Heilman v. Blades

Filing 52

MEMORANDUM DECISION & ORDER Petitioner's Motion for Judicial Clarification (Dkt. 41 ) is MOOT. Respondent's Motion for Extension of Time to File Answer (Dkt. 38 ) is GRANTED. Petitioner's Motions for Extension of Time to File Travers e/Reply (Dkt. 45 , 47 ) are GRANTED. Respondent's Motion for Extension of Time to File Sur-reply (Dkt. 50 ) is GRANTED. Petitioner's Amended Petition for Writ of Habeas Corpus (Dkt. 11 ) and this entire action are DISMISSED with prejudice. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DENNIS R. HEILMAN,
Petitioner,
vs.

Case No. 3:11-cv-00304-DCN
MEMORANDUM DECISION
AND ORDER

RANDY BLADES,
Respondent.

Petitioner Dennis Heilman is proceeding on his Amended Petition for Writ of
Habeas Corpus, which is now fully briefed. Dkts. 11, 40, 41, 51. Also pending before the
Court are several motions filed by the parties. The Court takes judicial notice of the
records from Petitioner’s state court proceedings, which have been lodged by the parties.
See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

REVIEW OF MOTION FOR JUDICIAL CLARIFICATION
Petitioner seeks copies of Exhibit 27 (a police interview) and Exhibit 28 (an audio
recording) from Respondent. Judge Edward J. Lodge earlier notified Petitioner that the
Court would reconsider his request for production of the audio recording (Exhibit 28) if
his Petition survived Respondent’s summary dismissal motion. Dkt. 34. Judge Lodge
later entered an Order granting in part and denying in part the summary dismissal motion,
but he did not further address production of the exhibits. Nevertheless, Respondent
voluntarily provided a copy of Exhibits 27 and 28 to Petitioner. Dkt. 44. Therefore,
because the object of Petitioner’s Motion for Clarification is met, the Motion is now
moot.
REVIEW OF MOTION FOR EXTENSIONS OF TIME
Pending before the Court are various requests for extensions of time for the filing
of responses filed by the parties. Good cause appearing, the motions will be granted.
BACKGROUND
Petitioner and his wife, Penny, had a 22-year-long relationship, the last 14 of
which they were married. They had two children together. In this action, Petitioner was
accused of breaking into their marital home where Penny resided, raping her, and holding
her hostage.
During the couple’s separation, Penny filed for divorce, remained in the family
home with their two children, and obtained a permanent civil protection order against
Petitioner. As a result, Petitioner was immediately excluded from his home and

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belongings, and felt displaced, angry, and resentful. He wanted to reconcile with Penny.
Because of the protection order, the couple met at a local McDonald’s each week to
exchange their two children for Petitioner’s visitation. State’s Lodging A-3, p. 664-68.
On the evening of Friday, December 16, 2005, Petitioner had the children for
visitation. He left them sleeping at his mother’s house, put a large amount of Keystone
beer in his truck, and drove to Penny’s residence. He testified that he had been drinking,
felt suicidal, and took his holstered pistol with him, because, in his own words, “I guess I
had it in my head that if I couldn’t fix things, I didn’t want to live any more.” Id., p. 842.
In the early morning hours of December 17, 2005, Petitioner tried to enter the
residence that he and Penny once shared. Petitioner testified that he tried several keys,
tried to use his garage door opener, became impatient, and used a baseball bat from the
garage to break through the door. Id., pp. 842-43. Penny awoke, heard Petitioner outside,
and yelled for him to go away. When she saw his hand reach through the hole in the door,
she picked up the phone to call 911. However, he ripped the phone from the wall before
she made contact. He said to her, “Who’s holding the cards now, bitch?” Id., p. 843.
Penny had several variations of how she and Petitioner got from the kitchen to the
bedroom. At trial, Penny testified that Petitioner unsnapped the holster to his gun, pushed
her, and told her to get back to the bedroom. Id., p. 675. Petitioner denied ever
unholstering his gun. Id., p. 844-45. He denied having threatened her with the gun that
night. Id., p. 846.

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Penny testified at trial that Petitioner made her lie down on the floor in front of the
bed and made her put her hands above her head. He said if she moved, he would kill her.
She did not see him take the gun out of the holster, but surmised that he must have taken
it out while he escorted her to the bedroom. He held the gun on her while she was lying
on the floor, though he never touched her with it. She thought he was going to shoot here
then and there. State’s Lodging A-3, pp. 675-77.
Penny lay still while Petitioner left the room for a short time. Petitioner returned
with a can of beer, and he allowed Penny to get up off the floor and sit on the bed. He
began to ask, “How could you have done this to me?”—meaning the divorce and the
restraining order. He said he wanted to come back. He was very upset over Penny’s
choice of a lawyer in the divorce proceedings. Penny testified that Petitioner was very
emotional and angry and kept the gun beside him the entire time. Id., pp. 678-81.
Petitioner, on the other hand, testified on direct examination that he and Penny
went to the bedroom and sat on the bed and talked about some of their problems. Id., pp.
843-44. He wanted to go out to get some beer out of his truck, and so he “asked her to lay
down on the floor.” Id., at 844. He says the gun was never removed from the holster. Id.
at 845.
When Penny told Petitioner that she didn’t want to reconcile, he made her lie on
the bed face down with her hands above her head. He pointed the gun at her and said if
she moved, he would kill her. Id., p. 681. He again left the room for a short time and
came back with a shot gun and ammunition. Id., p. 682-83. She could not think of a way

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to escape quickly enough because of the layout of the house and decided that it was better
just to lie there. Id. When Petitioner sat down on the bed and began to load the shotgun,
he allowed Penny to sit up on the bed. Id. In contrast, Petitioner testified during crossexamination that he asked her to stay lying on the bed, and that she was face down on her
stomach, but no threat was made. State’s Lodging A-3, p. 88.
Between 1:00 a.m. and 3:00 a.m., Petitioner discussed the same topics repeatedly
with Penny—talking about how that the demise of their marriage was his fault, changing
his position to discuss how it was Penny’s fault, and reminiscing about good times they
had had together. She tried to calm him by reminding him to think about their “two
wonderful children” and encouraging him to look forward, not back in his life. Id., p.
685.
Petitioner took off all his clothes except his underwear and t-shirt. He decided he
wanted to cuddle with Penny, and she complied to keep him calm. He dozed off between
3:00 and 6:00 a.m., but she was unable to escape because he was not sound asleep, and
every time she moved, he gripped her tighter. Petitioner disagreed with Penny’s
perception that she was not free to leave.
During the entire ordeal, Petitioner drank the Keystone beer that he had brought
with him. He had also brought two bags of marijuana. Penny declined to smoke it, but
Petitioner pointed the gun at her and said, “Do it.” She said she “faked like [she] was

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doing it, but not.” Id., pp. 691-92. Petitioner contrarily testified that she smoked with him
voluntarily. Id., p. 846.1
At approximately 6:00 a.m., Petitioner woke up and Penny told him he should go
back to the children he left sleeping at his mother’s house. He refused, because nothing
had been solved, and he wanted an assurance from her that he could come back. Id., p.
849. He resumed drinking. He told her he wanted to have sex with her, and she said no.
He then pushed her down and pulled down her sweatpants, at which point he realized she
was menstruating. He straddled her and told her to perform oral sex, and she said, “Please
stop, please stop, no.” He took off his underwear and rubbed his penis on her face. State’s
Lodging A-3, pp. 694-95.
He next reached inside her sweatshirt, grabbed her nipples, and began to twist
them. She screamed in pain, and he told her to shut up.2 He covered her mouth with one
hand and her nose with the other for a few seconds, causing her to be unable to breathe.
Id., p. 696.

1
During their relationship, the couple regularly smoked marijuana together. In 2004 or 2005, the couple separated.
Petitioner testified that he continued to regularly smoke marijuana after the separation. Penny testified that she
considered herself a recreational user of marijuana, but that she hadn’t smoked it since “a little before the
separation,” and that she hadn’t smoked “very much for the last year or so.” Id. at 755. Usually Petitioner had
supplied their marijuana, but years ago Penny sometimes had supplied it for their use. Id. at 757.
Leroy Michael Kuykendall, a friend of the couple since 1987, testified that he saw Penny smoke marijuana
socially more than 100 times in all the years he had known them. When Petitioner’s attorney asked, “So, you would
describe that she probably smoked marijuana pretty regularly socially when you went out?” Id. at 792. Mr.
Kuykendall answered, “Occasionally anyway, yeah. I – I don’t know how regular or anything. I’d just – yeah.” Id.
2

The parties testified that during their marriage, when they had sexual relations, Petitioner would twist Penny’s
nipples. Petitioner testified this was simply part of their “normal sex life.” State’s Lodging A-3, p. 850. Penny
testified that, while Petitioner often twisted her nipples, he did it simply to be “mean.” Id., p. 753. She elaborated:
“He would always—he was constantly throughout—anytime always coming and grabbing and twisting, and how I
hated it. But it was a control thing.” Id.

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Petitioner next tried to engage in anal sex but was unsuccessful in penetrating her
because she resisted by screaming and squeezing her buttocks together. She was “moving
all the time trying to get him off [her].” Id., p. 697. He then turned her over and
proceeded to rape her. She begged him to stop. She lay supine with her legs down. He
asked her to put her legs up so he could enjoy it more, but she refused. He twisted her
nipples again very hard. Id., pp. 698-701.
Petitioner testified on direct examination that he started out asking her for oral sex,
but she was not interested. He then said he twisted her nipples like he normally did
during sex, and then they had sex, without a struggle, without Penny ever saying no. Id.,
850-51. On cross-examination, Petitioner said he didn’t remember straddling Penny’s
chest, but that it was “possible.” Id., p. 877. He said he didn’t recall whether she was
crying during intercourse, but said it was “possible.” Id., p. 879. He said Penny really
didn’t want to have sex with him, but that he didn’t force her to. Id., pp. 879-80.
Penny remained unable to escape. When Petitioner’s mother woke up and couldn’t
find Petitioner at home, she called Petitioner’s brother’s girlfriend, Ruby, to see if she
had seen him. Id., p. 475. Ruby located Petitioner’s truck at Penny’s residence. Id., p.
476.
At about 9:00 a.m., Penny heard banging on the door, but Petitioner would not let
her answer. Penny’s perception was that Petitioner did not want her to answer the phone,
and so she made no attempt to answer. They could hear Penny’s sister Ruby leaving
message after message, with a final message that if they didn’t pick up, she would send

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the police over. State’s Lodging A-3, pp. 882-84. They also heard Petitioner’s father call
and leave a message saying, “Don’t do anything stupid.” Id., p. 886. Petitioner testified
that he didn’t pick up the telephone calls but Penny was free to pick them up if she
wanted to. Id., pp. 702, 887. Petitioner moved Penny and his weapons into the basement
of the house, where there were additional weapons that he loaded. Id., pp. 702-723.
At about 10:30 a.m., Petitioner and Penny heard police officers enter the home and
go upstairs. Petitioner yelled to the officers, “Get the fuck out of my house.” Id., p. 454.
The officers left. Over the next several hours, Petitioner was engaged in a stand-off with
police officers, moving Penny back and forth between the basement and the bedroom.
During that time, Petitioner also asked Penny about their wills, specifically, “who got the
children when we were gone.” Id., p. 701. Penny convinced Petitioner not to kill himself
during the standoff. Id., p. 766. He had gone so far as to put the gun to his head. Id., p.
767.
Petitioner’s theory on the charges was that he had momentarily mentally snapped
and was suicidal, but that he had no intention of hurting Penny, only reconciling with her.
His position was that the sexual intercourse was consensual, and that she was free to
leave at any time during his visit.
However, on cross-examination, Petitioner testified otherwise in response to the
prosecutor’s questions:

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Q.

When you heard the SWAT team come in upstairs,
you didn’t let Penny go out and say it’s okay, you
don’t need to hurt anyone, correct?

A.

Correct.

Q.

She wasn’t free to leave, isn’t that true?

A.

I never told her she couldn’t leave.

Q.

Was she free to leave?

A.

She wasn’t free to leave; you had not resolved your
issues?

A.

Correct.

State’s Lodging A-3, p. 895.
Finally, about 4:00 p.m., a police SWAT team entered the house and ordered
Petitioner to put up his hands, because he was sitting amongst several firearms. He would
not, and so an officer kicked him in the chest. Id., pp. 554-55. Penny was able to escape
at that time with the officers’ help. Petitioner was taken into custody. Id., pp. 702-723;
899-96.
Petitioner was charged with rape, aggravated assault, second-degree kidnaping,
burglary, and a sentencing enhancement for use of a deadly weapon in commission of the
crimes. State’s Lodgings A-1, pp. 21-24; A-4. Petitioner was represented at trial by
attorney Richard Cuddihy. The lead prosecutor was Sandra Dickerson. Petitioner
proceeded to trial. The jury convicted him of rape, aggravated assault, false imprisonment
and unlawful entry (lesser included offenses of kidnaping and burglary). State’s Lodging
A-1, pp. 111-115. The state district court sentenced Petitioner to six fixed years of

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imprisonment on the rape and aggravated assault charges, with fourteen years
indeterminate, and to concurrent shorter sentences for the lesser included offenses.
State’s Lodgings A-1, pp. 166-170; A-3, pp. 1078-1079; A-4.
After proceeding through direct appeal and post-conviction proceedings in state
court, Petitioner filed this federal habeas corpus action. Earlier in this matter, the Court
dismissed several of Petitioner’s claims with prejudice on procedural grounds. Dkt. 37.
The Court permitted Petitioner to proceed to the merits of Claims One, Two, Four(b),
Five(b), Seven, Eight, Nine, Ten, Eleven, and Thirteen through Fifteen. Thereafter, in his
Answer and Brief in Support of Dismissal, Respondent raised an additional procedural
defense to these claims. Dkt. 40. The Court first addresses the procedural defense.
PROCEDURAL DEFAULT DEFENSES
Previously in granting in part Respondent’s Motion for Partial Summary
Dismissal, the Court determined that Claims Four(a), Five(a), and Six were procedurally
defaulted. The Court permitted Petitioner to show that adequate excuse for the default in
this round of litigation.
In his Answer and Brief in Support of Dismissal of Petition (Dkt. 40), Respondent
newly asserts that Petitioner’s remaining ineffective assistance of counsel claims—
Four(b), Five(b), Seven, Eight, Nine and Eleven—are also procedurally defaulted for the
following reasons. Petitioner presented his ineffective assistance of trial counsel claims to
the state district court in his successive post-conviction petition. After “a hearing on the
state’s motion [for summary dismissal], the district court summarily dismissed Heilman’s

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successive petition, concluding that his claims either did not justify relief as a matter of
law or were not supported by evidence raising a genuine issue of material fact.” State’s
Lodging G-4 p. 2. On appeal of the dismissal, the Idaho Court of Appeals concluded that
Petitioner did not meet the procedural requirements set forth in Idaho Code §19-4908 for
bringing ineffective assistance of trial counsel claims in a successive petition, because
Petitioner attempted to raise them in a successive post-conviction petition. The Idaho
Court of Appeals agreed with the state district court that the claims should have been
brought in the original petition and no adequate excuse existed for the failure to bring
them. See State’s Lodging G-4.
As a threshold matter, This Court first concludes that raising this procedural
defense in the Answer is procedurally appropriate, because the Order to Re-Open Case
specified that procedural defenses could be raised either in a pre-answer motion or in the
answer, in the alternative to a merits argument on the claims. (Dkt. 13, p. 9). There is no
legal or equitable reason that Respondent cannot raise some of the procedural issues
earlier and others later, so long as Petitioner has an opportunity to reply, as here.
“To qualify as an adequate procedural ground, a state rule must be firmly
established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
quotation marks omitted). That is, the state procedural bar must be one that is “‘clear,
consistently applied, and well-established at the time of the petitioner’s purported
default.” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v.
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar can be considered

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adequate even if it is a discretionary rule, even though “the appropriate exercise of
discretion may permit consideration of a federal claim in some cases but not others.”
Beard v. Kindler, 558 U.S. 53, 61 (2009). A state rule’s “use of an imprecise standard . . .
is no justification for depriving a rule’s language of any meaning.” Walker, 562 U.S. at
318 (internal quotation marks and alteration omitted).
A state procedural bar is “independent” of federal law if it does not rest on, and if
it is not interwoven with, federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.
2003). A rule will not be deemed independent of federal law “if the state has made
application of the procedural bar depend on an antecedent ruling on federal law such as
the determination of whether federal constitutional error has been committed.” Id.
(internal quotation marks and alteration omitted); see also Ake v. Oklahoma, 470 U.S. 68,
75 (1985) (stating that “when resolution of the state procedural law question depends on a
federal constitutional ruling, the state-law prong of the court’s holding is not independent
of federal law, and our jurisdiction is not precluded,” and holding that a state waiver rule
was not independent because, “[b]efore applying the waiver doctrine to a constitutional
question, the state court must rule, either explicitly or implicitly, on the merits of the
constitutional question”).
In Petitioner’s case, the state procedural bar is grounded in state statute:
All grounds for relief available to an applicant under this act
must be raised in his original, supplemental or amended
application. Any ground finally adjudicated or not so raised,
or knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or in
any other proceeding the applicant has taken to secure relief
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may not be the basis for a subsequent application, unless the
court finds a ground for relief asserted which for sufficient
reason was not asserted or was inadequately raised in the
original, supplemental, or amended application.
Idaho Code § 19-4908 (emphasis added).
Petitioner laid blame for the default of his ineffective assistance of trial counsel
claims at the feet of his original post-conviction counsel. Petitioner failed to assert any
other excuse for the failure to raise his other claims. See State’s Lodging G-4.
Since 2014, the Idaho Supreme Court has changed direction and interpreted I.C. §
19-4908 as not permitting the assertion of ineffective assistance of post-conviction
counsel as an adequate excuse for omitting claims from an original post-conviction
petition. Murphy v. State, 327 P.3d 365 (Idaho 2014) (interpreting Idaho Code § 194908). Since that date, that rule of interpretation has been consistently applied in Idaho.
As of the date Petitioner attempted to raise ineffective assistance of post-conviction
counsel as grounds for permitting him to file a successive state post-conviction matter,
that rule of interpretation was well-established. This Court knows of no pattern of
deviations from this rule that would cause it to question its consistent application since
2014. It is a rule that is not intertwined with federal law, and therefore it is an
independent procedural bar.
As to the other new ineffective assistance of trial counsel claims that Petitioner
tried to bring without asserting any excuse for their default, the Court concludes they are
barred by the plain language of I.C. §19-4908, above. This statutory bar predates Murphy

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and has been well-established and consistently applied by the Idaho courts. It is a bar that
has nothing to do with federal law.
Accordingly, the Court concludes that the following additional claims are
procedurally barred: Claims Four(b), Five(b), Seven Eight, Nine, and Eleven. However,
rather than permitting Petitioner additional opportunity to brief whether there exists an
adequate excuse for the default of these claims, the Court will consider the merits of the
claims themselves, as if they are not procedurally defaulted.
DE NOVO MERITS REVIEW
OF DEFAULTED CLAIMS
1. Standard of Law
When a federal claim reaches federal habeas corpus review, if the highest state
appellate court did not decide the merits of the claim, then the more deferential habeas
corpus standard of § 2254(d)(1) (discussed further below) does not apply, and the federal
district court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.
2002).
Under de novo review, if the factual findings of the state court are not
unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. §
2254(e)(1) to any facts found by the state courts. Id. at 1167. Contrarily, if a state court
factual determination is unreasonable, or if there are no state court factual findings, the
federal court is not limited by § 2254(e)(1), the federal district court may consider
evidence outside the state court record, except to the extent that § 2254(e)(2) might apply.

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Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014); Maxwell v. Roe, 628 F.3d 486,
495-96 (9th Cir. 2010).
2. Ineffective Assistance of Counsel Claims
A. Standard of Law
The clearly-established law governing a claim of ineffective assistance of counsel
is found in Strickland v. Washington, 466 U.S. 668 (1984). There, the United States
Supreme Court determined that, to succeed on an ineffective assistance claim, a petitioner
must show that (1) counsel’s performance was deficient because it fell below an objective
standard of reasonableness, and that (2) the petitioner was prejudiced by the deficient
performance. Id. at 684.
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.
Prejudice under these circumstances means 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.

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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.
B.

Claims Four(a) and Four(b)

Petitioner articulated Claims Four(a) and (b) as follows: “Prosecutor misconduct:
Sandra Dickerson’s redefinition of rape in closing argument. Mr. Cuddihy ineffective/
incompetent for failure to object to redefinition?” Dkt. 11, p. 8 (verbatim).
This issue surrounds the language of the Information charging that Petitioner “did
penetrate the vaginal opening of [Penny], a female person, with his penis, and where
[Penny] resisted, but her resistance was overcome by force and violence in that
Defendant forced himself on her even when she attempted to physically fight him away.”
State’s Lodging E-3, pp. 6-7 (emphasis added). Petitioner argues that the evidence did not
show that Penny tried to physically fight him away during sexual intercourse, and the
prosecutor improperly tried to de-emphasize that lack of physical fighting evidence by
emphasizing mere lack of consent during intercourse. Dkt. 49, p. 15.
Petitioner particularly takes issues with these prosecutor’s statement during
closing argument: “Ladies and gentlemen, it was rape. He had a gun right there. It was
rape.” State’s Lodging A-3, p. 991. Petitioner also objects to the prosecutor’s statements
that “[h]e knew she didn’t want sex. He forced her to have sex. That’s rape. I don’t care if
he was her estranged husband. She didn’t want it.” Id., p. 1029.

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Petitioner’s argument might be viable had the prosecutor stopped there and sat
down. These statements were not in the context of the prosecutor detailing each and
every element of the crime for the jury, so the jury could not have been misled in that
respect. In addition, throughout the prosecutor’s closing argument, she reviewed the
evidence that she believed met the elements of the crime of rape and she directed the
jurors’ attention to Instruction 11, which set forth all the elements of rape, including
attempting to physically fight him away. The prosecutor explained the State’s theory of
the case, highlighted some of the facts, and argued that Petitioner’s conduct met the
elements set forth in Instruction 11.
The prosecutor did not disregard the jury instructions or attempt to interpret them
for the jury in an unnatural or unusual way—she simply spoke of theory, evidence, and
instructions and directed the jurors to follow the relevant instruction number. The
prosecutor had the difficult task of creating a closing argument that covered four different
charges. She chose not to do that charge by charge and element by element, but instead
wove together the points she felt necessary into a closing argument that followed a
chronological pattern.
Elsewhere in her closing, the prosecutor included this comprehensive argument:
Instruction No. 11, again, this is for rape, and there is no – no
dispute over the date of where it happened. And in this case,
even though we’re not going to check this right now, there is
no dispute at all that the defendant, Dennis Heilman, caused
his penis to penetrate, however, slightly, the vaginal opening
of Penny Heilman. Dennis admitted that they had sex. So,
there’s really no dispute over that either, but we’ll come back
to the other.
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State’s Lodging A-3, p. 990. The prosecutor further reviewed trial testimony relevant to
the rape charge in this manner:
Question, she – and then when we’re talking about the
rape, he says first he asked for oral sex. Penny told you that,
too. He denied ever asking or forcing any type of anal sex,
but then he said he wanted vaginal sex. And he said he had
vaginal sex with her. And when I asked him: Question: She
didn’t really want to have sex with you, did she?
Answer: No.
I said, so you forced her?
Well, no.
But she didn’t want to have sex?
Well, no.
She didn’t, so it was non-consensual.
Ladies and gentlemen, it was rape. He had a gun right
there. It was rape. She told you how he twisted her nipples
and she cried out. He admitted that she cried. He tried to tell
you that was part of their normal sex life. She cried out. Her
nipples were hurting. Her nipples were swollen. He had sex
with her.
Then he told you that he stopped having sex with her
because all of a sudden he realized that she was on her female
time of the month. You’re not required, when you come and
sit on jury duty, to leave your common sense or your life
experience on the courthouse door. I submit to you, if that
makes sense to you [sic].
State’s Lodging A-3, pp. 990-91. The prosecutor was implying that Petitioner finally
stopped trying because Penny did not willingly participate or resisted, not because she

MEMORANDUM DECISION AND ORDER - 18

was on her menstrual cycle, because that had been evident from her soiled hygiene pad
when he pulled down her underwear.
Moreover, later in her closing argument, the prosecutor said:
Instruction No. 11, let’s go back. In order for the
defendant to be guilty of rape, as charged, the State must
prove each of the following. We’ve already done one and
two. We all agree, there’s no dispute there.
On No.3, Mr. Heilman admits to having sex. The
evidence that you have of the fact that it was forced is the
testimony you heard from Mrs. Heilman and the testimony
that you’ve heard from the defendant. Compare them. Which
makes sense? I’d submit to you that the State has proven
beyond a reasonable doubt each and every element of rape.
Id., pp. 992-93.
Having reviewed the entirety of the prosecutor’s closing argument, the Court
concludes that Petitioner’s claim is completely without merit. There was no incorrect
definition of “rape” suggested by the prosecutor because throughout her closing argument
she referred jurors to Instruction 11, which contained all of the elements of the crime of
rape. That she highlighted some of the elements, such as that it was against her will, was
necessary, because that rebutted Petitioner’s specific theory of defense—that the sex had
been consensual. There is no requirement that she highlight every element. If the
prosecution stands silent on any element of the charged crime, it is to their disadvantage,
not their advantage, because jurors are instructed that every element must be met to
convict.

MEMORANDUM DECISION AND ORDER - 19

Petitioner’s trial counsel was not ineffective for failing to object to the closing
argument, because the objection likely would have served only to prompt the prosecutor
to spend the next part of her argument highlighting which facts constituted Penny’s
physical fighting him away during the continuous course of him trying to satisfy himself
by some type of sex with Penny—she struggled when he had his hand over her mouth,
she tried to push him off, she squeezed her buttocks together to avoid anal penetration,
and she tried to keep her legs down during intercourse. In the overall context of the
incident, the jury certainly could have found (and obviously did find) that these efforts
were enough to constitute “physical fighting.” Petitioner’s attempt to narrowly define
“physically fighting him away” under the facts laid before the jury is unreasonable.
Based on the overall circumstances, the Court concludes that an objection was not
necessary and would not have been fruitful in the context of the closing argument. Jurors
are assumed to follow the jury instructions. Richardson v. Marsh, 481 U.S. 200, 206
(1987). Counsel reasonably could have concluded, as a tactical matter, that interrupting
the prosecutor’s closing argument with objections could harm Petitioner’s case, by
highlighting negative points or simply by irritating jurors. See Clabourne v. Lewis, 64
F.3d 1373, 1383 (9th Cir.1995) (failure to object to prosecutor’s references to petitioner’s
competency to stand trial was not ineffective—“competent counsel might have many
valid reasons for failing ... to interrupt opposing counsel during opening and closing
statements”).

MEMORANDUM DECISION AND ORDER - 20

Because Petitioner’s trial counsel was not ineffective, Petitioner’s post-conviction
counsel, in turn, was not ineffective for winnowing these claims out of the petition. These
claims are denied on the merits on de novo review.
3. Claim Five(a) and Five(b)
Claim Five(a) is that trial counsel was ineffective for failing to impeach the
victim’s trial testimony that she had not used marijuana in months. Claim Five(b) is that
counsel was ineffective for failing to retain an expert witness to challenge this testimony.
Penny testified at trial that Petitioner forced her to smoke marijuana with him on the
night in question, and so she tried to pretend she was smoking it. She testified that she did
not smoke enough to feel any effects from the marijuana or to impact her recollection of
the incident, but that there could have been some marijuana in her system. State’s
Lodging A-3, p. 755.
Petitioner’s trial counsel asked Officer Larry Stuck to verify that Penny’s
toxicology report indicated a positive result for cannabis, with a level of “99 nanograms.”
Petitioner’s counsel then asked Officer Stuck: “So the base level that they can observe it
according to that test is .15 nanograms; that 50 nanograms is considered positive; and that
the result of this test is 99, correct?” Officer Stuck then verified that the form indicated
that result, but he did not know how the tests were done. Id., p. 824. On crossexamination, the prosecutor asked the officer if he knew the significance of the 99
nanograms, or whether it was high or low. Officer Stuck said he did not. Id., pp. 826-27.
Petitioner’s counsel argued in his closing argument that Penny had not testified
truthfully that she had abstained from use of marijuana since the separation one year
MEMORANDUM DECISION AND ORDER - 21

earlier. Id., pp. 1004-005. Petitioner’s counsel then argued: “Her testimony is
contradictory. And, if you can’t believe her about smoking marijuana, then can you
believe her when he tells you that Dennis put a gun to her head and forced her to smoke
marijuana? I submit to you, that’s reasonable doubt.” State’s Lodging A-3, p. 1005.
Petitioner wanted his counsel to prove that Penny had been smoking marijuana
throughout their separation, and that is why she had the 99 nanograms of marijuana in her
system. However, Petitioner has failed to show that the defense team could have retained
an expert who would have opined that the 99 nanograms was from Penny’s repeated
usage throughout the separation, rather than from the incident that evening, when Penny
asserted that Petitioner forced her to smoke marijuana, and she tried to fake it. At trial she
readily admitted that she could have ingested some that night. Without knowing what an
expert would say about this particular set of circumstances, there is no way to tell
whether this would have been a productive avenue without expert testimony or
authoritative information. All that is known is that an expert could have opined in a
helpful or a harmful way—which does not support an ineffective assistance claim.
The Court also considers whether Petitioner’s counsel had a clear strategy for
impeachment. The record shows that counsel did pursue a particular strategy. He pointed
out example after example of variations between what Penny reported to officers on the
day of the incident and what she said at trial. Id., pp. 733-46. Importantly, Petitioner’s
counsel highlighted the fact that she had not told the officers that Petitioner held a drawn

MEMORANDUM DECISION AND ORDER - 22

gun on her in any of the three incidents she reported—a very critical detail she left out at
a time when the incident would have been fresh in her mind. Id.
The Court also concludes that Petitioner’s counsel’s strategy was effective without
the need for the marijuana expert, and that there is not a reasonable probability that, but
for counsel’s failure to hire an expert, the result of the proceeding would have been
different. Id. at 684, 694. Had Petitioner’s counsel hired a marijuana expert, the State
likely would have done the same. Had the State received an expert report stating that the
test results were incompatible with Penny’s assertion that she had not used marijuana
during the separation, the prosecution may have informed Penny, and Penny may have
decided instead to tell the truth to avoid any cross-examination problems. In any event, to
a reasonable law-abiding juror, the fact that both Penny and Petitioner admitted to using
marijuana throughout most of their marriage likely would have greatly reduced the
impeachment value of Penny’s recent marijuana use, because both parties’ credibility was
already damaged by their admissions of breaking the law in that manner.
Therefore, the marijuana angle presented minimal potential impeachment value.
Penny’s failure to mention the gun to the police, on the other hand, was relevant and went
directly to the elements of some of the charged crimes. The strength of that argument is
obviously the reason counsel chose that defense strategy.
The Court has engaged in this exercise of possibilities to show that counsel’s
decisions cannot be judged in hindsight, under the Strickland standard. 466 U.S. at 689.

MEMORANDUM DECISION AND ORDER - 23

The Court must indulge in the strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance. Id. Here, it most certainly did.
Trial strategy is like a chess game. For every step in one direction the defense
takes, the prosecution will do its best to head off victory—by employing its own
marijuana expert or taking a different angle with witnesses. As Petitioner learned with the
late disclosure of his psychological expert, it is not possible under the Rules of Evidence
to surprise the prosecution with an expert at trial. Petitioner’s counsel’s strategy
regarding the marijuana was wise, reasonable, and cost-effective. Counsel directed the
jury’s attention to the fact that the amount in Penny’s system was twice that of a
minimum positive level, and he used the marijuana information to Petitioner’s advantage,
suggesting that Penny generally lied about other important facts. Because Petitioner has
not shown either deficient performance or prejudice, this claim fails de novo review on
the merits.
4. Claim Six
Claim Six is that trial counsel was ineffective for failing to ensure that Petitioner
received a speedy trial. (Dkt. 11, p. 10.) Respondent contends that Petitioner raised
similar, but not the same, claims in the appeal of his post-conviction matter—arguing
that his appellate and post-conviction counsel were ineffective for failing to bring the
speedy trial issue. (See State’s Exhibits G-1, G-3.) The Idaho Court of Appeals
addressed and rejected the claim as an ineffective assistance of appellate counsel
claim. (State’s Lodging G-4, pp. 4,7.) The Court agrees that the claim that trial
counsel was ineffective for failing to raise the speedy trial issue was never raised
MEMORANDUM DECISION AND ORDER - 24

before the Idaho appellate courts, and hence it is procedurally defaulted. In addition,
to the extent that Petitioner is also raising a stand-alone speedy trial claim (unclear
from the Amended Petition) based on the right to a fair trial, due process, and judicial
bias, such a claim is also procedurally defaulted. (Dkt. 11, p. 10.)
On appeal of dismissal of Petitioner’s successive post-conviction petition, the
Idaho Court of Appeals addressed the fact that Petitioner provided no facts or legal
argument showing that the speedy trial claim was a viable claim that should have been
raised in the initial post-conviction proceedings:
Heilman has failed to raise a genuine issue of material
fact for any of his claims of ineffective assistance of appellate
counsel [including the speedy trial issue]. These claims in
Heilman’s successive petition are conclusory and fail to
allege facts that, if true, would entitle Heilman to relief as a
matter of law. Moreover, Heilman fails to support any of
these allegations with admissible evidence.
State’s Lodging G-4, p. 7.
In his federal Petition, Petitioner includes the argument that “where the accused is
incarcerated within state and his whereabouts are known to prosecuting authorities, time
within which he is to be secured in his right to speedy trial is to be computed from date
original complaint against him. However, he provides no computation here, just as he
neglected to do in the Idaho Court of Appeals action.

The federal right to a speedy trial is not as narrowly-defined as the state right to a
speedy trial. In State v. Davis, 118 P.3d 160 (Ct. App. 2005), the Idaho Court of Appeals

MEMORANDUM DECISION AND ORDER - 25

explained the difference between state-law speedy trial rights and federal constitutional
speedy trial rights:
The constitutional right to a speedy trial is a fundamental
right. State v. Avelar, 129 Idaho 700, 703, 931 P.2d 1218,
1221 (1997). [Idaho Code] Section 19–3501 expands that
right in three circumstances and provides a speedy trial
guarantee above and beyond that provided by the state and
federal constitutions. Id. As a [state] statutory expansion of a
fundamental constitutional right, the statutory right to a
speedy trial is not fundamental. Id.
Id., p. 174 (parentheticals added).
In contrast to the state statute’s more particular terms that define a state-law
speedy trial claim, in Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme
Court addressed application of the speedy trial right guaranteed by the Sixth Amendment
and chose a flexible approach for assessing whether a speedy trial has been
unconstitutionally denied. The Court adopted a balancing test that considers the conduct
of the defendant and the prosecution, particularly focusing on four factors to be weighed
in determining whether a defendant has been deprived of his Sixth Amendment speedy
trial right: (1) the length of the delay; (2) the reason for the delay; (3) whether the
defendant asserted the right to a speedy trial; and (4) the prejudice to the defendant. Id. at
530.
Petitioner makes no attempt in his reply brief to show how his federal speedy trial
rights were violated. Dkt. 49, pp. 21-22. The Court is not required to search through the
record on its own to discover the factual basis of Petitioner’s claim, but, nevertheless, it
has done so.
MEMORANDUM DECISION AND ORDER - 26

In Idaho, the presumptive speedy trial time frame Petitioner asserts applies to him
is six months from Information to trial. I.C. § 19-3501(2). The original criminal
Complaint against Petitioner was filed on December 19, 2005. State’s Lodging A-1, p.
10. On December 28, 2005, Petitioner requested a continuance of the preliminary
hearing. State’s Lodging A-1, p. 18. Petitioner was bound over for trial on January 5,
2006, the same day the original Information was filed. An amended information was filed
on April 25, 2006. Id., p. 35. Jury trial was set for May 1, 2006.
At the final pretrial conference on April 27, 2006, the state district court continued
the trial to June 26, 2006, notwithstanding the fact that both sides wanted to go forward to
trial on May 1, 2006. Id., p. 50. The case was continued because the prosecution had filed
a motion in limine to preclude the trial testimony of Petitioner’s mental health expert, Dr.
Reznicek, given Petitioner’s late disclosure of his information to the prosecution. The
Court reasoned:
Mr. Cuddihy indicated that you (Petitioner) weren’t by any
means wanting this vacated or moved. And Ms. Dickerson
indicated that on – from her end of things, people that are
interested in this trial don’t want this moved. And I want to
tell you that I appreciate that concern, but I also think it’s
important that I do this correctly. And this is something that’s
kind of come up here at the last minute, and I want to sort it
out and make sure I do it correctly, at least I’m confident that
I’m applying the law correctly.
State’s Lodging A-3, pp. 31.
Petitioner did not make any argument in the Idaho Court of Appeals showing that
the Barker factors weigh in his favor, nor does he here. While the state court indicated in

MEMORANDUM DECISION AND ORDER - 27

its reasoning cited directly above that it was aware Petitioner wanted to proceed to trial in
May, Petitioner does not state that he urged his counsel to object when the court indicated
that it was continuing the trial to June to take more time to consider the prosecution’s
motion in limine to exclude Petitioner’s expert witness. Therefore, he did not particularly
indicate to the state court that his right to a speedy trial was more important than
additional time for consideration of his expert witness issue.
The continuance of the trial was prompted by Petitioner’s late disclosure of his
expert, which then led to a prosecution motion in limine to exclude the expert testimony,
which then led to the court deciding that it was better for it to take more time to research
and consider the issue, rather than make an immediate decision simply to keep the trial
within six months. The delay in holding trial was minimal—less than two months.
Petitioner was not prejudiced by the delay, but, rather, aided by it, because the court
invested substantial time and effort in the question and eventually denied the
prosecution’s motion in limine and allowed Petitioner’s late-disclosed expert to testify.
State’s Lodging A-3, pp. 62-68.
Petitioner has failed to show that his trial counsel was ineffective for failing to
pursue a speedy trial issue. Therefore, the claim also fails de novo review.
5. Claim Seven
Claim Seven is that Petitioner’s counsel was ineffective for failing to adequately
cross-examine the victim regarding her interview with Officer Stuck. Petitioner also
includes “Failure to impeach!” in his claim—with no explanation of whether this refers to

MEMORANDUM DECISION AND ORDER - 28

impeachment of Penny regarding her police interview, or impeachment of Penny in
general.
Petitioner has failed to pinpoint any particular areas where counsel was deficient.
As this Court mentioned directly above, Petitioner’s counsel performed a thorough and
aggressive cross-examination of the key contradictions between Penny’s trial testimony
and her interview the day of the incident. His re-cross-examination highlighted the three
times she failed to mention that Petitioner held a gun to her in her same-day interview
with the police. State’s Lodging A-3, p. 775. Yet, counsel was not so aggressive as to
cause the opposite effect and have the jury begin to feel sympathy for the victim. See
State’s Lodging A-3, pp. 729-77.
Respondent is correct that the Strickland standard “does not require perfect trial
performance,” but “only competence.” Dkt. 40, p. 36, citing Sherron v. Norris, 69 F.3d
285, 290 (11th Cir. 1995). The Court sees no deficiency in counsel’s cross-examination
performance—especially given the difficulty he faced. Counsel had to walk a tightrope
calmly and methodically, with the allegedly consensual sexual encounter precariously
positioned in the middle of the facts that Petitioner broke through the door with the
baseball bat at the beginning of the incident and required SWAT team intervention at the
end. Or, a view of only the sexual incidents shows that counsel had to try to prove that
the allegedly consensual vaginal penetration occurred after Petitioner unsuccessfully tried
to penetrate Penny’s mouth and anus with his penis in the midst of screaming and
struggling. Petitioner has suggested no viable alternatives for cross-examination fodder

MEMORANDUM DECISION AND ORDER - 29

that would have been more effective than what counsel chose. This claim fails to warrant
relief on de novo review.
In his Reply, Petitioner attempts to expand the “Failure to impeach!” claim to
cover several items not included in his petition. For example, Petitioner wanted his
counsel to pursue a line of questioning to prove that Penny simply fabricated the rape
charges to gain an advantage in their divorce. This might have been a viable theory had
Petitioner not broken into the home by smashing in the door with a baseball bat or had he
decided to allow Penny to leave before, or even shortly after, the SWAT team arrived.
Clearly, those events were not inventions of Penny, and to suggest that the crime
occurring in the middle of those uncontested events was a fabrication would be very
difficult for any reasonable juror to believe. This claim is frivolous and subject to denial
on de novo review.
6. Claim Eight
Claim Eight is that trial counsel was ineffective for failing to request that the jury
be instructed on several lesser-included offenses of aggravated assault—misdemeanor
exhibition of a deadly weapon, I.C. § 18-3304, and misdemeanor aiming or pointing a
firearm at another person without malice, I.C. § 18-3304.
These claims are frivolous. The first requires that the perpetrator display the
weapon in the presence of two or more people. To argue that Petitioner counted as one of
the persons required by the statute would have damaged the credibility of trial counsel
and would have been rejected out of hand by any reasonable juror.

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It seems that Petitioner’s theory for requesting the second instruction is that he
should be excused for pointing a gun at Penny because his only intent in doing so was to
discuss the protective order and reconciliation until it was resolved, not to harm her.
However, Petitioner’s uncontested opening line—“Who’s holding the cards now,
bitch?”—and the other testimony at trial establishing that he wanted to secure a promise
from Penny to allow him to return and Penny did not want to reconcile with him—
provides no basis for this instruction. Nowhere in modern society is it acceptable to hold
someone at gunpoint to discuss family law issues until they relinquish their point of view.
This claim, as well, is frivolous.
Overall, trial counsel had a tremendously difficult task with facts that weighed
heavily against Petitioner. Nonetheless, with counsel’s help, Petitioner was not convicted
of the four charged felonies, but only two felonies. The jury found him not guilty of
second degree kidnaping or burglary, but only of misdemeanor false imprisonment and
unlawful entry. State’s Lodging A-3, pp. 1033-34. Trial counsel was not deficient in the
chosen defense strategy, including his handling of the jury instructions, or the manner in
which he executed the defense strategy.
7. Claim Nine
Claim Nine is that counsel failed to request that the jury be instructed on the
spousal rape exception set forth in I.C. § 18-6107. That section provides: “No person
shall be convicted of rape for any act or acts with that person’s spouse, except under the
circumstances cited in subsections (4), (5), (6) and (10) of section 18-6101, Idaho Code.”
Subsection (4) is the section under which Petitioner was charged—“[w]here the victim
MEMORANDUM DECISION AND ORDER - 31

resists but the resistance is overcome by force or violence.” I.C. § 18-6101. There is
nothing in the record that points to the sexual intercourse as “consensual”; therefore, it is
clear that this instruction was unnecessary. Counsel was not deficient in failing to suggest
it as a jury instruction and Petitioner was not prejudiced by the omission. This claim fails
on de novo review.
8. Claim Eleven
Claim Eleven is that trial counsel was ineffective for failing to argue that a photo
of the holstered gun admitted into evidence was inconsistent with testimony from the
victim (1) that the gun was pointed at her rather than in a holster, and (2) that Petitioner
was wearing his underwear, not the belt to which the holster was attached. This claim is
also frivolous. Obviously, Petitioner could have pulled his gun out of the holster to hold
Penny at bay in the bedroom and then returned the gun to the holster. Petitioner did not
necessarily need the pistol later in the ordeal because he had a stockpile of loaded guns
around him when the SWAT team stormed the basement.
DEFERENTIAL MERTIS REVIEW OF PROPERLY-EXHAUSTED CLAIMS
1. Standard of Law
Federal habeas corpus relief may be granted where a petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Where the petitioner challenges a state court judgment in which the
petitioner’s federal claims were adjudicated on the merits, then Title 28 U.S.C.§ 2254(d),
as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

MEMORANDUM DECISION AND ORDER - 32

applies. Title 28 U.S.C.§ 2254(d) limits relief to instances where the state court’s
adjudication of the petitioner’s claim:
1.

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

2.

resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991).
Where a petitioner contests the state court’s legal conclusions, including
application of the law to the facts, § 2254(d)(1) governs. That section consists of two
alternative tests: the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although it identified “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
MEMORANDUM DECISION AND ORDER - 33

a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 572 U.S 415, 426 (2014).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the state court’s decision is incorrect or wrong; rather, the
state court’s application of federal law must be objectively unreasonable to warrant relief.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If fairminded jurists
could disagree on the correctness of the state court’s decision, then relief is not warranted
under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 101 (2011). The Supreme Court
emphasized that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted).
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent 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).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

MEMORANDUM DECISION AND ORDER - 34

2. Ineffective Assistance of Appellate Counsel Claims: Thirteen, Fourteen, and
Fifteen
A. Standard of Law
The Strickland principles cited above apply to determining ineffective assistance
of appellate counsel claims. Evitts v. Lucey, 469 U.S. 387 (1985). To show prejudice on
appeal, a petitioner must show that his attorney failed to raise an issue obvious from the
trial record that probably would have resulted in reversal. See Miller v. Keeney, 882 F.2d
1428, 1434 n.9 (9th Cir. 1989). If a petitioner does not show that an attorney’s act or
omission would have resulted in reversal, then he cannot satisfy either prong of
Strickland: appellate counsel was not ineffective for failing to raise such an issue, and
petitioner suffered no prejudice as a result of it not having been raised. See Miller, 882
F.2d at 1435.
“Effective legal assistance” does not mean that appellate counsel must appeal
every question of law or every nonfrivolous issue requested by a criminal defendant.
Jones v. Barnes, 463 U.S. 745, 751-54 (1983). “[N]othing in the Constitution” requires
“judges to second-guess reasonable professional judgments and impose on appointed
counsel a duty to raise every ‘colorable claim’ suggested by a client.” Id. at 754. “[T]he
process of winnowing out weaker claims on appeal and focusing on those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” Burger v. Kemp, 483 U.S. 776, 784 (1987) (internal citations and punctuation
omitted).

MEMORANDUM DECISION AND ORDER - 35

However, on federal habeas corpus review, not only is deference given to
counsel’s decisionmaking, another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard…. Under AEDPA, though, it is a
necessary premise that the two questions are different. For
purposes of § 2254(d)(1), “an unreasonable application of
federal law is different from an incorrect application of
federal law.” Williams, supra, at 410, 120 S.Ct. 1495. A state
court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.
Richter, 562 U.S. at 101.
B. State Appellate Court Opinion
The Idaho Court of Appeals determined the following as to all of Petitioner’s
ineffective assistance of appellate counsel claims:
Heilman has failed to raise a genuine issue of material
fact for any of his claims of ineffective assistance of appellate
counsel. These claims in Heilman’s successive petition are
conclusory and fail to allege facts, that, if true, would entitle
Heilman to relief as a matter of law. Moreover, Heilman fails
to support any of these allegations with admissible evidence.
Specifically, Heilman does not explain why his
appointed appellate counsel’s failure to raise the issues he
alleges constituted objectively deficient performance or how
he was prejudiced thereby. An indigent defendant does not
have a constitutional right to compel appointed counsel to
press all nonfrivolous arguments that the defendant wishes to
pursue.
MEMORANDUM DECISION AND ORDER - 36

State’s Lodging G-4, p. 7. This decision is entitled to AEDPA deference.
C. Claim Thirteen
Petitioner alleges that his appellate counsel was ineffective for failing to appeal the
trial court’s decision to sustain an objection to testimony regarding a pending divorce
action between Petitioner and Penny, in which Penny allegedly changed her stated reason
for the divorce from “irreconcilable differences” to “abuse.” Dkt. 11, p. 19. As noted
above, Petitioner wanted to assert that Penny fabricated the rape charge to gain an unfair
advantage in the divorce to obtain more property and full custody of the children. Given
the facts of the unlawful entry into the house and the requirement of the SWAT team to
convince Petitioner to leave his weapons and come out of the house, the state court acted
well within its discretion to refuse to permit Petitioner to delve into Penny’s motivation
for changing the reasons for seeking divorce.
Petitioner has not shown that this claim had any potential merit. The lack of merit
is the reason appellate counsel selected other claims for appeal. The Idaho Court of
Appeals’ decision was not an unreasonable application of Strickland, and no relief is
warranted in this matter under the doubly-deferential standard of § 2254.
D. Claim Fifteen(a): Denial of Motion to Subpoena a Juror and Claim
Fifteen(b): Denial of Motion for a New Trial
Petitioner alleges that appellate counsel should have appealed the district court’s
denial of Petitioner’s motion to subpoena a juror. During jury deliberations, the jury tried
to play the recording of Penny’s initial statement made to police. The jurors were not able

MEMORANDUM DECISION AND ORDER - 37

to get the equipment to work, and so they asked the bailiff for help. The bailiff asked a
Nez Perce County computer specialist to check the equipment. Apparently, a password
was needed. Afterward, the jury was able to listen to the recorded statement. State’s
Lodging A-2, p. 205.
Petitioner was not informed of this anomaly at the time it occurred, but only
learned of it by chance after the trial. Id., pp. 205-06. Petitioner moved the trial court for
a new trial, asserting that juror misconduct had occurred. He also moved the court to
subpoena a juror to a hearing after trial to expound on the incident. Id.
The state district court denied the motion to subpoena a juror, because “[i]n order
to determine the [e]ffect of not hearing the audio recording immediately, the juror would
have to provide information concerning their mental processes and how the delay of
hearing the audio recording affected this process,” and that “information is clearly
precluded under I.R.E. 606(b).” Id., p. 219. The court denied the motion for a new trial,
because Petitioner did not establish that jury misconduct occurred; this scenario was very
much unlike a situation where the jury asks for clarification of a jury instruction or the
law. Further, the court concluded: “Nothing in this record supports that prejudice
reasonably could have occurred because the jury was unable to immediately access the
audio recording,” but instead accessed it a short time later, after technical help. Id., pp.
220-22.
Petitioner argues that appellate counsel should have appealed the district court’s
denial of his motion for a new trial. However, it is apparent from the record and the trial

MEMORANDUM DECISION AND ORDER - 38

court’s careful analysis of this issue that it would not have been a prevailing argument on
appeal. A short delay in listening to the audio recording, after obtaining technical help
from the bailiff and a county computer specialist, did not amount to misconduct, nor did
it prejudice Petitioner’s case. The prohibition on encroaching into the mental processes of
the jury is strictly upheld by courts of appeal, and, especially in the insignificant instance
of equipment failure, it was not necessary to subpoena a juror as a prerequisite to decide
the new trial issue.
Therefore, Petitioner has not shown that this claim would have been a better
choice on appeal than the issues that were selected by counsel. The Idaho Court of
Appeals’ opinion rejecting this claim is a reasonable application of Strickland,
foreclosing federal habeas corpus relief.
E. Claim Fifteen(c): Trial Court’s Limitation on Presentation of
Evidence regarding the Victim’s Employment Background on Crossexamination
Petitioner asserts that at the time of the incident, Penny was employed at the
Rogers Counseling Center/Community Sexual Assault Program as a bookkeeper.
Petitioner’s vague argument is that, “[a]lthough she was a bookkeeper, she spoke with
counselors on a daily basis.” Dkt. 11, p. 19. The trial court, however, refused to allow
Petitioner’s counsel opportunity to cross-examine Penny on her employment background.
This subject matter was raised by another witness. On cross-examination of
Officer Stuck, the prosecutor elicited that Penny had “refuse[d] [an] advocate from [the]
YWCA.” The prosecutor then brought out the fact that Penny worked for Rogers

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Counseling, which “provides counseling services for victims of assault.” State’s Lodging
A-5, p. 827.
Petitioner provides no argument specifically addressing these claims in his Reply
to Respondent’s Answer and Brief in Support of Dismissal. Dkt. 4-, pp. 29-30. He simply
concludes: “Appellate counsel was ineffective for failing to include essential claims that
were needed to demonstrate the true motivations for Mrs. Heilman to capitalize on an
isolated mental health break-down, to dispense of her husband with a false accusation of
rape.” Id.
Petitioner fails to realize that his side of the story—that there was never any abuse
or nonconsensual sex between them—and Penny’s side of the story—that Petitioner
physically abused her during sex as a means of control throughout their marriage and
raped her that night—were laid before the jury for it to determine who was more credible.
More peripheral evidence—like Penny’s access to sexual abuse counselors—weighing in
on the question of whether the sexual intercourse was consensual sex or rape would have
been inconsequential. Penny needed no help from her counselors to concoct facts to
support a false rape claim, because (1) Petitioner supplied sufficient facts through his
own testimony suggesting that the sexual intercourse was not consensual and (2) the
break-in and SWAT team visit clearly showed Penny’s lack of consent to the whole
course of events that evening. Penny testified sufficiently that she did what she could to
physically resist any type of sexual contact, including intercourse.

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The Idaho Court of Appeals’ Strickland analysis is sound. Petitioner has not
shown that this issue had merit and should have been selected for appeal. Nothing about
this claim in the context of the entire trial transcript raises a question about the
effectiveness of Petitioner’s appellate counsel. Accordingly, Petitioner is not entitled to
habeas corpus relief.
3. Claim Fourteen: Ineffective Assistance for Failing to File an Appellate Reply
Brief
Petitioner asserts that his direct appeal counsel was ineffective for failing to file a
reply brief or request oral argument in the direct appeal matter. In Idaho, reply briefs and
oral arguments are optional. Petitioner has not pointed to any particular harm that came
from the failure to file a reply brief or request oral argument. The Court finds none in its
review of the case, and there is no novel or close issue that needed to be highlighted.
Therefore, Petitioner has failed to show either deficient performance or prejudice. The
Idaho Court of Appeals’ decision rejecting this claim was not an unreasonable application
of Strickland and other Supreme Court case law governing appellate counsel
performance. The claim will be denied on the merits.
4. Claims One and Ten: Fatal Variance
A. Standard of Law
The Sixth Amendment, which is applicable to the states through the Due Process
Clause of the Fourteenth Amendment, guarantees a criminal defendant the fundamental
right to be clearly informed of the nature and cause of the charges against him. See U.S.
Const. amend. VI; Jackson v. Virginia, 443 U.S. 307, 314 (1979) (“It is axiomatic that a
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conviction upon a charge not made or upon a charge not tried constitutes a denial of due
process.”). In Berger v. United States, 295 U.S. 78 (1935), the Court explained:
The true inquiry ... is not whether there has been a variance
in proof, but whether there has been such a variance as to
“affect the substantial rights” of the accused. The general rule
that allegations and proof must correspond is based upon the
obvious requirements (1) that the accused shall be definitely
informed as to the charges against him so that he may be
enabled to present his defense and not be taken by surprise by
the evidence offered at the trial; and (2) that he may be
protected against another prosecution for the offense.
Id. at 82. The United States Supreme Court has not otherwise elaborated on the law
governing fatal variances. See Haines v. Risley, 412 F.3d 285, 291 (1st Cir. 2005) (“Save
at either end of the spectrum, it is far from clear what distinguishes a permissible variance
(as between facts charged and facts proved) from an impermissible constructive
amendment.”).
B.

Claim One: Aggravated Assault

Claim One challenges the aggravated assault conviction. Petitioner alleges that
there existed a fatal variance between (a) the charging information and evidence adduced
at trial; and (b) the information and the jury instructions. He alleges violations of his due
process rights under the Sixth and Fourteenth Amendments and argues that the variance
left him open to the risk of double jeopardy and producing a less-than-unanimous verdict.
The aggravated assault charge in the Information specified that Petitioner “did
intentionally, unlawfully, and with apparent ability threaten by word and/or act to do
violence upon the person of [P.H.], with a deadly weapon to wit: by forcing her into her

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bedroom, holding her against her will and threatening to kill her, while in possession of a
pistol which created a well-founded fear in [P.H.] that such violence was imminent.” See
State’s Lodging E-3 (emphasis added). Penny testified that Petitioner made her lie down
in the bedroom twice under threat of being killed. Petitioner argues that he could be
charged again for one of incidents, violating the double jeopardy rule.
The Idaho Court of Appeals determined that there was no fatal variance because of
the phrase forced her into the bedroom. Penny testified that Petitioner forced her into the
bedroom initially, but not a second time (because she was already there). Therefore, the
charging instrument refers to the initial incident only. State’s Lodging E-3, pp. 5-6. The
Idaho Court of Appeals also concluded that the jury instruction for aggravated assault
“mirrored” the charging Information by repeating the phrase forced her into the bedroom.
Id., p. 5.
This Court rejects Petitioner’s argument that, because the prosecutor mentioned
the victim’s testimony of being forced to lie on the floor “on two separate occasions,” see
State’s Lodging A-3, p. 993, there was a fatal variance—and that he somehow was being
charged with two instances of aggravated assault or could have been charged again later
for the same assault. Directly before the prosecutor made this statement, she said,
“Instruction No. 14 is the aggravated assault. Pay particular attention to No. 4, by forcing
her into the bedroom, holding her against her will and threatening to kill her in the
possession of a pistol.” Id., pp. 993 (emphasis added). The closing argument tracked the
Information and the jury instruction in a plain and understandable manner, and, thus,

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Petitioner had been on notice from the Information about how to defend against the
charge, regardless of the mention of the second incident in the closing argument.
Petitioner has not shown that the Idaho Court of Appeals’ decision rejecting the
fatal variance argument regarding the aggravated assault charge and the evidence
adduced at trial is contrary to, or an unreasonable application, of the United States
Supreme Court precedent explaining the import of the fatal variance rule. Petitioner
clearly could not be charged again for forcing the victim into the bedroom based on the
testimony at trial, because the victim testified that act occurred only once. Petitioner was
clearly informed of the charge in the Information. The jury instruction clarified that
“being forced into the bedroom” was an essential finding for a guilty verdict. Claims
One(a) and (b) will be denied on the merits.
C.

Claim Ten: Rape

Claim Ten is that there existed a fatal variance among the charging information,
jury instructions, and evidence adduced at trial with respect to the rape conviction. Idaho
Code § 18-6101 defines rape, in pertinent part, as “[w]here the victim resists but the
resistance is overcome by force or violence.” Id. (emphasis added). The Information
charged that Petitioner “did penetrate the vaginal opening of [P.H.], a female person, with
his penis, and where [P.H.] resisted, but her resistance was overcome by force and
violence in that Defendant forced himself on her even when she attempted to physically
fight him away.” State’s Lodging E-3, pp. 6-7 (emphasis added.)

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The jury instruction provided that the State must prove that Petitioner “caused his
penis to penetrate, however slightly, the vaginal opening of [P.H.], a female person; and
[P.H.] resisted but her resistance was overcome by force or violence.” The companion
jury instruction provided: “Although [P.H.] must have resisted the act of penetration, the
amount of resistance need only be such as would show the victim’s lack of consent to the
act.” Id., p. 7.
The Idaho Court of Appeals determined that no fatal variance occurred. The
difference between “or” and “and” was a minor variance and did not cause Petitioner to
be misled in the preparation of his defense because Petitioner’s defense was that the
victim consented, and so there was no confusion on his part over whether he had to prove
force or violence or force and violence. Neither was any part of Petitioner’s defense
focused on the amount of resistance put forth by the victim—rather, he argued that she
consented to sexual intercourse. Id., pp. 7-8.
The reasoning of the Idaho Court of Appeals makes abundant sense in the context
of the trial record. Petitioner garnered all the facts to show that he had not used force or
violence or force and violence, but felt like he had obtained Penny’s consent to have
vaginal sexual intercourse that night.
Further, the Court rejects Petitioner’s argument that there was not enough
evidence at trial to suggest that Penny physically resisted vaginal intercourse, as charged
in the Information. Penny testified that, when Petitioner entered her vaginally, she was
“asking him, begging to have him stop.” State’s Lodging A-3, p. 698. She physically

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resisted by keeping her legs down and refusing to her legs up to participate willingly in
the sexual activity when he asked her to. Id. He “twisted her nipples really hard” when
she refused to comply. Id. Petitioner had the gun on the bed next to her while he
penetrated her. Id., pp. 698-99.
Further, in the continuous course of sexual abuse that took place before he
attempted to vaginally rape her, she had tried to push him off when he straddled her and
put his penis on her face. Id., p. 695. She screamed when he twisted her nipples. Id., p.
696. When he tried to anally rape her, she used what she described as “[f]orce of cheeks”
to stop him—she “clamp[ed] her buttocks together “tight” and “scream[ed], you know,
trying to say stop it, no.” Id., p. 697. There is nothing in the record suggesting that, as
soon as Petitioner suggested vaginal sex, Penny consented—in fact, Petitioner, himself
testified on cross-examination that she did not want to have sex. Id., pp. 879-80. Rather,
the entire course of sexual abuse demonstrates that Penny resisted physically and
verbally, to no avail, and Petitioner physically forced himself on her in every way he
knew how, including by violence when he tried to suffocate her and when he brandished
a firearm. The broader context of the whole incident also suggests force and violence:
Petitioner began his visit by breaking Penny’s door with a baseball bat, armed with a gun,
and the visit was ended involuntarily by SWAT team. The Court rejects Petitioner’s
argument that his rape conviction should be overturned because the victim should have
fought him off more during vaginal rape after his forced unsuccessful attempts at oral sex
and anal sex, in which she exerted physical resistance.

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Petitioner has not shown that the conclusion of the Idaho Court of Appeals on this
fatal variance issue is contrary to, or an unreasonable application of federal law. The
opinion is reasonable and grounded in the facts in the record. Habeas relief is not
warranted.
CONCLUSION
Some of Petitioner’s claims are procedurally defaulted, and, even if they were not,
they fail on a de novo merits review. Some of the claims are frivolous. Based on the
entirety of the record and the same facts and discussion set forth above, the Court also
concludes that Petitioner has not met the Schlup standard for a showing of actual
innocence.
As for the remainder of his properly-exhausted claims, the Court concludes that
Petitioner has not met the high threshold of 28 U.S.C. § 2254 to warrant relief. Therefore,
the Amended Petition, and this entire action, will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1. Petitioner’s Motion for Judicial Clarification (Dkt. 41) is MOOT.
2. Respondent’s Motion for Extension of Time to File Answer (Dkt. 38) is
GRANTED.
3. Petitioner’s Motions for Extension of Time to File Traverse/Reply (Dkt. 45, 47)
are GRANTED.

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4. Respondent’s Motion for Extension of Time to File Sur-reply (Dkt. 50) is
GRANTED.
5. The Answer, Reply, and Sur-reply are deemed timely.
6. Petitioner’s Amended Petition for Writ of Habeas Corpus (Dkt. 11) and this entire
action are DISMISSED with prejudice.
7. The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner files a
timely notice of appeal, the Clerk of Court shall forward a copy of the notice of
appeal, together with this Order, to the United States Court of Appeals for the
Ninth Circuit. Petitioner may seek a certificate of appealability from the Ninth
Circuit by filing a request in that court.

DATED: October 19, 2018
_________________________
David C. Nye
U.S. District Court Judge

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