he appealed—was also constitutionally ineffective.1
The Idaho Court of Appeals concluded that Petitioner’s claims of ineffective
assistance of counsel were barred because he did not raise them in his post-conviction
petition before the state district court. (State’s Lodging D-6 at 3-4.) The court also noted
that, in Idaho, ineffective assistance of post-conviction counsel is not an available basis
for post-conviction relief. (Id. at 4 n.1.) The state appellate court affirmed the dismissal of
the post-conviction petition and denied Petitioner’s request for rehearing. (State’s
Lodging D-9.) The Idaho Supreme Court denied review. (State’s Lodging D-12.)
In the instant federal habeas corpus petition, Petitioner asserts four claims. Claim 1
alleges that the sentencing judge had a conflict of interest. (Dkt. 3 at 6.) Claim 2 asserts
1
It is unclear whether, on appeal from the dismissal of his post-conviction petition, Petitioner initially
intended to assert his trial-counsel ineffectiveness claims as independent constitutional claims or as
reasons why his post-conviction counsel was ineffective. However, the Idaho Court of Appeals construed
Petitioner’s brief as asserting, as independent claims, that both trial counsel and post-conviction counsel
rendered ineffective assistance. (State’s Lodging D-6 at 3-4.)
MEMORANDUM DECISION AND ORDER - 3
that Petitioner’s trial counsel was ineffective in failing to adequately communicate with
Petitioner and in failing to argue “for the sentence he promised [Petitioner] would get.”
(Id. at 7.) In Claim 3, Petitioner contends that his post-conviction counsel rendered
ineffective assistance in failing to adequately communicate with Petitioner and in failing
to raise Claims 1 and 2 during post-conviction proceedings.2 (Id. at 8.) Finally, Claim 4
asserts that the prosecution breached the plea agreement with its sentencing
recommendation. (Id. at 9.)
The Court previously reviewed the Petition and allowed Petitioner to proceed to
the extent his claims “(1) are cognizable in a federal habeas corpus action, (2) were
timely filed in this Court, and (3) were either properly exhausted in state court or subject
to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 2.)
Respondent now argues that Claims 1, 2, and 3 must be dismissed as procedurally
defaulted or noncognizable. (Dkt. 13.)
DISCUSSION
1.
Standard of Law Governing Summary Dismissal
The Rules Governing § 2254 Cases (“Habeas Rules”) authorize the Court to
summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the
face of the petition and any attached exhibits,” as well as those records subject to judicial
notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
2
The Court initially construed Claim 3 as asserting ineffective assistance of either direct appeal or
post-conviction counsel (see Dkt. 7 at 2), as it did not have the benefit of the state court record to
determine which attorney Petitioner had named in this claim. It is now clear that Claim 3 asserts
ineffective assistance on the part of Petitioner’s counsel during the initial post-conviction proceeding.
MEMORANDUM DECISION AND ORDER - 4
Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. Where appropriate, a respondent may
file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599,
602 (9th Cir. 1989).
2.
Claim 3 Is Noncognizable
Where a petitioner asserts a habeas claim that does not rely on a federal right, the
claim is said to be noncognizable—meaning that it is not a basis for federal habeas relief.
In Claim 3, Petitioner asserts that his lawyer during his initial post-conviction
proceedings rendered ineffective assistance. However, there is no federal constitutional
right to the effective assistance of counsel during state post-conviction proceedings.
Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430
(9th Cir. 1993). Although ineffective assistance of post-conviction counsel can, in limited
circumstances, constitute cause to excuse the procedural default of a trial-counsel
ineffectiveness claim—which the Court will discuss further in Section 3.C., below—it is
not an independent constitutional claim. Therefore, Claim 3 will be dismissed as
noncognizable.
3.
Claims 1 and 2 Are Procedurally Defaulted without Legal Excuse
A.
Procedural Default Standards of Law
A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
MEMORANDUM DECISION AND ORDER - 5
at each level of appellate review. Id. at 845. In Idaho, a defendant has the possibility of
discretionary review in the highest appellate court; hence, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). For proper
exhaustion, a petitioner must bring his federal claim before the state court by “explicitly”
citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.
2000), as amended, 247 F.3d 904 (9th Cir. 2001).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include: (1) when a petitioner
has completely failed to raise a claim before the Idaho courts; (2) when a petitioner has
raised a claim, but has failed to present it fully and fairly as a federal claim to the Idaho
courts; and (3) when the Idaho courts have rejected a claim on an adequate and
MEMORANDUM DECISION AND ORDER - 6
independent state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004);
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
“To qualify as an adequate procedural ground, a state rule must be firmly
established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
quotation marks omitted). That is, the state procedural bar must be “‘clear, consistently
applied, and well-established at the time of the petitioner’s purported default.’” Martinez
v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d
1005, 1010 (9th Cir. 1994)). A state procedural bar is adequate even if it is a
discretionary rule, and even though “the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not others.” Beard v. Kindler, 558 U.S.
53, 61 (2009). The use of a state rule’s “imprecise standard ... is no justification for
depriving a rule’s language of any meaning.” Walker, 562 U.S. at 318 (internal quotation
marks and alteration omitted).
A state procedural bar is “independent” of federal law if it does not rest on, and if
it is not interwoven with, federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.
2003). A rule is not independent of federal law “if the state has made application of the
procedural bar depend on an antecedent ruling on federal law such as the determination
of whether federal constitutional error has been committed.” Id. (internal quotation marks
and alteration omitted); see also Ake v. Oklahoma, 470 U.S. 68, 75 (1985) (stating that
“when resolution of the state procedural law question depends on a federal constitutional
ruling, the state-law prong of the court’s holding is not independent of federal law, and
our jurisdiction is not precluded,” and holding that a state waiver rule was not
MEMORANDUM DECISION AND ORDER - 7
independent because, “[b]efore applying the waiver doctrine to a constitutional question,
the state court must rule, either explicitly or implicitly, on the merits of the constitutional
question”).
Where the state sufficiently pleads the existence of an adequate and independent
state procedural bar, the burden shifts to the petitioner to establish that the rule either is
not adequate or is dependent on federal law. “The petitioner may satisfy this burden by
asserting specific factual allegations that demonstrate the inadequacy of the state
procedure, including citation to authority demonstrating inconsistent application of the
rule.” Bennett, 322 F.3d at 586. The ultimate burden to show that the procedural rule is
adequate and independent, however, remains with the state.
B.
Claims 1 and 2 Are Procedurally Defaulted
The most straightforward manner to resolve the exhaustion and procedural default
status of Petitioner’s federal claims is to review which claims were raised and addressed
on the merits in the state court appellate proceedings. On direct appeal, Petitioner raised
two claims—breach of the plea agreement and abuse of discretion at sentencing. The plea
agreement breach claim is presented as Claim 4 in the Petition and is not subject to
Respondent’s Motion for Partial Summary Dismissal. Petitioner did not raise any of his
other habeas claims to the state courts on direct appeal.
On appeal from the dismissal of his post-conviction petition, Petitioner raised
Claim 3, which the Court has already determined to be noncognizable. The Idaho Court
of Appeals found that Petitioner also raised Claim 2—ineffective assistance of trial
counsel—in his appellate briefing. However, although Petitioner’s brief referred to Claim
MEMORANDUM DECISION AND ORDER - 8
1—the judicial-conflict claim—he argued it only as a claim that trial counsel should have
raised, rather than as a freestanding claim of judicial conflict or judicial bias. See Rose v.
Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“Here, although [the petitioner’s] Fifth
Amendment claim is related to his claim of ineffective assistance, he did not fairly
present the Fifth Amendment claim to the state courts when he merely discussed it as one
of several issues which were handled ineffectively by his trial and appellate counsel.
While admittedly related, they are distinct claims with separate elements of proof, and
each claim should have been separately and specifically presented to the state courts.”
(emphasis added)). The Idaho Court of Appeals did not mention Petitioner’s conflict-ofinterest claim.
The state appellate court concluded that Petitioner’s IATC claims were
procedurally barred because Petitioner did not raise them in the state district court.3
(State’s Lodging D-6 at 3-4.) Petitioner also failed to raise his conflict-of-interest claim in
the state district court.
Idaho appellate courts generally will not consider arguments made for the first
time on appeal. See Row v. State, 21 P.3d 895, 902 (Idaho 2001) (“The longstanding rule
of this Court is that we will not consider issues that are raised for the first time on
appeal.”). The state has met its initial burden of invoking that procedural rule as adequate
and independent. Thus, Petitioner must show that the rule was unclear, inconsistently
3
The court of appeals also held that Petitioner should have raised his post-conviction counsel
ineffectiveness claim—Claim 3—in state district court. Though Petitioner could not possibly have raised,
in the state district court, a claim that his attorney rendered ineffective assistance in the very same
proceeding, the state court’s decision on that issue does not affect its decision on Claims 1 and 2, nor does
it change this Court’s conclusion that Claim 3 is noncognizable.
MEMORANDUM DECISION AND ORDER - 9
applied, or not well-established at the time of the default. See Klauser, 266 F.3d at 109394. Petitioner has not done so. And this Court has already held that the Idaho rule
requiring that an objection be made, or an issue raised, in the trial court is an adequate
and independent state procedural ground. Nelson v. Blades, No. CV 04-001-S-LMB,
2009 WL 790172, at *8 (D. Idaho Mar. 23, 2009). Therefore, Claims 1 and 2 are
procedurally defaulted.4
However, that conclusion does not end the inquiry. Even if a petitioner’s claim is
procedurally defaulted, a federal district court can still hear the merits of the claim if the
petitioner meets one of two exceptions: (1) a showing of adequate legal cause for the
default and prejudice arising from the default, or (2) a showing of actual innocence,
which means that a miscarriage of justice will occur if the constitutional claim is not
heard in federal court. Murray v. Carrier, 477 U.S. 478, 488 (1986), Schlup v. Delo, 513
U.S. 298, 329 (1995). Neither an assertion of cause and prejudice nor an assertion of
actual innocence under Schlup is an independent constitutional claim. Rather, these are
federal procedural arguments that, if sufficiently established by a petitioner, allow a
federal court to consider the merits of an otherwise procedurally-defaulted constitutional
claim.5
4
Alternatively, Claim 1 is also procedurally defaulted because Petitioner has never presented a
freestanding judicial-conflict or judicial-bias claim to any Idaho court. See Rose, 395 F.3d at 1112.
5
In his response to the Motion for Partial Summary Dismissal, Petitioner has not clearly argued
that his claims are excused from default; rather, he appears to argue only the merits of his claims. (See
Dkt. 15.) Mindful that Petitioner is proceeding pro se, the Court has independently reviewed the state
court record to determine whether an exception to procedural default applies in this case.
MEMORANDUM DECISION AND ORDER - 10
C.
Cause and Prejudice
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, 477 U.S. at 488. To show
“prejudice,” a petitioner generally 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).
Cause for a default may follow from ineffective assistance of counsel (“IAC”). For
example, the failure on appeal to raise a meritorious claim of trial error—or the failure at
trial to preserve a claim for appeal—may render that claim procedurally defaulted. See
Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“[I]n certain circumstances counsel’s
ineffectiveness in failing properly to preserve the claim for review in state court will
suffice.”). However, for IAC—whether at trial or on direct appeal—to serve as cause to
excuse a default, that IAC claim must itself have been separately presented to the state
appellate courts. Id. (“A claim of ineffective assistance ... generally must be presented to
the state courts as an independent claim before it may be used to establish cause for a
procedural default.”) (internal quotation marks and alteration omitted).
In other words, a federal court ordinarily only considers ineffective assistance of
trial or direct appeal counsel as cause to excuse the default of an underlying habeas claim
if the petitioner has made a procedurally proper claim of ineffective assistance of counsel
to the state courts, such as in a post-conviction relief petition, including through the level
MEMORANDUM DECISION AND ORDER - 11
of the Idaho Supreme Court. If the alleged IAC claim was not fairly presented to the state
courts, the petitioner must show that an excuse for that separate default exists, as well. Id.
at 453 (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural
default of another claim can itself be procedurally defaulted.”).
Because there is no federal constitutional right to the effective assistance of
counsel during state post-conviction proceedings, Finley, 481 U.S. at 554, the general
rule is that any errors of counsel during a post-conviction action cannot serve as a basis
for cause to excuse a procedural default, Coleman, 501 U.S. at 752. However, the
Supreme Court established an exception to that general rule in Martinez v. Ryan, 566
U.S. 1 (2012). Martinez held that, in limited circumstances, “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Id. at 9. Martinez does not
apply to any claims other than ineffective-assistance-of-trial-counsel (“IATC”) claims,
and it can apply only if the underlying IATC claim is both exhausted and procedurally
defaulted. Davila v. Davis, 137 S. Ct. 2058, 2063 (2017) (holding that Martinez does not
apply to underlying claims of ineffective assistance of direct appeal counsel); Hunton v.
Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (holding that Martinez does not apply to
claims under Brady v. Maryland); Creech v. Ramirez, No. 1:99-cv-00224-BLW, 2016
WL 8605324, at *21 (D. Idaho Jan. 29, 2016) (holding that claims were not subject to
Martinez because they were not fundamentally altered from claims decided on the merits
in state court proceedings and, therefore, were not procedurally defaulted).
MEMORANDUM DECISION AND ORDER - 12
The Martinez cause-and-prejudice test consists of four necessary prongs: (1) the
underlying IATC claim must be a “substantial” claim; (2) the “cause” for the procedural
default consists of there being “no counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review proceeding was the “initial”
collateral review proceeding where the IATC claim could have been brought; and (4)
state law requires that an IATC claim be raised in an initial-review collateral proceeding,
or by “design and operation” such claims must be raised that way, rather than on direct
appeal. Trevino v. Thaler, 569 U.S. 416, 423, 429 (2013).
To show that a claim is “substantial” under Martinez, a petitioner must point to
evidence demonstrating that the underlying IATC claim has “some merit.” Martinez, 556
U.S. at 14. That is, the petitioner must submit at least some evidence tending to show that
(a) trial counsel performed deficiently in handling some aspect of pretrial or trial duties
and (b) the deficient performance harmed the defense, which is defined as a reasonable
probability of a different outcome at trial. Strickland v. Washington, 466 U.S. 668, 69596 (1984).
Even if an underlying claim is substantial under Martinez, a petitioner must also
establish that ineffective assistance of post-conviction counsel in the initial-review
collateral proceeding caused the default of that claim. That requires a showing not just
that claims were omitted or not fully pursued in the initial post-conviction action, but also
that the post-conviction attorney in the initial post-conviction matter was constitutionally
ineffective—meaning that (1) post-conviction counsel performed deficiently in failing to
raise or fully pursue the claim, and (2) there is a reasonable probability that the deficient
MEMORANDUM DECISION AND ORDER - 13
performance resulted in prejudice in the post-conviction proceedings. Clabourne v. Ryan,
745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813
F.3d 798 (9th Cir. 2015) (en banc); see also Runningeagle v. Ryan, 825 F.3d 970, 982
(9th Cir. 2016) (“Construing Martinez, we have held that, to fulfill this requirement, a
petitioner must show not only that [post-conviction review] counsel performed
deficiently, but also that this prejudiced the petitioner ....”), cert. denied, 137 S. Ct. 1439
(2017).
Even if Petitioner seeks to argue ineffective assistance of trial or direct appeal
counsel to excuse the default of Claim 1—a trial-error claim that the sentencing judge
had a conflict of interest—Petitioner did not properly exhaust that cause argument as
required by Edwards v. Carpenter. The IAC argument was not fairly presented to the
state courts, as explained above, and Petitioner has not shown an excuse for the separate
default of that cause argument. See Edwards, 529 U.S. at 452.
The Court has also considered whether the exception identified in Martinez v.
Ryan is available to Petitioner. The only claim potentially subject to Martinez is Claim 2,
as Petitioner’s other claims are not IATC claims. See Davila, 137 S. Ct. at 2063; Hunton,
732 F.3d at 1126-27. The Court has found nothing in the record to suggest that Claim 2 is
substantial. Therefore, Martinez does not apply to excuse the default of that claim.
D.
Actual Innocence
If a petitioner cannot show cause and prejudice for his procedural default, he still
can bring the claim in a federal habeas petition if he demonstrates that failure to consider
the claim will result in a “fundamental miscarriage of justice.” That standard requires
MEMORANDUM DECISION AND ORDER - 14
proof that a constitutional violation probably has resulted in the conviction of someone
who is actually innocent. Murray v. Carrier, 477 U.S. at 496. Actual innocence in this
context “means factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998).
In asserting actual innocence, a petitioner must “support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A procedurally defaulted
claim may be heard under the miscarriage-of-justice exception only if, “in light of all of
the evidence, ‘it is more likely than not that no reasonable juror would have found [the
petitioner] guilty beyond a reasonable doubt.’” United States v. Avery, 719 F.3d 1080,
1083 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 327). Stated another way, the petitioner
must show that, but for the constitutional error, every reasonable juror would vote to
acquit. This is an extremely demanding standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S.
at 327).
Petitioner has not presented any new, reliable evidence that he is actually innocent.
Therefore, he has not established an excuse for the procedural default of Claims 1, 2 or 3.
CONCLUSION
For the foregoing reasons, the Court concludes that Claims 1 and 2 are
procedurally defaulted, without legal excuse, and that Claim 3 is noncognizable.
Therefore, these three claims will be dismissed.
MEMORANDUM DECISION AND ORDER - 15
ORDER
IT IS ORDERED:
1.
Respondent’s Motion for Extension of Time (Dkt. 11) is GRANTED.
2.
Respondent’s Motion for Partial Summary Dismissal (Dkt. 13) is
GRANTED. Claims 1, 2, and 3 are DISMISSED with prejudice.
3.
Respondent must file an answer to the remaining claim—Claim 4—within
60 days of the date of this Order. Petitioner may file a reply (formerly
called a traverse), containing a brief rebutting Respondent’s answer and
brief, which must be filed and served within 28 days after service of the
answer and brief. Respondent has the option of filing a sur-reply within 14
days after service of the reply. At that point, the case will be deemed ready
for a final decision.
DATED: March 8, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 16
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