Ball v. Tewalt

Filing 13

MEMORANDUM DECISION AND ORDER - Respondents Motions for Extension of Time to File Answer (Dkt. 10 , 11 ) are GRANTED. The Answer is considered timely (Dkt. 12 ). The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED and DISMISSED with prejudi ce. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GARY NICHOLAS BALL,

Case No. 1:19-cv-00253-DCN
MEMORANDUM DECISION AND
ORDER

Petitioner,
v.
JOSH TEWALT,
Respondent.

The Petition for Writ of Habeas Corpus filed by Petitioner Gary Nicholas Ball
(Petitioner) is now fully briefed and ripe for adjudication. Dkts. 3, 12. Petitioner was
provided with an opportunity to file a reply to the Response, but has elected not to do so.
See Dkt. 7. Having reviewed the record in this matter, including the state court record
lodged by the parties, and having considered the arguments of the parties, the Court enters
this Order denying the Petition and dismissing it with prejudice.
REVIEW OF PETITION
1. Procedural Background
On September 9, 2014, and October 16, 2014, Petitioner sold heroin to a confidential
police informant. On October 22, 2014, Detective Beckner arrested Petitioner for making
the two prior sales. He later was charged in a criminal action in the Fourth Judicial District
Court in Ada County, Idaho.
Petitioner pleaded guilty to and was convicted of trafficking heroin in violation of
Idaho Code § 37-2732B(a)(6)(B). His judgment of conviction was entered on June 17,
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2015. He received a sentence of ten years fixed, followed by ten years indeterminate.
Petitioner filed a direct appeal, raising an excessive sentence claim, which was
unsuccessful. He next filed a post-conviction action, raising claims of ineffective assistance
of counsel. He received no relief. His appeal was unsuccessful, with the Idaho Court of
Appeals affirming his conviction, and the Idaho Supreme Court denying his petition for
review and entering its remittitur on August 30, 2019.
2. Facts underlying Ineffective Assistance of Counsel Claims
In this action, Petitioner brings one claim that his Sixth and Fourteenth Amendment
rights to effective assistance of counsel were violated. The factual basis of that claim is as
follows.
Petitioner asserts that trial counsel failed to thoroughly investigate the facts of his
arrest that would have supported a successful motion to suppress. According to Petitioner,
the officer who arrested him on October 22 did not have probable cause to make the arrest
because the officer did not witness the crimes committed on September 9 and October 16.
Petitioner asserts that no affidavit of probable cause was filed before he was arrested on
October 22. He further asserts that the officer who arrested him had no right to search his
residence on October 22, which turned up the quantity of drugs to later charge him with
trafficking, rather than just the delivery charges from September 9 and October 16.
A probable cause affidavit and a criminal complaint containing all three charges
were filed on October 23, 2014. State’s Lodging A-1, pp. 6-8. An Information Part II was
filed on January 21, 2015, charging Petitioner with a sentencing enhancement based on
having a previous trafficking felony. Id., p. 33.
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In support of the criminal complaint, Detective Beckner’s probable cause affidavit
stated the following. State’s Lodging C-1, pp. 12-13. Beckner declared that Petitioner had
sold heroin to a confidential informant working under Beckner’s direction on September
9, 2014, and October 16, 2014. On October 22, 2014, Beckner received a tip that Petitioner
would be transporting a large quantity of heroin from Utah to Idaho to sell for profit. That
same day, Beckner verified that Petitioner was renting room #207 at the Budget Inn in
Boise. Two other detectives watched Petitioner go in and out of the room, in and out of a
nearby McDonald’s restaurant, and over to some occupants of a car for a few seconds.
Beckner identified Petitioner from his driver’s license photo and placed Petitioner under
arrest for the two prior charges of delivery of heroin. Id.
In a search incident to arrest, Beckner searched Petitioner’s person and found
heroin, marijuana, a bag of assorted prescription pills, and a large quantity of cash. Beckner
declared in his affidavit that he read Petitioner his Miranda rights and Petitioner gave
consent for the search of his room and agreed to answer questions. Id., at 13, 115.
Beckner searched Petitioner’s Budget Inn room #207 and found a heroin-like
substance, scales, packaging materials, drug paraphernalia, and a .45 caliber handgun with
bullets. Another detective helped Beckner test the substance found, and it was presumed
positive for heroin. Id., at 13.
Along with the above narrative, Beckner checked the box on the probable cause
affidavit form indicating that a crime had been committed in his presence. Id., p. 12. As
noted above, the affidavit was filed one day after Petitioner was transported to jail and
booked for delivery of heroin, trafficking, and unlawful possession of a firearm. Id., pp.
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13. On the same day the probable cause affidavit and criminal complaint were filed,
October 23, 2014, Petitioner was arraigned by video by Fourth Judicial District Court
Magistrate Judge Michael Oths. Id., p. 2. A grand jury indictment addressing the same
charges was issued on November 25, 2014. Id., p. 19.
Petitioner asked his defense attorney to file a motion to suppress the evidence that
supported the trafficking charge based on irregularities in the arrest and in the affidavit of
probable cause. Petitioner’s attorney refused. Petitioner then entered into a plea agreement
with the State. In so doing he completed a form that stated he understood that he would not
be able to contest any issues concerning the method or manner of his arrest or any searches
or seizures in his arrest (which does not affect his ineffective assistance of counsel claim).
Id., p. 51.
On post-conviction review, the state district court summarily dismissed Petitioner’s
ineffective assistance claim. The court found that Petitioner failed to show any probability
that a motion to suppress would have been granted; thus, there was no deficient
performance of trial counsel. State’s Lodging C-1, p. 119. Despite the check box indicating
a crime was committed in Beckner’s presence, the state district court concluded that the
words of the affidavit were reasonably accurate: “[T]he officer’s affidavit is clear that
probable cause was not based on any sale that occurred on October 22, 2014, but on the
two sales made to the confidential informant, working under the arresting officer’s
direction.” Id. “Thus,” the state district court concluded, “the record does not support
Petitioner’s claim that the arresting officer falsely stated that a crime occurred in his
presence on October 22, 2014.” Id.
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The state district court noted that, under Idaho law, an officer need not be present at
the commission of a crime to arrest a person for a felony. Id., p. 119-20; see I.C. § 19-603.
As a result, the court concluded that “the officer’s reliance on the actions and reporting of
the informant he had directed could support a probable cause finding that a felony had been
committed by Ball.” Id., p. 120. This statement by the state district court clarifies that it
opined that it does not matter whether Detective Beckner was present during the
informant’s drug buy, or merely set it up and directed it.
The state district court went on to reject all of Petitioner’s various formulations of
his claim:
Additionally, Petitioner argues that the officer’s
affidavit “states that his probable cause is two charges of
delivery of a controlled substance, however, those charges and
indictment had not been filed yet, and there was no outstanding
information or indictment filed and there was no warrant for
arrest outstanding yet.” Although the officer’s affidavit does
state that he arrested Ball “for the two charges of delivery of
heroin,” this Court rejects Petitioner’s unsubstantiated legal
conclusion that a minor semantic dispute extinguishes probable
cause. Rather, an officer may arrest a suspect without obtaining
a warrant when the suspect “has committed a felony, although
not in his presence,” or “[w]hen a felony has in fact been
committed and he has reasonable cause for believing the
person arrested to have committed it.” I.C. § 19-603. Thus,
Petitioner’s claim that probable cause did not exist simply
because the officer used the term “charges” before formal
charges were filed, despite the fact that the officer visually
identified Ball as someone who recently sold heroin to an
informant under the officer’s direction, fails as a matter of law.
The Court finds the officer’s affidavit is internally consistent
and not misleading, as Petitioner argues.
Petitioner’s argument that charges had to have been
filed before he could be arrested is also misplaced. An officer
can arrest when probable cause supports a felony has been
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committed and the officer has reasonable cause for
believing the person arrested committed the crime.
There is no requirement that the arrest can occur only
after charges have been filed. Rather, charges are
normally filed after the person has been arrested for the
alleged criminal conduct.
When read as a whole, the officer’s probable
cause affidavit indicates that the officer was present for,
and participated in, two controlled purchases from Ball,
as well as for Ball’s October 22, 2014 arrest. However,
even if the affidavit did contain errors, Petitioner does
not contest that he sold heroin to a confidential
informant on two occasions. Accordingly, because the
officer had reasonable cause to believe that Ball
committed two felonies, he had probable cause to arrest
Ball. Therefore, the record before this Court does not
indicate that any motion to suppress that Petitioner’s
trial counsel might have filed should have been granted.
State’s Lodging C-1, pp. 120-21 (emphasis added).
The Idaho Court of Appeals agreed with the state district court and denied
Petitioner’s claim. The Court of Appeals pointed out that Ball’s claim of ineffective
assistance was based on a faulty state-law premise—Ball’s theory that, in Idaho, an officer
could only make a warrantless arrest for felonies committed in his presence:
Ball takes issue with the officer’s affidavit, which
explained there was no controlled purchase of narcotics on the
day Ball was arrested. The district court addressed these claims
at length. The district court concluded that Ball failed to
establish any probability that a motion to suppress would have
been successful, and thus, could not establish deficient
performance by trial counsel. In its opinion, the district court
disagreed with Ball that the arrest was illegal because no crime
occurred in the officer’s presence. The district court explained
the officer’s affidavit did not state—as Ball claimed—that Ball
committed a crime in the officer’s presence. Rather, the
probable cause in the case arose from two prior sales that Ball
made to a confidential informant. In addition, the district court

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determined Ball’s trial counsel conceded at the hearing that
under Idaho law, an officer need not be present at the
commission of a felony for an officer to subsequently arrest a
person for that alleged felony.
Ball has not shown error in the district court’s analysis.
Ball fails to address the district court’s correct conclusion that
information from a confidential informant is a sufficient
ground for arrest. Ball also fails to account for the concession
made at the hearing that an officer does not need to be present
at the commission of a felony in order to have probable cause
to later arrest an individual for committing that felony. On
appeal, Ball repeats his earlier claims that his arrest was illegal
because the officer did not have probable cause to make an
arrest. However, this position fails to account for the district
court’s analysis, which explained why the motion to suppress
would not have been granted, even if Ball’s trial counsel filed
the motion. Because the officer had probable cause to lawfully
arrest Ball, there were no grounds upon which the district court
would have granted a motion to suppress.
State’s Lodging D-6, p. 5 (citing I.C. §19-603). Because Ball failed to show a motion to
suppress would have succeeded, the court concluded under a Strickland analysis that “trial
counsel was not ineffective for failing to file the motion.” Id.
Because Petitioner’s claim has been properly exhausted on the merits in state court,
the Court now considers it under federal standards.
3. Standard of Law
Federal habeas corpus relief may be granted where a petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A challenge to a state court judgment that addressed the merits of any federal claims is
governed by Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”).

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The AEDPA limits relief to instances where the state court’s adjudication of the
petitioner’s claim:
(1) 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
(2) 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). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991).
Where a petitioner contests the state court’s legal conclusions, including application
of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although it identified “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which a
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state court unreasonably applies [Supreme Court] precedent; it does not require state courts
to extend that precedent or license federal courts to treat the failure to do so as error.” White
v. Woodall, 572 U.S 415, 426 (2014).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the state court’s decision is incorrect or wrong; rather, the state
court’s application of federal law must be objectively unreasonable to warrant relief.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If fairminded jurists
could disagree on the correctness of the state court’s decision, then relief is not warranted
under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 101 (2011). The Supreme Court
emphasized that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted).
The clearly-established law governing a Sixth Amendment claim of ineffective
assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984). Strickland
dictates that, to succeed on an ineffective assistance claim, a petitioner must show that (1)
counsel’s performance was deficient in that it fell below an objective standard of
reasonableness, and that (2) the petitioner was prejudiced by the deficient performance. Id.
at 684.
In assessing trial counsel’s performance under Strickland’s first prong, a reviewing
court must view counsel’s conduct at the time that the challenged act or omission occurred,
making an effort to eliminate the distorting lens of hindsight. Id. at 689. The court must
indulge in the strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance. Id.
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In assessing prejudice under Strickland’s second prong, a court must find that,
under the particular circumstances of the case, there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. Id. at 684, 694. A
reasonable probability is one sufficient to undermine confidence in the outcome. Id. at 694.
A petitioner must establish both deficient performance and prejudice to prove an
ineffective assistance of counsel claim. 466 U.S. at 697. On habeas review, the court may
consider either prong of the Strickland test first, or it may address both prongs, even if one
is deficient and will compel denial. Id.
The foregoing standard, giving deference to counsel’s decisionmaking, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This
is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that the
inquiry, the analysis would be no different than if, for example,
this Court were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S.Ct. 1495. A state court must be granted a deference and
latitude that are not in operation when the case involves review
under the Strickland standard itself.
Harrington v. Richter, 562 U.S. at 112.

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B. Discussion
To prevail on his ineffective assistance of counsel claim, Petitioner must show that
the state trial court probably would have granted a motion to suppress based on any of his
arguments that Detective Beckner did not have probable cause for his arrest. The Court
agrees with the state district court that, despite a few inconsequential anomalies, Officer
Beckner’s affidavit established probable cause for the arrest under state law standards.
Beckner had directed the informant to participate in the earlier delivery incidents, and had
probable cause to arrest Petitioner on October 22, 2014.1
As discussed above, Petitioner has not shown that his arrest was contrary to Idaho
law, and his counsel rightly acknowledged that was the case. See, e.g., State v. Polson, 339
P.2d 510, 513 (Idaho 1959) (noting that “[g]enerally, an officer may, without a warrant,
arrest a person whom he has probable cause to believe guilty of a felony,” and that an
officer “need not necessarily have personal knowledge of the facts constituting the offense,
in the sense of having seen or witnessed the offense himself.” (spelling regularized).)
Nor has Petitioner shown that the arrest is contrary to federal law. The federal
standard for arrest is “probable cause,” defined in terms of facts and circumstances
“sufficient to warrant a prudent man in believing that the (suspect) had committed or was

1

On that same day, in the course of the arrest, Detective Beckner also discovered the evidence to support
the trafficking charge (there is no statutory requirement that a suspect be caught in the act of trafficking;
merely having all of the supplies and drugs in a quantity for trafficking is sufficient). Particularly, Petitioner
was charged under Idaho Code § 37-2732B(a)(6)(b), which provides: “Any person who knowingly
manufactures, delivers or brings into this state, or who is knowingly in actual or constructive possession of,
two (2) grams or more of heroin or any salt, isomer, or salt of an isomer thereof ... , is guilty of a felony,
which felony shall be known as ‘trafficking in heroin.’” On the day of arrest, Detective Beckner found and
tested an amount of drugs in Plaintiff’s hotel room that qualified for that offense.

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committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause is
established by what the officers observed and what a reasonable officer would have done
in that situation. Baker v. McCollan, 443 U.S. 137, 145–46 (1979).
The probable-cause determination “must be made by a judicial officer either before
or promptly after arrest.” Gerstein v. Pugh, 420 U.S. 103, 125 (1975). There is no rule that
a probable cause determination must precede an arrest:
Maximum protection of individual rights could be
assured by requiring a magistrate’s review of the factual
justification prior to any arrest, but such a requirement would
constitute an intolerable handicap for legitimate law
enforcement. Thus, while the Court has expressed a preference
for the use of arrest warrants when feasible, Beck v. Ohio,
supra, 379 U.S. at 96, 85 S.Ct., at 228; Wong Sun v. United
States, 371 U.S. 471, 479—482, 83 S.Ct. 407, 412—414, 9
L.Ed.2d 441 (1963), it has never invalidated an arrest
supported by probable cause solely because the officers failed
to secure a warrant. See Ker v. California, 374 U.S. 23, 83 S.Ct.
1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358
U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
Gerstein v. Pugh, 420 U.S. 103, 113 (1975) (emphasis added).
Under Petitioner’s theory, many criminal acts might go unpunished if officers had to
wait to arrest suspects until after court papers were filed, because the opportunity would
be lost and the suspect might not be found later. Based on the cited federal cases,
Petitioner’s theories of wrongful arrest are rejected by this Court, and would have been
rejected by the state district court if trial counsel had filed a motion to suppress on those
grounds.
Petitioner does not contest that he was read his Miranda rights and consented to a
search, which led to the additional trafficking and unlawful possession of a firearm charges.
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Even if he now contests that, the state district court found that fact in its decision. See
State’s Lodging C-1, p. 115. Therefore, his additional argument that the officer should not
have searched his residence has no factual support.
Because a motion to suppress would have been rejected by the state district court for
lack of state or federal legal support, Petitioner’s counsel was not deficient in failing to file
such a motion, and no prejudice resulted. Because Petitioner’s claims were thoroughly
reviewed by the state courts on the merits, the decision of the Idaho Court of Appeals is
entitled to the double-deference standard of Harrington v. Richter, supra. The Court
concludes that Petitioner’s claim fails under both the lesser standard of de novo review and
under the high standard of Harrington v. Richter—that not all reasonable jurists would
agree that Petitioner’s right to the effective assistance of counsel was violated; therefore
federal habeas corpus relief is unwarranted. For the foregoing reasons, the Court will deny
and dismiss the Petition for Writ of Habeas Corpus.
ORDER
IT IS ORDERED:
1. Respondent’s Motions for Extension of Time to File Answer (Dkt. 10, 11) are
GRANTED. The Answer is considered timely (Dkt. 12).
2. The Petition for Writ of Habeas Corpus (Dkt. ) is DENIED and DISMISSED with
prejudice.
3. The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C. § 2253(c);
Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a timely
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notice of appeal, the Clerk of Court shall forward a copy of the notice of appeal,
together with this Order, to the United States Court of Appeals for the Ninth Circuit.
Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a
request in that court.

DATED: September 9, 2020
_________________________
David C. Nye
Chief U.S. District Court Judge

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