Roberts v. Wasden

Filing 19

MEMORANDUM DECISION & ORDER Respondent's Motion for Partial Summary Dismissal (Dkt. 11 ) is GRANTED. Claims 1(a), 4, and 5 are DISMISSED with prejudice. Respondent must file an answer to the remaining claimsClaims 1(b), 2, and 3within 60 days after entry of this Order. Signed by Judge B. Lynn Winmill. (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

MICHAEL DALE ROBERTS,
Case No. 1:17-cv-00388-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
IDAHO ATTORNEY GENERAL
LAWRENCE WASDEN,
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by former
Idaho prisoner Michael Dale Roberts (“Petitioner”), challenging Petitioner’s Ada County
conviction for possession of a controlled substance. (Dkt. 1.) Respondent has filed a
Motion for Partial Summary Dismissal, arguing that Claims 1(a), 4, and 5 are subject to
dismissal. (Dkt. 11.) 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. 10.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
Having carefully reviewed the record, including the state court record, the Court
finds that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the
Court enters the following Order granting the Motion and dismissing Claims 1(a), 4, and
5 with prejudice.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Roberts, Docket No. 40557, Op. 512 (Idaho Ct. App. May 22, 2014)
(unpublished), which is contained in the record at State’s Lodging B-8. The facts will not
be repeated here except as necessary to explain the Court’s decision.
In Fourth Judicial District Court in Ada County, Idaho, Petitioner pleaded guilty to
one count of possession of a controlled substance.1 In return for the guilty plea, the state
dismissed a charge of possession of drug paraphernalia. (State’s Lodging B-8 at 2.)
Petitioner was placed in the drug court program but was eventually discharged from that
program for noncompliance. (Id.)
Shortly after he was discharged from drug court, Petitioner moved to withdraw his
guilty plea. At the hearing on the motion, the prosecutor provided the trial court with the
underlying police report “to identify the factual circumstances of [Petitioner’s] arrest.”
(Id. at 3.) Petitioner also had a copy of this document, but neither party moved to admit
the police report into evidence.2 (Id. at 4-5 and n.1.) The trial court denied the motion to
withdraw the plea. Petitioner received a unified sentence of seven years in prison with

At the time of Petitioner’s plea hearing, the lab report on the substance possessed by Petitioner
had not yet been completed. To facilitate Petitioner’s entry into drug court, the trial judge allowed
Petitioner to enter a conditional guilty plea; if the lab report later revealed that the substance was not a
controlled substance, Petitioner would be allowed to withdraw his plea and the prosecutor would dismiss
the case. The lab report later confirmed the presence of a controlled substance. (State’s Lodging B-8 at 2;
F-8 at 1-2.)
1

2

The Idaho Court of Appeals found that the police report was never admitted in the district court
and, thus, was not an “exhibit” as asserted by Petitioner. This factual finding is entitled to a presumption
of correctness. See 28 U.S.C. § 2254(e)(1).

MEMORANDUM DECISION AND ORDER - 2

two years fixed, but the trial court retained jurisdiction and placed Petitioner on a rider.
(State’s Lodging A-1 at 95-96, A-3 at 28-29.)
Petitioner appealed from the denial of the motion to withdraw his guilty plea and
requested that the record be augmented with the police report. The Idaho Supreme Court
granted the motion and ordered that the district court clerk provide the appellate court
with either the police report or an “affidavit ... as to why [the report] cannot be provided.”
(State’s Lodging B-2.) The district court clerk submitted an affidavit stating that the court
record did not contain the entire police report, but that four of the eight pages of the
report were attached to Petitioner’s pre-sentence investigation report. (State’s Lodging B3.)
Petitioner then filed his opening brief on appeal, raising two claims: (1) that the
trial court’s failure to preserve the police report, on which it relied to deny Petitioner’s
motion to withdraw his plea, violated Petitioner’s right to due process, and (2) that the
trial court’s denial of the motion constituted an abuse its discretion under Idaho law.
(State’s Lodging B-5.) The Idaho Court of Appeals affirmed. (State’s Lodging B-8.)
Petitioner sought review in the Idaho Supreme Court, renewing these two claims.
Petitioner also expanded on his due process claim involving the police report, contending
that the Idaho Court of Appeals “disregarded” the Idaho Supreme Court’s order regarding
that report. (State’s Lodging B-9; B-10 at 7.) The state supreme court denied review.
(State’s Lodging B-11.)

MEMORANDUM DECISION AND ORDER - 3

Following the period of retained jurisdiction, the trial court suspended Petitioner’s
sentence and placed him on probation. (State’s Lodging C-1 at 15-17, 19-21, 24-25.)
However, the trial court later revoked probation and ordered execution of the underlying
sentence.3 (State’s Lodging C-1 at 48-50; C-3 at 12; D-4 at 1.) Petitioner appealed,
arguing that the trial court abused its discretion by (1) failing to retain jurisdiction upon
revocation, and (2) denying Petitioner’s motion for reduction of sentence under Idaho
Criminal Rule 35. (State’s Lodging D-1.) The Idaho Court of Appeals affirmed. (State’s
Lodging D-4.) Petitioner did not file a petition for review with the Idaho Supreme Court.
(See State’s Lodging D-5.)
Petitioner then filed a petition for state post-conviction relief. He asserted three
broad claims: (1) Petitioner received ineffective assistance of counsel, based on counsel’s
alleged (a) failure to obtain an audio recording, or laboratory testing on the drug
paraphernalia, (b) failure to submit records to the trial court in connection with the
motion to withdraw the guilty plea, (c) failure to communicate adequately, and (d)
misstatements about the conditions of the plea agreement; (2) Petitioner’s right to due
process was violated; and (3) the prosecution failed to disclose favorable evidence to the
defense. (State’s Lodging E-1 at 5-6.) After holding an evidentiary hearing, the state
district court dismissed the petition. (Id. at 46-61; E-3.)
On appeal from the dismissal of his post-conviction petition, Petitioner was
initially appointed counsel. His attorney later withdrew from the representation, however,

3

Petitioner has since been released on parole.

MEMORANDUM DECISION AND ORDER - 4

with court approval. (State’s Lodging F-3; F-4.) Petitioner then filed a pro se brief, which
raised the following issues: (1) whether Petitioner’s counsel rendered ineffective
assistance “when representing [Petitioner] during the guilty plea hearing at the pretrial
juncture while assisting him with the guilty plea advisory form as well as counsel
representing [Petitioner] during the motion to withdraw guilty plea”; (2) whether
Petitioner’s counsel, the prosecutor, and the court “suborn[ed] perjury by proceeding
forward with a guilty plea colloquy while previously stipulating a condition as part of the
conditional guilty plea ... due to the results of the lab tests”; and (3) whether the
prosecution withheld favorable evidence from the defense in violation of Brady v.
Maryland, 373 U.S. 83 (1963). (State’s Lodging F-5 at 9.)
The Idaho Court of Appeals affirmed the dismissal of the post-conviction petition.
(State’s Lodging F-8.) The court rejected Petitioner’s ineffective assistance of counsel
and Brady claims on the merits. (Id. at 3-6.) However, the state court declined to address
Petitioner’s remaining allegations, including his subornation-of-perjury claim, because
Petitioner had not raised the issue in the state district court. (Id. at 3 n.1.) The Idaho
Supreme Court denied review. (State’s Lodging F-10.)
In the instant federal habeas corpus petition, Petitioner asserts the following
claims, as previously construed by the Court4:
Claim 1: Violation of due process based on the trial court’s
[(a)] denial of Petitioner’s motion to withdraw his guilty plea
and [(b)] violation of an order from the Idaho Supreme Court.

4

Petitioner has not objected to the Court’s construction of these claims.

MEMORANDUM DECISION AND ORDER - 5

Claim 2: Ineffective assistance of trial counsel based on
counsel’s representation of Petitioner before the entry of the
conditional guilty plea.
Claim 3: Violation of due process and prosecutorial
misconduct based on the prosecutor’s failure to disclose
favorable evidence to the defense.
Claim 4: Violation of due process based on Petitioner’s trial
counsel, the prosecutor, and the trial court suborning perjury
or engaging in other misconduct in the context of Petitioner’s
plea hearing.
Claim 5: Violation of the Fourth Amendment based on an
allegedly unreasonable search and seizure.
(Initial Review Order, Dkt. 6 at 2 (internal quotation marks and citations omitted.)
The Court previously reviewed the Petition and allowed Petitioner to proceed on
his claims to the extent those 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.” (Id. at 3.)
Respondent now moves for summary dismissal of Claims 1(a), 4, and 5.
DISCUSSION
Respondent contends that Claims 1(a), 4, and 5 are procedurally defaulted and that
Claim 5 is noncognizable—meaning that it cannot be heard—in a federal habeas corpus
action. For the reasons that follow, the Court agrees.
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
MEMORANDUM DECISION AND ORDER - 6

notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
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.

Claims 1(a), 4, and 5 Are Procedurally Defaulted, and Petitioner Has Not
Established Cause and Prejudice, or Actual Innocence, to Excuse the Default
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
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, 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

MEMORANDUM DECISION AND ORDER - 7

insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, 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 those within the
following circumstances: (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 fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
have rejected a claim on an adequate and 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 one that is “‘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 can be considered
adequate even if it is a discretionary rule, and even though “the appropriate exercise of

MEMORANDUM DECISION AND ORDER - 8

discretion may permit consideration of a federal claim in some cases but not others.”
Beard v. Kindler, 558 U.S. 53, 61 (2009). A state rule’s “use of an 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 will not be deemed 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 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”).
Once 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 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

MEMORANDUM DECISION AND ORDER - 9

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(a), 4, and 5 Are Procedurally Defaulted

The most straightforward manner in which 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.
In Petitioner’s initial appeal from the trial court’s denial of his motion to withdraw
his guilty plea, Petitioner raised only a single federal constitutional claim—that the trial
court violated due process by failing to preserve the “exhibit” identified as the police
report. (State’s Lodging B-5 at 4.) When he petitioned for review of the court of appeals’
decision, Petitioner expounded on this claim, arguing that the appellate court had
“disregarded” the order of the Idaho Supreme Court that the trial court lodge the report or
explain why it could not do so. (State’s Lodging B-10 at 7.) This claim is presented as
Claim 1(b) of the Petition.
Petitioner did not, however, fairly present Claim 1(a) to the Idaho appellate courts
in the initial appeal. Rather, he argued only that the trial court abused its discretion in
denying the motion to withdraw the plea. Petitioner framed the issue as a state law claim,
not a due process claim. Therefore, Claim 1(a) was not properly exhausted in that appeal.
During Petitioner’s appeal from the trial court’s revocation of probation and denial
of Petitioner’s Rule 35 motion, he raised only state law claims that the court abused its
discretion. He did not raise any federal constitutional claims. Further, after the Idaho
Court of Appeals affirmed the trial court, Petitioner did not file a petition for review with
MEMORANDUM DECISION AND ORDER - 10

the Idaho Supreme Court. Therefore, no claims were fairly presented in the appeal from
the revocation proceedings.
Finally, on appeal from the trial court’s dismissal of Petitioner’s post-conviction
petition, the Idaho Court of Appeals decided only two claims on the merits: (1) that
Petitioner’s counsel rendered ineffective assistance (set forth as Claim 2 of the Petition),
and (2) that the prosecution violated Brady v. Maryland (set forth as Claim 3 of the
Petition). Though Petitioner also raised Claim 4—the subornation of perjury claim—in
that appeal, the court declined to address it because Petitioner had not raised the issue 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.”). Petitioner has not shown that this procedural rule was unclear, inconsistently
applied, or not well-established at the time of the default. See Martinez v. Klauser, 266
F.3d at 1093-94. Further, this Court has already held that the Idaho courts’ procedural
rule requiring that an objection be made, or an issue raised, in the trial court is adequate
and independent. Nelson v. Blades, No. CV 04-001-S-LMB, 2009 WL 790172, at *8 (D.
Idaho Mar. 23, 2009).
As for Claim 5, Petitioner has never raised that claim to any Idaho appellate court.
Because it is now too late for him to do so, the claim is defaulted. See Gray, 518 U.S. at
161-62.

MEMORANDUM DECISION AND ORDER - 11

Therefore, Claims 1(a), 4, and 5 are procedurally defaulted. However, that
conclusion does not end the inquiry. If a petitioner’s claim is procedurally defaulted, a
federal district court cannot hear the merits of the claim unless 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.5
Murray v. Carrier, 477 U.S. 478, 488 (1986), Schlup v. Delo, 513 U.S. 298, 329 (1995).
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 the default may exist as a result of 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

5

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 procedurallydefaulted constitutional claim.

MEMORANDUM DECISION AND ORDER - 12

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, before a federal court can consider ineffective assistance of trial or
direct appeal counsel as cause to excuse the default of an underlying habeas claim, 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. If the ineffective assistance
asserted as cause was not fairly presented to the state courts, a petitioner must show that
an excuse for that separate default exists, as well. Id. at 453 (“[A]n ineffective-assistanceof-counsel claim asserted as cause for the procedural default of another claim can itself
be procedurally defaulted.”).
A petitioner does not have a 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). Therefore, 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.

MEMORANDUM DECISION AND ORDER - 13

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-trialcounsel claims. 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).
In response to the Motion for Partial Summary Dismissal, Petitioner appears to
argue that ineffective assistance of trial or direct appeal counsel caused the default of
Claims 1(a), 4, and 5. (Dkt. 17 at 1-3.) However, contrary to Petitioner’s contention, he
has never raised, in state court, any argument that counsel rendered ineffective assistance
for failing to raise these claims. Thus, any such assistance cannot constitute cause to
excuse the procedural default of Claims 1(a), 4, or 5. See Edwards v. Carpenter, 529 U.S.
at 452.
Petitioner also cites Martinez v. Ryan. (Dkt. 17 at 2-3.) However, because none of
the procedurally defaulted claims are trial-counsel-ineffectiveness claims, Martinez does
not apply. See Davila, 137 S. Ct. at 2063; Hunton, 732 F.3d at 1126-27.
Finally, Petitioner invokes Maples v. Thomas, 565 U.S. 266 (2012). In that case,
the U.S. Supreme Court held that abandonment by a post-conviction petitioner’s attorney

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can excuse the procedural default of a habeas claim. Id. at 288-89. However, to establish
abandonment by post-conviction counsel, a petitioner must show that his attorney’s
inaction was so egregious that it effectively severed the attorney-client relationship and
left the petitioner “without any functioning attorney of record.” Id. at 288; see id. at 281
(“Having severed the principal-agent relationship, an attorney no longer acts, or fails to
act, as the client’s representative.”).
Maples applies only when the attorney-client relationship is effectively severed
without the knowledge of the client; it does not apply when the post-conviction attorney
properly withdraws from representation so that the petitioner is aware of the need either
to proceed pro se or to obtain another post-conviction attorney. Therefore, the courtapproved withdrawal of Petitioner’s attorney during his post-conviction appeal does not
constitute cause to excuse the procedural default of Claims 1(a), 4, and 5.
D.

Actual Innocence

If a petitioner cannot show cause and prejudice for a 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,” which means that a
constitutional violation has probably 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
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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). A court considering whether a petitioner has established actual innocence must
consider “all the evidence, old and new, incriminating and exculpatory, admissible at trial
or not.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation
marks omitted). The actual innocence inquiry “does not turn on discrete findings
regarding disputed points of fact, and ‘[i]t is not the district court’s independent judgment
as to whether reasonable doubt exists that the standard addresses.’” House, 547 U.S. at
539-40 (quoting Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must
“make a probabilistic determination about what reasonable, properly instructed jurors
would do.” Schlup, 513 U.S. at 329.

MEMORANDUM DECISION AND ORDER - 16

Petitioner has not brought forth any new, credible evidence of actual innocence.
Therefore, he has not established a legal excuse for the procedural default of Claims 1(a),
4, and 5.
3.

Claim 5 Is Noncognizable
In Claim 5, Petitioner asserts a Fourth Amendment violation. In addition to being

procedurally defaulted, this claim is also subject to dismissal based on the doctrine of
Stone v. Powell, 428 U.S. 465 (1976).
In Stone, the United States Supreme Court held that, so long as the state provided
the petitioner an opportunity for full and fair litigation of his Fourth Amendment claim in
state court, a federal court cannot grant habeas corpus relief on the ground that evidence
was obtained in violation of the Fourth Amendment. Id. at 494. The Stone rule is based
on the principle that the exclusionary rule is “not a personal constitutional right” but is
instead a practical way to deter police conduct that violates the Fourth Amendment. Id. at
486. The social costs of the exclusionary rule are heavy: the rule “deflects the
truthfinding process and often frees the guilty.” Id. at 490. On collateral review of a
criminal conviction, “the contribution of the exclusionary rule, if any, to the effectuation
of the Fourth Amendment is minimal, and the substantial societal costs of application of
the rule persist with special force.” Id. at 494-95.
To determine whether a petitioner had a full and fair opportunity to challenge his
Fourth Amendment claim in state court, the Court here “inquire[s] into the adequacy and
fairness of available state court procedures for the adjudication of Fourth Amendment
claims.” Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001). If the Court determines that the
MEMORANDUM DECISION AND ORDER - 17

state court procedures are adequate, the inquiry ends there. Id. at 8-9. That is, “[s]o long
as a state prisoner has had an opportunity to litigate his Fourth Amendment claims by
means of such a set of procedures, a federal habeas court lacks the authority, under Stone,
to second-guess the accuracy of the state court’s resolution of those claims.” Id. at 9.
Stated another way, “[t]he relevant inquiry is whether petitioner had the opportunity to
litigate his claim, not whether he did in fact do so or even whether the claim was
correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
Idaho allows for motions to suppress evidence obtained in violation of the Fourth
Amendment. See, e.g., State v. Atkinson, 916 P.2d 1284 (Idaho Ct. App. 1996) (reviewing
trial court’s denial of motion to suppress). Therefore, Petitioner had a full and fair
opportunity to litigate Claim 5 in state court, and Claim 5 is subject to dismissal as
noncognizable.
CONCLUSION
For the foregoing reasons, Claims 1(a), 4, and 5 are procedurally defaulted without
legal excuse, and Claim 5 is noncognizable. Therefore, the Court will dismiss these three
claims with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 11) is
GRANTED. Claims 1(a), 4, and 5 are DISMISSED with prejudice.

MEMORANDUM DECISION AND ORDER - 18

2.

Respondent must file an answer to the remaining claims—Claims 1(b), 2,
and 3—within 60 days after entry of this Order. Petitioner must 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 surreply within 14 days after service of the reply. At that point, the case will
be deemed ready for a final decision.

DATED: February 4, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 19