McNeil v. Tewalt
SUCCESSIVE REVIEW ORDER. 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 (alw)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LLOYD HARDIN McNEIL,
Case No. 1:19-cv-00406-DCN
SUCCESSIVE REVIEW ORDER
JOSH TEWALT, Director, Idaho
Department of Correction,
As the Court instructed, Petitioner has clarified the claims set forth in his Petition
for Writ of Habeas Corpus by filing Attachment A—which was originally intended to be
attached to the Petition and which the Court will construe as a supplement to that Petition.
See Dkt. 12, 14.
Review of Petition and Supplement
Petitioner challenges his Ada County convictions of voluntary manslaughter, first-
degree arson, and grand theft. In Claim A, Petitioner asserts that there was insufficient
evidence to convict him. See Dkt. 14 at 11–19.
Claim B asserts that trial counsel rendered ineffective assistance in the following
ways: (1) stipulating to the admission of an exhibit that had previously been excluded;
(2) failing to call a fire investigation expert; (3) failing to object to Exhibit 295 on the
grounds that it violated Petitioner’s right to be free from compelled self-incrimination;
(4) failing to investigate the origin of State’s Exhibit 3; (5) failing to object to State’s
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Exhibit 110; (6) failing “to investigate inconsistencies as regards the timing of alleged
events”; (7) failing to call Joseph R. Riso as a witness; (8) failing “to secure DNA testing
of cigarette butts”; (9) failing to request a mistrial after a juror had seen Petitioner when he
was in the back seat of a sheriff’s vehicle; failing to request a mistrial “after improper juror
communication with [a] third party”; (11) failing to investigate a defense to the charge of
grand theft; and (12) failing “to engage [in] plea negotiations.” Id. at 19–32.
Claim C alleges that the prosecutor committed misconduct by (1) commenting on
Petitioner’s failure to testify, (2) appealing to the passions and prejudices of the jury, and
(3) making misstatements and denigrating defense counsel during rebuttal argument. Id. at
Claim D asserts cumulative error. Id. at 37.
Finally, Petitioner appears to assert a fifth claim, which the Court will label Claim
E. Claim E asserts that Judge Bail was biased against Petitioner.1 Id. at 38–39.
Petitioner may proceed on the Petition to the extent that the claims (1) are
cognizable in a federal habeas corpus action, (2) were timely filed in this Court, and
(3) were either properly exhausted in state court or are subject to a legal excuse for any
failure to exhaust in a proper manner. It is necessary for the Court to review portions of the
state court record to resolve preliminary procedural issues, and it would also be helpful to
receive briefing from Respondent. Therefore, the Court will order the Clerk to serve a copy
of the Petition on counsel for Respondent, who may respond either by answer or pre-answer
It is unclear, at this point, if Claim E is based on Judge Bail’s actions and statements at trial or during
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motion and who will provide relevant portions of the state court record to this Court.
Potentially Applicable Standards of Law
Because Petitioner is pro se and because the Court finds that focused briefing from
the parties would be beneficial in this case, the Court provides the following standards of
law that might, or might not, be applicable to Petitioner’s case.
Only Federal Claims Are Cognizable in this Action
As stated earlier, federal habeas corpus is available if the petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)
(emphasis added). That is, only federal claims may be raised in habeas corpus. “[F]ederal
habeas corpus relief does not lie for errors of state law,” Lewis v. Jeffers, 497 U.S. 764,
780 (1990), such as claims of error during state post-conviction proceedings, Franzen v.
Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam).
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires a
petitioner to seek federal habeas corpus relief within one year from “the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.”2 28 U.S.C. § 2244(d)(1)(A). However, the one-year statute of
Several other triggering events for the statute of limitations exist—but are less common—and are set forth
in subsections 2244(d)(1)(B)-(D):
(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
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limitations can be tolled (or suspended) under certain circumstances. AEDPA provides for
tolling for all of “[t]he time during which a properly filed application for State postconviction or other collateral review ... is pending.” 28 U.S.C. § 2244(d)(2). A motion to
reduce a sentence that is not a part of the direct review process and that requires reexamination of the sentence qualifies as a collateral review application that tolls the oneyear statute of limitations. Wall v. Kholi, 562 U.S. 545, 555-56 (2011). Thus, to the extent
that a petitioner properly filed an application for post-conviction relief or other collateral
challenge in state court, the one-year federal limitations period stops running on the filing
date of the state court action and resumes when the action is completed.
The statute of limitations can also be equitably tolled under exceptional
circumstances. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks omitted). In addition, AEDPA’s statute of limitations is subject
to an actual innocence exception. A petitioner who satisfies the actual innocence gateway
standard may have otherwise time-barred claims heard on the merits. McQuiggin v.
Perkins, 569 U.S. 383, 393–94 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011)
(en banc). Actual innocence in this context means “factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998).
(D) the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
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Exhaustion and Procedural Default
A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court. Id.
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 procedurally defaulted. Gray, 518 U.S. at 16162. Procedurally defaulted claims include those within the following circumstances: (1)
when a petitioner has completely failed to raise a claim before the Idaho courts; (2) when
a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim
to the Idaho courts; and (3) when the Idaho courts have rejected a claim on an adequate
and independent state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004);
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
If a claim is procedurally defaulted, a federal court can still hear the merits of the
claim if the petitioner meets one of two exceptions: (1) a showing of actual innocence, see
Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986),
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or (2) a showing of adequate legal cause for the default and prejudice arising from the
default, see Coleman, 501 U.S. at 731.
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray, 477 U.S. at 488. To show
“prejudice,” a petitioner generally bears “the burden of showing not merely that the errors
[in his proceeding] constituted a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
Cause for the default may exist as a result of ineffective assistance of counsel. For
example, the failure on appeal to raise a meritorious claim of trial error may render that
claim procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“[I]n
certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for
review in state court will suffice.”). However, for ineffective assistance of trial or direct
appeal counsel to serve as cause to excuse the default of a claim, that ineffective assistance
claim must itself have been separately presented to the state appellate courts. Id. at 451
(“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default
of another claim can itself be procedurally defaulted.”) If the ineffective assistance asserted
as cause was not fairly presented to the state courts, a petitioner must show that an excuse
for that separate default exists, as well.
A petitioner does not have a federal constitutional right to the effective assistance
of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551,
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554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general
rule is that any errors of counsel during a post-conviction action cannot serve as a basis for
cause to excuse a procedural default. Coleman, 501 U.S. at 752.
However, the Supreme Court established an exception to that general rule in
Martinez v. Ryan, 566 U.S. 1 (2012). Martinez held that, in limited circumstances,
“[i]nadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at
9. The Supreme Court has described and clarified the Martinez cause and prejudice test as
consisting of four necessary prongs: (1) the underlying claim of ineffective assistance of
counsel must be a “substantial” claim; (2) the “cause” for the procedural default consists
of there being “no counsel” or only “ineffective” counsel during the state collateral review
proceeding; (3) the state collateral review proceeding was the “initial” collateral review
proceeding where the IATC claim could have been brought; and (4) state law requires that
an IATC claim be raised in an initial-review collateral proceeding, or by “design and
operation” such claims must be raised that way, rather than on direct appeal. Trevino v.
Thaler, 569 U.S. 413, 423, 429 (2013).
Any argument that a claim is procedurally defaulted must identify the proceeding
in which the claim was purportedly defaulted and, if the claim was raised in state court at
any point (in a procedurally proper manner or not), must also include a citation to the state
court record where the claim was raised.
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IT IS ORDERED:
The Clerk of Court will serve (via ECF) a copy of the Petition and the
Supplement (Dkts. 3 and 14), along with any attachments, together with a
copy of this Order, on L. LaMont Anderson, on behalf of Respondent, at Mr.
Anderson’s registered ECF address.
Within 120 days after service of the Petition, Respondent may file either of
the following: (1) a motion for summary dismissal or partial summary
dismissal on procedural grounds (which may be followed by an answer if the
motion is unsuccessful); or (2) an answer and brief, on the claims that were
adjudicated on the merits by the Idaho Supreme Court, that also includes a
brief summary (between one paragraph and several pages) of any procedural
defenses for any claims (which may be argued in the alternative). If
Respondent files an answer and brief, the Court first may consider the claims
that were adjudicated on the merits by the Idaho Supreme Court; for any
claims that appear to warrant relief or any claims not disposed of on the
merits that appear subject to procedural defenses, the Court may then
determine whether those claims are barred by any procedural defenses and
will call for additional briefing, evidence, or a hearing, if necessary.
Respondent must file with the responsive pleading or motion, or within a
reasonable time thereafter, a copy of all portions of the state court record
previously transcribed that are relevant to a determination of the issues
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presented. Any presentence investigation reports or evaluations—which
must be provided to the Court if the Petition contains any sentencing
claims—must be filed under seal. The lodging of the remainder of the state
court record, to the extent that it is lodged in paper format, is exempt from
the redaction requirements, as provided in District of Idaho Local Civil Rule
If the response to the habeas petition is an answer, Petitioner must file a reply
(formerly called a traverse), containing a brief rebutting Respondent’s
answer and brief, which must be filed and served within 28 days after service
of the answer and brief. Respondent has the option of filing a sur-reply within
14 days after service of the reply. At that point, the case will be deemed ready
for a final decision.
If the response to the habeas petition is a motion, Petitioner’s response must
be filed and served within 28 days after service of the motion, and
Respondent’s reply, if any, must be filed and served within 14 days
In the response to the habeas petition, whether a motion or an answer and
brief, Respondent must include citations to all portions of the state court
record that support Respondent’s assertions. Although Respondent may
include citations to a state appellate court decision that describes events that
took place in a lower court, Respondent must also include citations to the
underlying lower court record.
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No party may file supplemental responses, replies, affidavits, or other
documents not expressly authorized by the Local Rules or by this Order
without first obtaining leave of Court.
No discovery may be undertaken in this matter unless a party obtains prior
leave of Court, pursuant to Rule 6 of the Habeas Rules.
The parties may, but need not, file the following in this matter: (1) notices of
non-objections to motions to which they do not object; (2) responses to
motions for appointment of counsel; (3) responses to motions that are
meritless, frivolous, or filed in contravention of this Order; or (4) notices of
intent not to file a reply. If additional briefing is required on any issue, the
Court will order it.
Each party must ensure that all documents filed with the Court are
simultaneously served via the ECF system or by first-class mail upon the
opposing party (through counsel if the party has counsel), pursuant to Federal
Rule of Civil Procedure 5. Each party must sign and attach a proper mailing
certificate to each document filed with the court, showing the manner of
service, date of service, address of service, and name of the person upon
whom service was made, or as specified by the applicable ECF rules. The
Court will not consider ex parte requests unless a motion may be heard ex
parte according to the rules and the motion is clearly identified as requesting
an ex parte order, pursuant to Local Rule 7.2. (“Ex parte” means that a party
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has provided a document to the court, but that the party did not provide a
copy of the document to the other party to the litigation.)
All Court filings requesting relief or requesting that the Court make a ruling
or take an action of any kind must be in the form of a pleading or motion,
with an appropriate caption designating the name of the pleading or motion,
served on all parties to the litigation, pursuant to Federal Rules of Civil
Procedure 7, 10 and 11, and Local Rules 5.2 and 7.1. The Court will not
consider requests made in the form of letters.
Petitioner must at all times keep the Court and Respondent advised of any
change in address.
If Petitioner’s custodian changes at any point during this litigation, Petitioner
must file a Notice of Substitution of Respondent within 28 days of such
change, identifying the person who is substituted as Respondent. See Fed. R.
Civ. P. 25(d); Habeas Rule 2(a).
DATED: September 10, 2020
David C. Nye
Chief U.S. District Court Judge
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