Adams v. Christensen
MEMORANDUM DECISION AND ORDER - Respondents Motion for Summary Dismissal (Dkt. 13 ) is GRANTED, and the Petition is DISMISSED with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 1:20-cv-00047-REB
MEMORANDUM DECISION AND
Pending before the Court is a Petition for Writ of Habeas Corpus, filed by Idaho
prisoner Zackery Adams, challenging Petitioner’s state court convictions. See Dkt. 3.
Respondent has filed a Motion for Summary Dismissal, arguing that all of Petitioner’s
claims are procedurally defaulted without legal excuse. See Dkt. 13. The Motion is now
ripe for adjudication.1
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. See Dkt. 11; Fed. R. Evid. 201(b);
Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Petitioner has filed an unauthorized sur-reply in opposition to the Motion for Summary Dismissal,
entitled “Motion in Response Opposing State’s Reply Brief for Summary Dismissal.” See Dkt. 17. The
Court has considered this sur-reply even though Petitioner did not seek leave of Court before filing it.
MEMORANDUM DECISION AND ORDER - 1
Rule of Civil Procedure 73. See Dkt. 8. Having carefully reviewed the record, including
the state court record, the Court finds that oral argument is unnecessary. See D. Idaho L.
Civ. R. 7.1(d).
Accordingly, the Court will enter the following Order granting the Motion and
dismissing this case with prejudice.
In the Fourth Judicial District Court in Ada County, Idaho, Petitioner entered an
Alford2 plea to grand theft and unlawful possession of a firearm, in violation of Idaho
Code §§ 18-2403(1), 18-2407(1)(b), 18-2409, and 18-3316. In return for Petitioner’s
guilty plea, the state dismissed additional charges, including a persistent violator
enhancement. State’s Lodging C-1 at 55–61, 67–74. Petitioner was sentenced to “a
unified term of fourteen years, with a minimum period of confinement of eight years,” for
the grand theft charge; he was also sentenced to a consecutive indeterminate five-year
term for the firearm possession charge. State’s Lodging B-4 at 1.
Petitioner filed a direct appeal, arguing that the trial court abused its discretion,
under state law, by imposing an excessive sentence and ordering restitution. State’s
Lodging B-1. The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied
review. State’s Lodging B-4, B-6.
Petitioner filed a post-conviction petition in the state district court. State’s Lodging
C-1 at 5–9. The petition asserted claims of double jeopardy, insufficient evidence, lack of
See North Carolina v. Alford, 400 U.S. 25, 35 (1970).
MEMORANDUM DECISION AND ORDER - 2
mens rea, and ineffective assistance of trial and appellate counsel. Id. The state district
court dismissed the post-conviction petition on alternative grounds. The court first held
that the petition did not comply with Idaho law because it was not verified and because
Petitioner did not correct the deficiency when notified of it. Id. at 91–93.
Alternatively, the court held that (1) most of Petitioner’s ineffective assistance of
counsel claims failed on the merits,3 and (2) Petitioner’s other claims were procedurally
barred, by Idaho Code § 19-4907(b), because they could have been raised on direct
appeal. Id. at 93–103.
The Idaho Court of Appeals affirmed the dismissal of the petition as unverified,
because Petitioner challenged that determination for the first time on appeal despite
having the opportunity to do so in the lower court. State’s Lodging D-4 at 3. The Court
also noted that some of Petitioner’s claims failed on the merits. Id. n.1. Petitioner did not
file a petition for review with the Idaho Supreme Court, and the Idaho Court of Appeals
issued the remittitur. State’s Lodging D-5.
This Court previously construed the instant federal habeas corpus petition as
asserting the following claims:
In Claim 1, Petitioner alleges that his attorney rendered
ineffective assistance in the following ways: (a) failing to
pursue a motion to suppress or motion to dismiss; (b) failing
to follow Petitioner’s request for a neuropsychological
examination, resulting in a “tainted” or incomplete
The only exception was Petitioner’s claim that counsel was ineffective for failing to file a motion to
suppress his statements to police. The state district court did not reach the merits of this claim, dismissing
it on the sole ground that the petition was unverified. State’s Lodging C-1 at 103–04.
MEMORANDUM DECISION AND ORDER - 3
presentence report; and (c) conspiring with the prosecutor to
induce Petitioner to plead guilty.
Claim 2 asserts prosecutorial misconduct based on the
prosecutor’s alleged conduct in (a) knowingly using a tainted,
incomplete, or inaccurate presentence report, (b) conspiring
with defense counsel to induce Petitioner to enter a “sham”
guilty plea, (c) failing to disclose material, favorable
evidence, and (d) using the prosecutor’s personal opinions
about Petitioner in the plea and sentencing proceedings.
In what the Court will refer to as Claim 3—gleaned from the
allegations throughout the Petition—Petitioner appears to
assert that, because of the conduct of defense counsel and the
prosecutor as alleged in Claims 1 and 2, Petitioner’s guilty
plea was not knowing, intelligent, and voluntary.
Claim 4 asserts that the trial court violated due process when
it relied on a tainted or incomplete presentence report that
was obtained without Petitioner’s consent and in violation of
his constitutional rights. Though it is not entirely clear,
Petitioner may be claiming that he was not informed of his
right to be free from compelled self-incrimination, under
Estrada v. State, 149 P.3d 833, 834 (Idaho 2006), prior to
submitting to a court-ordered evaluation used for sentencing
Initial Review Order, Dkt. 9, at 2–3 (record citations omitted).
After its earlier review of the Petition, this Court allowed Petitioner to proceed on
his claims to the extent those 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
subject to a legal excuse for any failure to exhaust in a proper manner.” Id. at 3.
Respondent now argues that Petitioner’s claims are subject to summary dismissal
as procedurally defaulted. For the reasons that follow, the Court agrees.
MEMORANDUM DECISION AND ORDER - 4
The Rules Governing Section 2254 Cases (“Habeas Rules”) authorize 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,” as well as those records subject to judicial
notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. Where appropriate, a respondent may
file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599,
602 (9th Cir. 1989).
Procedural Default Standards of Law
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. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162–63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
MEMORANDUM DECISION AND ORDER - 5
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). For proper
exhaustion, a petitioner must bring his federal claim before the state court by “explicitly”
citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.
2000), as amended, 247 F.3d 904 (9th Cir. 2001).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and 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 the following: (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).
Petitioner’s Claims Are Procedurally Defaulted
The most straightforward manner for resolving the exhaustion and procedural
default status of Petitioner’s federal claims is to review which claims were raised and
addressed on the merits in the state court appellate proceedings. On direct appeal from his
conviction, Petitioner did not raise any federal claims. He argued only that the trial court
MEMORANDUM DECISION AND ORDER - 6
abused its discretion under Idaho state law. Thus, on direct appeal Petitioner did not fairly
present any habeas claims to the Idaho Supreme Court.
Petitioner appealed the dismissal of his post-conviction petition. However, after
the Idaho Court of Appeals affirmed, Petitioner did not seek review in the Idaho Supreme
Court. Thus, Petitioner did not fairly present any of his federal habeas claims to the
highest state court.
None of Petitioner’s habeas claims was fairly presented in state court. Because it is
now too late to do so, those claims are procedurally defaulted. See Idaho App. R. 118
(petition for review must be filed within 21 days after Idaho Court of Appeals’ decision);
Gray, 518 U.S. at 161–62.
The Procedural Default of Petitioner’s Claims Is Not Excused
Petitioner Has Not Shown Cause and Prejudice
If a petitioner’s claim is procedurally defaulted, a federal district court still can
hear the merits of the claim if the petitioner shows adequate legal cause for the default
and prejudice arising from the default.4 See Murray v. Carrier, 477 U.S. 478, 488 (1986).
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. Id. To show “prejudice,” a petitioner
generally bears “the burden of showing not merely that the errors [in his proceeding]
Petitioner has not invoked the second exception to the procedural default doctrine, as he does not assert
that he is actually innocent. See Schlup v. Delo, 513 U.S. 298, 314–15 (1995) (“Because Schlup has been
unable to establish cause and prejudice …, Schlup may obtain review of his constitutional claims only if
he falls within the narrow class of cases implicating a fundamental miscarriage of justice.”) (internal
citation, quotation marks, alteration, and footnote omitted).
MEMORANDUM DECISION AND ORDER - 7
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).
Ineffective assistance of counsel (“IAC”) may constitute cause for a default. For
example, the failure on appeal to raise a meritorious claim of trial error—or the failure at
trial to preserve a claim for appeal—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 IAC—whether at trial or on direct appeal—to serve as cause to
excuse a default, that IAC claim must itself have been separately presented to the state
appellate courts. Id. (“A claim of ineffective assistance ... generally must be presented to
the state courts as an independent claim before it may be used to establish cause for a
procedural default.”) (internal quotation marks and alteration omitted).
In other words, before a federal court can consider ineffective assistance of trial or
direct appeal counsel as cause to excuse the default of an underlying habeas claim, a
petitioner generally must have presented the IAC claim in a procedurally proper manner
to the state courts, such as in a post-conviction relief petition, including through the level
of the Idaho Supreme Court. If the ineffective assistance asserted as cause was not fairly
presented to the state courts, a petitioner must show an excuse for that separate default as
well. Id. at 453 (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally defaulted.”).
MEMORANDUM DECISION AND ORDER - 8
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, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). Therefore, the
general rule is that any errors of counsel during a post-conviction action cannot serve as
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. Martinez does not apply to any claims other than trial-level IAC claims, and it can
apply only if the underlying trial-level IAC claim is both exhausted and procedurally
defaulted. Davila v. Davis, 137 S. Ct. 2058, 2063 (2017) (holding that Martinez does not
apply to underlying claims of ineffective assistance of direct appeal counsel); Hunton v.
Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (holding that Martinez does not apply to
claims under Brady v. Maryland); Creech v. Ramirez, No. 1:99-CV-00224-BLW, 2016
WL 8605324, at *21 (D. Idaho Jan. 29, 2016) (holding that claims were not subject to
Martinez because they were not procedurally defaulted).
The Martinez cause-and-prejudice test consists of four necessary prongs: (1) the
underlying IAC claim 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”
MEMORANDUM DECISION AND ORDER - 9
collateral review proceeding where the IAC claim could have been brought; and (4) state
law requires that an IAC 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. 416, 423, 429 (2013). The failure to meet any of these four
prongs means that the Martinez exception is unavailable to excuse the procedural default
of a claim.
In his initial state post-conviction petition, Petitioner raised a claim of ineffective
assistance of direct appeal counsel. State’s Lodging C-1 at 7 (“Counsel, during the direct
appeal process … did not raise any of the claims of this Petition …, and instead filed a
‘dead bang loser’ in the Courts of Appeals.”). But because Petitioner failed to file a
petition for review, he did not fairly present this claim to the Idaho Supreme Court. Thus,
any alleged ineffectiveness of Petitioner’s direct appeal counsel does not excuse the
default of Petitioner’s habeas claims. See Edwards, 529 U.S. at 452–53.
Petitioner asserts that his post-conviction appellate counsel rendered ineffective
assistance in failing to file a petition for review with the Idaho Supreme Court. See Dkt.
17 at 3. However, the Martinez exception applies only to claims that were defaulted in
the initial-review collateral proceeding—here, the post-conviction proceedings in the
state district court. A petitioner may not use, as cause to excuse a default, any attorney
error that occurred in “appeals from initial-review collateral proceedings, second or
successive collateral proceedings, [or] petitions for discretionary review in a State’s
MEMORANDUM DECISION AND ORDER - 10
appellate courts.” Martinez, 566 U.S. at 16. Therefore, Martinez v. Ryan does not excuse
the procedural default of any of Petitioner’s ineffective assistance claims.
Petitioner Has Not Shown He Is Excused from Default under 28 U.S.C.
Petitioner also invokes 28 U.S.C. § 2254(b)(1)(B), which permits a federal court to
consider an unexhausted habeas claim if “there is an absence of available State corrective
process” or “circumstances exists that render such process ineffective to protect the rights
of the applicant.” See Dkt. 15 at 2. Petitioner’s argument is without any factual or legal
Petitioner indeed had a state corrective process available after the Idaho state
district court and the Idaho Court of Appeals rejected his post-conviction claims—filing a
petition for review in the Idaho Supreme Court. Petitioner simply failed to follow that
corrective process. This Court has found no authority for the proposition that
§ 2254(b)(1)(B) excuses a petitioner’s failure to utilize the state’s intermediate appellate
review process. Further, declining to seek review because of a belief that the highest state
court would disagree with the merits of a petitioner’s claim does not excuse procedural
default. See Cook v. Smith, No. 1:12-CV-00281-BLW, 2013 WL 2458531, at *6 (D.
Idaho June 6, 2013) (unpublished) (“Futility, however, does not exempt one from the
exhaustion requirement.”) (citing Engle v. Isaac, 456 U.S. 107, 130 (1982)).
This Court Cannot Review the State Courts’ Conclusion that the PostConviction Petition Was Unverified
In Petitioner’s post-conviction appeal, Petitioner argued that his post-conviction
petition should have been deemed verified because—even though the petition itself was
MEMORANDUM DECISION AND ORDER - 11
unsigned—Petitioner had attached a notarized affidavit. State’s Lodging D-1 at 6–7.
Though Petitioner does not repeat that argument here, the Court would reject it in any
The Idaho Court of Appeals did not reach the merits of Petitioner’s verification
argument because it was not raised in the lower court. State’s Lodging D-4 at 3.
However, the fact remains that the state district court held—as a matter of state law—that
the post-conviction petition was unverified and, therefore, could not be the basis for postconviction relief. State’s Lodging C-1 at 91–93. This Court has no authority to secondguess a state court interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67–68
(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
For the foregoing reasons, Petitioner’s claims are procedurally defaulted without
legal excuse. Therefore, the Court will grant Respondent’s Motion.
IT IS ORDERED:
Respondent’s Motion for Summary Dismissal (Dkt. 13) is GRANTED, and
the Petition is DISMISSED with prejudice.
MEMORANDUM DECISION AND ORDER - 12
The Court finds that its resolution of this habeas matter is not reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
DATED: March 31, 2021
Ronald E B h
R ld E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?