Eby v. Idaho, State of, et al

Filing 29

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Motion for Appointment of Counsel 25 is DENIED. Respondent's Motion for Partial Summary Dismissal 21 is GRANTED IN PART. Claims Two, Five, and Six of the Petition are DISMISS ED with prejudice. Petitioner shall have 21 days after entry of this Order to file a brief showing cause and prejudice to excuse the procedural default of Claim Three. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DANIEL LEE EBY,
Case No. 3:02-cv-00113-MHW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY BLADES,
Respondent.

Pending before the Court is Petitioner Daniel Lee Eby’s Amended Petition for
Writ of Habeas Corpus. (Dkt. 13.) Respondent has filed a Motion for Partial Summary
Dismissal. (Dkt. 21.) Petitioner has filed a response to the Motion, and Respondent has
filed a Reply. (Dkt. 24, 26.) Petitioner has also filed a Motion for Appointment of
Counsel. (Dkt. 25.) The Court takes judicial notice of the records from Petitioner’s state
court proceedings, lodged by Respondent on September 6, 2013. (Dkt. 22.) See Fed. R.
Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case (Dkt. 20). See 28 U.S.C. § 636(c). Having carefully
reviewed the record, including the state court record, the Court finds that the parties have
adequately presented the facts and legal arguments in the briefs and record and that oral
argument is unnecessary. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
MEMORANDUM DECISION AND ORDER 1

following Order granting in part Respondent’s Motion for Partial Summary Dismissal and
dismissing Claims Two, Five, and Six as procedurally defaulted.
The Court concludes that Claim Three is also procedurally defaulted, but because
Respondent did not move for summary dismissal of Claim Three on that ground,
Petitioner shall have 21 days from the date of this Order within which to file a brief
establishing cause and prejudice to excuse the procedural default of Claim Three. If no
such brief is filed, or if that brief does not establish cause and prejudice, the Court will
dismiss Claim Three with prejudice as procedurally defaulted.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Eby, 37 P.3d 625 (Idaho Ct. App. 2001), which is contained in the record at
State’s Lodging B-3. The facts will not be repeated here, except as necessary to determine
the procedural issues at hand.
In the First Judicial District of the State of Idaho, in Kootenai County, Petitioner
was convicted of first degree murder (either with premeditation or during the course of a
felony1), conspiracy to commit robbery, and attempted robbery. (State’s Lodging B-3.) On
appeal, Petitioner argued that (1) the admission of a co-conspirator’s statements to police
violated Petitioner’s right to confrontation under the Sixth Amendment; (2) the admission

1

The State argued that Petitioner committed either premeditated murder or felony
murder, and the jury’s verdict did not identify the theory under which Petitioner was found
guilty.
MEMORANDUM DECISION AND ORDER 2

of Petitioner’s statements to police violated his Fifth Amendment right against selfincrimination because the police did not cease questioning Petitioner after he told them
that he had a lawyer; (3) Petitioner’s conviction for attempted robbery had to be vacated
because the attempted robbery merged with the offense of felony murder; and (4) the
court should have instructed the jury on a “threats and menaces,” or duress, defense.
(State’s Lodging B-1.)
The Idaho Court of Appeals held that although the admission of the coconspirator’s statements violated the Sixth Amendment, the error was harmless beyond a
reasonable doubt. (State’s Lodging B-3 at 4-7.) The court also held that Petitioner’s
statement to the police, “I’ve got an attorney,” was an ambiguous request for counsel and
that detectives were therefore not required to stop the interrogation. (Id. at 2-4.) The court
rejected Petitioner’s argument regarding the threats and menaces instruction because the
evidence did not support that instruction. (Id. at 7-8.) However, the Idaho Court of
Appeals agreed that Petitioner’s sentence for attempted robbery was improper because it
merged with Petitioner’s sentence for first-degree murder, and the court therefore vacated
the attempted robbery conviction. (Id. at 8-9.) The court denied Petitioner’s petition for
rehearing. (State’s Lodging B-6.)
Petitioner filed a petition for review with the Idaho Supreme Court, arguing that
the court of appeals erred when it conducted a harmless error analysis with respect to the
Confrontation Clause issue because the jury’s general verdict did not indicate whether

MEMORANDUM DECISION AND ORDER 3

Petitioner was convicted of premeditated murder or of felony murder. (State’s Lodging B8 at 1-5.) He argued also that the jury should have been instructed on a threats and
menaces defense. (Id. at 5-6.) Petitioner did not renew his Fifth Amendment argument
regarding his inculpatory statements to police. The Idaho Supreme Court denied the
petition for review. (State’s Lodging B-9.)
Petitioner filed a postconviction petition in state court, beginning a long process
that the Idaho Supreme Court later described as “shocking and disgraceful neglect” of
Petitioner’s case by a series of appointed attorneys. (State’s Lodging D-8 at 1.) After
years of deficient representation, Petitioner’s postconviction petition was dismissed for
inactivity. The Idaho Supreme Court held, as a matter of first impression, that Idaho Rule
of Civil Procedure 60(b) may, in some circumstances, be used to challenge such a
dismissal. (Id. at 4-7.) On remand from the Idaho Supreme Court, the state district court
reopened the case under Rule 60(b) and appointed new postconviction counsel for
Petitioner. (State’s Lodging E-1 at 4.)
Petitioner then filed an amended petition for postconviction relief, asserting the
following claims: (1) Petitioner was denied his right to conflict-free counsel; (2) newly
discovered evidence required that Petitioner’s convictions be vacated in the interests of
justice under Idaho Code § 19-4901(a)(4)2; and (3) ineffective assistance of trial counsel
2

Idaho Code § 19-4901(a)(4) allows a petitioner to apply for postconviction relief if
“there exists evidence of material facts, not previously presented and heard, that requires
vacation of the conviction or sentence in the interest of justice.” Such claims are governed by a
four-part test, and a petitioner must show “(1) that the evidence is newly discovered and was
MEMORANDUM DECISION AND ORDER 4

on various grounds. (Id. at 7-9.) Following an evidentiary hearing (State’s Lodging E-4),
the trial court denied the postconviction petition.
Petitioner filed a pro se appeal, arguing that the district court erred in denying
relief on (1) his claim that he was denied conflict-free counsel, and (2) his newly
discovered evidence claim. (State’s Lodging F-5.) Although Petitioner stated in the
“Issues” statement in his opening brief that he was also appealing the district court’s
denial of his ineffective assistance of counsel claims (id. at 2), he did not include any
argument to that effect in the body of his brief.
The Idaho Court of Appeals affirmed the denial of postconviction relief, holding
that there was no evidence in the record that any conflict of interest was likely to result in
prejudice to Petitioner and that the newly discovered evidence was not material because is
was merely impeaching. (State’s Lodging F-8 at 7-8.) With respect to Petitioner’s attempt
to raise claims of ineffective assistance of counsel, the court concluded that his failure to
assert specific facts as to these claims constituted a waiver under State v. Zichko, 923
P.2d 966, 970 (Idaho 1996), which held that a party waives an issue on appeal by failing
to include either authority or argument in the appellate briefs. (State’s Lodging F-8 at 810.) The Idaho Supreme Court denied Petitioner’s petition for review. (State’s Lodging F-

unknown to the defendant at the time of trial; (2) that the evidence is material, not merely
cumulative or impeaching; (3) that it will probably produce an acquittal; and (4) that failure to
learn of the evidence was due in no part to lack of diligence on the part of the defendant.”
Whiteley v. State, 955 P.2d 1102, 1105 (Idaho 1998) (quoting State v. Drapeau, 551 P.2d 972,
978) (Idaho 1976)).
MEMORANDUM DECISION AND ORDER 5

11.)
During the pendency of his state postconviction proceedings, Petitioner filed the
instant federal Petition. The Court stayed the case while Petitioner continued to pursue
postconviction relief in state court. (Dkt. 8.) Following the completion of state
proceedings, Petitioner filed an Amended Petition, which asserts the following claims:
Claim One: The admission of a co-conspirator’s statements implicating
Petitioner in the murder violated the Sixth Amendment.
Claim Two: The admission of Petitioner’s inculpatory statements to police
violated the Fifth Amendment.
Claim Three: The trial court denied Petitioner his constitutional right to
present a defense by refusing to instruct the jury on a threats
and menaces defense.
Claim Four: Petitioner was denied his right to conflict-free counsel.
Claim Five: Petitioner was denied his Sixth Amendment right to effective
assistance of trial counsel based on counsel’s (a) failure to
communicate with Petitioner, (b) refusal to allow Petitioner to
testify on his own behalf, and (c) instruction to Petitioner that
he should not speak to the pre-sentence investigator.
Claim Six:

The police or prosecutor withheld favorable evidence from
the defense.

(Am. Pet., Dkt. 13, at 4-11.)
PETITIONER’S MOTION
FOR APPOINTMENT OF COUNSEL
Petitioner requests the appointment of counsel. There is no constitutional right to
counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A

MEMORANDUM DECISION AND ORDER 6

habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for
effective discovery or an evidentiary hearing is required in his case. See Rules 6(a) & 8(c)
of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its
discretion to appoint counsel for an indigent petitioner in any case where required by the
interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel
should be appointed turns on a petitioner’s ability to articulate his claims in light of the
complexity of the legal issues and his likelihood of success on the merits. See Weygandt
v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Prior to reaching the merits of the claims in the Petition, the Court must address a
narrow procedural issue—whether Petitioner properly presented his federal claims to the
Idaho Supreme Court and whether, if not, cause and prejudice (or actual innocence) exists
to excuse that failure—for which appointment of counsel is not required. Further, it
appears from Petitioner’s filings that he has been able to adequately bring his claims and
protect his interests to date. The Court understands that Petitioner does not have legal
training or legal resources; therefore, the Court independently reviews the case citations
and references provided by the State for accuracy and applicability. The Court also does
its own research to determine whether other cases not cited by the State apply. Finally, the
appellate review process before the United States Court of Appeals for the Ninth Circuit
is available to ensure that the case has been adjudicated according to the proper legal
standards. For these reasons, the Court will deny Petitioner’s Motion for Appointment of

MEMORANDUM DECISION AND ORDER 7

Counsel.
RESPONDENT’S MOTION FOR
PARTIAL SUMMARY DISMISSAL
Respondent moves for summary dismissal of Claims Two, Three, Five, and Six on
the grounds that (1) Claim Three is non-cognizable, meaning that the Court lacks the
authority to grant habeas relief on that claim, and (2) Claims Two, Five, and Six are
procedurally defaulted. Although the first argument fails, the second is persuasive.
1.

Standard of Law Governing Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily

dismiss a petition for writ of habeas corpus or claims contained in the petition 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.” In such case, the Court construes the facts in the
light most favorable to the petitioner.
2.

Claim Three Is Cognizable on Federal Habeas Review Because It Asserts a
Violation of the United States Constitution
Respondent erroneously contends that Claim Three “is non-cognizable in a federal

habeas proceeding because it challenges the state court’s application of state law.” (Dkt.
21-1 at 18.) The Amended Petition plainly states that Claim Three is asserted as a
constitutional claim. That Petitioner fully exhausted Claim Three only as a state law claim
in the Idaho courts may mean the claim is procedurally defaulted (see § 4, infra), but it
does not transform the nature of the claim. Respondent’s Motion is without merit with

MEMORANDUM DECISION AND ORDER 8

respect to Claim Three.
The Court will now consider whether Claims Two, Three, Five, and Six are
procedurally defaulted.
3.

Standard of Law Governing Procedural Default
A habeas petitioner must exhaust his 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). This means that 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.
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995). 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). The law is clear that, for proper
exhaustion, a petitioner must bring his federal claim before the state court by “explicitly”
citing the federal legal basis for his claim, “regardless of whether the petitioner [is]

MEMORANDUM DECISION AND ORDER 9

proceeding pro se.” Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended,
247 F.3d 904 (9th Cir. 2001) (emphasis omitted).
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 v. Netherland, 518 U.S. 152, 161-62 (1996). Procedurally defaulted claims include
those within the following circumstances: (1) when a petitioner has completely failed to
raise a particular 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).
To be an “adequate” state ground, a state court’s 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)). A state procedural bar is
“independent” of federal law if it does not rest on federal grounds and is not intertwined
with federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).

MEMORANDUM DECISION AND ORDER 10

4.

Claims Two, Three, Five, and Six Are Procedurally Defaulted
A.

Claim Two: Fifth Amendment Right to Remain Silent

Claim Two alleges that the admission at trial of Petitioner’s incriminating
statements to police violated the Fifth Amendment because detectives continued their
questioning even after Petitioner told them, “I’ve got an attorney.” Petitioner raised this
claim in his direct appeal. (State’s Lodging B-1 at 12-15.) However, he did not raise this
Fifth Amendment issue in his petition for review with the Idaho Supreme Court. See
O’Sullivan, 526 U.S. at 847. Rather, the petition for review argued only that the trial court
violated Petitioner’s right to confrontation and right to present a defense. (State’s Lodging
B-8.) Therefore, Claim Two was not properly exhausted. Because there is no avenue for
Petitioner to return to state court to properly exhaust Claim Two, see Idaho Code § 194908, that claim is procedurally defaulted.
B.

Claim Three: Due Process Right to Present a Defense

Respondent does not argue procedural default as to Claim Three, which asserts
that Petitioner was denied his constitutional right to present a defense when the trial court
did not instruct the jury on a threats and menaces defense. Therefore, the Court discusses
sua sponte the procedural default issue as to Claim Three.
In the issues statement in his brief on direct appeal, Petitioner described one of the
issues as whether the trial court denied Petitioner “his constitutional right to present a
defense by refusing to instruct the jury as to a threats and menaces defense.” (State’s

MEMORANDUM DECISION AND ORDER 11

Lodging B-1 at 6.) He also listed this issue in the heading of one of the sections of the
brief. (Id. at 17.) However, in the body of the brief, Petitioner asserted only that the trial
court should have given the instruction under state law, pursuant to Idaho Code § 18201(4). For this proposition Petitioner cited State v. Spurr, 755 P.2d 1315, 1317 (Idaho
Ct. App. 1994). (State’s Lodging B-1 at 17.) He did not argue that he was improperly
denied his due process right to present a defense. The passing references to Petitioner’s
“constitutional” right to present a defense in his appellate brief do not constitute fair
presentation of Claim Three to the Idaho Court of Appeals. See Hiivala, 195 F.3d at 1106.
Petitioner did argue in his petition for review to the Idaho Supreme Court that the
failure to give the threats and menaces instruction violated his constitutional right to due
process. (State’s Lodging B-8 at 5.) However, raising a federal constitutional issue for the
first time in a petition for discretionary review in the highest state court does not fairly
present the issue for purposes of a procedural default analysis. Castille v. Peoples, 489
U.S. 346, 351 (1989); see also Centers v. Yehezkely, 706 P.2d 105, 106 (Idaho Ct. App.
1985) (per curiam) (“It is well settled that when a second appeal is taken, the appellants
may not raise issues in the higher court different from those presented in the intermediate
court.”). Because Petitioner did not properly exhaust Claim Three as a federal claim in the
Idaho state courts, and because it is now too late to do so, that claim is procedurally
defaulted.

MEMORANDUM DECISION AND ORDER 12

C.

Claim Five: Ineffective Assistance of Trial Counsel

Claim Five alleges ineffective assistance of trial counsel on various grounds: (a)
failing to communicate with Petitioner, (b) refusing to allow Petitioner to testify on his
own behalf, and (c) instructing Petitioner not to speak with the pre-sentence investigator.
Although Petitioner raised each of these ineffective assistance claims in his amended
petition for state postconviction relief (State’s Lodging E-1 at 8-9), on appeal he
referenced these claims only in passing, stating generally that the trial court erred “in
denying [Petitioner’s] ineffective assistance of counsel claim’s [sic].” (State’s Lodging F5 at 2.)
In declining to address the ineffective assistance claims, the Idaho Court of
Appeals invoked the procedural rule that a party “waives an issue on appeal if either
authority or argument is lacking.” (State’s Lodging F-8 at 10.) The Ninth Circuit held
over a decade ago that this rule is an adequate and independent state procedural bar,
Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001), and Petitioner does not suggest that
the rule is unclear or has been inconsistently applied, see Klauser, 266 F.3d at 1093-94.
Because Claim Five and its sub-claims were rejected by the Idaho Court of
Appeals on an adequate and independent procedural ground, those claims are
procedurally defaulted.
D.

Claim Six: Brady Violation

Petitioner alleges in Claim Six that the police or prosecutor withheld favorable

MEMORANDUM DECISION AND ORDER 13

evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Petitioner claims (1) that a detective destroyed a drawing, made by Petitioner’s codefendant, of the weapon Petitioner used in the murder; and (2) that a pipe wrench found
at the crime scene was sent to be tested but was never admitted into evidence at trial.
(Am. Pet. at 11.)
Petitioner raised a Brady claim in his initial postconviction petition. (State’s
Lodging C-1 at 15.) However, after the trial court reopened the postconviction case
following remand from the Idaho Supreme Court, Petitioner (through new counsel) filed
an amended postconviction petition that did not include a Brady claim. (State’s Lodging
E-1 at 6-10.) Because Petitioner can no longer properly exhaust this claim in state court,
Idaho Code § 19-4908, Claim Six is procedurally defaulted.
E.

Conclusion Regarding Defaulted Claims

For the reasons set forth above, Claims Two, Three, Five, and Six are procedurally
defaulted. However, that conclusion does not end the inquiry. 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 adequate legal cause for the default and prejudice
arising from the default, see Coleman v. Thompson, 501 U.S. 722, 731 (1991), or (2) a
showing of actual innocence, which means that a miscarriage of justice will occur if the
claim is not heard in federal court. See Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray
v. Carrier, 477 U.S. 478, 488 (1986).

MEMORANDUM DECISION AND ORDER 14

5.

Petitioner Has Not Established Cause and Prejudice to Excuse the Procedural
Default of Claims Two, Five, or Six
A.

General Standard of Law for Cause and Prejudice under Coleman v.
Thompson

A procedurally defaulted claim may be heard on the merits if a petitioner
establishes cause and prejudice to excuse the default. Coleman, 501 U.S. at 750. 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 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).
B.

Standard of Law for Cause and Prejudice under Martinez v. Ryan

A petitioner does not have a federal constitutional right to the effective assistance
of counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule
is that any errors of counsel during the postconviction action cannot serve as a basis for
cause to excuse a procedural default. Coleman, 501 U.S. at 752.
Martinez v. Ryan, 132 S. Ct. 1309 (2012), established a limited exception to this
general rule that applies only to Sixth Amendment ineffective assistance of counsel

MEMORANDUM DECISION AND ORDER 15

(“IAC”) claims. Martinez held that inadequate assistance of postconviction review
(“PCR”) counsel or lack of counsel “at initial-review collateral review proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.” Id. at 1315. In Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir. 2013), the Ninth
Circuit expanded Martinez, holding that it can also apply to excuse the procedural default
of claims asserting ineffective assistance of direct appeal counsel.
In Trevino v. Thaler, the Supreme Court described the Martinez analysis as
consisting of four prongs:
We consequently read Coleman as containing an
exception, allowing a federal habeas court to find “cause,”
thereby excusing a defendant’s procedural default, where (1)
the claim of “ineffective assistance of trial counsel” was a
“substantial” claim; (2) the “cause” consisted of there being
“no counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to
the “ineffective-assistance-of-trial-counsel claim”; and (4)
state law requires that an “ineffective assistance of trial
counsel [claim] . . . be raised in an initial-review collateral
proceeding.”
133 S. Ct. 1911, 1918 (2013) (citing Martinez, 132 S. Ct. at 1318-19, 1320-21)
(alterations in original).
With respect to the first prong of this analysis, a petitioner seeking to rely on
Martinez must bring forward facts demonstrating that his underlying IAC claim is
substantial. The Supreme Court has defined “substantial” as a claim that “has some
merit.” Martinez, 132 S. Ct. at 1318 (comparing the standard for certificates of
MEMORANDUM DECISION AND ORDER 16

appealability from Miller-El v. Cockrell, 537 U.S. 322 (2003)). Stated inversely, a claim
is “insubstantial” if “it does not have any merit or . . . is wholly without factual support.”
Id. at 1319. Determining whether an IAC claim is substantial requires a federal district
court to examine the claim under Strickland v. Washington, 466 U.S. 668 (1984). A
petitioner asserting ineffective assistance of counsel must show that (1) “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment,” and (2) counsel’s errors “deprive[d] the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687.
At the second step in the Martinez inquiry, a petitioner must show either that he
had no counsel on initial postconviction review, or that his PCR counsel was “ineffective
under the standards of Strickland.” 132 S. Ct. at 1318; see Trevino, 133 S. Ct. at 1918. As
to PCR counsel’s performance, not just any error or omission of PCR counsel will be
deemed “deficient performance” that will satisfy Martinez; if the PCR “attorney in the
initial-review collateral proceeding did not perform below constitutional standards,” the
PCR attorney’s performance does not constitute “cause.” 132 S. Ct. at 1319. Importantly,
PCR counsel “is not necessarily ineffective for failing to raise even a nonfrivolous
claim.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). If PCR counsel’s
performance is deficient, then the court must consider whether that performance was
prejudicial under Strickland. Clabourne v. Ryan, No. 09-99022, ___ F.3d ___, 2014 WL
866382, *11 (9th Cir. March 5, 2014).

MEMORANDUM DECISION AND ORDER 17

With respect to the third prong of the analysis, the Martinez exception applies only
to the lack of counsel or ineffectiveness of counsel in the initial postconviction review
proceeding. It “does not extend to attorney errors in any proceeding beyond the first
occasion the State allows a prisoner to raise a claim of ineffective assistance.” Martinez,
132 S. Ct. at 1320. Rather, the Court in Martinez was singularly concerned that, if
ineffective assistance of trial counsel claims were not brought in the collateral proceeding
which provided the first occasion to raise such claims, the effect was that the claims could
not be brought at all. Id. at 1316. Therefore, a petitioner may not assert as cause 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
appellate courts.” Id. at 1320.
As to the fourth Martinez prong—that state law must require IAC claims to be
brought in an initial-review collateral proceeding—the Supreme Court in Trevino
extended Martinez to apply not only where a State requires IAC claims to be raised in
postconviction proceedings, but also where a State’s “procedural framework, by reason of
its design and operation, makes it highly unlikely in a typical case that a defendant will
have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on
direct appeal.” Trevino, 133 S. Ct. at 1921. Therefore, Martinez applies in Idaho where
the post-conviction setting was the first forum in which the ineffective assistance of trial
counsel claim based on matters arising outside the record could have been brought and

MEMORANDUM DECISION AND ORDER 18

developed in an evidentiary hearing. See Matthews v. State, 839 P.2d 1215, 1220 (Idaho
1992) (recognizing that in Idaho the post-conviction setting is the “preferred forum for
bringing claims of ineffective assistance of counsel,” though in limited instances such
claims may be brought on direct appeal “on purported errors that arose during the trial, as
shown on the record”).
C.

Analysis of Cause and Prejudice as Applied to Petitioner’s Claims
i.

Traditional, or Coleman, Cause and Prejudice

Petitioner does not assert that traditional, or Coleman, cause exists to excuse the
procedural default of his claims with the exception of Claim Two—that the admission at
trial of Petitioner’s inculpatory statements to police violated his Fifth Amendment right
against compelled self-incrimination. As to that claim, Petitioner asserts that the “should
not be denied a meaningful opportunity to be heard due to the complete failure of the
appointed counsel to provide competent representation.” (Dkt. 24 at 2-3.) Because Claim
Two was raised on direct appeal but defaulted when Petitioner failed to raise it in his
petition for discretionary review with the Idaho Supreme Court, it appears Petitioner is
asserting that ineffective assistance of discretionary review counsel constitutes cause to
excuse the procedural default of Claim Two.
However, “[i]neffective assistance of counsel can constitute cause to excuse a
procedural default [of a non-IAC claim] only if the petitioner had a constitutional right to
counsel in the proceeding in which the default occurred.” Smith v. Idaho, 392 F.3d 350,

MEMORANDUM DECISION AND ORDER 19

357 (9th Cir. 2004). And it is well-established that criminal defendants do not have a
constitutional right to counsel on discretionary appeals to a state’s highest court. Ross v.
Moffitt, 417 U.S. 600, 610 (1974). Therefore, the failure of discretionary review counsel
to raise Petitioner’s Fifth Amendment claim cannot serve as cause to excuse the
procedural default of that claim.
As to Claim Three, because Respondent did not move for dismissal of this claim
on procedural default grounds, but instead on the incorrect assertion that Claim Three was
not an available ground for relief in this federal habeas action, Petitioner was not on
notice that he should attempt to show cause and prejudice for the procedural default of
this claim. Therefore, Petitioner shall have 21 days after entry of this Order to file a brief
setting forth any grounds that he believes establish cause and prejudice to excuse the
procedural default of Claim Three.3
The Court now turns to Petitioner’s argument that cause exists under Martinez to
excuse the procedural default of his claims of ineffective assistance of trial counsel.
ii.

Martinez Cause and Prejudice

Because the Martinez exception applies only to IAC claims, the only defaulted
claim to which it might apply is Claim Five, including its sub-claims. See Hunton v.
Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (declining to apply Martinez to a Brady

3

Because Claim Three is not an ineffective assistance of counsel claim, Martinez v. Ryan
cannot be used to establish cause and prejudice as to that claim. See Hunton v. Sinclair, 732 F.3d
1124, 1126-27 (9th Cir. 2013).
MEMORANDUM DECISION AND ORDER 20

claim), cert. denied, Mar. 31, 2014. However, the default of Petitioner’s IAC claims was
not caused by any failure to include the claims in the amended postconviction
petition—but by Petitioner’s failure on appeal to support those postconviction claims
with argument or citation to specific facts. (State’s Lodging F-8 at 8-10.) The United
States Supreme Court has stated definitively that Martinez does not apply to lack of PCR
counsel or to ineffective PCR counsel in “appeals from initial-review collateral
proceedings.” Martinez, 132 S. Ct. at 1318, 1320. Therefore, Petitioner has failed to
satisfy the third prong of the Martinez analysis because the proceeding in which his IAC
claims were defaulted was not the initial review collateral proceeding. See Arnold v.
Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (“Arnold’s multiple ineffective assistance
claims were litigated in his initial-review collateral proceeding, but not preserved on
appeal. Thus, unlike Martinez, Arnold has already had his day in court; deprivation of a
second day does not constitute cause.”) Martinez does not apply to excuse the procedural
default of Petitioner’s IAC claims.
6.

Miscarriage of Justice
The Court now considers the second exception to the procedural default doctrine.

Procedural default is excused if the court’s refusal to hear the merits of the claims would
result in a miscarriage of justice. A petitioner seeking to invoke the miscarriage of justice
exception must establish that he is actually innocent. See Schlup, 513 U.S. at 329 (1995);
Murray, 477 U.S. at 488.

MEMORANDUM DECISION AND ORDER 21

Actual innocence in this context “means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Types of evidence
that can establish factual innocence include credible declarations of guilt by another
person, Sawyer v. Whitley, 505 U.S. 333, 340 (1992), reliable eyewitness accounts,
Schlup, 513 U.S. at 331, and exculpatory scientific evidence, Pitts v. Norris, 85 F.3d 348,
350-51 (8th Cir. 1996). A procedurally defaulted claim may be heard under the
miscarriage of justice exception only if “in light of all of the evidence, ‘it is more likely
than not that no reasonable juror would have found [Petitioner] guilty beyond a
reasonable doubt.’” United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)). Stated another way, it must be more likely
than not that every reasonable juror would vote to acquit.
Petitioner has not met the heavy burden of showing that he is actually innocent.
His bare statements that a miscarriage of justice will result are insufficient. Petitioner
simply has not established that, more likely than not, every reasonable juror would vote to
acquit.
CONCLUSION
Claims Two, Three, Five, and Six of the Amended Petition are procedurally
defaulted. Because Petitioner has not established that he is excused from the default of
Claims Two, Five, or Six, those claims will be dismissed. Petitioner shall have 21 days
from the date of this Order to establish cause and prejudice for the procedural default of

MEMORANDUM DECISION AND ORDER 22

Claim Three.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Appointment of Counsel (Dkt. 25) is DENIED.

2.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 21) is
GRANTED IN PART. Claims Two, Five, and Six of the Petition are
DISMISSED with prejudice.

3.

Petitioner shall have 21 days after entry of this Order to file a brief showing
cause and prejudice to excuse the procedural default of Claim Three. The
brief shall not exceed 10 pages. If Petitioner does not timely file a brief, or
if Petitioner’s brief does not establish cause and prejudice, Claim Three will
be dismissed with prejudice.

DATED: April 8, 2014

Honorable Mikel H. Williams
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER 23