Johnson v. Atencio et al

Filing 17

MEMORANDUM DECISION AND ORDER. Respondent's Motion to Dismiss (Dkt. 9 ) is GRANTED in part (Claim Four), and DENIED in part (Claim One). Respondent shall file an answer to the remaining claims (1, 2, 3, and 5) within 90days after entry of this Order. Signed by Judge David C. Nye. (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DAVID LEON JOHNSON,
Petitioner,
vs.

Case No. 1:18-cv-00216-DCN
MEMORANDUM DECISION
AND ORDER

JOSH TEWALT, Director of the Idaho
Department of Correction;1 and
CARMEN DYAS, Senior Probation
Officer for Interstate Compact Parolees,
also with the Idaho Department of
Correction,
Respondents.
Pending before the Court in Petitioner David Johnson’s habeas corpus matter is
Respondents’ Motion for Partial Summary Dismissal, which is now fully briefed and ripe
for adjudication. Dkts. 9, 13, 15. 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 oral
argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
following Order.

1

The current director has been substituted for the former director, who retired in December 2018.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The Idaho Supreme Court explained the background of the case as follows:
David Leon Johnson, the appellant, was charged with
three counts of lewd and lascivious conduct with a minor under
sixteen pursuant to I.C. § 18–1508. He was charged for
offenses he allegedly committed against his daughter, A.J.,
who was between six and seven years old at the time of the
charged conduct. Mr. Johnson had a home in Paul, Idaho, with
his wife and five children at the time. The first two counts
allegedly occurred over the first weekend of spring break,
2004. Michelle Johnson, Mr. Johnson’s wife at the time,
purportedly took the couple’s children to Utah to visit her
parents but left A.J. behind with Mr. Johnson. A.J. testified that
while she was home alone with Mr. Johnson, he molested her
on two occasions. First, he allegedly touched and penetrated
A.J.’s genitalia with his hands, made A.J. touch his penis
manually until he ejaculated, and then forced her to lick
chocolate off of his penis. Second, Mr. Johnson allegedly
attempted to penetrate A.J. in the shower by lifting her up and
onto his penis. The third count alleged that Mr. Johnson
molested his daughter over the Memorial Day weekend of
2005.
State’s Lodging B-4, pp. 1-2 (first direct appeal).
In a 2006 jury trial, Petitioner was convicted of the first two counts of lewd conduct
and acquitted of the third count. State’s Lodgings A-1, pp. 1-4; A-2, pp. 320-321. On direct
appeal, the Idaho Supreme Court agreed with Petitioner that the trial court committed
harmful error in admitting the testimony of Petitioner’s sister that he had sexually molested
her when he was a teenager. State’s Lodging B-4. The court vacated the conviction and
remanded the case for a new trial.
Upon remand, the trial court put into motion the procedures for a new trial:
The parties and the court met for a final pre-trial
conference on June 6, 2011. During the conference Johnson’s
MEMORANDUM DECISION AND ORDER - 2

counsel requested that a jury questionnaire be used to aid in
selection of the jury, and counsel submitted a proposed
questionnaire to the court on June 7, 2011. On June 16, the
district court entered a Minute Order Regarding Preliminary
Jury Selection Proceedings (Minute Order) which informed
counsel that the court would conduct “preliminary jury
selection proceedings” and would “give verbal preliminary
instructions and information about the charges in th[e] case.”
The court attached a written copy of the court’s intended
comments as Exhibit A to the Minute Order. The certificate of
service on the Order indicates that it was served on counsel by
facsimile on June 16. The Minute Order also allowed the
parties to object to the court's intended comments by June 21;
however, Johnson's counsel failed to object.
[On June 22, 2006, the] court summoned jurors to
complete the questionnaires, gave them preliminary
instructions, and read them the information contained on
Exhibit A, which included the following language: “There was
a prior trial in this case in 2006. Following an appeal, the Idaho
Supreme Court reversed and remanded the case to this court
for a new trial.” Defense counsel was not present during these
hearings and therefore lodged no contemporaneous objection
to the court’s reading of the instruction.
State’s Lodging F-5, p. 3.
On June 27, 2006, one week into voir dire, Defendant’s counsel, Mr. Roark, filed a
motion in limine to preclude the attorneys or witnesses from “[m]aking any reference to a
prior trial in this case” and requesting that, to the extent that witnesses need to refer to the
prior trial, that it be referred to as a “previous hearing in this case.” In camera, the Court,
Mr. Roark, and the prosecutor, Mr. Stevenson, discussed the following:
THE COURT:

Back on record in chambers at 9:20 A.M.
All counsel present.
Mr. Roark, we took a quick look at your
motion in limine, the essence of which is
to seek that there be no mention made of

MEMORANDUM DECISION AND ORDER - 3

the prior trial in this case. We crossed
that bridge last week with both these -with the supplemental questionnaires. I
told the panels when they were in that
there had been a prior trial; that on
appeal, the Supreme Court had reversed
and remanded the case to this Court for
trial and that I was assigned to handle this
case. So without meaning to and not
knowing that was your position, I went
ahead and, I think -- did we make that
disclosure
in
the
proposed
questionnaire?
MR. STEVENSON: The proposed jury instructions.
LAW CLERK:

It was in the statement that you read, but
it wasn’t part of the actual questionnaire.

THE COURT:

Right, but we sent that questionnaire out
to counsel --

LAW CLERK:

Yes.

THE COURT:

-- for review? And I can just, at this point,
without -- it's appropriate, I think, to talk
about this now, because one of the
questions I usually ask during the voir
dire process is whether anybody’s ever
been or was on the jury that tried this case
previously or was a witness or knew
anybody that was a witness or had
developed any information from that
case, so that was definitely a direction I
was going to go, but that bridge has been
crossed in that sense, that there has been
disclosure made to these folks that there
was a trial and a reversal and a remand for
a new trial.

MR. ROARK:

Well, I'm very concerned about that,
because the jury has, in effect, been told
that my client has previously been
convicted.

MEMORANDUM DECISION AND ORDER - 4

THE COURT:

They were told there was a prior trial and
a remand. The word “convicted” was
never used.

MR. ROARK:

The word “convicted” may not have been
used, but I don't know any reasonable
inference that the jury could otherwise
draw.

THE COURT:

How would you propose that we ever
inquire as to previous experience without
ever disclosing that there was a prior trial?

MR. ROARK:

Well, I think it can be referred to as a prior
hearing in terms of what the witnesses
have to do, and that does not make it
exceptional in terms of how we get
around preliminary hearings and grand
juries. The jurors are made aware that
there was a preliminary hearing or there
was a grand jury proceeding and that there
is prior testimony. This is a different
proposition. I mean, I was concerned,
certainly, with finessing that point, and I
think that can easily be done by calling it
a prior hearing. It may be that either side
will want to impeach a witness with an
inconsistent prior statement. That would
require them to bring out the transcript.
But, again, if that's referred to as a prior
hearing, I don't find that decidedly more
prejudicial than if they were bringing out
a preliminary hearing transcript or a grand
jury transcript.
Here, however, the jury being told that
this matter was once tried and then went
to the Supreme Court where it was
reversed, again, I think the only
reasonable inference that any but braindead jurors could take from that would be
that he's been convicted, and then that
conjures up these paradigms of

MEMORANDUM DECISION AND ORDER - 5

technicalities and so forth. As far as your
question about how do find out whether
or not these people may have served on a
prior jury, I think that that's something
that's relatively easy to do, because we
ask: "Have you served on a prior jury?"
And I think it would be very easy to say,
"Have any of you had anything to do with
this case prior to today?" Again, that does
not require of them a commitment to the
proposition that he has been previously
convicted. I don't see how we unring that
bell.
THE COURT:

Well, I think that we unring it because I
sent the script out before we ever came to
this and asked for counsel to object, and I
didn't get any objections, and so based
upon that, I felt free to proceed with that
script.

MR. ROARK:

Well, perhaps it was because I've been in
trial. I did not see the script. I can't say that
it was not sent. I did not see the script. I
certainly would have objected had I been
here. And I know that wasn't the Court's
fault. I was in jury trial. I couldn't avoid
that. I would have objected. I'm very
concerned about that, Your Honor.

THE COURT:

Well, then, the opening comments to this
panel that I make always include the
statement that he's been charged; that he
has pled not guilty; that the fact of a filing
is not evidence; that they shouldn't draw a
conclusion of guilt from the fact that a
filing -- the point being this is a brandnew day, and I think that that's the way we
have to proceed with it at this point is that
this is a brand-new trial. This is day one.
My concern is a further comment on it,
then, if, in fact, there is prejudice -- and
I'm not presuming that there is, although I

MEMORANDUM DECISION AND ORDER - 6

understand the defense's concerns, any
further comment on it as a topic would
only, I think, serve to highlight it, and
rather than that, by focusing on the fact
that this is a brand-new trial and that, at
this point, this man stands before them not
guilty of anything, lets the jury know
where we are procedurally. I think that if
there's any nuance in any of the answers
to any of the questions from any of the
jurors that somehow the appeal and the
remand or the prior proceeding has had
any effect on them, I’ll just go ahead and
excuse them at that point for that reason if
that's—unless counsel think that's a
wrong reason to do that. I'm not—I’m
looking to both counsel here in whatever
order you’d like to respond to my
thoughts.
MR. STEVENSON: I'm okay with that, Your Honor.
MR. ROARK:

Well, I'm not going to object to that, and I
understand that this was inadvertent and
could I see the script, by the way, because
I–

* * *
THE COURT:

If we could find that file. It came out
attached to a minute order.

THE CLERK:

What are you wanting?

THE COURT:

There's a minute order that --

THE CLERK:

That you did last week?

THE COURT:

Yes, that went out to counsel that talked
about this supplemental questionnaire
proceeding.

(Clerk delivers script.)

MEMORANDUM DECISION AND ORDER - 7

MR. ROARK:

Well, I appreciate that, Your Honor. As a
practical matter, I did not return to the
state of Idaho until about 8 :00 P.M. on
the 21st of June, and I did not -- again, I
did not see that minute order. I did see the
juror questionnaires later. As the Court
knows, I was in jury trial all of last week,
so I certainly would have objected to that.
I think it is objectionable. I think it has
now tainted the jury to the extent that they
have to understand that the case went up
and, as the language says, it was reversed.
There's also already been a conviction.
Consequently, this is not like -- I've had a
lot of experience with hung juries where
you're trying a case for a second time.
More than once, I’ve tried cases for a third
time. That’s much easier for both counsel
to work with because people were not
convinced beyond a reasonable doubt, but
they were also not unanimous in finding
the defendant not guilty.
Here, the inference is that there was a jury
of 12 who were convinced beyond a
reasonable doubt that he was guilty. And
another vexing part of that, of course, is
that there's already enough notoriety
surrounding this case, as I think the 11
questionnaires disclose, so -- although I
know the Court is going to deny my
motion, given all of the time and effort
that has gone into this, I would move that
this matter be vacated, that we select a
new panel, and that they not be informed
of the reversal and remand.

THE COURT:

All right. Well, thank you, Mr. Roark. Mr.
Stevenson, State have any further
comments?

MR. STEVENSON: I don't agree on that. We'd ask that the
Court does not grant that motion based on

MEMORANDUM DECISION AND ORDER - 8

the very limited knowledge that this panel
has formed an opinion as to his guilt or
innocence at this point in time.
* * *
THE COURT:

We'll go back on record at 10 minutes
until 10:00. Counsel for both parties
present. I looked at that issue again, Mr.
Roark, 20 and, at this point, I will deny
the motion to vacate. I think we can go
forward.

State’s Lodging D-2, pp. 74-82.
At the second trial, Petitioner again was found guilty of two counts of lewd conduct.
State’s Lodging E-3, p. 608. Petitioner was sentenced to two concurrent five-year fixed
terms in prison, with ten years indeterminate. State’s Lodging E-3, pp. 612-614.
Petitioner did not file a notice of appeal from his conviction. On post-conviction
review, Petitioner brought several ineffective of assistance of trial counsel claims,
including a failure to file a timely notice of appeal. State’s Lodging E-2, pp.118-134.
Respondent stipulated that trial counsel was ineffective for failing to file a notice of appeal.
State’s Lodging E-2, pp.77-79; 88-91. The state district court restored Petitioner’s direct
appeal rights by re-entering the judgment of conviction. Id. Petitioner’s other postconviction claims were summarily dismissed. State’s Lodgings E-2, pp. 274-295.
Petitioner appealed from both the re-entered judgment of conviction and
dismissal of his other postconviction claims. State’s Lodging E-2, pp.101-103, 359-363.
His postconviction appeal was eventually dismissed for failure to file a pro se brief, after
his counsel withdrew for failure to find a viable issue for appeal. State’s Lodging G-1 to

MEMORANDUM DECISION AND ORDER - 9

G-4. Through counsel, he proceeded on his direct appeal.
On direct appeal, Petitioner asserted that the trial court’s introductory statement to
the jury created implicit bias in the entire jury panel, and that the trial court should have
granted Petitioner’s motion to vacate the trial and empanel a new jury panel. State’s
Lodging F-1. In response, the State argued that Petitioner had waived his implicit bias
claim by passing the jury for cause without objection, and, alternatively, that the trial
court’s statement did not prejudice Petitioner’s defense because the court did not say the
word “conviction.” State’s Lodging F-2. In reply, Petitioner countered that his motion for
a new jury pool served as a sufficient objection to retaining the jury panel, and—
analogizing to denial of a motion in limine—that he was not required to object again before
passing the panel. State’s Lodging F-3.
The Idaho Supreme Court addressed Petitioner’s claim in a three-fold manner: (1)
it “h[e]ld that this comment did not create an implied bias among the potential jurors that
deprived Johnson of a fair trial”; (2) it determined that because Petitioner’s counsel “failed
to timely object, either in writing or during the jury questionnaire process, the claim was
subject to—and failed under—“the fundamental error standard”; and (3) it concluded that,
“[e]ven if Johnson could establish an implicit bias, he waived any claim that the jury was
biased when he passed the jury for cause at the conclusion of voir dire.” State’s Lodging
F-5, pp. 4-7. The Idaho Supreme Court denied all of Petitioner’s other direct appeal claims
and affirmed his convictions. State’s Lodging F-5. One justice dissented. Id., pp. 22-26.
Petitioner raises five claims in his federal Petition for Writ of Habeas Corpus. In
the pending Motion for Partial Summary Dismissal, Respondent asserts that Claim One
MEMORANDUM DECISION AND ORDER - 10

and Claim Four are procedurally defaulted. Claim One is that the trial court violated his
Sixth and Fourteenth Amendment rights to an impartial jury by informing the prospective
jury pool outside the presence of counsel that his case had previously been “reversed and
remanded” for a new trial and refusing to vacate the trial and summon new jurors. Claim
Four is that Petitioner was deprived of his right to a fair trial when a state witness was
permitted to testify from a report rather than based upon his present recollection. Dkt. 1,
pp.7-13.
Petitioner does not contest Respondent’s position on Claim Four. Thus, this Order
focuses on Claim One, and, more particularly, whether the Idaho Supreme Court’s rejection
of Claim One rests on legal grounds “independent” of federal law. For that reason, the
“Standard of Law” section of this Order is also focused on the United States Supreme
Court’s “line of authority” addressing that issue. By it own admission, the United States
Supreme Court has noted that this “line of authority has not been without historical
uncertainties and changes in direction,” and that its efforts to “deal with this problem” have
been “somewhat tortuous.” Wainwright v. Sykes, 433 U.S. 72, 81, 82 (1977).
STANDARDS OF LAW
When a petitioner’s compliance with threshold procedural requirements is at issue,
a respondent may file a motion for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases
authorizes 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 that the petitioner is
not entitled to relief in the district court.”
MEMORANDUM DECISION AND ORDER - 11

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 to that court. Id. at 847.
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 that the Idaho courts have
rejected on an adequate and independent state procedural ground. Coleman v. Thompson,
501 U.S. 722, 750 (1991).
To constitute an “adequate” state ground, a 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)).
To constitute an “independent” state procedural bar, the bar must rest on a purely
state law ground. In a series of cases posing dilemmas of mixed state and federal law issues,
the Supreme Court of the United States developed several rules to govern determinations
of whether a state decision is “independent” of federal law.
MEMORANDUM DECISION AND ORDER - 12

In Wainwright v. Sykes, 433 U.S. 72 (1977), the United States Supreme Court held
that federal district courts facing a claim that is procedurally defaulted under adequate and
independent state law procedural grounds must apply the “cause and prejudice” test before
hearing the merits. In the prior state proceedings, the Florida Supreme Court had refused
to hear Mr. Sykes’ Miranda claim2 because he had failed to object to admission of the
testimonial evidence at trial and had failed to raise the issue on direct appeal. Id. at 90-91.
Reviewing whether the Florida contemporaneous objection rule was independent of
federal law, the Sykes court reasoned that, because “Florida procedure did, consistently
with the United States Constitution, require that respondents’ confession be challenged at
trial or not at all, … his failure to timely object to its admission amounted to an independent
and adequate state procedural ground which would have prevented direct review here.” Id.,
pp. 86-87 (emphasis added). In other words, because the state procedural bar did not
transgress federal constitutional procedural protections, the state procedural bar applied to
bar federal review of the federal claim; accordingly, Mr. Sykes was required to show cause
and prejudice to have the merits of the defaulted Miranda claim adjudicated in his federal
habeas corpus case.
In Michigan v. Long, 463 U.S. 1032 (1982), a direct appeal case about a Terry stop,3
the Supreme Court of the United States halted the long-standing practice of holding federal
cases in abeyance to permit the state courts to clarify ambiguous decisions that may or may

2

Miranda v. Arizona, 384 U.S. 436, 478 (1966).

3

Terry v. Ohio, 392 U.S. 1 (1968).

MEMORANDUM DECISION AND ORDER - 13

not have been decided on federal grounds. See Herb v. Pitcairn, 324 U.S. 117 (1945).4
Different from the Sykes habeas case, the Long direct appeal case addressed not
whether a state procedural bar was interwoven with federal procedure, but whether state
and federal substantive law were interwoven—the state court “referred twice to the state
constitution in its opinion but otherwise relied exclusively on federal law” on the Terry
issue. 463 U.S. at 1037. For efficiency’s sake, the Supreme Court decided to adopt a
conclusive presumption for determining whether a state court decision rested on an
independent state ground that would preclude federal review—“the plain statement rule.”
The Supreme Court clarified that, “when, as in this case, a state court decision fairly
appears to rest primarily on federal law, or to be interwoven with the federal law, and when
the adequacy and independence of any possible state law ground is not clear from the face

4

In Herb, a Federal Employers’ Liability Act case, the Supreme Court reasoned:
[W]e cannot perform our duty to refrain from interfering in state
law questions and also to review federal ones without making a
determination whether the one or the other controls the judgment. And in
cases where the answer is not clear to us, it seems consistent with the
respect due the highest courts of states of the Union that they be asked
rather than told what they have intended. If this imposes an unwelcome
burden it should be mitigated by the knowledge that it is to protect their
jurisdiction from unwitting interference as well as to protect our own from
unwitting renunciation.
It is our purpose scrupulously to observe the long standing rule
that we will not review a judgment of a state court that rests on an adequate
and independent ground in state law. Nor will we review one until the fact
that it does not do so appears of record. But because we will not proceed
with a review while our jurisdiction is conjectural it does not follow that
we should not take steps to protect our jurisdiction when we are given
reasonable grounds to believe it exists. We think the simplest procedure to
do so, where the record is deficient, is to hold the case pending application
to the state court for clarification or amendment.

324 U.S. at 127–28.

MEMORANDUM DECISION AND ORDER - 14

of the opinion, we will accept as the most reasonable explanation that the state court
decided the case the way it did because it believed that federal law required it to do so.” Id.
at 1040–1041.
In Ake v. Oklahoma, 470 U.S. 68 (1985), a direct review case, the United States
Supreme Court reviewed yet another variation—not whether state procedural rules were
contrary to federal procedural protections, but whether federal substantive law was
interwoven with a state procedural bar.5 The Oklahoma Court of Criminal Appeals had
rejected Mr. Ake’s contention that, as an indigent defendant, he was entitled to the
assistance of a psychiatrist for his defense. After denying Mr. Ake’s claim on the merits,
the Oklahoma court observed that Mr. Ake had waived his claim by not repeating his
request for a psychiatrist in his motion for a new trial, a state law procedural rule. The
Oklahoma court did not perform a fundamental trial error analysis of Mr. Ake’s claim.
Nevertheless, the United States Supreme Court looked to Oklahoma fundamental
error precedent to determine that Oklahoma law provided that a “violation of [a]
constitutional right constitutes fundamental error.” Id., pp. 74-75. The Supreme Court
determined that, according to Oklahoma precedent,
the State has made application of the procedural bar depend on
an antecedent ruling on federal law, that is, on the
determination of whether federal constitutional error has been
committed. Before applying the waiver doctrine to a
constitutional question, the state court must rule, either
explicitly or implicitly, on the merits of the constitutional
question.

Federal substantive law intertwined with state procedural law was also the subject of Herb v. Pitcairn,
supra, but Herb was not a habeas corpus case.
5

MEMORANDUM DECISION AND ORDER - 15

Id. at 75. Applying Oklahoma precedent to Mr. Ake’s case, the Supreme Court concluded
that “the additional holding of the state court—that the constitutional challenge presented
here was waived—depends on the court’s federal-law ruling and consequently does not
present an independent state ground for the decision rendered.” Id. (emphasis added).
In Harris v. Reed, 489 U.S. 255 (1989), the United States Supreme Court faced an
ambiguous state court opinion. The Supreme Court held for the first time that the Long
“plain statement” rule applied in federal habeas corpus proceedings. Id. at 261. That is, a
procedural default does not bar consideration of a federal claim on habeas review unless
the last state court judgment in the case “clearly and expressly states” that its judgment
rests on an “adequate and independent” state procedural bar. Id. at 263-65.
In Coleman v. Thompson, 501 U.S. 722, 733 (1991), the Supreme Court considered
whether Mr. Coleman’s federal claim was procedurally defaulted because he had not
complied with the state of Virginia’s mandatory rule that a notice of appeal must be filed
within 30 days of judgment. Mr. Coleman asserted that the Ake holding—that a
determination of federal substantive law antecedent to a determination of a state procedural
bar rendered a state court decision non-independent—should be applied to permit the
federal court to hear the merits of his claims. He argued that the Virginia Supreme Court
“did not automatically apply its time requirement” in his case, but instead “first considered
the merits of his federal claim and applied the procedural bar only after determining that
doing so would not abridge one of [his] constitutional rights.” Id. at 741.
Addressing this argument, the United States Supreme Court first observed: “Ake
was a direct review case. We have never applied its rule regarding independent state
MEMORANDUM DECISION AND ORDER - 16

grounds in federal habeas.” Id. at 740-41. Nevertheless, the Supreme Court concluded that
Mr. Coleman’s argument would not be successful because “[e]ven if Ake, a direct review
case, applies here, it does Coleman no good because the Virginia court relied on an
independent state procedural ground.” Id. The Supreme Court rejected Mr. Coleman’s
argument that state law precedent showed that the Virginia Supreme Court had established
“a practice of examining the merits of all underlying constitutional claims before denying
a petition for appeal or writ of error as time barred.” Id. at 741.
Instead, the United States Supreme Court reasoned:
A more natural reading is that the Virginia Supreme
Court will only grant an extension of time if the denial itself
would abridge a constitutional right. That is, the Virginia
Supreme Court will extend its time requirement only in those
cases in which the petitioner has a constitutional right to have
the appeal heard.
501 U.S. at 742 (emphasis added)). For example, in Cabaniss v. Cunningham, 143 S.E.2d
911 (1965), Mr. Cabaniss did not file a timely notice of direct appeal because the trial court
failed to appoint counsel for that purpose. The Virginia Supreme Court held that “enforcing
the time requirements for appeal in that case would have abridged Cabaniss’ constitutional
right to counsel on appeal.” Coleman, 501 U.S. at 742.
Despite the United States Supreme Court declining to apply Ake in habeas corpus
in the Coleman case, the United States Court of Appeals for the Ninth Circuit decided that
the rule in Ake, a direct appeal case, should be applied to federal habeas corpus cases. Park
v. California, 202 F.3d 1146, 1152 (9th Cir. 2000). Other courts have agreed.6

6

For example, the federal district court for the Eastern District of California observed:

MEMORANDUM DECISION AND ORDER - 17

The summation of the cases governing the “independence” analysis is that, if a state
performs a fundamental error analysis on a claim for which there was no objection at trial,
and that fundamental error analysis requires the state court to review whether the
claimant’s federal constitutional rights were violated, the claim is not independent of
federal law and it can be adjudicated on the merits on federal habeas corpus review. This
rule applies to ambiguous state appellate opinions where (1) the federal substantive claim
is interwoven with state procedural law, as in Ake, (2) the federal substantive claim is
interwoven with state substantive law, as in Long; (3) the state procedural rule contravenes
federal procedures implicating a federal right, as explained in Sykes; or (4) enforcement of

The United States Supreme Court adopted the independent and adequate
state ground doctrine from the direct appeal context for use in habeas
corpus cases. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497,
2501, 53 L.Ed.2d 594 (1977) (citing Henry v. Mississippi, 379 U.S. 443,
85 S.Ct. 564, 13 L.Ed.2d 408 (1965), a direct review case). Consequently,
“[m]ost of the case law on which the independent and adequate state
ground doctrine is based consists of decisions in direct appeals from state
courts. The principles derived from those cases, however, are as applicable
on federal collateral review of a state court conviction as they are on direct
appeal.” Spencer v. Kemp, 781 F.2d 1458, 1470 n. 21 (11th Cir.1986).
Ninth Circuit discussions of the independent and adequate state ground
doctrine have also relied on direct review cases. See, e.g., Harmon v. Ryan,
959 F.2d 1457, 1461 (9th Cir.1992) (citing Ake v. Oklahoma, 470 U.S. 68,
105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), a direct review case). In Coleman
v. Thompson, 501 U.S. 722, 741, 111 S.Ct. 2546, 2560, 115 L.Ed.2d 640
(1991), however, the high court noted that Ake was a direct review case
and that the Court had never applied it in a federal habeas case. While that
observation should make any subordinate court pause, what it portends is
purely speculative. The history of the development of the doctrine and the
practice of the circuits suggest that it is appropriate for this court to apply
the principles of independent and adequate grounds derived from direct
review to habeas cases unless and until the Supreme Court directs
otherwise.
Karis v. Vasquez, 828 F. Supp. 1449, 1462 (E.D. Cal. 1993).

MEMORANDUM DECISION AND ORDER - 18

the state procedural bar would abridge federal constitutional rights, such as the right to
counsel on direct appeal, as explained in Coleman. This formulation balances the
importance of the availability of the federal habeas corpus remedy with comity and
federalism concerns. As the United States Court of Appeals for the Ninth Circuit observed
in Bennett v. Mueller, 322 F.3 573 (9th Cir. 2003), “[w]hile it is true ‘that state courts will
not be the final arbiters of important issues under the federal constitution; [it is equally
true] that [the federal courts] will not encroach on the constitutional jurisdiction of the
states.” Id. at 582 (quoting Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557 (1940)).
Underscoring its recognition of comity and federalism principles, the Long court
advised: “If a state court chooses merely to rely on federal precedents as it would on the
precedents of all other jurisdictions, then it need only make clear by a plain statement in its
judgment or opinion that the federal cases are being used only for the purpose of guidance,
and do not themselves compel the result that the court has reached.” 463 U.S. at 1041.
Accordingly, where a state has clearly expressed that fundamental error analysis is based
exclusively on state constitutional or other purely state law grounds, and the record
supports that conclusion, then the federal court will forgo further review. Such an
expression of independence can be particular to a single case, or, as in California, by
making a general pronouncement that affects all subsequent cases.7

7

In In re Robbins, the California Supreme Court in effect “overruled” the Ninth Circuit Court of
Appeals’ holding that its Dixon fundamental error rule was not independent of federal law:
Although the [California fundamental error] exception is phrased in terms
of error of constitutional magnitude — which obviously may include
federal constitutional claims — in applying this exception and finding it
inapplicable we shall, in this case and in the future, adopt the following

MEMORANDUM DECISION AND ORDER - 19

In addition, it is important to note that not all state waiver rules contain a
fundamental error exception—and where that is the case, state sovereignty to define its
own waiver rules governs. For example, if a state has a procedural rule that federal
constitutional claims not raised in trial court are barred in appellate court, and the state
appellate court simply identifies the state procedural rule and deems the claim barred, it is
a decision independent of federal law. Arizona’s succinctly-applied waiver rule

approach as our standard practice: We need not and will not decide
whether the alleged error actually constitutes a federal constitutional
violation. Instead, we shall assume, for the purpose of addressing the
procedural issue, that a federal constitutional error is stated, and we shall
find the exception inapposite if, based upon our application of state law,
it cannot be said that the asserted error “led to a trial that was so
fundamentally unfair that absent the error no reasonable judge or jury
would have convicted the petitioner.” (Clark, supra, 5 Cal.4th at p. 797, 21
Cal.Rptr.2d 509, 855 P.2d 729, fn. omitted.)
959 P.2d 311, 338-39 (Cal. 1998) (emphasis added).
After Robbins, the Ninth Circuit Court of Appeals respected California’s “overruling” of Dixon on
state sovereignty grounds and declared:
“‘It is fundamental that state courts be left free and unfettered by [the
federal courts] in interpreting their state constitutions.’” Michigan v. Long,
463 U.S. 1032, 1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (quoting
Minnesota, 309 U.S. at 557, 60 S.Ct. 676). “This is not a mere technical
rule nor a rule for our convenience. It touches the division of authority
between state courts and[federal courts] and is of equal importance to
each. Only by such explicitness can the highest courts of the states and
[federal courts] keep within the bounds of their respective jurisdictions.”
Minnesota, 309 U.S. at 557, 60 S.Ct. 676.
Therefore, we respect the California Supreme Court’s sovereign right to
interpret its state constitution independent of the federal law. Applying
Robbins prospectively, we affirm the district court’s determination that the
California Supreme Court’s post-Robbins denial of Bennett's state petition
for lack of diligence (untimeliness) was not interwoven with federal law
and therefore is an independent procedural ground.
Bennett, 322 F.3d at 582–83.

MEMORANDUM DECISION AND ORDER - 20

exemplifies this principle:
In his sixth assignment of error, appellant claims that
the trial court erred in failing to suppress three incriminating
statements which were made by appellant subsequent to his
capture and while incarcerated at the Pinal County Jail in
Florence, Arizona. He urges several grounds for the exclusion
of these statements, including assertions that they were
obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the Sixth Amendment
right to counsel. We will not, however, concern ourselves with
these matters because of the failure to raise these issues at the
suppression hearing held in the court below. Issues concerning
the suppression of evidence which were not raised in the trial
court are waived on appeal. State v. Griffin, 117 Ariz. 54, 570
P.2d 1067 (1977); see Rule 16.1(c), Rules of Criminal
Procedure, 17 A.R.S. The preclusion of issues applies to
constitutional objections as well as statutory objections
because an adherence to procedural rules serves a legitimate
state interest in the timely and efficient presentation of issues.
State v. Griffin, supra; State v. Neese, 126 Ariz. 499, 616 P.2d
959 (App.1980); see Michigan v. Tyler, 436 U.S. 499, 512, n.
7, 98 S.Ct. 1942, 1951, n. 7, 56 L.Ed.2d 486 (1978). When a
defendant chooses legal representation, the power of decision
is delegated to the lawyer, see Standard 4-5.2, Standards for
Criminal Justice, and his decisions may be binding upon the
defendant, even though rights of constitutional dimensions
have been lost. See Wainwright v. Sykes, 433 U.S. 72, 91, 97
S.Ct. 2497, 2509, 53 L.Ed.2d 594 (1977) (Burger, C.J.,
concurring); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691,
48 L.Ed.2d 126 (1976); Henry v. Mississippi, 379 U.S. 443, 85
S.Ct. 564, 13 L.Ed.2d 408 (1965).
State v. Tison, 633 P.2d 335, 344–45 (Ariz. 1981) (en banc).
With these standards of law in mind, the Court now turns to the question of whether
the Idaho Supreme Court’s decision on Claim One is independent of federal law, which
would preclude this Court from hearing the merits of the claim.

MEMORANDUM DECISION AND ORDER - 21

DISCUSSION
1. Claim One
Claim One is that the the trial court denied Petitioner the right of due process and
the right to a fair trial by informing the prospective jury pool that his case had previously
been “reversed and remanded” for a new trial. Petitioner contends that this introductory
statement “set a tone of prejudice for the jury’s first impression of the case; thus, the jury
pool was impermissibly tainted and [his] constitutional right to be tried before an impartial
jury was infringed.” State’s Lodging F-5, p. 3.
As stated above, Petitioner’s counsel did not see the faxed minute entry order with
the attached proposed language because he was out of town conducting a trial, and thus he
did not object within the timeframe set by the court. By the time Petitioner’s counsel was
aware of the issue to be able to object, the state trial court already had disclosed the prior
trial information to the jury pool—having done so outside the presence of counsel (a side
note not at issue in this case). The trial judge and attorneys discussed whether the “bell
could be unrung,” and whether questioning jurors about the prior trial would cause more
harm than just the single mention of it. The consensus was that the judge and attorneys
would listen for hints of bias in the jurors’ answers to other questions—with any jurors
who seemed biased as a result of the prior trial information to be dismissed readily by the
judge for that reason.
Even though Petitioner’s counsel unknowingly had lost the opportunity to
contemporaneously object to the statement when it was faxed to his office with a clear
deadline and did not have a chance to do so when the statement was read because the jury
MEMORANDUM DECISION AND ORDER - 22

questionnaire process was done outside the presence of counsel, the record reflects that he
knowingly agreed (“Well, I’m not going to object to that”) to the trial court’s above-stated
proposal for continuing voir dire while observing jurors’ comments for any suggestion
from jurors that the prior appeal might have tainted their impartiality—because, as he
articulated, he knew that the trial court would not grant his contemporaneous oral motion
to vacate the trial and empanel a new jury.
Defense counsel was correct. After the trial court contemplated the motion for ten
minutes, the motion was denied, as expected. Thus, while the failure to object to the faxed
order was in the nature of a forfeiture of the issue for appeal, the failure to object to the
passing of the jury for cause appears to have been a knowing decision. Having objected to
continuing voir dire, having filed a motion to vacate the trial, and having agreed to a plan
to finish voir dire only because counsel knew that the motion would be denied, counsel
likely thought there was no need to further object because he had objected in his motion to
vacate the trial and empanel an untainted jury.
Thus, Petitioner’s position before the Idaho Supreme Court was that trial counsel
had objected sufficiently, and Petitioner was entitled to relief on the merits. Respondent’s
opening position was that, regardless of what Petitioner did to voice objection to the court’s
statement during voir dire, Petitioner waived any claim of a biased jury by passing it for
cause. Alternatively, Respondent asserted that the claim had no merit. In reply, Petitioner
countered that he had not waived the claim, because, after the motion to vacate the trial
and empanel a new jury was denied, the claim was preserved for appeal.

MEMORANDUM DECISION AND ORDER - 23

The Idaho Supreme Court sua sponte raised the fundamental error bar based on the
failure to object before the instruction was given, and alternatively agreed with Respondent
that the claim was waived at the passing of the jury:
Johnson’s counsel failed to timely object to the district
court’s comments. Counsel was further given additional
opportunities to ameliorate the problem through proposing a
curative instruction or directing voir dire to the potential jurors
regarding the prior trial. Counsel chose neither approach.
State’s Lodging F-5, p. 6.
The Idaho Supreme Court did not discuss whether defense counsel’s “motion to
strike the jury panel” and his act of “continu[ing] to maintain that the curative instruction
was not enough and the entire venire should be stricken” was the equivalent of an objection
and/or preserved the claim for trial, but stated only: “We hold the trial court’s approach
[about how to proceed with the current panel] was acceptable, and did not amount to
fundamental error.” State’s Lodging F-5, p. 6.
According to well-established Idaho precedent, if a defendant does not
contemporaneously object to an alleged constitutional error at trial, the Idaho appellate
courts will not hear the merits of the claim unless the petitioner can demonstrate that the
underlying error constituted “fundamental error.” State v. Perry, 245 P.3d 961, 980 (Idaho
2010). The Perry rule has three prongs:
(1) the defendant must demonstrate that one or more of the
defendant’s unwaived constitutional rights were violated; (2)
the error must be clear or obvious, without the need for any
additional information not contained in the appellate record,
including information as to whether the failure to object was a
tactical decision; and (3) the defendant must demonstrate that
the error affected the defendant’s substantial rights, meaning
MEMORANDUM DECISION AND ORDER - 24

(in most instances) that it must have affected the outcome of
the trial proceedings.
Id. at 978.
As Petitioner points out, the Idaho Supreme Court recently clarified the second two
prongs of the Perry test in State v. Miller, 443 P.3d 129, 133 (2019), reh'g denied (June 12,
2019), but it did not further clarify the first prong, which is at issue in this case.
In Petitioner’ case, the Idaho Supreme Court began its fundamental error analysis
with the following:
As noted, the court provided counsel with its intended
instruction containing the allegedly offensive statement in
advance of trial. Johnson's counsel failed to timely object,
either in writing or during the jury questionnaire process.
Therefore, this Court will review Johnson's alleged error on the
basis of a fundamental error standard.
State’s Lodging F-5, p. 4.
As set forth above, the Idaho Supreme Court thoroughly addressed (1) the lack of
merit of Petitioner’s claim, (2) Respondent’s argument that the claim had been waived, and
(3) its own sua sponte threshold issue that because there had been no contemporaneous
objection, the fundamental error standard applied.
It is difficult not to agree with Petitioner that, because the Idaho Supreme Court
explained its holding in terms of the merits analysis, it analyzed the federal issue in a
thorough fashion, rather than simply taking a cursory look at the merits—“We hold
similarly. Commenting that a case was reversed and remanded is not equivalent to
disclosing a prior conviction.” State’s Lodging F-5, p. 5. On the other hand, Respondent is
correct that the Idaho Supreme Court rejected the claim on not one, but two, different state
MEMORANDUM DECISION AND ORDER - 25

procedural default grounds: Respondent’s argument that the claim had been voluntarily
waived at the passing of the jury for cause and the Court’s own application of fundamental
error for lack of a contemporaneous objection at or before the jury questionnaire was
administered.

A “voluntary and intelligent relinquishment” of a constitutional right

constitutes a waiver, while a failure to object constitutes a forfeiture of a claim.” United
States v. Hernandez-Guardado, 228 F.3d 1017, 1029 (9th Cir. 2000). Waiver and forfeiture
both are treated as procedural default arguments. See Sykes, 433 U.S. at 87-91.
Here, it is clear that the Idaho Supreme Court was not so concerned about whether
its procedural ruling would be upheld on federal habeas corpus review, as it was about
analyzing Petitioner’s claim thoroughly and alternatively to allow him to make the most of
his day in appellate court. The Idaho Supreme Court, in fact, reviewed the federal issue
and did not express that this particular claim was decided solely on state law grounds.
Therefore, the Long “plain statement” conclusive presumption applies to the Idaho
Supreme Court’s fundamental error analysis upon the facts of this case. The claim is not
procedurally barred because it is not based upon a clearly-expressed independent state law
basis. If Idaho desires to assert its sovereignty in fundamental error analysis, either in a
blanket manner or on a case-by-case basis, it is free to do so.
This decision will be treated as a merits determination by the Idaho Supreme Court,
entitled to deference under 28 U.S.C. § 2254(d). Plaintiff may proceed to the merits of
Claim One, that the trial court violated his Sixth and Fourteenth Amendment rights to a
trial before a fair and impartial jury by informing the jury that a prior trial had resulted in
reversal and remand.
MEMORANDUM DECISION AND ORDER - 26

2. Claim Four
Claim Four is that Petitioner was deprived of his right to a fair trial when a state
witness was permitted to testify from a report rather than from his present recollection after
reviewing the report. Respondent asserts that Petitioner failed to raise this claim as a federal
claim, arguing only an Idaho evidentiary ruling basis for the claim. (State’s Lodging F-1,
pp. 36-53.) The Idaho Supreme Court determined that the admitted testimony violated
Idaho Rule of Evidence 612, but that the error was harmless. (State’s Lodging F-5, pp. 1418.) No federal precedent or discussion is apparent from the Idaho Supreme Court’s
decision. Petitioner does not disagree with Respondent’s analysis. Accordingly, the Motion
to Dismiss Claim Four will be granted.
ORDER
IT IS ORDERED:
1. Respondent’s Motion to Dismiss (Dkt. 9) is GRANTED in part (Claim Four), and
DENIED in part (Claim One).
2. Respondent shall file an answer to the remaining claims (1, 2, 3, and 5) 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, 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.
MEMORANDUM DECISION AND ORDER - 27

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.
4. 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.

DATED: October 8, 2019
_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 28