Carr v. Carlin

Filing 75

MEMORANDUM DECISION AND ORDER denying 45 Motion for Order to Show Cause; denying 46 Motion for Summary Judgment; denying 47 Motion for Reconsideration re 3 Petition for Writ of Habeas Corpus filed by Jody R.O. Carr ; denying 48 Motion for Hearing; denying 49 Motion to Expand the Record; granting 55 Motion for Extension of Time to Answer ; granting 61 Motion to Strike ; granting 62 Motion for Extension of Time to File Response/Reply re 3 Petition for Writ of Habea s Corpus ; denying 63 Motion Objecting to Respondent's Second Motion for Extension of Time. The Petition for Writ of Habeas Corpus 3 is DENIED and DISMISSED with prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JODY CARR,
Petitioner,
v.

Case No. 3:10-cv-00237-EJL
MEMORANDUM DECISION AND
ORDER

WARDEN CARLIN,
Respondent.

By Order of March 1, 2012, the Court dismissed several of Plaintiff’s claims on
procedural grounds, leaving the following claims for adjudication on the merits: Claims
2(b), 3(b), 4(b), 4(c), 5(a) (due process theory only), 6, 7, 10, 13 (due process theory
only), 15(b) (due process theory only), 19 (due process theory only), 24(c), 24(f), and
28(a). (Dkt. 42.)
The Petition for Writ of Habeas Corpus is now fully briefed. (Dkt. 3, 56, 73.)
Respondent seeks dismissal of all of Petitioner’s claims. (Dkt. 56.) Also pending before
the Court are various motions filed by the parties, including a Motion for Summary
Judgment filed by Petitioner. (Dkt. 46.)

MEMORANDUM DECISION AND ORDER - 1

Having reviewed the arguments of the parties, the record in this matter, and 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 the decisional process would not be
significantly aided by oral argument. Therefore, the Court shall decide this matter on the
written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order.
INTRODUCTION
On or about February 4, 2004, Petitioner Jody Carr was arrested on charges of
kidnaping and aggravated battery, in conjunction with the death of S.B., in a criminal case
initiated in the Fifth Judicial District Court in Twin Falls, Idaho. Petitioner eventually
pleaded guilty to first degree murder. He admits that he told two stories about how S.B.
died–one true, and one false. The story that Petitioner told first, and most often, but has
now disavowed, is as follows:
Carr met S.B. at a bar and the two drove to a secluded location to engage in
intercourse. When S.B. exited to the front of the vehicle, Carr ran over her
twice. Carr believed S.B. was dead, and left the scene. Carr returned the
next morning to make sure he did not leave any evidence and ran over
S.B.’s body a third time to make sure she was not still alive. Carr fled to
California with his family and was later arrested and returned to Idaho.
(State’s Lodging D-4, p. 1.)
In the course of the nine years following S.B.’s death, Petitioner has added many
intricately-detailed subplots to his other story of innocence, which he first told detectives
of February 16, 2004. Today, he would have the courts believe that nearly all of the

MEMORANDUM DECISION AND ORDER - 2

government officials who have had a hand in his investigation, incarceration, prosecution,
and court actions are engaged in a conspiracy against him, a conspiracy that centers on his
best friend, Caleb Casey, who allegedly raped and killed S.B., after Petitioner and S.B.
sought methamphetamine from him. Petitioner now alleges there are “[p]robably more
than a hundred felonies and federal crimes by the State Actors in this case.” (Dkt. 73, p.
4.) Many of Petitioner’s assertions of widespread foul play are contradictory and
implausible.
The Court concludes that Petitioner is not entitled to have his procedurally
defaulted claims heard, that he is not entitled to expand the record on the merits of his
claims, and that he is not entitled to federal habeas corpus relief.
FACTUAL BACKGROUND AND PETITIONER’S
ASSERTIONS OF ACTUAL INNOCENCE
It has been one year since the Court last reviewed Petitioner’s case. (Dkt. 42.) This
section reviews the factual background relevant to the motions and claims now at issue.
Because Petitioner’s allegations of actual innocence are the basis for his motions and
most of his claims, this section also reviews and reconsiders the Court’s analysis on
whether Petitioner is actually innocent.
The law permits a federal court to review the merits of a procedurally defaulted
claim if a petitioner can demonstrate that failure to consider the claim will result in a
“fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494 (1991). A
miscarriage of justice means that a constitutional violation has probably resulted in the

MEMORANDUM DECISION AND ORDER - 3

conviction of someone who is actually innocent. Murray v. Carrier, 477 U.S. 478, 496
(1986). To show a miscarriage of justice, Petitioner must make a colorable showing of
factual innocence, Herrera v. Collins, 506 U.S. 390, 404 (1993); Coley v. Gonzales, 55
F.3d 1385, 1387 (9th Cir. 1995), supporting his allegations of constitutional error with
new reliable evidence that was not presented at trial, Schlup v. Delo, 513 U.S. 298, 324
(1995). For example, types of evidence “which may establish factual innocence include
credible declarations of guilt by another, see Sawyer v. Whitley, 505 U.S. 333, (1992),
trustworthy eyewitness accounts, see Schlup, 513 U.S. at 331, and exculpatory scientific
evidence.” Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir. 1996).
Where the defendant pleaded guilty and did not have the evidence in his case
evaluated by a jury, the petitioner must show that, based on all of the evidence, “it is more
likely than not that no reasonable juror would have found Petitioner guilty. . . .” Van
Buskirk v. Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001), citing Schlup v. Delo, 513 U.S.
at 327; Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003) (leaving open the question of
whether AEDPA raised the Schlup “more likely than not” standard to a “clear and
convincing evidence” standard).
On February 4, 2004, when the warrant was issued for the arrest of Petitioner for
kidnaping and aggravated battery, San Bernardino County Deputy Sheriff Jerry Hughes
arrested Petitioner in California. (State’s Lodging A-4, pp. 2-3.) On February 5,
2004,Twin Falls Police Department Detective Curtis Gambrel arrived in California. He
gave Petitioner a Miranda warning and interviewed him. At that time, Petitioner told
MEMORANDUM DECISION AND ORDER - 4

Gambrel that, on the night in question, he was very drunk and had consensual sex with
S.B. Afterward, S.B. exited the car and took off one leg of her pants and underwear to
urinate. Petitioner revved up the car, but it lunged forward when his foot slipped off the
clutch, whereupon he accidentally ran over S.B. Confused, he made a U-turn to try to find
her, and accidentally ran over her again. At that time, he determined that she was dead,
and he drove away. He returned to the scene the next morning, and, believing she might
be still alive and suffering, ran over her a third time to liberate her spirit from her body.
(Id., pp. 3-4 & Exhibit, Report of Jon F. Burke, Ph.D.)
On February 10, 2004, Gambrel interviewed Petitioner a second time in the San
Bernardino County Jail. Petitioner related essentially the same story. (State’s Lodging A4, p. 4.) Petitioner was then transported to the Twin Falls County Jail.
On February 16, 2004, Gambrel interviewed Petitioner a third time, whereupon
Petitioner substantially changed his story and said that his best friend, Caleb Casey, gave
Petitioner and S.B. some methamphetamine because S.B. had requested drugs; Petitioner
and S.B. had consensual sex; Casey then tried to rape S.B.; a small fight broke out; and
then Casey pushed S.B. out the car door and ran over her twice. Petitioner said he
returned to the scene the next day to look for bottles and evidence, and saw S.B. lying
face up, but did not run over her. (Id., p. 5.)
Caleb Casey was interviewed by Detective Gambrel and Deputy Kelly Hassani on
February 16, 2004, and Casey denied having anything to do with the death of S.B.
(State’s Lodging A-4.) Petitioner was re-interviewed on February 16, 2004, at which time
MEMORANDUM DECISION AND ORDER - 5

he said he had lied about Casey and again told substantially the same story about the
accidental death of S.B. and running over her three times. (Id.)
Petitioner told law enforcement officers where to search for S.B.’s body. She was
found after several days, covered in snow, with her pants entirely off her left leg and
bunched around her right ankle. (State’s Lodging A-4, pp. 5-6.) S.B.’s autopsy revealed
that she had several non-fatal blunt trauma wounds consistent with being hit and run over
by a car, and that all of the wounds were suffered while she was alive. (State’s Lodging
A-2, p. 15. ) She was believed to have survived for several hours after the wounds were
inflicted, because she died of exposure rather than trauma. (State’s Lodging A-4 p. 6; A2, p. 13 (The coroner testified: “If somebody found her and had taken her to the hospital,
she would have survived.”).) S.B. had no illegal drugs in her system. (State’s Lodging A4, p. 5.)
The car Petitioner was driving when he fled to California was towed from
California to Idaho, searched, inventoried, and held as evidence for a short time. (State’s
Lodgings A-1, pp.37-38; C-1, p.166.) Officers created a detailed inventory list of items
found in the car, and photographed many of the items. (State’s Lodging A-1, pp. 204-05.)
Petitioner told his family that “exculpatory” evidence was hidden in the car. When
Petitioner’s family attempted to retrieve or search the car several weeks later, they found
it had been crushed at an Idaho junkyard. (State’s Lodging C-1, p. 143.)
Petitioner was charged with first degree murder. The court originally appointed the
public defender to represent Petitioner. (State’s Lodging A-1, p.21.) However, private
MEMORANDUM DECISION AND ORDER - 6

counsel Greg Fuller appeared on behalf of Petitioner on March 9, 2005, four months prior
to trial. (State’s lodging A-4, pp.5-6, 49.)
Petitioner remained in custody at the Twin Falls County Jail for approximately 15
months where he alleges the conditions of confinement were unbearably harsh. His trial
was continued several times on his request. Judge Hohnhost was the presiding judge who
made nearly all of the rulings in Petitioner’s case. Judge G. Richard Bevan presided over
Petitioner’s change of plea hearing, sitting in for Judge Hohnhost. (State’s Lodging A-1,
p. 84; A-3.)
On June 24, 2005, just after the parties began to take preliminary steps to select a
jury, Petitioner pleaded guilty to the first degree murder charge, to try to reduce the
possibility of a fixed life sentence, under a plea agreement that limited the State to
arguing that the maximum sentence should be thirty years fixed, with life indeterminate.
(State’s Lodging A-3, p. 8-9.)
At the sentencing hearing, Dr. Jon Burke, a clinical psychologist, testified on
behalf of Petitioner. Dr. Burke met with Petitioner four times and spent approximately 10
hours evaluating Petitioner. (State’s Lodging A-2, p. 29.) Petitioner told Dr. Burke that he
ran over the victim three times, the last time to release her spirit, based on Petitioner’s
religious beliefs. Dr. Burke questioned Petitioner very closely about his beliefs. (Id., p.
32.) Dr. Burke noted: “what was impressive to me is that [Petitioner’s] story was
relatively consistent from beginning to end from the time I saw him on the 25th of May to
the [last time on the 20th of June]. He seemed fairly consistent.” (Id., p. 64.)
MEMORANDUM DECISION AND ORDER - 7

Based on his interviews, Dr. Burke opined that Petitioner’s acts “were motivated
by opportunity and alcohol and poor judgment.” (Id.) Petitioner’s step-father, Wayne
Bayse, agreed with Dr. Burke at the sentencing hearing that it was “Jody’s stupidity”– the
fact that “his mind doesn’t work like everybody else’s mind”–not an ill motive, that
caused him to kill S.B. (State’s Lodging A-2.)
Judge Hohnhost sentenced Petitioner to a unified life sentence with twenty-five
years fixed. (State’s Lodging A-1, pp. 92-93.) The judgment of conviction was entered on
October 17, 2005. (Id.) Petitioner’s only issue on appeal was that his sentence was
excessive. Petitioner’s appellate brief relied on his confession of having killed S.B. and
returned to her body to run over her a third time to release her spirit. (State’s Lodging B1.)
In this action, Petitioner adamantly proclaims his innocence, disclaiming all of his
confessions, including those made to detectives, Dr. Burke, Judge Bevan, Judge
Hohnhost, and S.B.’s family. The remainder of this section summarizes his allegations
supporting his claim of innocence. While actual innocence is not a cognizable habeas
corpus claim, Petitioner’s claims of innocence are important, because they are tied to all
of his claims in some manner.
Petitioner alleges that he and S.B. went to Caleb Casey’s home because S.B.
wanted methamphetamine; that Casey raped and killed S.B.; and that the next day,
Petitioner went back to the scene to pick up evidence, and saw S.B.’s body lying face up.
Some of the physical evidence is contrary to Petitioner’s story that Casey Caleb
MEMORANDUM DECISION AND ORDER - 8

killed S.B. Photographs of the body frozen in the snow demonstrate that S.B.’s body was
lying face down, not face up. (State’s Lodgings A-7, A-8, A-9.) S.B.’s autopsy showed
she had no methamphetamine in her system, contradicting Petitioner’s story that they
went to Casey’s home to obtain methamphetamine for S.B. (State’s Lodging A-4, p. 5.)
In 2009, four years post-judgment, Petitioner learned that Detective Gambrel was
under investigation for being involved in a conspiracy of fraudulently obtaining
prescription pain killers with Nurse Practitioner Jan Sund. At that time, Petitioner used
that information to supplement his Caleb Casey story. Petitioner’s re-vamped story
alleged existence of a widespread conspiracy spanning from Twin Falls, Idaho to San
Bernardino County, California, including the following: Detective Gambrel was under the
influence of prescription opiates when he interviewed Petitioner. Gambrel was
participating in a criminal drug-fraud and conspiracy ring, and was associated with Caleb
Casey (although Detective Gambrel’s scheme arose from prescription pain killers that
were obtained through a pharmacy and then returned to the prescribing nurse, and Casey
apparently sold methamphetamine, which appear unrelated). Gambrel framed Petitioner
for the murder through his drug crime ring. Wayne Basye, Petitioner’s step-father, adds to
this version of events, by commenting that Caleb Casey’s live-in girlfriend used the type
of drugs that were involved in the Sund-Gambrel prescription drug fraud conspiracy.
(Dkt. 34, Exhibit 3000-500.)
Key to Petitioner’s claims of prosecutorial and police misconduct in this case is
Petitioner’s allegations that a box of jewelry and exculpatory items was given to police
MEMORANDUM DECISION AND ORDER - 9

officers, who then lost, redistributed, or destroyed the evidence. The contents of the box,
and the facts surrounding it, have constantly changed.
In an Affidavit of August 16, 2007, Petitioner’s step-father, Wayne Basye,
declared: “We did however find a box of jewelry which we gave to Detective Gambrel
while he was in our home. We did not know where the jewelry had come from. (Id.,
Exhibit 100-C (emphasis added.) Two years later, in an Affidavit of August 16, 2009,
Wayne Basye said, not that he “found” a box of jewelry, but that the box had been given
to Petitioner’s parents by Petitioner’s wife; instead of not knowing where it came from,
Basye now said that Petitioner’s wife had told them that “Caleb Casey and [Petitioner]
had gotten it.” (Id., Exhibit 3000-200.) In an Affidavit of October 7, 2009, Petitioner’s
step-father, Wayne Bayse, had even more details about the box and the origin of its
contents: this time it was “a box of jewelry and miscellaneous items which were taken
from Samuel’s Jewelry in Twin Falls Idaho during a robbery involving Jody Carr and
Caleb Casey.” (Dkt. 34, Exhibit 3000-500 (emphasis added).) In the same Affidavit,
Bayse states that, when he asked the police department for a list of the contents, he
received only a list of luxury jewelry, but that “the box that we presented to Gambrel only
had a couple of pieces of jewelry, coins, baseball cards and small knives and other small
but not expensive items.” (Id.)
Petitioner asserts that the jewelry was handled by Casey right after the murder of
S.B., and Casey left his fingerprints and S.B.’s blood on the jewelry. He alleges that Twin
Falls Detective Bill Hanchey gave the jewelry back to Samuel’s Jewelers because he
MEMORANDUM DECISION AND ORDER - 10

wanted to cover up the crimes of Gambrel and other Twin Falls police officers. (Dkt. 34,
Exhibit 6004, Petitioner’s state petition for writ of habeas corpus, and Exhibit 3000-500,
Basye Affidavit.) Petitioner alleges that the jewelry was a pay-off from Casey to
Petitioner for his silence regarding the murder, and that some of the jewelry “had to have
come from Caleb Casey to Gambrel as further ‘pay-off’ as it was not in the ‘box’ when
Petitioner’s parents gave it to Gambrel.” (Dkt. 34, Exhibit 6004, p. 11.) Petitioner alleges
that the items in the box belonged to Caleb Casey’s business partners and associates, and
could have been used at Petitioner’s trial to show a pattern or habit of criminal behavior,
assisting “in building a defense for Petitioner and proving the guilt of Caleb Casey to
multiple crimes including the murder.” (Id. at p. 12.)
In an amended version of the state petition for writ of habeas corpus (Dkt. 34,
Exhibit 6001), Petitioner elaborates on the conspiracy story. He specifies that the box of
jewelry contained “hundreds of thousands of dollars worth of assorted rare, antique, and
ancient monies, rare and ancient coins, and a large hoard of jewelry,” many of which
were stolen from Samuel’s Jewelry, the Kimberly/Eastland auction house, and the Main
Street antique store. The box also contained items that had been acquired by Petitioner
throughout the course of his life. Elsewhere, Petitioner describes the box as containing
“jewelry and other valuables worth approximately half a million dollars.” (Petition, Dkt.
3, p. 9.) This, of course, stands in contrast to his step-father’s statement, that the box
contained only a couple of pieces of jewelry, coins, baseball cards, small knives, and
other small but non-expensive items.
MEMORANDUM DECISION AND ORDER - 11

Another implausible chapter in Petitioner’s story is that he alleges he had hidden in
his car a videotape of Caleb Casey confessing to the murder of S.B. and threatening the
lives of Petitioner and his family if Petitioner were to “snitch.” (Petition, Dkt. 3, p. 19.)
Petitioner told his step-father that the hidden videotape was his “ace in the hole.” (Dkt.
34, Exhibit 3-000-200.) However, if Petitioner had such evidence, surely he would have
pointed authorities to it immediately– to help protect his family–the first time he told the
Caleb Casey story. In addition, Petitioner has never clearly outlined: (1) the details of the
conversation on tape; (2) why Casey confessed; (3) when Casey confessed; (4) where
Casey confessed; (5) which video camera Petitioner used; and (4) how Petitioner was able
to hold a conversation with Casey and at the same time surreptitiously capture it on
videotape. Petitioner alleges that the car involved in the killing was crushed to hide
evidence of Casey’s involvement. (However, there is no evidence in the record from the
junkyard operator or any law enforcement officer regarding why the car was crushed.)
Petitioner further alleges he told Detective Gambrel the false confession story
because he had been instructed to do so by the actual guilty party, and it was the only
thing he could do to keep himself and his family safe. Petitioner had been arrested in San
Bernardino County in California, which he alleges is the “hometown” of Caleb Casey.
Petitioner “had to admit to the crime and give the false testimony due to the fact that the
guilty party was a long term drug manufacturer and dealer and that many of the officers in
San Bernardino were corrupt and on the guilty party’s payroll.” Petitioner alleges that the
26-year-old guilty party has millions of dollars and no job, but owned a $300,000 home in
MEMORANDUM DECISION AND ORDER - 12

Idaho and a home in southern California, both of which were filled with millions of
dollars of belongings. Petitioner alleges that Caleb Casey quickly sold his house and left
town to avoid being held responsible for the murder of S.B.
Petitioner told Gambrel that the guilty party was paying one of the local law
enforcement officers to keep the heat off of himself, and Gambrel told Casey that Officer
Hassani (who helped interview Casey) was an ex-San Bernardino officer who moved to
Twin Falls, and that Petitioner should not trust Hassani. (Id., pp. 7-9.)
Yet another theory proffered by Petitioner is that, after Petitioner found out that
Gambrel told Caleb Casey that Petitioner had implicated Casey as the murderer,
Petitioner decided he had to take the blame for S.B.’s death to protect his wife’s and
children’s lives, and so he returned to the story of his original confession and disavowed
the Caleb Casey story. (Id., p. 9.) This theory makes little sense. If Petitioner truly was
concerned about protecting his family, he does not explain why he simply did not keep
the Caleb Casey story secret or provide the videotape to officers immediately to ensure
that Casey would be arrested and not released on bond. Instead, Petitioner attempted to
lay blame on Caleb Casey as soon as Petitioner was returned to Twin Falls from
California. Petitioner alleges that, once he was imprisoned, he felt “safe” to go after
Casey, but this reasoning is nonsensical, given that Casey had allegedly threatened
Petitioner’s family, and they were now left alone with Casey in the outside world while
Petitioner was safely imprisoned. The record tends to show that Petitioner periodically
revealed the “secret” that Casey murdered S.B. to attempt to gain his personal freedom,
MEMORANDUM DECISION AND ORDER - 13

which means that Petitioner paved the way several times for Caleb Casey to harm
Petitioner’s family while he remained at large.
If the foregoing theories were not enough, Petitioner told yet another tangential
tale that is related to the overall conspiracy claim–Petitioner alleges that his conditions of
confinement were made so difficult by jailors that it forced him, an innocent man, to
plead guilty to first degree murder. The Court takes judicial notice that Petitioner was not
able to present sufficient evidence in his conditions-of-confinement claims to overcome
summary judgment in a federal civil rights action about the Twin Falls County Jail
conditions, Carr v. Tousley, Case No. 1:06-cv-00125-JLQ. (See Dkt. 171 in Case No.
1:06-cv-00125-JLQ.)
Petitioner makes much ado about the fact that his attorneys failed to submit in
post-conviction proceedings the many affidavits of other inmate he had gathered that
discuss the poor living conditions at the Twin Falls County Jail (Dkt. 34, Exhibit 6004).
However, he has yet to explain whether jailors were using the conditions to pressure all
inmates to plead guilty in all criminal cases, or whether any other inmate has alleged that
the conditions were so poor that he felt compelled to plead guilty so he could be
transferred to the state penitentiary, rather than profess his innocence to a felony charge.
Even if one can make sense of Petitioner’s elaborate web of events and
circumstances that caused him to plead guilty though innocent, it pales in comparison to
the number of different times and different contexts in which Petitioner admitted
responsibility for S.B.’s death, including: (1) in the first pretrial confession; (2) in the
MEMORANDUM DECISION AND ORDER - 14

third pretrial confession; (3) in discussions with his lawyer;1 (4) during a psychological
interview by Dr. Jon Burke; (5) in the presentence investigation report;2 (6) during the
change-of-plea colloquy, when the Court questioned Petitioner under oath about having
committed the killing (A-2, pp. 143-144); and (7) during the sentencing hearing, when
Petitioner again asserted under oath that he killed S.B., and he apologized to her family.
After the prosecution played for the sentencing judge the second police interview
with Petitioner, where Casey was blamed for the murder (with the prosecution’s purpose
to show that Petitioner lied and did not want to take responsibility for the killing at that
time), Petitioner voluntarily stated the following at the sentencing hearing when given an

1

At the plea colloquy, Petitioner’s attorney answered the court’s question as to whether
the in-custody statements were constitutionally valid, and Petitioner’s attorney responded:
Yes, there were several [in-custody statements]. They were videotaped
and they were audiotaped and we have been though those many times and
discussed them many times and I feel that everything, the totality of the
circumstances, the facts brought out by those would justify his plea at this time.
(State’s Lodging A-3, p. 11.)
2

The Presentence Investigation Report states:

Jody told me that he has always gotten himself out of trouble in the past
by lying, cheating, running or even buying his way out. He said he knew from the
second this crime occurred that there was no way out and he said he did not know
how to deal with the incident.
***
The Defendant advised he did not expect to be charged with Murder in
this incident, and he said that he tried to lie his way out when he was initially
charged. The defendant said that he made up a story about his friend, Caleb, as he
said he was “still tripping and not ready to deal with the loss of a life.” He also
said that he tried to “snitch” his way out as well so that he could be “cut some
slack.” he admitted that he also considered escaping from the jail at a time so that
he would not be held accountable.” (State’s Lodging A-4, p. 18.)
MEMORANDUM DECISION AND ORDER - 15

opportunity to speak:
The Court:

Mr. Carr, do you wish to say anything?

Petitioner:

Yes, sir. I can’t face it. I wish I could. I’m sorry isn’t
going to cut nothing. I had a very bad accident. I ran
from that out of fear and in a cowardly fashion. I’m
sorry. I can’t make it better. I just – there was times
that I lied to the detective because I just got off the
phone with my kids and they were crying for me to
come home. I can’t send [S.B.] home to her kids. I
tried real hard in life even though a lot of my decisions
were stupid. I don’t know all the panic disorder stuff
and all that kind of stuff. I do know that in a blink of
an eye something can happen sometimes where you
can’t undo it. I had no idea that she was alive and I just
ran to save my own children. I didn’t think anything
about her or anyone else. I wish I could fix it. I can’t.
I’m sorry to her family. I’m sorry to my family, and
that’s all I really have.

(State’s Lodging A-2, pp. 143-44.) While at sentencing Petitioner told the judge and
S.B.’s family that he made up the Caleb Casey story in order to get out of jail and return
to his children, he now asserts that threats from Casey, his conditions of confinement, and
his feelings after talking to his children prompted him make up the accidental death story.
Petitioner had every opportunity to tell his lawyer and the Court that jailors
purposely were making his conditions of confinement so difficult that he would plead
guilty, and that he did not accidentally kill S.B., but rather Caleb Casey killed her. But
Petitioner reiterated again and again his responsibility for the crime. During the plea
colloquy, the following discussion occurred:
The Court:

Is there or are you suffering from any mental or
psychological problems that make it hard for you to

MEMORANDUM DECISION AND ORDER - 16

understand these proceedings?
Petitioner:

No, sir.

The Court:

Is there anything else going on in your life that affects
your ability to make a reasoned and informed decision
today?

Petitioner:

No, sir.

The Court:

Have you had enough time to discuss this matter with
Mr. Fuller [Petitioner’s counsel]?

Petitioner:

Yes, sir.

The Court:

Have you had adequate access to your lawyer to
discuss the law and the facts of this case?

Petitioner:

Completely.

The Court:

Has your attorney explained the rights that you’re
giving up by this plea of guilty?

Petitioner:

Yes, sir.

The Court:

Has he talked about defenses that you could present to
the charge?

Petitioner:

Yes, sir, he has.

The Court:

Is there anything you’ve wanted your attorney to do for
ask him to do to help you with your case that he hasn’t
done?

Petitioner:

No, sir, not at all.

The Court:

Are you satisfied with your attorney’s representation?

Petitioner:

Completely.

The Court:

Have you gone over discovery with your attorney?

MEMORANDUM DECISION AND ORDER - 17

Petitioner:

Yes, sir.

The Court:

Did you understand what was discussed?

Petitioner:

Yes, sir.

The Court:

Do you request any additional discovery be done in your
case?

Petitioner:

No, sir, I do not.

(State’s Lodging A-3, pp. 6-7.)
Regarding the voluntariness of Petitioner’s plea, the following was discussed at the
change of plea hearing:
The Court:

Has anyone threatened you or anyone close to
you in order to get you to enter a plea of guilty
here today?

Petitioner:

No, sir.

The Court:

Is your decision to plead guilty a voluntary decision?

Petitioner:

Yes, sir, it is.

(State’s Lodging A-3, p. 10.)
Regarding the underlying facts supporting the guilty plea, Petitioner, who was
under oath, elaborated on the incident as follows:

The Court:

Tell me why you’re guilty.

Petitioner:

Your Honor, I had an accident and then after the
accident, not being in my right state of mind, which I
hope that later on the court will take into consideration,
I willingly ran over the defendant, the victim.

MEMORANDUM DECISION AND ORDER - 18

The Court:

Willingly ran over her as you were operating a motor
vehicle?

Petitioner:

Yes, sir.

The Court:

And this was [S.B.]?

Petitioner:

Yes, sir, it was.

The Court:

And you did willfully with premediation –

Petitioner:

Yes, sir.

The Court:

– run over her?

Petitioner:

Yes, sir.

The Court:

And this was in a remote location in the middle of the
night?

Petitioner:

It was the next morning, sir, but yes, it was a remote
location.

(Id., pp. 13-14.)
Specifically as to cases in which convicted felons challenge their guilty pleas, the
United States Supreme Court stated:
[T]he representations of the defendant, his lawyer, and the
prosecutor at [a plea] hearing, as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a strong
presumption of verity. The subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
In this case, Petitioner took responsibility not once, but at least seven times,

MEMORANDUM DECISION AND ORDER - 19

including in the most solemn of circumstances under oath–the change-of-plea colloquy
and at sentencing when addressing S.B.’s surviving family members. Petitioner also
admitted several times that the Caleb Casey version was a lie, crafted to gain Petitioner’s
freedom. In addition, he stated that, generally, he had always gotten himself out of trouble
in the past by lying, cheating, running or even buying his way out. (State’s Lodging A-4,
p. 18.)
The Court previously determined that the entire record, including Petitioner’s
submissions that have been admitted only in the procedural default context, contained
insufficient evidence to show actual innocence to excuse the default of Petitioner’s claims
and that Petitioner failed to show that it is more likely than not that no reasonable juror
would have found Petitioner guilty if he had proceeded to trial. Another long, hard look at
the record at this stage of proceedings leads the Court to the same conclusion.
The Court now proceeds to consider Petitioner’s motion to reconsider the
procedural default of four of his claims, the motion to expand the record, and the merits
of the remaining claims.
REVIEW OF PENDING NON-DISPOSITIVE MOTIONS
In the Order of March 1, 2012, the following claims were determined to be
procedurally defaulted: Claims 1, 2(a), 2(c), 3(a), 4(a), 5(b), 8, 9, 11, 12, 13(b), 13(c),
13(d), 14, 15(a), 15(c), 16, 17, 18, 20, 21, 22, 23, 24(a), 24(b), 24(d), 24(e), 25, 26, 27,
28(b), 28(c), 29, and 30. (Dkt. 42.) The Court also determined that Petitioner had failed to
show that either the cause and prejudice or the miscarriage of justice exceptions should be
MEMORANDUM DECISION AND ORDER - 20

applied to excuse the default of his claims. (Dkt. 42, pp. 27-29.)
1.

Petitioner’s “Motion to Show Cause and Plea to Excuse State Remedy,
Exhaustion Requirement” (Dkt. 45)
A.

Standard of Law

The Court has not yet issued a final order in this case. “As long as a district court
has jurisdiction over the case, then it possesses the inherent procedural power to
reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.”
City of Los Angeles, Harbor Division v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th
Cir. 2001) (internal citation omitted). On reconsideration, the courts may correct “simple
mistakes,” as well as alter “decisions based on shifting precedent, rather than waiting for
the time-consuming, costly process of appeal.” U.S. v. Martin, 226 F.3d 1042, 1049 (9th
Cir. 2000). However, while a court “has the power to revisit prior decisions of its own . . .
as a rule courts should be loathe to do so in the absence of extraordinary circumstances
such as where the initial decision was ‘clearly erroneous and would work a manifest
injustice.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)
(citation omitted).
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 v. Carrier, 477 U.S. 478, 488
(1986).
A petitioner does not have a federal constitutional right to effective assistance of

MEMORANDUM DECISION AND ORDER - 21

counsel during state post-conviction 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 his counsel during the post-conviction action cannot serve as a basis
for cause to excuse Petitioner’s procedural default of his claims. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991).
The holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), established a “limited
qualification” to the Coleman rule. Id. at 1319. In Martinez, the court held that inadequate
assistance 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
(emphasis added). The Martinez Court explained that the limited exception was created
“as an equitable matter, that the initial-review collateral proceeding, if undertaken without
counsel or with ineffective counsel, may not have been sufficient to ensure that proper
consideration was given to a substantial claim.” Id. at 1318.
To show “prejudice” to excuse the procedural default of a claim, 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.

Petitioner’s Claims at Issue

Petitioner’s 80-page “Motion to Show Cause and Plea to Excuse State Remedy,
Exhaustion Requirement” (Dkt. 45) requests reconsideration of the decision on
MEMORANDUM DECISION AND ORDER - 22

procedural default as to Claims 2(a), 2(c), 4(a) and 21. (Dkt. 42.) The content of the four
claims are as follows: Claim 2(a)&(c) are that detectives were involved in
drug/conspiracy ring and detectives and prosecutor concealed exculpatory evidence;
Claim 4(a) is that the detective and sheriff’s deputy violated Petitioner’s right to an initial
appearance; and Claim 21 is that Judge Bevan, who presided at the change-of-plea
hearing, was also Petitioner’s attorney. Important to the procedural default analysis is that
none of these claims is an ineffective assistance of trial counsel claim, and, thus, Martinez
is inapplicable.
C.

Petitioner’s Post-Conviction Counsel, his Request to Proceed Pro Se, and
Lack of a Showing of Prejudice

Petitioner alleges that various defects in the post-conviction proceedings beyond
his control caused the default of his four claims. Petitioner filed his application for postconviction relief pro se on March 17, 2006, and he filed a motion for appointment of
counsel. (State’s Lodging C-1, pp. 121-124.) The Court appointed Counsel Marilyn Paul
of the Public Defenders’ Office. (Id., p. 127.) Because of a conflict, Thomas Kershaw was
next appointed to represent Petitioner in the same matter. Mr. Kershaw filed several
pleadings and papers on Petitioner’s behalf, including a response to the Court’s notice of
intent to dismiss and several affidavits to support the application. (Id.)
Judge Hohnhost, the presiding district judge, passed away in February 2007.
(State’s Lodging C-1, p. 184.) In an unrelated court appointment to the bench, Mr.
Kershaw became a magistrate judge in August 2007. As a result, Attorney Tim Williams

MEMORANDUM DECISION AND ORDER - 23

was asked to find new counsel for Petitioner to replace Mr. Kershaw. (Id.)
Petitioner also asked for new counsel to be appointed on September 25, 2007.
(State’s Lodging C-1, p. 170.) A letter from Attorney Tim Williams to Judge Stoker
stated that he had asked many attorneys to take Petitioner’s case, but all had declined.
(Id., p. 171.) Anthony Valdez was eventually appointed to represent Petitioner, and Mr.
Valdez was given additional time to respond to the notice of intent to dismiss. (Id., p.
185.) At a status conference, Mr. Valdez indicated to the Court that he did not wish to
submit anything further. (Id.)
On December 10, 2007, Petitioner asked the court to hold an evidentiary hearing.
(Id., p. 175.) He also asked the court for permission to proceed pro se. (Id., p. 176.)
Judge Randy J. Stoker, successor to Judge Hohnhorst, dismissed the postconviction application on April 10, 2008. (Id., pp. 181-193.) In that order, he denied
Petitioner’s motion for an evidentiary hearing and motion to proceed pro se. (Id.)
Petitioner asserts that it was his “Right as an American Citizen” to proceed pro se
in his post-conviction action. (Dkt. 45, p. 2.) While the right to self-representation is not
absolute, the Court considers the course of Petitioner’s counsel’s handling of the postconviction case and Petitioner’s requests to proceed pro se. Petitioner alleges that when
he attempted to file over 700 pages of evidentiary exhibits with the state district court,
Mr. Kershaw “intercepted and stole” the exhibits. Petitioner alleges that the exhibits were
never presented to the state court in an amended petition, but that Mr. Kershaw filed only
two affidavits. (Id.) Petitioner alleges that he was forced to proceed pro se because the
MEMORANDUM DECISION AND ORDER - 24

exhibits were not filed or returned to Petitioner by Mr. Kershaw, who withdrew from his
case because Mr. Kershaw did contract work for the Twin Falls Sheriff’s Department
(rather than because Mr. Kershaw was appointed a magistrate judge). (Dkt. 34, Exhibits
5000-F and -E.)
Petitioner also alleges that Mr. Valdez refused to file the exhibits, saying that they
would later be presented at an evidentiary hearing, and Mr. Valdez stole exhibits from
Petitioner. (Dkt. 34, Exhibit 2000-M.) The exhibits were never presented to the court,
and, as noted above, the entire post-conviction case was dismissed.
Petitioner asserts that eventually he received all of his exhibits back. Petitioner has
not shown how the missing exhibits led to the procedural default of his four claims, which
were deemed defaulted here because the claims were not included in the petition for
review, not for another reason, including lack of exhibits. (See Order at Dkt. 42.) In any
event, Petitioner’s argument boils down to a claim that Attorneys Kershaw and Valdez,
both post-conviction counsel, were ineffective because they failed to submit all of the
exhibits Petitioner wished to submit. However, under Coleman and Martinez, ineffective
assistance of post-conviction counsel cannot be used as cause for the procedural default
of any claims except ineffective assistance of trial counsel claims. Petitioner is not asking
for reconsideration of any such claims. Accordingly, the actions of these attorneys in
failing to use additional exhibits in support of Petitioner’s post-conviction application or
failing to return exhibits to Petitioner cannot excuse the procedural default of the four
claims at issue.
MEMORANDUM DECISION AND ORDER - 25

Petitioner further argues that the state district court caused the default of
Petitioner’s claims because Petitioner was not permitted to proceed pro se in the postconviction case. (Dkt. 45-1, p. 4.) Had Petitioner been able to proceed pro se, he argues,
he would have filed his exhibits, and his four claims would not have been procedurally
defaulted.
First, Petitioner has failed to show any causal link between the missing exhibits
and the failure to bring the four claims at issue in his state court petition for review.
Second, as the Court discusses below, Petitioner has failed to show that prejudice resulted
from the failure to bring these claims, because, even with Petitioner’s added exhibits, his
claims are meritless.
D.

Petitioner’s Allegation that State Courts and their Agents Precluded Him
from Properly Exhausting his Claims

Petitioner argues that he should be excused from exhausting his state court
remedies because he “has done everything in his power to bring 100% of all claims and
exhibits to the state courts, but has been blocked and hindered and thwarted due to []
actions by the courts and their agents.” (Dkt. 45, p. 1.)
Petitioner alleges that Attorney Robin Fyffe, who was appointed to represent him
next in the post-conviction appellate proceedings, told him to file a successive postconviction petition and allege that his post-conviction counsel had been ineffective during
the first post-conviction action. She told him that the successive petition should be filed
as soon as the first post-conviction appeal was completed.

MEMORANDUM DECISION AND ORDER - 26

Petitioner alleges that, on October 4, 2009, or January 6, 2010, he submitted for
filing with the Fifth Judicial District Court a successive application for post-conviction
relief (Dkt. 34, Exhibit 6004) and another state habeas corpus petition. (Dkt. 34, Exhibit
6005.) Both of these filings contained all of the exhibits Petitioner wished to submit.
Petitioner alleges that the state court never responded, but instead acted as though it had
never received the filings (no correspondence to or from the state court about the filing or
status of this action is provided). (Id.) Petitioner alleges that a conspiracy among court
staff and other government employees and officials has caused the filings to disappear.
Petitioner has provided no evidence that he actually mailed (or submitting for
filing) the successive post-conviction petition. Petitioner produced a large set of receipts
for requests for indigent copies, envelopes, and stamps, but the only receipts he submitted
from 2009 and 2010 were from June and July 2009, for “postage,”; April 21, 2010, for a
44-cent stamp; and on May 5, 2010, for one set of copies consisting of 139 pages, and one
large envelope. (Dkt. 70, IDOC kites.) These are all dates that do not correspond with the
alleged mailing of the successive petition–October 4, 2009, or January 6, 2010.
During the pendency of his first post-conviction appeal, Petitioner filed his first
federal habeas corpus petition, on October 17, 2008, in Case No. 1:08-cv-00440-BLW,
Carr v. Henry. In that action, Judge Winmill informed Petitioner that he needed to
exhaust his state court remedies, and, if they had not been exhausted, the case should be
stayed or dismissed. Judgment was entered dismissing the case on June 1, 2009.
The state appellate court opinion affirming dismissal of the post-conviction action
MEMORANDUM DECISION AND ORDER - 27

was filed on October 28, 2009. (State’s Lodging D-4.) Petitioner then filed a “Motion
Requesting Order to File a Criminal Complaint” in the closed federal habeas corpus case.
On March 15, 2010, Judge Winmill denied the motion and informed Petitioner:
“To the extent that Petitioner has now properly exhausted his state court remedies and
intends to file a new Petition for Writ of Habeas Corpus challenging his state court
conviction under 28 U.S.C. § 2254, he shall submit a Petition. . . . If Petitioner is seeking
monetary damages for the conditions of his confinement or other civil rights violations,
the appropriate avenue of relief is in an action brought under 42 U.S.C. § 1983.” (Dkt. 32
in Case No. 1:08-cv-00440-BLW, Carr v. Henry (emphasis added).)
In this action, Petitioner states that, “instead of” receiving a response from the
Fifth District Court about his successive post-conviction petition, he received the Order
from Judge Winmill. It is very unclear why Petitioner believes that the Order from the
federal court arrived “instead of” a state court order, when the two courts and the two
actions are completely independent of one another. Because the statement is nonsensical,
it suggests that perhaps the underlying facts are not true–that Petitioner did not file the
successive post-conviction action in state court.
Another of Petitioner’s statements that suggests that he did not file the successive
post-conviction application is his allegation that the United States Courts “ordered”
Petitioner “to take action out of turn,” reflecting that Petitioner likely filed the federal
action instead of the successive post-conviction action. (Dkt. 45-1, pp. 15-16 (emphasis
added).)
MEMORANDUM DECISION AND ORDER - 28

It appears that, instead of filing his successive post-conviction petition that he had
prepared, Petitioner filed a new federal habeas corpus petition (this action), on May 10,
2010. Petitioner did not mention in his new petition that he had filed a state successive
post-conviction action, nor did Petitioner contest Respondent’s “Lodging of the State
Court Record,” by stating that he had filed a successive petition that was not included in
the record. Rather, in his new petition, Petitioner asserted that he had “new claims” to
bring (which would not be “new” had he filed a successive post-conviction action). The
failure to mention the pending successive post-conviction action early in the new federal
habeas corpus action is in direct contravention of the instructions and statements of the
law on pending state court actions and mandatory exhaustion requirements Petitioner
received from Judge Winmill in the first federal habeas corpus action.
Based on all of the foregoing, the Court concludes that Petitioner has not brought
forward sufficient evidence to show that he filed a successive post-conviction action in
state court that was ignored or destroyed by the state court, rather than adjudicated. As a
result, his state court conspiracy theory does not establish cause for the default of his
claims.
Petitioner also argues that it was improper for Judge Winmill to determine that his
state remedies were exhausted and order him to file a pleading, and that Petitioner later
had to suffer dismissal of his claims because he did not exhaust his state court remedies.
However, Petitioner is mistaken in his view that the Order language meant that Judge
Winmill determined that Petitioner’s state law remedies were exhausted; to the contrary,
MEMORANDUM DECISION AND ORDER - 29

the language “to the extent” is the equivalent of “if.” A determination of whether claims
are properly exhausted does not occur until after a petitioner files a petition containing all
such facts pertinent to that decision, and, often, a response or motion from the respondent
and a copy of the state court record is required. The Order from Judge Winmill does not
provide cause for the default of Petitioner’s four claims.
E.

No Prejudice

After reviewing the record, including the exhibits that were not presented to the
state district court because his attorneys failed to do so, the Court concludes that
Petitioner has not shown that prejudice would result if the Court did not hear the
procedurally defaulted claims, because his claims lack merit. In particular, Petitioner
relies on speculation rather than sufficient evidence for Claims 2(a)&(c), as discussed
above; Claim 4(a) was waived by his guilty plea;3 and Claim 21 is frivolous.4
2.

Petitioner’s Motion for Evidentiary Hearing (Dkt. 48)
Petitioner asserts that, because he never received an evidentiary hearing in state

3

“A valid guilty plea waives all nonjurisdictional defects and defenses, whether
constitutional or statutory, in prior proceedings. See Tollett v. Henderson, 411 U.S. 258, 267
(1973).
4

Petitioner provides a copy of a letter from Hollifield and Bevan, P.A., dated April 8,
2002, in which Richard Bevan, then in private practice, provided contract services to inmates
under the Inmate Legal Assistance Program. The jail was to pay him $100 or $110 an hour.
Richard Bevan was appointed to be a District Judge in the Fifth Judicial Distrct in November
2003. Thus, by the time Petitioner was arrested in 2004, Richard Bevan was a judge, and no
longer a contract attorney, his judgeship having usurped any unfinished portion of the contract to
represent inmates. (See Dkt. 34, Exhibit 6004, internal exhibit no. GA. G.) Neither does
Petitioner ever claim that he had an actual attorney-client contact of any kind with Bevan. This
claim is without a legal or factual basis.
MEMORANDUM DECISION AND ORDER - 30

court on any of his claims, he is entitled to an evidentiary hearing in federal court. The
Court previously addressed and denied Petitioner’s request for the Court to review
evidence that was not presented to the Idaho state courts, except in the context of
procedural default. The procedural analysis is now complete, and Petitioner may not use
the extra-record evidence on review of the merits of his claims. (Where the Court
mentions these exhibits in its merits analysis, below, it is simply to show that the exhibits
would not have made a difference in the outcome of the claim.)
No grounds exist for an evidentiary hearing. The United States Supreme Court has
recently clarified “that review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S.Ct.
1388, 1398 (2011). All of the remaining claims were adjudicated on the merits.
Petitioner could qualify for an evidentiary hearing if he could show that the factual
determination of the state courts was unreasonable under § 2254(d)(2). In that case, then
the Court would not be limited by § 2254(d)(1), but would proceed to a de novo review of
the claims, which may include consideration of evidence outside the state court record.
See Maxwell v. Roe, 628 F.3d 486, 494-95 (9th Cir. 2010). See also Jones v. Walker, 540
F.3d 1277 (11th Cir. 2008) (en banc).
If a petitioner is unable to show that the factual determination of the state court
was unreasonable, then the Court examines the legal basis of the state court decision
under the limitations of § 2254(d)(1) and is confined to the evidence contained in the state
court record. See Cullen v. Pinholster, 131 S.Ct. at 1400.
MEMORANDUM DECISION AND ORDER - 31

Here, as more fully explained below in the context of the claims at issue, Petitioner
has not shown that the factual finding of the state courts was unreasonable on the merits
of the remaining claims. As a result, no new evidence will be admitted and no evidentiary
hearing will be held.
3.

Petitioner’s Motion for Reconsideration of Appointment of Counsel (Dkt. 47)
Petitioner argues that appointment of counsel is required, because an evidentiary

hearing in this case should be held. Because the Court has determined that an evidentiary
hearing is not warranted and Petitioner’s claims are plainly without merit, appointment of
counsel is not required. In addition, the Court has considered whether any other reason
exists to appoint counsel, and has determined that appointment of counsel would not aid
the Court in its decisionmaking in this case.
4.

Petitioner’s Motion to Expand the Record (Dkt. 49)
Petitioner asks the Court to allow him to expand the record because of widespread

“thefts, withholdings, and destructions of pleadings, documents and exhibits.” (Dkt. 49, p.
2.) He wishes to expand the record to include letters, documents, exhibits, answers, and
affidavits. (Id.)
As set forth above, Petitioner’s allegations of stolen and destroyed documents that
might be relevant to this case are not supported by sufficient evidence in the record, but
are based on speculation and hearsay. In the case of the successive post-conviction, the
allegations appear fabricated. Pinholster prohibits a federal habeas corpus court from
entertaining new evidence where the claims at issue were adjudicated on the merits by the
MEMORANDUM DECISION AND ORDER - 32

state court. Because that is the case, here, Petitioner’s motion will be denied.
5.

Respondent’s Motions for Extension of Time to File Answer or Motion for
Summary Judgment (Dkt. 55, 62) and Petitioner’s Motion Objecting to
Respondent’s Second Motion for Extension of Time (Dkt. 63)
Respondent seeks two extensions of time to file the answer or motion for summary

judgment due to an extensive work load. Petitioner opposes the second extension of time,
citing to the fact that Respondent already was granted a prior extension of time; however,
it is clear that Respondent’s counsel has an extremely heavy workload occasioned by the
number of prisoner filings, and it is also clear that the extensive number of documents
filed in this case take an enormous amount of time to review. Good cause appearing, the
Motion will be granted, the Motion Objecting to the same will be denied, and the Answer
will be considered timely.
6.

Respondent’s Motion to Strike Petitioner’s Exhibits (Dkt. 61)
Respondent requests that the Court strike the documents Petitioner has submitted

with his brief regarding summary judgment, at Dockets 46-2 through 46-10, because the
records were not previously submitted to the state court in any proceeding relevant to this
habeas corpus case and because the documents would serve no purpose at this stage of the
proceedings. Good cause appearing based on Pinholster, the Motion will be granted.
CONSIDERATION OF MERITS OF REMAINING CLAIMS
Petitioner has filed a Motion for Summary Judgment on the remaining claims.
(Dkt. 46.) Respondent has filed an Answer and Brief in Support of Dismissal of All
Claims (Dkt. 56.) Based on the record in this matter, the Court will deny Petitioner’s
MEMORANDUM DECISION AND ORDER - 33

Motion for Summary Judgment and dismiss the Petition for Writ of Habeas Corpus with
prejudice, for the following reasons.
1.

Standard of Law
Summary judgment is appropriately granted where “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(1)(a). The Federal Rules of Civil Procedure apply to
habeas corpus actions except where application of the rules would be inconsistent with
established habeas practice and procedure. Rule 11, Rules Governing Section 2254 Cases.
Accordingly, summary judgment motions are appropriate in habeas corpus proceedings
where there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Blackledge v. Allison, 431 U.S. 63, 80-81 (1977). Judicial
notice will be taken of the court docket in the underlying state court proceedings. Fed. R.
Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Petitioner’s Motion for Summary Judgment does not take into consideration that a
petitioner must work within the context of the Anti-terrorism and Effective Death Penalty
Act (AEDPA) to show entitlement to summary judgment. Petitioner points to areas of
“undisputed fact”; however, Respondent is not required to “dispute” Petitioner’s facts
except as is appropriate within habeas corpus law, because the state court’s factual
findings are presumed correct.
Federal habeas corpus relief is available when the federal court determines that the
petitioner “is in custody [under a state court judgment] in violation of the Constitution or
MEMORANDUM DECISION AND ORDER - 34

laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under § 2254(d), as amended
by the Anti-terrorism and Effective Death Penalty Act (AEDPA), federal habeas corpus
relief is further limited to instances where the state-court adjudication of the merits:5
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.

When a party 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, for a decision to be “contrary to” clearly established federal
law, the petitioner must show that the state court applied “a rule of law different
from the governing law set forth in United States Supreme Court precedent, or that
the state court confronted a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrived at a result different from
the Court’s precedent.” Williams v. Taylor, 529 U.S. 362, 404-06 (2000).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court was “unreasonable in
applying the governing legal principle to the facts of the case.” Williams, 529 U.S.
5

A state court need not “give reasons before its decision can be deemed to have been ‘adjudicated
on the merits.’” Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
MEMORANDUM DECISION AND ORDER - 35

at 413. A federal court cannot grant relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; 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 v. Cone, 535 U.S. 685, 694
(2002). The state court need not cite or even be aware of the controlling United
States Supreme Court decision to be entitled to AEDPA deference. Early v.
Packer, 537 U.S. 3, 8 (2002).
Though the source of clearly established federal law must come from the
holdings of the United States Supreme Court, circuit law may be persuasive
authority for determining whether a state court decision is an unreasonable
application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597,
600-01 (9th Cir. 1999).
A federal habeas court can look only to the record before the state court in
reviewing a state court decision under section 2254(d)(1). Cullen v. Pinholster,
131 S.Ct. at 1400 (“If a claim has been adjudicated on the merits by a state court, a
federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the
record that was before that state court.”) (footnote omitted); Holland v. Jackson,
542 U.S. 649, 652 (2004) (“[W]e have made clear that whether a state courts
decision was unreasonable must be assessed in light of the record the court had
before it.”) (citations omitted). On habeas review, state court findings of fact are
presumed to be correct, and the petitioner has the burden of rebutting this
MEMORANDUM DECISION AND ORDER - 36

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2.

Claim 2(b) and 3(b)
Claim 2(b) is that the investigating detective concealed exculpatory

evidence given to him by Wayne and Sandi Bayse after Petitioner’s arrest that
would have proven that Caleb Casey killed S.B. (Dkt 3, pp. 9-13.) Claim 3(b) is
that Petitioner’s due process rights were violated when the lead detective
concealed exculpatory evidence, including an alleged tape of Caleb Casey
confessing to the murder.
By affidavit in the state post-conviction case, Petitioner claimed that Caleb
Casey gave Petitioner a box of stolen jewelry and other valuables to remain quiet;
that Petitioner, in turn, gave it to his parents; that Petitioner’s parents gave the box
to the detective; but that the detective kept the box and never entered it into
evidence. (D-4, p. 6.) Petitioner also alleged that his vehicle contained exculpatory
evidence: methamphetamine; beer cans with fingerprints of the victim and Caleb
Casey; and a taped confession of Caleb Casey. Petitioner alleges that the
investigating officers destroyed this evidence, either by taking it and not
documenting it on the inventory list or by ordering that his vehicle be crushed
before it could be inspected by Petitioner’s counsel and family members. (Id., pp.
6-7.)
The Idaho Court of Appeals determined that Petitioner’s due process rights
were not violated. (State’s Lodging D-4.) The Court of Appeals applied the
MEMORANDUM DECISION AND ORDER - 37

following three-factor test from Paradis v. State, 716 P.2d 1306 (1986): (1)
whether the evidence is material to the question of guilt or the degree of
punishment; (2) whether the defendant was prejudiced by the loss or destruction of
the evidence; and (3) whether the government was acting in good faith when it
destroyed or lost the evidence. Id. at 1312-13.
This test is consistent with clearly-established United States Supreme Court
precedent governing this area of law. In California v. Trombetta, 467 U.S. 479
(1984), the Court determined that the Fourteenth Amendment does not demand
that the State preserve potentially exculpatory evidence on behalf of defendants.
There, the Court held that law enforcement agencies did not have to preserve
breath-analysis samples of suspected drunk drivers in order for the results of the
tests to be admissible in criminal proceedings. 467 U.S. at 491.
In Arizona v. Youngblood, 488 U.S. 51 (1988), the Court determined that
the government's bad faith destruction of, or failure to preserve, potentially useful
or exculpatory evidence violates the Due Process Clause. The defendant bears the
burden of showing “bad faith on the part of the police.” Id. at 58.
In considering the merits of Petitioner’s two claims, the Idaho Court of
Appeals determined:
It is Carr’s burden to provide admissible evidence supporting
his allegations. Concerning the box of jewelry and other valuables,
Carr contends that, because “the detective was provided the box and
it was never seen from again. . . [there is] an inference that it was
withheld from [Carr] in bad faith.” That is the extent of Carr’s
MEMORANDUM DECISION AND ORDER - 38

argument that the police conduct relating to the disappearance of the
alleged box of valuables was in bad faith. However, this argument is
without merit. The mere absence of a piece of evidence does not
raise an inference of bad faith. If so, the requirement of bad faith
would be superfluous. Carr has failed to support this allegation with
any admissible evidence. Therefore, the district court did not err by
summarily dismissing this claim.
(State’s Lodging D-4, p. 7.)
According to the affidavits attached to Carr’s application,
Carr’s family members notified the detective of the alleged existence
of exculpatory evidence inside the vehicle and the detective reported
to them that he found no such evidence when he searched the
vehicle. The family members then went to Jackpot, Nevada, to
retrieve the vehicle and it could not be located. Later, Jackpot police
notified the family that the vehicle had been taken to a towing and
wrecking business in Idaho where it was crushed. Once again, Carr
argues that the unexpected destruction of the vehicle raises an
inference of bad faith on the part of the police investigating the
crime. Other than this assertion, Carr offers no admissible evidence
supporting his allegation that his vehicle was destroyed in bad faith.
Therefore, the district court did not err by summarily dismissing this
claim.
(Id., p. 7.)
Petitioner is unable to point to a place in the state court record
demonstrating that he presented evidence that the State acted in bad faith in either
not documenting the jewelry in the evidence log (it was apparently returned to the
jewelry store from where the jewelry was stolen) or in having something to do
with destruction of the car. Because there is no evidence of bad faith, the Court
must presume that the state court’s findings of fact are correct.
Turning to the Idaho Court of Appeals’s decision, this Court concludes that

MEMORANDUM DECISION AND ORDER - 39

its application of the Paradis factors in reaching the conclusion is not contrary to
Trombetta and Youngblood. The Trombetta Court specifically held that destruction
of evidence that is not done in bad faith is not a due process violation, and, in
Youngblood, the Court emphasized that the burden of showing bad faith lies with
the defendant (here, Petitioner). Petitioner’s case is like Trombetta, where there
was no showing of bad faith. The absence of bad faith, as the Idaho Court of
Appeals concluded, is fatal to Petitioner’s claim.
The Idaho Court of Appeals did not analyze the other two factors:
materiality to guilt or prejudice caused by the loss of the evidence. The record
reflects several different allegations of what the box may have contained, but
Petitioner did not develop any evidence before or during post-conviction
proceedings to show materiality or prejudice. There are no affidavits from the
police officer, and no affidavits from the jewelry store owner about the contents of
the box. Petitioner’s parents’ statements regarding the contents of the box vary
greatly from Petitioner’s statements and contain inadmissible hearsay. Similarly, as
noted above, Petitioner has offered no plausible details of how he was able to
obtain a taped confession of Caleb Casey, or, realistically, why he would not have
gone straight to the police with it. There is no doubt Petitioner has filed thousands
of pages of documents with the state and federal courts; unfortunately, he
neglected to obtain and submit material, admissible evidence supporting these
critical points. In fact, if he, himself, made the tape of Caleb Casey, it is unclear
MEMORANDUM DECISION AND ORDER - 40

why he did not prepare his own affidavit stating exactly: (1) the details of the
conversation on tape; (2) why Casey confessed; (3) when Casey confessed; (4)
where Casey confessed; (5) which recorder Petitioner used; and (4) how Petitioner
was able to hold a conversation with Casey and at the same time surreptitiously
capture it on tape. Therefore, Petitioner’s claim also fails to meet the “potentially
exculpatory” requirement of Youngblood and Trombetta because of the lack of
evidence supporting the existence and nature of the items.
Accordingly, Petitioner is not entitled to relief on Claims 2(b) or 3(b)
because he has not shown that the Idaho Court of Appeals’s decision is based on
an unreasonable determination of the facts based on the evidence in the state court
record, or that it is contrary to Youngblood or Trombetta.
The Idaho Court of Appeals alternatively determined that, because
Petitioner pleaded guilty, his evidentiary claims arising before that date were
waived. “A valid guilty plea waives all nonjurisdictional defects and defenses,
whether constitutional or statutory, in prior proceedings. See Tollett v. Henderson,
411 U.S. 258, 267 (1973). (State’s Lodging D-4, pp. 7-8.)
Respondent argues that Petitioner has not successfully challenged his guilty
plea as being invalid. The Court agrees, as explained below. Accordingly,
Petitioner’s evidentiary claims were waived by his guilty plea in solemn court
proceedings. The Idaho Court of Appeals’ decision that the claims were waived is
not based on an unreasonable determination of the facts based on the evidence in
MEMORANDUM DECISION AND ORDER - 41

the state court record, nor is it an unreasonable application of Tollett v. Henderson.
Hence, relief is foreclosed by this alternative ground, as well.
3.

Claims 4(b), 4(c), 5(a), 6, 7, 13, 15, 19
Petitioner also asserts a set of claims that Petitioner’s guilty plea was

rendered involuntary under the Due Process Clause as a result of the
detective/jailors’ actions to create a living environment so hostile that he would be
forced to plead guilty. He alleges that they used delay as a tactic to coerce a
confession (Claim 4(b)); that jailors incited other inmates to assault Petitioner by
telling the inmates that Petitioner “ratted” on someone (Claim 4(c)); that his cell
lights were left on 24 hours a day for 21 months (Claim 5(a)); that he was denied
warm clothing in winter and during outdoor recreation times (Claim 6)); that he
was refused recreation opportunities, including outdoor recreation for weeks and
months at a time (Claim 7)); that he was denied medical attention for different
health conditions and injuries and placed in detention for 400 days over his
insistence that he be permitted to call his attorney (Claim 13); that the Sheriff’s
Department retaliated against Petitioner by calling him names they knew would
cause other inmates to attack him (Claim 15); and that Petitioner was denied food,
showers, appropriate cell temperatures, toilet paper, religious services, toothpaste,
and soap. (Claim 19 (due process theory only)).
To summarize, Petitioner “claims that he was starved, poisoned, denied
medical treatment and clean clothing, intentionally left in the company of prisoners
MEMORANDUM DECISION AND ORDER - 42

who assaulted him on numerous occasions, identified by jail guards to other
prisoners as a rat and a rapist, held for extensive periods in lockdown with no
recreational access, deprived of warm clothing and blankets and intentionally kept
in a cold cell, subjected to bright lights and continuous noise, and forced to live in
unsanitary conditions.” (State’s Lodging D-4, p. 4.)
In the state post-conviction matter, Petitioner alleged that all of these
conditions were intended to coerce him to plead guilty. He alleged that he pleaded
guilty for “the sole purpose of human survival.” (State’s Lodging D-4, p. 4.)
The Idaho Court of Appeals rejected Petitioner’s claim, contrasting his
affidavit complaining of his conditions of confinement with his change-of-plea
colloquy:
The Court:

Have you taken any alcohol or drugs or other
medication in the last 48 hours?

Petitioner:

No, sir, I have not.

The Court:

Is there or are you suffering from any mental or
psychological problems that make it hard for you to
understand these proceedings?

Petitioner:

No, sir.

The Court:

Is there anything else going on in your life that
affects your ability to make a reasoned and
informed decision today?

Petitioner:

No, sir.

The Court:

Has anyone made any other promises or comments to
you that haven’t been discussed on the record here

MEMORANDUM DECISION AND ORDER - 43

today?
Petitioner:

No, sir, they have not.

The Court:

Has anyone told you that [the district court] will follow
this plea agreement?

Petitioner:

No, sir, they have not.

The Court:

Has anyone told you that he would go easier on you for
pleading guilty rather than exercising the right to go to
trial.

Petitioner:

No, sir, they have not.

The Court:

Has anyone threatened you or anyone close to
you in order to get you to enter a plea of guilty
here today?

Petitioner:

No, sir.

The Court:

Is your decision to plead guilty a voluntary
decision?

Petitioner:

Yes, sir, it is.

(State’s Lodging A-3, pp. 6-7, 10.)
The Idaho Court of Appeals concluded that, “[b]ecause the allegations
contained in Carr’s Affidavit were clearly contradicted by his sworn testimony
given at the change of plea hearing, we conclude that they do not create a genuine
isse of material fact meriting an evidentiary hearing.” (State’s Lodging D-4, p 5.)
That Court further reasoned:
[N]ot only were Carr’s claims clearly contradicted by his
prior sworn testimony, but there is a gaping evidentiary hole at the
heart of Carr’s contentions. Carr was incarcerated for sixteen months
MEMORANDUM DECISION AND ORDER - 44

prior to the entry of his guilty plea. Other than fantastical claims
provided in his affidavit, Carr provided no admissible evidence
documenting the alleged deplorable conditions in the form of
prisoner complaints, medical records, or attorney communications. If
Carr had been near death on several occasions, as he claims, there
would at least be documentation of his treatment in the infirmary.
However, Carr provided no such evidence with his application.
(State’s Lodging D-4, p. 6.) Accordingly, the Idaho Court of Appeals concluded
that “the district court did not err by summarily dismissing Carr’s claim that his
guilty plea was involuntary due to conditions of his pretrial confinement.” (Id.)
Petitioner argues that he submitted multiple affidavits of other inmates
supporting his contentions to the Fifth Judicial District Court in Twin Falls
County. However, it does not appear that he submitted these exhibits through his
attorneys, or that his attorneys chose to submit these exhibits for him, as explained
above.
The affidavits are not found in the state court record lodged by Respondent,
but appear in Petitioner’s “Notice of Lodging Exhibits, Pleadings, State Court
Records, etc.” (Dkt. 34.) The affidavits were submitted in support of Petitioner’s
state habeas corpus petition that was dismissed as moot after Petitioner was
transferred (which is akin to a conditions of confinement lawsuit) and in his civil
rights lawsuit filed in state court, but not in his post-conviction action. (Dkt. 34.)
Each affidavit states that the inmate was subjected to a variety of poor conditions
at the Twin Falls County Jail.
The Court previously determined that Petitioner’s exhibits lodged at Docket
MEMORANDUM DECISION AND ORDER - 45

No. 34 could be used to show cause and prejudice or a miscarriage of justice, but
that they should not be used in an analysis of the merits of his claims. (Dkt. 42, p.
11.) As this case is now at the stage of proceedings where a merits analysis is
performed, Petitioner will not be entitled to rely on these exhibits that were not
submitted in the state court criminal proceedings.6
The United States Supreme Court has held that the validity of a guilty plea
turns on “whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North Carolina v. Alford, 400
U.S. 25, 31 (1970). A voluntary plea must be free from either “physical or
psychological coercion.” Henderson v. Morgan, 426 U.S. 637, 653 (1976).
There is no doubt from the record that Petitioner felt as though his living
conditions were very difficult circumstances to bear. However, nothing in the state
court record (and nothing in other inmates’ affidavits that are not in the record)

6

Even if the Court were to consider the affidavits of the other inmates, the affidavits
would show only that inmates suffered from a large variety of what they perceived to be
unconstitutional living conditions. The inmates do not assert that the purpose of the poor living
conditions was to coerce each of them to plead guilty, and they do not assert that the living
conditions were so poor that their will was overcome and they felt compelled by the conditions
alone to plead guilty. Further, this theory of why Petitioner pleaded guilty stands in contrast to
the other reasons he proffers for pleading guilty: a governmental conspiracy between detectives
and Caleb Casey to provide cover for Casey, fear that Caleb Casey would hurt him or his family,
avoidance of a fixed life sentence, or that he was taking responsibility for having killed S.B.
In addition, Petitioner, in fact, brought his claims to federal court in a civil rights lawsuit,
and was unable to make it past summary judgment with his claims of unconstitutional living
conditions. Carr v. Tousley, Case No. 1:06-cv-00125-JLQ.
MEMORANDUM DECISION AND ORDER - 46

demonstrates that the conditions acted as a force to (1) overcome the will of
Petitioner or any other inmate who did not really wish to plead guilty and (2)
actually cause Petitioner or any other inmate to plead guilty.
Importantly, based upon the record submitted to the state court, Petitioner’s
claims that jailors and detectives forced him to plead guilty is clearly contradicted
by his prior sworn testimony, by his failure to tell the evaluating psychologist of
the forces that overcame his will, and by his taking responsibility for S.B.’s death
at the sentencing hearing, instead of professing his innocence and revealing the
coercive nature of his conditions of confinement. This factual finding of the Idaho
Court of Appeals is clearly supported by Petitioner’s own words in many places
throughout the entire state court record.
Accordingly, the Idaho Court of Appeals’s decision is not based on an
unreasonable determination of the facts, nor is it contrary to, or an unreasonable
application of North Carolina v. Alford or of Henderson v. Morgan. Hence, habeas
corpus relief is not warranted.
4.

Claims 10 and 24(f)
Claim 10 is that Petitioner’s counsel performed ineffectively when he did

nothing in response to Petitioner’s complaints that his right to have attorney-client
privileged conversations with his counsel was impaired by the fact that the jail
visitation rooms were not sound-proof. Petitioner alleges he could not develop
evidence to demonstrate that he did not commit the crime. (Dkt. 3-1, p. 43.) Claim
MEMORANDUM DECISION AND ORDER - 47

24 is that Petitioner’s counsel was ineffective for allowing the Sheriff’s
Department to monitor and record attorney-client visits.
The Idaho Court of Appeals determined that “Carr’s claims that the jail
interfered with his right to the effective assistance of counsel by monitoring legal
communications and limiting access to legal materials and that counsel was
ineffective for allegedly failing to do anything about it also are not supported by
admissible evidence.” (State’s Lodging D-4, p. 12.) In particular, Petitioner
provided no evidence documenting the substance of the conversations that
allegedly were monitored. (Id., p. 11.)
A criminal defendant has a constitutional right to the assistance of counsel
under the Sixth Amendment, made applicable to the states by the Fourteenth
Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). In Strickland v.
Washington, 466 U.S. 668 (1984), the United States Supreme Court established the
proper test to be applied to claims alleging constitutionally inadequate
representation. To succeed on such a 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 thereby. Id. at 684.
Prejudice under these circumstances means that 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.
MEMORANDUM DECISION AND ORDER - 48

In assessing whether trial counsel’s representation fell below an objective
standard of competence 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. The pertinent inquiry “is not what
defense counsel could have pursued, but rather whether the choices made by
defense counsel were reasonable.” Siripongs v. Calderon, 133 F.3d 732, 736 (9th
Cir. 1998).
A petitioner must establish both incompetence and prejudice to prove an
ineffective assistance of counsel case. 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.
Like the state court pleadings, the Petition for Writ of Habeas Corpus offers
no enlightenment about how Petitioner “was unable to develop evidence to
demonstrate that he did not commit the crime because he could not gain
confidential communications with his attorneys, i.e., prejudice.” (Petition, Dkt. 81, p. 6.) Neither has Petitioner ever revealed the content of the conversations that
were monitored, or how that damaged his defense. Accordingly, the decision of the
Idaho Court of Appeals rejecting this claim for lack of any supporting admissible
evidence is not based on an unreasonable determination of the facts, nor is it
MEMORANDUM DECISION AND ORDER - 49

contrary to Strickland, because, even if Petitioner’s counsel was deficient in his
performance for failing to demand a place to have confidential communications,
Petitioner has pointed to no particular evidence he was unable to develop. Hence,
no prejudice occurred, causing the ineffective assistance claim to fail.
8.

Claim 24(c)
Petitioner alleges that his counsel was ineffective for failing to file a motion

to change venue. In support, Petitioner alleged that there was a “widespread
conspiracy and connection among everyone in the locality where he was charged
which denied him the opportunity of a fair trial.” ((State’s Lodging D-4, p. 9.)
The Idaho Court of Appeals determined that Petitioner failed to bring
forward any admissible evidence to support a claim that his attorney should have
filed a change of venue motion. (State’s Lodging D-4, p. 12.) In particular, the
Court explained:
A criminal defendant may seek a change of venue by statute
or by rule of criminal procedure if he or she believes a fair and
impartial trial cannot be had in the county where the indictment is
pending. The trial court can transfer the case to another county if
satisfied that a fair and impartial trial cannot be had. This decision
rests with the sound discretion of the court. In this case, Carr
provided no evidence to support his claim that the entire locality
where he was being tried was connected in a conspiracy against him.
We conclude that a motion for a change of venue would have had
very little, if any, chance of success.
(State’s Lodging D-4, p. 9 (internal citations omitted).)
In Murphy v. Florida, 421 U.S. 794, 798 (1975), the court held that a

MEMORANDUM DECISION AND ORDER - 50

change of venue is required only where the defendant shows that the pretrial
publicity has been so extreme as to cause actual prejudice or that the media
coverage had “utterly corrupted” the trial. In Dobbert v. Florida, 432 U.S. 282,
303, 97 S.Ct. 2290, 2303 (1977), a case in which a father was charged with
murdering two of his children and torturing and abusing his two remaining
children, the Court explained application the Murphy standard:
Under Murphy, extensive knowledge in the community of either the
crimes or the putative criminal is not sufficient by itself to render a
trial constitutionally unfair. Petitioner in this case has simply shown
that the community was made well aware of the charges against him
and asks us on that basis to presume unfairness of constitutional
magnitude at his trial. This we will not do in the absence of a “trial
atmosphere . . . utterly corrupted by press coverage,” Murphy v.
Florida, supra, 421 U.S., at 798, 95 S.Ct., at 2035.
Here, Petitioner brought forward no evidence that an impartial jury could
not have been seated had he proceeded to trial. Neither did he show that there was
a widespread conspiracy in the community that either endangered his life or caused
his criminal proceeding to be unfair in any other way. While Petitioner has woven
together his own inferences from his circumstances, implicating judges,
prosecutors, defense attorneys, court clerks, detectives, jailors, and his best friend
in a conspiracy against him, he has provided little evidence that would corroborate
such a theory. His conspiracy allegations would be slightly more plausible if he
had not confessed to the murder in so many different settings at so many different
times. Petitioner cannot create a case of conspiracy based on speculation and self-

MEMORANDUM DECISION AND ORDER - 51

contradictory stories to support a change of venue claim.
Because there is insufficient evidence in the record to show that grounds for
a change of venue existed, and that such a motion would have been successful,
Petitioner has not shown that his attorney’s performance was deficient, or that
Petitioner suffered prejudice. The Idaho Court of Appeals’s decision was not based
on an unreasonable determination of the facts, nor was the decision an
unreasonable application of Strickland. Hence, habeas corpus relief is not
warranted on Claim 24(c).
5.

Claim 28(a)
Claim 28(a) alleges that Petitioner was prejudiced by counsel’s failure to

investigate the crime scene. The Idaho Court of Appeals determined that
Petitioner’s claims of failure to investigate were disproved by the colloquy at the
change of plea hearing:
Court:

Have you had adequate access to your lawyer to
discuss the law and the fact of this case?

Petitioner:

Completely.

Court:

Is there anything you’ve wanted your attorney
to do or ask him to do to help you with your
case that he hasn’t done?

Petitioner:

No, sir, not at all.

Court:

Have you gone over discovery with your
attorney?

Petitioner:

Yes, sir.

MEMORANDUM DECISION AND ORDER - 52

Court:

Did you understand what was discussed?

Petitioner:

Yes, sir.

Court:

Did you request any additional discovery be
done in your case?

Petitioner:

No, sir, I do not.

(State’s Lodging D-4, p. 10.)
Counsel requested from the court, and received, funds for a forensic
pathologist and a forensic scientist to re-examine the cause of death of the victim,
and for a psychologist to examine and evaluate Petitioner regarding his state of
mind and intent at the time of the alleged crime, specifically, for the possibility
that Petitioner could have been suffering from Attention Deficit Disorder and/or
other personality disorders that could affect the element of intent. (State’s Lodging
A-1, pp. 43-75.) These requests show that counsel was pursuing a strategy and
defense.
Petitioner alleges that counsel should have pursued all of the “facts”
underlying the conspiracy theory of innocence–the jewelry box, the taped
confession, the finger print evidence, the robbery connection, and the drugs.
Petitioner asserts that his counsel merely concluded that Petitioner was lying, and
that was the reason counsel failed to do further investigations. However, Petitioner
has been unable to come up with solid evidence showing that any part of his
conspiracy theory would have been a successful defense.

MEMORANDUM DECISION AND ORDER - 53

As a result, Petitioner has shown neither deficient performance nor
prejudice to his case by his counsel’s failure to conduct further investigations of
the crime scene. Petitioner cannot overcome his solemn declarations in state court
that he was fully satisfied with his counsel’s performance by relying on mere
speculation. Based on the record before the state courts, this Court concludes that
the state court determination was not based on an unreasonable finding of fact, nor
was the determination contrary to Strickland. Therefore, this claim does not
warrant habeas corpus relief.
6.

Conclusion
None of Plaintiff’s remaining claims merits habeas corpus relief, either

under 28 U.S.C. § 2254(d)(1) or (d)(2). Plaintiff is not entitled to summary
judgment because he has failed to take into consideration the restrictions of
AEDPA. Accordingly, his Petition will be denied and dismissed with prejudice.
REVIEW OF THE CLAIMS AND THE COURT’S DECISION
FOR PURPOSES OF CERTIFICATE OF APPEALABILITY
In the event Petitioner files a notice of appeal from the Order and Judgment
in this case, the Court now evaluates the claims within the Petition for suitability
for issuance of a certificate of appealability (COA), which is required before a
habeas corpus appeal can proceed. 28 U.S.C. § 2253(c)(1)(A); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Rule 11(a), Rules Governing Section 2254
Cases.

MEMORANDUM DECISION AND ORDER - 54

A COA will issue only when a petitioner has made “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court
has explained that, under this standard, a petitioner must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal citation and punctuation omitted).
When a court has dismissed a petition or claim on procedural grounds, in
addition to showing that the petition “states a valid claim of the denial of a
constitutional right,” as explained above, the petitioner must also show that
reasonable jurists would find debatable whether the court was correct in its
procedural ruling. Slack, 529 U.S. at 484. When a court has dismissed the petition
or claim on the merits, the petitioner must show that “reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Id.
at 484. The COA standard “requires an overview of the claims in the habeas
petition and a general assessment of their merits,” but a court need not determine
that the petitioner would prevail on appeal. Miller-El, 537 U.S. at 336.
Here, the Court has dismissed Petitioner’s claims on procedural grounds,
and some have been alternatively denied on the merits. The Court finds that
additional briefing on the COA is not necessary. Having reviewed the record
again, the Court concludes that reasonable jurists would not find debatable the
MEMORANDUM DECISION AND ORDER - 55

Court’s decision on the procedural issues and the merits of the claims raised in the
Petition and that the issues presented are not adequate to deserve encouragement to
proceed further. As a result, the Court declines to grant a COA on any issue or
claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth
Circuit, Petitioner must file a notice of appeal in this Court within thirty (30) days
after entry of this Order, and he may file a motion for COA in the Ninth Circuit
Court of Appeals, pursuant to Federal Rule of Appellate Procedure 22(b)(2).

ORDER
IT IS ORDERED:
1.

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

2.

Petitioner’s Motion to Show Cause and Plea to Excuse State Remedy,
Exhaustion Requirement (Dkt. 45) is DENIED.

3.

Petitioner’s Motion for Evidentiary Hearing (Dkt. 48) is DENIED.

4.

Petitioner’s Motion to Expand the Record (Dkt. 49) is DENIED.

5.

Respondent’s Motion for Extension of Time to File Answer or Motion for
Summary Judgment (Dkt. 55) is GRANTED.

6.

Respondent’s Motion to Strike Petitioner’s Exhibits (Dkt. 61) is
GRANTED.

MEMORANDUM DECISION AND ORDER - 56

7.

Respondent’s Motion for Extension of Time to File Response (Dkt. 62) is
GRANTED.

8.

Petitioner’s Motion Objecting to Respondent’s Second Motion for
Extension of Time (Dkt. 63) is DENIED.

9.

Petitioner’s Motion for Summary Judgment (Dkt. 46) is DENIED.

10.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DENIED and
DISMISSED with prejudice.

11.

The Court will not grant a Certificate of Appealability in this case. If
Petitioner chooses to file a notice of appeal, the Clerk of Court is ordered to
forward a copy of this Order, the record in this case, and Petitioner’s notice
of appeal, to the United States Court of Appeals for the Ninth Circuit.
DATED: March 28, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 57