Kellis v. Carlin
Filing
62
MEMORANDUM DECISION & ORDER Claim 26 of the Amended Petition for Writ of Habeas Corpus (Dkt. 11 ) is DENIED. Because all other claims have already been dismissed, this entire action is DISMISSED with prejudice. 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 (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TIMOTHY ANDREW KELLIS,
Case No. 3:15-cv-00094-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
WARDEN CARLIN,
Respondent.
Pending before the Court is a Petition an Amended Petition for Writ of Habeas
Corpus filed by Idaho state prisoner Timothy Andrew Kellis, challenging his Latah
County convictions on nine counts of lewd conduct with a minor, one count of attempted
lewd conduct with a minor, and two counts of sexual abuse of a child. See Dkt. 11. The
Court previously granted Respondent’s motion for partial summary dismissal, concluding
that Claims 1 through 19 were procedurally defaulted without legal excuse and that
Claims 20 through 25 are not cognizable on federal habeas corpus review. See Dkt. 39.
Claim 26, the only remaining claim in the Amended Petition, is now fully briefed
and ripe for adjudication. In that claim, Kellis asserts that, in violation of due process, the
trial judge imposed a harsh sentence as punishment for Kellis’s assertion of innocence.
Dkt. 11-3 at 22–30, Am. Pet. at 122–130.
MEMORANDUM DECISION AND ORDER - 1
The Court takes judicial notice of the records from Kellis’s state court
proceedings, which have been lodged by Respondent. See Dkt. 22; Fed. R. Evid. 201(b);
Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
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. 17. 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 will enter the
following Order denying habeas corpus relief.
BACKGROUND
Following a jury trial in the Second Judicial District Court in Latah County, Idaho,
Kellis was convicted of twelve criminal charges arising from sexual misconduct “with
four teenage boys, much of which occurred at a Boy Scout Camp where Kellis was a staff
member.” State’s Lodging D-6 at 1. The Idaho Court of Appeals affirmed the convictions
and sentence, rejecting Kellis’s claim that the trial judge unconstitutionally punished him,
for asserting his innocence, by imposing a harsher sentence based on that assertion. State
v. Kellis, 229 P.3d 1174, 1178–79 (Idaho Ct. App. 2010).
Kellis raises the same claim in Claim 26—that his due process rights were violated
at sentencing because the trial judge used Kellis’s assertion of innocence as a basis for
MEMORANDUM DECISION AND ORDER - 2
additional punishment.1 Dkt. 11-3 at 22, Am. Pet. at 122. For the following reasons, the
Court disagrees.
DISCUSSION
1.
Habeas Corpus Standards of Law
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—
Kellis also alleges that the trial judge abused his discretion by imposing “excessive sentences as
punishment for Kellis continued assertion of innocence.” Dkt. 11-3 at 22–30, Am. Pet. at 122–30.
However, any such claim asserts a violation of Idaho state law and, as such, is not cognizable on federal
habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie
for errors of state law.”).
1
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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).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.
Under the first test, 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 identifying “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) (emphasis omitted).
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 there is any
possibility that fair-minded jurists could disagree on the correctness of the state court’s
decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S.
86, 102 (2011). The Supreme Court has emphasized that “even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id. To be entitled
to habeas relief under § 2254(d)(1), “a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103.
The source of clearly established federal law must come only from the holdings of
the United States Supreme Court. Although 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. 2000), 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] Court has not announced,” Marshall v.
Rodgers, 569 U.S. 58, 64 (2013).
“[R]eview under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180
(2011). Therefore, evidence that was not presented to the state court cannot be introduced
on federal habeas review if a claim was adjudicated on the merits in state court and if the
underlying factual determinations of the state court were reasonable. See Murray v.
MEMORANDUM DECISION AND ORDER - 5
Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014) (“After Pinholster, a federal habeas
court may consider new evidence only on de novo review, subject to the limitations of
§ 2254(e)(2).”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine,
considering only the evidence before the state court, that the adjudication of a claim on
the merits ... was based on an unreasonable determination of the facts, we evaluate the
claim de novo, and we may consider evidence properly presented for the first time in
federal court.”).
To be eligible for relief under § 2254(d)(2), the petitioner must show that the state
court decision was based upon factual determinations that were “unreasonable ... in light
of the evidence presented in the State court proceeding.” A “state-court factual
determination is not unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher
threshold.”). State court factual findings are presumed to be correct and are binding on
the federal court unless the petitioner rebuts this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to, or an unreasonable application of Supreme
Court precedent or by establishing that the state court’s factual findings were
MEMORANDUM DECISION AND ORDER - 6
unreasonable—then the federal habeas court must review the petitioner’s claim de novo,
meaning without deference to the state court’s decision. Hurles, 752 F.3d at 778. When
considering a habeas claim de novo, a district court may, as in the pre-AEDPA era, draw
from both United States Supreme Court and well as circuit precedent, limited only by the
non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even under de novo
review, however, if the factual findings of the state court are not unreasonable under
§ 2254(d)(2), the Court must apply the presumption of correctness found in 28 U.S.C.
§ 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167-68.
Conversely, if a state court factual determination is unreasonable, the federal court is not
limited by § 2254(e)(1) and may consider evidence outside the state court record, except
to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d at 1000.
For the reasons that follow, the Court concludes that the Idaho Court of Appeals
reasonably rejected Claim 26. Therefore, Kellis is not entitled to habeas relief.
2.
Clearly Established Law Governing Claim 26
The Due Process Clause of the Fourteenth Amendment prohibits the State from
“punish[ing] a person because he has done what the law plainly allows him to do.”
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). For example, if a defendant
successfully challenges his conviction and is granted a new trial, he may not receive a
harsher sentence after retrial because of the successful challenge. North Carolina v.
Pearce, 395 U.S. 711, 724–25 (1969), clarified and distinguished by Alabama v. Smith,
490 U.S. 794 (1989). This is not to say that a judge may never impose a harsher sentence
after retrial—rather, “whenever a judge imposes a more severe sentence upon a defendant
MEMORANDUM DECISION AND ORDER - 7
after a new trial, the reasons for … doing so must affirmatively appear.” Id. at 726
(1969); see also Blackledge v. Perry, 417 U.S. 21, 27 (1974) (“[T]he Due Process Clause
is not offended by all possibilities of increased punishment [after successfully
challenging a conviction], but only by those that pose a realistic likelihood of
‘vindictiveness.’”).
Similarly, where a defendant originally convicted of a misdemeanor successfully
challenges that conviction, a prosecutor may not recharge the defendant with a felony
stemming from the same criminal conduct if the successful challenge was the motivation
for that charge. Blackledge, 417 U.S. at 27. A presumption of vindictiveness applies in
such a case, because “there is a ‘reasonable likelihood’ … that the [challenged action] is
the product of actual vindictiveness.” Smith, 490 U.S. at 799. However, the presumption
of vindictiveness may be rebutted. Wasman v. United States, 468 U.S. 559, 569 (1984).
The United States Supreme Court has never addressed whether, and to what
extent, these principles apply where a judge imposes a harsher sentence after a defendant
asserted his innocence at trial. In a related context, the Court has held that the Fifth
Amendment right to be free from compelled self-incrimination requires that no adverse
inferences may be taken from a defendant’s silence during the guilt phase of a trial,
Carter v. Kentucky, 450 U.S. 288, 302-03 (1981), but has left open the possibility that
some such inferences might be permissible at sentencing—for example, as indicating a
defendant’s lack of remorse—so long as the adverse inference does not relate to the facts
and circumstances of the crime, Mitchell v. United States, 526 U.S. 314, 330 (1999);
MEMORANDUM DECISION AND ORDER - 8
White v. Woodall, 134 S. Ct. 1697, 1704-05 (2014) (explaining that Mitchell expressly
reserved the question of whether assertion of the privilege against self-incrimination at
sentencing may be the basis for a finding of lack of remorse).
Various federal courts of appeals and state courts—including the Idaho Court of
Appeals—have held that due process protects a defendant who continues to assert
innocence from receiving “harsher punishment than the court would have decreed” had
the defendant acknowledged guilt. See, e.g., Thomas v. United States, 368 F.2d 941, 946
(5th Cir. 1966); State v. Lawrence, 730 P.2d 1069, 1077 (Idaho Ct. App. 1986) (“A court
should not coerce a defendant into sacrificing the right to assert innocence by threatening
a more severe sentence.”) (citing Thomas, 368 F.2d 941); but see United States v. Hull,
792 F.2d 941, 943 (9th Cir. 1986) (affirming revocation of probation where probationer
“did not express remorse” and stating that “a sentencing court [may] impose a harsh
sentence as a penalty for the defendant’s refusal to admit his guilt, since an admission
would evidence the first step in rehabilitation”) (emphasis added). These courts do not
prohibit all consideration of an innocence assertion but, instead, permit a sentencing
judge “to consider a defendant’s failure to accept responsibility in determining whether
rehabilitation efforts would be fruitful.”2 See, e.g., State v. Murphy, 988 P.2d 715, 720
(Idaho Ct. App. 1999).
2
The Ninth Circuit has previously determined that any distinction between using lack of remorse or
acceptance of responsibility as (1) a factor in whether a defendant is amenable to rehabilitation, or (2) a
reason for imposing a harsher sentence as a penalty for maintaining innocence, is not appropriate:
[T]o the extent that rehabilitation is the objective, no fault can be found of the judge who
takes into consideration the extent of a defendant’s rehabilitation at the time of sentence.
…
MEMORANDUM DECISION AND ORDER - 9
3.
Factual Basis of Claim 26
Because Kellis’s remaining habeas claim is based on the trial judge’s comments
during the sentencing hearing, the Court will quote those comments at length:
I’m obliged under the statutes of the State of Idaho to apply
criteria to determine whether someone should be placed on
probation or imprisoned. Those criteria are set out in Idaho
Code, Section 19-2521. The first criteria is that there is undue
risk that during the period of a suspended sentence or
probation the defendant will commit another crime.
I guess first and foremost, I believe the boys who testified. I
don’t believe your testimony, Mr. Kellis, and I think that’s
consistent with the jury’s verdict. Someone in one of these
statements indicated that you have violated every oath that the
boy scouts stand for and I agree with that statement. I think
you have violated the trust that was placed in you by the Boy
Scouts. And I appreciate that the Boy Scouts are paying for
that. Also, that’s my assessment of the evidence as I heard it.
Now, the next criteria is that the defendant is in need of
correctional treatment that can be provided most effectively
by his commitment to an institution. I find that this criteria
has been met. I think you’re in denial, Mr. Kellis. I shouldn’t
say I think you’re in denial. I believe you’re in denial. I don’t
know why four young boys as outstanding as they were would
come in and testify to the acts that you committed upon them
other than that was the truth. And now to say it didn’t
happen, leaves me little confidence that you can be trusted
among civilized society or that you can be treated in a way
that I think you need to be treated.
Justice is better served by a forth-right disclosure of the state of mind of the judge…. A
proper sentence takes into consideration the kind of crime committed and the kind of man
who committed it. To belabor a distinction between the considerations just discussed and
a sentence which is in part imposed as a penalty for going to trial would be a waste of
time.
Gollaher v. United States, 419 F.2d 520, 530 (9th Cir. 1969) (emphasis added).
MEMORANDUM DECISION AND ORDER - 10
I’m no expert on sex offense, but I can tell you that in talking
to people who treat sex offenders, the most important criteria
is empathy. You have to be able to appreciate what you’ve
done and to appreciate the position that you’ve put those
young boys in. And unless and until you develop empathy for
the victims of these offenses, I don’t have much hope that you
will ever be released from the penitentiary.
I’ve dealt with the Probation and Parole Commission on other
cases, and I have no expectation that you will be released
from the penitentiary until the Parole Commission concludes
that you have rehabilitated yourself. And rehabilitation will
require, as a first step, that you recognize what you did wrong
and that you empathize with your victims and you appreciate
what you’ve done to them. And until you can do that, my
expectation is that you will be incarcerated in the State of
Idaho.
…
The next step in the process is for me to consider other
criteria, other grounds, that while not controlling the
discretion of the Court, shall be accorded weight in favor of
avoiding a sentence of imprisonment….
I can’t hold it against you, Mr. Kellis, that you took this case
to trial. There are a number of statements in the presentence
report that suggest that I hold it against you for exercising
your constitutional right to testify. I don’t think I can, as a
judge, punish someone for the exercise of their constitutional
rights. But what I do find offensive is that you have no
remorse. You are not taking responsibility for the actions that
you have been convicted of. And I can and do punish you for
that.
…
The next criteria is that the defendant’s criminal conduct was
the result of circumstances that are unlikely to recur. I can’t
find that criteria has been met. When you don’t believe you
have harmed anyone, it’s difficult for me to conclude that you
wouldn’t engage in similar behavior in the future.
MEMORANDUM DECISION AND ORDER - 11
And, finally, the character and attitudes of the defendant
indicate that the commission of another crime isn’t likely. I
think it’s a similar analysis to the last criteria that when you
have no remorse and no empathy for your victims, I don’t
have much optimism that you can or will rehabilitate
yourself. And if you can’t rehabilitate yourself, then I don’t
have much hope that another crime isn’t unlikely [sic].
So, weighing the criteria that I’m to weigh, I conclude that
imposition of imprisonment is the appropriate sentence. I
guess, given the fact that you have shown no remorse and
have taken no responsibility, the easy question is whether I
should impose a life sentence. I should impose a life sentence
given that you haven’t demonstrated any remorse and haven’t
taken responsibility for any of these offenses. The hard
question is what’s the minimum?
I don’t think I can punish you for going to trial. I think I said
that earlier. That’s your constitutional right. If I were to
punish people for going to trial, I don’t think I would be
doing my job. But the next question is, have you shown
remorse? Have you taken responsibility? And I can’t
conclude that you have. And as I say, I don’t have much
optimism that whatever sentence I impose, you will be
released by the Parole Commission until you take
responsibility, until you acknowledge what you’ve done, until
you account for yourself and take responsibility.
… As I say, Mr. Kellis, unless and until you take
responsibility and own up to what you did, you’re not going
to be released….
State’s Lodging A-7 at 1068–74 (emphasis added).
The trial judge imposed concurrent unified sentences, cumulatively amounting to
life imprisonment with fifteen years fixed.
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4.
The State Court’s Rejection of Claim 26 Was Not Unreasonable under
AEDPA
As explained previously, the United States Supreme Court has not specifically
addressed whether a trial court may constitutionally base its sentencing decision in part
on a defendant’s assertion of innocence, either as a reason for a harsher sentence or as a
factor in the inquiry whether a defendant is amenable to rehabilitation or treatment.
Although there is certainly a broad constitutional right not to be punished for exercising
constitutional rights, see Bordenkircher, 434 U.S. 363, the Supreme Court has instructed
federal habeas courts not to frame its precedents at “a high level of generality,” Nevada v.
Jackson, 569 U.S. 505, 512 (2013) (per curiam). To do so runs the risk of “transforming
even the most imaginative extension of existing case law into ‘clearly established Federal
law, as determined by the Supreme Court.’” Id. (quoting 28 U.S.C. § 2254(d)(1)). For
this reason alone, Kellis is not entitled to habeas relief under § 2254(d)(1).
Further, Kellis has not shown that the state court’s rejection of Claim 26 was
based on an unreasonable factual finding under § 2254(d)(2). The state court
acknowledged that one of the judge’s comments—“You are not taking responsibility for
the actions that you have been convicted of. And I can and do punish you for that”—was
“troublesome because, out of context, it could be interpreted as punishing Kellis for
asserting innocence and putting the State to its proof at trial.” Kellis, 229 P.3d at 1178.
However, the court of appeals went on to conclude, considering the entire context of the
judge’s sentencing pronouncement, that the judge did not, in fact, impose a harsher
sentence because Kellis maintained his innocence. Instead, the court found that the
MEMORANDUM DECISION AND ORDER - 13
sentencing judge was “permissibly commenting on the defendant’s amenability to
rehabilitation”:
The district court … said multiple times that it could not and
would not punish Kellis for exercising his constitutional
rights, and the court continually linked its comments
concerning Kellis’s lack of remorse to his rehabilitation
prospects. Placed in context, the district court’s comments on
which Kellis predicates error do not show that there was
enhanced punishment for Kellis’s refusal to confess guilt, but
rather a permissible consideration of factors relevant to
Kellis’s prospects for rehabilitation.
Id. at 1178–79 (emphasis added).
This factual finding is supported by the sentencing judge’s repeated statements
regarding Kellis’s lack of remorse and failure to take responsibility for his actions. The
judge consistently made such comments in connection with the question of whether
Kellis could be rehabilitated. The judge also twice stated that he would not use Kellis’s
exercise of his constitutional right to assert his innocence as a reason to increase the
sentence. Thus, even if the right asserted by Kellis were clearly established—which it is
not—Kellis is not entitled to relief under § 2254(d)(2) because the Idaho Court of
Appeals reasonably found that the sentencing judge did not increase Kellis’s sentence as
punishment for maintaining his innocence.
CONCLUSION
The United States Supreme Court has not clearly established that the Constitution
prohibits a sentencing judge from using an assertion of innocence as a factor in
determining the defendant’s sentence, particularly when it is used only in consideration
of the defendant’s amenability to rehabilitation. And the state court reasonably found that
MEMORANDUM DECISION AND ORDER - 14
the sentencing judge used Kellis’s lack of remorse or acceptance of responsibility in
precisely that manner—not as a punishment for asserting innocence. Therefore, Kellis
has not shown that he is entitled to relief on Claim 26.
ORDER
IT IS ORDERED:
1.
Claim 26 of the Amended Petition for Writ of Habeas Corpus (Dkt. 11) is
DENIED. Because all other claims have already been dismissed, this entire
action is DISMISSED with prejudice.
2.
The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If
Petitioner wishes to appeal, he must file a timely notice of appeal with the
Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.
DATED: December 23, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
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