Taylor v. Yordy

Filing 38

ORDER REVIEWING (SECOND) AMENDED PETITION re 37 Petition for Writ of Habeas Corpus, filed by Larry Allan Taylor. IT IS ORDERED: Petitioner's Motion for Extension of Time to File Amended Petition (Dkt. 33 ) is GRANTED. The (Second) Amend ed Petition at Docket 37 is considered timely. Petitioner may proceed to the next stage of habeas corpus proceedings on Claims 1, 5, and 7. Claims 2, 3, 4, 6, and 8 are DISMISSED for failure to state a federal habeas corpus claim upon which relief can be granted. Within 120 days after entry of this Order, Respondent shall have the option of filing either of the following: (1) a motion for summary dismissal or partial summary dismissal on procedural grounds; or (2) an answer and brief on the claims that were adjudicated on the merits by the Idaho Supreme Court. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LARRY ALLEN TAYLOR,
Petitioner,
vs.

Case No. 1:17-cv-00482-CWD
ORDER REVIEWING (SECOND)
AMENDED PETITION

WARDEN YORDY,
Respondent.

Now pending in this habeas corpus matter is Petitioner Larry Allen Taylor’s
(Second) Amended Petition, filed after his First Amended Petition was stricken. (Dkts.
37, 29.) Petitioner again has entitled his new pleading, “First Amended Petition.” For
clarity’s sake, the Court will refer to the new pleading as the (Second) Amended Petition.
All named parties have consented to the jurisdiction of a United States Magistrate
Judge to enter final orders in this case. (Dkts. 7, 16.) See 28 U.S.C. § 636(c) and Fed. R.
Civ. P. 73. The Court now reviews the (Second) Amended Petition under 28 U.S.C. §
2243 and Rule 4 of the Rules Governing § 2254 Cases.

ORDER REVIEWING (SECOND) AMENDED PETITION - 1

REVIEW OF AMENDED PETITION
1. Standard of Law
The Court is required to review each habeas corpus petition upon receipt to
determine whether it is subject to summary dismissal. See Rule 4 of the Rules Governing
Section 2254 Cases. Federal habeas corpus relief under 28 U.S.C. § 2254 is available to
petitioners who show that they are held in custody under a state court judgment and that
such custody violates the Constitution, laws, or treaties of the United States. See 28
U.S.C. § 2254(a). Summary dismissal is appropriate where “it plainly appears from the
face of the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court.” Id.
2. Background
In a state criminal action in Kootenai County, Idaho, Petitioner pleaded guilty to
and was convicted of two counts of attempted grand theft by extortion. Although it is
unclear from the sparse record before the Court, it appears that Petitioner’s relatives were
guardians or trustees of certain family funds, Petitioner was a ward or beneficiary, and
Petitioner made telephone threats to his relatives to force them to withdraw funds for
him. On December 17, 2014, he was sentenced to ten fixed years of incarceration with
three indeterminate years on the first conviction, and ten years indeterminate on the
second.
Petitioner filed a direct appeal, which was decided by the Idaho Court of Appeals,
followed by a petition for review to the Idaho Supreme Court. He obtained no relief. He

ORDER REVIEWING (SECOND) AMENDED PETITION - 2

also filed a post-conviction petition, which was summarily dismissed. Prior to entry of
judgment in that action, Petitioner filed an unauthorized amended post-conviction
petition. That petition was dismissed without a ruling on the substance of the petition
because it was improperly filed.
Petitioner raised three claims before the Idaho Court of Appeals on postconviction appellate review: (1) the district court wrongfully sua sponte dismissed the
first amended petition; (2) the court did not properly consider the motion for a change of
venue; and (3) the court denied the motion for appointment of counsel. None of the
claims appear to have addressed the substance of his federal claims. The Idaho Court of
Appeals affirmed the state district court decision on December 11, 2019. See Taylor v.
State, No. 46771, 2019 WL 6726292, at *1 (Idaho Ct. App. Dec. 11, 2019). The Idaho
Supreme Court denied the petition for review.
3. Statement of Claims
Petitioner raises the following claims in his (Second) Amended Petition:
1.

2.

1

The prosecution committed a Brady violation when it
failed to disclose that the victims were guardians and
had a duty and obligation to control the disabled
ward’s bank account. 1
Petitioner is actually innocent on the first attempted
extortion charge because (a) he would not have been
convicted if he had been given the exculpatory facts
and information about the guardian-ward relationship;
and (b) Petitioner was merely attempting to obtain

The prosecution has a duty under the due process clause of the Fourteenth Amendment to disclose

exculpatory evidence to the defense that is material to guilt or punishment. Brady v. Maryland, 373 U.S.
83 (1963).

ORDER REVIEWING (SECOND) AMENDED PETITION - 3

release of his own money from the guardian to fund
his surgery—thus it was legally impossible for him to
extort money from himself.
3.

Petitioner is actually innocent on the second attempted
extortion charge.

4.

Petitioner is “not guilty,” because the prosecutor did
not show that Petitioner had specific intent or a premeditated plan to commit a crime.

5.

A structural error occurred when the prosecutor
committed misconduct and Petitioner’s defense
counsel was ineffective.

6.

After conviction, Petitioner should have been confined
to a mental hospital instead of to a prison for mental
health rehabilitation, because the Idaho Code waives
the state’s right to punish a mentally ill person.

7.

The “change of plea contract” was made without
Petitioner being fully cognizant or competent.

8.

Petitioner reserves all other claims that may be
available in the record.

(See Dkt. 37.)
4. Discussion of Claims 2, 3, and 4: Actual Innocence
Claims 2, 3, and 4 are actual innocence claims. The United States Supreme Court
has determined that a claim of actual innocence is not cognizable in a federal habeas
corpus action. Herrera v. Collins, 506 U.S. 390, 404-05 (1993) (a claim of actual
innocence can be used only as a gateway through which a habeas petitioner must pass to
have another procedurally defaulted claim considered on the merits). Petitioner cannot
proceed on these claims, but may set forth all of the facts supporting his assertion of
actual innocence to attempt to excuse the procedural default of any other claims, if
Respondent pursues a procedural default defense.

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5. Discussion of Claim 8: No Factual or Legal Basis
Claim 8 is not a claim at all, but a vague request for authorization for further
amendment. A habeas corpus claim is not cognizable unless supported by “the grounds
for relief” and “the facts supporting each ground.” See Rule 2(c) of the Rules Governing
§ 2254 Cases. Petitioner already has been given adequate opportunity to amend his
pleadings in this matter. Absent extraordinary circumstances, the Court will not entertain
another amendment.
6. Discussion of Claim 6: Petitioner should be Housed in a Mental Hospital
Claim 6 is that the state of Idaho has expressly waived the right to punish mentally
ill individuals by its statutory enactments. Petitioner asserts that certain Idaho statutes
mandate that he should be housed in a mental hospital to be rehabilitated rather than in a
prison.
However, the Idaho appellate courts have not interpreted the statutes as Petitioner
interprets them. Petitioner is not entitled to ask the federal district court to revisit the state
of Idaho’s interpretation of its own statutes. The United States Supreme Court has “stated
many times that ‘federal habeas corpus relief does not lie for errors of state law.’”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Estelle v. McGuire, 502 U.S. 62, 67
(1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
This Court is bound to apply state statutes as they have been interpreted by the
Idaho appellate courts. It is well recognized that “a State’s highest court is the final
judicial arbiter of the meaning of state statutes.” Sass v. California Bd. of Prison Terms,

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461 F.3d 1123, 1127 (9th Cir. 2006).2 Likewise, a determination of state law by a state
intermediate appellate court is binding upon the federal court. See Hicks v. Feiock, 485
U.S. 624, 629-30 & n. 3 (1988).
In Nielson v. State, 828 P.2d 342 (Idaho Ct. App. 1992), the Court recognized that
“Idaho’s purpose in sentencing is punitive” and that the state is not required to provide
rehabilitative treatment to prisoners. Id. at 344; accord, State v. Law, 858 P.2d 827, 82829 (Idaho Ct. App. 1993); see Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 469-770
(9th Cir. 1989)(recognizing the same).
Idaho Code § 18-207 clearly provides that a person convicted of a criminal offense
who has a mental condition that requires treatment “shall receive treatment in a facility
which provides for incarceration or less restrictive confinement.” The title of that section
is, in fact, “Provision for treatment during incarceration.” Idaho Code Title 66, Chapter 3,
entitled “Hospitalization of the Mentally Ill,” provides for confinement in a state mental
hospital if a person is under civil commitment. That provision does not apply to Petitioner
because he is a convicted felon, not a civilly-committed person. Nothing in the Idaho
Code demonstrates that “Idaho has expressly waived the right to punish” Petitioner, as he
asserts. This argument, which is contrary to the Idaho appellate courts’ interpretation of
Idaho statutes, is not a basis for federal habeas corpus relief.

2

Sass was overruled on other grounds by Hayward v. Marshall, 603 F.3d. 546 (9th Cir. 2010) (en
banc) (any right to release on parole arose from state law, and did not arise from federal constitution),
which itself was overruled by implication in Swarthout v. Cooke, 562 U.S. 216 (2011) (“No opinion of
ours supports converting California’s ‘some evidence’ rule into a substantive federal requirement.).
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If Petitioner requires mental health treatment, he is entitled to seek it from the
prison medical unit, pursuant to the Eighth Amendment to the United States Constitution.
If he is receiving inadequate care and believes he is in danger of suffering serious harm,
he may pursue a civil rights lawsuit, but only after exhausting his prison administrative
remedies. A civil rights “conditions of confinement” claim may not be pursued in a
habeas corpus action.
Based on the foregoing, Petitioner has failed to state a claim upon which relief
can be granted with his assertions that the Idaho statutory scheme requires that he be
provided with rehabilitative treatment or mental health hospitalization instead of being
imprisoned for a felony offense.
7. Claims upon which Petitioner May Proceed
The Court will liberally construe Claims 1, 5, and 7 as stating cognizable claims.
However, two warnings are in order. First, Petitioner’s claims may be procedurally
defaulted. Respondent will be permitted to address procedural issues before substantive
issues via a motion for complete or partial summary dismissal, if a procedural default
argument is supported by the state court record.
Second, a valid guilty plea forecloses any claims that were relinquished upon
pleading guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) (a person who
voluntarily and intelligently pleads guilty to a criminal charge may not seek federal
habeas relief on the basis of pre-plea constitutional violations).

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Petitioner will be permitted to pursue his claims to the extent that they state a
federal claim upon which relief can be granted, they are not foreclosed by his guilty plea,
and either they were properly exhausted in state court or he can show legal excuse for a
failure to exhaust. Therefore, Respondent, will be required to file an answer or a preanswer motion, as may be appropriate from a review of the state court record.
8. Notice to Petitioner of Standards of Law
Given Petitioner’s status as a pro se litigant, the Court provides the following
habeas corpus standards of law which may apply to Petitioner’s case, depending on
Respondent’s response.
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 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). Under these
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circumstances, the claim is considered to have been “procedurally defaulted.” Id. 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).
Attorney error that rises to the level of a violation of the Sixth Amendment’s 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. 478, 488
(1986). However, an allegation of ineffective assistance of direct appeal counsel will
serve as cause to excuse the default of other claims only if the ineffective assistance of
direct appeal counsel claim is, itself, not procedurally defaulted. Edwards v. Carpenter,
529 U.S. 446, 454 (2000). In other words, before a federal court can consider ineffective
assistance of direct appeal counsel as cause to excuse the default of underlying habeas
claims, a petitioner generally must have presented the ineffective assistance of direct

ORDER REVIEWING (SECOND) AMENDED PETITION - 9

appeal 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 another 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. 722, 752 (1991). 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).
The case of Martinez v. Ryan, 566 U.S. 1 (2012), established a limited exception
to the Coleman rule. In Martinez, the court held that inadequate assistance of counsel “at
initial-review collateral review proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Id. at 9. The Martinez
Court explained that the limited exception was created “as an equitable matter, that the
initial-review collateral proceeding, if undertaken without counsel or with ineffective
counsel, may not have been sufficient to ensure that proper consideration was given to a
substantial claim.” Id. at 14.
The Martinez v. Ryan exception is applicable to permit the district court to hear
procedurally defaulted claims of ineffective assistance of trial counsel, id. at 1320, and
ineffective assistance of direct appeal counsel. See Nguyen v. Curry, 736 F.3d 1287 (9th
Cir. 2013). The exception has not been extended to other types of claims. See Hunton v.
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Sinclair, 732 F.3d 1124 (9th Cir. 2013) (Martinez not applicable to a defaulted Brady
claim).
If a petitioner cannot show cause and prejudice for a procedurally defaulted claim,
he can still raise the claim if he demonstrates that the court’s failure to consider it will
result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494
(1991). A miscarriage of justice 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. To show a miscarriage of justice, a petitioner must make a colorable showing
of factual innocence. Herrera v. Collins, 506 U.S. 390, 404 (1993). Where the petitioner
pleaded guilty and did not have the evidence in his case evaluated by a jury, he must
show that, based on all of the evidence, “it is more likely than not that no reasonable juror
would have found Petitioner guilty. . . .” Van Buskirk v. Baldwin, 265 F.3d 1080, 1084
(9th Cir. 2001), citing Schlup v. Delo, 513 U.S. 298, 327 (1995). Types of evidence
“which may establish factual innocence include credible declarations of guilt by another,
see Sawyer v. Whitley, 505 U.S. 333, 340 (1992), trustworthy eyewitness accounts, see
Schlup, 513 U.S. at 331, and exculpatory scientific evidence.” Pitts v. Norris, 85 F.3d
348, 350-51 (8th Cir. 1996).
ORDER
IT IS ORDERED:
1. Petitioner’s Motion for Extension of Time to File Amended Petition (Dkt. 33) is
GRANTED. The (Second) Amended Petition at Docket 37 is considered timely.

ORDER REVIEWING (SECOND) AMENDED PETITION - 11

2. Petitioner may proceed to the next stage of habeas corpus proceedings on Claims
1, 5, and 7.
3. Claims 2, 3, 4, 6, and 8 are DISMISSED for failure to state a federal habeas
corpus claim upon which relief can be granted. Respondent need not address these
claims.
4. Within 120 days after entry of this Order, Respondent shall have the option of
filing either of the following: (1) a motion for summary dismissal or partial
summary dismissal on procedural grounds (which may be followed by an answer
if the motion is unsuccessful); or (2) an answer and brief on the claims that were
adjudicated on the merits by the Idaho Supreme Court, that also includes a brief
summary (between one paragraph and several pages) of any procedural defenses
for any claims (which may be argued in the alternative). If Respondent files an
answer and brief, the Court first will determine the claims that were adjudicated on
the merits by the Idaho Supreme Court; for any claims that appear to warrant relief
or for any claims not disposed of on the merits that appear subject to procedural
defenses, the Court next will determine whether those claims are barred by any
procedural defenses and will call for additional briefing, evidence, or a hearing, if
necessary.
5. Respondent shall file with the responsive pleading or motion, or within a
reasonable time period thereafter, a copy of all portions of the state court record
previously transcribed that are relevant to a determination of the issues presented.
Any presentence investigation reports or evaluations shall be filed under seal. The
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lodging of the remainder of the state court record, to the extent that it is lodged in
paper format, is exempt from the redaction requirements, as provided in District of
Idaho Local Civil Rule 5.5(c).
6. If the response to the habeas petition is an answer, Petitioner shall prepare a reply
(formerly called a traverse), containing a brief rebutting Respondent’s answer and
brief, which shall be filed and served within 30 days after service of the answer.
Respondent has the option of filing a sur-reply within 14 days after service of the
reply. At that point, the case shall be deemed ready for a final decision.
7. If the response to the habeas petition is a motion, Petitioner’s response to the
motion shall be filed and served within 30 days after service of the motion, and
Respondent’s reply, if any, shall be filed and served within 14 days thereafter.
8. No party shall file supplemental responses, replies, affidavits or other documents
not expressly authorized by the Local Rules without first obtaining leave of Court.
9. No discovery shall be undertaken in this matter unless a party obtains prior leave
of Court, pursuant to Rule 6 of the Rules Governing Section 2254 Cases.
10. The parties may, but need not, file the following in this matter: (1) notices of nonobjections to motions to which they do not object; (2) responses to motions for
appointment of counsel; (3) responses to motions that are meritless, frivolous, or
filed in contravention of this Order; or (4) notices of intent not to file a reply. If
additional briefing is required on any issue, the Court will order it.
11. Each party shall ensure that all documents filed with the Court are simultaneously
served via the ECF system or by first-class mail upon the opposing party (through
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counsel if the party has counsel), pursuant to Federal Rule of Civil Procedure 5.
Each party shall sign and attach a proper mailing certificate to each document filed
with the court, showing the manner of service, date of service, address of service,
and name of the person upon whom service was made, or as specified by the
applicable ECF rules. The Court will not consider ex parte requests unless a
motion may be heard ex parte according to the rules and the motion is clearly
identified as requesting an ex parte order, pursuant to Local Rule 7.2. (“Ex parte”
means that a party has provided a document to the court, but that the party did not
provide a copy of the document to the other party to the litigation.)
12. All Court filings requesting relief or requesting that the Court make a ruling or
take an action of any kind must be in the form of a pleading or motion, with an
appropriate caption designating the name of the pleading or motion, served on all
parties to the litigation, pursuant to Federal Rules of Civil Procedure 7, 10 and 11,
and Local Rules 5.2 and 7.1. The Court will not consider requests made in the
form of letters.
13. Petitioner shall at all times keep the Court and Respondent advised of any changes
in address.
14. If Petitioner’s custodian changes at any point during this litigation, counsel for
Respondent shall file a Notice of Substitution of Respondent within 30 days of
such change, identifying the person who is substituted as Respondent. See Fed. R.
Civ. P. 25(d); Rule 2(a) of the Rules Governing Section 2254 Cases.

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DATED: November 4, 2020

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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