Stevens v. Carlin

Filing 82

MEMORANDUM DECISION AND ORDER - Claims 2 and 3 of the Petition for Writ of Habeas Corpus (Dkt. 1 ) are DENIED. Consistent with the Ninth Circuits previous memorandum disposition, Claim 1 is also DENIED, and judgment will be entered in favor of Resp ondent. 2. The Court does not find its resolution of Claims 2 and 3 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. 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 (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EDWARD STEVENS,
Case No. 3:14-cv-00403-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TEREMA CARLIN,
Respondent.

INTRODUCTION
Habeas corpus petitioner Edward Stevens (“Petitioner” or “Stevens”) asserts that
he is incarcerated in violation of the United States Constitution. See 28 U.S.C. § 2254. At
Petitioner’s trial, evidence established that Petitioner’s girlfriend’s eleventh-month old
son, C.W., died from a head injury when he was left in Petitioner’s care. Petitioner
maintained that the child fell down a flight of stairs and hit his head. The state theorized,
and the jury determined, that Petitioner had violently shaken the child and slammed the
child’s head against the bathtub.
Petitioner challenges his judgment of conviction for first-degree murder, which
was entered following a guilty verdict at a second trial.1 The Ninth Circuit Court of
Appeals previously reversed this Court’s grant of habeas corpus relief on Claim 1 of the
Petition and remanded for consideration of Petitioner’s remaining claims. See Dkt. 75.
1

Petitioner’s first trial ended in a mistrial when the jury could not reach a verdict.

MEMORANDUM DECISION AND ORDER - 1

Claim 1 alleged a violation of Brady v. Maryland, 373 U.S. 83 (1963), arising from the
failure of the prosecution to disclose evidence that the victim’s eyes were removed for
testing not at the autopsy, but after the body was released to the funeral home and
embalmed.
In reversing this Court’s decision, the court of appeals held, on de novo review,
that the information regarding the timing of the eye removal was not material under
Brady.2 Dkt. 75 at 5–6. The Ninth Circuit did not disturb this Court’s holding that the
Idaho Court of Appeals’ decision on Claim 1 was both an unreasonable application of
clearly established Supreme Court precedent and based on an unreasonable determination
of the facts. See 28 U.S.C. § 2254(d). The Ninth Circuit also left in place this Court’s
conclusions (1) that the eye-removal information was favorable to Petitioner and (2) that
the evidence that was was within the state’s possession or control was suppressed by the
prosecution. Dkt. 75 at 5 n.8. Thus, these holdings remain law of the case for purposes of
this opinion. See United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998) (“The law
of the case doctrine provides that a court is generally precluded from reconsidering an
issue that has already been decided by the same court … in the identical case.”) (internal
quotation marks omitted).
The Court must now consider whether Petitioner is entitled to habeas relief on
Claims 2 and 3 of the Petition. These claims were adjudicated on the merits by the Idaho
Court of Appeals during post-conviction proceedings.

2

The Ninth Circuit assumed, without deciding, that Petitioner was entitled to de novo review of his Brady
claim. Dkt. 75 at 5.

MEMORANDUM DECISION AND ORDER - 2

Claim 2 asserts ineffective assistance of trial counsel3 and includes three subclaims. Claim 2(a) asserts that counsel should have discovered and presented the
evidence regarding the timing of the removal of C.W.’s eyes. Claim 2(b) alleges that
counsel should have discovered and presented evidence that the medication Propulsid—
which C.W. was taking for a reflux problem—could cause cardiac arrest, and that
Propulsid could negatively interact with Zithromax, an antibiotic medication that C.W.
was also taking. Claim 2(c) asserts that counsel should have consulted with a pediatric
radiologist regarding a scan of C.W.’s skull—a scan showing that the victim’s skull
fracture, at the time of the injury, may have been much smaller than was measured at the
autopsy and that the fracture expanded before C.W.’s death due to intracranial pressure.
Claim 3 asserts ineffective assistance of appellate counsel, based on counsel’s
failure to challenge, on direct appeal, the appointment of the former trial judge—then a
sitting justice of the Idaho Supreme Court—to hear and rule upon Petitioner’s motion for
a new trial.
All 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) and Federal
Rule of Civil Procedure 73. See Dkt. 9. Having carefully reviewed the record in this
matter, including the state court record, the Court concludes that oral argument is
unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
Order denying habeas corpus relief and entering judgment in favor of Respondent.

3

Petitioner’s trial counsel at the second trial had not represented Petitioner at the first trial.

MEMORANDUM DECISION AND ORDER - 3

DISCUSSION
Many of the facts of this case and the standards of law governing the Court’s
review of the Petition are set forth in the Court’s earlier opinion on Claim 1 and will not
be repeated here. See Dkt. 30. The Court incorporates fully those facts and standards of
law and will include, in this opinion, only those facts and standards relevant to Claims 2
and 3 that were not discussed in the Court’s prior decision.
1.

Standards Governing Habeas Claims Adjudicated on the Merits in State
Court
A federal court may grant habeas corpus relief when it determines that the

petitioner “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). If the state court has adjudicated a claim on the merits,
habeas relief is further limited by § 2254(d), as amended by the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal habeas relief
may be granted only 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). “Deciding whether a state court’s decision involved an
unreasonable application of federal law or was based on an unreasonable determination
of fact requires the federal habeas court to train its attention on the particular reasons—

MEMORANDUM DECISION AND ORDER - 4

both legal and factual—why state courts rejected a state prisoner’s federal claims and to
give appropriate deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191–92
(2018) (internal quotation marks and citations omitted).
Petitioner contends that the state court’s decision on Claims 2 and 3 constituted an
unreasonable application of Supreme Court precedent under § 2254(d)(1). See Dkt. 23 at
37–57, 59–69, 73–79. For the reasons that follow, the Court disagrees.
2.

Clearly Established Law Governing Claims of Ineffective Assistance of
Counsel
The Sixth Amendment to the United States Constitution provides that a criminal

defendant has a right to the effective assistance of counsel in his defense. The Supreme
Court explained the standard against which to measure claims of ineffective assistance
claims in Strickland v. Washington, 466 U.S. 668 (1984). An assertion of ineffective
assistance of counsel (“IAC”) requires a showing that (1) “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and (2) those errors prejudiced the defendant by “depriv[ing] the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. A petitioner must establish both
deficient performance and prejudice to prove an IAC claim. Id. at 697. On habeas review,
a court may consider either prong of the Strickland test first, or it may address both
prongs, even if one prong is not satisfied and would compel denial of the IAC claim. Id.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
reasonableness of counsel’s actions must not rely on hindsight:

MEMORANDUM DECISION AND ORDER - 5

Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (emphasis added) (internal citations and quotation marks omitted).
Counsel’s strategic decisions “are virtually unchallengeable” if “made after
thorough investigation of law and facts relevant to plausible options.” Id. at 690.
Moreover, an attorney who decides not to investigate a potential defense theory is not
ineffective so long as the decision to forego investigation is itself objectively reasonable:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.

MEMORANDUM DECISION AND ORDER - 6

Id. at 690–91. That is, “the duty to investigate does not force defense lawyers to scour the
globe on the off chance something will turn up; reasonably diligent counsel may draw a
line when they have good reason to think further investigation would be a waste.”
Rompilla v. Beard, 545 U.S. 374, 383 (2005).
Ninth Circuit decisions upon such “strategy calls” are instructive in assessing
whether the state court reasonably applied Strickland when considering a habeas
petitioner’s IAC claim. See Duhaime, 200 F.3d at 600. First, tactical decisions do not
constitute IAC simply because, in retrospect, better tactics are known to have been
available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Second, a mere
difference of opinion as to tactics does not render counsel’s assistance ineffective. United
States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Third, “counsel’s investigation must
determine trial strategy, not the other way around.” Weeden v. Johnson, 854 F.3d 1063,
1070 (9th Cir. 2017).
Even if counsel’s performance is shown to be deficient, the petitioner must also
show that the deficient performance caused prejudice. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. To
establish prejudice, a petitioner “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. As Strickland instructs:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
MEMORANDUM DECISION AND ORDER - 7

findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has
met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695–96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112
(2011).
These principles from Strickland also apply to claims of ineffective assistance by
counsel on a direct appeal. Effective legal assistance does not require appellate counsel to
appeal every question of law or every nonfrivolous issue that might be requested by a
criminal defendant. Jones v. Barnes, 463 U.S. 745, 751–54 (1983). “Nothing 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. “Experienced advocates since time beyond memory have emphasized
the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Id. at 751–52.
Therefore, although it is “possible to bring a Strickland claim based on [appellate]
counsel’s failure to raise a particular claim, … it is difficult to demonstrate that counsel
was incompetent.” Smith v. Robbins, 528 U.S. 259, 288 (2000). Deficient performance of
MEMORANDUM DECISION AND ORDER - 8

appellate counsel can be shown only when counsel failed to raise a nonfrivolous issue
that “was clearly stronger than [the] issues that counsel did present.” Id.
For IAC claims against counsel on direct appeals, the Strickland prejudice
standard also must be met. Specifically, a petitioner must show that his appellate attorney
failed to raise an issue obvious from the trial record that probably would have resulted in
reversal of the conviction. Turner v. Duncan, 158 F.3d 449, 459 (9th Cir. 1998), as
amended on denial of reh’g (Nov. 24, 1998); 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
probably 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. Miller, 882 F.2d. at 1435.
The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Then, 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
MEMORANDUM DECISION AND ORDER - 9

and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101 (emphasis added). That is, when evaluating an IAC claim under
§ 2254(d), this Court’s review of that claim must be “doubly deferential.” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (internal quotation marks omitted).
3.

Petitioner Is Not Entitled to Habeas Relief on Claim 2: Ineffective Assistance
of Trial Counsel
Claim 2(a): Failure to Discover Evidence that C.W.’s Eyes Were
Removed after Release and Embalming of the Body

A.

In Claim 2(a), Petitioner asserts that his trial attorneys rendered ineffective
assistance in failing to discover evidence that C.W.’s eyes were removed for testing after
the body had been released to the funeral home and embalmed.
i.

Factual Basis of Claim 2(a)

The injuries to C.W.’s eyes tended to show that C.W. had been shaken. In its prior
ruling, this Court discussed the significance of the state’s expert’s findings about the eyes
and will not repeat it here. What the defense did not know at the time, and what came to
light only after trial, was that the eyes might have been removed for examination not at
the autopsy—which is what would have been expected—but at the funeral home, after
C.W.’s body had been released and embalmed. In post-conviction proceedings, Petitioner
presented evidence that the injuries in C.W’s eyes could have been caused by the
embalming process and not by violent shaking, which was the State’s theory at trial.
Dr. Slaughter was the pathologist who performed C.W.’s autopsy. At some point,
Dr. Slaughter removed C.W.’s eyes, at the direction of the coroner, and placed them in a

MEMORANDUM DECISION AND ORDER - 10

fixative so they could later be sent to a specialist for examination. One would naturally
expect that, if the eyes were to be removed for examination, the pathologist would do so
during the autopsy. At the preliminary hearing, Dr. Slaughter briefly discussed his
removal of the eyes:
Q.
And Doctor, after you completed the autopsy, did
you—were there documented retinal hemorrhages in [C.W.]?
A.
Yes. I retrieved the eyes and sent them to the
University of California at San Francisco where they
examined by an ophthalmologic pathologist, who is a
pathologist who specializes in looking at the eyes, and he
documented retinal hemorrhages.
State’s Lodging A-41 at 96.
As this Court has previously explained, from this testimony, it “could be inferred
that, despite the break in the prosecutor’s question, Dr. Slaughter was speaking about his
actions after the autopsy, given that the prosecutor prefaced the question with that time
frame, and Dr. Slaughter used the word ‘retrieved.’” See Dkt. 30 at 42. However, it could
also be inferred that Dr. Slaughter was not commenting at all about the timing of the eye
removal, as Dr. Slaughter had been testifying about the autopsy, and one could infer that
he was still talking about the autopsy when he discussed retrieving the eyes for later
examination by an ophthalmologic pathologist. See id. at n. 10 (“In all of his court
appearances, Dr. Slaughter generally testified about his examination of the victim’s body,
which occurred during the autopsy …. An inference could, of course, be drawn that Dr.
Slaughter was still talking about the autopsy when he testified as to the removal of the
eyes ….”).

MEMORANDUM DECISION AND ORDER - 11

At the first trial, Dr. Slaughter testified about the autopsy and his findings. Toward
the end of cross-examination, Dr. Slaughter was asked about C.W.’s eyes:
Q.

Doctor, did you remove [C.W.’s] eyes?

A.

I did.

Q.

For what purpose?

A.
The coroner had me remove them and keep them until
they tell me what to do with them later.
Q.
Did you notice or did you inspect those eyes for retinal
hernia?
A.
Retinal hemorrhages, no, I’m not an ophthalmology
pathologist who does only eyes. So I just put them in formalin
which is fixative and keeps them preserved and put them in
that until I was told what to do with them.
Q.
And you are aware, however, are you not, Doctor, that
blunt force trauma such as the one that [C.W.] suffered at the
back of his head could cause retinal hemorrhage?
A.

Yes.

State’s Lodging A-7 at 1125–26.
On redirect, Dr. Slaughter again discussed C.W.’s eyes:
Q.
Dr. Slaughter, counsel was talking to you about the
eyes that you removed, [C.W.’s] eyes. And did you send
those eyes to be examined by a forensic ophthalmologist?
A.

I did.

…
Q.
Doctor, you received that report back from Dr.
Crawford [the forensic ophthalmologist]?
A.

I did.

MEMORANDUM DECISION AND ORDER - 12

Q.
Dr. Slaughter, are you an expert in retinal hemorrhages
and how those occur?
A.

No.

Id. at 1126–27. Once again, one could infer from Dr. Slaughter’s testimony that he was
still referring to his actions at the autopsy when he discussed removing C.W.’s eyes,
though he did not testify specifically that he removed the eyes during the autopsy.
In preparation for the second trial, Petitioner’s trial counsel reviewed Dr.
Slaughter’s previous testimony from the preliminary hearing and the first trial. State’s
Lodging C-12 at 330–31, 336, 795–96. Neither counsel nor any defense expert
questioned or investigated the chain of custody of the child’s eyes in general, or the
timing of the removal of the eyes in particular, in preparation for trial. Petitioner’s
counsel found nothing strange or suspicious from Dr. Slaughter’s previous testimony
about his removal of the eyes, so found no reason to investigate whether chain of custody
in general, or the timing of the removal in particular, was at issue. Id. Neither did any
defense expert question the state of the eyes or call into question the timing of the eye
removal.
At trial, the state’s expert testified that “the combination of macular folding,
perineural hemorrhages and the severity, frequency and locations of retinal hemorrhages
in [C.W.’s] eyes were indicative of shaken baby syndrome.” State v. Stevens (Stevens I),
191 P.3d 217, 223 (Idaho 2008), abrogated on other grounds by State v. Garcia, 462
P.3d 1125 (Idaho 2020). Defense experts disputed that these factors demonstrated shaken
baby syndrome.

MEMORANDUM DECISION AND ORDER - 13

However, “[a]fter trial, an investigator for Stevens’s public defender contacted a
prosecutor in the case and raised the issue of whether [C.W.’s] eyes were removed before
or after his body was embalmed.” Id. The prosecutor then had a detective investigate the
issue. This same detective, and his brother who also was a detective, each stated in 2003
that they recalled the eyes were removed at the funeral home, rather than at the autopsy.4
The post-trial investigation also turned up a mortuary report, which “showed that the
person who performed the embalming noted [C.W.’s] eyes were brown. This evidence
suggest[ed] that [C.W.’s] eyes were removed after his body was embalmed because to
make this observation [C.W.’s] eyes had to be in his body.” Id. at 224.
From this, Petitioner moved for a new trial, “arguing that the embalming fluid and
post-embalming removal caused some of the injuries to [C.W.’s] eyes. In support he
presented the affidavits of three new experts who examined evidence presented at trial
and concluded that the macular folding and retinal hemorrhaging were caused after
[C.W.’s] death.” Id. Petitioner’s new trial motion was denied, and the Idaho Supreme
Court affirmed.
This Court previously held that the prosecution suppressed all of the postembalming eye-removal evidence that was in its possession or control, including the
detectives’ and the autopsy doctor’s knowledge at the time of removal. This conclusion
remains the law of the case. See Cuddy, 147 F.3d at 1114. The prosecution did not
possess or control the mortuary report, however. “Rather, the funeral home (which was

4

By the time of the evidentiary hearing on this issue, however, memories had faded, and no one could
specifically remember when the eyes were removed.

MEMORANDUM DECISION AND ORDER - 14

clearly not a State agent) had sole possession of the report until well after the trial in
2003.” Stevens v. State, 156 Idaho 396, 408, 327 P.3d 372, 384 (Idaho Ct. App. 2013)
(Stevens II). Therefore, the prosecution could not have suppressed it. Accordingly, the
mortuary report is the only evidence regarding the timing of the eye removal that
Petitioner’s trial counsel could have discovered before trial and, therefore, is the only
evidence relevant to counsel’s performance as to Claim 2(a).
ii.

Decision of the Idaho Court of Appeals

The Idaho Court of Appeals made a factual finding—that Dr. Slaughter had
previously testified “that he recalled removing the eyes during the autopsy” and that
“[n]either the State, nor its witness, Dr. Slaughter, gave any indication but that the eyes
were removed during the autopsy and held until they could be sent to an expert
ophthalmologist.” Stevens II, 327 P.3d at 390 (quoting Stevens I, 191 P.3d at 232 (Trout,
J., dissenting)). The Idaho Court of Appeals went on to conclude that, although the
mortuary report “could have been discovered by counsel prior to trial,” counsel’s failure
to do so did not constitute deficient performance because “counsel’s investigation was
otherwise reasonable”:
[T]here is no assertion that defense counsel here failed to
uncover and utilize the most obvious and highly relevant
information (including police reports, medical records, and
the autopsy report) or to pursue the obvious defenses given
the evidence uncovered. Nor was there evidence that a mere
lack of objectively reasonable diligence was the cause of the
failure to uncover the mortuary report. In addition, as we
discussed above [with respect to the Brady claim], the
potentially exculpatory significance of the eyes being
removed post-embalming was not readily apparent and only
came to light once the defense found an expert to opine such
MEMORANDUM DECISION AND ORDER - 15

a procedure could damage the eyes in a manner replicating
that seen in shaken baby cases. Even now, after Stevens was
given the opportunity to develop the evidence at a postconviction evidentiary hearing, the evidence is not entirely
clear as to when the eyes were removed—and expert opinions
continue to be conflicting as to whether the eyes were
damaged by embalming. Thus, even assuming reasonably
diligent counsel would have discovered the mortuary report,
discovery of the report does not warrant an assumption that
reasonable counsel would have recognized its importance.
See Strickland, 466 U.S. at 690, 104 S. Ct. at 2065, 80
L.Ed.2d at 695 (noting that counsel’s conduct must be
evaluated from “counsel’s perspective at the time”) (emphasis
added). Holding that defense counsel were required, in order
to render constitutionally adequate assistance, to uncover an
ambiguous reference in an obscure report, recognize that the
piece of evidence may be significant, and locate experts to
testify as much, is simply untenable given the strong
presumption existing that counsel’s performance is adequate.
Stevens II, 327 P.3d at 390–91 (emphasis added). The state appellate court did not discuss
the prejudice prong of Strickland. See id.
iii.

The State Court’s Decision that Counsel Did Not Perform
Deficiently as to Claim 2(a) Was Not Unreasonable under AEDPA

The Idaho Court of Appeals reasonably concluded that Petitioner’s counsel did not
render deficient performance in failing to discover the mortuary report, in that before the
close of the second trial, a reasonably competent attorney would not have been put on
notice that the eyes might have been removed after release and embalming of the body.
A close reading of Dr. Slaughter’s testimony at the preliminary hearing and the
first trial reveals that he never testified precisely that he removed the eyes at the autopsy.
However, that was certainly a reasonable interpretation of his previous testimony. See
Dkt. 30 at 42 n.10 (“In all of his court appearances, Dr. Slaughter generally testified

MEMORANDUM DECISION AND ORDER - 16

about his examination of the victim’s body, which occurred during the autopsy, but he
never pinned down a particular time frame with respect to the removal of the victim’s
eyes. An inference could, of course, be drawn that Dr. Slaughter was still talking about
the autopsy when he testified as to the removal of the eyes ….”). Thus, the Idaho Court of
Appeals reasonably found, as a factual matter, that Dr. Slaughter had indeed testified that
he removed the eyes during the autopsy.5 See 28 U.S.C. § 2254(d)(2).
Having reviewed Dr. Slaughter’s testimony—that he removed the eyes at
autopsy—Petitioner’s counsel had no reason to question the timing of the eye removal.
Dr. Slaughter’s testimony at the preliminary hearing and the first trial did not suggest that
there was anything unusual or suspicious about the chain of custody of the eyes in
general, or about when the eyes were removed in particular. Therefore, the Idaho Court
of Appeals reasonably held that trial counsel did not perform deficiently by not
spontaneously wondering, and then investigating, whether the eyes might have been
removed later, after the body had been released and embalmed.
Petitioner also has presented no evidence that professional standards of
competency would have required counsel to request documents regarding post-autopsy
embalming, or any other document for that matter, from a funeral home. No expert
opined that a reasonably competent attorney would have done so, particularly where all
other available evidence suggested that the eyes were, as would be expected, removed at

5

In finding that Dr. Slaughter testified that he recalled removing the eyes during the autopsy, the Idaho
Court of Appeals quoted Justice Trout’s dissenting opinion in Petitioner’s direct appeal. Importantly, the
majority opinion on direct appeal did not dispute Justice Trout’s statement that Dr. Slaughter testified that
he removed the eyes at autopsy. See Stevens I, 191 P.3d at 224.

MEMORANDUM DECISION AND ORDER - 17

autopsy. Because no one had any inkling at that time that the eye removal was suspect,
counsel reasonably “operated under the presumption that normal, proper protocols would
have been utilized.” State’s Lodging C-12 at 447. Moreover, the doctors to whom counsel
provided the autopsy report for review raised no concerns to counsel about the eye
removal. Simply put, not until long after trial was there any indication, to a reasonably
competent attorney, that the eyes may have been removed after release and embalming of
the body.
Petitioner argues, as he did to the state appellate court, that the Idaho Supreme
Court’s decision in his direct appeal prohibited the Idaho Court of Appeals from later
rejecting Claim 2(a). See Dkt. 23 at 38–40. In the direct appeal, the state supreme court
held—under Idaho state law—that the eye removal evidence was not “new” for purposes
of Petitioner’s motion for a new trial6:
Substantial and competent evidence in the record supports a
conclusion that the primary evidence that [C.W.’s] eyes were
removed after embalming—the Mortuary Embalming
Report—was available before trial. It also supports a
conclusion that the affidavits Stevens presented did not
contain new evidence, but only new interpretations of existing
evidence. The record also supports that Stevens was aware
the State would use expert witness testimony about injuries to
[C.W.’s] eyes to support its theory that Stevens killed [C.W.]
during a battery….
In order to be newly discovered evidence, the evidence
itself, not just importance or materiality of that evidence,
must be unknown and unavailable prior to trial. State v.
Weise, 75 Idaho 404, 410, 273 P.2d 97, 100–01 (1954). The
A criminal defendant is entitled to a new trial under Idaho law “[w]hen new evidence is discovered
material to the defendant, and which he could not with reasonable diligence have discovered and
produced at the trial.” Idaho Code § 19-2406(7); see also Idaho Crim. R. 34(a) (“On the defendant’s
motion, the court may vacate any judgment and grant a new trial on any ground permitted by statute.”).
6

MEMORANDUM DECISION AND ORDER - 18

fact that the defense did not inquire about the report until well
after the trial does not make this report newly discovered.
Likewise, that Stevens failed to present his own experts’
opinions at trial does not make the evidence on which they
rely newly discovered. At most, Stevens has demonstrated
that he did not recognize the importance or materiality of the
Mortuary Embalming Report. As such, he has not presented
any newly discovered evidence within the meaning of I.C.
§ 19-2406(7) and is not entitled to a new trial based on newly
discovered evidence.
Stevens I, 191 P.3d at 224. The Idaho Supreme Court expressly declined to address the
diligence factor under Idaho Code § 19-2406(7) and, in so doing, declined to adopt the
state trial court’s diligence findings. Id.
According to Petitioner, because the state supreme court found that the mortuary
report was available before trial—and thus could have been discovered before trial—then
counsel necessarily was deficient in failing to discover it. However, no clearly established
Supreme Court precedent establishes such a rule. The Sixth Amendment guarantees
adequate counsel, not the best counsel possible, and a petitioner does not establish
deficient performance by showing that counsel could have discovered evidence before
trial. See, e.g., Hinton v. Alabama, 571 U.S. 263, 272 (2014) (“[D]efendants are entitled
to be represented by an attorney who meets at least a minimal standard of competence.”).
Even if Petitioner’s trial counsel “could well have made a more thorough investigation
than [they] did,” this Court must “address not what is prudent or appropriate, but only
what is constitutionally compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987); see also
Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995) (describing the Strickland
standard as “the floor of minimal competence”).

MEMORANDUM DECISION AND ORDER - 19

Moreover, the Idaho Supreme Court on direct appeal did not address whether
counsel should have discovered the mortuary report with the exercise of due diligence,
and the majority opinion did not dispute Justice Trout’s factual description of Dr.
Slaughter’s previous testimony—that Dr. Slaughter testified that he removed the eyes at
autopsy. This left the Idaho Court of Appeals free, in Petitioner’s post-conviction appeal,
to make the reasonable factual finding that Petitioner’s counsel had no reason to suspect
that the chain of custody of the eyes or the timing of their removal should be investigated.
Finally, the state court correctly highlighted that the standards for a new trial under
Idaho Code § 19-2406(7) are entirely separate from Sixth Amendment standards as set
forth in Strickland. Thus, the Idaho Court of Appeals reasonably concluded that it was
not required to grant relief on Claim 2(a) simply because the Idaho Supreme Court had
previously affirmed the denial of Petitioner’s motion for a new trial by holding that the
mortuary report was not “new” evidence.
For the foregoing reasons, the Idaho Court of Appeals reasonably rejected
Petitioner’s claim of deficient performance with respect to the removal of C.W.’s eyes.
iv.

On De Novo Review, Even If Counsel’s Failure to Discover the
Mortuary Report Was Deficient, Petitioner Cannot Show Prejudice

Even if counsel had performed deficiently in failing to discover the mortuary
report, Claim 2(a) would fail the prejudice prong of Strickland on de novo review.7

7

Respondent argues that, if the Court reaches the prejudice prong of Strickland, it must presume that the
state appellate court addressed the prejudice prong on the merits and, therefore, review the claim under
AEDPA’s deferential standard. See Richter, 562 U.S. at 99 (“When a federal claim has been presented to
a state court and the state court has denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural principles to the

MEMORANDUM DECISION AND ORDER - 20

“Brady materiality and Strickland prejudice are the same.” Gentry v. Sinclair, 705
F.3d 884, 906 (9th Cir. 2013). Therefore, “if the information … does not constitute
a Brady violation for lack of materiality, it will likewise not support an ineffective
assistance claim.” Id.
The Ninth Circuit Court of Appeals has held that the eye removal evidence was
not material under Brady—meaning that, because of other strong evidence of Petitioner’s
guilt presented at trial, the eye removal evidence did not put the whole case in such a
different light as to undermine confidence in the verdict. Necessarily, therefore, Petitioner
cannot establish a reasonable probability that, had Petitioner’s counsel discovered and
presented this evidence at trial, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694; Gentry, 705 F.3d at 906.
For the foregoing reasons, Claim 2(a) must be denied.
B.

Claim 2(b): Failure to Present Drug Evidence Regarding Propulsid and
Zithromax

At the time of his death, C.W. was taking Propulsid, a medication prescribed for
acid reflux, and Zithromax, an antibiotic. Claim 2(b) asserts that trial counsel should have

contrary.”); Johnson v. Williams, 568 U.S. 289, 298 (2013) (applying the Richter merits-presumption to
state court decision addressing some, but not all, claims).
It is unclear whether the merits-presumption applies where, as here, the state court addressed all
of the claims raised by the petitioner, but did so explicitly only with respect to one prong of a two-prong
claim. Even if the presumption does apply in such a situation, however, that presumption is rebuttable.
Because the Idaho Court of Appeals expressly analyzed the deficient performance prong of Strickland
with respect to Claim 2(a), and did not expressly analyze the prejudice prong, it is more likely that the
court simply found it unnecessary to consider that prong, rather than deciding it on the merits but
declining to write about it. In any event, the Court holds that Claim 2(a) would fail the prejudice prong
even on de novo review. Thus, it is unnecessary also to consider that issue with AEDPA deference.

MEMORANDUM DECISION AND ORDER - 21

discovered and presented at trial evidence that Propulsid, particularly when taken with
Zithromax, could possibly cause cardiac arrest in infants.
i.

Factual Basis of Claim 2(b)

Before trial, at least some evidence in the field of medicine was available that
medications taken by C.W., including an acid reflux drug called Propulsid, could perhaps
cause heart attacks. But, one of Petitioner’s own experts acknowledged in state court that
“[m]edical knowledge about the danger of Propulsid was limited in 1999.” State’s
Lodging C-1 at 175. Nonetheless, “there were warnings that Propulsid should not be
prescribed to infants; that it could cause serious, life-threatening ventricular arrhythmias;
and that it was contraindicated with antibiotics, such as Zithromax, which the child was
also taking.” Stevens II, 327 P.3d at 391; see also State’s Lodging C-1 at 175 (Dr.
Durham stating that the “medical community was very suspicious of this drug”).
Medical research suggested that Propulsid could potentially cause cardiac arrest,
particularly in children and when taken in combination with an antibiotic like Zithromax.
Though the research to that point had failed to establish “causality” between the drugs
and cardiac arrest, several patients taking Propulsid had died of cardiac problems. State’s
Lodging C-11 at 2372. This potential risk was specifically noted in children. As the state
district court described:
Propulsid, also known as Cisapride, is an acid reflux
medication initially released in 1993. In 1996, the New
England Journal of Medicine released an article authored by
two doctors entitled “Cisapride and Fatal Arrhythmia.” The
article reports that between 1993 and 1996, fifty-seven
patients taking Propulsid reported serious adverse side
effects. Four of these patients died. Fifty-six percent of these
MEMORANDUM DECISION AND ORDER - 22

patients were also taking medications contraindicated for
Propulsid. The article also notes a temporal association
between the taking of Propulsid and the onset of arrhythmia.
In 1998, the maker of Propulsid issued a “Dear Doctor
Letter.” A Dear Doctor Letter is “basically information that is
sent out to people whose responsibility it is to prescribe or use
Propulsid.” The purpose of these letters is to “warn the doctor
about serious side effects that could affect the patient for
whom the prescription has been written.” The letter warns
that torsades de pointes and cardiac arrest have been reported
in patients taking Propulsid. The letter also warns that
Propulsid is contraindicated with drugs such as Zithrormax.
In a section entitled “Pediatric Use,” the letter states:
Safety and effectiveness in pediatric patients
have not been established. Although causality
has not been established, serious adverse
events, including death, have been reported in
infants and children treated with cisapride.
Several pediatric deaths were due to cardio
vascular events. Pediatric deaths have been
associated with seizures and there has been at
least one case of ‘sudden unexplained death’ in
a 3-month-old infant…A one-month-old male
infant received 2 mg/kg of cisapride four times
per day for 5 days. The patients developed third
degree heart block and subsequently died of
right ventricular perforation caused by
pacemaker wire insertion.
…. In an FDA talk paper, released several days after the Dear
Doctor Letter, the FDA reports that between 1993 and 1998
there were 38 deaths in the U.S. of people who were taking
Propulsid. The FDA paper also warns that patients taking
Propulsid should not take drugs such as Zithromax. Despite
these warnings Propulsid was not pulled from the market until
July 2000.
Id. (emphasis added) (internal quotation marks, citations, and footnote omitted) (first
omission in original)). Information regarding the potential risks of Propulsid in infants

MEMORANDUM DECISION AND ORDER - 23

was also “contained in the 1998 Physician’ Desk Reference, a copy of which
[Petitioner’s] counsel believed was available in his office.” Stevens II, 327 P.3d at 391.
Trial counsel were not aware of this particular information. However, at least one
of Petitioner’s attorneys—second-chair counsel John DeFranco—was aware that there
might be a potential problem associated with the drugs C.W. had been taking. DeFranco
was first advised to investigate the drug issue by out-of-state attorney Annabelle Hall,
who told him about possible dangers from Propulsid. State’s Lodging C-11 at 2374. Hall
also informed DeFranco that “drug interaction is an important area to study in the context
of preparing a shaken baby defense” and that “it shouldn’t be ignored.” State’s Lodging
C-12 at 804–05. DeFranco’s notes of his conversation with Hall indicate Hall told
counsel that prescribing Propulsid for an infant “borders on malpractice” and that the
potential drug interactions might cause liver damage and heart arrhythmia, which could
explain C.W.’s “lapse of consciousness on [the] stairs.” State’s Lodging C-15, Ex. 109.
As a result of his discussion with Hall, DeFranco spoke “to some of the medical
experts about those drugs.” State’s’ Lodging C-12 at 805. In particular, DeFranco sent
letters to forensic pathologists Dr. Dimaio and Dr. Plunkett (the latter of whom testified
at trial), “asking them about possible drug interaction between Propulsid and Zithromax.”
State’s Lodging C-11 at 2374; see also State’s Lodging C-15, Ex. 111, 112. Neither
doctor informed counsel of any specific concerns. DeFranco testified that he “probably
asked any medical expert that would talk to [him] whether or not the medications could
have somehow played a role.” State’s Lodging C-12 at 806. DeFranco learned from these
inquiries that, generally, “it was troubling that a child would be taking these medications,
MEMORANDUM DECISION AND ORDER - 24

especially together,” but he did not “ever remember making a link that would connect the
dots for [Stevens’s] defense.” Id.
The defense investigator also looked into the drug issue. He reported to Petitioner
and DeFranco that the drug issue was “a very important issue.” DeFranco testified:
And I remember it being a—and I don’t want to say a point of
contention. It was hard finding a place for it to fit in in
preparing for trial. And I know that, again, this was
something that was very important to Ed Stevens, and, in
turn, it was very important with [the investigator]. But in a lot
of ways, as a defense practitioner, I had a hard time linking it
up for the trial.
Id. at 808–09. To Defranco’s recollection, he, the defense investigator, and Petitioner
discussed the drug issue and decided not to pursue it:
We probably made decisions to commit to a certain strategy
as opposed to having kind of a shotgun approach to
presenting a case to a jury. And in that regard, as it relates to
the medications, I’m sure we brought it up, but I’m fairly
confident that we failed to link it up in terms of our overall
defense.
Id. at 809.
DeFranco testified at the post-conviction evidentiary hearing that he could have
used the evidence about Propulsid in one two ways. First, he could have argued that C.W.
died of a heart attack rather than a fall down the stairs. But counsel stated that he would
not have made that argument because “the bumper-sticker issue for the jury trial was
what caused the skull fracture, and my argument or our argument is it was a stair fall.” Id.
at 813. Next, he could have argued that the medication caused C.W. to be lethargic,
which may have provided an alternate reason why C.W. might have fallen down the

MEMORANDUM DECISION AND ORDER - 25

stairs. Id. at 813–14. However, second-chair counsel also would not have made this
argument, because there was already a “reasonable explanation” for C.W.’s fall as
described by Petitioner—C.W. was a young child learning to walk and was not
coordinated. Id. at 815.
On the other hand, Petitioner’s lead attorney Edward Odyssey, who ultimately
made the strategic decisions, testified that, had he known of the specific cardiac dangers
of the drugs, he would have changed his trial strategy:
Cause of death of [C.W.]—he was only alive 11
months. The last nine months of his life he was being
administered Propulsid throughout in conjunction with
Zithromax mostly, or some other penicillin derivative
throughout. Dosages were increasing as for both Propulsid
and Zithromax, is my recollection. And even though the child
was not really improving, he was still being administered
those medications.
If, in fact, [C.W.] suffered those consequences of
Propulsid, which was never supposed to be given to an infant;
that is to say, under one year of age anyway, but if they
affected his balance, dizziness and perhaps caused a heart
attack, [C.W.] could well have died at the top of those stairs
… before any impact occurred, and that could well have been
presented at trial.
State’s Lodging C-12 at 371.
ii.

Decision of the Idaho Court of Appeals

The Idaho Court of Appeals found that Petitioner’s lead counsel discussed the
Propulsid issue personally with Dr. Plunkett and was not notified of a potential problem
with the drug. Stevens II, 327 P.3d at 393. The court also found that, after second-chair
counsel’s initial inquiries to Dr. Dimaio and Dr. Plunkett, counsel made a conscious,

MEMORANDUM DECISION AND ORDER - 26

tactical decision not to pursue the drug issue further as a line of investigation. Id. at 392.
Finally, the court found that, before making that tactical decision, both counsel undertook
significant efforts to establish a link between the drugs the victim was taking and the
victim’s death:
As the district court pointed out, counsel undertook efforts
(that were not insignificant) to establish such a link. The
record establishes that once Hall, the out-of-state attorney that
defense counsel consulted with for help in this case, alerted
counsel to the possible dangers of Propulsid and drug
interactions, counsel brought this issue to the attention of, at
the very least, both Dr. Vincent Dimaio and Dr. John
Plunkett. Dr. Plunkett, a forensic pathologist, eventually
testified as an expert witness at trial. In fact, Second Chair,
who conducted the bulk of the investigation into the issue,
testified at the evidentiary hearing that he “probably asked
any medical expert that would talk to me whether or not the
medications could have somehow played a role [in the child's
death].” As a result of these discussions, Second Chair
continued, he learned “generically ... it was troubling that a
child would be taking these medications, especially together.
But I don’t ever remember making a link that would connect
the dots for [Stevens’s] defense.” Lead Counsel testified that
he personally spoke to Dr. Plunkett, one of the defense’s main
expert witnesses who testified at trial, regarding the
Propulsid issue and they “went through pretty exhaustively ...
all the medical things regarding [the child] that were
provided to him.” As the district court found, because counsel
were unable to link the drug issue to the child’s death, even
after consulting these experts, counsel made the decision to
abandon further investigation.
Stevens II, 327 P.3d at 392–93 (emphasis added) (footnotes omitted) (alterations in
original).
The Idaho Court of Appeals recognized that the question about trial strategy
concerning the drug issue was a close one. However, the court ultimately decided “that

MEMORANDUM DECISION AND ORDER - 27

defense counsel’s performance in failing to discover the warnings available in 1998, that
Propulsid could cause heart attacks in children, was not the result of an objectively
unreasonable abbreviation of investigation into the issue”:
[J]ust because counsel could have found something helpful,
doesn’t mean he is deficient for not having found that
information. In this case, we are not willing to say it is
constitutionally unreasonable for counsel to ask numerous
doctors (experts in issues concerning the death of the child)
about the possible side effects of a drug and, not having
received any positive indication that a further investigation
into the drug is necessary, to fail to then consult a reference
book. This is the type of “rigid requirement[] for acceptable
assistance” the Strickland Court warned against. Strickland,
466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Here,
defense counsel made a concerted effort to investigate the
issue, and just because it did not pan out, or may not have
been conducted in the precise manner which, in hindsight,
seems appropriate since there were, in fact, warnings
regarding Propulsid at the time, we cannot say it constituted
such deficient performance that “counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Id. at 686, 104 S. Ct. at 2063, 80 L.Ed.2d at 692–93.
Id. at 393 (second and third emphases added). Hence, having concluded that the decision
not to further pursue the drug issue was a reasonable strategic decision, the state appellate
court denied Claim 2(b).
iii.

The State Court’s Decision that Counsel Did Not Perform
Deficiently as to Claim 2(b) Was Not Unreasonable under AEDPA

Petitioner does not challenge the factual findings of the Idaho Court of Appeals as
to Claim 2(b). Nonetheless, this Court has reviewed those findings and concluded they
are not unreasonable under § 2254(d)(2). Given the specific testimony and exhibits
showing that trial counsel contacted at least two doctors about the issue and discussed the
MEMORANDUM DECISION AND ORDER - 28

issue with Dr. Plunkett, the state court reasonably found that counsel undertook
significant efforts to investigate the drug issue and, ultimately, made a strategic decision
to not investigate that issue further.
Notably, the double deference that applies when reviewing ineffective assistance
claims in habeas proceedings leaves no room for this Court to second-guess, with the
benefit of hindsight, the tactical decision of Petitioner’s counsel to refrain from further
pursuit of the drug issue. See Pinholster, 131 S. Ct. at 1403; Strickland, 466 U.S. at 689.
After speaking with Hall, trial counsel asked at least two forensic pathologists about the
drug issue. Neither alerted counsel to any concerns. The mere fact that trial counsel failed
to consult a different or potentially more qualified expert, such as a pediatrician, does not
constitute objectively unreasonable representation in violation of the Sixth Amendment.
On that point, the Ninth Circuit’s decision in Babbitt v. Calderon is instructive. 151 F.3d
1170 (9th Cir. 1998), as amended (Aug. 27, 1998). There, counsel consulted with experts
he believed were well-qualified. Because those experts did not recommend that counsel
contact other experts, it did not constitute deficient performance for trial counsel not “to
seek [additional experts] out independently.” Id. at 1174.
Similarly, here, the experts whom Petitioner’s trial counsel consulted regarding the
drug issue did not suggest additional consultation with other experts. Further, trial
counsel already had a credible explanation for an argument that C.W. had fallen down the
stairs, i.e., C.W.’s lack of coordination while learning to walk, an explanation supported
by multiple witnesses. As to an alternative argument that the drugs caused C.W.’s death,
neither of the doctors whom counsel contacted about the drug issue suggested that C.W.
MEMORANDUM DECISION AND ORDER - 29

died from anything other than a head injury. Counsel was not then required, in order to
provide constitutionally acceptable representation, to independently seek out additional
evidence on the drug issue.
Perhaps there could have been more to counsel’s investigation into the drug issue.
Counsel could have consulted the Physician’s Desk Reference and, thereby, learned of
the potential cardiac risks of the drugs the victim was taking. But the Sixth Amendment
does not entitle a defendant to a perfect investigation by counsel—only a minimally
competent one. Both attorneys’ strategy was to ensure the jury knew that a fall down the
stairs could have caused C.W.’s death, as Petitioner claimed. DeFranco, second-chair
counsel, performed a reasonable scope of investigation into the medication issues, and
ultimately decided that there was insufficient medical evidence to rely on this factor at
trial. No precedent exists requiring second-chair to consult with first-chair on every
potential defense theory. Second-chair counsel was a duly licensed attorney qualified to
decide investigative strategy. In any event, lead counsel himself discussed the drug issue
with Dr. Plunkett and was not alerted to any potential problem.
Trial counsel retained several scientists who provided evidence to support the
conclusion that the skull fracture could indeed have been caused by a fall down the stairs.
Given that both counsel had already decided on this strategy, a fair-minded jurist could
conclude that it was not deficient performance for counsel to forgo further investigation
into the risks of the drugs, either as a cause for the purported fall down the stairs or as an
alternate cause of death. For example, presenting this additional factor may have led the
jury to identify the theory as a red herring, discrediting the entire stair-fall defense. That
MEMORANDUM DECISION AND ORDER - 30

one of Petitioner’s attorneys would have made a different tactical choice if he had learned
about the cardiac risks of the drugs also does not establish that either attorney’s
representation (or both, for that matter) was constitutionally deficient.
The Idaho Court of Appeals’ rejection of Claim 2(b) reasonably applied Strickland
in determining that trial counsel did not perform deficiently with respect to the drug
issue. Therefore, Claim 2(b) must be denied.
Claim 2(c): Failure to Consult a Pediatric Radiologist Regarding C.W.’s
Skull Fracture

C.

In Claim 2(c), Petitioner contends that trial counsel rendered ineffective assistance
in failing to consult with a pediatric radiologist about C.W.’s skull fracture.
i.

Factual Basis of Claim 2(c)

When the paramedics responded to Petitioner’s 911 call the day of the incident,
C.W. was not bleeding, and there was no immediate indication that he had suffered a
skull fracture. “It was not until a CT scan was taken of [C.W.’s] skull that doctors
realized he had a fracture.” State’s Lodging C-11 at 2375.
Paramedics first took C.W. to St. Alphonsus Hospital, where providers performed
a CT scan of C.W.’s brain. The next day, x-rays were taken at St. Luke’s Hospital, where
C.W. died. State’s Lodging C-36 at 2.
Dr. Slaughter, who performed the autopsy, measured C.W.’s skull fracture as nine
centimeters long. State’s Lodging C-11 at 2375. At trial, Dr. Slaughter testified that the
fracture was eight to nine centimeters long. This measurement was based on the images

MEMORANDUM DECISION AND ORDER - 31

taken at St. Luke’s—not those taken a day earlier at St. Alphonsus. As noted by the state
district court,
It appears no one attempted to measure the size of [C.W.’s]
skull fracture based on the CT scan taken at St. Alphonsus,
even though this scan was taken within hours of [C.W.’s]
injury. Dr. Smith [a pediatric radiologist who testified for the
State at trial, see State’s Lodging A-9 at 1372] never offered
an opinion as to the length of the fracture, and appears to have
taken Dr. Slaughter at his word that a high force impact
caused [C.W.] to suffer a nine centimeter fracture.
Id. The evidence that the length of C.W.’s skull fracture was eight to nine centimeters
went uncontested at trial.
What caused C.W.’s skull fracture “was the primary issue at trial,” id. at 2376, and
Petitioner’s trial counsel were well aware the state would argue that the fracture was
caused by a high degree of force that was not possible to have been sustained in a fall
down the stairs. The prosecution and Petitioner each called various experts. The state’s
experts generally testified that the fracture was too large to have been caused by falling
down the stairs, while Petitioner’s experts testified that the fracture could, indeed, have
been caused by such a fall.
In post-conviction proceedings, Petitioner presented the testimony of Dr. Patrick
Barnes, who reviewed the x-rays and scans of C.W., including the St. Alphonsus CT scan
taken within hours of the injury. Dr. Barnes found that, based on the St. Alphonsus scan,
C.W.’s skull fracture was only three to four centimeters when the child was at St.
Alphonsus. State’s Lodging C-36 at 2. Dr. Barnes opined that the fracture then expanded,
due to intracranial pressure, in the time between the St. Alphonsus scan and the St.

MEMORANDUM DECISION AND ORDER - 32

Luke’s x-rays. Id. That is, at the time of injury, the skull fracture was much smaller than
was shown by the St. Luke’s images. Another of Petitioner’s post-conviction experts, Dr.
Cyril Wecht, opined that this smaller fracture “could quite easily” have occurred as
Petitioner maintained:
The fact that the fracture depicted in the St. Alphonsus
Regional Medical Center CT scans is 3 to 4 cm rather than
the 8 cm length (as testified by the prosecution’s expert
initially) strengthens and buttresses my opinion that this
fracture could quite easily have been caused by an accidental
fall. There is no scientific basis for an absolute, rigid
conclusion that such a skull fracture could only have been
sustained through the deliberate infliction of force by a third
party.
…
The injuries that led to the death of this 11-month old child
can logically and quite reasonably be related to accidentally
incurred trauma.
State’s Lodging C-40 at 3.
ii.

Decision of the Idaho Court of Appeals

In rejecting Claim 2(c), the Idaho Court of Appeals accepted the following factual
findings made by the state district court:
The affidavit of Dr. Barnes shows [that] whatever caused [the
child’s] skull fracture required less force than previously
thought by either party because the impact only caused a
four-centimeter fracture rather than a nine-centimeter
fracture. However, Stevens’ counsel did retain experts who
testified that a fall down the stairs could produce a great deal
of force. Dr. Richard Reimann, a physicist, testified [the
child’s] head could have been traveling at eight to twelve
miles per hour at the time of impact. He also testified [the
child’s] head would have been subject to forces of at least 160
g’s, which is the threshold for serious injury. Dr. Lawrence
MEMORANDUM DECISION AND ORDER - 33

Thibault testified [the child’s] fracture could have easily been
caused by a fall down stairs. Counsel also called Dr. John
Plunkett who testified that a fall from even two stairs up can
produce enough force to crack a child’s occipital bone. Thus,
counsel secured three experts, a physicist, a bio-engineer and
forensic pathologist, who all testified that a fall from these
stairs could have caused a nine centimeter fracture in [the
child’s] occipital bone. Counsel found exactly what they set
out to find, three experts who were all ready to testify that
Stevens’ version of events was not only plausible, but very
possible.
Stevens II, 327 P.3d at 394–95 (emphasis added) (alterations in original).
Relying on these facts, the Idaho Court of Appeals held that, although trial counsel
could have discovered the evidence of the smaller skull fracture, they did not perform
deficiently by failing to do so because “the steps counsel did take in investigating the
issue … were not insignificant”:
Second Chair testified he had reviewed every medical record
in the case, and there is no indication in the record, nor
argument from Stevens, that counsel did not provide the
experts it consulted with the requisite medical records. As
noted by the district court, the information that counsel did
receive regarding the length of the fracture from the three
experts did not indicate that further investigation was
required in order to support the defense’s theory because all
three indicated even an eight to nine centimeter fracture
could be caused by an accidental fall. In addition, none of the
experts apparently alerted counsel to the possibility that the
fracture could have been smaller at its inception.
Id. at 395 (emphasis added).
The state court noted that “counsel’s performance will not be found to have been
deficient just because counsel failed to consult experts who may have been helpful in the
case.” Stevens II, 327 P.3d at 396. The court relied on Strickland for the proposition that

MEMORANDUM DECISION AND ORDER - 34

the “constitutional guarantee of effective assistance of counsel simply does not ensure
that counsel render stellar performance; rather, to be deficient performance, counsel’s
conduct must have so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Id. (internal quotation
marks and alterations omitted). Concluding that Petitioner did not establish that counsel’s
failure to consult a pediatric radiologist was constitutionally deficient, the court of
appeals rejected Claim 2(c).
iii.

The State Court’s Decision that Trial Counsel Did Not Perform
Deficiently as to Claim 2(c) Was Not Unreasonable under AEDPA

The Idaho Court of Appeals reasonably concluded that trial counsel did not
perform deficiently by failing to consult with a pediatric radiologist regarding C.W.’s
skull fracture. Petitioner does not contest the Idaho Court of Appeals’ implicit finding
that his counsel provided C.W.’s medical records—which would have included the St.
Alphonsus CT scan—to the three experts they did consult. See Stevens II, 327 P.3d at 375
(“[T]here is no indication in the record, nor argument from Stevens, that counsel did not
provide the experts it consulted with the requisite medical records.”). None of these
experts raised any concerns regarding the size of the skull fracture at the time of injury.
Most notably, not even the forensic pathologist retained by trial counsel suggested that
the size of the skull fracture could be disputed. Having consulted three experts who raised
no concerns about the size of the fracture, counsel acted reasonably in not specifically
contacting a pediatric radiologist to examine C.W.’s medical images. See Hendricks, 70
F.3d at 1039 (“[F]orcing lawyers to second-guess their experts … would effectively

MEMORANDUM DECISION AND ORDER - 35

eliminate the legitimate role experts play in guiding and narrowing an attorney’s
investigation.”).
Further, this Court agrees with the state district court that once all of counsel’s
experts opined that a fall down the stairs could have caused a nine-centimeter fracture,
“[a] reasonable attorney would not continue to investigate a question for which he
already had an answer. At this point, a reasonable attorney would have ceased
investigation into whether a fall down stairs could have caused [C.W.’s] fracture and
proceeded to more fruitful areas of investigation.” State’s Lodging C-11 at 2377.
Again, the possibility that trial counsel could have found a different and
potentially more qualified expert to examine the St. Alphonsus CT scan does not render
counsel’s performance deficient, given that the experts whom were consulted did not
alert counsel to any potential problem with the argument in their trial strategy that a fall
down the stairs could have caused a nine-centimeter fracture. See Babbitt, 151 F.3d at
1174. Having consulted with these experts and decided on a strategy of showing that a
fall could indeed have caused such a fracture, trial counsel did not perform deficiently in
deciding not to pursue additional experts to reconsider the size of the fracture.
A court addressing an IAC claim must review counsel’s strategic decisions,
including the decision not to investigate an issue or not to investigate further, with a
“heavy measure of deference.” Strickland, 466 U.S. at 691. This Court must go even
further under § 2254(d), however, and apply yet another layer of deference to the Idaho
Court of Appeals’ decision that counsel did not perform deficiently. See Pinholster, 563
U.S. at 190. Having done so, the Court concludes that Petitioner has not established that
MEMORANDUM DECISION AND ORDER - 36

the state court’s rejection of Claim 2(c) was unreasonable under AEDPA. Thus, Claim
2(c) must be denied.
4.

Petitioner Is Not Entitled to Habeas Relief on Claim 3: Ineffective Assistance
of Direct Appeal Counsel
Claim 3 asserts that direct appeal counsel should have argued that the Idaho

Supreme Court erred by appointing a sitting justice of that court—who had been the
presiding trial judge—to hear Petitioner’s motion for a new trial. Petitioner asserts that
the failure to raise that argument on direct appeal constituted deficient performance and
that, had the issue been raised, there is a reasonable probability that Petitioner would have
prevailed on appeal.
A.

Factual Basis of Claim 3

“[A]fter presiding over Stevens’ second trial and sentencing proceedings, then
District Court Judge Eismann was elected to the Idaho Supreme Court.” Stevens II, 327
P.3d at 387. Petitioner later filed his motion for a new trial. The Idaho Supreme Court
assigned Justice Eismann to hear the motion, noting that the trial court had requested
judicial assistance. Id.
Petitioner moved the Idaho Supreme Court to reconsider the appointment. In the
state district court, Petitioner also objected to the appointment and moved to disqualify
Justice Eismann. In both courts, Petitioner argued that Justice Eismann was ineligible,
under the Idaho State Constitution, to sit as a district court judge. Id. The Supreme Court,
“after due consideration” and stating that it was “fully advised,” denied the motion to
reconsider the appointment. Id. Justice Eismann, sitting as the presiding district court

MEMORANDUM DECISION AND ORDER - 37

judge in the proceedings on Petitioner’s motion for a new trial, denied Petitioner’s
objection as well, stating that the Idaho Supreme Court had already “rejected such an
argument.” Id.
After the new trial motion was denied, Petitioner’s appellate counsel did not again,
on direct appeal, raise the issue of Justice Eismann’s appointment. See State’s Lodging B8, B-10.
B.

Decision of the Idaho Court of Appeals

Article V, section 12 of the Idaho Constitution provides as follows:
A judge of any district court, or any retired justice of the
Supreme Court or any retired district judge, may hold a
district court in any county at the request of the judge of the
district court thereof, and upon the request of the governor, or
of the chief justice, and when any such request is made or
approved by the chief justice it shall be his duty to do so[.]
Idaho Const., art. V, § 12. In his motion to reconsider the appointment of Justice Eismann
to hear the new trial motion, Petitioner argued to the Idaho Supreme Court that Justice
Eismann was constitutionally ineligible because he was a sitting Idaho Supreme Court
justice—not a “judge of any district court,” a “retired justice of the Supreme Court,” or a
“retired district judge.” The Idaho Supreme Court rejected this argument when it denied
Petitioner’s motion to reconsider the appointment.
On appeal from the dismissal of Petitioner’s post-conviction petition, Petitioner
argued that appellate counsel rendered ineffective assistance in failing to raise this claim
on appeal from the denial of the motion for a new trial. The Idaho Court of Appeals
disagreed:

MEMORANDUM DECISION AND ORDER - 38

Here, we cannot say counsel’s performance in failing to
appeal this issue was objectively unreasonable such that it
amounted to deficient performance. The Supreme Court itself
appointed Justice Eismann to hear the new trial motion, and
even after Stevens filed a motion in that court for
reconsideration, which asserted the same claims of error he
pursues in this appeal, the Supreme Court still rejected the
motion. The fact that counsel did not then include this issue in
the direct appeal to the Supreme Court is not unreasonable ….
Stevens II, 327 P.3d at 388. The appellate court concluded, “[I]t was counsel’s
prerogative as an appellate practitioner to pursue the issues most likely to prevail, and we
cannot say counsel did not do so here.” Id.
The State Court’s Rejection of Claim 3 Was Not Unreasonable under
AEDPA, and this Court Would Reject It Even under De Novo Review

C.
i.

Petitioner’s Appellate Counsel Did Not Perform Deficiently

When the Idaho Supreme Court appointed Justice Eismann to hear Petitioner’s
motion for a new trial, Petitioner’s counsel argued to that court that the appointment
violated the Idaho State Constitution. The Idaho Supreme Court rejected the claim on the
merits at that time.8
Thus, by the time of Petitioner’s direct appeal, the highest state court had already
rejected the argument that Justice Eismann was ineligible to preside over Petitioner’s new
trial proceedings. Therefore, Petitioner’s appellate counsel did not perform deficiently by

8

Petitioner argues here, as he did to the Idaho Court of Appeals, that the Idaho Supreme Court must have
denied the motion to reconsider for procedural reasons, rather than substantive reasons, because it did not
have jurisdiction over the motion to reconsider. Dkt. 23 at 74–75. The Court rejects this argument. The
Idaho Supreme Court’s language—stating that it was “fully advised” and that it denied the motion “after
due consideration”—shows that the court denied Petitioner’s constitutional argument on the merits. This
Court is bound by the state supreme court’s interpretation of state law, including an implied interpretation
of its own jurisdiction. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“Today, we reemphasize that
it is not the province of a federal habeas court to reexamine state-court determinations on state-law
questions.”).

MEMORANDUM DECISION AND ORDER - 39

failing to raise that argument—again—on appeal from the denial of the new trial motion.
Counsel reasonably concluded that the Idaho Supreme Court would not be persuaded by
the very argument it had previously rejected, nor would the Idaho Court of Appeals
disagree with the highest state court on that issue. Indeed, raising a claim that had already
been rejected (and recently) by the state’s highest appellate court could well have been
considered frivolous. Thus, counsel wisely focused on “a few key issues” and
“winnow[ed] out” the weaker argument regarding Justice Eismann’s judicial eligibility,
which had already been rejected by the Idaho Supreme Court. See Jones, 463 U.S. at
751–52.
In addressing Claim 3, the Idaho Court of Appeals applied the appropriate
principles from Strickland and Jones and reasonably concluded that appellate counsel did
not perform deficiently.
ii.

Petitioner Cannot Show Strickland Prejudice as to Claim 3

Even if appellate counsel should have raised Claim 3 on direct appeal, that claim
would fail the prejudice prong of Strickland under de novo review. This Court is bound
by the Idaho appellate courts’ state-law conclusion that Justice Eismann was, in fact,
constitutionally eligible to preside over Petitioner’s motion for a new trial. See Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991). Accordingly, Claim 3 would have been rejected
even if counsel had re-raised it on appeal, and Petitioner cannot show a reasonable
probability of a different result.
Therefore, Claim 3 must be denied.

MEMORANDUM DECISION AND ORDER - 40

CONCLUSION
The Idaho Court of Appeals rejected Claims 2 and 3 of the Petition, concluding
that neither Petitioner’s trial counsel nor direct appeal counsel performed deficiently.
That conclusion was objectively reasonable under 28 U.S.C. § 2254(d). Therefore, the
Court must deny habeas relief on Claims 2 and 3.
ORDER
IT IS ORDERED:
1.

Claims 2 and 3 of the Petition for Writ of Habeas Corpus (Dkt. 1) are
DENIED. Consistent with the Ninth Circuit’s previous memorandum
disposition, Claim 1 is also DENIED, and judgment will be entered in favor
of Respondent.

2.

The Court does not find its resolution of Claims 2 and 3 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.

DATED: January 5, 2021
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 41