Condon v. Carlin

Filing 14

MEMORANDUM DECISION AND ORDER - The Petition for Writ of Habeas Corpus (Dkt. 3 is DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TIMOTHY CONDON,
Petitioner,
v.

Case No. 3:14-cv-00043-REB
MEMORANDUM DECISION AND
ORDER

WARDEN CARLIN,
Respondent.

Pending before the Court is Petitioner Timothy Condon’s Petition for Writ of
Habeas Corpus (Dkt. 3). Respondent has filed an Answer and Brief in Support of
Dismissal. (Dkt. 13.) The Court takes judicial notice of the records from Petitioner’s state
court proceedings lodged by the parties. (Dkt. 12.) See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Both 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. 11.)
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 the decisional process would not be significantly aided by oral
argument. Therefore, the Court will 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

MEMORANDUM DECISION AND ORDER - 1

the following Order denying the claims in the Petition and dismissing this case with
prejudice.
BACKGROUND
In January 2011, in a criminal action in the Third Judicial District Court in Canyon
County, Idaho, Petitioner pleaded guilty to felony driving under the influence (DUI), in
exchange for the prosecution’s agreement not to file persistent violator charges against
him. He received a sentence of ten years, with the first five years fixed. Judgment was
entered in March 2011.
Thereafter, Petitioner filed a Rule 35 motion for correction of sentence, arguing
that his sentence was excessive based on state law abuse-of-discretion grounds, rather
than Eighth Amendment grounds. See State v. Condon, 2011 WL 11047965 (Idaho Ct.
App. 2011). The motion was denied. The decision was affirmed on appeal by the Idaho
Court of Appeals, and the Idaho Supreme Court denied Petitioner’s petition for review.
(State’s Lodgings B-1 to B-9.)
Thereafter, Petitioner brought five claims in a state post-conviction petition.
However, on post-conviction appeal, Petitioner pursued only a claim that his counsel was
ineffective for withdrawing a motion to reduce the $1 million bail, instead of pursuing the
motion. Petitioner argued that the granting of the motion would have allowed Petitioner
to enroll in a rehabilitation program, making possible a chance of obtaining a more
lenient sentence. See Condon v. State, 2013 WL 5818536 (Idaho Ct. App. 2013). The
post-conviction petition was dismissed, and the Idaho Court of Appeals affirmed the

MEMORANDUM DECISION AND ORDER - 2

dismissal. The Idaho Supreme Court denied Petitioner’s petition for review. (State’s
Lodgings C-1 through D-7.)
Petitioner filed his federal Petition for Writ of Habeas Corpus on February 7,
2014, containing three claims. (Dkt. 3.) Petitioner’s first claim is that the $1 million bail
amount violated the Eighth Amendment. His second claim is that he was prosecuted
without a grand jury indictment in violation of the Fifth Amendment. His third claim is a
Sixth Amendment ineffective assistance of counsel claim, based upon trial
counsel's withdrawal of Petitioner’s request to seek a reduction in bail via a “motion for
pre-trial release.”
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”),
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.

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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
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, 134 S. Ct. 1697, 1706 (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.
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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, 131 S. Ct. 770, 786 (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, 133 S. Ct. 1446, 1450 (2013).
DISCUSSION
1.

Claim One
Petitioner’s first habeas claim “is that the $1 million bail amount violated the

Eighth Amendment.” (Dkt. 8, p. 2.) In United States v. Salerno, 481 U.S. 739 (1987), the
Supreme Court held that the Excessive Bail Clause of the Eighth Amendment prevents
the imposition of bail conditions that are excessive in light of the valid interests the State
seeks to protect by offering bail. Id. at 754. The United States Supreme Court has
assumed, but not expressly held, that the Excessive Bail Clause is incorporated into the
Fourteenth Amendment to apply against the States. See Schilb v Kuebel, 404 U.S. 357,

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365 (1971) (“the Eighth Amendment's proscription of excessive bail has been assumed to
have application to the States through the Fourteenth Amendment”).
The law is clearly established that challenges to bail set by a trial court become
moot once a defendant has been convicted. Murphy v. Hunt, 455 U.S. 478, 482 (1982);
Flanagan v.United States, 465 U.S. 259 (1984) (“order denying a motion to reduce bail ...
becomes moot if review awaits conviction and sentence”). After conviction, a claim for
past unlawful imprisonment or excessive bail is a civil rights claim for which money
damages may be sought, not a habeas corpus claim that affects the fact or duration of
Petitioner’s present confinement. See Nance v. Paderick, 368 F. Supp. 547 (W.D. Va.
1973); Hall v. Warden of Md. Penitentiary, 136 A.2d 380 (1957). Consequently, this
claim is subject to dismissal for failure to state a claim upon which habeas corpus relief
can be granted.
2.

Claim Two
Claim Two is that Petitioner’s Fifth Amendment rights were violated because his

case was not presented to a grand jury. (Dkt. 3, p.2.) He was instead charged by
Information, in accordance with state law. See I.C. § 19-1301, et seq. The Fifth
Amendment right to grand jury indictment under the federal constitution does not extend
to state prosecutions. See Hurtado v. California, 110 U.S. 516 (1884); United States v.
Jordan, 291 F.3d 1091, 1095 n. 2 (9th Cir. 2002); Gautt v. Lewis, 489 F.3d 993, 1003
n.10 (9th Cir. 2007) (“this Fifth Amendment right has not been incorporated into the
Fourteenth Amendment so as to apply against the states”). Accordingly, this claim is

MEMORANDUM DECISION AND ORDER - 6

subject to dismissal for failure to state a claim upon which habeas corpus relief can be
granted.
3.

Claim Three
Petitioner’s third claim is a Sixth Amendment ineffective assistance of counsel

claim. He alleges that his trial counsel erred in withdrawing a “motion for pre-trial
release,” seeking to reduce bail. He asserts that, had he been released on bail, the
outcome of his sentencing hearing would have been different.
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 in that 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

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684, 694. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id. at 694.
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.
The foregoing standard, giving deference to counsel’s decision making, is the de
novo standard of review. 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.
Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct review
of a criminal conviction in a United States district court. 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. With this standard in mind, this Court reviews the state court
decision in Petitioner’s case.
The Idaho Court of Appeals concluded that Petitioner failed to meet his burden of
demonstrating he was prejudiced as a result of trial counsel’s decision, reasoning:
Among other rationales, the district court dismissed Condon's claim of
ineffective assistance vis-à-vis excessive bail on the ground that he had
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neither pleaded nor presented evidence of prejudice from counsel's failure
to pursue the excessive bail issue. The district court's reasoning was correct.
In Condon's petition and supporting materials he does not allege any
connection between the alleged excessive bail and any perceived prejudice.
On appeal, Condon argues that he demonstrated prejudice because if his
defense attorney had pursued a motion to reduce bail, Condon could have
gone into alcohol treatment and this demonstration of his amenability to
treatment would have resulted in a lesser sentence. However, the record is
bereft of evidence to support this contention. Condon's chain of reasoning
on appeal as to how he was prejudiced is as follows. If defense counsel had
requested a reduction of bail: (1) the trial court would have reduced his bail;
(2) Condon would have posted the reduced bail; (3) Condon would have
been accepted into an alcohol treatment program; (4) he would have
succeeded in that program; and (5) having succeeded in that program, he
would have received a more lenient sentence. While Condon did provide
evidence that he could have received treatment at the Lighthouse program,
he presented no admissible evidence supporting the other four elements of
his argument. Rather, he asks us to assume that the court would have been
persuaded to reduce his bail, that Condon had the financial capacity and
would have posted the reduced bail, that he would have succeeded in a
treatment program, and that this success would have led the trial court to
give him a more lenient sentence. Because this claim of prejudice is based
on speculation and was not supported by admissible evidence, the petition
was properly dismissed.
(State's Lodging D-4, pp. 4-5.)
This Court agrees that Petitioner’s claim is based on mere speculation. He
presented no evidence in state court, nor does he make any argument here, regarding any
factors that would show he would have successfully posted bail, completed the treatment
program, or received a reduced sentence. The record is devoid of anything to support his
contentions. Therefore, even assuming that Petitioner’s counsel was deficient in
withdrawing the motion, meeting the first Strickland prong, Petitioner cannot meet the
second prong of prejudice. Based on the record, this Court concludes that the decision of
the Idaho Court of Appeals was not unreasonable.
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4.

Conclusion
Petitioner’s first two claims fail to state a federal habeas corpus claim upon which

relief can be granted. Petitioner’s third claim fails on the merits, for failure to show
prejudice. Accordingly, the entire Petition will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1. The Petition for Writ of Habeas Corpus (Dkt. 3) 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 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: May 20, 2016

Honorable Ronald E. Bush
U. S. Magistrate Judge

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