Lawyer v. Carlin

Filing 14

MEMORANDUM DECISION AND ORDER Respondent's Motion for Summary Dismissal (Dkt. 11 ) is GRANTED, and this entire action is DISMISSED with prejudice. Signed by Judge Candy W. Dale. (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

DANIEL JOEL LAWYER,
Case No. 3:13-cv-00386-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TEREMA CARLIN,
Respondent.

Pending before the Court is Petitioner Daniel Joel Lawyer’s Petition for Writ of
Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal. (Dkt.
11.) Petitioner has not responded to the Motion. The Court takes judicial notice of the
records from Petitioner’s state court proceedings, lodged by Respondent on January 16,
2014. (Dkt. 12.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th
Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 10.)
Having carefully reviewed the record, including the state court record, the Court finds
that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court
enters the following Order granting Respondent’s Motion and dismissing this case with
prejudice.
MEMORANDUM DECISION AND ORDER 1

BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Lawyer, 244 P.3d 1256 (Idaho Ct. App. 2010), which is also contained in the
record at State’s Lodging B-3. The facts will not be repeated here, except as necessary to
determine the procedural issues at hand.
Petitioner was convicted by a jury in the Second Judicial District of the State of
Idaho, in Nez Perce County, of one count of driving under the influence (DUI), enhanced
to a felony based on a previous DUI conviction. (State’s Lodging B-3 at 1-2.) Petitioner
was sentenced to a unified sentence of seven years in prison with two years fixed.
On direct appeal, Petitioner argued that there was insufficient evidence to convict
him of the felony enhancement and that his sentence was excessive. (State’s Lodging B1.) The Idaho Court of Appeals affirmed Petitioner’s conviction and sentence, and the
Idaho Supreme Court denied Petitioner’s petition for review. (State’s Lodging B-3, B-4,
B-6, C-1 at 6.)
Petitioner then returned to the trial court and filed a petition for postconviction
relief. He argued that his trial counsel rendered ineffective assistance by failing to
investigate jurisdictional issues and failing to move for a change of venue, given that (1)
the offense was committed on a highway running through the Nez Perce Tribal
Reservation and (2) Petitioner is an enrolled member of the Nez Perce Tribe. (State’s
Lodging C-1 at 6-8.) The state district court dismissed the postconviction petition,

MEMORANDUM DECISION AND ORDER 2

concluding that counsel was not ineffective because the State of Idaho had jurisdiction
over the crime pursuant to Idaho Code § 67-5101 and Public Law No. 280, § 7, 67 Stat.
588 (1953). (State’s Lodging C-1 at 51-52.) Petitioner appealed the dismissal, relying in
part on the Nez Perce Treaty of 1855. (State’s Lodging D-2 at 2 and Ex. A.) The Idaho
Court of Appeals affirmed the dismissal, and the Idaho Supreme Court denied review.
(State’s Lodging D-5, D-9.)
Petitioner filed the instant Petition in September 2013. The Petition asserts the
following claims, all of which are based on the Nez Perce Treaty of 1855. Claim One
asserts that Petitioner’s rights to due process and equal protection under the Fourteenth
Amendment have been violated because, although Petitioner is an enrolled tribal member,
a tribal officer was not present during the traffic stop that led to his DUI conviction.
Claim Two asserts that Petitioner’s conviction violates the Supremacy Clause and the
Oath of Office Clause of Article VI of the Constitution. Claim Three asserts again that
Petitioner’s conviction violates the Supremacy Clause. Claim Four asserts that
Petitioner’s conviction violates Article 3 of the Treaty of 1855, which concerns public
roads on the reservation. (Dkt. 3 at 6-9.)
Respondent now moves for summary dismissal of the Petition, arguing that all of
Petitioner’s claims are procedurally defaulted.

MEMORANDUM DECISION AND ORDER 3

DISCUSSION
1.

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

dismiss a petition for writ of habeas corpus or claims contained in the petition when “it
plainly appears from the face of the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court.” In such case, the Court construes the facts in the
light most favorable to the petitioner.
2.

Standard of Law Governing Procedural Default
A habeas petitioner must exhaust his remedies in the state courts before a federal

court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). This means that the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847.
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995). General references in state court to broad constitutional principles, such as

MEMORANDUM DECISION AND ORDER 4

due process, equal protection, or the right to a fair trial, are likewise insufficient. See
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear that, for proper
exhaustion, a petitioner must bring his federal claim before the state court by “explicitly”
citing the federal legal basis for his claim, “regardless of whether the petitioner [is]
proceeding pro se.” Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended,
247 F.3d 904 (9th Cir. 2001) (emphasis omitted).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Procedurally defaulted claims include
those within the following circumstances: (1) when a petitioner has completely failed to
raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim,
but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3)
when the Idaho courts have rejected a claim on an adequate and independent state
procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson,
501 U.S. 722, 750 (1991).
If a petitioner’s claim is procedurally defaulted, a federal court may still hear the
claim on the merits if the petitioner establishes that cause and prejudice exist to excuse
the default or that he is actually innocent. Coleman v. Thompson, 501 U.S. 722, 750
(1991); Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488

MEMORANDUM DECISION AND ORDER 5

(1986). Actual innocence in this context “means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray, 477 U.S. at 488. Although the
general rule is that any errors of counsel during the postconviction action cannot serve as
a basis for cause to excuse a procedural default, Coleman, 501 U.S. at 752, a limited
exception exists for certain underlying claims of ineffective assistance of counsel,
Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). To show “prejudice,” a petitioner bears
“the burden of showing not merely that the errors [in his proceeding] constituted a
possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire [proceeding] with errors of constitutional dimension.” United States v.
Frady, 456 U.S. 152, 170 (1982).
3.

Petitioner’s Claims Are Procedurally Defaulted
The simplest manner in which to resolve the exhaustion and procedural default

status of Petitioner’s federal claims is to review which claims were raised and addressed
in the state court appellate proceedings.
On direct appeal, Petitioner argued that the evidence was insufficient to convict
and that his sentence was excessive. During postconviction proceedings, Petitioner argued
only that his trial counsel was ineffective for failing to investigate jurisdictional issues

MEMORANDUM DECISION AND ORDER 6

and failing to move for a change of venue. None of Petitioner’s four habeas claims was
presented to the Idaho Supreme Court. Although the Sixth Amendment ineffectiveness
claim that Petitioner raised in state court is related to his current claims based on the
Treaty of 1855, they are distinct claims that must be separately exhausted. See Rose v.
Palmateer, 395 F.3d 1108, 1111-12 (2005) (“Here, although Rose’s Fifth Amendment
claim is related to his claim of ineffective assistance, he did not fairly present the Fifth
Amendment claim to the state courts when he merely discussed it as one of several issues
which were handled ineffectively by his trial and appellate counsel. While admittedly
related, they are distinct claims with separate elements of proof, and each claim should
have been separately and specifically presented to the state courts.”).
Because Petitioner did not fairly present any of his current claims in the Idaho state
courts, he did not properly exhaust his claims. Because Petitioner can no longer do so, see
Idaho Code § 19-4908, his claims are also procedurally defaulted.
4.

Petitioner Has Not Shown Cause and Prejudice or Actual Innocence
Petitioner has not attempted to show cause and prejudice or actual innocence.

Further, the Court has independently reviewed the record and has found no basis for
applying either doctrine to excuse the procedural default of Petitioner’s claims.
CONCLUSION
Petitioner’s claims are procedurally defaulted, and he has not shown cause and
prejudice, or actual innocence, which would allow the Court to reach the merits of his

MEMORANDUM DECISION AND ORDER 7

claims. Therefore, the Petition will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Summary Dismissal (Dkt. 11) is GRANTED, and
this entire action is DISMISSED with prejudice.

2.

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 § 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: April 23, 2014

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER 8