Padilla v. Blades

Filing 12

MEMORANDUM DECISION AND ORDER granting 8 MOTION to Dismiss Motion for Partial Summary Dismissal Respondent shall file an answer to the remaining claim within 90 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TARANGO D. PADILLA,
Petitioner,
vs.

Case No. 1:17-cv-00527-BLW
MEMORANDUM DECISION
AND ORDER

RANDY BLADES,
Respondent.

Petitioner Tarango D. Padilla filed a Petition for Writ of Habeas Corpus
challenging his state court grand theft and persistent violator convictions. (Dkt. 1.)
Respondent Randy Blades filed a Motion for Partial Summary Dismissal. (Dkt. 8.)
Petitioner has filed his Response (Dkt. 8), and the motion is 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). Accordingly, the Court enters the following
Order.

MEMORANDUM DECISION AND ORDER - 1

REVIEW OF MOTION FOR PARTIAL SUMMARY DISMISSAL
1. Introduction
Petitioner brings four claims in his Petition for Writ of Habeas Corpus:
1. Claim One: A Sixth Amendment ineffective assistance of trial counsel claim that
counsel was ineffective for (a) failing to investigate, (b) deficiently relying on the
state’s investigation, (c) failing to discover favorable witnesses; and (d) failing to
obtain Brady evidence from the State.1
2. Claim Two: A Fourth Amendment violation regarding suppression of evidence (it
is unclear whether this is intended to be an ineffective assistance of counsel claim
and/or a stand-alone claim);
3. Claim Three: A Fourteenth Amendment withholding of exculpatory evidence
claims (it is unclear whether this is intended to be an ineffective assistance claim
and/or a stand-alone claim); and
4. Claim Four: A Sixth and Fourteenth Amendment trial court error claim, based on
the state district court’s refusal to give Petitioner’s proposed jury instruction on a
lesser included offense (it is unclear whether this is intended to be an ineffective
assistance claim and/or a stand-alone claim).
(See Dkts. 1, 5.)
In the Motion for Partial Summary Dismissal, Respondent asserts that the
following claims are procedurally barred: Claim One is procedurally defaulted; Claim
Two, if construed as a stand-alone claim, is procedurally defaulted and noncognizable as
1

Brady v. Maryland, 373 U.S. 83 (1963).

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a federal claim; and Claims Three and Four, construed as stand-alone or ineffective
assistance claims, are procedurally defaulted. Claim Two, construed as an ineffective
assistance claim is not at issue.
2. Standard of Law
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).
If a claim has not been properly exhausted in the state court system, the claim is
considered “procedurally defaulted.” Coleman, 501 U.S. at 731. A procedurally defaulted
claim will not be heard in federal court unless the petitioner shows either that there was
legitimate cause for the default and that prejudice resulted from the default, or,

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alternatively, that the petitioner is actually innocent and a miscarriage of justice would
occur if the federal claim is not heard. Id.
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
An attorney’s errors that rise to the level of a violation of the Sixth Amendment
right to effective assistance of counsel may, under certain circumstances, serve as a cause
to excuse the procedural default of other claims. Murray v. Carrier, 477 U.S. at 488.
However, an allegation of ineffective assistance of counsel will serve as cause to excuse
the default of other claims only if the ineffective assistance of counsel claim itself is not
procedurally defaulted or, if defaulted, a petitioner can show cause and prejudice for the
default. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). In other words, before a federal
court can consider ineffective assistance of counsel as cause to excuse the default of
underlying habeas claims, a petitioner generally must have presented the ineffective
assistance of counsel claim in a procedurally proper manner to the state courts, such as in
a post-conviction relief petition, including through the level of the Idaho Supreme Court.
As to a related but different topic–errors of counsel made on post-conviction
review that cause the default of other claims–the general rule on procedural default is that
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any errors of a defense attorney during a post-conviction action cannot serve as a basis
for cause to excuse a petitioner’s procedural default of his claims. See Coleman v.
Thompson, 501 U.S. at 752. This rule arises from the principle that a petitioner does not
have a federal constitutional right to effective assistance of counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez,
999 F.2d 425, 430 (9th Cir. 1993).
Martinez v. Ryan, 566 U.S. 1 (2012), established a limited exception to this
general rule. That case held that inadequate assistance of post-conviction review (PCR)
counsel or lack 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. To demonstrate ineffective assistance of PCR counsel, a petitioner must show that a
defaulted ineffective assistance of trial counsel claim is “substantial,” meaning that the
claim has “some merit.” Id. at 14. To show that a claim is substantial, Petitioner must
show that trial counsel performed deficiently, resulting in prejudice, defined as a
reasonable probability of a different outcome at trial. Id.; see Strickland v. Washington,
466 U.S. 668, 695-96 (1984).
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.
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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), meaning that the new
evidence presented shows “it is more likely than not that no reasonable juror would have
found Petitioner guilty.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Types of evidence
that “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). The evidence supporting the actual innocence claim must be
“newly presented” evidence of actual innocence, meaning that “it was not introduced to
the jury at trial”; it need not be “newly discovered,” meaning that it could have been
available to the defendant during his trial, though it was not presented to the jury. Griffin
v. Johnson, 350 F.3d 956, 962–63 (9th Cir. 2013).
3. Discussion of Claim One
Respondent’s argument as to Claim One is simple: Petitioner presented only one
ineffective assistance of counsel claim to the Idaho Supreme Court during postconviction appeal following remand2— “Did the [post-conviction] Court err in denying
Mr. Padilla’s petition for post-conviction relief because trial counsel was ineffective in
failing to move to suppress unconstitutionally obtained evidence?” (State’s Lodging F-1,

2

In his post-conviction action, Petitioner brought three different ineffective assistance of counsel claims: (1) failure
of trial counsel to file a motion to suppress, (2) failure of trial counsel to timely file a notice of alibi; and (3) failure
of appellate counsel to appeal all issues. (State’s Lodging C-1, pp. 54-55, 232-37.) However, on appeal of that
matter, he raised only the ineffective assistance suppression claim. (State’s Lodging D-1, p. 5.) The case was
remanded for the state district court to make factual findings and conclusions of law regarding the suppression
claim. (State’s Lodging D-4.) The second time around on appeal, Petitioner again raised only the ineffective
assistance of counsel suppression claim.

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p. 6.) Petitioner did not argue his counsel was ineffective for any other reason. (See
State’s Lodgings F-1, pp. 7-19; F-3 pp. 1-6.)
The Court agrees with Respondent’s analysis that the ineffective assistance
suppression claim presented to the Idaho Supreme Court does not match any portion of
Claim One—that counsel was ineffective for failing to investigate, for deficiently relying
on the state’s investigation, for failing to discover favorable witnesses, or for failing to
obtain Brady evidence. (Compare State’s Lodgings F-1, pp. 7-19; F-3, pp. 1-6 with Dkt.
1, p. 6.) Therefore, the Court concludes Claim One is procedurally defaulted.
4. Discussion of Claim Two
The Court noted in the Initial Review Order that it was unclear whether Petitioner
intended to assert a Fourth Amendment suppression stand-alone claim or also a Sixth
Amendment ineffective assistance of counsel claim regarding the suppression issue,
which has been properly exhausted. The Court will liberally construe the federal Petition
to assert the only claim that Petitioner fully exhausted in the state court system.
Therefore, he may proceed on Claim Two—construed as an ineffective assistance of
counsel claim regarding the suppression issue.
However, the Court agrees with Respondent that Petitioner did not properly raise a
stand-alone Fourth Amendment claim on direct appeal3 or on post-conviction review.
That portion of Claim Two is therefore procedurally defaulted.

3

On direct appeal, Petitioner raised a single issue—whether the trial court erred when it denied his motion in limine
“to prevent the State from presenting testimony or evidence about broken pieces of a spark plug and a flashlight
because the evidence was both irrelevant and unfairly prejudicial.” (State’s Lodging B-1, p. 5.)

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5. Discussion of Claim Three
Claim Three is a Brady claim—that the State withheld exculpatory evidence from
Petitioner and his counsel. Respondent argues that, regardless of whether this Brady
claim is construed as an ineffective assistance of counsel claim or a stand-alone
Fourteenth Amendment claim, Petitioner did not raise it before the Idaho Supreme Court.
The state court record bears out Respondent’s position. As noted above, the only
ineffective assistance claim raised in the Idaho Supreme Court centered on the
suppression of evidence issue. The Court agrees that Claim Three, as a Sixth or a
Fourteenth Amendment claim, is procedurally defaulted.
6. Discussion of Claim Four
Claim Four is like Claim Three—a combination Sixth and Fourteenth Amendment
claim, but based on the state district court’s refusal to give a jury instruction on a lesser
included offense. It is clear from the discussions and footnotes above that the only claims
Petitioner exhausted properly in the Idaho Supreme Court was the suppression issue and
the motion in limine issue regarding the spark plug and the flashlight. Therefore, this
claim, under either theory, is procedurally defaulted.
7. Discussion of Cause and Prejudice
The Court provided Petitioner with an opportunity for response. (Dkt. 10.) In his
Response, Petitioner asserts: “I honestly feel I was prejudiced by that deficient
performance of counsel. I should have been properly informed of an element of the right

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offense, and being found guilty by trickery was not taken in compliance with
constitutional standards.” (Dkt. , p. 1.)
Petitioner provides the following factual assertions to support his view that he was
prejudiced by his counsel’s performance: “I never used the cards I found just moments
before coming into contact with officer. All audio was missing where I tried to tell this
man not only where I had just came from, but where I had just found these items
scattered all over the sidewalk right around the corner from my house.” (Id. (verbatim).)
He states that he thought he found gifts cards, and it was not his intention to use the credit
cards. He attempted to raise all these issues with his attorneys and through his trial and
appeals, and no one listened.
While Petitioner may feel slighted by his counsel and the legal system in not
listening to his viewpoint about his receipt of the cards and the missing audio tracks,
these assertions do not support an argument of cause or prejudice for the default of any of
the claims he has brought in his federal petition. The Court did not see any facts that
would support cause or prejudice from its review of the record. It appears that appellate
counsel carefully selected claims for appeal, because the appellate courts remanded the
post-conviction matter on the first appeal, and Petitioner was partly successful in his
arguments on direct appeal, though it did not result in relief. Accordingly, the cause and
prejudice exception does not apply to excuse the default of Petitioner’s claims.

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Lastly, Petitioner has produced no new evidence showing he is actually innocent.
Ms. Labrum and Ms. Mauch, both victims of the credit card theft, indicated that they had
left their credit cards in their cars. The police officer arresting Petitioner said that, from
his training, he knew that spark plugs are commonly used to break into cars. Labrum and
Mauch’s credit cards and spark plug pieces were found on or near Petitioner when he was
arrested. Padilla v. State, 389 P.3d 169, 171 (Idaho 2016). No evidence of break-in of the
victims’ cars was found, but “[a] logical, and permissible, inference is that Padilla
planned to utilize the spark plug pieces to gain access to the vehicles, but found their use
unnecessary because the vehicles were unlocked.” State v. Padilla, 2012 WL 9500490 at
*3 (Idaho Ct. App. Dec. 28, 2012). Petitioner has brought forward no new evidence that
would suggest he is actually innocent.
8. Conclusion
Petitioner may proceed to the merits of the portion of Claim Two that is the Sixth
Amendment ineffective assistance of counsel claim. His other claims will be dismissed
with prejudice.
On his remaining claim, Petitioner shall bear the burden of proving that the state
court judgment either “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 that it “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).

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Though the source of clearly established federal law must come from the holdings
of the United States Supreme Court, circuit law 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. 2000). However,
“circuit precedent may [not] be used to refine or sharpen a general principle of Supreme
Court jurisprudence into a specific legal rule that th[e] Court has not announced.”
Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citations omitted).
ORDER
IT IS ORDERED:
1. Respondent=s Motion for Partial Summary Dismissal (Dkt. 8) is GRANTED.
2. Respondent shall file an answer to the remaining claim within 90 days after
entry of this Order. The answer should also contain a brief setting forth the
factual and legal basis of grounds for dismissal and/or denial of the remaining
claim. Petitioner shall file a reply (formerly called a traverse), containing a
brief rebutting Respondent=s answer and brief, 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.
3. No party shall file supplemental responses, replies, affidavits or other
documents not expressly authorized by the Local Rules without first obtaining
leave of Court.

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